IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVEN LEE SLAUGHTER, DEFENDANT AND APPELLANT.
The opinion of the court was delivered by: Butz, J.
P. v. Slaughter
Opinion following order vacating prior opinion
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this appeal, defendant Steven Lee Slaughter contends he is entitled to additional presentence conduct credits under recent amendments of Penal Code section 4019.*fn1 We agree. Accordingly, we shall modify the judgment to award the additional credits, affirm the judgment as modified, and instruct the trial court to prepare an amended abstract of judgment to reflect the additional credits.
On July 20, 2009, the Shasta County District Attorney filed a criminal complaint against defendant charging him with four counts under the Penal Code: (1) assault with a deadly weapon and by means likely to produce great bodily harm (count 1); (2) vandalism (count 2); (3) criminal threats (count 3); and (4) resisting a peace officer (count 4). The first two counts were alleged as felonies, the latter two, as misdemeanors. The complaint also alleged that count 1 constituted a serious felony within the meaning of section 1192.7, subdivisions (c)(23) and (c)(31). Subsequently, count 1 was amended to allege a nonstrike offense of assault by means of force likely to cause great bodily injury.
On July 29, 2009, defendant pleaded no contest to count 1, as amended, and count 2. On November 4, 2009, the trial court sentenced defendant to a three-year term in state prison on count 1, and a concurrent three-year term on count 2. The trial court awarded a total of 165 days of presentence credits consisting of 111 days of actual custody credit and 54 days of conduct credits. On November 9, 2009, defendant filed a notice of appeal.
On appeal, defendant argues he is entitled to additional presentence conduct credits under amendments of section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits. We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; and People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)*fn2
On September 28, 2010, as an urgency measure effective on that date, the Legislature amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. (Stats. 2010, ch. 426, § 1.) The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (§ 2933, subd. (e)(1), (2) & (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified in former section 4019 (see Stats. 2009, 3d Ex. Sess 2009-2010, ch. 28, § 50), when the person served an odd number of days in presentence custody.
The September 28, 2010 amendment does not state that it is to be applied prospectively only. Consequently, for the reason we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 25, 2010, applies retroactively to defendants sentenced prior to that date, we conclude the new rate provided in section 2933 applies retroactively to include defendants who were sentenced prior to January 25, 2010.*fn3
Defendant is not among the prisoners excepted from the additional accrual of credit. (§§ 4019, former subds. (b)(2), (c)(2) [Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50], 2933, subd. (e)(3) [Stats. 2010, ch. 426, § 1].) Consequently, defendant, having served 111 days of actual presentence custody, is entitled to 111 days of conduct credits (rather than the 54 days previously awarded), for a total of 222 days of presentence custody credits.
Defendant further argues that a prospective application of the section 4019 amendments would violate his federal equal protection rights. Because we agree with defendant that the January 2010 amendment applies retroactively, and find that the September 2010 amendment accrues to his benefit as well, we decline to address his equal protection argument. (See California Assn. of Prof. Scientists v. Department of Fish & Game (2000) 79 Cal.App.4th 935, 955 [declining to address additional arguments rendered moot on appeal].)
The judgment is modified to award defendant 111 days of conduct credits for a total of 222 days of presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J. MAURO, J.