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The People v. Philip Joseph John Muniz

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHILIP JOSEPH JOHN MUNIZ, DEFENDANT AND APPELLANT.

(Super. Ct. No. 101451)

The opinion of the court was delivered by: Robie J.

P. v. Muniz CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Yolo)

In July 2009, defendant, Philip Joseph John Muniz, went to a grocery store and attempted to buy a gift card with a credit card he knew was stolen. He was charged with second degree burglary. Five prior prison term enhancements were also alleged. In exchange for an agreement that he would be sentenced to a term of four years in prison, defendant pled no contest to the burglary charge and admitted one of the prior prison term enhancements. Defendant was sentenced to three years for the burglary and one year for the prior prison term enhancement. He was awarded 185 days of Penal Code section 4019 custody credits, 93 actual days plus 92 good time credits. Various fines and fees were also imposed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (Sen. Bill No. 76) (Stats. 2010, ch. 426), which amended Penal Code section 2933 regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Sen. Bill No. 76; Pen. Code, § 2933, subd. (e)(1), (2), (3).) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (see Stats. 2009, ch. 28, § 50) when the prisoner has served an odd number of days in presentence custody, and it eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76; Pen. Code, § 4019, subd. (g).)

The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 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. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)*fn1 Consequently, having served 93 days of presentence custody, defendant is entitled to 93 days of conduct credits.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to specify that defendant is entitled to 93 days of conduct credits, for a total of 186 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

BLEASE , Acting P.J.

HULL ,J.


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