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The People v. Winsley Egerton

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


January 21, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WINSLEY EGERTON, DEFENDANT AND APPELLANT.

Super. Ct. No. 08F01140

The opinion of the court was delivered by: Raye, P.J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant Winsley Egerton was convicted of transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a)) and transportation of one ounce or less of marijuana (Health & Saf. Code, § 11360, subd. (b)), a misdemeanor. The court sentenced defendant to four years in prison.

On appeal, defendant contends the Government Code section 70373 fee imposed by the court was improper, and he was entitled to additional conduct credits pursuant to Penal Code section 4019. We shall modify the conduct credits and affirm the judgment as modified.

FACTS

On February 1, 2008, Sacramento Police Officer Dustin Smith contacted defendant, who had just gotten out of his parked car. Defendant consented to being searched by Officer Smith, who found .44 gram of marijuana in defendant's jacket pocket. Continuing the search, Smith discovered .5 gram of marijuana in defendant's car and 66.78 grams of cocaine base on defendant.

DISCUSSION I

At sentencing, the court imposed "the criminal conviction assessment fee of $30 pursuant to the new statutory requirements." Defendant contends the court did not comply with the requirement that sentencing courts specify the statutory basis for every fine, fee, or assessment imposed and requests we remand the case for the court to declare the statutory basis for the fee. (See People v. High (2004) 119 Cal.App.4th 1192, 1200 (High).) The abstract of judgment states the fee was imposed pursuant to Government Code section 70373, which complies with our holding in High. (See High, supra, at p.1200.)

Defendant also contends the trial court improperly imposed a $30 criminal conviction assessment because the statute authorizing it, Government Code section 70373, was not in effect at the time he committed his crime.*fn1

Defendant concedes that we have rejected this claim in a published decision, People v. Castillo (2010) 182 Cal.App.4th 1410, but asks this court to reconsider the issue. This court rejected the same claim in People v. Fleury (2010) 182 Cal.App.4th 1486 and People v. Knightbent (2010) 186 Cal.App.4th 1105. We adhere to Castillo, Fleury, and Knightbent.

II

The court awarded defendant 178 days of presentence custody credit plus 88 days of conduct credit, for a total of 266 days of presentence credit.

Although unnecessary in light of this court's miscellaneous order No. 2010-002, defendant has raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence custody credits, apply retroactively to his pending appeal and entitle him to additional conduct credits.*fn2 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. 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].)

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see 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, § 1; § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also 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, § 1; § 4019, subd. (g).)

The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010.*fn3 Consequently, having served 178 days of presentence custody, defendant is entitled to 178 days of conduct credits.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to a total of 356 days of presentence custody credits, consisting of 178 days of actual custody credit plus 178 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

NICHOLSON,J.

BUTZ,J.


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