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The People v. Jerry Wayne Calvery

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)


January 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JERRY WAYNE CALVERY, DEFENDANT AND APPELLANT.

Super. Ct. No. 08-2028

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Jerry Wayne Calvery entered a negotiated plea of guilty to child endangerment, possession of marijuana for sale, possession of methamphetamine for sale, and possession of a silencer, and admitted arming allegations, on-bail allegations, and an excess quantity of methamphetamine allegation, in exchange for dismissal of the remaining counts and allegations and another case (case No. 09-1659), and the return of certain property which had been seized.

Sentenced to state prison, defendant appeals. He contends (1) the trial court erroneously denied his motion to suppress and (2) he is entitled to additional presentence custody credits. We order the judgment modified to include additional presentence custody credits. We reject defendant's other contention.

FACTS

On December l7, 2008, law enforcement officers executed a search warrant at a residence on Rocky Gulch Road in Siskiyou County. The search revealed 44.95 pounds of marijuana, 9.06 grams of concentrated marijuana, 22.75 grams of methamphetamine, $26,411 in cash, and 39 firearms. Five adults, including defendant, were arrested. An eight-year-old girl who lived at the residence had access to the drugs and firearms.

On March 13, 2009, law enforcement officers executed a second search warrant at the same residence and seized about one-third pound of methamphetamine and .20 grams of concentrated cannabis. Search of a storage unit pursuant to yet another warrant revealed 15 firearms and a silencer.

DISCUSSION

I

Defendant first contends that the "trial court" erroneously denied his motion to suppress and asks that this court review the search warrant and sealed affidavit to determine whether the trial court's probable cause determination is supported by the facts. Based on People v. Lilienthal (1978) 22 Cal.3d 891 (Lilienthal), we conclude that defendant has failed to preserve the issue because he did not raise the issue before a superior court judge. Appellate review under Penal Code section 1538.5, subdivision (m), is thus barred.

Background

On December 19, 2008, a felony complaint was filed.

On February 26, 2009, defendant filed a motion to suppress, to quash the warrant, to traverse, and to disclose the sealed affidavit and the identity of the informants, arguing the search was not supported by probable cause and that the informants provided false information.

On April 14, 2009, a judge -- sitting as a magistrate -- held a hearing on defendant's motion and denied the same. Following the magistrate's denial of his suppression motion, defendant waived his right to a preliminary hearing and he was held to answer.

An information was filed on April 27, 2009. Defendant plead not guilty the next day.

On October 1, 2009, defendant entered his negotiated plea.

On December 3, 2009, defendant was sentenced to state prison.

Analysis

After the complaint was filed, defendant filed a suppression motion. After his suppression motion was denied, he waived preliminary hearing and he was held to answer. The prosecution thereafter filed an information. Defendant did not renew his suppression motion or move to set aside the information. Defendant entered his guilty plea.

Lilienthal held that in order to preserve the issue for appellate review, a defendant is required to renew his suppression motion before a superior court judge either by a renewed suppression motion or a motion to set aside the information. (22 Cal.3d at pp. 895-897; People v. Richardson (2007) 156 Cal.App.4th 574, 583-589.) Here, appellate review is barred by defendant's failure to file either motion.

Neither defendant nor the People recognize the rule from Lilienthal. Had defendant recognized the rule, he may have raised ineffective assistance of counsel. But defendant entered a plea and did not seek or obtain a certificate of probable cause (Pen. Code, § 1237.5); he would be relegated to a writ of habeas corpus to raise an ineffective assistance claim. (People v. Richardson, supra, 156 Cal.App.4th at pp. 595-596.)

II

The trial court orally awarded 287 actual days and 142 conduct days for a total of 429 days of presentence custody credit. Defendant contends that he is entitled to additional conduct credit under the recent amendments to Penal Code section 4019.

We conclude that the amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to defendant's pending appeal and entitle him to additional presentence credits.*fn1 (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "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 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].)

Further, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate 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 (Stats. 2010, ch. 426, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the prior formula when the defendant served an odd number of days in presentence custody. We conclude this new formula also applies retroactively. Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 2933, subd. (e)(2) & (3).) Having served 287 actual days, defendant is thus entitled to 287 conduct days for a total of 574 days of presentence custody credit.

DISPOSITION

The judgment is modified to provide for 287 actual days and 287 conduct days for a total of 574 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur:

RAYE , P. J.

BUTZ , J.


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