IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MIDEL RANDALL JACKSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F04926)
The opinion of the court was delivered by: Robie ,j.
P. v. Jackson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On June 30, 2009, officers were dispatched to American River Bank on a report of a forgery. Two women had entered the bank together and one of them, Venus Reid, presented her driver's license and a check in the amount of $486.07 written on the account of "God Loves Enterprises, Inc." The account holder had been in the bank earlier to report that fraudulent checks were being used in the area. The teller notified police. Reid got nervous, took her license and left the bank. Officers arrived and detained four people, Reid, defendant Midel Randall Jackson, and two others. Reid stated that defendant provided the check to her and that he called the bank for directions. Officers found an envelope containing four fictitious checks near defendant.
An amended information charged defendant with second degree burglary, possession of a completed check or money order with the intent to defraud, and identity theft, and alleged four prior prison terms. Reid was also charged but her case is not at issue here.
After the trial court denied his motion to suppress the evidence (Pen. Code,*fn1 § 1538.5) defendant entered a no contest plea to possession of a completed check or money order with the intent to defraud in exchange for a state prison sentence of the upper term of three years and the dismissal of the remaining counts and allegations. The court sentenced defendant accordingly.
Defendant appeals. He did not obtain a certificate of probable cause (§ 1237.5).
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.
We note an error in the judgment. When defendant entered his plea, the court took the motion to dismiss the remaining counts and allegations under submission. At sentencing, the court failed to dismiss the same consistent with the plea. We will order the judgment modified to dismiss the remaining counts and allegations.
Also, the court awarded 255 actual days and 254 conduct days for a total of 509 days of presentence custody credit. The conduct credits were calculated pursuant to the 2009 amendments to section 4019. (§ 4019, former subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Under those amendments, a term of four days was deemed to have been served for every two days spent in actual custody.
Recently, the Legislature enacted another amendment that affects the credit calculation. (See § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, eff. Sept. 28, 2010].) Under this amendment, section 2933 now provides one day's conduct credit for every day actually served in custody. Thus, a defendant who serves an odd number of days in custody is not deprived of the one extra day's conduct credit for the odd day, as was previously the case.
This most recent amendment to section 2933 applies to all appeals, including defendant's, pending as of September 28, 2010. (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; People v. Hunter (1977) 68 Cal.App.3d 389, 393.)
Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 2933, subd. (e)(3).) Thus, defendant is entitled to 255 conduct days, not 254 conduct days.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to dismiss the second degree burglary and identity theft counts and the four prior prison term allegations and to increase defendant's conduct credits from 254 to 255 days. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
RAYE , P.J.