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The People v. Salvador Briceno Zarate

February 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SALVADOR BRICENO ZARATE, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Super. Ct. No. JCF24760

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

CERTIFIED FOR PUBLICATION

Affirmed as modified.

Salvador Briceno Zarate appeals a judgment following his plea of no contest to one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). On appeal, he contends the trial court erred at his February 2010 sentencing by awarding him conduct credit for local custody time served before January 25, 2010, in accordance with a former version of Penal Code section 4019*fn1 rather than the amended version in effect on the date of his sentencing. We conclude the trial court erred by not applying the amended version of section 4019 to all of the days served by Zarate in presentence local custody.

FACTUAL AND PROCEDURAL BACKGROUND

On or about November 2, 2009, Zarate transported marijuana in Imperial County. On January 28, 2010, an information charged him with one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and one count of possession of marijuana for sale (Health & Saf. Code, § 11359).

On February 18, 2010, pursuant to a plea agreement, Zarate pleaded no contest to the Health and Safety Code section 11360, subdivision (a), count with a stipulated sentence of two years in state prison; the other count was then dismissed. At that hearing, the trial court sentenced Zarate to two years in state prison and awarded him a total of 115 days of presentence custody credit. The court awarded Zarate 22 days of conduct credit for 44 days in actual custody before January 25 and 24 days of conduct credit for 25 days in actual custody on and after that date. The court denied Zarate's request for "day for day" conduct credit for all of his days in custody pursuant to the "new law" (i.e., amended § 4019), including his days served in custody prior to January 25. Zarate timely filed a notice of appeal.

DISCUSSION

I

Actual Custody and Conduct Credits Generally

A defendant "sentenced to prison for criminal conduct is entitled to credit against his [or her] term for all actual days of [presentence] confinement solely attributable to the same conduct. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) That confinement or custody includes days spent in jail before sentencing. (§ 2900.5, subd. (a).) Pursuant to section 4019, a defendant may also earn "conduct credit" for good behavior (i.e., compliance with rules and regulations) and satisfactory performance of any labor assigned him or her during presentence custody. (§ 4019, subds. (b), (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3; Buckhalter, at p.30.)

Section 2900.5, subdivision (a), provides:

"In all felony and misdemeanor convictions, either by plea or verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, ...


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