IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
February 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LA PAULA VANG, DEFENDANT AND APPELLANT.
Super. Ct. Nos. CM028197, CM030441
The opinion of the court was delivered by: Nicholson , Acting P.J.
P. v. Vang 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 La Paula Vang pled no contest in case No. CM028197 to possessing methamphetamine for sale (Health & Saf. Code, § 11378) and was placed on probation. Her probation was thereafter revoked and she pled no contest in case No. CM030441 to identity theft (Pen. Code, § 530.5, subd. (a))*fn1 and forgery (§ 470, subd (d)).
Defendant was sentenced to prison in both cases to an aggregate term of three years four months on April 2, 2009. In so doing, the court awarded defendant in each of the two cases, 49 days of custody credit and 24 days of conduct credit, pursuant to section 4019. Thereafter, the court stayed defendant's sentence and committed her to a civil addict program (Welf. & Inst. Code, § 3051). When defendant was excluded from her civil addict commitment, the court reinstated and imposed the previously stayed prison sentence on March 11, 2010, giving her the same 49 days of custody credit and 24 days of conduct credit awarded before her commitment for each case.
Defendant appeals without a certificate of probable cause.
In her original brief on appeal, filed June 17, 2010, defendant sought correction of the abstract of judgment and additional presentence credits available under the amendments to section 4019. Defendant also sought the same relief from the trial court in the first instance and, while the appeal was pending, the trial court granted her request and issued an amended abstract of judgment on June 24, 2010. The amended abstract of judgment awarded defendant 49 days of custody credit and 48 days of conduct credit for each case.
With this court's permission, defendant withdrew her opening brief filed on June 17, 2010, and filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. 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, supra, 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, and she has submitted no brief.
We agree with the trial court that section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, applies retroactively to defendant's pending appeal and entitles her to additional conduct credits. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].)
However, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess; see Stats. 2010, ch. 426), which amended 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 the prior formula when the defendant served an odd number of days in presentence custody. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Consequently, for the reasons we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 2010, applies retroactively to defendants sentenced prior to that date, we likewise conclude the new rate provided in section 2933 applies retroactively to defendants who were sentenced prior to January 25, 2010. As a result of this amendment to section 2933, defendant is entitled to one additional day of custody credit.
Having reviewed the record, we find no other arguable error that would result in a disposition more favorable to defendant.
The judgment is modified to award defendant 49 days, rather than 48 days, of conduct credit for each case. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: HULL ,J. ROBIE ,J.