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The People v. Carlos Guerrero

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


April 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARLOS GUERRERO, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F4823)

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

P. v. Guerrero

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Carlos Guerrero has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We conclude that defendant is entitled to one additional day of conduct credit and that a clerical error was made on the abstract of judgment as to the statute under which defendant's sentence was enhanced. We shall order modification of the abstract of judgment to correct these errors and, otherwise, affirm the judgment.

BACKGROUND

Defendant pleaded no contest to transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and admitted an enhancement based on the weight of the controlled substance exceeding four kilograms. (Health & Saf. Code, § 11370.4, subd. (a)(1).) In exchange for his plea, it was agreed that the remaining charges and an enhancement would be dismissed and he would be sentenced to a stipulated term in state prison of nine years. Defendant was sentenced forthwith in accordance with this agreement.

According to evidence presented at a preliminary examination in the matter, defendant was stopped as he was driving on the interstate. A search of his car uncovered five kilograms of cocaine and two and one-half pounds of crystal methamphetamine in a hidden compartment under the front seats.

Defendant appealed.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende, supra, requested the court to review the record and determine whether there are any arguable issues on appeal. 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.

Having reviewed the record, we conclude defendant is entitled to an additional day of conduct credit pursuant to the recent amendments to Penal Code sections 4019 and 2933.

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.), 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; Pen. Code, § 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. 18 (2009-2010 3d Ex. Sess.) (see Stats. 2009, ch. 28, § 50), when the person serves an odd number of days in presentence custody.

Senate Bill No. 76 does not state that the amendment to Penal Code section 2933 is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 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].)

Defendant, having served 55 days of presentence custody, is entitled to 55 days of conduct credits. We will modify the judgment accordingly.

We also note an error on the abstract of judgment. Defendant was convicted of an enhancement under Health and Safety Code section 11370.4, subdivision (a). However, the abstract of judgment mistakenly states that the enhancement was pursuant to Health and Safety Code section "1137.4(a)." We shall order correction of the abstract of judgment in this respect as well.

We find no further error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to reflect an award of 55 days of conduct credit for a total of 110 days of presentence credit pursuant to Penal Code section 4019. In addition, the abstract of judgment is ordered corrected to reflect the proper code section under which defendant's sentence was enhanced. The trial court shall prepare a modified abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

As modified, the judgment is affirmed.

We concur: ROBIE , Acting P. J. BUTZ , J.

20110412

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