IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ERNEST JOE YOUNG, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08778)
The opinion of the court was delivered by: Blease , J.
P. v. Young
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. After counsel filed an opening brief raising no issues and requesting this court review the record for arguable issues, defendant filed a supplemental brief which is vague but appears to request this court review his plea and the denial of his pre-plea Marsden*fn1 motions. We address these issues, in addition to undertaking a review of the record as required by Wende, modify custody credits, and otherwise affirm the judgment.
During the early morning hours of November 25, 2009, an alarm was activated in a bait car parked and monitored by the Sacramento Vehicle Crimes Unit. Officers saw the car was being followed by a gray van. Co-defendant Ricardo Gasaway, who was driving the bait car, was arrested and informed officers that defendant had given him the key to the car and asked him to move the car around the corner for him. Defendant, who had been driving the gray van following the bait car, was taken into custody. Defendant's blood alcohol content was .31 percent.
Defendant was charged with vehicle theft, driving under the influence of alcohol and with a blood alcohol level in excess of .08 percent, and driving while his license was suspended for driving under the influence. It was also alleged that he had two prior convictions for driving under the influence, and a separate petition for violation of probation in one of those cases was filed.
After the court denied three Marsden motions, defendant entered into a negotiated plea wherein he pled no contest to vehicle theft and driving with a blood alcohol level in excess of .08 percent, having been previously convicted of driving under the influence. The remaining allegations and the petition for violation of probation in the separate case were dismissed.
Sentencing took place on July 1, 2010. The trial court sentenced defendant to the upper term of three years for driving with a blood alcohol level in excess of .08 percent and a concurrent two years for vehicle theft. In addition to various fines and fees, defendant was ordered to pay a restitution fine in the amount of $1,015. He was awarded 219 actual days and 218 conduct days, for a total of 437 days of custody credit.
Defendant appeals and seeks this court's review of his Marsden motions and his plea. These matters are not reviewable in this appeal.
To the extent defendant is alleging the trial court erred by denying his pre-plea Marsden motions, he waived any such error by pleading no contest. In People v. Lobaugh (1987) 188 Cal.App.3d 780, 786, we held that after the entry of a plea of guilty or no contest, a claim of Marsden error is waived, except where a defendant asserts that the plea was not informed and voluntary or was the product of inappropriate advice from counsel.
To the extent defendant asserts that the plea was not informed and voluntary or was the product of coercion or inappropriate advice from counsel, either as established during one of his Marsden hearings or otherwise, his contentions are non-cognizable, since his request for a certificate of probable cause was denied. (Pen. Code, § 1237.5.)
After a defendant has entered a plea of guilty or no contest, he may appeal from the ensuing judgment of conviction only if he has obtained a certificate of probable cause for the appeal, or if he seeks to raise one of the two types of issues for which a certificate is not needed: search and seizure issues, or "issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) "If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause. [Citation.]" (People v. Emery (2006) 140 Cal.App.4th 560, 564-565.)
In any event, we have reviewed the transcripts of all three Marsden hearings and find no error. A trial court's decision to deny a Marsden motion is reviewed on appeal under the deferential abuse of discretion standard. (People v. Jones (2003) 29 Cal.4th 1229, 1245; see People v. Smith (1993) 6 Cal.4th 684, 695.) "'Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel.' [Citations.]" (People v. Hart (1999) 20 Cal.4th 546, 603.)
The trial court's inquiry was adequate. Defendant did not present sufficient evidence that his counsel was not providing adequate representation or that he and counsel had become embroiled in an irreconcilable conflict. (See People v. Smith, supra, 6 Cal.4th at p. 696.) Thus, the trial court did not err in denying defendant's Marsden motions. Additionally, with respect to defendant's claim that his plea was coerced by counsel or any claim that he did not understand the terms of the plea, defendant points to no specific facts in the record to support any such claim nor does our independent review of the record reveal any factual support for one. At the change of plea hearing, the court fully advised defendant of the terms and consequences of his plea. Thus, there is nothing in the record to support defendant's claim that his plea was coerced or unintelligent.
Our independent review of the record, however, reveals that a modification in defendant's custody credits is required. The trial court awarded custody credits in conformance with the amendments to Penal Code section 4019 effective January 25, 2010. (Pen. Code, § 4019, former subds. (b), (c); Stats. 2009-2010, 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, because a defendant would receive two days' custody credit and two days' conduct credit for every two days actually spent in custody. (Pen. Code, § 4019, former subd. (f).) Thus, if a defendant spent an even number of days in custody, his conduct credits would be equal to his custody credits. If a defendant spent an odd number of days in custody, however, his conduct credits would not equal his custody credits, because while he would receive one day of custody credit for the odd day served in custody, he would not receive a day of conduct credit for that day.
Thereafter, however, the Legislature enacted yet another amendment that affects the credit calculation. (See Pen. Code, § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Under this amendment, Penal Code section 2933 now provides one day of conduct credit for every day actually served in custody, and thus a defendant who serves an odd number of days in custody is not deprived of the one extra day of conduct credit for the odd day, as was previously the case.
This most recent amendment to Penal Code 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.)
Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 2933, subd. (e)(3).) Thus, defendant is entitled to 219 actual days and 219 conduct days, for a total of 438 days of presentence conduct credit.
Having also 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 increase defendant's conduct credits from 218 to 219, for a total of 438 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. MURRAY , J.