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The People v. Michael Anthony Kistler

April 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ANTHONY KISTLER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01932)

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

P. v. Kistler

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Sometime between March 15, 2010, and March 19, 2010, defendant Michael Anthony Kistler stole a Honda Pilot. He had a prior conviction for vehicle theft. (Veh. Code, § 10851, subd. (a).)

Defendant was charged with unlawful taking of a motor vehicle (Veh. Code, § 10851, subd. (a)) with a prior vehicle theft enhancement (Pen. Code, § 666.5, subd. (a)) (count one),*fn1 and possession of a stolen vehicle (§ 496d, subd. (a)) (count two). Defendant pled no contest to unlawfully taking a motor vehicle and admitted the enhancement; count two was dismissed. He also pled no contest to welfare fraud (Welf. & Inst. Code, § 10980, subd. (g)) in an unrelated case.

The court imposed a stipulated term of two years in prison, and awarded 14 days' presentence credit, consisting of 10 days' custody credit and 4 days' conduct credit.

Defendant appeals, contending he was entitled to 10 days' conduct credit because the alleged prior strike was never pled or proven. We agree.

DISCUSSION

The Legislature amended section 4019, effective January 25, 2010, to provide for the accrual of presentence credits at twice the previous rate. "[I]f all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody . . . ." (Former § 4019, subd. (f); as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Excepted from this increased calculation of presentence credits are defendants who are convicted of a serious felony, or have a prior serious felony conviction, or are required to register as a sex offender. (Former § 4019, subds. (b)(2) & (c)(2).)

After the briefing closed in this case, the Legislature enacted Senate Bill No. 76, which amended section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective September 28, 2010, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1)-(3), as amended by Stats. 2010, ch. 426, § 1), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by the section 4019 when the person served an odd number of days in presentence custody. Section 2933 also eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (See § 2933, subd. (e)(1)-(3).) One circumstance that disqualifies defendants from the new formula in section 4019 is when a defendant "has a prior conviction" for a serious or violent felony. (§ 2933, subd. (e)(3).)

There is no practical difference between the provisions as they relate to defendant's award of credits. Defendant served 10 days' presentence custody. Since this is more than three days and an even number of days, his entitlement to custody credits is the same under either provision. Although defendant committed his crime after the effective date of the January 25 amendments, we conclude the September 28 amendments, being the last enacted, apply retroactively to defendant's award of credits. (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 objected to the award of credits, arguing he was entitled to 10 days' conduct credit pursuant to the January 25 amendments to section 4019. The trial court countered that defendant was ineligible for the extra conduct credits because he had a prior strike conviction. Defense counsel asserted the strike was never pled or proven; the court ...


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