IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
May 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JASON EDWARD WEST, DEFENDANT AND APPELLANT.
(Super. Ct. No. 6298583A)
The opinion of the court was delivered by: Mauro , J.
P. v. West 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jason Edward West asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error, but we conclude defendant is entitled to an additional day of presentence conduct credit. We will modify the judgment to reflect the additional day of conduct credit and affirm the judgment as modified.
On May 4, 2010, defendant arranged for the sale of one ounce of methamphetamine to a confidential informant. Defendant made a telephone call to his "source" for the methamphetamine and also called the confidential informant. The informant drove with defendant to Sacramento to get the methamphetamine from defendant's source.
Defendant was arrested and charged with one count of selling a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)), one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378), one count of transporting methamphetamine (Health & Saf. Code, §11379, subd. (a)), and one count of unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140). It was further alleged that defendant was previously convicted on three separate occasions of possessing a controlled substance for sale (Health & Saf. Code, § 11378), and was previously convicted on one occasion of a violation of Health and Safety Code section 11379. In addition, it was alleged that defendant served ten prior prison terms, failing to remain free from prison for five years subsequent to the conclusion of each term. (Pen. Code, § 667.5, subd. (b).)
Defendant pleaded no contest to one count of possessing methamphetamine for sale (Health & Saf. Code, § 11378), and admitted having a prior conviction for drug possession (Health & Saf. Code, § 11370.2, subd. (c)). In exchange for defendant's plea, the remaining charges and allegations were dismissed.
On September 13, 2010, the trial court sentenced defendant to an aggregate term of six years in prison. The trial court ordered him to pay various fines and fees, and awarded him 209 days of presentence credit, consisting of 105 days actual credit and 104 days conduct credit.
Appointed counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (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 the opening brief. More than 30 days have elapsed and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. We next address defendant's entitlement to additional presentence conduct credit.
Defendant's counsel suggested in his opening brief that defendant is entitled to 266 days total credit because he was in custody from May 4, 2010, through September 13, 2010, a period of 133 days. But at sentencing, the probation department indicated on the record that defendant had been released prior to sentencing, and that defendant's credit should be "105 actual, 104 conduct, with a total of 209 days to date." Defendant and his trial counsel were present at sentencing and did not object to this calculation of credit, which the trial court adopted, and which we adopt.
Nonetheless, for the reasons discussed below, defendant is entitled to an additional day of conduct credit.
We deem defendant to have raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits. (Misc. order No. 2010-002.) We conclude that the amendments apply to all appeals pending as of January 25, 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].)
Moreover, on September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), 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.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Consequently, for the reason we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 25, 2010, applies retroactively to defendants sentenced prior to that date, we conclude the new rate provided in Penal Code section 2933 applies retroactively to defendants who were sentenced prior to September 28, 2010.*fn1
Defendant served 105 days in custody prior to being sentenced, and he is entitled to 105 days of conduct credit.
The judgment is modified to reflect actual credit of 105 days and conduct credit of 105 days, for total presentence credit of 210 days. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and to forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. BUTZ , J.