(Super. Ct. No. CR027697)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Wende). Having reviewed the record as required by Wende, we modify the judgment to award additional presentence credits. In all other respects, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In mid-April 2010 defendant Raymond Harry Adkins vandalized his home. He broke windows, wedged a running garden hose under a couch cushion and soaked the floors, destroyed the bathroom with a hammer, started a fire in the fireplace using paint thinner, broke pictures and frames, damaged appliances, and overturned the entertainment center and television. Defendant also filed for a temporary restraining order against his wife and falsely claimed she did not live in the family home, she had threatened him, and he was living in a tent. Defendant was charged with perjury (Pen. Code, § 118) and vandalism (Pen. Code, § 594, subd. (a)).
Pursuant to a plea agreement, defendant pled guilty to vandalism and the perjury charge was dismissed. Defendant was granted three years' probation, conditioned on serving nine months in jail. He was awarded 51 days of actual custody credit. Defendant was ordered to pay a $200 restitution fund fine and various other fines and fees were imposed. Jurisdiction was reserved on the issue of direct victim restitution. Defendant did not obtain a certificate of probable cause.
Appointed counsel filed an opening brief setting forth the facts of the case and requesting this court review the record and 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 of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
We have, however, noted an error that requires correction. Defendant was awarded 51 days of actual credit, but no days of custody 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.)
In October 2009 the Legislature passed Senate Bill No. 3X 18, which, among other things, revised the accrual rate for conduct credits under Penal Code section 4019. The amendment became effective on January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 426, § 1), 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 (§ 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. 3X 18, when the person served an odd number of days in presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Section 2 of Senate Bill No. 76 also eliminates the directive in Penal Code former section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (§ 4019, subd. (e).)
Neither of the amendments states that it is to be applied prospectively only. Consequently, we conclude the amendment increasing the rate for earning presentence conduct credit applies retroactively to defendants sentenced prior to those effective dates. (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. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)
Defendant received 51 days' actual credit and no conduct credits. Neither defendant's current conviction nor his criminal record disqualify him from the new formula. (Pen. Code, § 4019, subds. (b) & (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Having been granted probation and not sentenced to prison, defendant is not entitled to the September 2010 amended formulation. (Pen. Code, § 2933, subd. (a).) Consequently, defendant, having served 51 days in actual presentence custody, is entitled to 50 days' conduct credit. This gives ...