IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
August 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RONALD JAMES GRISSOM, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR78628)
The opinion of the court was delivered by: Hull , J.
P. v. Grissom
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Having reviewed the record as required by Wende, 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 the early morning hours of February 13, 2010, defendant Ronald James Grissom was stopped by a sheriff's deputy for riding a bicycle without a front headlamp. Defendant was searched and found to possess two syringes and a useable amount of methamphetamine.
Defendant pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). In exchange for his plea, two additional counts were dismissed.
The trial court placed defendant on Proposition 36 probation. (Pen. Code, § 1210.1.) Thereafter, defendant was also placed on Proposition 36 probation in a separate case, and placed on misdemeanor probation on two additional cases.
On October 4, 2010, defendant admitted he violated his probation in the instant case, based on two violations of the law (trespassing and prowling), his failure to appear at an appointment with a community services officer and perform his community service, and his failure to participate in alcohol and drug treatment in that he was terminated from the program for excessive absences and drug use.
The trial court denied defendant's request for reinstatement on Proposition 36 probation and sentenced defendant to five years in state prison (three years for possession of methamphetamine and two consecutive one-year terms for the prison priors). The trial court also imposed various fines and fees and awarded defendant 97 days of presentence custody credit. Defendant was then referred to the California Rehabilitation Center for a suitability evaluation and possible treatment.
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. 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 reviewed the record in its entirety and find only one error. Defendant was awarded 49 days for actual credit plus 48 days for conduct credit, for a total of 97 days of presentence custody credit. This calculation was obviously based upon the formula set forth in amended Penal Code section 4019, effective January 25, 2010, which provided for eligible defendants to receive two days' conduct credit for every two days actually served. However, under equal protection principles, defendant is entitled to one additional day of conduct credit pursuant to the amendment to Penal Code section 2933, effective September 28, 2010, which provides eligible defendants with one day of conduct credit for each presentence day actually served.
The trial court is directed to amend the minute order to reflect that defendant has 49 days of conduct credit. In all other respects, the judgment is affirmed.
We concur: BLEASE , Acting P. J. MAURO , J.
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