(Super. Ct. No. 06CR10400)
The opinion of the court was delivered by: Blease , Acting 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeal is brought pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On August 14, 2009, defendant Bruce Wayne White pleaded no contest to four counts of diverting construction funds and two counts of embezzlement by a contractor and admitted allegations that he took over $50,000 and over $100,000, in exchange for a promise of no state prison at the outset. (Pen. Code, §§ 484, subd. (b), 506, 186.11, subd. (a)(1); former Pen. Code, § 12022.6, subd. (a)(1); see Stats. 1998, ch. 454, § 2, p. 3231.) Defendant, an experienced licensed contractor, began building a restaurant for the victims in 2003, pursuant to an oral agreement. However, he diverted money and failed to pay subcontractors he had hired to perform work on the restaurant. The plea bargain stipulated that he would pay $210,000 in restitution.
On October 13, 2009, the trial court imposed a six-year prison sentence but suspended execution of sentence and placed defendant on probation, with conditions including 365 days in jail with credit for three days of actual presentence custody. Defendant did not file a timely appeal from the judgment (order granting probation), which became final 60 days later for state law purposes.
On February 11, 2010, defendant moved to modify the judgment to increase his custody credits, pursuant to amendments to Penal Code section 4019, effective January 25, 2010, enacting a more generous conduct credit formula. (See Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.) The trial court denied the motion, finding defendant's conviction was final before the effective date of the amendments.
Defendant filed a timely notice of appeal from the order denying the modification.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case regarding defendant's motion to modify the judgment and requests this court to 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 have elapsed, and we received no communication from defendant.
We requested supplemental briefing based on In re Kemp (2011), formerly at 192 Cal.App.4th 252 (Kemp), in which we held that a defendant is entitled to the additional credits under equal protection principles, regardless of when her or his conviction was final. After the parties filed their briefs, the California Supreme Court granted review in Kemp. (In re Kemp, rev. granted Apr. 13, 2011, S191112.)
We adhere to the reasoning expressed in Kemp, which we briefly summarize here.
"The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion." ...