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The People v. Daniel Bryan Kelly

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


December 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DANIEL BRYAN KELLY, DEFENDANT AND APPELLANT.

(Super. Ct. No. NRC79985)

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

P. v. Kelly

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On August 26, 2010, officers located a car that had been reported as stolen a week earlier. It had also been reported to have been involved in several other thefts in the area. The car was parked in the parking lot of an apartment complex. Residents of the apartment complex told the officers they had seen defendant Daniel Bryan Kelly driving the car.

On that same date, another car was reported stolen from a fitness center. The owner had left her keys hanging on an unsecured key holder. Defendant came into the fitness center, used the telephone and restroom, and left. A surveillance camera showed defendant had also walked into the area where the keys were hanging. The car stolen from the fitness center was later located at the apartment complex were defendant was found.

Police executed a search warrant for defendant's apartment and located numerous items of stolen property. When defendant was arrested, several additional items of stolen property were found on his person.

Defendant was charged with unlawful driving or taking of a vehicle, four counts of receiving stolen property, two counts of burglary, and petty theft with a prior theft conviction. It was also alleged he had a prior strike conviction and served a prior prison term.

Defendant pled no contest to each count, except one count of receiving stolen property, and admitted the prior prison term allegation. In exchange for his plea, the one count to which he did not plead and the prior strike allegation were dismissed. The parties also agreed to a stipulated term of eight years in state prison.

On March 14, 2011, the trial court sentenced defendant to the stipulated eight-year prison term. The trial court also ordered defendant pay various fines and fees, including an $800 restitution fine. The trial court also ordered defendant to pay $3,973 in victim restitution. Defendant was awarded a total of 401 days of presentence custody credit.

Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code,*fn1 § 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 (1979) 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 note one error in the judgment. The trial court credited defendant with 201 actual days and 200 conduct days, for a total of 401 days' presentence custody credit. In doing so, the trial court awarded custody credits in conformance with the amendments to section 4019 effective January 25, 2010. (§ 4019, former subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Under those amendments, a term of four days was deemed to have been served for every two days spent in actual custody, because a defendant would receive two days' custody credit and two days' conduct credit for every two days actually spent in custody. (§ 4019, former subd. (f).) Thus, if a defendant spent an even number of days in custody, his conduct credits would be equal to his custody credits. If a defendant spent an odd number of days in custody, however, his conduct credits would not equal his custody credits, because while he would receive one day of custody credit for the odd day served in custody, he would not receive a day of conduct credit for that day.

Thereafter, however, the Legislature enacted yet another amendment that affects the credit calculation. (See § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Under this amendment, section 2933 now provides one day of conduct credit for every day actually served in custody, and thus a defendant who serves an odd number of days in custody is not deprived of the one extra day of conduct credit for the odd day, as was previously the case.

This most recent amendment to section 2933 applies to all appeals, including defendant's, pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "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; People v. Hunter (1977) 68 Cal.App.3d 389.)

Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 2933, subd. (e)(3).) Thus, defendant is entitled to 201 actual days and 201 conduct days, for a total of 402 days' presentence conduct credit.

Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to award defendant with one additional day of conduct credit, for a total of 201 days. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON , Acting P. J. HOCH , J.


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