IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
August 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELWOOD DWAYNE HAYES, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. MCYKCRF081205, MCWDCRM08445, MCYKCRF061896)
The opinion of the court was delivered by: Murray , J.
P. v. Hayes 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In January 2007, pursuant to a plea bargain, defendant Elwood Dwayne Hayes pleaded no contest to assault in violation of Penal Code section 245, subdivision (a)(1)*fn1 conditioned upon, among other things, that the offense was not a strike, a serious felony or a violent felony. In February, imposition of sentence was suspended and he was placed on probation for three years on various terms and conditions.
In September 2009, defendant admitted violating conditions of his probation and, in December, he was sentenced to state prison for four years and given 199 days of presentence custody credit, consisting of 133 days actually served plus 66 days for conduct.
In April 2010, this court granted defendant's request for constructive filing of a notice of appeal and he did so.
Defendant's sole contention on appeal is that notwithstanding that he was sentenced in December 2009, he is entitled to the retroactive application of the increased rate for earning presentence conduct credits provided by the amendment to former section 4019, effective January 25, 2010 (the January 25 amendment).*fn2 He advances two arguments in support of his position. First, relying on In re Estrada (1965) 63 Cal.2d 740, he argues that because the January 25 amendment reduces the punishment for his offense, he is entitled to its retroactive application. Second, relying on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1978) 26 Cal.3d 498, he claims retroactivity is compelled on equal protection grounds.
On June 18, 2012, the California Supreme Court issued its opinion in People v. Brown (2012) 54 Cal.4th 314, specifically rejecting defendant's arguments and holding the January 25 amendment was not retroactive. (Id. at pp. 318-330.) Consequently, defendant is not entitled to the increased credit provided by the January 25 amendment.
The judgment is affirmed.
We concur: ROBIE , Acting P. J. BUTZ , J.