Opinion
NOT TO BE PUBLISHED
Super. Ct. No. LF010992A.
BLEASE, J.
Pursuant to a negotiated settlement, defendant Ralph William Perez pled no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and unlawful possession of a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(2)(D)), in exchange for imposition of concurrent sentences of two years for each conviction, execution of the sentences was to be suspended, a 90-day diagnostic study was to be conducted by the Department of Corrections and Rehabilitation, after which he would receive a five-year grant of probation conditioned upon one year in the county jail.
On May 20, 2009, following defendant’s return from the diagnostic study, execution of sentence was suspended, he was placed on probation for five years and ordered to serve 365 days in the county jail. In addition to various fines and fees, the court found defendant had served 166 days of actual custody and that he was entitled to conduct credits which were to be calculated.
FACTS
Police officers were investigating a suspicious vehicle in an alley when they observed, in a different vehicle, defendant and a female asleep. An officer knocked on the driver’s window, awakened defendant and began speaking with him. Defendant repeatedly moved his right arm down by his right side, which gave the officer concern for the officer’s safety. The officer asked defendant to step out of the vehicle and was patted down. Nothing was found. However, while standing outside the vehicle the officer could see two baggies containing an off-white substance, which, based upon his experience, appeared to be either methamphetamine or cocaine and he seized them and arrested defendant.
DISCUSSION
Defendant has appealed and counsel was appointed to represent him. Counsel filed an opening brief that sets forth the facts of the case and asks us 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 have elapsed, and we have received no communication from defendant.
Aside from an issue relating to conduct credits which we address below, we have undertaken an examination of the record and find no arguable issue that would result in a disposition more favorable to defendant.
Conduct Credits
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendments to statute lessening punishment for crimes applies “to acts committed before its passage provided the judgment convicting the defendant is not final[.]”; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment involving conduct credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
Defendant received 166 days of actual time and was informed at that time that “conduct credit will be calculated.” If defendant was eligible for the maximum amount of conduct credit, under the new rate he would be entitled to 166 days of conduct credits (see Pen. Code, § 4019, subds. (b)(1), (c)(1)), and if not, then to some lesser amount. However, since neither the reporter’s transcript nor the clerk’s minutes state the amount of conduct credits which were awarded, or the amount for which he was eligible, we remand the matter to the court for such a calculation.
DISPOSITION
The matter is remanded to the San Joaquin County Superior Court with directions to amend its records, if necessary, to show that defendant has been awarded the conduct credits to which he is entitled as described in this opinion. In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.