Opinion
C067584 Super. Ct. No. CM027541 Super. Ct. No. CM031597
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ESAU SERGIO PONTHIER, Defendant and Appellant.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we modify the judgment to provide for one additional conduct day in case No. CM027541. We provide the following brief description and procedural history of the cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On October 27, 2007, defendant was found in possession of just under 100 grams of marijuana, a scale, and $275 in cash. Defendant entered a plea of no contest to possession of marijuana for sale (Health & Saf. Code, § 11359) in exchange for dismissal of the remaining counts [transportation of marijuana, transportation of methamphetamine, and possession of methamphetamine for sale] and allegations [two on-bail enhancements] with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On March 4, 2008, the court suspended imposition of sentence and granted probation for a term of three years subject to certain terms and conditions including that defendant obey all laws.
On September 6, 2009, defendant drove at a speed in excess of 100 miles per hour in a posted 35 mile per hour zone, running a red light and crossing into oncoming traffic three times before stopping.
A complaint filed on September 10, 2009, in case No. CM031597 charged defendant with two counts of felony evading (Veh. Code, §§ 2800.2, subd. (a), 2800.4) and three counts of false imprisonment by violence (Pen. Code, § 236).
A petition for violation of probation filed September 10, 2009, in case No. CM027541 alleged that defendant violated Penal Code sections 207, subdivision (a), and 236, and Vehicle Code sections 2800.2, 2800.4, and 23152, subdivision (a).
A subsequent petition for violation of probation filed March 22, 2010, in case No. CM027541 alleged that defendant violated Health and Safety Code sections 11351 and 11352, subdivision (a), and Penal Code section 182, subdivision (a).
On November 24, 2010, in case No. CM031597, defendant entered a plea of no contest to an amended information which added two new counts, reckless driving, a misdemeanor (Veh. Code, § 23103, subd. (a)) and driving over 100 miles per hour, an infraction (Veh. Code, § 22348, subd. (b)), in exchange for dismissal of the remaining counts. Based on defendant's plea, the court found that defendant violated probation in case No. CM027541.
On February 15, 2011, in case No. CM027541, the court sentenced defendant to state prison for the upper term of three years. In case No. CM031597, the court imposed a concurrent 90-day county jail term for the misdemeanor and a $100 fine on each count.
Defendant appeals in both cases. The trial court denied defendant's request for a certificate of probable cause in case No. CM027541 (Pen. Code, § 1237.5).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case 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 elapsed, and we received no communication from defendant.
In case No. CM027541, the court awarded 367 actual days and 366 conduct days for a total of 733 days of presentence custody credit. We will conclude that defendant is entitled to one additional conduct day pursuant to the recent amendments to Penal Code sections 4019 and 2933. (Pen. Code, §§ 4019, former subds. (b) & (c) [as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50], 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Effective January 25, 2010, Penal Code section 4019 was amended to give qualifying prisoners one day of conduct credit for each day of actual presentence custody. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Effective September 28, 2010, Penal Code section 2933 was amended to provide day-for-day conduct credits, but only for qualifying defendants sentenced to state prison. (Pen. Code, § 2933, subd. (e).) The amendment eliminated the loss of one day of conduct credit when a defendant serves an odd number of actual days in presentence custody. The amendments do not state that they are to be applied prospectively (with an exception not applicable here, Pen. Code, § 4019, subd. (g), as amended by Stats 2010, ch. 426, § 2, eff. Sept. 28, 2010).
We conclude that the provisions increasing the rate for earning presentence conduct credit apply retroactively to all appeals pending as of those effective dates. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendments lessening punishment for crime apply to acts committed before enactment, provided the judgment is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [same].) Pursuant to the current version of Penal Code section 2933, defendant is entitled to 367 conduct days (rather than 366 conduct days), for a total of 734 days of presentence custody credit.
The issue of retroactivity is currently pending before the California Supreme Court. (People v. Brown (2011) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
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 provide for one additional conduct day in case No. CM027541, resulting in a total of 734 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment accordingly and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
HOCH, J.
We concur:
NICHOLSON, Acting P. J.
ROBIE, J.