Opinion
D056353 Super. Ct. No. SCS227354
09-20-2011
THE PEOPLE, Plaintiff and Respondent, v. GASTON LEOBARDO TAPIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Alvin E. Green, Judge. Affirmed and modified with directions.
A jury convicted Gaston Leobardo Tapia and his codefendant, Thomas Carr, of burglary (Pen. Code, § 459, count 1) and receiving stolen property (§ 496, subd. (a), count 2). At a bifurcated hearing, Tapia admitted, and the trial court found true, allegations he had served two prior prison terms (§ 667.5, subd. (b)). The court sentenced Tapia to a three-year, eight-month prison term, consisting of the two-year midterm on count 1, a consecutive eight-month term on count 2, one year for the first prison prior and another one-year term, stayed under section 654, for the second prison prior.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, Tapia contends the trial court prejudicially erred by denying his request for a limiting instruction that a holding cell conversation between Carr and a co-participant be considered only against Carr, and his counsel rendered constitutionally ineffective assistance by failing to exclude that conversation on relevance grounds. He further contends the court prejudicially erred by refusing to instruct the jury with CALCRIM No. 3400 as to alibi. Finally, Tapia contends he is entitled to additional conduct credits under section 4019. Tapia's latter contention has merit, and we modify the judgment to award an additional 76 days of conduct credits under section 4019. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
At various times in late 2007/2008, Jeremy Swift, Silvie Wilson, and Brian Kajiwara were victims of vehicle break-ins. Swift had several items, including a checkbook, removed from his car. Wilson found that someone had taken her purse, two rings, a music player, a camera, a checkbook from the bank of Napa and her student identification card. On May 7, 2008, Kajiwara discovered his car damaged and his laptop computer, backpack and wallet containing his driver's license, social security card and credit cards, missing.
At about 12:30 p.m. on May 8, 2008, Mylene Lantis parked and locked her vehicle at Fashion Valley Mall in San Diego to attend an hour-long computer training class. In it, she left a black bag, a red planner containing photographs and business cards, as well as other items.
About 1:11 p.m. that day, Coronado Police Officer Angel Cedeno was driving his patrol car east on Fourth Street toward the Coronado Bridge when he noticed a Dodge Ram pickup truck with a cracked windshield driving next to him. He made a traffic stop and found Tapia driving with Carr and Jennifer Diana Zumwalt as passengers in the front seat. After Tapia told the officer his driver's license was suspended and gave the officer his California identification card, the officer confirmed the license suspension, had Tapia exit the truck, and told him it would be towed. Tapia also told the officer he had a small amount of marijuana in his front left pants pocket and did not know if there was more in the truck. The officer searched Tapia's pocket and found something that resembled and smelled like marijuana. He arrested Tapia for possession of marijuana and for driving on a suspended license.
Two other officers arrived a short time later. In the meantime, Officer Cedeno had Carr step out of the truck and sit by appellant, and also had Zumwalt exit the truck. He asked if there was anything illegal in the truck and she told him it might contain a little bit of marijuana. He had Zumwalt sit on the curb with Tapia and Carr, and with the other officers watching them, Officer Cedeno searched the truck. While doing so, he found a black handbag on the right front passenger floorboard where Carr had been sitting; the handbag contained Lantis's red notebook, checkbook and business cards, as well as Kajiwara's brown wallet containing Kajiwara's driver's license, social security card and several of his credit cards. The officer held up the handbag and asked the three occupants if it was theirs. Zumwalt responded that the handbag was hers and she had found it on the corner.
Officer Cedeno gave the handbag to another officer and resumed searching the truck bed, where he found a backpack with Wilson's student identification card and checkbook, Swift's checkbook, and several credit cards in the name of Dana Arnett. He also found a fanny pack containing various tools including pliers and a wrench. The other officer contacted Lantis and confirmed she owned a red planner; minutes later, Lantis discovered her car had been broken into. Officer Cedeno arrested Tapia, Carr and Zumwalt for theft and they were transported to the Coronado Police Station.
At the police station, Tapia and the others were placed in separate containment cells, with Carr and Zumwalt in adjacent cells. From a continuous recording device, Officer Cedeno heard Carr tell Zumwalt, "Don't say anything." Zumwalt replied, "But they found us with all that stuff." Carr responded, "Just don't say anything." The officer did not hear Carr or Zumwalt talk to Tapia. Lantis later personally identified the black handbag and red planner as items taken from her vehicle.
Defense Evidence
Tapia testified in his defense at trial. He stated that on the morning of May 8, 2008, he was doing construction work in the Bay Park area near Sea World Drive. Between 12:00 p.m. and 12:20 p.m., he got a call from Carr, who he had known for about a month through an acquaintance, asking whether he could give Carr and Zumwalt a ride from Coronado to a hotel in exchange for some gas in his tank. Tapia agreed and told his boss, Terry Heston, he was going to take his lunch but would return to finish his job. According to Tapia, at the time of Carr's call, Tapia had just emptied his truck at the Convoy dump and the truck bed was empty. He drove to an acquaintance's home where Carr and Zumwalt were waiting. The two put their clothing and other items, including a backpack, in his truck bed. They put other items in the truck cab. Tapia testified he did not pay attention to what they threw in his truck. He denied any of the items later found in it belonged to him, including the fanny pack containing tools. According to Tapia, he left work between 12:30 p.m. and 12:40 p.m. and picked up Carr and Zumwalt at close to 1:00 p.m.
Heston, who hired Tapia as an independent contractor, testified that his workers generally took lunch between 11:30 a.m. and 12:30 p.m., and that day, they stopped at about noon. At that time, Tapia's truck was filled with concrete and construction debris to take to the Convoy dump, about seven or eight miles away. Heston expected Tapia to take the load to the dump, eat lunch and return, but he never came back. Heston, a native San Diegan, estimated that Fashion Valley Mall could be three to five miles away from the Bay Park construction site. On cross-examination, Heston admitted it was "possible, but doubtful" that Tapia took his lunch at 11:30 a.m..
DISCUSSION
I. Challenge to Admission of Carr and Zumwalt's Holding Cell Conversation and Denial of Limiting Instruction
A. Background
During pretrial motions, the trial court ordered Zumwalt's case severed from Carr and Tapia's joint trial so that Zumwalt's statement claiming ownership of the black purse — which the court found to be a declaration against her penal interest obtained in violation of Zumwalt's Miranda rights (People v. Miranda (1966) 384 U.S. 436) — could be admitted as exculpatory evidence in Carr and Tapia's case. The parties then discussed the holding cell conversation between Carr and Zumwalt (the holding cell conversation). The trial court tentatively ruled — without objection from Tapia's counsel — the conversation was admissible as not testimonial and subject to a hearsay exception as Zumwalt's admission. In further arguments, Tapia's counsel submitted to the court's tentative ruling, explaining he was going to rely on the statements as exculpatory evidence, despite the court's comments in explaining its tentative ruling that Zumwalt's statement was so broad that it implicated not only her and Carr, but also Tapia.
Over Carr's counsel's objections, the court ruled the statement admissible, declining to sanitize it as Carr had requested. It reasoned that not only would sanitization require severance of Carr and Tapia's trials, but it would interfere with Tapia's fair trial rights because he was not part of the conversation, and "[t]here's no way you can implicate him as being part of that conversation."
During the jury instruction conference, the prosecutor withdrew his request to instruct the jury with CALCRIM No. 305 [Multiple Defendants: Limited Admissibility of Defendant's Statement], which provides: "You have heard evidence that defendant ____, [insert defendant's name] made a statement (out of court/before trial). You may consider that evidence only against (him/her), not against any other defendant." When the court invited argument, Tapia's counsel stated he would submit to the court's ruling, though he would "like to have it in." Agreeing with the People that Zumwalt's use of the term "us" was more inclusive than just her and Carr, the court withdrew the instruction.
Tapia's counsel stated: "I'm kind of caught. I see both sides. I'm going to have to submit to the court, although I'd like to have it in."
During closing arguments, the People, without referring specifically to Tapia, argued Carr and Zumwalt's holding cell statements demonstrated common knowledge or involvement in the crime. Tapia's counsel argued his client was not included in the conversation because he was not involved with Carr and Zumwalt and did not know anything. B. Contentions
Tapia contends the trial court erred in (1) ruling the holding cell conversation relevant to the issue of his guilt or knowledge and (2) failing to give his requested limiting instruction that the jury consider the conversation only against Carr. He maintains the errors were not harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)because the prosecutor relied predominantly on the holding cell conversation to establish Tapia, Carr and Zumwalt's common knowledge of the presence of stolen property found in Tapia's truck. C. Admissibility of Holding Cell Statement
Tapia's counsel did not make a timely or specific objection to admission of the holding cell statements. (Evid. Code, § 353, subd. (a) [judgment will not be reversed by reason of erroneous admission of evidence unless counsel makes a timely objection and states the specific ground for the objection, or moves to strike the objectionable testimony].) He thus failed to preserve any evidentiary or confrontation clause challenges for appeal. (See People v. Hovarter (2008) 44 Cal.4th 983, 1008; People v. Burgener (2003) 29 Cal.4th 833, 869 [defendant waives constitutional claims, including federal confrontation clause violation, by failing to articulate them to the trial court]; see also People v. Mitchell (2005) 131 Cal.App.4th 1210, 1220, fn. 18; People v. Wallace (1970) 13 Cal.App.3d 608.) D. Request for Limiting Instruction
Tapia's claim as to the trial court's failure to instruct the jury with CALCRIM No. 305 likewise fails. First, contrary to Tapia's contention, his counsel did not unambiguously request the instruction; while he expressed some desire for it when invited to argue the point, ultimately, he submitted to the trial court's decision to withdraw it.
Nevertheless, we would conclude any error in refusing to give CALCRIM No. 305 is harmless. Instructional error is not reversible unless an examination of the record establishes a reasonable probability that the error affected the outcome. (People v. Moye (2009) 47 Cal.4th 537; People v. Breverman (1998) 19 Cal.4th 142, 165; Watson, supra, 46 Cal.2d at p. 836.) The People did not expressly argue to the jury that Tapia was implicated by Zumwalt's statement, and in turn, Tapia's counsel emphasized that Tapia was not present at that time and had nothing to do with that conversation because he had no knowledge of the stolen property. We have no indication the jury placed undue weight on that conversation to the exclusion of the other evidence. Further, there was ample evidence implicating Tapia in the burglary, including the fact that he, along with Zumwalt and Carr, was found about nine miles away from Fashion Valley Mall with the stolen property in his vehicle 41 minutes after Lantis parked her car there. The jury could certainly reject Tapia's testimony and deduce Tapia's involvement in the burglary and knowledge that the property was stolen by his possession of the property in his vehicle under these circumstances. (People v. Roland (1969) 270 Cal.App.2d 639, 647; People v. Boinus (1957) 153 Cal.App.2d 618, 621-622.)
We may take judicial notice that the distance from Fashion Valley Mall and Coronado is approximately 9.2 miles. (Evid. Code, § 452, subd. (g); 459.)
II. Claim of Ineffective Assistance of Counsel
Tapia contends his counsel provided constitutionally ineffective assistance by failing to move for exclusion of the holding cell conversation under Evidence Code section 352. He maintains such an objection would have been meritorious because under all of the circumstances, Zumwalt's statement was "too vague and ambiguous, if not speculative, to implicate [him]." In particular, he maintains Zumwalt's use of the term "us" was a weak and tenuous inference that risked misleading the jury in the absence of cross-examination of Carr and Zumwalt.
To establish ineffective assistance of counsel a defendant must show, by a preponderance of the evidence, that counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (People v. Ledesma, 43 Cal.3d at p. 216.) In assessing such a claim, " ' "[r]eviewing courts defer to counsel's reasonable tactical decisions . . . , and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926; see also Bolin, 18 Cal.4th at p. 333.)
The record on Tapia's direct appeal reveals a plain and reasonable tactical purpose for counsel's decision to allow the admission of the conversation into evidence without objection, namely, he intended to rely upon it as exculpatory evidence. Counsel argued to the jury that his client was not mentioned during the conversation and had no knowledge of the "stuff," i.e., the stolen property. We cannot say Tapia's counsel was ineffective because the record does not affirmatively disclose the "lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Cunningham (2001) 25 Cal.4th 926, 1003 [claim of deficient performance of counsel on appeal must be based on the four corners of the record].)
III. Refusal to Instruct with CALCRIM No. 3400 as to Alibi
Tapia contends the court prejudicially erred by refusing to instruct the jury with CALCRIM No. 3400, his requested instruction on the defense of alibi to the charges of burglary and receiving stolen property. He maintains his own testimony that he left work between 12:30 p.m. and 12:40 p.m. supports a conclusion that he was not present during the burglary of Lantis's vehicle, which occurred at some point after 12:30 p.m. at or about the time she parked at Fashion Valley Mall.
CALCRIM No. 3400 states, in pertinent part: "The People must prove that the defendant committed ____ < insert crime[s] charged >. The defendant contends (he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. [¶] If you have a reasonable doubt about whether the defendant was present when the crime was committed, you must find (him/her) not guilty."
CALCRIM No. 3400 includes a bracketed portion, which reads: "[However, the defendant may also be guilty of _____ < insert crime[s] charged > if (he/she) (aided and abetted/ [or] conspired with) someone else to commit (that/those) crime[s]. If you conclude that the defendant (aided and abetted/ [or] conspired to commit) ______ < insert crime[s] charged >, then (he/she) is guilty even if (he/she) was not present when the crime[s] (was/were) committed.]" Though Tapia includes this bracketed portion of the instruction in his brief, he did not argue below it should have been given, nor does he on appeal. The prosecution did not argue below that Tapia was not present when the crimes were committed but rather aided and abetted or conspired with Carr and Zumwalt to commit the crimes. (Cf. People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28.)
A jury instruction that pinpoints the crux of a defendant's case or defense, such as alibi, is required to be given on request when substantial evidence supports the theory. (People v. Jennings (2010) 50 Cal.4th 616, 674-675; People v. Saille (1991) 54 Cal.3d 1103, 1119.) Substantial evidence is evidence deserving of consideration by the jury, or evidence a reasonable jury could find persuasive. (People v. Cunningham, supra, 25 Cal.4th 926, 1008.) " ' "In evaluating the evidence to determine whether a requested instruction should be given, the trial court should not measure its substantiality by weighing the credibility [of the witnesses] . . . . Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." ' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.) A defendant's own testimony may constitute sufficient evidence to support an instruction. (See ibid.)
Here, Tapia testified he received Carr's phone call between 12:00 p.m. and 12:20 p.m., left in his truck for Coronado between 12:30 p.m. and 12:40 p.m. after telling Heston he was taking his lunch, and picked Carr and Zumwalt up in Coronado at about 1:00 p.m. According to Lantis, that day she parked her vehicle at Fashion Valley Mall about 12:30 p.m. About 40 minutes later, at about 1:11 p.m., Tapia, Carr and Zumwalt were pulled over in Coronado, with Lantis's items in Tapia's truck. Accepting Tapia's testimony as true, he would have either been at the Bay Park construction site, or driving from that site to Coronado at the time of the burglary of Lantis's vehicle, which had to have taken place at some point after 12:30 p.m. but before 1:00 p.m., when Carr and Zumwalt were picked up in Coronado. We agree Tapia's testimony is sufficient evidence from which a jury could conclude he was not present at Fashion Valley Mall at the time of the burglary of Lantis's vehicle.
The People's arguments do not convince us otherwise. They would have us weigh the credibility of Tapia's recollection of events with that of Heston, his boss, who testified that Tapia had left the work site around noon with construction debris to take to the Convoy dump. They also argue a defendant should not be able to establish an alibi defense by merely testifying he was not at the crime scene. But Tapia did not so testify; he gave a timeline of events that would have placed him either at his job site or driving en route to Coronado at around the time of the burglary. We do not have to speculate whether Carr and Zumwalt did or did not have transportation to get themselves from Landis's vehicle to Coronado or whether Carr told Tapia the truth when he told him he and Zumwalt were in Coronado when they called him for a ride. We may just as easily speculate in Tapia's favor that Carr and Zumwalt took a separate vehicle from Fashion Valley Mall to Coronado and left it there to avoid detection. It is enough that Tapia's testimony gives him a credible alibi defense to Landis's burglary. The trial court thus erred by refusing to instruct the jury with CALCRIM No. 3400.
The remaining question is whether the trial court's error requires reversal: whether the record establishes a reasonable probability that the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165, citing Watson, supra, 46 Cal.2d at p. 836.) Though substantial evidence supported giving the alibi instruction, we conclude there is no reasonable probability Tapia would have realized a more favorable result on the burglary offense had the alibi instruction been given. Tapia contends that in the absence of the instruction and in light of the prosecutor's closing arguments, reasonable jurors could have concluded he had the burden to prove his alibi defense; that had the jury been properly instructed with CALCRIM No. 3400, it would have been informed that he had no burden of proof except to raise a reasonable doubt whether he was present when the break in occurred. We are not persuaded.
The defense of alibi tends only to negate the prosecution's evidence that defendant was present at the scene of the crime. (People v. Freeman (1978) 22 Cal.3d 434, 438; People v. Manson (1976) 61 Cal.App.3d 102, 211 [alibi instruction properly refused when prosecution did not claim the defendant was present at scene of the crime].) That defense cannot " 'be considered by itself, but must be considered in connection with all other evidence in the case. [Citation.] For this reason, in the absence of a request [for an alibi instruction] . . . it is sufficient that the jury be instructed generally to consider all the evidence in the case, and that defendant is entitled to an acquittal in case of a reasonable doubt whether his guilt is satisfactorily shown.' " (People v. Freeman, at p. 438.)
Thus, an alibi instruction is unnecessary when the jury has been instructed to consider the evidence as a whole and acquit the defendant if reasonable doubt concerning his guilt has been shown. (See People v. Freeman, supra, 22 Cal.3d at p. 438 [given reasonable doubt instruction, "[i]t would have been redundant to have required an additional instruction which directed the jury to acquit if a reasonable doubt existed regarding defendant's presence during the crime"].) Here, the jury was instructed via CALCRIM No. 220 to acquit Tapia if it found the prosecution did not establish his guilt beyond a reasonable doubt. Specifically, the jury was instructed: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." The jury was also instructed on how to evaluate the witness's credibility, and that the testimony of a single witness was sufficient to prove any fact.
In view of these instructions, it would have been redundant to instruct the jury to acquit Tapia if it believed, based on all the evidence, that there was a reasonable doubt he was present at the scene of the crime. (People v. Freeman, supra, 22 Cal.3d at p. 438.) The alibi instruction would have added nothing of substance to the reasonable doubt instruction; it only would have pinpointed or tied defendant's alibi defense to the prosecution's theory that Tapia committed the burglary and possessed the burglary tools because he was, in fact, present at the scene. This issue was adequately covered, though more generally so, by the reasonable doubt instruction. Accordingly, it is not reasonably probable that Tapia would have realized a more favorable result had CALCRIM No. 3400 been given. (See, e.g., People v. Alcala (1992) 4 Cal.4th 742, 803 [rejecting claim of reversible error based on failure to instruct sua sponte on alibi on grounds jury was instructed sufficiently with other instructions regarding the believability of witnesses (CALJIC No. 2.20), discrepancies in testimony (CALJIC No. 2.21), weighing conflicting testimony (CALJIC No. 2.22), sufficiency of testimony of one witness (CALJIC No. 2.27) and the presumption of innocence/reasonable doubt (CALJIC No. 2.90)].)
IV. Retroactivity of Section 4019
Tapia, who was sentenced in November 2009, contends he is entitled to the enhanced presentence conduct credits provided by the version of section 4019 that went into effect on January 25, 2010. (See § 4019, subd. (b)(1), amended by Stats. 2010, 3rd Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.) When Tapia was sentenced, the trial court determined he had 151 days of actual custody and 74 days of conduct credits. He maintains he is entitled to 77 additional days of conduct credit.
A defendant sentenced to prison is entitled to credit against the prison term for all days spent in local custody before sentencing that are attributable to the same conduct. (§§ 2900, subd. (c), 2900.5, subds. (a), (b); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Such a defendant may also earn so-called "conduct credits" for satisfactory performance of assigned labor and compliance with rules and regulations during local custody. (§ 4019, subds. (b), (c); People v. Cooper (2002) 27 Cal.4th 38, 40.)
The version of section 4019 in effect when Tapia was sentenced allowed conduct credits to accrue at the rate of two days for every four days spent in local custody, so that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 1982, ch. 1234, § 7, p. 4554.) Effective January 25, 2010, section 4019 was amended to provide qualifying defendants with increased conduct credits of two days for every two days spent in local custody, so that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Stats. 2010, 3d Ex. Sess. 2009-2010, ch. 28, § 50, p. 5271.)
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment took effect; but the September 28, 2010 amended version applies only to local custody served by defendants for crimes committed on or after September 28, 2010. (§ 4019, subd. (g); Stats. 2010, ch. 426, § 2.) The most recent amendment to section 4019 is inapplicable to this case because defendants committed their crimes before September 28, 2010.
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Whether the January 25, 2010 amendment to section 4019 applies to defendants who earned conduct credits before January 25, 2010, but whose judgments were not yet final on that date, is a question currently pending before the California Supreme Court. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [holding amended section 4019 applies retroactively to judgments not yet final]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; contra, People v. Eusebio (2010) 185 Cal.App.4th 990 , review granted Sept. 22, 2010, S184957; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
While we await the Supreme Court's decision, we adopt the majority view of the intermediate appellate courts that the January 25, 2010 amendment applies retroactively. Accordingly, Tapia should have been awarded 150 days of conduct credits (calculated by dividing his 151 actual days by two, discarding the remainder and multiplying by two) and thus is entitled to an additional 76 days of conduct credits, for a total of 301 days of conduct credits. The judgment against him is modified to award these credits.
DISPOSITION
The judgment against Tapia is modified to award an additional 76 days of conduct credits under Penal Code section 4019, for a total credit of 301 days for time served. In all other respects the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.