Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR78185
RAYE, J.In December 2009 officers spotted a wanted parolee in a car being driven by defendant Joshua Allan Penn. Defendant failed to yield to several pursuing officers. He stopped long enough for the parolee to get out, and the parolee was taken into custody. Defendant sped away onto a freeway and narrowly avoided accidents with other motorists. The chase continued until a highway patrolman used his car to force defendant’s car off the road. After the two cars collided, officers pulled defendant from his car and took him to the ground. He resisted them until he was handcuffed. One officer received a minor injury to his wrist.
Because this matter was resolved by plea, our statement of facts is taken from the probation officer’s report.
Defendant pled guilty to driving with willful disregard for safety while eluding a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)) and admitted that he had served a prior prison term (Pen. Code, § 667.5, subd. (b)). In exchange, a count of resisting an executive officer (§ 69) was dismissed. Defendant was sentenced to state prison for the upper term of three years plus one year for the prior prison term, awarded 34 days’ custody credit and 16 days’ conduct credit, and ordered to pay a $600 restitution fine (§ 1202.4, subd. (b)), a $600 restitution fine suspended unless parole is revoked (§ 1202.45), and a $30 court security fee (§ 1465.8).
Further undesignated statutory references are to the Penal Code.
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. (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.
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 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 [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. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody 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. (§ 4019, subds. (b)(2), (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Consequently defendant, having served 34 days of presentence custody, is entitled to 34 days of conduct credit.
The California Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to section 4019 apply to pending appeals. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [giving retroactive effect to amendments]; accord, People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808.)
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 34 days of conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., BUTZ, J.