Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM032525, CM031634
RAYE, P. J.
Appointed counsel for defendant Donald Ralph Scott asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find defendant is entitled to an additional day of conduct credit pursuant to Penal Code section 4019. We will modify the judgment accordingly and affirm the judgment as modified.
I
On October 7, 2009, a Butte County Sheriff’s deputy searched defendant and found.5 gram of methamphetamine in his shoe.
Defendant pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted a prior prison term allegation (Pen. Code, § 667.5, subd. (b)) in case No. CM031634. The trial court placed defendant on Proposition 36 probation. (Pen. Code, § 1210.1.)
In January 2010 defendant admitted violating probation by failing to report to his probation officer. The trial court reinstated Proposition 36 probation.
On May 21, 2010, at around 1:32 a.m., a 78-year-old man reported two suspicious people on his property, near his detached shop. One of the suspicious people was looking at the man’s residence through binoculars. Police responded, and defendant was found hiding under a travel trailer inside the shop. When questioned, defendant identified himself with a false name, and said he was “just trying to get some gas.”
Defendant pled no contest to second degree burglary (Pen. Code, § 459), admitted a prior prison term in case No. CM032525, and admitted violating probation in case No. CM031634.
Sentencing defendant in both cases, the trial court imposed a five year eight month prison term, ordered $374.30 in victim restitution along with various fines and fees, and awarded 73 days of presentence credit (37 custody and 36 conduct).
Defendant appeals. He has not obtained a certificate of probable cause. (Pen. Code, § 1237.5.)
II
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.
Having reviewed the record, we find defendant is entitled to one additional day of conduct credit pursuant to the recent amendments to Penal Code section 4019.
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Sen. Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d. Ex. Sess.) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010.
The California Supreme Court granted review to determine whether the January 2010 and September 2010 amendments apply to pending appeals. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; In re Kemp (2011) 192 Cal.App.4th 252, review granted Apr. 13, 2011, S191112.)
Having served 37 days’ presentence custody, defendant is entitled to 37 days’ conduct credits. We will modify the judgment accordingly. We find no further error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to reflect an award of 37 days’ conduct credit for a total of 74 days’ presentence credit pursuant to Penal Code section 4019. The trial court shall forward a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HULL, J., HOCH, J.