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In re Bispo

California Court of Appeals, Third District, Siskiyou
Feb 18, 2011
No. C065543 (Cal. Ct. App. Feb. 18, 2011)

Opinion


In re MICHAEL DEAN BISPO on Habeas Corpus. C065543 California Court of Appeal, Third District, Siskiyou February 18, 2011

NOT TO BE PUBLISHED

Super. Ct. No. 03-1945.

BUTZ, J.

When petitioner Michael Dean Bispo’s sentence was imposed in 2008, the superior court awarded presentence credits consistent with the law in effect at the time. However, before petitioner’s judgment of conviction became final, the Legislature amended Penal Code section 4019 to increase presentence credits, effective January 25, 2010. Petitioner contends he is entitled to additional presentence credits under section 4019 as amended effective January 25, 2010. We agree.

Undesignated statutory references are to the Penal Code.

FACTUAL BACKGROUND

In November 2005, petitioner was sentenced to seven years in state prison following his no contest plea to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), transporting Oxycodone and Hydrocodone (Health & Saf. Code, § 11352, subd. (a)), and possessing methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)). However, the superior court suspended the sentence and placed petitioner on formal probation.

We have previously granted respondent’s motion for judicial notice of the appellate record in People v. Michael Dean Bispo, C060813.

After petitioner’s failure on probation, the superior court imposed the previously suspended seven-year sentence, in November 2008. The superior court awarded petitioner 117 days of presentence credits, consisting of 79 days of actual custody credits and 38 days of conduct credits.

We affirmed the judgment on appeal in an unpublished opinion filed on December 17, 2009, in People v. Bispo, C060813. Petitioner did not file a petition for review in the California Supreme Court. Our remittitur issued to the superior court on February 18, 2010.

Meanwhile, effective January 25, 2010, the Legislature amended section 4019 to increase the amount of presentence credits for any prisoner except one required to register as a sex offender, committed for a serious felony, or who has a prior conviction for a serious or violent felony. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) It is undisputed that petitioner does not meet any of these three criteria which would prohibit him from receiving the increased presentence credit.

According to revised subdivision (f) of section 4019, as amended effective January 25, 2010: “It is the intent of the Legislature 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. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)

Petitioner filed a habeas corpus petition in the superior court, claiming entitlement to additional presentence credits under section 4019 as amended effective January 25, 2010. The superior court denied the petition, reasoning that petitioner is not entitled to additional presentence credits because the judgment of his conviction became final upon the filing of this court’s opinion in December 2009, prior to the effective date of amended section 4019.

Petitioner then filed a habeas corpus petition in this court, and we issued an order to show cause.

DISCUSSION

Petitioner contends he is entitled to an award of additional presentence credits pursuant to section 4019, as amended effective January 25, 2010. We agree. We note that petitioner raises no contention regarding the statutory amendments made to sections 2933 and 4019 by Senate Bill No. 76 (2009-2010 Reg. Sess.), and we thus express no opinion regarding the effect of those statutory amendments on petitioner’s entitlement to presentence credits.

Petitioner’s judgment of conviction became final after the January 25, 2010 effective date of amended section 4019. A Court of Appeal decision in a criminal case is final as to that court 30 days after filing. (Cal. Rules of Court, rule 8.366(b)(1); further rule references are to these rules.) Where, as here, no petition for review was filed, the decision is not final as to the California Supreme Court for an additional 30 days because that court may, on its own motion, order review of the Court of Appeal decision. (Rule 8.512(c)(1).) “The finality of a judgment has been defined as that point at which the courts can no longer provide a remedy on direct review, ” including the time within which to petition the United States Supreme Court for writ of certiorari. (In re Pine (1977) 66 Cal.App.3d 593, 595.) Petitioner’s judgment of conviction did not become final even as to the California Supreme Court until February 15, 2010, 60 days after we filed our opinion affirming his conviction.

“Rules 8.500 through 8.552 govern the hearing and decision in the Supreme Court of an appeal in a criminal case.” (Rule 8.368.)

The question is thus whether section 4019, as amended effective January 25, 2010, applies to a defendant who was sentenced prior to January 25, 2010, but whose conviction did not become final until after that date. We conclude the amendments apply in all cases in which the appeal was not yet final as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)

Under section 4019, as amended effective January 25, 2010, “a term of four days will be deemed to have been served for every two days spent in actual custody.” (§ 4019, subd. (f).) Petitioner spent 79 days in actual custody. He is thus entitled to a total of 157 days of presentence credits (i.e., 39 periods of “two days spent in actual custody, ” times four days, plus one day), rather than the 117 days of presentence credits previously awarded.

DISPOSITION

Pursuant to section 4019, as amended effective January 25, 2010, petitioner is entitled to a total of 157 days of presentence credits (79 days actual days plus 78 conduct days). Upon finality of this opinion, respondent is directed to cause the records of the California Department of Corrections and Rehabilitation to be amended to reflect correctly petitioner’s presentence credits and his minimum eligible parole release date. Further, upon finality of this opinion, the clerk of this court is directed to provide a copy of this opinion to the Siskiyou County Superior Court for that court to amend the abstract of judgment accordingly and to provide a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

We concur: BLEASE, Acting P. J., NICHOLSON, J.


Summaries of

In re Bispo

California Court of Appeals, Third District, Siskiyou
Feb 18, 2011
No. C065543 (Cal. Ct. App. Feb. 18, 2011)
Case details for

In re Bispo

Case Details

Full title:In re MICHAEL DEAN BISPO on Habeas Corpus.

Court:California Court of Appeals, Third District, Siskiyou

Date published: Feb 18, 2011

Citations

No. C065543 (Cal. Ct. App. Feb. 18, 2011)