Opinion
Super. Ct. No. 08F03772
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on January 10, 2012, be modified as follows:
1. On pages 2 and 3 of the opinion, delete footnote 2 in its entirety and insert the following footnote 2 in its place:
In a footnote, defendant raises the issue of whether amendments to Penal Code former section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence custody credits. However, defendant is required to register as a sex offender and has a prior conviction for a serious felony, which renders him ineligible for additional accrual of credit under that version of the statute. (See Pen. Code, former § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 3X 28, § 50, eff. Jan. 25, 2010; Pen. Code, former § 2933, subd. (e)(3), as amended by Stats. 2010, 2009-2010 Reg. Sess., ch. 426, § 1, eff. Sept. 28, 2010.) In a petition for rehearing, defendant raises two new issues: (1) whether the trial court improperly awarded presentence custody credits under Penal Code section 2933.1 rather than Penal Code section 4019, and (2) whether the October 2011 amendment to Penal Code former section 4019 applies retroactively to this appeal. However, it is “too late to urge a point for the first time in a petition for rehearing, after the case ha[s] been fully considered and decided by the court upon the points presented in the original briefs.” (Prince v. Hill (1915) 170 Cal. 192, 195; accord, A.F. Estabrook Co. v. Industrial Acc. Com. (1918) 177 Cal. 767, 771; Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 276; People v. Mullens (2004) 119 Cal.App.4th 648, 669, fn. 9; CD Investment Co. v. California Ins. Guarantee Assn. (2000) 84 Cal.App.4th 1410, 1429, fn. 1; Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308; CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542; People ex rel. Dept. of Public Works v. Mascotti (1962) 206 Cal.App.2d 772, 779; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 906, p. 968.) We relax this rule with respect to the first new issue raised in order to forestall a petition for habeas corpus on grounds of ineffective assistance of appellate counsel. Defendant was convicted of possession of child pornography (Pen. Code, § 311.11) and was awarded presentence custody credits under Penal Code section 2933.1, which provides in relevant part that “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.” (Pen. Code, § 2933.1, subd. (a).) This was error because defendant’s conviction offense is not listed in Penal Code section 667.5, subdivision (c). Accordingly, defendant should have been awarded custody credits under Penal Code, former section 4019, subd. (f), which provided at the time that “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.) Defendant spent 475 days in actual custody and was entitled to 236 days of conduct credit under Penal Code former section 4019 (475 days in actual custody÷ 4 (and discarding the remainder) = 118; 118 x 2 = 236 days of conduct credit). (See In re Marquez (2003) 30 Cal.4th 14, 26.)
2. On page 51 of the opinion, following the heading “DISPOSITION, ” delete “The judgment is affirmed.” and replace it with the following:
The judgment is modified to award defendant 711 days of presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy to the Department of Corrections and Rehabilitation.
This modification changes the judgment.
Defendant’s Petition for Rehearing is denied.
RAYE, P. J., BUTZ, J., MURRAY, J.