Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F00584
HULL, J.Defendant Andrew Lawrence Mackey appeals from his resentencing on remand from our nonpublished decision in People v. Mackey (Aug. 21, 2009, C060051). We have earlier construed defendant’s motion to take judicial notice of the record in the prior appeal as a motion to incorporate it by reference, and thereafter granted the motion. His appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we provide the following summary of the proceedings leading to his resentencing.
A jury found defendant guilty of one count of sexually penetrating a child under 10, three counts of child molestation, and one count of attempted child molestation. The jury found for each count that he had a felony conviction coming within the meaning of four different recidivist provisions (Pen. Code, § 667, subd. (a); § 667, subd. (e)/§ 1170.12; § 667.61; § 667.71 [undesignated section references are to the Penal Code]).
The trial court imposed concurrent indeterminate terms of 25 years to life (§§ 667.61, 667.71) for the four completed offenses (finding that the four completed offenses arose out of the same time and place, and thus came within the exception to otherwise mandatory consecutive sentences (§ 667, subd. (c)(6); People v. Deloza (1998) 18 Cal.4th 585, 588, 595-596) and doubled them (§ 667, subd. (e)), but imposed the four five-year enhancements (§ 667, subd. (a)) consecutively. It imposed a consecutive determinate term for the attempt of 11 years: the middle term of three years, doubled (§ 667, subd. (e)), with a five-year enhancement (§ 667, subd. (a)). It stayed the sentence under section 667.71, citing section 654. (People v. Mackey, supra, C060051.)
On appeal from his original sentencing, we found that the trial court should not have imposed the indeterminate terms mandated under sections 667.61 and 667.71 to the conviction for sexual penetration and was apparently not aware that it had discretion to impose concurrent terms on the enhancements of the indeterminate counts; that defendant had not requested the court to exercise its discretion under section 1385 to strike the recidivist finding subjecting him to doubled terms (§ 667, subd. (e)), which would in any event have been an abuse of discretion; and that the court cited the incorrect authority for staying the sentence pursuant to section 667.71 (§ 654, rather than Cal. Rules of Court, rule 4.447). We remanded for the trial court to resentence defendant in accordance with the opinion. (People v. Mackey, supra, C060051.)
On remand, the trial court imposed the proper indeterminate sentence for the sexual penetration conviction prescribed in section 288.7 (15 years to life) and the indeterminate terms under sections 667.61 and 667.71 to the other three completed offenses, doubled them (§ 667, subd. (e)), imposed concurrent terms for these offenses and their enhancements (§ 667, subd. (a)), and reimposed the determinate term on the attempt. Though it was not within the scope of the remittitur, and despite our dictum regarding its lack of merit, defendant made an oral request for the court to exercise its discretion under section 1385 to strike the finding that doubled his sentence. The court denied the request on the merits.
The court initially left the calculation of defendant’s conduct credits up to prison authorities. We take judicial notice of a subsequent minute order (on the ex parte request of defendant) that calculated his custody credits at 221 days and his conduct credits at 33 days (§ 2933.1, subd. (c) [limiting presentence conduct credits to 15 percent of actual presentence custody for prior or present conviction for violent felony]; § 667.5, subds. (c)(5) & (11) [designating child molestation and sexual penetration as violent felonies]). We also take judicial notice of an amended abstract of judgment filed on February 10, 2010.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that set forth the facts of the case, and asked us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant.
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we have deemed defendant to have raised the issue (without additional briefing) of whether the amendments to section 4019 effective January 25, 2010, apply retroactively to his pending appeal and entitle him to further presentence conduct credits. Our recent opinion of People v. Brown (2010) 182 Cal.App.4th 1354 (petition for review pending, petition filed April 19, 2010, S181963) concluded that the amendments apply to pending appeals. However, as defendant’s convictions are for violent felonies, he does not qualify for additional presentence conduct credit. (§ 2933.1, subd. (a); § 4019, subds. (b)(2) & (c)(2).) Having undertaken an examination of the entire record, we do not find any other arguable error that would result in a disposition more favorable to the defendant.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P. J. RAYE, J.