Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F00277
NICHOLSON, Acting P.J.
While investigating for drug activity at a Sacramento home, Sacramento Police Officer Todd Edgerton learned an automobile registered to defendant Jonas Kurt Stevens was parked in the home’s driveway. One night, Officer Edgerton entered the backyard of a neighboring home that was for sale. He was able to see that a light was on and a fan was running in the suspicious home’s detached garage.
An investigator for the Sacramento Municipal Utility District (SMUD) told Officer Edgerton the power consumption for the home was consistent with a small marijuana operation in one room. Another SMUD investigator said the home had abnormally high average monthly power usage, 3.57 times that of neighboring homes. The power usage grew heavily every month between July and November 2009.
On December 31, 2009, Officer Edgerton and his partner searched the home’s garbage can, which was on the sidewalk for garbage pickup. The can contained two pounds of marijuana stems and leaves, a water pump, a $505.56 SMUD bill for the address, and 34 mature plant bases in hydroponic grow medium.
Officer Edgerton obtained a search warrant for the residence. A search of the residence resulted in the discovery of 66 marijuana plants, 180 oxycodone pills and other contraband.
After defendant’s motion to quash the warrant was denied, defendant pled no contest to possession of oxycodone (Health & Saf. Code, § 11350, subd. (a)). The trial court suspended imposition of sentence and placed defendant on three years’ formal probation with various conditions, including 180 days in jail with one day presentence custody credit.
Defendant appeals. He did not obtain a certificate of probable cause.
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 the opening brief. More than 30 days elapsed, and we received no communication from defendant. Under a conduct credit formula recently enacted, most defendants accrue presentence conduct credits at the rate of one day per day of actual presentence custody. (Pen. Code, § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, eff. Sept. 28, 2010].) We conclude this new formula applies to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment applies to acts committed before its passage if conviction is not final]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [similar].) Defendant is not among the prisoners excepted from the additional accrual of credit. (Pen. Code, § 2933, subd. (e).)
Accordingly, having served one day of actual custody, defendant is entitled to one day of conduct credit, and we modify the judgment to award that amount. (Pen. Code, § 1260.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to award defendant one day of presentence conduct credit, and is affirmed as modified. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment.
We concur: ROBIE, J., MAURO, J.