Filed 12/18/13 P. v. Malchier CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. SABRINA DESIREE MALCHER, Defendant and Appellant. F066603 (Super. Ct. No. F11907306)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Fres no County. Jon N. Kapetan, Judge. Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney Gene ral, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
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* Before Levy, Acting P.J., Kane, J. and Franson, J.2. Defendant Sabrina Desiree Malcher contends the trial court erred in refusing to award her day-for-day credits. The People concede, and we agree, that defendant was entitled to day-for-day credits under the version of Penal Co de section 2933, subdivision (e) 1 that was in effect on the dates de fendant committed the crimes. We will modify the judgment to award defendant the correct number of presentence credits and affirm in all other respects.
DISCUSSION On September 13, 2012, defe ndant pled no contest to th e felonies of identity theft (§ 530.5, subd. (a)) and commercial burglary (§§ 459, 460, subd. (b)) for crimes she committed on June 30, 2011, and July 8, 2011. On January 23, 2013, the trial court sentenced her to two years in county jail. She requested “a ccelerated credits” for day-forday credits, but the court declined beca use she was being sentenced under the Realignment Act (Stats. 2011, ch. 15, § 482 (A ssem. Bill No. 109)) to county jail, rather than prison. The trial court awarded her 224 days of credit for actual time served (§ 2900.5) and 112 days of conduct credit (§ 4019).
When defendant committed he r crimes in June and July 2011, conduct credits for
defendants convicted of felonies and se ntenced to state prison were governed by section 2933, former subdivision (e). (Stats. 2010, ch. 426, § 1.) That version authorized day-for-day conduct credits: “Notwithstanding Section 4019 ..., a prisoner sentenced to the state prison under Section 1170 for whom th e sentence is executed shall have one day deducted from his or her period of confinement for every day he or sh e served in a county jail ... from the date of arrest until state pr ison credits pursuant to this article are applicable to the prisoner.” While defendant’s case was pending, the se ntencing statutes were amended as part of the Realignment Act. As a result, defendant was sentenced to coun ty jail, rather than

1 All statutory references are to the Penal Code unless otherwise noted.3. state prison. Had she gone to prison, sh e would have been en titled to the additional credits under section 2933, fo rmer subdivision (e). This postoffense change effected by the Realignment Act could not serve to reduce defendant’s credits without violating the constitutional prohibition on ex post facto laws. (See Weaver v. Graham (1981) 450 U.S. 24, 31; People v. Nunez (2013) 220 Cal.App.4th 1527 [2013 Cal.App. Lexis 883].) Accordingly, we agree with both parties that defendan t is entitled to 112 additional days of conduct credits.
DISPOSITION The judgment is modified to award de fendant credit for a total of 448 days of presentence credit, consisting of 224 days of actual cust ody and 224 days of conduct credit. In all other respects, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment a nd send a certified copy to the appropriate agencies and entities.