1 Filed 4/23/15 P. v. Orosco CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Shasta)

----

THE PEOPLE, Plaintiff and Respondent,

v. ROY OROSCO, Defendant and Appellant. C074892
(Super. Ct. Nos. 07F6420, 09F7508)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ). Having reviewed the r ecord as required by Wende , we find the trial court erred in calculating defendant’s presentence custod y credits under Penal Code section 4019. 1 We

1 Undesignated statutory references are to the Penal Code.2 provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND On June 28, 2007, officers from the Anderson Police Department stopped a vehicle for having a broken ta illight. The officers spoke to defendant, who was a passenger in the vehicle. In itially, defendant gave them a false name, but after learning his true name, the officers discovered there wa s a parole warrant for defendant’s arrest. They searched the vehicle and found 0.8 gram of methamphetamine, two pipes for smoking methamphetamine, and 4.6 grams of marijuana. Defendant admitted the methamphetamine was his and he had also used the pipes. On August 1, 2007, in Shasta County Superior Cour t case No. 07F6420, defendant was charged with multiple criminal offenses , and on March 17, 2008, he pleaded guilty to one count of felony transportation of meth amphetamine. The trial court suspended imposition of sentence and granted defendant probation, ordering him to complete the Proposition 36 drug program. On August 1, 2008 , the probation department filed a petition to revoke defendant’s probation. Defendant admitte d violating his probation af ter he tested positive for methamphetamine. The trial court revoked and reinstated his proba tion on the original terms and conditions, including reinstatem ent in the Propositi on 36 drug program. On October 6, 2009, at 12:44 a.m., Redd ing Police Department officers stopped a car that defendant was driving; the vehicle’s registration was expired and the license plate bore improper registration tags. The offi cers learned defendant was on probation and
searched his vehicle. Inside the vehicle th ey found 0.4 gram of methamphetamine. The People charged defendant in Shasta County Superior Court case No. 09F7508 with felony possession of methamphetamine and driving w ith a suspended license. On October 20, 2009, defendant pleaded gu ilty in case No. 09F7508 to felony possession of methamphetamine.3 The charges in case No. 09F7508 re sulted in another petition to revoke defendant’s probation in case No. 07F6420. Defendant admitted the probation violation; the trial court revoked and reinstated his pr obation in case No. 07F6420, extended the term of probation an additiona l two years, and or dered defendant to serve 60 days in county jail and participate in Shasta Co unty’s Addicted Offender Program (AOP). That same day, in case No. 09F7508, the trial court susp ended imposition of sentence, granted defendant probation, and or dered him to participate in the AOP. The
trial court also ordered defendant to serve 60 da ys in the county jail, the term to be served concurrently with the 60 days imposed in case No. 07F6420. On January 22, 2010, defe ndant was arraigned on anot her petition to revoke his probation. Defendant admitted the proba tion violation, and the court revoked and reinstated his probation. On August 20, 2010, defenda nt admitted two more proba tion violations. The trial court then sentenced defendant to the upper term of four years in case No. 07F6420 and the middle term of two years in case No. 09F7 508, to be served c oncurrently with the
sentence in case No. 07F6420. The court fou nd defendant to be addicted to narcotics, suspended execution of his sentence, and co mmitted him to the California Rehabilitation Center (CRC) for treatment of his addiction pursuant to Welfare and Institutions Code
section 3051. The CRC’s warden subseque ntly deemed defendant unsu itable for the civil addict program and referred him back to the superior court pursuant to Welfare and Institutions
Code section 3053. The trial court then ex ecuted the previously imposed sentence and awarded defendant 698 days of custody cred it in case No. 07F6420 and 675 days in case No. 09F7508. Defendant appeals withou t a certificate of probable cause. After filing his notice of appeal, defenda nt (through appellate counsel) filed a motion in the trial court, asking the court to recalculate his custody credits. In his motion, defendant argued he was entitled to an increased number of conduct credits based4 on the amendments to section 4019 that were effective on January 25, 2010. The probation department and the People agreed defendant was entitled to some changes in his custody/conduct credits under section 4019 based on mathematical and clerical errors; however, the People argued, and the probation de partment agreed, that defendant was not
entitled to benefit from the amendments to se ction 4019 effective on January 25, 2010. The People took the position th at defendant’s credits were to be calculated based on the
law in effect on the date de fendant committed his offenses. The trial court agreed that defendant’ s conduct credits were to be calculated according to the law in effect on the da te defendant committed his offenses. Accordingly, the trial court amended defenda nt’s custody credits but only as to the mathematical and clerical errors agreed to by the People and the probation department. In case No. 07F6420, the court increased de fendant’s custody credits to a total of 704 days, and in case No. 09F 7508, the court decreased defe ndant’s custody credits to a total of 662 days.
DISCUSSION We appointed counsel to represent defenda nt on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende , supra , 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communicati on from defendant. We have undertaken an examination of the entire record pursuant to Wende and find the trial court erred in recalculating defendant’s custody credits. A criminal defendant sentenced to state pr ison is entitled to credit against the term of imprisonment for all days spent in custo dy before sentencing. (§ 2900.5, subd. (a).) Section 4019 also provides th at a criminal defendant may earn additional presentence credit against his or her sentence for willin gness to perform assigned labor (§ 4019,5 subd. (b)) and compliance with rules and regulations (§ 4 019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. ( People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of section 4019 in eff ect prior to January 25, 2010, a defendant earned two days of conduct credit for every four days served in local custody. (§ 4019, former subds. (b), (c).) In October 2009 the Legislature enacted Senate Bill No. 18XXX, which, among other things, amended section 4 019, effective January 25, 2010, to permit defendants who have no current or prior se rious or violent fel ony convictions, and who are not required to register as sex offenders, to earn two days of conduct credit for every two days in custody. (§ 4019, former s ubds. (b)(1), (c)(1), as am ended by Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28 , § 50.) Senate Bill No. 76 amended section 2933, effective September 28, 2010, and provided th at a qualifying defendant convicted of a felony and sentenced to state prison is en titled to one day of pr esentence conduct credit for each day of actual presentence confinemen t served (§ 2933, fo rmer subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 XXX when the person served an odd number of days in actual presentence custody (see Stats. 2010, ch. 426, § 1).
In People v. Brown (2012) 54 Cal.4th 314, our Supreme Court concluded that “former section 4019 [the January 2010 versio n of section 4019] applied prospectively, meaning that qualified prisoners in local cust ody first became eligible to earn credit for good behavior at the increased rate begi nning on the statute’s operative date.” ( Brown , at p. 318.) Thus, defendant was eligible to ea rn increased conduct credit after the statute’s operative date of January 25, 2010. The tria l court erred in finding defendant’s conduct
credits were to be calculated based on the law in effect at the time he committed his
offenses.
We therefore remand the matter back to the trial court for a recalculation of defendant’s custody credits c onsistent with this opinion.6 DISPOSITION The judgment of conviction is affirmed. The matter is remanded for recalculation of presentence custody credits consistent with th is opinion. The trial court is directed to prepare an amended abstract of judgment and to send a certified copy thereof to the Department of Corrections and Rehabilitation.

RAYE , P. J.

We concur:

BLEASE , J.

ROBIE , J.