THE PEOPLE v. BRENT JOHNSON

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. BRENT JOHNSON, Defendant and Appellant.

B227917

Decided: March 30, 2011

Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No Appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PROCEDURAL SUMMARY

On May 22, 2009, defendant was charged in a two-count complaint with driving under the influence in violation of Vehicle Code section 23152, subdivisions (a) (count 1) and Vehicle Code section 23152, subdivision (b) (count 2).   It was further alleged on both counts that defendant suffered three prior convictions for driving under the influence in 2002, 2005, and 2006 (Veh.Code, § 23152, subds.(a), (b)).  The prior convictions were also charged as prior prison term enhancements pursuant to Penal Code 1 section 667.5, subdivision (b).

On June 8, 2009, pursuant to a waiver of his preliminary hearing and trial rights, defendant pleaded no contest to the charges of count 2 and admitted the prior conviction allegations.   The trial court found him guilty.   The court denied probation, and sentenced defendant to four years, consisting of the upper term of three years and one year pursuant to section 665, subdivision (b).  The court gave defendant total credit of 30 days, consisting of 20 days actual custody and 10 days good time/work time. (§§ 2900.5, subd. (a) and 4019.)   The court ordered defendant to pay restitution of $200 (§ 1202.4, subd. (b)), imposed and stayed a parole restitution fine of $200 (§ 1202.45), and assessed a $20 court security assessment and a $30 criminal conviction assessment. (§ 1465.8, subd. (a)(1);  Gov.Code, § 70373.)   The court dismissed count 1, and judgment was entered on June 8, 2009.   Defendant did not appeal this sentence, and judgment thereon became final on August 7, 2009.   (Cal. Rules of Court, rule 8.308(a) [criminal appeal must be taken within 60 days].)

On July 12, 2010, defendant moved for a recalculation of his custody credits arguing for retroactive application of the amended version of section 4019, which had become effective on January 25, 2010.2  On August 23, 2010, the trial court denied the motion, finding defendant did not meet the criteria for application of amended section 4019.

We appointed counsel to represent defendant on appeal.   After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record.   On December 9, 2010, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider.   To date, we have received no response.   We have examined the entire record and are satisfied that defendant's attorneys have fully complied with their responsibilities and that no arguable issues exist.  (People v. Kelly (2006) 40 Cal.4th 106, 109–110;  People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references herein unless otherwise noted are to the Penal Code..  FN1. All statutory references herein unless otherwise noted are to the Penal Code.

FN2. The version of Penal Code section 4019 in effect from January 25, 2010 to September 27, 2010, provided in relevant part as follows:  “(b)(1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] ․ [¶] (c)(1) Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.”  (Stats.2009, 3d Ex.Sess.2009–2010, ch. 28 § 50, eff.   Jan. 25, 2010, enacting Sen. Bill No. 3X 18.)The Courts of Appeal throughout the state have reached conflicting decisions on whether the amendment to section 4019 is to be applied retroactively to cases pending at the time it became effective.   The California Supreme Court has granted review in numerous cases addressing the issue, in which courts have either applied the amendment retroactively or declined to do so.  (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963;  People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808;  People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.)   Here, we need not consider the issue because defendant's case was final at the time the amendment became effective..  FN2. The version of Penal Code section 4019 in effect from January 25, 2010 to September 27, 2010, provided in relevant part as follows:  “(b)(1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] ․ [¶] (c)(1) Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.”  (Stats.2009, 3d Ex.Sess.2009–2010, ch. 28 § 50, eff.   Jan. 25, 2010, enacting Sen. Bill No. 3X 18.)The Courts of Appeal throughout the state have reached conflicting decisions on whether the amendment to section 4019 is to be applied retroactively to cases pending at the time it became effective.   The California Supreme Court has granted review in numerous cases addressing the issue, in which courts have either applied the amendment retroactively or declined to do so.  (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963;  People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808;  People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.)   Here, we need not consider the issue because defendant's case was final at the time the amendment became effective.

ROTHSCHILD, Acting P. J. CHANEY, J.