THE PEOPLE v. CLIFTON JEREMY LONG (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

On December 22, 2008, at approximately 4:23 a.m., after receiving a report of two men attempting to open doors on parked cars, a Corcoran police officer stopped appellant, Clifton Jeremy Long. During a pat down search, the officer found several CD's, a compact CD player, a set of keys, and a cellular phone.   While the officer spoke with Long, an owner's manual for a Lexus automobile fell from under Long's jacket.   An officer who arrived on the scene informed the first officer that a Lexus down the street that had been broken into.

On December 24, 2008, the district attorney filed a complaint charging Long with second degree burglary (count 1/Pen.Code, § 459),¹ receiving stolen property (count 2/ § 496, subd. (a)), and misdemeanor vandalism (count 3/ § 594, subd. (a)).

On March 4, 2009, Long pled guilty to second degree burglary in exchange for the dismissal of the remaining counts.

On April 1, 2009, the court placed Long on five years felony probation.

On July 6, 2009, the probation department filed a report of a probation violation.

On July 15, 2009, Long admitted violating his probation by failing to abstain from the use of a methamphetamine and marijuana and the court revoked his probation.

On August 12, 2009, the court refused to reinstate probation and sentenced Long to a two-year term.

Long's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Long has not responded to this court's invitation to submit additional briefing.

However, pursuant to this court's “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (Supplemental Briefing Order) we deem Long to have raised the contention that he is entitled to additional conduct credit under a recent amendment to section 4019.   Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).)  In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).  These forms of section 4019 presentence credit are called, collectively, conduct credit.  (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

The court sentenced Long on August 12, 2009, and calculated his conduct credit in accord with the version section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody.  (Former § 4019.)   However, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.

This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, we would deem raised, without additional briefing, the contentions that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles.   We deem these contentions raised here.

As this court explained in the recent case of People v. Rodriguez (2010) 183 Cal.App.4th 1, the 2010 amendment does not operate retroactively and does not violate the constitutional guarantee of equal protection of the laws.   Long is, therefore, not entitled to additional conduct credit under that amendment.

Further, following independent review of the record we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.