THE PEOPLE v. JERRY MICHAEL FREDERICK (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In 2005 Jerry Michael Frederick was arrested and charged with one count of selling cocaine in violation of Health and Safety Code section 11352, subdivision (a), and one count of possession of a smoking device in violation of Health and Safety Code section 11364, subdivision (a).   It was further alleged Frederick had suffered a prior serious or violent felony conviction (for robbery) within the meaning of the “Three Strikes” law (Pen.Code, §§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) ¹ and had served eight separate prison terms for felonies (§ 667.5, subd. (b)).

A jury convicted Frederick of both charges.   Trial of the prior strike conviction and prior prison terms was bifurcated.

Prior to adjudication of the priors and before sentencing, Frederick through appointed counsel moved to dismiss the prior strike conviction for robbery (§ 1385, subd. (a);  People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529–530) and argued for a middle-term sentence without the strike or, alternatively, a low-term sentence doubled with the strike.

On May 31, 2006 Frederick and the People agreed Frederick would admit the prior strike allegation in return for an eight-year sentence, double the middle term, for selling cocaine.   The court also imposed a concurrent term of 180 days in county jail for possession of a smoking device.   In addition to awarding Frederick presentence custody credit, the court ordered him to pay a $50 lab fee, a $20 security assessment and a $200 restitution fine.   A parole revocation fine was imposed and suspended pursuant to section 1202.45.   The prior prison term allegations were dismissed in the interests of justice.

In January 2011 Frederick moved for “an order correcting pre-sentence custody credits nunc pro tunc,” contending his presentence custody credits should be increased to 432 days by retroactive application of the formula specified by the interim version of section 4019, in effect between January 25, 2010 and September 28, 2010.   The trial court denied the motion.   Frederick timely appealed.

We appointed counsel to represent him on appeal.

After examination of the record counsel filed an opening brief in which no issues were raised.   On July 15, 2011 we advised Frederick he had 30 days within which to personally submit any contentions or issues he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied that Frederick's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende (1979) 25 Cal.3d 436, 441.)

Before January 25, 2010 subdivisions (b) and (c) of section 4019 provided, for “each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility.  (Stats.1982, ch. 1234, § 7, p. 4553.)   Former subdivision (f) of section 4019 provided, “[I]f all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”  (Stats.1982, ch. 1234, § 7, p. 4554.)

Effective January 25, 2010, section 4019 was amended to provide that certain defendants may earn presentence credit at the rate of two days for every two days in custody, commonly referred to as one-for-one credits.  (Stats.2009, 3rd Ex.Sess., ch. 28, 2009–2010, § 50.)   The Legislature explained the intended effect of this new accrual rate, “It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c).” (§ 4019, former subd. (f).) ²  However, any defendant who “ha[d] a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5,” continued to accrue conduct credits at the previous, lower rate. (§ 4019, former subds. (b)(2), (c)(2).)

When Frederick was sentenced on May 31, 2006, he was awarded 324 days of presentence custody credit, consisting of 216 actual days and 108 days of conduct credit based on the formula dictated by section 4019 as it was in effect at the time of sentencing, which was two days of credit for each six-day period a prisoner was in custody. (§ 4019, subds.(b) & (c).)  Because Frederick had a prior conviction for robbery, which is a serious and violent felony (§§ 667.5, subd. (c)(9);  1192.7, subd. (c)(19)), he was not eligible for the increased conduct credit under the interim version of section 4019.   His post-judgment motion was properly denied.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. Urgency legislation effective September 28, 2010 restored the calculation of custody credits to the pre-January 25, 2010 formula for crimes committed after the effective date of the revision.  (Stats, 2010, ch. 426, § 2.).  FN2. Urgency legislation effective September 28, 2010 restored the calculation of custody credits to the pre-January 25, 2010 formula for crimes committed after the effective date of the revision.  (Stats, 2010, ch. 426, § 2.)

WOODS, J. JACKSON, J.