P. v. Conway










Filed 11/16/10 P. v. Conway 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MICHAEL IAN CONWAY, Defendant and Appellant.

F059633 (Super. Ct. No. SCR009853A) OPINION

THE COURT^*
APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
STATEMENT OF THE CASE
On December 3, 2009, appellant, Michael Ian Conway, waived his constitutional rights and pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a), count two).^[1] In return for appellant's change of plea, a second degree burglary allegation (§ 211) was dismissed, and appellant faced the upper term sentence of three years.
On January 7, 2010, the trial court sentenced appellant to the upper prison term of three years. Appellant received custody credits of 159 days. Appellant contends he is entitled to extra custody credits under the recently amended provisions of section 4019.^[2] We disagree and will affirm the judgment.
ADDITIONAL CUSTODY CREDITS
Appellant contends he is entitled to additional custody credits from the amended version of section 4019 that became effective January 25, 2010. (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50 (Sen. Bill 18XXX).)^[3] Although appellant has a lengthy criminal record, from the probation officer's accounting of appellant's past convictions, he does not have a conviction for a serious or violent felony as defined in section 1192.7, subdivision (c), and section 667.5, subdivision (c). 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.)
When appellant was sentenced on January 7, 2010, the court calculated appellant's conduct credit in accord with the version of 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 additional conduct credits. We conclude the amendment applies prospectively only.^[4]
Under section 3, it is presumed that a statute operates prospectively â€