P. v. Penn

















Filed 10/14/10 P. v.
Penn 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Tehama)

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>

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ALLAN PENN, Defendant and Appellant.

C064413 (Super. Ct. No. NCR78185)

In
December 2009 officers spotted a wanted parolee in a car being driven by
defendant Joshua Allan Penn.[1] Defendant failed to yield to several pursuing
officers. He stopped long enough for the
parolee to get out, and the parolee was taken into custody. Defendant sped away onto a freeway and
narrowly avoided accidents with other motorists. The chase continued until a highway patrolman
used his car to force defendant's car off the road. After the two cars collided, officers pulled
defendant from his car and took him to the ground. He resisted them until he was handcuffed. One officer received a minor injury to his
wrist.

Defendant pled
guilty to driving with willful disregard for safety while eluding a pursuing
peace officer (Veh. Code, § 2800.2, subd. (a)) and admitted that he had
served a prior prison term (Pen. Code, § 667.5, subd. (b)).[2] In exchange, a count of resisting an executive officer
(§ 69) was dismissed. Defendant was
sentenced to state prison for the
upper term of three years plus one
year for the prior prison term, awarded 34 days' custody credit and 16
days' conduct credit, and ordered to pay a $600 restitution fine (§ 1202.4, subd.
(b)), a $600 restitution fine suspended unless parole is revoked
(§ 1202.45), and a $30 court security fee (§ 1465.8).

We appointed counsel to represent defendant on
appeal. Counsel filed an opening brief that sets forth the facts
of the case and requests this court to review the record and determine whether
there are any arguable issues on appeal.
(People v. Wende (1979)
25 Cal.3d 436.) 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
communication from defendant.

Pursuant to this
court's miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the
issue of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his
pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to
all appeals pending as of January 25,
2010.[3] (See In re Estrada (1965)
63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime
applies â€