P. v. Ruiz
Filed 1/16/13 P.
v. Ruiz CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Jaime Juan Ruiz,
Defendant and Appellant.
B242585
(Los Angeles County
Super. Ct. No.
KA087014)
APPEAL
from an order of the Superior Court of
County, Wade Olson, Judge.
Affirmed.
California
Appellate Project, Jonathan B. Steiner and Cheryl Lutz, under appointment by the
Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Jaime Juan Ruiz appeals from the trial court’s post-judgment
order denying his request for additional pre-sentence custody credit. We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
In
a non-published opinion filed April 19, 2010 (
entered following Ruiz’s June 15, 2009 plea of no contest
to petty theft with a prior (Pen. Code, § 666)
and his admission that he previously had been convicted of a theft-related
offense for purposes of the Three Strikes law (§ 667, subds. (b)-(i), §
1170.12, subds. (a)-(d)).
name="_ftnref2" title="">[2] The trial court sentenced Ruiz to four years
in prison, then awarded him presentence custody
credit for 20 days actually served and 10 days of good time/work time.
In
a petition filed in the superior court on June 19, 2012,
Ruiz indicated that he had spent 20 days in custody prior to his “conviction
and/or sentencing.†He asserted that,
pursuant to section 4019, as amended April 4, 2011 and
operative October 1,
2011, he is entitled to an additional 10
days of good time/work time, or a total of 40 days of pre-sentence custody
credit. He requested that the trial
court send to the records department of the California Men’s Colony State
Prison a corrected abstract of judgment and minute order “directing the
Department of Corrections an[d] Rehabilitation to credit [him with] 40 days of
pre-sentence custody credit.â€
At
proceedings held on June 19, 2012, the trial court
indicated that it had read and considered Ruiz’s “petition for [an] order
granting pre-sentence custody and conduct credits pursuant to . . . sections
2900.5 [and] 4019.†The trial court then
denied the petition, indicating that Ruiz had been “given the proper [number
of] custody credits.â€
On
June 29, 2012, Ruiz filed a timely notice
of appeal from the trial court’s order.
CONTENTIONS
After
examination of the record, appellate counsel filed an opening brief which
raised no issues and requested this court to conduct an independent review of
the record.
On
November 28,
2012, the clerk of this court sent to Ruiz
at the California Men’s Colony State Prison, P.O. Box 8101, San Luis Obispo, California 93409-8101,
a notice advising him that he could, within the next 30 days, submit any
contentions, grounds of appeal or arguments he wished this court to
consider. His appellate counsel,
however, did not send to Ruiz a copy of the record on appeal or the brief filed
as, according to the Department of Corrections, Ruiz had been discharged on November 10, 2012. Apparently, neither they,
not the California Appellate Project have a current address for Ruiz. Under these circumstances, it is expected
that the notice will be returned to the court and Ruiz will not be filing a
response.
In
any event, the April
4, 2011 amendment to section 4019,
subdivision (f), which was enacted after Ruiz was sentenced, reads that “a term
of four days will be deemed to have been served for every two days spent in
actual custody.†However, subdivision
(h) of the amended section 4019 provides that “[a]ny days earned by a prisoner
prior to October
1, 2011, shall be calculated at the rate
required by the prior law.†The California
Supreme Court has expressly found that the amendments to section 4019 operate
“prospectively†(People v. Brown
(2012) 54 Cal.4th 314, 322-323) and that such an interpretation of the statute
does not violate principles of equal protection (Brown, at p. 330; see also People
v. Verba (2012) 210 Cal.App.4th 991,997).
REVIEW ON APPEAL
We
have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
DISPOSITION
The
trial court’s order denying Ruiz’s request for additional pre-sentence custody
credit is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
further statutory references are to the Penal Code unless otherwise indicated.
order to determine the date of Ruiz’s conviction, the sentence imposed and the
number of days of pre-sentence custody credit awarded, on December 12, 2012
this court took judicial notice of the record in Ruiz’s first appeal, Court of
Appeal case No. B218649. (Evid.
Code, §§ 459, 452, subd. (d).)
