>P. v. Turner















Filed 10/19/10 P. v. Turner CA5









NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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THE PEOPLE, Plaintiff and Respondent, v. JOHN WAYNE TURNER, Defendant and Appellant.

F059568 (Super. Ct. Nos. VCF225504 & VCF224038) OPINION

THE COURT^*

APPEAL from
a judgment of the Superior Court of Tulare
County. Gary L. Paden, Judge.

Jean M.
Marinovich, 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 Louis M. Vasquez,
Deputy Attorney General, for Plaintiff and Respondent.

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>-ooOoo-

>STATEMENT OF THE CASE

On July 17, 2009, appellant, John Wayne Turner, waived
his constitutional rights and pled no contest in case No. VCF224038 to
misdemeanor possession of a destructive
device (Pen. Code, § 12303.2, count one)^[1] and felony domestic
violence (§ 273.5, subd. (a), count two). On August 20, 2009, appellant waived his
constitutional rights and pled no contest in case No. VCF225504 to one count of
felony domestic violence (§ 273.5, subd. (a), count one) and one count of
misdemeanor battery (§ 242, count
three).

On January 13, 2010, the trial court sentenced appellant
in case No. VCF225504 to three years in prison on count one. In case No. VCF224038, the court sentenced
appellant to a concurrent prison term of three years for count two. Appellant received custody credits of 508
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 recently amended version of section 4019.
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 13, 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 conduct credit at the rate of four days for every four days of
presentence custody. We conclude the
amendment applies prospectively only.^[3]

Under section 3, it is presumed that a statute operates prospectively
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