P. v. Trevino CA5

Filed 7/31/13 P. v. Trevino 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F063621 Plaintiff and Respondent, (Super. Ct. No. F10904144) v.

LORENZO GILBERT TREVINO, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Franson, J.

Appellant Lorenzo Gilbert Trevino, Jr. was charged with one count of petty theft with priors (Pen. Code, §§ 484, subd. (a), 666)1 and one count of second degree burglary (§§ 459, 460, subd. (b)). It was also alleged appellant had one prior “strike” conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served two prior prison terms (§ 667.5., subd. (b)). Appellant pled no contest to the second degree burglary charge and admitted the prior strike conviction. The trial court dismissed the remaining count and the prison priors pursuant to the prosecutor’s motion. The trial court sentenced appellant to the mid-term of two years, doubled to four due to his prior strike conviction. He received 477 days of total presentence custody credit, consisting of 319 actual days and 158 conduct days.2 Appellant’s sole ground for appeal concerns the trial court’s calculation of conduct credits. The sentencing judge awarded 158 conduct credit days. Appellant contends that the conduct award should be 319 days because the equal protection clause of the California Constitution and the Fourteenth Amendment to the United States Constitution require that the present Penal Code section 4019 be applied retroactively to appellant. We reject appellant’s argument and affirm the lower court judgment. DISCUSSION Section 4019, which affects the calculation of conduct credits, has undergone several legislative changes in recent years. The trial court awarded conduct credits pursuant to the January 25, 2010, version and awarded 319 actual days plus 158 conduct credit days. In 2011, section 4019 was amended to provide a more generous conduct credit calculation (day for day) than the formula provided in the January 25, 2010,