P. v. Lopez CA6

Filed 5/9/13 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037735 & H038136 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS101249)

v.

ENRIQUE ARGUETA LOPEZ,

Defendant and Appellant.

Defendant Enrique Argueta Lopez appeals a judgment of conviction following his plea of guilty to two counts of possession of stolen rifles (Pen. Code, § 12020, subd. (a)(1)),1 and admission that one of those counts was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant was awarded 385 days of total custody credit, consisting of 257 days of actual credit, and 128 days of conduct credit. On appeal he asserts he is entitled to an additional 128 conduct credits pursuant to the October 1, 2011 amendments to section 4019.

1 All statutory references are to the Penal Code.

STATEMENT OF THE CASE2 H037735 In May 2010, defendant was charged with four counts of possession of stolen rifles (§ 12020, subd. (a)(1)), six counts of receiving or concealing stolen property (§ 496, subd. (a)), and one count of making a false police report (§ 148.3). The information also contained an allegation that defendant committed one count of possession of stolen rifles and one count of receiving or concealing stolen property for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In June 2010, defendant pleaded guilty to two counts of possession of stolen rifles (§ 12020, subd. (a)(1)), and admitted one of the gang allegations, in exchange for an agreement that he would be granted probation, and would be ordered to serve 180 days in jail. The remaining charges and the gang allegation were dismissed pursuant to the plea agreement. During the period between August 2010, and August 2011, the district attorney brought four separate petitions alleging defendant violated his probation. Defendant admitted all the violations. On November 1, 2011, defendant was sentenced to five years in state prison. The court awarded defendant 385 days of total custody credit, consisting of 257 days of actual credit, and 128 days of conduct credit. In December 2011, defendant filed a notice of appeal. H038126 On March 20, 2012, defendant brought a motion in the trial court requesting an additional 128 custody credits pursuant to a retroactive application of the October 2011