Filed 8/8/13 P. v. Vega 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----


THE PEOPLE,                                                                                  C071069

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. CRF102728,
                                                                                 CRF064317, CRF060997)
         v.

ARTURO COX VEGA,

                   Defendant and Appellant.




         In August 2006, defendant Arturo Cox Vega pleaded no contest to assault by
means likely to produce great bodily injury (Pen. Code, § 245, subd. (a); unless otherwise
stated, section references that follow are to the Penal Code) in case No. 06-0997, and
attempted second degree robbery (§§ 664, 211, 212.5, subd. (c)) in case No. 06-4317.
Defendant was placed on three years’ formal probation in both cases.
         In February 2012, defendant pleaded no contest to assault by means likely to
produce great bodily injury (§ 245, subd. (a)) and admitted strike (§§ 667, 1170.12) and
criminal street gang (§ 186.22, subd. (b)(1)) allegations in case No. 10-2728. Sentencing
defendant in all three cases, the trial court imposed a stipulated term of eight years eight

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months in state prison, and awarded the following presentence credit: 1053 days (703
actual and 350 conduct) in case No. 10-2728, 841 days (421 actual and 420 conduct) in
case No. 06-0997, and 247 days (165 actual and 82 conduct) in case No. 06-4317.
       On appeal, defendant contends he is entitled to additional conduct credits for
presentence custody occurring on and after the effective date of the Criminal Justice
Realignment Act of 2011 (Realignment Act). We affirm the judgment.

                                        DISCUSSION
       The facts underlying defendant’s crimes need not be set forth because they are not
relevant to our resolution of this appeal.
       Defendant contends he is entitled to additional conduct credits for presentence
custody served on or after the October 1, 2011, effective date of the Realignment Act.
We disagree.
       Defendant’s claim addresses the award of credits in case No. 10-2728, in which
defendant was awarded 1053 days’ presentence credit (703 actual and 350 conduct) for
time served from May 30, 2010, until defendant was sentenced on May 1, 2012.
Defendant committed the crime in case No. 10-2728 on May 30, 2010. Under the law in
effect at the time, a defendant with a current or prior strike conviction was entitled to earn
two days’ presentence conduct credit for every four days of presentence custody.
(Former § 4019, as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
       The Realignment Act amended the law, entitling defendants to two days of
conduct credits for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).)
The award of credits is not reduced by a defendant’s current or prior conviction for a
serious felony. The provision contains a savings clause, which states: “The changes to
this section enacted by the act that added this subdivision shall apply prospectively and
shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days earned by a


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prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” (§ 4019, subd. (h).)
       Defendant argues that we should adopt the reasoning of People v. Olague (2012)
205 Cal.App.4th 1126, review granted August 8, 2012, S203298, and apply the
Realignment Act’s amendment to section 4019 to time served on or after October 1,
2011. In Olague, the Court of Appeal found an ambiguity in section 4019’s savings
clause, stating: “It is true that after declaring itself to operate ‘prospectively,’ the October
2011 amendment declares that it will apply ‘to prisoners who are confined . . . for a crime
committed on or after October 1, 2011.’ (§ 4019, subd. (h).) Standing alone this would
indeed suggest a classification based upon the date of the offense. In the next sentence,
however, the Legislature declared, ‘Any days earned by a prisoner prior to October 1,
2011, shall be calculated at the rate required by the prior law.’ (§ 4019, subd. (h).) Of
course it would have been impossible to earn days in presentence confinement on an
offense which had not yet been committed. This sentence is therefore meaningless unless
the liberalized credit scheme applies to crimes committed before the stated date. While
the statute may thus seem somewhat self-contradictory, the contradiction is only implied.
The ambiguity is best resolved by giving effect to both sentences and concluding that the
liberalized scheme applies both to prisoners confined for crimes committed after
October 1, 2011, and to prisoners confined after that date for earlier crimes.” (Olague, at
pp. 1131–1132.)
       Since review was granted in Olague, the decision has no precedential value. We
also find the Court of Appeal’s reasoning unpersuasive. Olague was rejected in People v.
Ellis (2012) 207 Cal.App.4th 1546, in which the Court of Appeal stated: “In our view,
the Legislature’s clear intent was to have the enhanced rate apply only to those
defendants who committed their crimes on or after October 1, 2011. [Citation.] The
second sentence does not extend the enhanced rate to any other group, but merely
specifies the rate at which all others are to earn conduct credits. So read, the sentence is

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not meaningless, especially in light of the fact the October 1, 2011, amendment to section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant’s crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced.” (Id. at p. 1553; accord, People v. Rajanayagam (2012) 211 Cal.App.4th 42.)
       We agree with Ellis and accordingly reject defendant’s claim.

                                       DISPOSITION
       The judgment is affirmed.



                                                       HULL                  , J.



We concur:



      RAYE                  , P. J.



      MAURO                 , J.




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