Filed 6/26/13 P. v. Barber CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057955

v.                                                                       (Super.Ct.No. RIF153732)

JERMAINE EUGENE BARBER,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Richard Todd Fields,

Judge. Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant Jermaine Eugene Barber appeals from the denial of his postjudgment

motion for additional conduct credits pursuant to Penal Code section 4019.1 As we

discuss, there was no error.

                                       BACKGROUND

       On October 28, 2009, defendant was charged with one count of robbery (§ 211)

and one count of false imprisonment by violence, menace, fraud and deceit (§ 236). As

to both crimes, the complaint alleged that defendant personally used a firearm within the

meaning of section 12022.53, subdivision (b), causing the crimes to be serious felonies

within the meaning of section 1192.7, subdivision (c)(8). The victim was the same in

both counts and the crimes were alleged to have been committed on or about October 26,

2009. The complaint also alleged one prison prior within the meaning of section 667.5,

subdivision (b).

       On November 10, 2009, defendant entered into a plea bargain. Defendant was

permitted to plead guilty to robbery with personal use of a firearm in return for a

negotiated sentence of five years, consisting of the low term of two years for the robbery

and the low term of three years for the gun use enhancement. All other charges and

allegations would be dismissed. On December 2, 2010, defendant entered his plea and

received the agreed-upon sentence. The court awarded defendant 100 days in actual

presentence credits and 15 days in presentence custody credits.


       1   All statutory citations refer to the Penal Code.


                                               2
        On January 14, 2013, defendant filed an ex parte application to correct presentence

conduct credits based on a 2011 amendment to section 4019 which provides for greater

conduct credits than the version of section 4019 in effect when defendant was sentenced.

The trial court denied the motion. Defendant filed a notice of appeal on January 24,

2013.

                                      DISCUSSION2

        We appointed counsel to represent defendant on appeal. After examination of the

record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. We offered defendant the opportunity to file any

supplemental brief he deemed necessary, but he did not do so.

        We have examined the entire record and have found no sentencing error, nor any

other postplea error. We are satisfied that defendant’s attorney has fully complied with

his responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th

106, 109-110; People v. Wende (1979) 25 Cal.3d 436, 441.)

        In reaching this conclusion, we examined several matters mentioned by appointed

counsel but not argued.

        1. Does the 2011 Amendment to Section 4019 Apply to Defendant?

        Section 4019 was amended in 2011, to provide that persons convicted of a felony

which was committed before October 1, 2011, the operative date of the amendment,

        2The limited record on appeal does not contain any information on the facts of
the underlying offenses.


                                             3
would be awarded day-for-day conduct credits. By the express terms of the statute, it

does not apply to defendant, whose crime was committed in 2009. (People v. Ellis

(2012) 207 Cal.App.4th 1546, 1549-1553.) Prospective application of the amendment

does not violate equal protection principles. (Ibid.)

       2. Despite the Amendment to Section 4019, Does Section 2933.1 Still Apply to

Limit Defendant’s Conduct Credits to 15 Percent?

       As pertinent here, section 2933.1 provides:

       “(a) Notwithstanding any other law, any person who is convicted of a felony

offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of

worktime credit, as defined in Section 2933. [¶] . . . [¶]

       “(c) Notwithstanding Section 4019 or any other provision of law, the maximum

credit that may be earned against a period of confinement in, or commitment to, a county

jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following

arrest and prior to placement in the custody of the Director of Corrections, shall not

exceed 15 percent of the actual period of confinement for any person specified in

subdivision (a).”

       Robbery is a crime listed in section 667.5, subdivision (c), specifically subdivision

(c)(9). Accordingly, even if the 2011 amendment to section 4019 applied to defendant,

section 2933.1 would still limit his presentence and postsentence work credits to

15 percent.




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                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                 McKINSTER
                                                             Acting P.J.

We concur:



RICHLI
                         J.



KING
                         J.




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