Filed 2/4/19 (unmodified opn. attached)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                          DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                            G048762

        v.                                               (Super. Ct. No. 08CF3587)

DANIEL JOSEPH MARQUEZ,                                   ORDER MODIFYING OPINION;
                                                         NO CHANGE IN JUDGMENT;
    Defendant and Appellant.                             DENYING PETITIONS FOR
                                                         REHEARING

                 This court hereby orders that the opinion filed herein on January 15, 2019,
be modified as follows:
                 1. On page 7, footnote 3, fourth line, the citation “(Cal. Const., art. I, § 28,
subd. (d).)” is deleted and replaced with “(Cal. Const., art. I, § 28, subd. (f)(2).)”
                 This modification does not change the judgment.
                 Appellant’s and respondent’s petitions for rehearing are DENIED.



                                                      MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.
Filed 1/15/19 (unmodified version)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                         DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G048762

        v.                                           (Super. Ct. No. 08CF3587)

DANIEL JOSEPH MARQUEZ,                               OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed and remanded with directions.
                 Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
                 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Enid A. Camps, Peter
Quon, Jr., Parag Agrawal, Scott Taylor and Adrian R. Contreras, Deputy Attorneys
General, for Plaintiff and Respondent.
                                     *         *            *
              In 2006, police arrested defendant Daniel Joseph Marquez in Ventura
County on a drug possession offense. Without Marquez’s consent, authorities collected
his DNA sample and entered his DNA profile into a statewide database, but Marquez was
never charged with the drug offense. In 2008, investigators retrieved DNA evidence
from an Orange County robbery, and that evidence matched Marquez’s DNA profile in
the database (a “cold hit”). Police contacted Marquez, and with his consent they
collected a second DNA sample, which matched the DNA evidence from the robbery.
              The prosecution filed two robbery counts and a related offense. The trial
court denied Marquez’s motion to suppress the DNA evidence, and a jury convicted him
of the charged offenses. The court sentenced Marquez to 25 years to life in state prison,
plus an additional 15 years for three alleged prior serious felony convictions.
              In an unpublished opinion, we held that the 2006 collection of Marquez’s
DNA was lawful under the Fourth Amendment. The Supreme Court ordered us to
reconsider the cause in light of its later decision in People v. Buza (2018) 4 Cal.5th 658
(Buza). In Buza, the Court held that the collection of a DNA sample is lawful when a
suspect is “validly arrested on ‘probable cause to hold for a serious offense’ . . . as ‘part
of a routine booking procedure.’” (Id. at p. 665, citing Maryland v. King (2013) 569 U.S.
435, 465 (King).)
              In this opinion, we now hold that the 2006 collection of Marquez’s DNA
sample was unlawful under the Fourth Amendment; the prosecution failed to prove that
Marquez was validly arrested or that his DNA was collected as part of a routine booking
procedure. However, the trial court properly admitted the 2008 DNA evidence under a
well-established exception to the exclusionary rule: the attenuation doctrine.
              Additionally, due to a recent statutory change, we will remand the case for
the trial court to consider striking the additional punishment for Marquez’s three prior



                                               2
serious felony convictions. We will also order the court to modify Marquez’s custody
credits. In all other respects, the judgment is affirmed.


                                               I
                          FACTS AND PROCEDURAL HISTORY
                In 2008, Marquez entered a bank in Laguna Hills stating, “I am armed.
Give me all your large bills.” Marquez had a leather bag that looked like a “CD
organizer.” A teller put small bills and “bait money” in the organizer. Two managers
followed Marquez outside and tried to stop him. Marquez fought them off with a
pocketknife, cutting the shirt of one of the managers. During the skirmish, Marquez
dropped the organizer and a pair of glasses. From these items, investigators retrieved
DNA evidence, which was later linked to Marquez.


The Charges and the Motion to Suppress
                In 2012, the prosecution filed an information charging Marquez with two
counts of second degree robbery and one count of assault with a deadly weapon. (Pen.
                                  1
Code, §§ 211, 245, subd. (a)(1) ; People v. Estes (1983) 147 Cal.App.3d 23.) The
prosecution alleged five “‘strike’” priors. (§ 1192.7.) The prosecution further alleged
three prior serious felony conviction sentencing enhancements. (§ 667.)
                Prior to trial, Marquez filed a motion to suppress evidence. (§ 1538.5.)
Marquez argued that the collection of his DNA sample in 2006 violated the Fourth
Amendment. Marquez sought to suppress all the “fruits” of the allegedly unlawful
search. The prosecution filed an opposition arguing several grounds, including




1
    All further undesignated statutory references will be to the Penal Code.
                                               3
attenuation. At the hearing on the motion, the prosecution called no witnesses. The
parties submitted a written stipulation of the underlying facts.


The Written Stipulation
              The parties’ stipulation provided as follows:
              “Defendant’s DNA sample was obtained on October 3, 2006, without a
warrant and without consent.
              “[D]efendant was arrested for a violation of Health and Safety Code section
11350[, subdivision] (a) in Ventura County on September 29, 2006. [On] October 3,
2006, authorities from Ventura County collected a sample of defendant’s DNA. The
‘qualifying offense’ listed for the taking of defendant’s DNA is ‘PC 459.’ Defendant was
never convicted of, or even charged with, the violation of section 11350 in Ventura
County. However, defendant had previously been convicted of a felony violation of
Penal Code section 459 (second degree burglary), in Orange County, on February 13,
1986.
              “The DNA profile generated from the October 3, 2006 sample was entered
into the California Department of Justice DNA Data Bank.
              “On September 18, 2007, the defendant entered a guilty plea to a felony
count of violating Health and Safely Code section 11350[, subdivision] (a) in Orange
County . . . . He was placed on probation and ordered to submit to DNA testing pursuant
to Penal Code section 296. . . .
              “On February 25, 2008, the defendant admitted to violating his terms of
probation after failing to appear for a court-ordered case review. He was reinstated on
probation and again ordered to submit to DNA testing. [¶] . . . [¶]
              “On October 21, 2008, the defendant admitted to a second violation of
probation in Orange County . . . . He was reinstated on probation and again ordered to

                                              4
                          2
submit to DNA testing.”
              “On August 5, 2008, a pair of glasses and a leather organizer [were] left
behind by a suspect at the scene of an alleged robbery. These items were collected by the
Orange County Sheriff-Coroner Forensic Science Services. A single male DNA profile
was discovered by the lab on both items. That profile was entered into the California
Department of Justice DNA Data Bank and the defendant was identified as a candidate
match. [¶] Based on this match, Orange County Sheriff’s Deputy Steve Torres . . .
determined that the defendant was currently on formal probation in Orange County and
subject to a search and seizure condition. [¶] . . . [¶]
              “On November 25, 2008, Orange County sheriff’s deputies went to the last
known address for the defendant . . . . At 1930 hours the defendant was subsequently
located and detained. A hypodermic needle was located in his sock and he was arrested.
At 2100 hours Deputy Torres contacted the defendant . . . about his involvement in the
August 5, 2008 robbery. He also collected a DNA sample from the defendant using a
buccal swab after obtaining defendant’s voluntary consent. A DNA profile was
generated from that collection which matched the profile found on the glasses and leather
organizer recovered at the scene of the alleged robbery.”


Subsequent Proceedings
              The trial court denied Marquez’s motion to suppress. The court held that
Marquez’s 2006 DNA sample was lawfully collected. Alternatively, the court held that
the 2007 court order for Marquez to submit to DNA testing was an “independent

2
 Despite the three court orders, Marquez did not “submit to” further DNA testing until
November 2008, when he was identified as a robbery suspect. According to the Attorney
General, the Department of Justice had instructed local law enforcement agencies not to
collect “duplicate” DNA samples. However, this information was not before the trial
court, and it does not affect our analysis.
                                               5
intervening event” and that the 2008 DNA evidence was therefore “attenuated.” At trial,
the prosecution presented evidence linking the DNA evidence recovered at the 2008
robbery to Marquez’s 2008 DNA sample. There was no evidence presented at trial
concerning Marquez’s 2006 DNA sample.
              The jury found Marquez guilty as to all of the charged counts. The court
found true the five prior “strike” and the three prior serious felony conviction allegations.
The court sentenced Marquez to 25 years to life, plus 15 years for the three prior serious
felony enhancements.
              On appeal, we affirmed Marquez’s convictions. Marquez petitioned for
review in the California Supreme Court, which issued a “grant and hold” order. The
Court later transferred the case back to this court with directions to vacate our prior
decision and reconsider the cause in light of Buza, supra, 4 Cal.5th 658.


                                              II
                                       DISCUSSION
              Marquez contends: (A) the collection of his DNA sample in 2006 violated
the Fourth Amendment, and any evidence discovered as a result should have been
excluded; (B) a recent statutory change applies retroactively to his three prior serious
felony convictions; and (C) he should be awarded additional custody credits. We shall
address each contention in turn.


A. The Motion to Suppress DNA Evidence
              When reviewing a ruling on a criminal defendant’s section 1538.5 motion
to suppress evidence, appellate courts defer to the trial court’s factual findings under a
substantial evidence standard. (People v. Mays (1998) 67 Cal.App.4th 969, 972.)



                                              6
Appellate courts then independently apply those facts to determine if the search and/or
seizure was reasonable under the Fourth Amendment. (Ibid.)
              Here, at the hearing on Marquez’s motion to suppress the DNA evidence
the parties stipulated to the facts. Therefore, we will conduct a de novo review.


              1. The prosecution failed to prove that the 2006 collection of Marquez’s
DNA sample was lawful under the Fourth Amendment.
              “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, . . . particularly describing the place to be
searched, and the persons or things to be seized.” (U.S. Const., 4th Amend.) Under
section 1538.5, a trial court may grant a motion to suppress evidence “only if exclusion is
                                                                                          3
mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.)
              The initial burden is on the defendant to establish that the government
conducted a search without a warrant. The burden then shifts to the prosecution to justify
the warrantless search. (People v. Williams (1999) 20 Cal.4th 119, 127 [“the prosecution
has the burden of proving, if it can, some justification for a warrantless search”].) A
warrantless search is presumptively unreasonable. (Vernonia School Dist. 47J v. Acton
(1995) 515 U.S. 646, 652-653.) The prosecution must prove by a preponderance of the
evidence that the search falls within an exception to the Fourth Amendment warrant
requirement. (People v. Torres (1992) 6 Cal.App.4th 1324, 1334-1335.)



3
  The Attorney General concedes that the 2006 collection of Marquez’s DNA sample
violated the DNA Act that was in place at the time of his arrest (Marquez was not
arrested for a qualifying crime). However, the suppression of evidence is not a remedy
for violations of state law. (Cal. Const., art. I, § 28, subd. (d).) Therefore, our analysis is
strictly concerned with the federal Constitution.
                                               7
              There are several well-established exceptions to the warrant requirement,
including consent, a search incident to an arrest, and a routine booking search. (Florida
v. Jimeno (1991) 500 U.S. 248, 250-251 [“we have long approved consensual searches
because it is no doubt reasonable for the police to conduct a search once they have been
permitted to do so”]; Illinois v. Lafayette (1983) 462 U.S. 640, 643 [“it is reasonable for
police to search the personal effects of a person under lawful arrest as part of the routine
administrative procedure at a police station house incident to booking” for safety and
identification purposes]; Michigan v. DeFillippo (1979) 443 U.S. 31, 35 [“an arresting
officer may, without a warrant, search a person validly arrested”].)
              Following an arrest supported by probable cause, the collection of a
suspect’s DNA by taking a cheek swab during a routine booking procedure is now a valid
exception to the warrant requirement. (King, supra, 569 U.S. 435.) In King, the United
States Supreme Court analyzed Maryland’s DNA Act. The Court held that a buccal swab
(a cheek swab) — like any invasion of the body — is a “search” within the meaning of
the Fourth Amendment, “gentle” though the search may be. (King, at p. 446.) The Court
further identified a “legitimate government interest . . . that is well established: the need
for law enforcement officers in a safe and accurate way to process and identify the
persons and possessions they must take into custody.” (Id. at p. 449.) Thus, the Court
crafted a new exception to the warrant requirement, largely relying on the existing search
incident to arrest and booking exceptions: “When officers make an arrest supported by
probable cause to hold for a serious offense and they bring the suspect to the station to be
detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.” (Id. at pp. 465-466.)
              In 2018, our Supreme Court analyzed California’s DNA Act, applying
King, supra, 569 U.S. 435. (See Buza, supra, 4 Cal.5th 658.) In Buza, police arrested

                                              8
defendant for setting fire to a police car and transported him to jail. During booking,
defendant refused to submit to a cheek swab. A jury convicted defendant of two arson
related counts and the “offense of refusing to provide a specimen required by the
DNA Act.” (Id. at p. 664.) At issue was: “Whether the statute’s DNA collection
requirement is valid as applied to an individual who, like defendant, was validly
arrested on ‘probable cause to hold for a serious offense’ . . . and who was required to
swab his cheek as ‘part of a routine booking procedure’ at county jail.” (Id. at p. 665.)
The Court upheld the DNA Act as applied to defendant, but left open “for another
day” Fourth Amendment “concerns about the potential application of the DNA Act in
other cases involving other, differently situated arrestees.” (Buza, supra, 4 Cal.5th at
pp. 681, 693.)
              Here, the bare record at the suppression hearing (the written stipulation)
established that Marquez was arrested in Ventura County on September 29, 2006, for
possessing a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) The
stipulation does not state whether this was a suspected misdemeanor arrest or a suspected
felony arrest, but for Fourth Amendment purposes, the prosecution minimally established
that Marquez was arrested for a “serious” offense. (See People v. Thompson (2006) 38
Cal.4th 811, 824 [“the significant distinction for Fourth Amendment purposes in an
analogous context is whether the crimes were “‘jailable’” or “‘nonjailable’”“].)
              However, the prosecution failed to prove by a preponderance of the
evidence that Marquez was validly arrested in 2006. We are presented with the very
situation that our Supreme Court declined to address in Buza; that is, there is nothing in
the record to indicate that Marquez’s 2006 arrest was supported by probable cause. (See
Buza, supra, 4 Cal.5th 658.) Indeed, the record reveals that no charges were ever filed.
There may be variety of reasons for this; perhaps the police did not file the case with the
district attorney, or perhaps the district attorney chose not to file charges. In any event, it

                                               9
is a reasonable inference that at the time of his arrest in 2006, there were no reasonable
grounds to believe that he was guilty of any “serious” or “jailable” crimes. (See People
v. Celis (2004) 33 Cal.4th 667, 673 [“‘“The substance of all the definitions of probable
cause is a reasonable ground for belief of guilt”‘“].)
              Moreover, the collection of Marquez’s DNA sample occurred on October 3,
2006, which was four days after his arrest on September 29, 2006. Given the
unexplained delay between Marquez’s arrest and his DNA collection, we also do not
know whether the 2006 collection of Marquez’s DNA sample (presumably a buccal or
cheek swab) was “part of a routine booking procedure” at a local jail. (Compare Buza,
supra, 4 Cal.5th 658 [defendant refused to provide his DNA sample during the booking
                                                                 4
process at the county jail immediately following his arrest].)
              In sum, the prosecution failed to establish that the 2006 DNA collection of
Marquez’s DNA sample fell within an exception to the warrant requirement. Thus, the
warrantless search violated the Fourth Amendment. Nevertheless, we must now analyze
whether the 2008 DNA evidence should have been excluded.


              2. The trial court properly admitted the 2008 DNA evidence because it was
sufficiently attenuated from the unlawful 2006 collection of Marquez’s DNA sample.
              The Fourth Amendment protects against unreasonable searches and
seizures, but it does not include a remedy when the police violate its provisions.


4
  Generally, when there is an arrest without a warrant, the arrestee must be brought before
a magistrate within 48 hours for a finding of probable cause; the finding ordinarily occurs
at arraignment. (§ 988; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 57.) But
because of the delay in Marquez’s DNA collection, the fact that no charges were filed,
and the overall paucity of the record, we cannot presume that such a hearing occurred.
(See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed.
This presumption does not apply on an issue as to the lawfulness of an arrest if it is found
or otherwise established that the arrest was made without a warrant”].)
                                             10
Therefore, the Supreme Court developed an “exclusionary rule,” which generally
prohibits evidence obtained in violation of the Fourth Amendment from being used in
criminal trials. (Mapp v. Ohio (1961) 367 U.S. 643, 650-651; Weeks v. United States
(1914) 232 U.S. 383, 389.) The purpose of the exclusionary rule is to deter governmental
misconduct: “The rule is calculated to prevent, not to repair. Its purpose is to deter—to
compel respect for the [Fourth Amendment] guaranty in the only effectively available
way—by removing the incentive to disregard it.” (Elkins v. United States (1960) 364
U.S. 206, 217.)
              However, the fact that a Fourth Amendment violation has occurred does not
automatically require the application of the exclusionary rule. (See Herring v. United
States (2009) 555 U.S. 135, 140.) “Indeed, exclusion ‘has always been our last resort,
not our first impulse.’” (Ibid.) “We have repeatedly rejected the argument that exclusion
is a necessary consequence of a Fourth Amendment violation.” (Id. at p. 141.)
              The exclusion of evidence is not a “‘but for’” test. (Hudson v. Michigan
(2006) 547 U.S. 586, 592.) “‘“[N]ot . . . all evidence is ‘fruit of the poisonous tree’
simply because it would not have come to light but for the illegal actions of the police.
Rather, the more apt question in such a case is ‘whether, granting establishment of the
primary illegality, the evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently distinguishable to be purged
of the primary taint.’”‘“ (People v. Brendlin (2008) 45 Cal.4th 262, 268 (Brendlin).)
              Accordingly, the Supreme Court has created exceptions to the exclusionary
rule, including the attenuation doctrine. (Utah v. Strieff (2016) __ U.S. __ [36 S.Ct.
2056, 2061] (Utah); see Wong Sun v. United States (1963) 371 U.S. 471.) Under the
attenuation doctrine, “[e]vidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by
some intervening circumstance, so that ‘the interest protected by the constitutional

                                             11
guarantee that has been violated would not be served by suppression of the evidence
obtained.’” (Utah, supra, __ U.S. __ [136 S.Ct. at p. 2061].) In other words, exclusion
of the evidence is not required when the connection between the unlawful activity and the
evidence in question becomes “‘so attenuated as to dissipate the taint.’” (Murray v.
United States (1988) 487 U.S. 533, 537.)
              The Supreme Court has identified three factors that are used to determine
whether the illegality (the poisonous tree) has become sufficiently attenuated to permit
the admission of the obtained evidence (the fruit). (Utah, supra, __ U.S. __ [136 S.Ct. at
p. 2062].) First, courts consider the “‘temporal proximity’ between the unconstitutional
conduct and the discovery of evidence to determine how closely the discovery of
evidence followed the unconstitutional search”; this factor only favors attenuation if
“‘substantial time’” has elapsed. (Ibid.) Second, courts consider “the presence of
intervening circumstances.” (Ibid.) “Third . . . [courts] examine ‘the purpose and
flagrancy of the official misconduct.’” (Ibid.) This third factor is particularly significant
because “[t]he exclusionary rule exists to deter police misconduct,” and exclusion is
favored “only when the police misconduct is most in need of deterrence—that is, when it
is purposeful or flagrant.” (Id. at p. __ [136 S.Ct. at p. 2063].)
              Our Supreme Court’s decision in Brendlin illustrates the doctrine’s
application. In Brendlin, an officer saw a vehicle with a temporary operating permit and
made a traffic stop. (Brendlin, supra, 45 Cal.4th at p. 265.) The officer encountered a
passenger, who had an outstanding arrest warrant. During a search, officers found drug
paraphernalia. (Id. at p. 266.) It was undisputed that the traffic stop was unlawful, but
the California Supreme Court determined that the evidence need not be suppressed.
(Id. at p. 269.) While there were “only a few minutes” between the unlawful stop and the
lawful search incident to arrest, the court found that the “temporal proximity” factor was
outweighed by the other two. (Id. at p. 270.) The court reasoned that the existence of the

                                              12
arrest warrant “is an intervening circumstance that tends to dissipate the taint caused by
an illegal traffic stop.” (Id. at p. 271.) As to the third factor—flagrancy of the
misconduct—the record did not show that the officer acted with an improper motive in
making the traffic stop. (Ibid.) Thus, the court concluded that the combined
circumstances “sufficiently attenuated the connection between the unlawful traffic stop
and the subsequent discovery of the drug paraphernalia.” (Id. at p. 272.)
              Here, when we apply the three factors—temporal proximity, intervening
circumstances, and the flagrancy of the misconduct—we conclude the 2006 unlawful
collection of Marquez’s DNA sample was sufficiently attenuated from the 2008 “cold
hit” linking Marquez to the robbery and the lawful 2008 collection of his DNA sample.
              First, as to temporal proximity, a substantial period of time (about two
years) had elapsed between the unlawful collection of Marquez’s DNA sample in 2006
and the lawful collection of DNA evidence in 2008. (Compare Brendlin, supra, 45
Cal.4th at p. 270 [temporal proximity of “only a few minutes”].) Second, as to
intervening circumstances, between 2006 and 2008, Marquez had been arrested at least
three times and had been ordered to submit to DNA testing on each occasion; moreover,
at the time of Marquez’s 2008 DNA collection, he was on felony probation and
consented to the cheek swab. Finally, as far as the flagrancy of the misconduct, while the
Attorney General concedes that the authorities were not statutorily authorized to collect
Marquez’s DNA in 2006, there is nothing to indicate that they acted with an improper
motive, or that they somehow obtained the DNA sample in an inappropriate manner.
              Marquez argues that the attenuation argument has been forfeited “because
the prosecution never raised this contention in the trial court.” Marquez is mistaken. The
prosecution raised this contention in its written opposition to the motion. Moreover, the
attenuation doctrine was further addressed—and relied upon—by the trial court in its
ruling on the motion.

                                             13
              In sum, there was a substantial time break, as well as intervening
circumstances and a lack of evidence concerning flagrant official misconduct. We
conclude that the DNA evidence lawfully collected from Marquez in Orange County in
2008 is sufficiently attenuated from the DNA evidence unlawfully collected in Ventura
County in 2006. Thus, the trial court properly denied Marquez’s motion to suppress
evidence.


B. Retroactive Application of Legislative Change
              The trial court imposed three prior serious felony enhancements under
section 667, subdivision (a)(1), which provides: In compliance with subdivision (b) of
Section 1385, “[a]ny person convicted of a serious felony who previously has been
convicted of a serious felony . . . shall receive . . . a five-year enhancement for each such
prior conviction . . . . The terms of the present offense and each enhancement shall run
consecutively.”
              Prior to January 1, 2019, section 1385, subdivision (b), provided: “This
section does not authorize a judge to strike any prior conviction of a serious felony for
purposes of enhancement of a sentence under Section 667.” However, after January 1,
2019, as amended by Statutes 2018, Chapter 1013, section 2, the law now provides: “If
the court has the authority . . . to strike or dismiss an enhancement, the court may instead
strike the additional punishment for that enhancement in the furtherance of justice . . . .”
(§ 1385, subd. (b)(1).)
              The amended version of section 1385, subdivision (b)(1), applies to
Marquez because his case is not yet final on appeal. (See People v. Francis (1969) 71
Cal.2d 66, 69-70; In re Estrada (1965) 63 Cal.2d 740, 742-743.) The trial court therefore
now has discretion to impose a lesser punishment.



                                             14
              The Attorney General concedes the amended version of section 1385,
subdivision (b)(1), is retroactive but contends remand would be futile. We are not certain
that is the case. We therefore remand this issue to the trial court for its consideration. Of
course, we take no position on the merits.


C. Custody Credits
              The trial court awarded Marquez credit for 1,602 actual days served and
240 days of conduct credit, for a total of 1,842 days. Marquez argues that the trial court
should have awarded him credit for 1,906 days.
              Marquez was taken into custody on December 24, 2008. At the time of
sentencing, he had been in custody for 1,658 actual days. That number, multiplied by 15
percent, equals 248 days—the number of days of conduct credit defendant should have
received under section 2933.1. Consequently, Marquez’s total custody credit award
should have been 1,906 days (the sum of 1,658 and 248 days). (§§ 2900.5, 2933.1.)
              The Attorney General concedes the issue and we agree.


                                             III
                                      DISPOSITION
              The matter is remanded to the trial court to consider whether to exercise its
discretion to strike the punishment for any or all of Marquez’s three prior serious felony
convictions. (§§ 667, 1385, subd. (b)(1).) The court is further directed to adjust
Marquez’s custody credits as discussed, and to prepare an amended abstract of judgment
and forward a certified copy to the Department of Corrections and Rehabilitation as
directed within this opinion.




                                             15
           In all other respects, the judgment is affirmed.



                                               MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                          16
