P. v. York

Filed 3/9/06 P. v. York CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant John Thomas York was convicted on his plea of no contest to a charge of committing a lewd and lascivious act upon a child under age 14 by means of force, violence, duress, menace, and fear (Pen. Code, § 288, subd. (b)(1)). On appeal he contends that the trial court erred by applying Penal Code section 2933.1 to allow him only 15 percent credit for good conduct rather than the six-for-four credit applicable to his offense under the law in effect when the offense occurred. Respondent concedes that the trial court erred in this respect. The concession is well taken. Accordingly we will reverse with directions to modify the judgment to allow credits according to the law in effect at the time of the charged offense.

Background and Discussion

By complaint filed August 31, 2004, defendant was charged with one count of committing a lewd and lascivious act upon Jane Doe, then 11 or 12 years of age, by means of force, violence, duress, menace, and fear. The offense was alleged to have occurred between November 30, 1989, and November 29, 1991. At that time, a person convicted of such an offense was entitled to earn local conduct credits pursuant to Penal Code section 4019, which allows a prisoner to earn six days of credit for each four days spent in custody prior to sentencing. In 1994, however, the Legislature enacted Penal Code section 2933.1, which provides that certain offenses, including violations of Penal Code section 288, â€