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THE PEOPLE, Plaintiff and Respondent, v. DAVE EDWARD PHILPOT, Defendant and Appellant.

Page 520e

123 Cal.App.4th 520e __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. DAVE EDWARD PHILPOT, Defendant and Appellant. E034238 California Court of Appeal, Fourth District, Second Division Oct. 27, 2004

       Super.Ct.No. FVI015746

       ORDER MODIFYING OPINION, NO CHANGE IN JUDGMENT AND DENIAL OF PETITION FOR REHEARING

       Richli, J.

       Plaintiff and Respondent’s petition for rehearing is denied. The opinion filed in this matter on August 27, 2004, (122 Cal.App.4th 893; __ Cal.Rptr.3d __) is modified as follows:

       1. On page 18, beginning with the last sentence of the first paragraph [122 Cal.App.4th 908, advance report par. 4], it is modified to read as follows:

“credit). Presentence conduct credits may not be used, however, to reduce either a minimum term of 25 years or a maximum term of life. ( People v. Carpenter (1979) 99 Cal.App.3d 527, 535-536 [ 160 Cal.Rptr. 386]; § 3046.) Accordingly, we conclude that after defendant has served the minimum term, the Board of Prison Terms may use defendant’s section 4019 credits in determining defendant’s release date. ( Carpenter at pp. 535-536.)

Section 3046 states in pertinent part: “(a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following: [¶] (1) A term of at least seven calendar years. [¶] (2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.”

       Thus, even if defendant’s sentence is solely an indeterminate term, he is entitled to an award of section 4019 conduct credits. The abstract of judgment should therefore be modified accordingly.”

       Except for these modifications, the opinion remains unchanged. This modification does not effect a change in the judgment.

       We concur: Ramirez, P. J., King, J.

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People v. Philpot
(Nov 1, 2004)