Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB804020, John N. Martin, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant and appellant Daniel Michael Arnold appeals following a guilty plea. He argues the trial court erred by not asking him whether he wanted to be represented by an attorney at the time of sentencing. Defendant also contends the court miscalculated his presentence custody credits under Penal Code section 4019. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in count 1 with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), in count 2 with receiving stolen property (Pen. Code, § 496d, subd. (a)), and count 3 with grand theft (Pen. Code, § 487, subd. (a)). It was further alleged he served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Pursuant to a written plea agreement, defendant pled guilty on June 23, 2009, to counts 1 and 3 and admitted all three prior prison term allegations. As part of the plea agreement, and against the advice of counsel, defendant agreed to be released on his own recognizance pursuant to a waiver under People v. Vargas (1990) 223 Cal.App.3d 1107. Defendant agreed to be sentenced to a term of six years eight months in state prison. However, if he returned to court on June 29, 2009, without violating any of the terms of his release, he would be resentenced to a lower term of two years eight months in state prison.
Counsel indicated on the record he had advised defendant the Vargas waiver was “too risky.”
On June 29, 2009, defendant failed to appear and a bench warrant was issued for his arrest. Defendant was taken into custody and next appeared before the court on July 20, 2009. On January 11, 2010, defendant filed a motion to withdraw his guilty plea, stating he was pressured into signing the agreement and was not fully informed of his constitutional rights. The court denied the motion on January 29, 2010.
On April 16, 2010, defendant informed the court he wanted a hearing as to the allegation that he violated his Vargas waiver. On June 6, 2010, defendant wrote a letter to the court indicating he wished to waive his right to counsel and proceed unrepresented. The court held a hearing on June 14, 2010, pursuant to Faretta v. California (1975) 422 U.S. 806. After questioning the defendant to ensure he understood the right to counsel and the risks of waiving that right, the court allowed defendant to proceed unrepresented. The court continued the matter to give defendant time to prepare and told defendant to let the court know if he changed his mind and wanted an attorney. On July 15, 2010, the court appointed an investigator to assist defendant.
On August 6, 2010, the court held a hearing to consider whether defendant violated his Vargas waiver. During the hearing, defendant argued he did not intentionally violate the Vargas waiver. He told the court he “had full intention to show up” but “missed the bus” and “got a little nervous about coming in.” The court said, “[B]ut you didn’t come in the next day?” Defendant replied, “No, your Honor....” In response, the court said, “Well, now that would have been on purpose, wouldn’t it, not coming in the next day, or the day after that.... [¶]... [¶] At some point, you made a decision not to come to court; did you not?” Defendant replied, “Yes, your honor.”
Based on the evidence, the court found defendant violated the Vargas waiver. The court then sentenced defendant to a total of six years eight months in state prison. To reach the total, the court imposed the upper term of three years on count 1, a consecutive term of eight months on count 3, plus three 1-year terms for the three prior prison terms. At the People’s request, count 2 was dismissed under section 1385.
Before awarding custody credits under section 4019, the court referred the matter to the probation department for a report “to get an accurate count, ” because defendant had “some new 4019” and “some old 4019 credits.” On August 7, 2010, the court held another sentencing hearing on the issue of presentence custody credits under section 4019. Based on a memorandum provided by the probation department, the court calculated defendant’s presentence custody credits under section 4019 using a dual formula as a result of amendments to section 4019 effective January 25, 2010. The court awarded credits at the new, increased rate provided in the amendments for actual days spent in custody after the January 25, 2010 effective date. For actual days spent in custody prior to January 25, 2010, the court awarded credits under the old formula provided in former section 4019.
We note that section 4019 was amended again effective September 28, 2010, to return to the accrual rate for presentence credits in effect prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) In addition, as of this writing, further amendments to section 4019 are being considered by the Legislature. The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Therefore, unless otherwise specified, any reference to section 4019 or the 2010 amendments to section 4019, concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
DISCUSSION
Right to Counsel Advisement
Citing People v. Crayton (2002) 28 Cal.4th 346, defendant contends the trial court had a duty but failed to ask him again at the time of sentencing whether he still wanted to proceed unrepresented. Defendant also believes the trial court should have calculated all of his custody credits at the new, increased rate of two days for every two days in presentence custody, because he was sentenced after the effective date of the amendments to section 4019. In other words, defendant contends the new, increased rate in section 4019 should be applied retroactively to the time he spent in presentence custody prior to the effective date of the amendments. According to defendant, this purported error would not have occurred if the trial court had asked him whether he would like appointed counsel to assist him at the time of sentencing.
Our Supreme Court’s decision in People v. Crayton, supra, 28 Cal.4th 346, is based on section 987. Section 987 requires the court to advise the defendant of his right to counsel if he appears for arraignment without an attorney, even if the defendant was previously advised of the right and expressed an intention to waive counsel throughout the proceeding. (Cratyton, at p. 361.) As defendant acknowledges, it is not necessary for the court to obtain a new waiver “at every subsequent court appearance by the defendant.” (Id. at p. 362.) Once there is a valid waiver, it “ ‘carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.’ [Citation.]” (Ibid.)
Despite the clear implications of Crayton, defendant argues he should have been readvised of his right to counsel at sentencing, because the trial court acknowledged the calculation of custody credits was “confusing” and referred the matter to the probation department. Defendant cites no authority for the proposition that the trial court had a sua sponte duty to readvise defendant of the right to counsel or the risks of self-representation under the facts of this case. The record indicates defendant understood the right to counsel and voluntarily and knowingly waived that right. We were unable to locate anything in the record indicating that defendant’s waiver was a limited one or that he expressed any desire to be represented by counsel after waiving his right.
Presentence Custody Credits Pursuant to Amended Section 4019
Prior to the amendment, effective January 25, 2010, section 4019 allowed a defendant to earn two days of presentence conduct credit for every four days in presentence custody. (Former § 4019.) Effective January 25, 2010, the Legislature amended section 4019 to provide for an increase in the amount of presentence conduct credits to four days for every four days in presentence custody. (Amended § 4019.)
In People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two] (Otubuah), review granted July 21, 2010, S184314, we recently concluded the statutory amendments increasing section 4019 credits are not retroactive to defendants sentenced prior to the January 25, 2010, the effective date of the amendments. Some appellate courts have reached a different conclusion. The issue is presently before our Supreme Court, which has granted review in Otubuah and other similar cases that have addressed the issue, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. While we await guidance from the Supreme Court, we continue to agree with our reasoning and decision in Otubuah.
A “retroactive law” is “[a] legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.” (Black’s Law Dict. (8th ed. 2004) p. 1343, col. 1.) By contrast, a “prospective statute” is “[a] law that applies to future events.” (Black’s Law Dict. (8th ed. 2004) p. 1449, col. 1.)
In this case, the facts and circumstances are distinguishable from those in Otubuah. Defendant was sentenced on August 6, 2010, after the effective date of the amendment to section 4019. On August 27, 2010, the court awarded defendant presentence conduct credits under section 4019 at two separate rates for time spent in custody before and after the January 25, 2010 effective date of the amendments to section 4019. Based on a recommendation by the probation officer in a report prepared August 16, 2010, the court awarded conduct credits at the rate provided in former section 4019 for the 458 days defendant spent in custody prior to the effective date of the amendments. For the 215 days spent in custody after the January 25, 2010 effective date, the court awarded conduct credits at the higher rate provided in the amendments. As noted above, defendant contends the court should have calculated all of his conduct credits at the higher rate, because he was sentenced after the effective date of the amendments.
Whether the increased rate of accrual for presentence custody credits in section 4019, effective January 25, 2011, applies to all or only some of the time defendant spent in custody prior to sentencing is a question of statutory construction. “ ‘The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent.’ ” (People v. Jefferson (1999) 21 Cal.4th 86, 94 .) A de novo standard of review is applied when the trial court’s order turns on the interpretation of a statute. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1288.)
“Conduct credits for presentence custody are credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ (Pen Code, § 2900.5, subd. (a).) It is the duty of the sentencing court to determine ‘the total number of days to be credited...’ for presentence custody. (Pen Code, § 2900.5, subd. (d); [citations].” (People v. Duesler (1988) 203 Cal.App.3d 273, 276.) “The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits.” (Ibid.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity” to be heard. (Id. at p. 277.) In sum, section 4019 credits are either withheld or granted at the discretion of the court at the time of sentencing.
As of January 25, 2010, section 4019 read in part as follows: “(b)(1)... for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned.... [¶]... [¶] (c)(1)... for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established.... [¶]... [¶] (f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....”
We acknowledge the People’s contention there is some support in case law for the use of a dual formula to calculate an increase in credits. (In re Stinnette (1979) 94 Cal.App.3d 800; In re Strick (1983) 148 Cal.App.3d 906; In re Bender (1983) 149 Cal.App.3d 380.) However, these cases are distinguishable because the applicable statutory amendments or enactments at issue expressly provided for the use of a dual formula. For example, the defendant in Strick began serving his sentence on June 3, 1980, and was given credit for presentence custody. Shortly thereafter, he began working as a clerk and continued to work in this capacity throughout his incarceration. Under section 2931, subdivision (a), the defendant qualified to reduce his prison term by one-third for good behavior and participation. (In re Strick, supra, 148 Cal.App.3d at p. 909.) However, effective January 1, 1983, the Legislature enacted a new credit system that awarded worktime credits in place of good behavior credits at a higher rate—for every six months of work, a prisoner would be awarded a six-month reduction from his term of confinement. (Id. at pp. 909-910.) The new rate did not apply to work performed before the effective date of January 1, 1983. However, prisoners who committed crimes and were serving their sentences prior to the January 1, 1983 effective date could waive participation in the old credit system and begin earning credits at the new, increased rate for work performed on or after January 1, 1983. (Id. at p. 910.) Defendant elected to execute a waiver to obtain the benefits of the new system. As a result, a “dual formula” was applied to calculate defendant’s release date. He retained the credits he previously accumulated under the old system and began earning credits at the higher rate as of January 1, 1983. (Ibid.) The appellate court concluded it was not a violation of equal protection for the new rate of credits to apply only to work performed after the January 1, 1983 effective date. (Id. at p. 913.)
Here, the trial court did not state a reason for awarding credits under section 4019 at two different rates, and the probation report does not explain its reasons for recommending the use of a dual formula for calculating the credits. The amendments to section 4019 effective January 25, 2010, do not include any provision from which we could conclude the Legislature intended trial courts to award credits at two different rates depending on whether the time in custody was served before or after the effective date of the amendments. In other words, as written, the amendments do not limit a trial court’s award of credits at the new, higher rate to days spent in custody after the January 25, 2010 effective date. Only the amended version of section 4019 was operative at the time defendant was sentenced on August 27, 2010. Under these circumstances, we believe it was error for the trial court to award the credits at two different rates. Without more, it is our view the trial court should have calculated all of defendant’s conduct credits at the higher rate provided in the amended version of section 4019 effective January 25, 2010, because he was sentenced after the effective date of the amendments. Based on the record, defendant spent 673 days in actual custody from October 1, 2008, the date of arrest, until sentencing was completed on August 27, 2010.
As shown in the probation report dated August 16, 2010, this includes a total of 458 days in custody from October 1, 2008 through January 24, 2010, and another 215 days from January 25, 2010 until August 27, 2010, when the credits were awarded.
DISPOSITION
The judgment is modified to reflect 673 actual days in presentence custody. (§ 2900.5.) The judgment is also modified to reflect presentence conduct credits of 672 days based on the amendments to section 4019 effective January 25, 2010. (Amended § 4019, subds. (b)(1), (c)(1), (f).) The superior court clerk is directed to (1) prepare a new minute order reflecting the modification, (2) prepare an amended abstract of judgment reflecting the modification, and (3) forward certified copies of the new minute order and amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: McKINSTER, J., KING, J.