Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR1004868
McGuiness, P.J.
Defendant Jeremy Kevin Bacon contends the trial court erred in applying an incorrect version of Penal Code section 4019 when it calculated his presentence conduct credits. The Attorney General concedes the error and joins in Bacon’s request to adjust his conduct credits. We shall modify the award of conduct credits but otherwise affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
Background
On August 3, 2010, while Bacon was highly intoxicated with a blood alcohol level of 0.33 percent, he took an acquaintance’s three-year old daughter with him on a walk to a mall without the acquaintance’s permission. Police officers arrested Bacon after being dispatched to the mall based upon reports that a man was “ ‘stumbling around’ ” while walking with a young girl.
Bacon pleaded guilty to child endangerment (§ 273a, subd. (a)) and public intoxication (§ 647, subd. (f)). On October 7, 2010, the trial court sentenced Bacon to serve two years in state prison. The court awarded 48 days of presentence credit for time actually served in custody. Over the objection of Bacon’s defense counsel, the court awarded 24 days of conduct credit.
Discussion
Bacon’s sole contention on appeal is that he is entitled to an additional 24 days of presentence conduct credits under former section 4019. The Attorney General agrees that Bacon should have been awarded the additional conduct credits. As we explain, Bacon’s contention and the Attorney General’s concession are well taken.
In 2009, the Legislature amended section 4019 so that, as of January 25, 2010, a defendant would earn conduct credits at a rate of two days for every two-day period served in custody before sentencing. (See former § 4019, subds. (b), (c) & (f), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Subdivision (f) of former section 4019 provides: “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, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c).” It is undisputed that Bacon is not a person described in subdivision (b)(2) or (c)(2) of former section 4019.
Effective September 28, 2010, the Legislature amended section 4019 again to provide that presentence conduct credits would accrue at the rate that had applied before January 25, 2010. (Stats. 2010, ch. 246, § 2.) As amended, section 4019 explained it was the Legislature’s intent that “a term of six days will be deemed to have been served for every four days spent in actual custody.” (§ 4019, subd. (f).) The Legislature clarified that the amended version of section 4019 applied only to defendants who committeda crime on or after the effective date of the amendments. (§ 4019, subd. (g).)
Bacon committed his crimes on August 3, 2010, before the effective date of the 2010 amendments to section 4019. However, he was sentenced on October 7, 2010, after the amendments became effective. It appears the trial court mistakenly believed the amended version of section 4019 applied if sentencing took place after the effective date of the amendments. To the contrary, the statute clarifies that it applies to defendants whose crimes were committed after its effective date. (§ 4019, subd. (g).) Accordingly, Bacon is entitled to receive the “day-for-day” conduct credits allowed by former section 4019. Because he served a total of 48 days in custody before being sentenced, he should have been awarded 48 days of local conduct credit instead of the 24 days he actually received.
Disposition
The sentence is modified to reflect an award of presentence credit totaling 96 days, consisting of 48 days of actual presentence custody credit plus 48 days of local conduct credit. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:, Pollak, J., Siggins, J.