Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PA056459. Graciela L. Freixes, Judge.
Diana M. Teran; Russell S. Babcock, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Alison Block appeals from the order denying her request for additional presentence credit in accordance with the amendment to Penal Code section 4019, effective January 25, 2010. We reverse the order and remand the matter to the trial court with directions to award Block an additional 154 days of presentence credit for a total of 916 days.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
An information dated April 26, 2007 charged Block with two counts of criminal threats (§ 422) and one count of stalking (§ 646.9, subd. (a)). On May 25, 2007, Block pleaded no contest to the stalking charge, and the criminal threats charges were dismissed. The trial court suspended imposition of sentence and placed Block on five years’ formal probation, including the condition that she complete a 180-day program at one of two specified mental health facilities. Among other fines, the trial court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b).
On November 26, 2008, Block stipulated to a violation of probation based on a complaint that a doctor had filed against her for making criminal threats. The trial court found Block in violation of probation, revoked and reinstated probation, and released Block to a representative of the Sylmar Health and Rehabilitation Center for a minimum of one year.
On July 24, 2009, the trial court held a formal parole revocation hearing based on reports from the Sylmar Health and Rehabilitation Center that Block had exhibited aggressive and obsessive behavior toward the center’s program director. At the hearing the program director testified that Block had made verbal threats and engaged in threatening and stalking-type behavior while at the center. The trial court found Block in violation of probation and revoked probation.
At a later hearing on August 25, 2009, the trial court sentenced Block to the high term of three years in state prison with a recommendation that she be housed in a facility with mental health services. This time, among other fines, the trial court imposed a $500 restitution fine.
Block appealed, contending that her sentence was unauthorized because the trial court imposed a restitution fine of $500 when it sentenced her to state prison, which was greater than the $200 fine originally imposed when it granted her probation. We agreed with Block and modified the judgment to strike the $500 restitution fine and leave intact the original $200 restitution fine. (People v. Block (Apr. 26, 2010, B218967 [nonpub. opn.].)
We granted Block’s request for judicial notice of the record in case No. B218967.
After issuance of our opinion, Block filed a petition for rehearing, requesting that we grant rehearing to award her additional presentence credit in accordance with the amendment to section 4019. We denied her petition without prejudice to her raising the issue in the trial court. (People v. Block (May 18, 2010, B218967 [nonpub. order].)
Block then filed a motion in the trial court requesting the additional presentence credit. Although initially concluding that Block was entitled to the additional presentence credit, the trial court ultimately denied Block’s motion, declining to give retroactive effect to the amendment to section 4019. Block filed the instant appeal.
DISCUSSION
The trial court awarded Block 762 days of presentence credit (303 days for actual time served in a treatment program, 307 days for actual time in custody and 152 days of work and conduct credit). Block contends that she is entitled to the benefit of the amendment to section 4019, which took effect on January 25, 2010, while her original appeal was pending, and would afford her a total of 306 days of work and conduct credit. The People disagree, contending the amendment to section 4019 is not retroactive. We agree with Block.
Former section 4019, subdivision (f), provided that, if a defendant earned work and conduct credit, six days were deemed to have been served for every four days the defendant spent in actual custody. After the amendment, a defendant who earns work and conduct credit now is deemed to have served four days for every two days of actual custody. (§ 4019, subd. (f).) Under the new formula in the amended version of section 4019, Block would be entitled to 154 additional days of work and conduct credit.
The People do not dispute that, if the amendment is retroactive, Block is entitled to benefit from it. Under the former version of section 4019, subdivision (f), providing six days were deemed to have been served for every four days spent in actual custody, Block would receive 152 days of work and conduct credit, calculated by dividing 307, the total number of days she spent in actual custody, by 4 and multiplying that number, less any remainder, by 2 (307 divided by 4 is 76.5; 76 multiplied by 2 is 152). (See People v. Philpot (2004) 122 Cal.App.4th 893, 908 [work and conduct credit calculated under former version of § 4019, subd. (f), “‘“by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two...”’”].) Under the amended section 4019, subdivision (f), providing four days will be deemed to have been served for every two days spent in actual custody, Block is entitled to 306 days of work and conduct credit, calculated by dividing 307 days spent in actual custody by 2 and multiplying that number, less any remainder, by 2 (307 divided by two is 153.5; 153 multiplied by 2 is 306). Because the trial court awarded Block 152 days of work and conduct credit when it initially sentenced her, she is entitled to 154 additional days so that she receives 306 days total.
Although a majority of courts have concluded the amendment to section 4019 is retroactive, there is a split of authority on the issue, and the Supreme Court has granted review of a number of published cases reaching different conclusions on retroactivity, including a case from this Division. In People v. House, supra, 183 Cal.App.4th 1049, review granted June 23, 2010, S182813, we held that the amended section 4019 applies retroactively. While we await guidance from the Supreme Court, we continue to follow our reasoning in House and hold that, because the amendment to section 4019 lessens a defendant’s punishment and no clear legislative intent indicates that it was not to apply retroactively, the amendment retroactively benefits a defendant. (See In re Estrada (1965) 63 Cal.2d 740, 745; In re Chavez (2004) 114 Cal.App.4th 989, 999.) We thus conclude that Block is entitled to the benefit of the amendment, which affords her 154 additional days of work and conduct credit, and order the abstract of judgment corrected accordingly. (See People v. Taylor (2004) 119 Cal.App.4th 628, 647 [“sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered”].)
The lead case in which the Supreme Court has granted review is People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, where the Third District concluded the amendment was retroactive. Other published cases finding retroactivity include People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135 (Third Dist.); People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010, S184782 (Second Dist., Div. Eight); People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010, S184354 (Second Dist., Div. Seven); People v. Weber (2010) 185 Cal.App.4th 337, review granted August 18, 2010, S184873 (Third Dist.); People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (First Dist., Div. Five); People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260 (First Dist., Div. Three); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (First. Dist., Div. Two); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 (Second Dist., Div. One). Published cases finding no retroactivity include People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957 (Second Dist., Div. Four); People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 (Sixth Dist.); People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 (Fourth Dist., Div. Two); People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808 (Fifth Dist.).
DISPOSITION
The order denying Block’s motion for additional presentence credit is reversed, and the matter is remanded to the trial court with directions to award Block 154 additional days of presentence credit for a total of 916 days. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., CHANEY, J.