Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA054452, Michael K. Kellogg, Judge.
Kathleen M. Redmond for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Tommie Mario Day appeals from the trial court’s order denying him additional credit under Penal Code section 4019, as amended in 2009. Defendant contends he is entitled to 63 days of additional credit because his appeal was pending when the amendment became effective. We agree.
BACKGROUND
On May 3, 2007, a jury convicted defendant of selling cocaine. The trial court sentenced him to six years in prison and awarded presentence credit of 126 days for actual custody and 63 days for conduct. Defendant appealed and this court conditionally reversed the judgment and remanded for the trial court to conduct an in camera hearing on defendant’s motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531. (People v. Day (June 27, 2008, B199062 [nonpub. opn.].)
On remand, the trial court conducted the in camera hearing as directed and reinstated the judgment. Defendant again appealed, and this court affirmed in an opinion filed November 19, 2009. (People v. Day (B213739) [nonpub. opn.].) The California Supreme Court denied defendant’s petition for review on February 3, 2010 (S178853), and remittitur issued March 1, 2010.
Defendant filed a written motion in the trial court, asking the court to award an additional 63 days of credit under Penal Code section 4019, as amended in 2009. (All further statutory references are to the Penal Code.) The trial court denied the motion on April 29, 2010, and defendant filed a timely appeal.
DISCUSSION
When defendant was sentenced, former section 4019 provided that he could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) On January 25, 2010, while defendant’s petition for review was pending, the 2009 amendment of section 4019 became effective, authorizing a qualifying defendant to accrue conduct credits at a rate of four days of conduct credit for every four days actually served. (§ 4019, subd. (f).)
Defendant contends that he is entitled to receive additional presentence credit under the 2009 amendment to section 4019. He argues that the judgment in his case was not final until after the amendment went into effect, and he is entitled to receive the benefit of the more generous credit provisions of the amended statute. The Attorney General argues that the amendment to section 4019 cannot be applied retroactively.
The Courts of Appeal throughout the state have reached conflicting decisions on whether the 2009 amendment to section 4019 is to be applied retroactively to cases pending at the time it became effective. The California Supreme Court has granted review in numerous cases addressing the issue—cases both applying the amendment retroactively and declining to do so. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.) We conclude the amendment to section 4019 should be applied retroactively.
When nothing indicates a contrary legislative intent, the general rule regarding retroactivity is set forth in section 3, which provides that no part of the Penal Code is “retroactive, unless expressly so declared.” “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
But section 3 “is not a straightjacket” and “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent, ” even if the Legislature has not expressly stated that a statute should be applied retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Estrada created an exception to the general rule of prospective operation: “[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) That is, it will apply to all judgments of conviction that are not yet final when the amendment goes into effect. (Id. at p. 744.) “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.)
The Attorney General argues that the legislative intent behind conduct credits is to encourage good behavior, and because “it is impossible to influence behavior after it has occurred, ” retroactive application of the 2009 amendment to section 4019 does not advance the purpose of the amendment. People v. Doganiere (1978) 86 Cal.App.3d 237, 239, rejected a similar argument in determining that an amendment to section 2900.5 should be applied retroactively under Estrada. We conclude that the 2009 amendment to section 4019 was intended to lessen punishment because it effectively reduces the actual period of time a defendant must serve before satisfying his sentence. It falls squarely within the scope of the Estrada rule.
In addition, it is clear that the primary purpose of the amendment to section 4019 went beyond encouraging good behavior. Senate Bill No. 18 (2009 portion of 2009-2010 3d Ex. Sess.), which included the amendment to section 4019, explicitly stated, “This act addresses the fiscal emergency declared by the Governor...” (Stats. 2009, ch. 28, § 62), indicating that the primary purpose of the amendment was to reduce the inmate population, and with it, the costs of operating prisons and jails. Applying the amendment retroactively promotes this goal by allowing inmates to be released after a shorter period, thereby reducing the expense of their incarceration.
It is also noteworthy that the same legislation included a saving clause when amending section 2933.3, subdivision (d) [applying increased custody credits for inmate firefighters only to inmates eligible after July 1, 2009]. The inclusion of a saving clause in that section, but not in the amendment to section 4019, supports an inference that the Legislature had a different intent with respect to the retroactive application of the two provisions.
We conclude that defendant is entitled to receive 63 additional days of presentence credit under the 2009 amendment to section 4019.
DISPOSITION
The judgment is modified to reflect the following award of presentence credit: 126 days’ actual credit and 126 days’ conduct credit. As modified, the judgment is affirmed. The trial court is directed to forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: CHANEY, J., JOHNSON, J.