Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 200778
Haerle, J.
I. INTRODUCTION
Appellant Cherie Harding pleaded guilty to possession of a controlled substance in 2007 (Health & Saf. Code, § 11351) and was placed on probation for three years. Following a contested hearing in 2009, the court revoked her probation and sentenced her to the low term of two years in state prison with 313 days credit. Appellant contends that amended Penal Code section 4019 should apply retroactively to increase her presentence credits. We agree.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2007, appellant and co-defendant Kevin Harding were charged with several drug possession and sale offenses with firearm enhancements after San Francisco police searched their hotel room and discovered the contraband. Appellant pleaded guilty to one count of possession of oxycodone in violation of Health and Safety Code section 11351; the remaining charges were dropped and she was granted probation.
On March 31, 2009, appellant was arrested for possession of multiple controlled substances for sale in violation of Health and Safety Code sections 11351 and 11378. On April 3, 2009, the San Francisco District Attorney filed a motion to revoke appellant’s probation, based on the arrest and probation violation. At the contested probation revocation hearing and concurrently held preliminary hearing, the following evidence was presented.
On March 31, 2009, San Francisco Police Officer Schaffer received a phone call from an unknown female who wanted to purchase Oxycontin from Schaffer, believing he was someone else. Schaffer agreed and stated that he wanted an ounce of methamphetamine in exchange. The female caller said she would have to talk to “Larry, ” and that she would get back to him. Later that day, Schaffer received a text message arranging a meeting. The message instructed Schaffer to meet the woman and “Larry” at the All Star Donut and to bring the “Ocs” and $1,650 for the ounce.
Officers Schaffer, Valdez and Ellis arrived at the All Star Donut about an hour later, as instructed, and met appellant and co-defendant Lawrence Bourgeois. Valdez saw that appellant had her purse open on her lap, and he immediately identified what appeared to be an ounce of methamphetamine in the purse. Appellant also had several other pill bottles, the contents of which were later determined to be hydrocodone, Oxycontin, oxycodone, and methadone. In addition, the officers found a small amount of methamphetamine in Bourgeois’ pocket, and packaging material and a digital scale in his backpack.
Valdez testified that he believed appellant possessed the drugs for sale for several reasons: (1) based on the dates of the prescriptions, the pill bottles should still have contained most of the pills; (2) there was no prescription for the methadone; (3) the large quantity of pills; and (4) the location where the meeting took place was known for its high rate of drug trafficking.
At the conclusion of the hearing, the trial court revoked appellant’s probation and sentenced her to two years in state prison for one count of possession of a controlled substance. She was given a total of 313 days credit, comprised of 209 actual days credit and 104 work and conduct credits.
On October 8, 2009, appellant filed a timely notice of appeal.
III. DISCUSSION
Under section 2900.5, a criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit for good behavior and work performance (collectively, conduct credit). (§ 4019, subds. (b), (c); People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under former section 4019, which was in effect when appellant was sentenced, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.)
In October 2009, the Legislature amended section 4019, effective January 25, 2010, to double the rate at which qualified prisoners may accrue presentence conduct credit. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Under section 4019, as amended, a prisoner who is not required to register as a sex offender as provided in sections 290 et seq. and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), is entitled to accrue conduct credit at the rate of four days for every four days of presentence custody. (§ 4019, subd. (f).)
Respondent raises no argument that appellant is ineligible for additional conduct credit under amended section 4019. Accordingly, we assume that she is not required to register as a sex offender, and that she has not been convicted of a serious or violent felony, and is otherwise qualified for additional credit under section 4019.
Appellant served 209 days in presentence confinement and was awarded an additional 104 days of conduct credits under former section 4019 for total presentence custody credits of 313 days. She contends that the amendment applies retroactively and, because her conviction was not final on January 25, 2010, she is entitled to 104 days of additional presentence conduct credit under the amended statute. The People argue that the amendment does not apply retroactively and, therefore, the lower court properly calculated appellant’s conduct credit based on former section 4019.
“[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.” (People v. Vieira (2005) 35 Cal.4th 264, 306.)
By the time this case was fully briefed, only two Courts of Appeal had addressed whether the amendment should be given retroactive application. Earlier this month, the Supreme Court granted review in both cases. (See People v. Brown (2010) 182 Cal.App.4th 1354, rev. granted June 9, 2010 (Brown) [amendment is retroactive]; People v. Rodriguez (2010) 183 Cal.App.4th 1, rev. granted June 9, 2010 (Rodriguez) [amendment applies prospectively only].)
A number of other courts have now weighed in on this issue. Holding in published opinions that the amended statute applies retroactively, in addition to the Brown court, are People v. House (2010) 183 Cal.App.4th 1049, 1057; People v. Delgado (2010) 184 Cal.App.4th 271; People v. Keating (2010) ___ Cal.App.4th ___ [2010 WL 2252631]; People v. Landon (2010) 183 Cal.App.4th 1096 (Landon); People v. Norton (2010) 184 Cal.App.4th 408; People v. Pelayo (2010) 184 Cal.App.4th 481; and People v. Weber (2010) ___ Cal.App.4th ____ [2010 WL 225738]. Holding to the contrary, that the amendment applies prospectively only, are People v. Eusebio (2010) ___ Cal.App.4th ____ [2010 WL 2436500]; People v. Otubuah (2010) 184 Cal.App.4th 422; and People v. Hopkins (2010) 184 Cal.App.4th 615, in addition to the Fifth Appellate District in Rodriguez.
As noted above, this court has already held in Landon that the amended statute applies retroactively, and nothing in respondent’s brief or the intervening case law persuades us that we were incorrect. In accordance with amended section 4019, appellant is entitled to an additional 104 days of conduct credits for a total of 417 days.
In light of our conclusion, we need not decide whether the failure to award appellant conduct credits under the formula prescribed by amended section 4019 would violate her equal protection rights.
IV. DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 104 days of conduct credit for a total presentence credit of 417 days, and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation.
We concur: Kline, P.J.Lambden, J.