Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. YA071270 Sandra Thompson, Judge.
William D. Farber, under appointment 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, Scott A. Taryle and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Arthur James Howard appeals from the judgment entered following a jury trial that resulted in his conviction for driving under the influence of alcohol (DUI). Howard was sentenced to a prison term of four years.
Howard contends: (1) the trial court abused its discretion by imposing the upper term; and (2) he is entitled to additional presentence conduct credit due to the amendment of Penal Code section 4019, which went into effect after he was sentenced. The People contend the trial court erred by failing to impose a court security fee pursuant to section 1465.8. We order the judgment modified to add a court security fee as the People request. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On April 2, 2008, at approximately 2:30 p.m., school bus driver Terry Ramirez was merging onto the Interstate 405 Freeway, en route to pick up children from school. She observed Howard driving a white Dodge Caravan in an erratic manner. The van swerved from lane to lane, and nearly hit the school bus. Ramirez observed a beer bottle on the Caravan’s center console next to Howard. She called 911 to alert police, and followed Howard.
As the vehicles continued down the freeway, Ramirez observed the Caravan almost hit another car, causing it to swerve into another lane to avoid the collision. Minutes later, the Caravan drifted towards a large gas tanker, causing the truck to swerve into another lane. Howard almost hit a third vehicle and the center divider when exiting the freeway at the Inglewood Avenue offramp. After exiting the freeway, Howard almost rear-ended another vehicle at the intersection of Artesia and Inglewood Avenues.
Redondo Beach Police Officer Clifford Dean responded to Ramirez’s 911 call. Dean, who was travelling northbound on Inglewood Avenue, observed the Caravan travelling southbound. Ramirez was still following Howard and gestured to Dean, identifying the Caravan as the vehicle about which she had notified police. The Caravan swerved into oncoming traffic and almost ran head-on into Dean’s police car.
Dean initiated a traffic stop. Shortly thereafter, Officer Brian Long arrived and assumed responsibility for the investigation. In addition to the nature of Howard’s driving, a variety of circumstances indicated to both Dean and Long that Howard was under the influence, including: a strong smell of alcohol emanated from Howard’s person; Howard’s speech was slurred; Howard did not respond readily to questions and had difficulty talking; he staggered and stumbled when he exited the Caravan, and walked in an awkward manner; he had extremely bloodshot and watery eyes; he was unable to stand with his legs together; he failed nystagmus tests administered by both officers; and a cold, half-empty, 40-ounce malt liquor bottle was found in a paper bag on the front passenger floorboard. Howard gave a false name and birth date to the officers. He refused to undergo further sobriety tests or any chemical sobriety tests. Both officers opined Howard was driving under the influence of alcohol and unable to safely operate a motor vehicle.
Because Howard’s contentions on appeal relate only to his sentence, we do not set forth the evidence presented by the defense.
2. Procedure.
Howard was charged with driving under the influence of alcohol or drugs (count 1, Veh. Code, § 23152, subd. (a)) and driving with a suspended license (count 2, Veh. Code, § 14601.2, subd. (a)). After a mistrial, Howard pleaded nolo contendere to count 2 and was sentenced to 211 days in jail, with credit for 211 days served. Count 1 was retried by a jury, and Howard was convicted of driving under the influence. In a bifurcated proceeding, the trial court found Howard had suffered three prior convictions for driving under the influence and had served one prior prison term within the meaning of section 667.5, subdivision (b). It sentenced him to four years in prison, comprised of the high term of three years plus a consecutive one-year section 667.5, subdivision (b) enhancement. It imposed a restitution fine and a suspended parole restitution fine. Howard appeals.
DISCUSSION
1. The trial court did not abuse its discretion by sentencing Howard to the upper term on count 1.
As noted, the trial court imposed the upper term of three years on count 1, driving under the influence of alcohol, as well as a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b). Howard contends the trial court erred in two respects: first, by failing to state on the record the reasons for its selection of the upper term, and second, by using the fact of his prior convictions both to elevate the crime to a felony and to impose the upper term sentence. We disagree with both contentions.
a. Additional facts.
At the sentencing hearing, defense counsel argued that Howard’s repeated convictions for driving under the influence were due to his “serious problem with alcohol.” Counsel urged the trial court to place Howard on probation in a residential alcohol treatment program. He pointed out that imposing sentence on a prior conviction, and using that same conviction to impose the high term, would violate section 1170.
The prosecutor countered that Howard had a long history of driving under the influence, beginning with offenses in the 1970’s, but had failed to address his drinking problem or benefit from prior grants of probation. The prosecutor further pointed out that in the charged incident, Howard could easily have hit the school bus, the gas tanker, the police car, or other vehicles, which would have had “serious and potential[ly] fatal consequences.” Although Howard’s license had been suspended, he continued to drive. He had been on probation when he committed the instant offense.
The trial court stated: “Let me just share with you my thinking in this regard. I do notice Mr. Howard has had multiple contacts with the court involving his abuse of alcoholic beverages and his driving. And as I recall the testimony that was offered by [the bus driver], ... describ[ing] his driving, I think it is a miracle nobody was seriously injured by Mr. Howard’s actions....” The court declined to grant probation or place Howard in a residential program. It explained, “The best I can do for you is sentence you to what I believe is the appropriate sentence, notwithstanding your attorney’s arguments, and that’s for 4 years.” It recommended that Howard be given an opportunity to participate in an alcohol treatment program in prison, if one was available.
b. Discussion.
(i) Applicable legal principles.
Section 1170, subdivision (b) states in pertinent part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” In determining the appropriate term, the court may consider the record in the case, the probation report, evidence introduced at the sentencing hearing, and “any other factor reasonably related to the sentencing decision, ” and “shall select the term which, in the court’s discretion, best serves the interests of justice.” (Cal. Rules of Court, rule 4.420(b); § 1170, subd. (b).) A trial court may base an upper term sentence upon any aggravating circumstance the court deems significant, subject to specific prohibitions. Its discretion to identify aggravating circumstances is limited only by the requirement they be reasonably related to the decision being made. (People Sandoval (2007) 41 Cal.4th 825, 848.) However, a fact that is an element of the crime, or that was the basis for a sentence enhancement, may not be used to impose the upper term. (§ 1170, subd. (b); Rule 4.420(c) & (d).)
The trial court “shall state the reasons for its sentence choice on the record at the time of sentencing.” (§ 1170, subd. (c); People v. Sandoval, supra, 41 Cal.4th at pp. 846-847; Cal. Rules of Court, rule 4.420(e) [“The reasons for selecting one of the three authorized prison terms... must be stated orally on the record”].) However, the court is not required “to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances, ” nor must it provide a “ ‘concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation.’ [Citation.]” (People v. Sandoval, supra, at p. 847.)
A trial court’s sentencing decision will not be disturbed on appeal unless it is so irrational or arbitrary that no reasonable person could agree with it. (People v. Jones (2009) 178 Cal.App.4th 853, 860; People v. Carmony (2004) 33 Cal.4th 367, 377.) The court’s “discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (People v. Sandoval, supra, 41 Cal.4th at p. 847.) A court abuses its discretion if it fails to exercise its discretion in sentencing, relies upon irrelevant circumstances, or relies upon circumstances that constitute an improper basis for the decision. (Id. at pp. 847-848.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary, and an appellate court will not substitute its judgment for that of the trial court. (People v. Jones, supra, at p. 861.) “Even if a trial court has stated both proper and improper reasons for a sentence choice, ‘a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]’ ” (Ibid,)
(ii) Purported failure to state the basis for imposition of the upper term.
Howard contends the trial court failed to comply with section 1170, subdivision (b), and California Rules of Court, rule 4.420(e), by failing to state on the record the reasons for its selection of the upper term sentence. We disagree. Howard forfeited any claim based upon the court’s failure to state its reasons because he did not object. (People v. Tillman (2000) 22 Cal.4th 300, 302-303 [in the absence of a timely objection, a reviewing court will not consider “ ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ ”]; People v. Scott (1994) 9 Cal.4th 331, 353; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1511-1512 [by failing to object, appellant forfeited claim upper terms were improper because the trial court failed to state reasons for their imposition].)
In any event, the claim lacks merit. During the sentencing hearing the trial court referenced Howard’s prior multiple instances of driving under the influence and the serious danger his driving posed in the charged crime. Although the court did not state, at the same instant it imposed sentence, that it was selecting the upper term for these reasons, this was the clear import of its comments.
(iii) Dual use of facts.
Howard next argues that the trial court violated the prohibition on dual use of facts. In his view, the court could not treat his prior convictions as aggravating factors because they had already been used to elevate count 1 to a felony. Because the court did so, he avers, imposition of the upper term was an abuse of discretion. We disagree.
Vehicle Code section 23152, subdivision (a) makes it unlawful for any person to drive a vehicle while under the influence of alcohol. Violation of this provision is ordinarily a misdemeanor. (People v. Coronado (1995) 12 Cal.4th 145, 150; People v. Hernandez (2010) 181 Cal.App.4th 404, 406 & fn. 3; People v. Baez (2008) 167 Cal.App.4th 197, 199.) However, driving under the influence may be charged and punished as a felony where the defendant has suffered three or more separate DUI convictions within the preceding 10 years. (Veh. Code, § 23550, subd. (a); People v. Canty (2004) 32 Cal.4th 1266, 1282; People v. Baez, supra, at p. 199.)
The information alleged, and the trial court found, Howard had suffered three prior convictions for driving under the influence in violation of Vehicle Code section 23152, subdivision (a). These convictions were used to elevate the current offense to a felony and to impose the one-year, section 667.5, subdivision (b) enhancement. Therefore, Howard argues that they could not be considered as aggravating factors. (See § 1170, subd. (b); People v. McFearson (2008) 168 Cal.App.4th 388, 395 [the same conviction cannot be used both to impose an aggravated sentenced and a section 667.5, subdivision (b) prison term prior].)
A court may use the same prior to both elevate the current DUI conviction to a felony, and to impose a section 667.5, subdivision (b) enhancement without running afoul of the dual use provision. (People v. Coronado, supra, 12 Cal.4th at p. 149.)
But the trial court did not expressly rely on the three charged convictions as aggravating factors. Instead it referenced Howard’s “multiple contacts with the court involving his abuse of alcoholic beverages and his driving.” A review of Howard’s probation report discloses that, in addition to the three charged DUI convictions, Howard has suffered at least two additional prior DUI convictions, and has had another DUI charge dismissed as the result of a plea negotiation. On this record, we are loath to assume the trial court actually considered the convictions in question in violation of the dual-use rule.
In any event, the improper dual use of the same fact to support imposition of both an upper term and an enhancement does not necessitate resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. (People v. Osband (1996) 13 Cal.4th 622, 728.) Such is the case here. It is settled that a single aggravating factor will support imposition of an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 815; People v. Osband, supra, at p. 728; People v. Jones, supra, 178 Cal.App.4th at p. 863, fn. 7.) Here, additional facts supported imposition of the upper term. The court properly could consider the other prior DUI’s listed in the probation report. A defendant’s recidivism is a relevant factor in considering whether to impose an upper term sentence. (See Cal. Rules of Court, rule 4.421(b).) The court also properly considered the danger Howard’s driving posed to other motorists. As the court pointed out, based on the evidence presented, it was “a miracle” no one was seriously injured as a result of Howard’s conduct. The court’s conclusion that Howard drove dangerously was supported by substantial evidence, in the form of the bus driver’s testimony. The court’s sentencing decision was based upon an individualized consideration of the offense, the offender, and the public interest, was consistent with the letter and spirit of the law, and was in no way arbitrary or capricious. (See People v. Sandoval, supra, 41 Cal.4th at p. 847.)
Howard argues that the trial court could not consider the dangerous nature of his driving as a factor in aggravation because it was an element of the crime. He contends that the manner in which he drove “was a factor to be considered by the jury in determining whether [he] was under the influence.... [¶] To the extent... that appellant’s... manner of driving [was] relied on by the trial court to impose the upper term on count 1, ” the court violated the prohibition on using an element of the crime to impose a greater term. (Cal. Rules of Court, rule 4.420(d).) This analysis is flawed, because the conclusion does not follow from the premise. Danger to other motorists is not an element of driving under the influence. Vehicle Code section 23152, subdivision (a) provides that: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug... to drive a vehicle.” Under the statute’s plain language danger to others is not an element. Likewise, the applicable jury instruction, CALCRIM No. 2110, provides that jurors may consider the manner in which the defendant drove as evidence he or she was under the influence, but does not require a finding of dangerous driving as an element. (CALCRIM No. 2110.) The nature of Howard’s driving was doubtless considered by jurors as a factor in determining whether he was under the influence. But the jury’s consideration of this evidence did not transform it into a statutory element. California Rules of Court, rule 4.420(d) does not require a sentencing court to omit from its consideration any evidence or fact that was relevant to the jury’s determination of guilt. To the contrary, the rule of court, as well as the Penal Code, expressly state that a court may rely on the record in the case when selecting the appropriate sentence. (§ 1170, subd. (b); Rule 4.420(b).) There was no abuse of discretion in imposing the upper term.
CALCRIM No. 2110 provides in pertinent part: “The defendant is charged in Count 1 with driving under the influence of (an alcoholic beverage...) in violation of Vehicle Code section 23152(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant drove a vehicle; [¶] AND [¶] 2. When he drove, the defendant was under the influence of (an alcoholic beverage...)[.] [¶] A person is under the influence if, as a result of (drinking or consuming an alcoholic beverage...), his or her mental or physical abilities are so impaired that he is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. [¶] The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence of (an alcoholic beverage...)[.] However, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.”
2. Howard is not entitled to additional conduct credits under amended Penal Code section 4019.
Section 4019 provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution’s rules and regulations. (People v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3.) A prisoner’s good conduct time is deducted from his or her period of confinement. (§ 4019, subds. (b)(1) & (c)(1).) In October 2009, at an extraordinary session called to address California’s fiscal crisis, the Legislature amended section 4019 to increase the amount of presentence conduct credits available to eligible defendants. (People v. Eusebio (2010) 185 Cal.App.4th 990, 992-993.) Prior to the amendments, section 4019 allowed that a term of six days could be deemed to have been served for every four days spent in actual custody. (Former § 4019, subds. (b) & (c); People v. Eusebio, supra, at p. 993.) Under the amended version of the law, an inmate earns credits at twice the previous rate, that is, a term of four days may be deemed to have been served for every two days spent in actual custody, subject to exceptions not relevant here. (§ 4019, subds. (b)(1), (c)(1) & (f); People v. Eusebio, supra, at p. 993.) The amended version of the law took effect on January 25, 2010. (People v. Eusebio, supra, at p. 992.)
Prisoners who are required to register as sex offenders, who were committed for a serious or violent felony, or who have prior convictions for serious or violent felonies, are not eligible for increased credits under the amended version of the statute. (§ 4019, subds. (b)(2), (c)(2) & (f).)
The amended version of section 4019, subdivision (b)(1) provides, in pertinent part: “Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, 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 by the sheriff....”
Howard was sentenced on January 8, 2009, prior to the amendment’s effective date. He contends that the amendment applies retroactively to cases, such as his, that were not yet final when it took effect, entitling him to the more generous conduct credit accrual provisions of the current version of the statute.
Howard is correct that for purposes of determining the retroactive application of an amendment to a criminal statute, a judgment is not considered final until the passage of the period in which a petition for certiorari may be filed in the United States Supreme Court. (People v. Vieira (2005) 35 Cal.4th 264, 306.)
The question of whether the amendment applies retroactively has been addressed in a number of published opinions and has divided the appellate courts. One line of cases holds that section 4019 has retroactive effect. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, 336; People v. Keating (2010) 185 Cal.App.4th 364, 383.) Another line of authority holds that the amendment must be applied prospectively only. (See, e.g., People v. Eusebio, supra, 185 Cal.App.4th at p. 993.) The question is currently on review before our Supreme Court. We conclude section 4019 does not operate retroactively, and accordingly Howard is not entitled to recalculation of his custody credits.
The California Supreme Court has granted review in numerous cases relating to the issue, including People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314.)
“To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration[.]” (People v. Nasalga (1996) 12 Cal.4th 784, 792.) The Legislature did not specify whether it intended the amendment to section 4019 to have retroactive application. (People v. Eusebio, supra, 185 Cal.App.4th at p. 993.) Therefore, we consider other factors to determine legislative intent. (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).)
Several factors inform our conclusion. Section 3 provides that no part of the Penal Code is retroactive unless expressly so declared. Thus, “ ‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.’ ” (See People v. Grant (1999) 20 Cal.4th 150, 157; People v. Alford (2007) 42 Cal.4th 749, 753; People v. Keating, supra, 185 Cal.App.4th at p. 384.) Section 3 embodies a general rule of construction and “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.” Estrada, supra, 63 Cal.2d at p. 746.) Section 3 applies where, after considering all the pertinent factors, it is not possible to ascertain the legislative intent. (Estrada, at p. 746.)
The leading case addressing the retroactive application of amendments to criminal statutes is Estrada. (People v. Eusebio, supra, 185 Cal.App.4th at p. 994.) Estrada held that when an amendatory statute lessens punishment and contains no savings clause, it operates retroactively in cases in which judgment was not final on the amendment’s effective date. (Estrada, supra, 63 Cal.2d at pp. 744, 748; People v. Eusebio, supra, at p. 994; People v. Keating, supra, 185 Cal.App.4th at p. 385.) Estrada concluded an amendment reducing the penalty for escape should have retroactive effect. The court reasoned: “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.” (Estrada, at p. 745.) In other words, “ ‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’ ” (Ibid,) When a lesser penalty has been deemed sufficient to satisfy the public interest, the Legislature obviously intends that no prisoner remain subject to the original, greater penalty. (Estrada, supra, at p. 745; People v. Keating, supra, at p. 385.) “In these circumstances, ‘the rule of construction that statutes are normally to be interpreted to operate prospectively and not retroactively... has been rebutted.’ [Citations.]” (People v. Keating, supra, at p. 385; Estrada, at p. 747.)
Estrada’s rationale does not readily fit the amendment to section 4019. Unlike the law at issue in Estrada, the amendment to section 4019 does not lessen the penalty for a particular substantive crime, and consequently does not easily allow the inference of a legislative judgment that the “former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” (Estrada, supra, 63 Cal.2dat p. 745.) The amendment to section 4019 “does not reduce punishment as such and is different from the reduction in prison terms” at issue in Estrada. (People v. Eusebio, supra, 185 Cal.App.4th at p. 994.) The “primary purposes of conduct credits for prison inmates are to encourage conformity to prison regulations, to provide incentives to refrain from criminal, particularly assaultive, conduct, and to encourage participation in ‘rehabilitative’ activities. [Citations.]” (People v.Austin (1981) 30 Cal.3d 155, 163; People v. Brown (2004) 33 Cal.4th 382, 405 [“ ‘section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody’ ”]; People v. Silva (2003) 114 Cal.App.4th 122, 128.) Applying the amendment retroactively would not further the statutory objective of rewarding good behavior, in that it is not possible to influence behavior after it has occurred. An increase in conduct credits is not, in our view, equivalent to a mitigation in punishment.
Further, the Legislature knew how to provide for retroactivity if it so intended. Senate Bill No. 18, the legislation that amended section 4019, expressly provided for retroactive application of another portion of the law, that is, enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009. (§ 2933.3, subd. (d), as amended by § 41, Sen. Bill No. 18.) “For these prisoners, the newly enhanced credit for prison time will apply retroactively for the period between July 1, 2009, and January 25, 2010.” (People v. Eusebio, supra, 185 Cal.App.4th at p. 995.) By expressly providing for limited retroactivity in section 2933.3, subdivision (d), it may reasonably be inferred that the Legislature intended that other changes to the presentence custody scheme would not operate retroactively. (People v. Eusebio, supra, at p. 995.)
Howard asserts Estrada applies, pointing to People v. Hunter (1977) 68 Cal.App.3d 389 and People v. Doganiere (1978) 86 Cal.App.3d 237. In Hunter, the question was the retroactivity of a 1976 amendment to section 2900.5 that allowed time spent in custody to be counted as actual time against a sentence subsequently imposed as a condition of probation. (People v. Hunter, supra, at p. 392; see also People v. Keating, supra, 185 Cal.App.4th at p. 386.) Hunter concluded, based on Estrada, that the amendment was retroactive. (People v. Hunter, supra, at p. 392.) It reasoned that the amendment “must be construed as one lessening punishment, as the term is used in Estrada.” (Id. at p. 393.) Hunter acknowledged that Estrada dealt with a statute lessening the maximum sentence for a particular crime, while the amendment to section 2900.5 concerned credit against a lesser sentence imposed as a condition of probation, but found this distinction legally insignificant. (People v. Hunter, supra, at p. 393; see also People v. Sandoval (1977) 70 Cal.App.3d 73, 87-88 [following Hunter in the context of credits for time served in the custody of the Youth Authority as a condition of probation].) Hunter is distinguishable, however, because it addressed credit for actual time in custody before sentencing, not conduct credit. Credits based on conduct, as opposed to actual time served, are intended as an incentive for good behavior. A statute governing conduct credit, because of its incentive effect, is legally distinguishable from statutes that reduce punishment in other ways.
In Doganiere, the issue was the retroactivity of an amendment to section 2900.5 that authorized conduct credit, for time served in jail as a condition of probation, against a sentence later imposed after a probation violation. (People v. Doganiere, supra, 86 Cal.App.3d at pp. 238-239.) Doganiere concluded the amendment was retroactive. (Id. at p. 240.) The court rejected the argument that the amendment was not retroactive because conduct credits were an incentive for future inmate behavior, a goal that could only be accomplished through prospective application. (Id. at pp. 239-240.) On this point, we disagree with Doganiere. In any event, we view the Legislature’s express inclusion of a retroactivity provision in another portion of the statute, discussed ante, as strong evidence of a legislative intent that the amendment at issue here operate prospectively only.
In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded the amendments to section 4019 are not retroactive.
3. Court security fee.
The People point out that the trial court erroneously failed to impose a court security fee at sentencing. As Howard appropriately concedes, this omission may be corrected on appeal. When Howard was sentenced, former section 1465.8, subdivision (a)(1) provided, “[t]o ensure and maintain adequate funding for court security, a fee of twenty dollars ($ 20) shall be imposed on every conviction for a criminal offense....” (See People v. Wallace (2004) 120 Cal.App.4th 867, 871.) “[S]ection 1465.8 unambiguously requires a fee to be imposed for each of defendant’s convictions. Under this statute, a court security fee attaches to ‘every conviction for a criminal offense.’ ” (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) Accordingly, we order the judgment modified to reflect imposition of a $20 court security fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
DISPOSITION
The judgment shall be modified to impose a court security fee of $20 pursuant to former section 1465.8. The clerk of the superior court is ordered to forward an amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.
The amended version of subdivision (c)(1) provides, in relevant part: “Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, 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 by the sheriff....”
The amended version of subdivision (f) 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....”