Opinion
D057503
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. LOUIS LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. JCF19695)
APPEAL from an order of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Reversed and remanded with directions.
INTRODUCTION AND BACKGROUND
A jury convicted Louis Lopez of drug-related crimes and found true related enhancement allegations. (Pen. Code, § 182, subd. (a)(1), Health & Saf. Code, §§ 11352, subd. (b), 11370.4, subd. (a)(4).) Lopez also admitted having a prior prison conviction (Pen. Code, § 667.5, subd.(b)). The trial court sentenced Lopez to 22 years in prison. Lopez appealed and we subsequently affirmed the trial court's judgment. (People v. Lopez (May 25, 2010, D054447) [nonpub. opn.].)
Further statutory references are also to the Penal Code unless otherwise stated.
While Lopez's prior appeal was pending, the Legislature amended section 4019 to allow jail inmates to earn additional presentence conduct credit. Lopez filed a motion in the trial court seeking additional presentence conduct credit under the amended statute. The trial court denied the motion and Lopez appeals from the denial order. We reverse and remand the matter to the trial court with directions to determine any additional presentence conduct credit to which Lopez may be entitled under the amended statute.
DISCUSSION
At the time of Lopez's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence conduct credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, p. 595, amended by Stats. 1978, ch. 1218, § 1, p. 3941; Stats. 1982, ch. 1234, § 7.) If a defendant earned all of the available presentence conduct credit, the defendant would be deemed under former subdivision (f) of section 4019 to have served six days for every four days spent in actual custody.
Amendments to section 4019, effective from January 25, 2010 through September 27, 2010 (amended section 4019), allowed a defendant to earn up to two days of presentence conduct credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.) If a defendant earned all of the available presentence conduct credit, the defendant would be deemed to have served four days for every two days spent in actual custody. (Amended § 4019, subd. (f).)
Lopez contends amended section 4019 applies retroactively to his case and, therefore, he is entitled to additional presentence conduct credit. Appellate courts have had differing views about this issue. Some appellate courts have held amended section 4019 applies retroactively because the amendments mitigate punishment. Others have held amended section 4019 does not apply retroactively because the Legislature inferably did not intend it to apply retroactively. The issue is currently being reviewed by the California Supreme Court. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) Absent further guidance from the Supreme Court, we conclude the former view is more persuasive than the latter view. Accordingly, we conclude amended section 4019 applies retroactively to this case.
DISPOSITION
The order denying Lopez's motion for additional presentence conduct credit is reversed. The matter is remanded to the trial court with directions to determine any additional presentence conduct credit to which Lopez may be entitled under amended section 4019 and to modify the abstract of judgment accordingly. The trial court is further directed to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
MCCONNELL, P. J. WE CONCUR:
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MCINTYRE, J.
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O'ROURKE, J.