Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR198995.
McGuiness, P.J.
Appellant Jeffrey McDade appeals from a judgment of conviction following a no contest plea, contending he should have been awarded additional presentence conduct credits under recently amended Penal Code section 4019. He also argues that his period of parole should be reduced because his properly calculated conduct credits added to his period of actual custody exceeds the term to which he was sentenced. We agree and therefore remand the matter to the trial court with instructions to recalculate appellant’s presentence custody credits and reduce his period of parole accordingly.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
The Solano County District Attorney charged appellant with transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), possession for sale of cocaine base while personally armed with a firearm (Health & Saf. Code, § 11351.5; § 12022, subd. (c)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and misdemeanor driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)).
Following a hearing conducted on September 19, 2008, the court found that appellant was not competent to stand trial. Appellant was eventually placed in Napa State Hospital. The court reinstated criminal proceedings on June 1, 2009. Then, on August 24, 2009, appellant was again found not competent to stand trial. On September 23, 2009, the court ordered appellant committed to Metropolitan State Hospital. On March 5, 2010, the court found appellant was competent to stand trial and reinstated criminal proceedings.
On March 11, 2010, the court granted the prosecutor’s motion to amend count 1 of the information to allege possession of a controlled substance. (Health & Saf. Code, § 11379.) On that same date, appellant pleaded no contest to the charges of possessing a controlled substance and being a felon in possession of a firearm. Pursuant to a plea bargain, appellant was promised a two-year prison term with credit for time served.
The court denied probation and sentenced appellant to a term of two years in state prison, composed of the low-term of two years on the charge of possessing a controlled substance with a concurrent two-year mid-term on the charge of being a felon in possession of a firearm. The court awarded appellant a total of 767 days of presentence custody credits, composed of 597 days spent in actual custody plus 170 days of conduct credits pursuant to section 4019. Because appellant’s custody credits exceeded his actual sentence, the court explained that appellant’s sentence was a “paper commitment” and ordered appellant’s immediate release. Appellant was directed to report immediately to the parole office.
Discussion
1. Presentence conduct credits
Former section 4019 provided that a prisoner who had “satisfactorily complied with the reasonable rules and regulations” and had not “refused to satisfactorily perform labor as assigned” was entitled to two days of conduct credit for every four days spent in custody. (Former § 4019, subds. (c), (d) & (f), as amended by Stats. 1982, ch. 1234, p. 4553, § 7 [prisoners are deemed to have served six days for every four days in custody].) In October 2009, the Legislature amended section 4019, effective January 25, 2010, to increase the rate at which qualified prisoners accrue presentence conduct credit. (Stats. 2009, 3d Ex. Sess., ch. 28 (S.B. 18), § 50.) Under section 4019, as amended, a prisoner who is not required to register as a sex offender (§ 290 et seq.), is not being committed to prison for a serious felony (§ 1192.7, subd. (c)), and does not have a prior conviction for a serious felony (§ 1192.7, subd. (c)) or a violent felony (§ 667.5, subd. (c)) is entitled to two days of conduct credit for every two days spent in custody. (§ 4019, subd. (f) [qualified prisoners are deemed to have served four days for every two days in custody].)
Here, even though appellant was sentenced after the 2009 amendment to section 4019 took effect on January 25, 2010, the trial court did not apply the amended version of section 4019 to all the time appellant had spent in custody prior to being sentenced. Instead, at the prosecutor’s urging, the trial court applied former section 4019 to the time appellant spent in custody prior to January 25, 2010, and it applied amended section 4019 to the time appellant had spent in custody from January 25, 2010, to the date of sentencing on March 11, 2010.
Appellant contends the amended version of section 4019 should have been applied to all of the time he spent in custody before being sentenced, including the days he spent in custody before the amendments to section 4019 took effect on January 25, 2010. We agree.
The Penal Code provides that none of its provisions are retroactive unless expressly so declared. (§ 3.) “[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 157.)
In this case, the act or event necessary to trigger application of section 4019 was appellant’s March 11, 2010 sentencing-45 days after the January 25, 2010 effective date of amended section 4019. Retroactive application of Section 4019 was not an issue. The amended version of section 4019 should have been applied to the entirety of appellant’s period of presentence custody. Indeed, because former section 4019 was no longer in effect at the time appellant was sentenced, the trial court had no authority to apply the formula contained in the prior version of the statute.
The Attorney General provides no authority to support the trial court’s two-tiered application of former and amended section 4019. Instead, the Attorney General’s sole argument is that amended section 4019 should not be applied retroactively. That is not the issue before this court. Instead, the issue is whether the amended section applies to all presentence custody when a defendant is sentenced after the effective date of the amendment, even if some portion of the presentence custody predates the amendment’s effective date. As noted above, we conclude that amended section 4019 should have been applied to the entirety of appellant’s period of presentence custody
This issue is currently before our Supreme Court in People v. Brown, review granted June 9, 2010, case number S181963.
2. Period of parole
Appellant next maintains that he is entitled to a reduction of his period of parole “by the amount awarded in presentence credits that exceeds the two-year sentence.” Appellant’s argument is well taken.
Section 2900.5, subdivision (a) provides in relevant part as follows: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant.. . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment .... If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served.” (Italics added.) A “term of imprisonment” is defined in subdivision (c) of section 2900.5 as “any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge....” (Italics added.)
Thus, when subdivisions (a) and (c) of section 2900.5 are read together, days awarded under section 4019 must be credited to the “term of imprisonment, ” which includes both the period of imprisonment and the parole period. In a case such as this one, when the period of actual presentence custody combined with conduct credits exceeds the term to which a defendant was sentenced, the parole period must be reduced accordingly. (See In re Sosa (1980) 102 Cal.App.3d 1002, 1006 [petitioner discharged from parole where his presentence custody period exceeded his prison sentence and his parole period].)
This issue was squarely addressed in In re Ballard (1981) 115 Cal.App.3d 647. In that case, the petitioner sought credit against his term of parole for presentence conduct credits earned but not awarded before his release on parole. (Id. at p. 648.) The court approved the use of those credits to adjust the parole term. (Id. at p. 650.) The court stated: “Even if the defendant has already served some or all of his prison term before the credits have been calculated and applied, a subsequent determination that those credits equal or exceed the assigned prison term will operate to release the defendant from any term of parole. [Citation.]” (Id. at p. 649, fn.*) The court recognized that “[d]eductions from the parole term are expressly authorized” under section 2900.5, pursuant to which “credits may be applied against either or both of the period of incarceration and the parole period....” (Id. at p. 650; see also In re Reina (1985) 171 Cal.App.3d 638, 642 [action seeking custody credits not moot where petitioners released on parole because any credits awarded after release may reduce their parole periods].)
Disposition
The matter is remanded to the trial court with instructions to recalculate appellant’s presentence conduct credits in a manner consistent with this opinion. The trial court shall reduce appellant’s parole term by the number of days his properly calculated presentence custody and conduct credits exceed the two-year prison term to which he was sentenced. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Siggins, J., Jenkins, J.