Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF060717, Jorge C. Hernandez, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
This is defendant and appellant Dennis Delgado Morales’s second appeal. Defendant had pled guilty to false imprisonment, vehicle theft with a prior vehicle theft conviction, and being a felon in possession of a firearm. He had also admitted that he had suffered four prior prison terms. In return, the remaining allegations were dismissed, and defendant was sentenced to the stipulated term of nine years four months in state prison with credit for time served. (Morales I, supra.)
By order dated October 1, 2010, we took judicial notice of the record in the prior appeal, case No. E049728. (People v. Morales (August 17, 2010, E049728 [nonpub. opn.] (Morales I).) Unless otherwise indicated, the statements of the factual and procedural background of this case come from our opinion in that matter.
Defendant subsequently filed an appeal under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court undertake a review of the entire record. He also filed a personal supplemental brief. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we independently reviewed the record for potential error, found no arguable issues, and affirmed the judgment.
While defendant’s first appeal was pending, defendant filed a motion in the trial court to recalculate his pretrial custody credits pursuant to amended Penal Code section 4019, which became effective on January 25, 2010. The trial court denied that motion on July 30, 2010. Defendant’s sole contention on appeal is that he is entitled to 324 days of additional presentence conduct credits pursuant to amended Penal Code section 4019, which became effective on January 25, 2010, after he was sentenced. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
An amended felony complaint was filed against defendant on March 12, 2008. The amended complaint was based on incidents that occurred on December 22, 2007. A preliminary hearing was held on March 12, 2008. Several witnesses offered testimony implicating defendant and two of his cohorts in committing a vehicle theft with the use of firearms at a used car dealership. After forcing the owner of the car dealership to sign over the pink slips to three vehicles, defendant and his two cohorts each took one vehicle from the car lot. They also kidnapped a woman who was in the office with the owner. One of the suspects eventually let the woman go.
Following the preliminary hearing, defendant was charged in an information with robbery (Pen. Code, § 211) (count 1) with the personal use of a firearm (Pen. Code, § 12022.53, subd. (b)); kidnapping (Pen. Code, § 207, subd. (a)) (count 2); vehicle theft with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)) (count 3); and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 4). The information also alleged that defendant had sustained a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)), a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and four prior prison terms (Pen. Code, § 667.5, subd. (b)).
A jury trial commenced on December 16, 2008. On December 22, 2008, after four days of trial, the trial judge declared a mistrial on the court’s own motion due to an unexpected “death in the [judge’s] family.”
On September 25, 2009, pursuant to a written plea agreement, defendant pled guilty to false imprisonment (Pen. Code, § 236), vehicle theft with a prior vehicle theft conviction, and felon in possession of a firearm. Defendant also admitted that he had suffered four prior prison terms. In return, the remaining allegations were dismissed, and defendant was promised a stipulated term of nine years four months with 972 days of credit for time served.
Defendant requested immediate sentencing, and on that same day, the court sentenced defendant to the agreed term of nine years four months in state prison. To reach the total term, the court imposed the aggravated term of four years on count 3, eight months (one-third the midterm of two years) on count 2, eight months (one-third the midterm of two years) on count 4, and one year each for the four prior prison terms. All other counts and allegations were dismissed and stricken pursuant to the plea agreement.
On July 30, 2010, defendant filed a motion in the trial court seeking additional presentence custody credits pursuant to amended Penal Code section 4019. The trial court denied that motion. On September 16, 2010, defendant filed a notice of appeal from the denial of his motion seeking additional presentence custody credits.
II
DISCUSSION
Defendant contends he is entitled to the enhanced presentence custody credits provided by the amended version of Penal Code section 4019, because the 2010 amendment is retroactive. The People respond defendant waived this issue on appeal by failing to raise it in his first appeal. In the alternative, the People argue that amended Penal Code section 4019 applies prospectively only and that even under retroactive application of the amendment, defendant is not entitled to additional presentence conduct credits because he has a prior conviction for a serious and violent felony. For the sake of judicial economy, we will address defendant’s claim on the merits.
We note that Penal Code section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its wording prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the prior amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019 concerns the amended version of e section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
When the crime was committed, as well as when defendant was sentenced, Penal Code section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former Pen. Code, § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, Penal Code section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
This issue of retroactive application of the current version of Penal Code section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As it will have the last word on the subject, we discuss the issue only summarily.
Under Penal Code section 3, “‘[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. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended Penal Code section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Penal Code Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (Pen. Code, § 2933.3, subds. (b), (c), amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 41, p. 4422.) Implicitly but necessarily, all other enhanced credits for all other defendants are prospective only.
We recognize that, under In re Estrada (1965) 63 Cal.2d 740, “where 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.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.)
We therefore conclude that defendant is not entitled to any additional presentence custody credits.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., KING J.