Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. TA096276, Eleanor J. Hunter, Judge.
Richard L. Fitzer, 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, Lance E. Winters and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
On May 22, 2008, Gregory Leon Parker (defendant) pleaded no contest to one count of grand theft of personal property in violation of Penal Code Section 487, subdivision (a). The trial court sentenced him to the upper term of three years in state prison and added three years for defendant’s three prior prison terms pursuant to section 667.5, subdivision (b). The trial court suspended execution of sentence and placed defendant on formal probation for a period of three years. The terms and conditions of probation included the condition that defendant serve 90 days in county jail. The trial court granted defendant 60 days of actual credits and 30 good time/work time credits for a total of 90 days.
A discussion of the facts surrounding defendant’s offense is not required, since his appeal relates only to sentencing.
All further references to statutes are to the Penal Code unless stated otherwise.
On October 29, 2009, after defendant admitted violating the terms and conditions of his probation, the trial court revoked his probation and imposed the six-year state prison sentence. The trial court granted defendant custody credits of 90 days “original” as well as 49 actual days in custody on the probation violation and 24 good time/work time days for a total of 163 days.
The trial court misspoke on the record and recited an incorrect total of 168 days.
Defendant appeals on the ground that he is entitled to 48 days of good time/work time credits instead of 24 days pursuant to the amendment to section 4019 that took effect on January 25, 2010.
PROCEDURAL BACKGROUND
Defendant was arrested on September 11, 2009, and on October 29, 2009, he admitted that he failed to report to probation for four consecutive months. His suspended sentence of six years was then imposed. He appealed from the judgment on December 24, 2009.
On March 9, 2010, appellate counsel filed a motion in superior court to correct defendant’s presentence credits. He argued that defendant’s case was not yet final because it was still pending on the instant appeal, and the amended section 4019 applied to defendant’s case. Defendant asserts that the superior court denied his motion to change the award of presentence credits on March 15, 2010.
DISCUSSION
I. Defendant’s Argument
Defendant contends that the only question with respect to his award of credit days is whether section 4019 applies retroactively. He argues that, under the bulk of existing case law, the amendment applies to all cases, such as defendant’s, that were not yet final on January 25, 2010. Defendant requests that this court order the correction of his presentence credits award.
II. Relevant Authority
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. (§ 4019, subds. (b), (c).) The credits authorized by section 4019 are collectively known as conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of section 4019 that was in effect in October 2009 when defendant was sentenced, a criminal defendant sentenced to state prison was deemed to have served six days for every four days of actual presentence custody. (Former § 4019, subds. (b), (c), (f); Stats 1982, ch. 1234, § 7, p. 4553.) Under the version of section 4019 that became effective on January 25, 2010, a criminal defendant sentenced to state prison was deemed to have served four days for every two days of presentence custody, as long as he was eligible. (§ 4019, subd. (f).) The exceptions that result in ineligibility are not at issue in defendant’s case. Since defendant filed his briefs, section 4019 has been amended again effective September 28, 2010. The latest version applies only to crimes committed after the effective date. We address defendant’s argument under the version of section 4019 that took effect on January 25, 2010 (interim version).
III. Additional Presentence Conduct Credits Must Be Granted
The amendments to section 4019 that defendant sought to have applied to his case were adopted as part of Senate Bill No. 18, which was introduced at a special session to address a fiscal emergency declared by the Governor on December 19, 2008. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Because the interim version of the statute was not yet in effect at the time of defendant’s sentencing, defendant cannot receive the increased credits this version provided unless it is interpreted to apply retroactively. As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise. (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208–1209.) This principle is codified in section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.)
Respondent argues that the language of section 3 requires the interim version of section 4019 to operate prospectively rather than retroactively because there was no explicit indication of a contrary legislative intent. However, the general rule that “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively... is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada); see also Alford, supra, 42 Cal.4th at p. 753.) Estrada is binding authority and requires an examination of “all pertinent factors” in order to determine the legislative intent with respect to the interim version of section 4019. (Alford, supra, at p. 753.)
In Estrada, the defendant was committed to a rehabilitation center after a narcotics violation, and he later escaped. He was convicted of escape without force or violence in violation of section 4530. (Estrada, supra, 63 Cal.2d at pp. 742–743.) At the time Estrada committed the offense, section 3044 provided that a person who was convicted of violating section 4530 could not be granted parole until such time as he had served at least two calendar years from and after the date of his return to prison following the conviction. (Estrada, supra, at p. 743.) After Estrada committed the offense, but before he was convicted and sentenced, sections 3044 and 4530 were amended to provide that a defendant convicted of escape without force or violence could be eligible for parole in less than two years. (Estrada, supra, at pp. 743–744.) The court held that the amended versions of sections 3044 and 4530 applied to Estrada. (Estrada, supra, at pp. 744, 748, 751.) The court reasoned that “‘[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.’” (Id. at p. 745.)
There is currently a split of authority on the issue of whether the interim version of section 4019 represented a “‘legislative mitigation of the penalty’” for certain crimes, and thus whether it falls within the rule of retroactive application set out in Estrada. (Estrada, supra, 63 Cal.2d at p. 745.) We believe the better reasoned decisions are those holding that the interim version of section 4019 should operate retroactively, since it constitutes an amendatory statute mitigating punishment under Estrada. It clearly operated to reduce the sentences of eligible prisoners by increasing the rate at which a prisoner accrued time to offset his or her sentence. The fact that this mitigation of punishment was achieved by a less direct method than the statutory amendments discussed in Estrada is a distinction without a difference in our view. (See People v. Hunter (1977) 68 Cal.App.3d 389, 392–393 [applying Estrada to amendment allowing award of certain custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [applying Estrada to amendment involving conduct credits].) The Legislature clearly deemed the sentences served after reduction of the conduct credits to be “‘sufficient to meet the legitimate ends of the criminal law’” for qualified prisoners. It follows that the interim version of the statute is to be applied retroactively. (Estrada, supra, 63 Cal.2d. at p. 745.)
We therefore conclude that defendant is entitled to conduct credits in accordance with the interim version of section 4019, in addition to his original 90 days and his actual days after his arrest. Under the interim version, defendant is deemed to have served four days for every two days in local custody. Since he was arrested on September 11, 2009, and sentenced on October 29, 2009, he is entitled to 49 days of actual credits. Under the interim version of section 4019, he is also entitled to 48 days of good time/work time credits. Since the trial court awarded defendant only 24 days of conduct credit, defendant is entitled to an additional 24 days for a total of 187 days of presentence credit.
The number of actual days is divided by two and the remainder is discarded. The result is then multiplied by two to arrive at the number of conduct credits. (See In re Marquez (2003) 30 Cal.4th 14, 25–26 [demonstrating the proper calculation based on the formula for six days being deemed served for every four actually served].)
DISPOSITION
The judgment is modified to award additional presentence credit, as discussed in this opinion. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 24 days of conduct credit for a total presentence credit of 187 days and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DOI TODD Acting P. J. ASHMANN-GERST, J.