Opinion
D058088
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. KEVIN M. TURNER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF-24256)
APPEAL from a judgment of the Superior Court of Imperial County, Donal B. Donnelly, Judge. Affirmed in part and reversed in part with directions.
Kevin M. Turner pleaded guilty to the unlawful driving or taking of a vehicle (Veil. Code, § 10851, subd. (a)). In exchange, the trial court dismissed two counts of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of commercial burglary (§ 459). The court granted Turner 36 months of probation, with the condition that he serve 580 days in local custody, consisting of 321 presentence days actually served and 259 presentence behavior credit days.
All further statutory references are to the Penal Code.
On appeal, Turner's sole contention is that the court erred by not basing all of his presentence credit days on recent amendments to section 4019, which were in effect when he was sentenced, and which he asserts apply retroactively. We agree on the retroactivity issue, and thus we remand the matter to the trial court for its determination of any additional credits to which Turner may be entitled and for any necessary modification of the abstract of judgment. In all other respects, we affirm the judgment.
BACKGROUND
In September 2009 a United States Department of Agriculture facility was broken into and ransacked. The keys to a van were taken from a desk drawer, and the van was missing from the parking lot. The van was recovered at a border patrol checkpoint and Turner was arrested.
DISCUSSION
Former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credits 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, p. 4553.) If a defendant earned all of the available credit, the defendant would be deemed under former subdivision (f) of section 4019 to have served six days for every four days spent in custody. Former section 4019 was in effect when Turner was arrested.
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 behavior 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 credit, the defendant would be deemed to have served four days for every two days spent in custody. (Amended § 4019, subd. (f).) This provision was in effect when Turner was sentenced.
Here, the court used a two-tiered method of calculating Turner's credit days. It gave him credits under former section 4019 from the date of his arrest to the date amended section 4019 became effective, and credits under amended section 4019 from that date to the date of sentencing. Turner contends there is no authority for the two-tiered method, and the court was required to calculate credits based exclusively on amended section 4019 since it was in effect when he was sentenced. Alternatively, he asserts the court erred by finding amended section 4019 does not apply retroactively to cover his entire presentence confinement.
We decide the issue on the ground of retroactivity. There is a conflict among appellate courts on the matter. Some courts have held amended section 4019 applies retroactively because it mitigates punishment, and other courts have held amended section 4019 does not apply retroactively because the Legislature inferably did not intend retroactive application. The California Supreme Court is currently reviewing the issue. (See, e.g., People v. Brown, review granted June 9, 2010, S181963.) Absent further guidance from the Supreme Court, we conclude the view favoring retroactivity is more persuasive.
DISPOSITION
The matter is remanded to the trial court for resentencing. The court is directed to determine any additional presentence credits to which Turner may be entitled under amended section 4019 and to modify the abstract of judgment accordingly. The court is further directed to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
MCCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
HALLER, J.