Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge.
Leonard J. Klaif, 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, Meredith Strong and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Perrie Dean Bacon, Jr., contends the trial court erred by awarding Penal Code section 4019 conduct credits at two separate rates between periods before and after an amendment to that section became effective. We modify the judgment to award additional credits and affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On August 22, 2007, defendant pled guilty to possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) On March 20, 2008, judgment was withheld and he was placed on probation.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.)
Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2009-2010, ch. 426, § 5.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.
On June 4, 2010, defendant admitted violating his probation by consuming alcohol and was sentenced to the midterm of two years in state prison. The trial court awarded “credits of 266 actual days, 166 conduct, for a total of 432 days, credit for time served. [¶] For the record, that involves old 4019 credits up until January 25th, 2010, and new 4019 credits after that.”
On September 10, 2010, the trial court denied defendant’s request to recalculate his section 4019 credits.
DISCUSSION
Prior to January 25, 2010, section 4019 provided for “two days [of conduct credit] for every four days the defendant is in actual presentence custody.” (People v. Duff (2010) 50 Cal.4th 787, 793.) The January 25, 2010 amendment provided for the granting of two days of conduct credit for every two days of presentence custody. (Amended § 4019, subd. (f).)
The amendment’s increase does not apply “[i]f the prisoner is required to register as a sex offender... was committed for a serious felony... or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.” (Amended § 4019, subds. (b)(2) & (c)(2).)
Defendant contends that because amended section 4019 was operative prior to the date of his sentencing, all of his credits should have been calculated under amended section 4019. The People contend credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation “is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5, ” and that a contrary interpretation would create equal protection violations.
“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere... ‘prior to the imposition of sentence’ may also be eligible for good behavior credits.... ‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing, ’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]” (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)
Section 4019 conduct credits are neither earned per segment, e.g. per four- or two-day period, nor available “ ‘ “all or nothing.” ’ ” (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).) Instead, they “are credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ [Citation.] It is the duty of the sentencing court to determine ‘the total number of days to be credited...’ for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to... section 4019 credits. [Citation.]” (Duesler, supra, 203 Cal.App.3d at p. 276.) “If the record fails to show that defendant is not entitled to such credits... he shall be granted them.” (Johnson, supra, 120 Cal.App.3d at p. 815.) Thus, section 4019 credits are not accumulated and are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
Amended section 4019 contains no provision for a two-tiered division of presentence custody credits, and was the only version of section 4019 operative at the time of defendant’s sentencing. Thus, the trial court’s discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because “the record fails to show that defendant is not entitled [to conduct credits], he shall be granted them” (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
We reject the People’s contention that applying amended section 4019 to all presentence custody defeats the purpose of conduct credits or creates equal protection violations. Underlying the People’s contentions are the premises that a defendant sentenced on January 26, 2010, could not have had their behavior in custody influenced by the availability of increased conduct credits, and would receive more credits than an eligible defendant sentenced on January 24, 2010. However, regardless of whether a defendant was sentenced before or after amended section 4019 became operative, section 4019 served its purpose of rewarding good behavior; defendants sentenced after the amendment became effective merely had an increased reward. Furthermore, the distinction between defendants sentenced before and after the amendment became effective, is a rational one as it is based upon a temporal distinction. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 189 [“ ‘punishment-lessening statutes given prospective application do not violate equal protection’ ”]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
Accordingly, because defendant had served a total of 266 days in local custody prior to being sentenced to state prison, he was entitled to 266 days of section 4019 credit. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating preamendment formula for calculating conduct credits].)
DISPOSITION
The judgment is modified so that defendant has presentence credit for time served of 532 days, consisting of 266 actual days, and 266 days of section 4019 conduct credit. The superior court clerk is directed to prepare a new minute order and amended abstract of judgment reflecting the modifications, and then forward certified copies of the minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., KING, J.