Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV801644. Jon D. Ferguson, Judge.
Richard J. Moller, 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, Gil Gonzalez and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant Ryan Anthony Barba contends the trial court erred when it recalculated his sentence to apply the increased conduct credits provided by the amendments to Penal Code section 4019 only to the days he spent in custody on and after January 25, 2010, the effective date of the amendments. We modify the judgment to award additional credits for days defendant was in custody prior to that date and affirm.
All section references are to the Penal Code unless otherwise indicated.
Background
On February 5, 2009, defendant pled guilty to two counts of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and admitted a prior auto theft conviction (§ 666.5). On February 6, 2009, the trial court suspended imposition of sentence and granted defendant probation. On September 18, 2009, the court ordered defendant’s probation revoked. Defendant was taken into custody. On November 20, 2009, probation was reinstated. On January 22, 2010, the trial court again revoked defendant’s probation. Defendant was taken into custody.
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 April 4, 2011, section 4019 was yet again amended. (Stats. 2011-2012, ch. 15, § 482.) However, the operation of this latest amendment is conditional on the creation and funding of a community corrections grant program. (Id. at § 636.)
On February 19, 2010, the court sentenced defendant to four years in state prison. The court awarded defendant 307 days of custody credit and 307 days of conduct credit under the newly-revised section 4019, which increased conduct credits from two days for every four days of custody to two days for every two days of custody. The court applied the new credits retroactively to defendant’s entire 307 days of custody.
On May 24, 2010, defendant moved to recalculate his credits under section 2900.5 to include 150 days he had spent in a court-ordered rehabilitation program. The court granted the motion on June 3, 2010. In the meantime, this appellate court held that the conduct-credit amendments to section 4019 do not apply retroactively. Over defendant’s objection at the June 3 motion hearing, the trial court reduced defendant’s conduct credits for the days he spent in custody prior to January 25, 2010. The trial court left in place the increased conduct credits for the days he spent in custody from January 25, 2010 to February 19, 2010, the date of sentencing. This reduced defendant’s conduct credits from 307 to 166. Defendant appealed.
People v. Otubuah (2010) 184 Cal.App.4th 422, 432, review granted July 21, 2010 in S184314.
Discussion
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) 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.” (Duff, at p. 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 he is retroactively entitled to the benefits of amended section 4019, as the trial court ordered when it initially sentenced him. The People contend the amendment is prospective only. We hold that, because amended section 4019 was in effect at the time of sentencing, the trial court should maintain its initial award of conduct credits for the entirety of defendant’s presentence custody pursuant to the terms of amended section 4019. (See People v. Sandoval (2007) 41 Cal.4th 825, 845 [“a change in procedural law is not retroactive when applied to proceedings that take place after its enactment”].)
“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 Penal Code 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, at p. 815.) Thus, section 4019 credits 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 it 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. Underlying the People’s contention is the premise 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 incentive.
Accordingly, because defendant had served a total of 307 days in local custody prior to sentencing, and there was no showing that he was not entitled to conduct credits, he was entitled to 307 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 764 days, consisting of 457 actual days (of which 150 were served in court-ordered rehabilitation for which conduct credit is not available), and 307 days of section 4019 conduct credit. The superior court clerk is directed to (1) prepare a new minute order reflecting the modification, (2) prepare an amended abstract of judgment reflecting the modification, and (3) forward certified copies of the new minute order and amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.