Opinion
B228647
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY BATTLE, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney general, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and E. Carlos Dominguez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA086908)
APPEAL from a judgment of the Superior Court of Los Angeles County. Wade Olson, Commissioner. Modified and affirmed with directions.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney general, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and E. Carlos Dominguez, Deputy Attorney General, for Plaintiff and Respondent.
David Anthony Battle appeals from the trial court's order denying him additional credit under Penal Code section 4019, as amended in 2009. Battle argues that he is entitled to 23 days of additional credit, because his appeal was pending when the 2009 amendment to section 4019 became effective. We agree.
All subsequent statutory references are to the Penal Code.
BACKGROUND
On July 1, 2009, pursuant to a plea bargain, Battle pleaded guilty to nine counts of receiving stolen property, second degree burglary of a vehicle, grand theft exceeding $400, possession of ammunition, and identity theft. The trial court sentenced Battle to five years in prison and gave him 69 days of total presentence credit: 46 days actual custody, and 23 days of conduct credits. Battle appealed, arguing that he was entitled to additional presentence credit. This court affirmed in an opinion filed September 28, 2010, directing Battle to raise his claim for recalculation of presentence custody credits in the trial court, as provided in section 1237.1. (People v. Battle (B218382) [nonpub.
While the appeal was pending, Battle filed in the trial court a pro se "Ex Parte Motion for Amended Abstract of Judgment for Presentence Credits to Include Conduct Credits Pursuant to Penal Code Section §2900.5 and Amended Penal Code Section §4019 and Memorandum of Points and Authorities." The trial court denied the motion as Battle's appeal was pending.
Battle filed a motion to correct presentence credits on January 31, 2011, asking the trial court to award him an additional 23 days of credit under section 4019, as amended in 2009. The trial court denied the motion on January 31, 2011. Battle filed this timely appeal.
DISCUSSION
When the trial court sentenced Battle on July 1, 2009, former section 4019 provided for one day of work time credit and one day of good behavior credit for each six-day period of custody. (Former § 4019, subds. (b), (c).) If a defendant earned conduct credits, six days were deemed to have been served for every four days the defendant spent in actual custody. (Former § 4019, subd. (f).) Effective January 25, 2010, section 4019 was amended to provide for one day of work time and one day of conduct credit for each four-day period of custody. (Interim § 4019, subds. (b)(1), (c)(1).) In addition, a defendant who had earned conduct credits was deemed to have served four days for every two days of actual custody. (Interim § 4019, subd. (f).) As a result, a qualifying defendant could accrue conduct credits at a rate of four days of conduct credit for every four days actually served.
Effective September 28, 2010, the statute was again amended to restore the former two-for-six formula as to all prisoners. (Stats. 2010, ch. 426, § 2.) By its terms, however, this latest amendment applies only to offenses committed after its adoption. (§ 4019, subd. (g).) In this opinion, "former" section 4019 refers to the version that was in effect prior to January 25, 2010. (Stats. 1982, ch. 1234, § 7.) "Interim" section 4019 refers to the amendment effective January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
Battle contends that he is entitled to receive 23 days of additional conduct credit under the 2009 amendment to section 4019. He argues that he is entitled to receive the benefit of the 2009 amendment, which went into effect while his initial appeal was pending (and his judgment was not yet final). The Attorney General argues that the 2009 amendment to section 4019 does not apply retroactively to cases pending at the time the amendment became effective.
Courts of Appeal throughout the state have reached conflicting decisions whether the 2009 amendment to section 4019 is to be applied retroactively to cases pending at the time that the amendment became effective. The California Supreme Court has granted review in numerous cases addressing the issue—cases both applying the 2009 amendment retroactively and declining to do so. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.) In People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813, we held that the 2009 amendment to section 4019 applied retroactively. While we await guidance from the Supreme Court, we will continue to abide by our conclusion in House that as the 2009 amendment to section 4019 lessens a defendant's punishment and no clear legislative intent indicates that the amendment was not meant to apply retroactively, the 2009 amendment retroactively benefits a defendant. (See In re Estrada (1965) 63 Cal.2d 740, 745-746; In re Chavez (2004) 114 Cal.App.4th 989, 993.) It is well established that unless an application that is wholly prospective is required by statute, "a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense." (People v. Babylon (1985) 39 Cal.3d 719, 725.) This rule applies in any criminal proceeding that has not reached final disposition at the time the statute is amended. Accordingly, the lesser punishment must be imposed if the judgment is not final when the amendment becomes effective. (People v. Vasquez (1992) 7 Cal.App.4th 763, 768; In re N.D. (2008) 167 Cal.App.4th 885, 891.) We conclude the 2009 amendment to section 4019 should be applied retroactively.
DISPOSITION
The judgment is reversed only as to the calculation of Battle's presentence custody credits. The court shall amend the abstract of judgment to reflect 92 total presentence credits (credit for 46 actual custody days, plus 46 conduct credits), and forward the amended abstract to the California Department of Corrections. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
CHANEY, J.