Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. 204524, 206698, 2385207
Dondero, J.
In this appeal defendant seeks an increase in presentence credits under amendments to Penal Code section 4019 that became effective after he was sentenced but before his judgment of conviction will become final. We conclude that section 4019 as amended in 2010 must be given retroactive effect to grant defendant additional sentence credits. We therefore modify the judgment accordingly.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the sole issue on appeal which challenges the award of custody credits, we need not recite the facts pertinent to the offenses.
Defendant entered a plea of guilty to contempt of a court order (§ 166, subd. (a)(4)), and was found guilty following a jury trial of possession of cocaine base for sale (Health & Saf. Code, § 11352, subd. (a)). In a separate case he was found in violation of his probation based on commission of the possession of cocaine base for sale offense, and his probation was revoked. Following a sentencing hearing in both cases on July 24, 2009, defendant was sentenced to an aggregate state prison term of eight years four months, and granted a total of 332 days of presentence credits – 222 actual days served and 110 days of “sage” credits. Pursuant to defendant’s motion to clarify the sentence, the abstract of judgment was subsequently amended to reflect a total of 469 days of presentence credits.
DISCUSSION
Defendant makes the sole claim in this appeal that he is entitled to an award of additional custody credits under the amended version of section 4019, as retroactively applied to his judgment of conviction which is “not yet final.” He points out that the amending legislation which “reduces punishment” has “no savings clause.” He also asserts that retroactive operation of the section 4019 amendments to “defendants already sentenced” promotes the fiscal objective of the statute by “reducing the inmates’ days in custody.” Therefore, defendant maintains that he must be given the “full benefit of amended section 4019.” He asks that we order a modification of the abstract of judgment to reflect an award of “a total of 625 days of presentence credits, ” rather than the total of 469 days awarded by the trial court.
“[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal....” (People v. Babylon (1985) 39 Cal.3d 719, 722.) “ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]’ [Citation.]” (People v. Vieira (2005) 35 Cal.4th 264, 306.)
That is, 313 actual days of custody credits, and 312 days of work and conduct credits.
Under section 2900.5, a defendant sentenced to imprisonment is entitled to presentence custody credits determined according to the formula specified in section 4019. When defendant was sentenced, under the version of section 4019, subdivisions (b), (c), and (f), then in effect, presentence credits were awarded under a formula of one day of work time credit and one day of conduct credit for each six-day period of custody. (§ 4019, subds. (b) & (c).) Effective January 25, 2010, the statute was amended to provide for one day each of work time and conduct credit for every four-day period of custody. (§ 4019, subds. (b) & (c), as amended by Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28, § 50.) The statutory amendments thus essentially doubled the available custody credits for the offenses of which defendant was convicted, among others. (People v. Norton (2010) 184 Cal.App.4th 408, 414, review granted Aug. 11, 2010, S183260 (Norton).)
The issue of the retroactive application of the 2010 amendments to section 4019 has already been the subject of extensive appellate review. Numerous opinions, both published and unpublished, have previously ruled on the issue of the retroactivity of the amendments to section 4019. A split of authority exists, which will be finally resolved in the many appeals now pending before the California Supreme Court or eventually headed in that direction. Cases which occupy the “majority” view to date have taken the position that the section 4019 amendments apply retroactively. (See People v. Bacon (2010) 186 Cal.App.4th 333, 336, review granted October 13, 2010, S184782; see also People v. Keating (2010) 185 Cal.App.4th 364, 369, review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481, 485, review granted July 21, 2010, S183552; Norton, supra, 184 Cal.App.4th 408, 411; People v. Delgado (2010) 184 Cal.App.4th 271, 282; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1052, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, 1363–1364, review granted June 9, 2010, S181963.) Distinctly fewer opinions have decided that the amendments have prospective application only. (See People v. Hopkins (2010) 184 Cal.App.4th 615, 619, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, 432, review granted July 21, 2010, S184314.)
See also a decision from this District, People v. Buntyn (May 21, 2010, A121903) [nonpub. opn.].
Rather than further contribute here to the analytical dialogue on this matter, which has already been quite thorough, we merely express our agreement with the majority of reported decisions, including those from our own Appellate District, that have found the amendments to section 4019 retroactive in effect. (People v. Bacon, supra, 186 Cal.App.4th 333, 336; People v. Pelayo, supra, 184 Cal.App.4th 481, 485; Norton, supra, 184 Cal.App.4th 408, 411.) While we are cognizant of the credible arguments addressed on both sides of the retroactivity issue, as the split of authority would suggest, on balance we are persuaded to follow the reasoning that the statutory amendments reduce the sentence ultimately served for the included offenses, and there is no savings clause in the legislation, so we infer a legislative intent to accord criminal defendants the benefit of mitigation of punishment adopted before their convictions are final. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Bacon, supra, 186 Cal.App.4th 333, 336; People v. Doganiere (1978) 86 Cal.App.3d 237, 239–240; People v. Hunter (1977) 68 Cal.App.3d 389, 393.)
DISPOSITION
The judgment is amended to award defendant a total of 625 days of presentence credits under section 4019, and as so amended the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections and Rehabilitation.
We concur: Marchiano, P. J. Margulies, J.