Opinion
E051293 Super.Ct.No. FSB803438
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. CATHERINE JOAN MARIE BUSS, Defendant and Appellant.
Ann Bergen, 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, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed as modified.
Ann Bergen, 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, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Catherine Joan Marie Buss contends she was entitled to have all of her Penal Code section 4019 conduct credits calculated based on the version of that statute that was in effect at the time of her sentencing. We modify the judgment to award the additional credits she requests and affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On August 29, 2008, defendant pled guilty to grand theft of property. (§ 487, subd. (a).) On September 29, 2008, pursuant to a plea agreement, the trial court imposed the midterm of two years in state prison, suspended imposition of the sentence, and placed defendant on probation.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On June 21, 2010, defendant admitted she violated her probation and the suspended sentence was imposed. Defendant had spent 160 actual days in local custody prior to January 25, 2010, and 10 actual days after January 25, 2010. The trial court awarded 80 days of section 4019 credit for the period prior to January 25th and 10 days for the period after. Thus, the trial court awarded only 260 days of credit. Defendant's trial counsel stipulated to the arithmetic but objected to the law applied.
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." (Ibid.) The January 25, 2010 amendment provided for granting two days of conduct credit for every two days of presentence custody. (Former § 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).)
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Defendant contends that because the January 25, 2010 amendment was operative prior to the date of her sentencing, all of her credits should have been calculated under that version of 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, comports with the requirements of section 2900.5, and that a contrary interpretation would create equal protection violations. Alternatively, defendant contends she is retroactively entitled to the benefits of the January 25, 2010 amendment to section 4019. The People contend the amendment is prospective only and that a prospective application does not violate equal protection. Because the January 25, 2010 amendment to section 4019 was in effect at the time of sentencing, the trial court should have awarded custody credits for the entirety of defendant's presentence custody pursuant to its terms. Accordingly, we do not address the retroactivity issues.
"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, 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.
Section 4019, as amended on January 25, 2010, 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], [s]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 incentive. 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 170 days in local custody prior to sentencing, and there was no showing that she was not entitled to conduct credits, she was entitled to 170 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 340 days, consisting of 170 actual days and 170 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 modification, 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.