Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB803683, David Cohn, Judge.
Ron Boyer, 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, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Gabriel Carlos Cabrera, Jr., contends the trial court erred by awarding Penal Code section 4019 conduct credits at different 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 March 17, 2009, defendant pled guilty to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)), possessing metal knuckles (Pen. Code, § 12020, subd. (a)(1)), and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). Defendant also admitted he had a prison prior (Pen. Code, § 667.5, subd. (b)). Pursuant to his plea agreement, defendant was sentenced to a prison term of five years four months, execution of sentence was suspended, and he was placed on probation.
The prison term consisted of the upper term of three years for possessing the controlled substance, consecutive one-third midterms of eight months each for possessing the metal knuckles and carrying the concealed dirk or dagger, and one year consecutive for the prison prior.
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 May 12, 2010, defendant admitted violating his probation and the suspended sentence was executed.
On May 28, 2010, a hearing was held to determine defendant’s credits for time served. Defendant had been in local custody 249 days prior to the amendment of section 4019, and 44 days after the amendment became effective. The trial court awarded “249 days actual, plus 124 days conduct credit. [¶].... [¶] And then on the post-January 25th, is an additional 44 days actual, plus 44 days conduct for a total of 461 days credit against the sentence that has previously been imposed.” Defendant’s trial counsel “agree[d] to the math but argue[d] that all credits pre-January 25th should be retroactive.” The abstract of judgment did not include any credit for time served.
DISCUSSION
Section 4019 permits defendants to earn credit towards 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 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, 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 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 293 days in local custody prior to sentencing, and there was no showing that he was not entitled to conduct credits, he was entitled to 292 days of section 4019 credit. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating pre-amendment formula for calculating conduct credits].)
DISPOSITION
The judgment is modified so that defendant has presentence credit for time served of 585 days, consisting of 293 actual days, and 292 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: McKINSTER, J., KING, J.