Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. PA056975 Cynthia L. Ulfig, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Linda C. Johnson, Supervising Deputy Attorneys General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Kent Matthew Clark, appeals from a February 27, 2009 conviction of felony evading (Veh. Code, § 2800.2, subd. (a)) and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). The jury also found he had previously been convicted, on July 18, 2007, of misdemeanor driving with a suspended license. He was sentenced to the mid-term of two years in state prison on count 1. Without imposing a particular term, the trial court stayed the misdemeanor sentence as to count 2 pursuant to Penal Code section 654, subdivision (a) (section 654). Defendant was ordered to pay: a $200 restitution fine (Pen. Code, § 1202.4); a $200 parole revocation restitution fine (Pen. Code, § 1202.45); a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1), as amended by Stats. 2007, ch. 302, § 18); a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); and $3,416.13 in attorney fees. (Pen. Code, § 987.8.) No fine, assessment, penalty or surcharge was imposed as to count 2. Defendant received credit for 155 days in pre-sentence custody and 77 conduct credits for a total presentence custody credit of 232 days.
II. BACKGROUND
The present trial followed two mistrials. Defendant was granted pro per status with appointed stand-by counsel. After the preliminary hearing, he initially pled not guilty to count 1 and not guilty by reason of insanity to count 2 (driving with a suspended license). Two doctors were appointed, pursuant to Penal Code section 1027, subdivision (a), to evaluate defendant’s sanity at the time of the crime charged in count 2–Drs. Kaushal K. Sharma and Gordon Plotkin. On May 7, 2008, defendant withdrew his not guilty by reason of insanity plea as to count 2. Defendant then entered a not guilty plea. On July 28, 2008, the trial court offered a potential disposition to defendant-credit for time served and probation in exchange for an open plea. Defendant rejected the trial court’s offer.
Viewed in the light most favorable to the judgment (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909), the evidence at trial was as follows. On February 5, 2008, at about 5 p.m., California Highway Patrol Officer Mark Fessia was patrolling in the Fort Tejon area of Interstate 5. He was driving a marked black-and-white patrol car. Officer Fessia saw defendant traveling on a motorcycle at 93 miles per hour. Officer Fessia followed defendant, reaching a speed of 120 miles per hour in order to close the gap between them. Officer Fessia activated his emergency lights. Defendant turned to look back at Officer Fessia’s patrol car several times. Officer Fessia turned on his siren. They were traveling 120 miles per hour. Officer Fessia left his lights and siren on for the remainder of the pursuit. After they had gone 11 miles, Officer Fessia called for back-up. When they reached the Newhall area, Officer Manuel Linhares took over as the primary pursuing unit. Officer Linhares had his lights and his siren on. Officer Fessia dropped back to second position in the pursuit. When they were almost to the Castaic area, defendant moved into the number four lane and slowed to about 40 miles per hour. Defendant took the Lake Hughes Road off-ramp. When defendant got to the bottom of the off-ramp he: drove through the stop sign; made a left turn onto the wrong side of the road (southbound in northbound lanes); and drove between two stopped vehicles and up onto the sidewalk into a gas station. He then made a left turn and stopped in front of an automated teller machine. Officers Fessia and Linhares followed defendant into the gas station. Two other highway patrol cars were just arriving. Defendant got off his motorcycle, walked around in front of it and got down on his knees. He put his hands up by his head. Officer Fessia arrested defendant. During the pursuit, defendant’s speed had reached 130 miles per hour. Defendant engaged in a number of traffic violations: exceeding the maximum speed limit; driving over 100 miles per hour; following too close (travelling at well over 100 miles per hour, he would get within 10 to 15 feet of a vehicle in front of him before he changed lanes to go around); unsafe lane changes; failing to stop at a stop sign; driving on the wrong side of the road; driving on a sidewalk; exceeding the speed limit in a construction zone; and failing to use his turn signal.
III. DISCUSSION
A. Section 654
As noted above, the trial court imposed a section 654 stay as to count 2, misdemeanor driving with a suspended license. Following our request for further briefing, the Attorney General contends, and we agree, that the trial court erred in staying the sentence on count 2 pursuant to section 654. (People v. Deloza (1998) 18 Cal.4th 585, 591-592; People v. Pearson (1986) 42 Cal.3d 351, 359-360.) A court acts in excess of its jurisdiction and imposes an unauthorized sentence when it erroneously stays or fails to stay execution of a sentence under section 654; therefore, error in the application of section 654 is subject to correction on appeal regardless whether it was raised by objection in the trial court or assigned as error on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.) With respect to the application of section 654, our Supreme Court has held: “‘Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. (See People v. Beamon (1973) 9 Cal.3d 625.’ (People v. Miller (1977) 18 Cal.3d 873, 885 [, disapproved on another point in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn.8].) ‘The proscription against double punishment in section 654 is applicable where there is a course of conduct which... comprises an indivisible transaction punishable under more than one statute.... The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ (People v. Bauer (1969) 1 Cal.3d 368, 376.) ‘The defendant’s intent and objective are factual questions for the trial court; [to permit multiple punishments, ] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]’ (People v. Adams (1982) 137 Cal.App.3d 346, 355.)” (People v. Coleman (1989) 48 Cal.3d 112, 162; accord, e.g., People v. Tarris (2009) 180 Cal.App.4th 612, 626-627; People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.)
When it imposed the section 654 stay, the trial court stated only: “Sentence as to count 2 is stayed pursuant to Penal Code section 654. That stay will become permanent upon completion of the term to count 1.” The duration of the count 2 misdemeanor sentence was not orally pronounced. The Attorney General argues defendant formed two distinct intents. The first was to drive with knowledge his license was suspended. The second intent was, when two officers attempted to pull him over, to evade arrest. Defendant asserts he engaged in an indivisible course of conduct with one objective-to get back home in time for a relative’s birthday.
Our Supreme Court considered an analogous situation in In re Hayes (1969) 70 Cal.2d 604, 605. In Hayes, the defendant pleaded guilty to and was sentenced for two offenses-driving with knowledge of a suspended license and while under the influence of intoxicating liquor. Our Supreme Court held that section 654 did not proscribe imposition of sentence for both driving while intoxicated and with knowledge of a suspended license. (Id. at pp. 605-611.) The majority concluded: “[S]ection 654 of the Penal Code proscribes multiple punishments for a single ‘act or omission which is made punishable’ by different statutes, i.e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts ‘made punishable’ which this [defendant] committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render [the defendant’s] punishment for both crimes in conflict with Penal Code section 654.” (Id. at p. 611; accord, People v. Martinez (2007) 156 Cal.App.4th 851, 857.)
In People v. Beamon, supra, 8 Cal.3d at pages 638-639, our Supreme Court explained: “[N]either of the Hayes violations, although simultaneously committed, was a means toward the objective of the commission of the other. The objectives, insofar as the criminal conduct was concerned, were deemed by the majority to be to drive while intoxicated and to drive with a suspended license.” (See also People v. Britt (2004) 32 Cal.4th 944, 953.) Here, as in Hayes, defendant committed two criminal acts with independent criminal objectives-driving with a suspended license and evading an officer. These were two separate and distinct criminal acts. There was no substantial evidence to the contrary. Therefore, it was error to stay execution of the sentence on count 2. (People v. Hester, supra, 22 Cal.4th at p. 295; People v. Perez, supra, 23 Cal.3d at pp. 549-554.) On remand, the trial court must impose an unstayed misdemeanor sentence on count 2, be it concurrently or consecutively. Additionally, there is a mandatory fine that must be imposed as well as additional assessments, penalties and a surcharge. (Veh. Code, § 14601.1, subd. (b)(2); People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530.)
B. Evading An Officer: Vehicle Code Section 2800.2
Defendant contends Vehicle Code section 2800.2, subdivision (b) creates an unconstitutional mandatory presumption. The Courts of Appeal have repeatedly held, and we agree, that Vehicle Code section 2800.2, subdivision (b) does not create an unconstitutional mandatory presumption. (People v. Mutuma (2006) 144 Cal.App.4th 635, 641; People v. Laughlin (2006) 137 Cal.App.4th 1020, 1025, 1027-1028; People v. Williams (2005) 130 Cal.App.4th 1440, 1444-1446; People v. Pinkston (2003) 112 Cal.App.4th 387, 391-394.)
C. Vindictive Sentencing
Defendant argues he was impermissibly penalized for exercising his jury trial right, a violation of his Fourteenth Amendment due process rights. (In re Lewallen (1979) 23 Cal.3d 274, 278, citing Bordenkircher v. Hayes (1978) 434 U.S. 357; see North Carolina v. Pearce (1969) 395 U.S. 711, 725-726.) Defendant forfeited this issue by not raising it in the trial court. (People v. Williams (1998) 61 Cal.App.4th 649, 654-656; agreeing with U.S. v. Vontsteen (5th Cir. 1992) 950 F.2d 1086, 1089.) Even if the issue is properly before us, we find no impermissible penalization.
It is a violation of an accussed’s federal due process rights to impose a harsher sentence as punishment for exercising his or her jury trial right. (People v. Collins (2001) 26 Cal.4th 297, 306-307; In re Lewallen, supra, 23 Cal.3d at pp. 278-279; People v. Angus (1980) 114 Cal.App.3d 973, 989-990 [“There must be some showing, properly before the appellate court, that the higher sentence was imposed as punishment for exercise of (a constitutional) right”].) In Lewallen, the defendant refused to accept a negotiated sentence. Following a jury trial, at sentencing, the defense attorney requested informal rather than formal probation. (In re Lewallen, supra, 23 Cal.3d at p. 276.) The trial court responded: “‘I think I want to emphasize there’s no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybody’s time, and what’s he got to lose.’” (In re Lewallen, supra, 23 Cal.3d at p. 277.) Our Supreme Court held: “It is well settled that to punish a person for exercising a constitutional right is ‘a due process violation of the most basic sort.’ (Bordenkircher v. Hayes [, supra, ] 434 U.S. [at p.] 363.) The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; People v. Superior Court (1967) 67 Cal.2d 929, 932); thus, we have stated that ‘only the most compelling reasons can justify any interference, however slight, with an accused’s prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.’ (People v. Hill (1974) 12 Cal.3d 731, 768[, disapproved on another point in People v. Devaughn (1977) 18 Cal.3d 889, 896, fn.5].) ‘A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 276.) [¶] The People concede that the refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial. Appellate courts in California and in other jurisdictions have vacated sentences when the trial court has apparently used its sentencing power, either more severely or more leniently than the norm, in order to expedite the resolution of criminal matters. [Citations.] [¶]... That a defendant pleads not guilty is completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand.” (In re Lewallen, supra, 23 Cal.3d at pp. 278-279; accord, e.g., In re Edy D. (2004) 120 Cal.App.4th 1199, 1202 [juvenile court said that if minor inconvenienced witnesses by forcing them to come to court, the option of probation would not be available to him]; People v. Morales (1967) 252 Cal.App.2d 537, 542, fn. 4 [trial court opined it was unfair for a defendant to demand a jury trial and the services of a public defender when there is no defense to the case].)
In April 2008, before the second mistrial was declared, and before this third trial commenced, the probation department, in a pre-conviction report, recommended probation be granted because defendant had no prior felony record; the report was filed in the trial court at the time of sentencing, on February 27, 2009. The probation report listed: one factor in aggravation-defendant’s prior convictions were of increasing seriousness; one factor in mitigation-defendant had no prior felony record; and concluded imposition of the mid-term was warranted. On August 3, 2007, defendant had been convicted of driving with a suspended license, a misdemeanor, and was placed on three years’ probation. As noted above, on July 28, 2008, the trial court, over the prosecutor’s objection, offered to place defendant on probation and time served in return for an open plea. Defendant declined the offer. At the time of sentencing, on February 27, 2009, the district attorney requested the high term of three years be imposed. Defendant was sentenced to the mid-term of two years.
At the sentencing hearing, the trial court stated: “In this particular case, the court had the opportunity to review the entire file. I came into it actually for the final trial, I understand it had been mistried twice before. [¶] Of particular note to this court is the defendant had been offered an opportunity both by Judge Hill and by this court, although it - - my offer was over the objection of the People back in January of ’09 for him to plead to credit time served and probation. At that time, it was 156 days and he was out of custody. [¶] The probation recommendation was part of the pre-plea report; that means that if he would show remorse and enter into an early plea, the recommendation would be probation. [¶] He opted, though, not to take advantage of that. Instead, he wished to represent himself and we had a jury trial that was heard by members of the community.” (Italics added.)
The trial court noted: “Of particular note to the court in listening to the testimony of the defendant regarding the date of the incident, contrary to what Dr. Fairbanks reports that he was depressed, he described himself as being exhilarated, he was happy, he thought he had a valid license so he took advantage of driving up to visit friends. His goal was to get back for his Dad’s birthday. [¶] The motorcycle he was driving was not in good repair, yet he continued to drive it without the benefit of a headlight, although that would not be a prudent choice. He made a series of mistakes on the date of this event, not the least of which was placing others into great danger. [¶] This court has lived in north L.A. County for over 20 years, I’m very familiar with this stretch of roadway coming down the Grapevine. I’m very familiar with officers scraping people off the freeway due to crashes, I’m not talking motorcycle crashes, I’m talking car crashes where wrecks flip over the side of the freeway because there is a down slide embankment. [¶] I heard the testimony of Officer Fessia, a highway patrol officer of many years, whose responsibility is for patrolling that particular area. He testified at one time he was going [130] miles an hour to catch up with the defendant. This poses a great danger to others on the freeway, as well as to the officer, who probably just wanted to go home at the end of his shift and see his family. [¶] This was 6:30 in the afternoon in February-or 6:30 in the evening in February. The defendant with inoperable lights would not be seen by many people because it was already dark at that time of day. And that particular area of the freeway is particularly shadowed, it also not really well-lit because it is an open freeway. [¶] In reviewing Dr. Fairbanks’[s] report, a couple things I noticed in particular, was the assessment that the defendant had a thyroid problem and apparently had not taken his medication and this is what pushed him in the direction of motorcycle exhilaration. Again, that is self-centered, that is only looking for his own benefit.”
Then the trial court stated: “But what concerns me is when he was interviewed by Dr. Plotkin, at the request of the defendant, as well as by Dr. Sharma, both noted that the defendant did not have a major medical disorder; and, more importantly, there was no indication by the defendant given to these doctors that he had any type of thyroid or other issue. [¶] There was indication that he had taken psychotropic medication. However, in looking particularly at Dr. Sharma’s report, the doctor states the police report does not explain why he was driving in the manner he was driving and evaded police. [¶] One can infer he evaded police because he was driving at a high rate of speed in an illegal manner; and given his previous arrest for a similar crime, he was trying to evade being arrested. [¶] The defendant admitted to driving over 100 miles an hour and changing lanes. [¶] And, in closing, Dr. Sharma indicates the defendant does not provide any psychotic explanation of the instant crime. I believe he does not describe any mental illnesses at the time of the instant crime. [¶] And the report of Dr. Plotkin, again, closer in time than the current report indicates that the defendant purposely chose not to answer numerous questions. It also stated he was able to fully discuss the charges potential penalties and courtroom procedure. [¶] He told me that either way, the offer is either 50 percent of 16 months or 67 percent of 12 months, both add up to eight months. [¶] The doctor went on to point out it is entirely possible that part of his reasoning for having the [Penal Code section] 1026 evaluation is to burn time before his maximum penalty should be so he could plead out and be convicted. [¶] The suggestion that he asked for the insanity plea was because quote, ‘Everyone else is wrong and I’m right, ’ end quote. The doctor stated this does not appear to be a valid mental defense. [¶] He also stated there was insufficient data to suggest that there was major mental disorder as defined by Penal Code section 1026. [¶] The doctor also went on at page 2 that in addition the details of the alleged crime surely suggests that he knew he was speeding, evading officers, and knew he was being arrested for a crime at the time he stopped his motorcycle at the gas station. Therefore, it would be difficult to believe that he did not understand what he was doing. And clearly there is no data to suggest he could not appreciate the wrongfulness of his acts. [¶] And like I said, this is contrary to the current report provided by a doctor well over a year past the date of the incident.”
The trial court continued: “It appears that the defendant is manipulating the court and those around him. His story has changed, his story changed while he was testifying in this case. [¶] Contrary to counsel believing this is a victimless crime, it is not. It creates a grave danger to those in the community; as the defendant can candidly stated to the doctors, others are wrong, he is right. [¶] He was given the opportunity to plead to the charges for credit time served and a probationary grant; instead, he chose to take his trial. This court had the opportunity to view the testimony. It appeared again that he was manipulating. He attempted to continue the case a couple times. He had legal counsel at various times prior to going pro per. I’m sure they had discussed the offer with him. And, again, the defendant appears to have continued this case numerous times both while in and out of custody. [¶] So at this time, the court’s basic decision is if he is given probation, he is going to have time served and he will be out the door. [¶] If he is given state prison, it will pretty much be the same, he will do a turn around in state prison because he’s already got credit for 226 days. [¶] As far as his voting rights, he can only-his voting right is suspended only while he’s in state prison or on parole. Once he is off parole, he will then again be entitled to vote. So he is not forfeiting his voting rights forever. [¶] He does appear to be a bright young man; but, again, that appears to coincide with the court’s feeling of manipulation in this case.” (Italics added.)
The trial court then imposed sentences as follows: “As to count 1, the defendant is ordered incarcerated in the state prison for the period of two years, that is the midterm, based on the fact that the defendant placed others in a position of danger, including the officer; and the fact that he was on probation at the time of the offense. The court does select the midterm. [¶] The court does not find that the mitigating factors outweigh the enhancing factors; so, again, he is ordered to state prison for the midterm of two years. [¶]... [¶] Sentence as to count 2 is stayed pursuant to Penal Code section 654. That stay will become permanent upon completion of the term to count 1.”
Defendant has not sufficiently shown that in imposing sentence, the trial court was motivated by vindictiveness. That defendant’s sentence was more severe than the disposition offered in exchange for a plea does not by itself support an inference he was penalized for exercising his jury trial right. (People v. Szeto (1981) 29 Cal.3d 20, 35; People v. Sequeira (1981) 126 Cal.App.3d 1, 22, disapproved on another point in People v. Magill (1986) 41 Cal.3d 777, 780.) Moreover, the trial court did not indicate that a longer sentence was imposed because defendant chose to go to trial. The trial court sat through the trial and heard the evidence of defendant’s actions. Defendant’s conduct endangered others, including the pursuing officers. Defendant was on probation when he committed the present offenses. He had a prior conviction for misdemeanor driving with a suspended license, so the felony in this case was of greater severity. The trial court exercised leniency in imposing the mid-term as indicated in the probation report rather than the aggravated sentence as the prosecution had requested. The trial court could reasonably impose the two-year sentence within its sentencing discretion. Viewing the trial court’s statements as a whole, defendant’s sentence was based not on his exercise of his jury trial right but on the nature of the offense and the particular circumstances under which it was committed. As the trial court noted, defendant was driving a motorcycle with an inoperable headlight in an area that was not well lit. He was rushing to get home for a birthday party. He was driving a particularly precarious stretch of highway. During the pursuit, defendant’s speed reached 130 miles per hour. His actions seriously endangered people in other vehicles, including the California Highway Patrol officers who pursued him. Defendant knew what he was doing. He understood the wrongfulness of his acts. The foregoing considerations supported the trial court’s decision to impose the mid-term of two years in state prison. We find no federal due process violation.
D. Court Security Fee
The trial court imposed one $20 court security fee pursuant to Penal Code section 1465.8, subdivision (a)(1) (as amended by Stats. 2007, ch. 302, § 18). The trial court should have imposed the court security fee as to each of the two counts for which defendant was convicted. (People v. Roa (2009) 171 Cal.App.4th 1175, 1181; People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see People v. Alford (2007) 42 Cal.4th 749, 758, fn. 6.) Therefore, a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)) is to be imposed as to each of the two counts.
E. Court Facilities Assessment
The trial court imposed one $30 court facilities assessment under Government Code section 70373, subdivision (a)(1). The language in Government Code section 70373, subdivision (a)(1), “[A] [court facilities] assessment shall be imposed on every conviction for a criminal offense ...” is the same as in Penal Code section 1465.8, subdivision (a)(1), “[A] [court security] fee... shall be imposed on every conviction for a criminal offense ....” (Italics added.) In People v. Schoeb, supra, 132 Cal.App.4th at pages 865-866, the Court of Appeal held the “on every conviction for a criminal offense” language of Penal Code section 1465.8, subdivision (a)(1) unambiguously required a fee be imposed for each of the defendant’s convictions. The same language in Government Code section 70373, subdivision (a)(1) must be construed in the same way. Therefore, a Government Code section 70373 subdivision (a)(1) court facilities fee must be imposed for each of the two crimes for which defendant was convicted. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3; cf. People v. Schoeb, supra, 132 Cal.App.4th at pp. 865-866; see People v. Fleury (2010) 182 Cal.App.4th 1486, 1489 [“[t]he trial court also imposed... two $30 assessments under section 70373 (one for each offense)”]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 7 [“the matter is remanded for re-sentencing to the trial court so that it may properly impose an assessment of thirty dollars ($30) for each misdemeanor conviction”].)
F. Presentence Custody Credit
We asked the parties to brief the question whether the trial court properly calculated defendant’s presentence custody credit. Defendant was arrested on February 5, 2008, a leap year. A bail bond was executed by a bail agent on Sunday, May 18, 2008, and filed in the trial court on Wednesday, May 21, 2008. Defendant was detained again on November 18 and 19, 2008, and from January 12 to February 27, 2009. In the trial court, defendant said he was in custody for 106 days prior to his release on bail and the trial court accepted that representation in calculating defendant’s credits. The trial court awarded defendant 155 days of actual presentence custody credit. That number may or perhaps not be correct depending upon the date on which defendant was released on bail in May 2008. Defendant argues we should assume he was released on bail on May 21, 2008, the day the bail bond was filed in the trial court. Yet the bail agent executed the bail bond three days earlier. The Attorney General contends we should remand this matter to the trial court to make the necessary factual determinations in calculating defendant’s credits once our remittitur issues. We agree with the Attorney General. (See People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9; People v. Fares (1993) 16 Cal.App.4th 954, 958; People v. Martinez (1982) 132 Cal.App.3d 119, 135-136.)
G. Retroactive Application of Amendments To Penal Code Section 4019 Effective January 25, 2010
In his letter brief, defendant asserts he is entitled to additional custody credit under Penal Code section 4019 as amended effective January 25, 2010. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.) That amendment took effect while this appeal was pending. We conclude the amendment does not apply retroactively. (People v. Eusebio (2010) 185 Cal.App.4th 990, 992-996.) We adopt the reasoning of our colleagues in Division Four of this appellate district and hold that the amendment to Penal Code section 4019 effective January 25, 2010, does not apply retroactively. (Ibid.) Defendant is not entitled to additional custody credit due to the recent amendments to Penal Code section 4019.
IV. DISPOSITION
The judgment is modified to impose two $20 court security fees (Pen. Code, § 1465.8, subd. (a)(1)) and two $30 court facilities assessments. (Gov. Code, § 70373, subd. (a)(1).) On remand, the trial court must impose an unstayed concurrent or consecutive misdemeanor sentence of a specific duration and the appropriate fine on count 2 and determine defendant’s presentence custody credits. The trial court must also ensure that the abstract of judgment correctly reflects the modified sentence. The judgment is affirmed in all other respects.
We concur: ARMSTRONG, J.KRIEGLER, J.