Opinion
E051875 Super.Ct.No. FSB900066 Super.Ct.No. FSB904657
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANGELO COLANTONIO, Defendant and Appellant.
Edward J. Haggerty, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
Edward J. Haggerty, 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 Michael Angelo Colantonio contends the trial court erred by calculating some of his Penal Code section 4019 conduct credits under a version of section 4019 that was no longer in effect at the time of his sentencing. We modify the judgment to correct the award of credits and affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On January 15, 2009, in case No. FSB900066, defendant pled guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and admitted he had a prison prior (Pen. Code, § 667.5, subd. (b)). The trial court withheld pronouncement of judgment and placed defendant on probation.
On November 10, 2009, in case No. FSB904657, defendant pled guilty to receiving stolen property (§ 496, subd. (a)) and admitted he had three prison priors (§ 667.5, subd. (b)). The trial court withheld pronouncement of judgment and placed defendant on probation.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.)
On February 11, 2010, after defendant admitted violating his probation, the trial court imposed prison terms but suspended execution of the sentence and placed defendant back on probation. In case No. FSB900066 the trial court imposed the upper term of three years with an additional year for the prison prior. In case No. FSB 904657 the trial court imposed the midterm of two years with three additional years due to the three prison priors.
On August 17, 2010, defendant admitted violating his probation. The trial court did not have defendant's custody dates available for calculating custody credits. Nonetheless, defendant agreed to proceed with sentencing that day and authorized his counsel to appear at a subsequent hearing for the sole purpose of determining his credits. Accordingly, the trial court imposed defendant's suspended sentences and set them to run concurrently. Defendant was remanded to the sheriff "for immediate delivery to the Department of Corrections."
On September 3, 2010, the trial court issued two abstracts of judgment, one for each case number, both indicating that sentence was pronounced on August 17, 2010, credits would be under section 4019, and that defendant had waived his presence at a credit hearing to be held on September 10, 2010.
On September 10, 2010, defendant's trial counsel stipulated to the math on the memorandum from the probation department and stated, "retro January 25th and post January 25th." The trial court imposed credits as specified in the memorandum from the probation officer. Under both case numbers, the memorandum calculated section 4019 conduct credits differently for periods before and after January 25, 2010. Erroneously, the memorandum included, under both case numbers, the time from defendant's August 17, 2010 sentencing and the September 10, 2010 hearing on his credits. Applicable to both cases, defendant had also spent 159 days in a treatment facility that contributed to his actual days in custody but for which he was not entitled to conduct credits. Accordingly, the trial court awarded defendant credit for 276 actual days and 89 conduct days in case No. FSB900066, and 210 actual days and 42 conduct days in case No. FSB904657. However, defendant's presentence time in local custody for which he was eligible for conduct credits was only 93 days in case No. FSB900066, and 27 days in case No. FSB904657.
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 accrual of 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." (Former § 4019, subds. (b)(2) & (c)(2).)
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Defendant contends that amended section 4019 applied retroactively, and the People contend that amended section 4019 was prospective only. The retroactivity of amended section 4019 is an issue that will be decided by our Supreme Court. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) However, the issue here is not retroactivity, but whether the ratio provided in the January 25, 2010 amendment applied to all presentence custody when defendant was sentenced after the amendment became operative. Accordingly, we directed supplemental briefing as to, assuming the amendment is prospective, whether the amendment provided the formula for determining conduct credits for all of defendant's presentence custody served both before and after the amendment's effective date. Defendant contends his "credits should have been calculated using section 4019 as it existed on the date of his sentencing. The previous version of section 4019 was no longer valid at the time of sentencing, thus the trial court was unauthorized to apply the previous statute to any part of [his] sentence." The People contend that 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. Because the January 25, 2010 amendment was in effect at the time of defendant's sentencing, the trial court should have awarded custody credits for the entirety of his presentence custody using the ratio provided by that version of section 4019. Accordingly, we do not address the retroactivity issue.
"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.
There was only one version of section 4019 in effect at the time of sentencing and that version did not contain any provision for a two-tiered division of presentence custody credits. 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 the ratio from the January 25, 2010 amendment 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 the amendment 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 purported equal protection violation is temporal and the distinction is thus rational as " '[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 189-191 [" '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].)
As indicated above, but not raised by the parties, we note that defendant was sentenced on August 17, 2010, but the trial court awarded defendant custody and conduct credits until the hearing to determine credits on September 10, 2010. The trial court was responsible for determining custody credits for the period prior to sentencing; the Department of Corrections and Rehabilitation is responsible for determining any credits for the period between the date of sentencing and the date of delivery. (§ 2900.5, subds. (d)-(e).) Thus, defendant's credits should only have been for the period up to his sentencing on August 17, 2010. On that date, defendant's presentence time in local custody for which he was eligible for conduct credits was only 93 days in case No. FSB900066, and 27 days in case No. FSB904657.
Accordingly, because there was no showing that he was not entitled to conduct credits, he was entitled to 92 days of section 4019 credit in case No. FSB900066, and 26 days of section 4019 credit in case No. FSB904657. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating preamendment formula for calculating conduct credits].)
Again, although not raised by the parties, we note that the trial court pronounced a single judgment arising out of two different case numbers but abstracted the judgment into two outdated 2003 versions of mandatory form CR-290. As indicated above, the abstracts do not include the calculation of defendant's credits. We have the inherent power to correct errors in abstracts to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct preparation of a single amended abstract of judgment, using the updated version of the form, for both case numbers, that includes defendant's conduct credits.
DISPOSITION
The judgment is modified to set presentence credit for time served in case No. FSB900066 at 344 days, consisting of 252 actual days, and 92 days of section 4019 conduct credit. The judgment is modified to set presentence credit for time served in case No. FSB904657 at 212 days, consisting of 186 actual days, and 26 days of section 4019 conduct credit. The superior court clerk is directed to prepare new minute orders, and a single amended abstract of judgment (form CR-290 last revised on January 1, 2007), reflecting the custody credit modifications. The clerk is then directed to forward certified copies of the new minute orders and amended abstract 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:
KING
J.
CODRINGTON
J.