Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB903883 David Cohn, Judge.
Rex Williams, 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 A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant and appellant Jose Angel Coronado contends the trial court erred by awarding Penal Code section 4019 conduct credits at two separate rates between periods before and after an amendment to that section became effective. We modify the judgment to correct the credits and affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On October 1, 2009, defendant pled guilty to receiving stolen property. (§ 496, subd. (a).) On December 15, 2009, judgment was withheld and defendant was placed on probation.
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 September 22, 2010, defendant admitted violating his probation and was sentenced to the midterm of two years in state prison. The trial court set a separate hearing for October 1, 2010, to calculate his custody credits. At that hearing, the trial court awarded custody credits as follows: “It’s 88 actual days... 4019’s under the old statute apply. And 27 actual days to which the new 4019 credits apply. The total actual day credit is 115. The old 4019 credits are 44. The new 4019 credits are 27. Grand total 186.” Defendant’s trial counsel “[s]tipulate[d] to the math and [asserted] that all credits should be retroactive whether time was served before January 25th or after January 25th.” However, the trial court’s calculation of actual time in presentence local custody included the additional days between the September 22, 2010 sentencing and the October 1, 2010 hearing at which the credits were calculated. Thus, defendant’s actual days in presentence local custody were 106 days, not 115.
DISCUSSION
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.” (People v. Duff (2010) 50 Cal.4th 787, 793.) The January 25, 2010 amendment provided for the accrual 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, supra, 120 Cal.App.3d 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 reward. 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].)
Although not raised by the parties, we note that defendant was sentenced on September 22, 2010, but the trial court awarded defendant custody and conduct credits until the credit calculation hearing on October 1, 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 September 22, 2010. On September 22, 2010, defendant had 106 days of actual presentence local custody.
Accordingly, because defendant had served a total of 106 days in local custody prior to being sentenced to prison, he was entitled to 106 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 212 days, consisting of 106 actual days, and 106 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.
We concur: McKINSTER J.KING J.