Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR-188043
Dondero, J.
Defendant admitted a probation violation and was sentenced to two years in state prison. In this appeal he claims that the trial court erred by declining to grant him an increase in presentence credits under amendments to Penal Code section 4019 that became effective during the course of his presentence custody. We conclude that section 4019 as amended in 2010 must be given retroactive effect to grant defendant additional sentence credits. We therefore modify the judgment accordingly.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the sole issue on appeal which challenges the award of custody credits, we need not recite the facts pertinent to the offenses.
Defendant entered a no contest plea to a charge of receiving stolen property (§ 496, subd. (a)) on January 17, 2008, and was placed on formal probation for three years. On February 25, 2010, defendant admitted that he violated the terms of his probation. He was sentenced on April 2, 2010, to a term of two years in state prison, with the issue of presentence credits under section 4019 deferred. The trial court subsequently ruled that section 4019 does not apply retroactively to increase defendant’s presentence credits. Defendant was awarded a total of 252 days of credits: 78 days of actual custody and 38 days of conduct credits before the effective date of section 4019 on January 25, 2010; and 68 days of actual custody and 68 days of conduct credits thereafter.
DISCUSSION
Defendant argues that he is entitled to an award of additional custody credits under the amended version of section 4019, for the time he served before the effective date of the statute. He contends that the amendment to the statute “should be applied retroactively to the entire period of his presentence custody, entitling him to additional credits for the time served prior to January 25, 2010.” Defendant requests that we order the trial court to amend the abstract of judgment to reflect “an additional 40 days conduct credit for the time spent in custody prior to January 25, 2010, ” for a total of 292 days of presentence credit – 146 days of actual custody credits and 146 days of section 4019 conduct credits.
Under section 2900.5, a defendant sentenced to imprisonment is entitled to presentence custody credits determined according to the formula specified in section 4019. (People v. Johnson (2004) 32 Cal.4th 260, 266; People v. Donan (2004) 117 Cal.App.4th 784, 789–790.) Part of defendant’s presentence custody was served while the former version of section 4019 was in effect, which awarded presentence credits in accordance with a formula of one day of work time credit and one day of conduct credit for each six-day period of custody. (§ 4019, subds. (b) & (c).) Effective January 25, 2010, the statute was amended to provide for one day each of work time and conduct credit for every four-day period of custody. (§ 4019, subds. (b) & (c), as amended by Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28, § 50.) The statutory amendments thus essentially doubled the available custody credits for the receiving stolen property offense of which defendant was convicted, among others. (People v. Norton (2010) 184 Cal.App.4th 408, 414, review granted Aug. 11, 2010, S183260 (Norton).)
The issue of the retroactive application of the 2010 amendments to section 4019 has already been the subject of extensive appellate review. Numerous opinions, both published and unpublished, have previously ruled on the issue of the retroactivity of the amendments to section 4019. A split of authority exists, which will be finally resolved in the many appeals now pending before the California Supreme Court or eventually headed in that direction. Cases which occupy the “majority” view to date have taken the position that the section 4019 amendments apply retroactively. (See People v. Bacon (2010) 186 Cal.App.4th 333, 336, review granted Oct. 13, 2010, S184782; see also People v. Keating (2010) 185 Cal.App.4th 364, 369, review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481, 485, review granted July 21, 2010, S183552; Norton, supra, 184 Cal.App.4th 408, 411; People v. Delgado (2010) 184 Cal.App.4th 271, 282, rehearing granted May 26, 2010; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1052, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, 1363–1364, review granted June 9, 2010, S181963.) Distinctly fewer opinions have decided, as did the trial court in the present case, that the amendments have prospective application only. (See People v. Hopkins (2010) 184 Cal.App.4th 615, 619, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, 432, review granted July 21, 2010, S184314.)
See also a decision from this District, People v. Buntyn (May 21, 2010, A121903) [nonpub. opn.].
Rather than further contribute here to the analytical dialogue on this matter, which has already been quite thorough, we merely express our agreement with the majority of reported decisions, including those from our own Appellate District, that have found the amendments to section 4019 retroactive in effect. (People v. Bacon, supra, 186 Cal.App.4th 333, 336; People v. Pelayo, supra, 184 Cal.App.4th 481, 485; Norton, supra, 184 Cal.App.4th 408, 411.) While we are cognizant of the credible arguments addressed on both sides of the retroactivity issue, as the split of authority would suggest, on balance we are persuaded to follow the reasoning that the statutory amendments reduce the sentence ultimately served for the included offenses, and there is no savings clause in the legislation, so we infer a legislative intent to accord criminal defendants the benefit of mitigation of punishment adopted before their convictions are final. (In re Estrada (1965) 63 Cal.2d 740, 746; People v. Bacon, supra, 186 Cal.App.4th 333, 336; People v. Doganiere (1978) 86 Cal.App.3d 237, 239–240; People v. Hunter (1977) 68 Cal.App.3d 389, 393.)
DISPOSITION
The judgment is amended to award defendant a total of 292 days of presentence credits under section 4019, and as so amended the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections and Rehabilitation.
We concur: Marchiano, P. J., Banke, J.