Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, Ct. No. JCF23413, Christopher W. Yeager, Judge.
NARES, Acting P. J.
In April 2009 the Imperial County District Attorney's Office charged Robert Dean Davis with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and unlawfully and maliciously cutting a utility line (§ 591; count 2). Davis pled guilty to count 1, and, in exchange, count 2 was dismissed.
All further statutory references are to the Penal Code.
The court sentenced Davis to three years' formal probation. Davis agreed to serve 365 days in county jail with a credit of 67 days. Davis also agreed to participate in a 52-week anger management counseling program as directed by his probation officer that would not terminate without the mutual consent of the probation officer and the program director.
In January 2010 the probation officer filed a petition to revoke Davis's probation based upon his arrest for grand theft and his failure to enroll in and participate in an anger management program. In February 2010 Davis admitted a violation of probation by failing to enroll in an anger management class. Probation was revoked and reinstated with the condition that Davis serve an additional 60 days in custody in county jail.
At sentencing, the court awarded Davis a total of 27 conduct credits. Part of Davis's time in custody was before the amendment of section 4019, effective January 25, 2010, which increased conduct credits from two days of credit for every six days of actual custody to two days of credit for every four days of actual custody. The court awarded credits for the time Davis spent in custody before January 25, 2010, pursuant to the old version of section 4019. For time he served after January 25, 2010, the court awarded credits under the amended version of section 4019. Under this method of calculation, Davis received a total of 16 conduct credits, consisting of eight days for the 18 days he served before amended section 4019's effective date, and eight days of conduct credit for the nine days of custody he served after the statute's effective date. Had the court calculated all of his conduct credits under the amended version of section 4019, he would have been entitled to an additional 10 days of credit, for a total of 26 conduct credits.
On appeal, Davis asserts that the court should have calculated all of his conduct credits under the amended version of section 4019 because (1) amended section 4019 should be applied retroactively; (2) failure to apply amended section 4019 retroactively would violate his equal protection rights; and (3) even if the amendments apply prospectively, his credits should be calculated under the amended version of section 4019 because he was sentenced after its effective date.
We conclude that the amended version of section 4019 applies retroactively. Accordingly, we shall modify the judgment to add an additional 10 days of presentence conduct credits Davis is entitled to under the amended version of section 4019. In all other respects, the judgment is affirmed.
Because Davis's underlying crime is not relevant to the issues raised on appeal, we discuss it only briefly.
On April 4, 2009, deputy sheriffs responded to the Amarillo Store Bar in Imperial County to investigate an alleged assault. At the scene deputies spoke to Connie Ramirez. Ramirez told them that her boyfriend, Davis, had just hit her on the head with a beer bottle after Davis accused her of cheating on him. Davis became upset and they started arguing. Davis then began pushing and grabbing Ramirez, and hit her in the back of her head with a beer bottle. She tried to defend herself with a large spoon, but Davis was able to hit her in the hand with the spoon. When Ramirez picked up the phone to dial 911, he ripped the phone from the socket and began to chase her.
When Ramirez was talking to officers at the scene, she was crying and her clothing was ripped around the arm area. She had blood on her shoulder and neck and had bruises on her left eye and both arms. Ramirez also had a one-inch laceration on the back of her head and she complained of pain in the area. Paramedics examined her at the scene and determined stitches would be needed to close the wound to her head. Davis was arrested at the scene.
DISCUSSION
A. Retroactivity of Section 4019
Prior to January 25, 2010, section 4019 provided that a defendant was entitled to two days of conduct credit for every six days of presentence custody. (Former § 4019, added by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every four days of presentence custody. (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.)
Numerous published opinions have ruled on this issue, which will be resolved by the California Supreme Court. Two of those opinions, People v. Hopkins (2010) 184 Cal.App.4th 615 (6th Dist.), review granted July 28, 2010, S183724, and People v. Rodriguez (2010) 183 Cal.App.4th 1 (5th Dist.), review granted June 9, 2010, S181808, conclude that the statutory amendment is not retroactive. In contrast, the majority of published decisions hold that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because it is an amendatory statute that mitigates punishment. (See People v. Pelayo (2010) 184 Cal.App.4th 481 (1st Dist., Div. 5), review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408 (1st Dist., Div. 3), review granted August 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096 (1st Dist., Div. 2), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (2nd Dist., Div. 1), review granted June 23, 2010, S182813; & People v. Brown (2010) 182 Cal.App.4th 1354 (3rd Dist.), review granted June 9, 2010, S181963.)
We agree with the reasoning of the majority of published decisions on this issue because section 4019, as amended, mitigates punishment.
In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.)
Courts of Appeal have held that provisions affording or increasing sentencing credit are statutes lessening punishment under Estrada. In People v. Hunter (1977) 68 Cal.App.3d 389, 392–394, the Second District concluded that Estrada is not limited to amendments lessening a maximum sentence and held that amendments to section 2900.5 (custody credits) should be applied retroactively. The court stated: "The 1976 amendment to Penal Code section 2900.5 must be construed as one lessening punishment, as the term is used in Estrada. True, Estrada deals with a statute which lessens the maximum sentence for a particular crime while the amendment to section 2900.5 concerns credit against a lesser sentence imposed as a condition of probation. But in the circumstances which we here consider, the distinction is without legal significance." (Hunter, at p. 393; accord, People v. Sandoval (1977) 70 Cal.App.3d 73, 87.) Relying on Hunter, one Court of Appeal applied the rule in Estrada to section 4019, as originally enacted, treating its provision of conduct credits as a law "granting amelioration in punishment." (People v. Doganiere (1978) 86 Cal.App.3d 237, 239.)
We likewise conclude that the general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. The January 25, 2010 amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits, and thus, constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody. Therefore, the amendment of section 4019 applies retroactively. Davis is entitled to the benefit of the amendment, and his presentence local conduct credits must be recalculated. Accordingly, we need not decide Davis's alternative contention alleging a violation of his equal protection rights.
DISPOSITION
The judgment is modified to add 10 additional days conduct credits to Davis's sentence. The trial court is directed to amend the abstract of judgment accordingly.
WE CONCUR: HALLER, J.AARON, J.