Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS072045A.
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
In 2007, defendant Desiree L. Davis pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and the trial court suspended imposition of sentence and placed her on probation. Relevant here, on December 14, 2010, defendant admitted violating probation, and the trial court reinstated her probation on modified terms and conditions. Defendant was ordered to serve 261 days in jail. The court also granted defendant 261 days of custody credits, consisting of 175 actual days plus 86 days conduct credit.
The record on appeal contains documents that refer to defendant’s first name as “Desiray, ” including a “Waiver Of Rights [¶] Plea Of Guilty/No Contest” form that defendant signed.
On appeal, defendant contends that the trial court erroneously calculated her conduct credit under the version of Penal Code section 4019 effective September 28, 2010. She argues that the version of section 4019 effective January 25, 2010, was the applicable version and that it should have been used to calculate all of her conduct credit, even though part of her actual days in custody were prior to January 25, 2010.
Further unspecified statutory references are to the Penal Code.
We agree with defendant that the September 28, 2010 version of section 4019 was not applicable, because it only applies to defendants who are confined for a crime committed on or after September 28, 2010. (§ 4019, subd. (g).) However, as we will explain, we determine that the 1982 version of section 4019 (Stats. 1982, ch. 1234, § 7) should have been used to calculate defendant’s conduct credit for actual days in custody prior to January 25, 2010, and that the January 25, 2010 version of section 4019 should have been used to calculate her conduct credit for actual days in custody on or after that date. Therefore, we will reverse the judgment and direct the trial court to hold a new hearing solely with respect to the calculation of defendant’s custody credits under section 4019.
II. FACTUAL AND PROCEDURAL BACKGROUND
In July 2007, defendant was charged by complaint with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In October 2007, defendant pleaded guilty with the understanding that she would receive treatment under Proposition 36. The trial court thereafter suspended imposition of sentence and placed defendant on probation for 18 months with various terms and conditions, including that she participate in a Proposition 36 drug treatment program. Defendant was also ordered to serve 19 days in jail. She was granted 19 days of custody credits, consisting of 13 actual days plus 6 days conduct credit.
The record on appeal does not contain a description of the facts of defendant’s offense.
First Notice of Violation of Probation
In November 2007, the probation department filed a petition and notice of violation of probation alleging that defendant failed, among other things, to participate in a drug treatment plan. In December 2007, defendant admitted violating probation. The trial court revoked and reinstated probation on the same terms and conditions.
Second Notice of Violation of Probation
In April 2008, the probation department filed a petition and notice of violation of probation alleging that defendant failed to participate in and complete a drug treatment plan. In May 2009, defendant admitted violating probation. In June 2009, defendant’s Proposition 36 probation was terminated. She was placed on formal probation for three years with various terms and conditions, including that she serve 54 days in jail. She was granted 54 days of custody credits, consisting of 36 actual days plus 18 days conduct credit.
Third Notice of Violation of Probation
In September 2009, the probation department filed a petition and notice of violation of probation alleging that defendant failed to abstain from drugs and failed to attend drug treatment meetings. Defendant admitted violating probation. The trial court revoked, reinstated, and modified probation. Defendant was ordered to serve 120 days in jail. The court granted her 63 days of custody credits, consisting of 43 actual days plus 20 days conduct credit.
Fourth Notice of Violation of Probation
In December 2009, the probation department filed a petition and notice of violation of probation alleging that defendant failed to abstain from drugs, failed to report to probation, and failed to attend drug treatment meetings. On January 12, 2010, defendant admitted violating probation. The trial court revoked, reinstated, and modified probation. Defendant was ordered to serve 180 days in jail. The court granted her 117 days of custody credits, consisting of 79 actual days plus 38 days conduct credit.
Fifth Notice of Violation of Probation
In August 2010, the probation department filed a petition and notice of violation of probation alleging that defendant failed to, among other things, refrain from associating with a known drug user, refrain from possessing alcohol, and register pursuant to Health and Safety Code section 11590. On September 8, 2010, defendant admitted violating probation. The trial court revoked, reinstated, and modified probation. Defendant was ordered to serve 237 days in jail. The court granted her 209 days of custody credits, consisting of 105 actual days plus 104 days conduct credit.
Sixth Notice of Violation of Probation
In October 2010, the probation department filed a petition and notice of violation of probation alleging that defendant failed to refrain from associating with a particular parolee. Defendant admitted violating probation. The trial court revoked, reinstated, and modified probation. Defendant was ordered to serve 365 days in jail. The court awarded her 249 days of custody credits, consisting of 125 actual days plus 124 days conduct credit.
Seventh Notice of Violation of Probation
On December 2, 2010, the probation department filed a petition and notice of violation of probation alleging that defendant refused to participate in a residential drug treatment program.
On December 14, 2010, defendant admitted violating probation. The trial court revoked probation and reinstated it on modified terms and conditions. Defendant was ordered to serve 261 days in jail. During the December 14, 2010 hearing, counsel, a representative from the probation department, and the trial court discussed the calculation of defendant’s custody credits. The probation department believed defendant’s total custody credits were 261 days, based on 175 actual days and 86 days of conduct credit. The probation department stated that an earlier calculation, in connection with a probation violation and petition filed prior to September 28, 2010, was based on a “50 percent credit calculation.” The probation department appeared to believe that due to a subsequent change in the law, conduct credit must “now... be calculated at 33 percent based on the timeframe and the date of the most recent violation” of probation. Defense counsel objected to the probation department’s most recent calculation. Defense counsel argued that the trial court had previously “given” defendant “half time, ” but the probation department “want[ed] to take away what the Court has already given her and... make it one-third credits.” The court ultimately followed the probation department’s recommendation and granted defendant 261 days of custody credits, consisting of 175 actual days plus 86 days conduct credit.
III. DISCUSSION
The September 2010 Version of Section 4019 Is Not Applicable
On appeal from the December 14, 2010 order of probation, defendant contends that the trial court erred by failing to calculate her conduct credit using a “one-for-one” formula pursuant to the version of section 4019 effective January 25, 2010. Defendant asserts that the comments by the trial court and probation department during the December 14, 2010 hearing indicate that the court calculated her conduct credit using a formula less favorable to her, pursuant to a version of section 4019 that went into effect on September 28, 2010.
The People agree that the September 28, 2010 version of section 4019 should not have been used to calculate defendant’s conduct credit because that version applies only to defendants who are confined for a crime committed on or after September 28, 2010 (§ 4019, subd. (g)), and defendant’s crime was committed in 2007.
“Matters of interpreting and applying a statute are questions of law. [Citations.]” (Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604, 611 (Amdahl Corp.).) Questions of law are reviewed under the de novo standard of review. (Ibid.)
Section 4019 provides for presentence credits for worktime and for good behavior. (§ 4019, subds. (b) & (c).) These presentence credits are collectively referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck).) Here, neither party disputes that probationers are entitled to section 4019 credits. (See § 2900.5, subds. (a) & (c); People v. Daniels (2003) 106 Cal.App.4th 736, 739-740 (Daniels); In re Carr (1998) 65 Cal.App.4th 1525, 1529.) “Section 4019 provides that a defendant may earn conduct credits during custody in a county jail or a comparable local facility ‘prior to the imposition of sentence, ’ including custody imposed ‘as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence.’ (§ 4019, subd. (a)(2) & (4).)” (Daniels, supra, 106 Cal.App.4th at p. 740.)
The 1982 version of section 4019, which was in effect at the time of defendant’s crime in 2007, and until January 24, 2010, provided that a defendant may earn conduct credit at a rate of two days for every four-day period of actual custody. (Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, section 4019 was amended to allow qualifying defendants to earn conduct credit at a rate of four days for every four days of actual custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Effective September 28, 2010, section 4019 was again amended, and it now provides, similar to the earlier version, that a defendant may earn conduct credit at a rate of two days for every four-day period of actual custody. (§ 4019, subds. (b) & (c); see also id., subd. (f); Stats. 2010, ch. 426, §§ 2, 5.) However, this current rate applies only to defendants who are confined for a crime committed on or after September 28, 2010. (§ 4019, subd. (g).)
Two bills concerning section 4019 have since been enacted on April 4, 2011, and June 30, 2011. (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53.) Under these enactments, conduct credit may be earned at a rate of four days for every four days of actual custody (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53), similar to the January 25, 2010 version of the statute. However, this rate will apply only to “confine[ment]... for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law.” (Stats. 2011, ch. 39, § 53.) Further, the statute containing this new rate “will become operative... only upon creation of a community corrections grant program... and upon an appropriation to fund the grant program.” (Stats. 2011, ch. 39, § 68 [amending section 636 of chapter 15 of the Statutes of 2011].)
Section 4019, subdivision (g) states: “The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act.”
In this case, defendant’s crime was committed prior to September 28, 2010, and thus the conduct credit rate provided by the September 28, 2010 version of section 4019 does not apply to her.
Both the 1982 Version and the January 25, 2010 Version of Section 4019 Are Applicable to the Calculation of Defendant’s Conduct Credit
The version of section 4019 in effect immediately prior to the September 28, 2010 version was the January 25, 2010 version. Because the calculation of conduct credit for defendant involves time in custody before and after January 25, 2010, we requested supplemental briefing on May 2, 2011, from the parties addressing whether the January 25, 2010 version of section 4019 should be used to calculate all of defendant’s conduct credit, or whether that version and the prior 1982 version should be used to calculate her conduct credit, and cited People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676 [concluding over a dissent that only the January 25, 2010 version of section 4019 applied to the calculation of the defendant’s conduct credit where the sentencing hearing occurred after January 25, 2010].
Defendant contends that the January 25, 2010 version of section 4019 must be used to calculate all of her conduct credit. She points out that the relevant “sentencing hearing... occurred after January 25, 2010, ” and that the superior court, in two prior probation revocation proceedings... which had also occurred after said date, had awarded” conduct credit pursuant to the January 25, 2010 version.
The People contend that both the January 25, 2010 version of section 4019 and the prior version must be used to calculate defendant’s conduct credit. The People argue that although “credits are calculated at the time of sentencing, they are not earned on the sentencing date.” Rather, “inmates earn conduct credits over the course of their custody time.” According to the People, “[t]he old credits were earned under the old version of section 4019, and the new credits are earned under the new version of section 4019.” The People also contend that “[e]mploying a two-tiered calculation is consistent with legislative intent....” The People maintain that the legislative intent behind section 4019 is to encourage good behavior and work performance by inmates, that it is impossible to influence behavior after the fact, and that applying the January 25, 2010 version of the statute to time in custody before January 25, 2010, would provide a defendant “with a windfall of credits for behavior that could not have been influenced by the increased incentive contained in the amendment.” The People further suggest that applying only the January 25, 2010 version might give rise to an equal protection claim by prisoners sentenced prior to January 25, 2010. Lastly, the People contend that application of only the January 25, 2010 version to sentencing hearings occurring thereafter would reward “[f]rivolous or unnecessary delay” in sentencing by defendants.
In construing which version(s) of section 4019 apply to the calculation of defendant’s conduct credit, we apply the well-settled rules governing statutory interpretation. “We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of the statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of intrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]” (People v. Flores (2003) 30 Cal.4th 1059, 1063.) As we stated above, statutory interpretation and the application of a statute are questions of law, which are reviewed under the de novo standard of review. (Amdahl Corp., supra, 116 Cal.App.4th at p. 611.) For the following reasons, we determine that defendant’s conduct credit should be calculated using the 1982 version of section 4019 for time in custody prior to January 25, 2010, and the January 25, 2010 version of section 4019 for time in custody on or after that date.
As we have just explained, the September 28, 2010 version of section 4019, which was in effect at the time of defendant’s December 2010 sentencing hearing, does not apply to the calculation of defendant’s conduct credit, in view of the specific language of that version. We therefore turn to the preceding version of section 4019 effective January 25, 2010. The January 25, 2010 version does not contain any language indicating whether the conduct credit rate specified in that version applies only to actual days in custody after the effective date of the statute, or whether it also applies to actual days in custody prior to the effective date of the statute.
Based on the purpose of section 4019 and the legislative history, we believe that the conduct credit rate in the January 25, 2010 version of section 4019 applies only to actual time in custody on orafter the effective date of that statute. First, the primary purpose of the presentence credit scheme set forth in section 4019 is the encouragement of “ ‘ “minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, supra, 46 Cal.4th at p. 939.) In this case, the more favorable conduct credit rate in the version of section 4019 effective January 25, 2010, could not have influenced defendant’s conduct in custody prior to that date. Second, turning to the legislative history of the amendment to section 4019 effective January 25, 2010, we observe that the amendment was intended to address California’s fiscal emergency by reducing the prison population. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) This fact, however, does not suggest that there was an implied intent that the conduct credit rate in the amendment be applied to time in actual custody prior to its effective date. Although applying the conduct credit rate in the January 25, 2010 version of section 4019 to time in actual custody before and after its effective date might result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced, applying it only to time in actual custody after its effective date would also result in savings.
We also observe that although the calculation of section 4019 credit is the responsibility of the sentencing court, and such credit is either granted or withheld at the time of sentencing (§ 2900.5, subds. (a) & (d); People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Duesler (1988) 203 Cal.App.3d 273, 276, 277; Cal. Rules of Court, rule 4.310), it does not necessarily follow that the calculation of conduct credit is based only on the law in effect at the time of sentencing, where, as here, defendant was in actual custody when two different versions of section 4019 were in effect. (But see People v. Adams (2004) 115 Cal.App.4th 243 [assuming without deciding that the applicable version of section 4019 was the version in effect at the time of the defendant’s offense].)
Defendant points out that the trial court used the January 25, 2010 version of section 4019 to calculate all her conduct credit “in two prior probation revocation proceedings” after the fifth and sixth notices of violation of probation were filed. In other words, the court previously granted defendant the additional conduct credit provided by the January 25, 2010 version of section 4019 for time in custody prior to January 25, 2010.
Thereafter, however, the trial court apparently determined that the prior conduct credit calculations were incorrect and it calculated all of defendant’s conduct credit by apparently using the less favorable two-days-for-every-four-day rate in the September 28, 2010 version of section 4019. (See Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818-819 [trial court had jurisdiction to correct improper calculation of conduct credit after time for filing appeal had expired].) As we have explained, the September 28, 2010 version of section 4019 is not applicable, and defendant’s conduct credit must be calculated by using the 1982 version and the January 25, 2010 version of section 4019.
In summary, the conduct credit rate in the January 25, 2010 version of section 4019 applies only to defendant’s actual days in custody on or after January 25, 2010. For defendant’s time in actual custody prior to January 25, 2010, the 1982 version of section 4019 applies to the calculation of defendant’s conduct credit.
In our request for supplemental briefing, we asked the parties to address whether the record reflects the number of days that defendant was in custody (1) before January 25, 2010, and (2) on or after January 25, 2010. Citing the same pages in the record on appeal, the parties calculate different numbers for both periods of time. Based on our review of the record, including the pages cited by the parties, there appear to be discrepancies in the record concerning the number of days that defendant was in actual custody during the two time periods. Under these circumstances, we will remand the matter to the trial court to determine the correct number of days that defendant was in actual custody during the two relevant time periods and to accordingly calculate defendant’s section 4019 credits under the 1982 version and January 25, 2010 version of section 4019.
IV. DISPOSITION
The judgment (December 14, 2010 order of probation) is reversed. The trial court is directed to hold a new hearing solely with respect to the calculation of defendant’s custody credits under section 4019. The trial court shall determine the number of days that defendant was in actual custody (1) before January 25, 2010, and (2) on or after January 25, 2010, through December 14, 2010. The trial court shall use the 1982 version of section 4019 (Stats. 1982, ch. 1234, § 7) to calculate defendant’s conduct credit for the former period, and the January 25, 2010 version of section 4019 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) to calculate her conduct credit for the latter period.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I CONCUR IN THE JUDGMENT ONLY MIHARA, J.