Opinion
D056671 Super. Ct. No. SCD175052 Super. Ct. No. SCD191340
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JODI BETH EHRET, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed in part, reversed in part, and remanded with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2003 Jodi Beth Ehret pleaded guilty to one count of the sale of methamphetamine (Health & Saf. Code, § 11379) (the 2003 case). In August 2005 Ehret pleaded guilty to one count possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (the 2005 case). As part of her plea agreements, Ehret served 90 days in county jail (with two days' credit) and was placed on three years' formal probation, which was revoked and reinstated numerous times between March 2005 and May 2006 because she violated its terms.
The facts of the offenses are omitted because they are not relevant to the issues raised on appeal.
After her probation was revoked for a seventh time, Ehret appeared before Judge William Kronberger for sentencing on both the 2003 and 2005 cases in May 2009. Judge Kronberger sentenced Ehret to three years in state prison for the 2003 case and one year in state prison for the 2005 case. Judge Kronberger imposed but stayed the sentence pending Ehret's successful completion of probation.
In August 2009 Ehret was arrested and charged for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (the 2009 case). Due to this offense, Judge Kronberger set the 2003 and 2005 cases for a probation revocation hearing for November 12, 2009.
In October 2009 Judge Patricia K. Cookson presided over a preliminary hearing on the 2009 case and also conducted a hearing on the probation revocations for the 2003 and 2005 cases. Judge Cookson found the facts of the preliminary hearing on the 2009 case a sufficient basis to revoke Ehret's probation for the 2003 and 2005 cases, but did not vacate the November date for the hearing before Judge Kronberger. Judge Cookson stated she intended to have Judge Kronberger preside over the sentencing hearings for the 2003 and 2005 cases.
Ehret did not appear at the November 12 hearing. Judge Kronberger then set the date for sentencing after revocation for November 24, 2009, which took place before Judge Peter C. Deddeh. Judge Deddeh denied Ehret's request to send the case to Judge Kronberger. Judge Deddeh then lifted the stay Judge Kronberger had imposed and executed the sentence of four years in state prison. The court awarded Ehret 396 days credit for her 264 days served in presentence custody and 132 days of conduct credit under Penal Code section 4019. (Undesignated statutory references are to the Penal Code.)
Ehret appeals, contending (1) Judge Deddeh erred in not following Judge Cookson's order to have Judge Kronberger preside over Ehret's sentencing hearings; (2) Judge Deddeh failed to state on the record he had read and considered Ehret's probation reports in sentencing her as required under section 1203, subdivision (b); and (3) she is entitled to an additional 132 days of conduct credit for a total of 528 days (not 396 days) of presentence custody credits because the January 25, 2010 amendments to section 4019 apply retroactively.
We reject Ehret's contention Judge Deddeh should have sent the sentencing hearing to Judge Kronberger; however, we conclude the amended version of section 4019 applies retroactively. Accordingly, we remand the matter to the trial court to determine the number of additional days of presentence credit to which Ehret is entitled under that section and to correct both its minutes from the 2009 sentencing hearing and the abstract of judgment. In all other respects, the judgment is affirmed.
Relying on In re Young (2004) 32 Cal.4th 900 and In re Reina (1985) 171 Cal.App.3d 638, Ehret contends any custody credits earned under section 4019 should apply to reduce her parole period. However, neither of these cases addresses the issue of the applicability of presentence custody credits earned under section 4019 to parole periods. Accordingly, Ehret's contention is unavailing.
I
DISCUSSION
A. Sentencing
Ehret contends Judge Deddeh erred in refusing to send her sentencing hearing to Judge Kronberger, which she asserts Judge Cookson ordered. Ehret asserts the order was binding on Judge Deddeh and he did not have the discretion to refuse to enforce it. Therefore, Ehret contends she did not receive a second probation revocation hearing on the 2003 and 2005 cases to which she was entitled to have before Judge Kronberger. These contentions are unavailing.
At the October 7 preliminary hearing, Judge Cookson stated: "I'm going to use the facts at the preliminary hearing as a basis to revoke her violation." We assume Judge Cookson meant "probation" instead of "violation."
Assuming without deciding Judge Cookson did, in fact, order the probation revocation hearing be before Judge Kronberger, the record clearly indicates the court set one for November 12, which Ehret did not attend. Thus, Judge Kronberger ordered her probation revoked. Ehret provides no reason on appeal as to why she did not attend the hearing. Therefore, she was not denied the right to a probation revocation hearing and, thus, cannot prove she was prejudiced by Judge Deddeh's sentencing her without the court conducting a probation revocation hearing.
Judge Deddeh properly sentenced Ehret on November 24 according to Judge Kronberger's order from the November 12 hearing. Accordingly, Ehret's sentence is affirmed.
Relying on People v. Gorley (1988) 203 Cal.App.3d 498 (Gorley), Ehret contends Judge Deddeh failed to comply with section 1203, subdivision (b), which provides the sentencing judge "shall make a statement that it has considered [any probation officer's report(s)]." The court in Gorley held a sentencing judge need not formally certify a report on the record to comply with section 1203, subdivision (b). Rather, the court in Gorley concluded "section 1203, subdivision (b), is sufficiently served . . . if the record otherwise clearly shows that the court has read the [probation report] or has considered the information provided in it." (Id. at 506-507.)
Here, although Judge Deddeh does not explicitly state he read Ehret's probation report, the record clearly indicates he considered the information provided in it when sentencing Ehret. Specifically, Judge Deddeh stated at the time of the hearing, Ehret's "probation remain[ed] modified and continued, same terms and conditions" and went on to discuss the warrant issued for violation of the probation's terms, as well as Ehret's other multiple violations. Judge Deddeh also expressed his lack of faith in Ehret's ability to abide by the terms of her probation if released. The People stated they "concur[red] with the court's analysis, especially based on the probation ex parte report . . ., which details all of the revocations and the basis for her having a warrant." Thus, the record clearly indicates Judge Deddeh considered the information provided in Ehret's probation reports.
B. Statutory presentence credit scheme (§ 4019)
"The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed . . . ." (People v. Buckhalter (2001) 26 Cal.4th 20, 36.) " '[O]nce a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration.' " (Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck), quoting Buckhalter, at p. 31.)
1. Former section 4019, subdivisions (b), (c) and (f)
Prior to January 25, 2010, subdivisions (b) and (c) of former section 4019 together allowed a defendant to earn up to a total of two days of conduct credit for each six-day period of presentence confinement or commitment to custody. (Former § 4019, subds. (b) & (c), amended by Stats. 1982, ch. 1234, § 7, p. 4553.)
Subdivision (b) of former section 4019 governed a defendant's entitlement to presentence worktime credits and provided that, "for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . ." (See Dieck, supra, 46 Cal.4th at p. 939.) Subdivision (c) of that section governed a defendant's entitlement to presentence good behavior credits and provided that, "for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner" had failed to comply with applicable rules and regulations. (See Dieck, at p. 939.)
If a defendant earned all of the available presentence conduct credits, he or she would be deemed under subdivision (f) of former section 4019 to have served six days for every four days spent in actual custody, and thus would be entitled to a total of two days of conduct credit under subdivisions (b) and (c) of that section for each four-day period of incarceration. As the California Supreme Court has explained, subdivision (f) of former section 4019 "clarifie[d] that subdivisions (b) and (c) are to be read together to provide a total of two days of conduct credit for every four-day period of incarceration: 'It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.'" (Dieck, supra, 46 Cal.4th at p. 939, quoting former § 4019, subd. (f), italics added.)
Thus, the conduct credit ratio set forth in former section 4019 was two days of conduct credit for every four days spent in actual custody, which equates to a ratio of one-to-two (or 50 percent). (Former § 4019, subds. (b), (c) & (f); Dieck, supra, 46 Cal.4th at p. 939.) Accordingly, assuming the defendant earned all of the presentence conduct credits available under subdivisions (b) and (c) of former section 4019, he or she was entitled under subdivision (f) of that section to an award of one day of conduct credit for every two days spent in actual custody. (See Dieck, at p. 939.)
The California Supreme Court used the term "conduct credit ratio" in Dieck, supra, 46 Cal.4th at page 942 ["[former] section 4019, subdivisions (b) and (c) cannot be read as limiting conduct credit entitlement only to those who have served a six-day period of confinement, because such an interpretation would alter the conduct credit ratio set forth in the statute" (italics added)]. We use this term to refer to the number of conduct credits a defendant is eligible to earn under section 4019 for a given period of time actually spent in presentence local custody.
2. Amended section 4019, subdivisions (b)(1), (c)(1) and (f)
The amended version of section 4019 that became effective on January 25, 2010 (before Ehret was sentenced in November of that year) and remained in effect through September 27, 2010, doubled the conduct credit ratio by allowing a defendant to earn two days of presentence conduct credit for every two days spent in actual custody, rather than two days of presentence conduct credit for every four days spent in actual custody as provided by former section 4019. (§ 4019, amended by Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50, pp. 4427-4428, eff. Jan. 25, 2010; specifically, subds. (b)(1), (c)(1) & (f) of amended § 4019, discussed, post.)
See Statutes 2010, chapter 426, section 2, amending section 4019 effective September 28, 2010.
This doubling of the conduct credit ratio—from two days of conduct credit for every four days of actual custody (50 percent) to two days of conduct credit for every two days of actual custody (100 percent)—resulted from amendments to subdivisions (b), (c) and (f) of former section 4019. New subdivisions (b)(1) and (c)(1) of the amended version of section 4019 together allowed a defendant to earn up to a total of two days of conduct credit for each four-day period of presentence confinement or commitment to custody, rather than two days of conduct credit for each six-day period of presentence confinement or commitment to custody as provided by former section 4019, subdivisions (b) and (c).
Subdivision (b)(1) of amended section 4019, which governed a defendant's entitlement to presentence worktime credits, provided that, "for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . ." (Ibid., italics added.) As noted, subdivision (b) of former section 4019 had allowed a defendant to earn one day of presentence worktime credit for each six-day period of confinement or commitment to custody.
Subdivision (c)(1) of amended section 4019, which governed a defendant's entitlement to presentence good behavior credits, similarly provided that, "[f]or each fourday period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner" had failed to comply with applicable rules and regulations. (Ibid., italics added.) As also noted, subdivision (c) of former section 4019 had allowed a defendant to earn one day of presentence good behavior credit for each sixday period of confinement or commitment to custody.
Subdivision (f) of section 4019, which was also amended, provided: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Italics added.)
Under this amendment to subdivision (f), a defendant who earned all of the available presentence conduct credits would be deemed to have served four days for every two days spent in actual custody, rather than six days for every four days spent in actual custody as provided by the former version of subdivision (f), and thus would be entitled to a total of two days of conduct credit under subdivisions (b)(1) and (c)(1) of amended section 4019 for each two-day period of incarceration. Subdivision (f) of amended section 4019 thus clarified that subdivisions (b)(1) and (c)(1) of that section are to be read together and with amended subdivision (f) to provide a total of two days of conduct credit for every two-day period of incarceration, which results in the new conduct credit ratio of 100 percent. Accordingly, assuming the defendant earned all of the presentence conduct credits available under subdivisions (b)(1) and (c)(1) of amended section 4019, he or she would be entitled under subdivision (f) of that section to an award of one day of conduct credit for every one day spent in actual custody. (See Dieck, supra, 46 Cal.4th at p. 939.)
C. Analysis
Numerous published opinions have addressed the issue of whether amended section 4019 applies retroactively, which will be resolved by the California Supreme Court. Two of the Court of Appeal decisions—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 amendments are not retroactive. In contrast, the majority of published decisions hold that the statutory amendments are retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because section 4019 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 Aug. 25, 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.)
Some decisions of the Court 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, for example, 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, the Court of Appeal in People v. Doganiere (1978) 86 Cal.App.3d 237, 239, applied the rule in Estrada to section 4019, as originally enacted, treating its provision of conduct credits as a law "granting amelioration in punishment."
We likewise conclude that the general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. Those 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 offenders who have demonstrated good behavior while in custody. Therefore, we hold the amendments to section 4019 apply retroactively, and thus Ehret is entitled to the benefit of the amendments and her presentence local conduct credits must be recalculated.
DISPOSITION
The court award of 132 days of section 4019 conduct credits and the total award of 396 days credit are reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions to (1) determine the number of additional days of section 4019 conduct credits and the resulting total number days of custody credit to which Ehret is entitled pursuant to the retroactive application of the amended version of section 4019 that became effective on January 25, 2010; (2) correct its minutes from the July 9, 2010 sentencing hearing to reflect the corrected credit awards; (3) correct the abstract of judgment accordingly; and (4) forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
NARES, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.