Opinion
F060067 Super. Ct. No. MCR032673
08-25-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK MICHAEL ENOS, Defendant and Appellant.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Hill, P.J., Cornell, J. and Dawson, J.
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Michael Enos contends the trial court erred when it calculated his sentence to apply the increased conduct credits provided by the amendments to Penal Code section 4019 only to the days he spent in custody on and after January 25, 2010, the effective date of the amendments. We modify the judgment to award additional credits for days appellant was in custody prior to that date and affirm.
BACKGROUND
On May 4, 2009, appellant pled guilty to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted prior prison term and bail enhancement allegations (Pen. Code, §§ 667.5, subd. (b), 12022.1). On July 6, 2009, trial court suspended imposition of sentence, granted appellant probation, and ordered appellant to complete drug court. On August 24, 2009, the court revoked and then reinstated probation, referring appellant back to drug court.
Further statutory references are to the Penal Code unless otherwise specified.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.)
Section 4019 was amended again effective September 28, 2010. (Stats. 2009-2010, Reg. Sess., ch. 426 (S.B. 76), § 2.) 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. Because the latest version of the statute applies only to crimes committed after its effective date, it does not affect our resolution of the issues in this case. (See Current § 4019, subd. (f).) We note that, on April 4, 2011, section 4019 was yet again amended. (Stats. 2011-2012, ch. 15, § 482.) However, the operation of this latest amendment is conditional on the creation and funding of a community corrections grant program. (Id. at § 636.)
On February 26, 2010, the trial court again revoked appellant's probation.
On April 2, 2010, the trial court sentenced appellant to prison for five years. The court awarded appellant 250 days of presentence custody credit, including 146 days of actual credit and 104 days of conduct credit. In calculating appellant's conduct credits, the court applied amended section 4019 only to the days appellant spent in custody on and after January 25, 2010, and applied former section 4019 to the days appellant spent in custody prior to January 25, 2010. Appellant appealed.
The trial court subsequently denied a request by appellant to award additional conduct credit by applying amended section 4019 to the time he spent in custody prior to January 25, 2010, but recalculated appellant's conduct credits to award him an additional three days, bringing the total to 107 days of conduct credit.
DISCUSSION
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793 (Duff).)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." (Duff, supra, 50 Cal.4th at p. 793.) The January 25, 2010 amendment provided for the granting 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).)
Appellant contends the trial court erred when it calculated his conduct credits at sentencing by applying amended section 4019 only to time spent in custody on and after the January 25, 2010 effective date of the statute. Respondent contends the court did not err because amended section 4019 applies prospectively only. We hold that, because amended section 4019 was in effect at the time of sentencing, the trial court should have awarded conduct credits for the entirety of appellant's presentence custody pursuant to the terms of amended section 4019. (See People v. Sandoval (2007) 41 Cal.4th 825, 845 ["a change in procedural law is not retroactive when applied to proceedings that take place after its enactment"]; see also People v. Grant (1999) 20 Cal.4th 150, 157 ["A law is not retroactive 'merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment'"].)
"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, fn. omitted.) 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 Penal Code 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 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 it was the only version of section 4019 operative at the time of appellant'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 appellant had been in custody while the former version of section 4019 had provided a lesser amount of credits. Because "the record fails to show that [appellant] 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.
Accordingly, because appellant had served a total of 146 days in local custody prior to sentencing, and there was no showing he was not entitled to conduct credits, he was entitled to 146 days of section 4019 credit.
DISPOSITION
The judgment is modified to award appellant a total of 292 days of presentence credits (146 days actual, plus 146 days conduct credit). The trial court is directed to amend the abstract of judgment and forward it to the appropriate agencies. In all other respects, the judgment is affirmed.