Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB050054. David Cohn, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant Alice Tomasa Fuentes appeals after she pleaded guilty to possession of a controlled substance. She was placed on supervised probation for drug offenders pursuant to Proposition 36 (Pen. Code, § 1210 et seq.). She was eventually sentenced to state prison after several probation violations. On appeal she raises the sole contention that amendments to section 4019, providing for enhanced behavior credits against a state prison sentence, should be applied to her. While this court has held in other cases that the amendments to the conduct credits provisions are not retroactive, here defendant was not sentenced until after the effective date of the amendments, and thus the case does not involve retroactivity as such. The amended statute was in effect at the time of defendant’s sentence, and thus she should have received credits under the new scheme. We therefore modify and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In May 2005, police were called to investigate reports of trespassers in a condemned building. The investigating officers found defendant, who had a methamphetamine pipe and a baggie of methamphetamine next to her. She had a syringe and more methamphetamine on her person. Defendant was charged with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and two counts of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
Defendant pleaded guilty to the felony offense and was granted drug probation under Proposition 36. Defendant violated her probation on many occasions between 2005 and 2010, when she was eventually sentenced to state prison for two years. At sentencing, defendant was awarded 395 days of total presentence credit, consisting of 261 actual days of custody, plus 134 days of local conduct credits under section 4019. Of defendant’s actual days of presentence custody, she served 253 days before January 25, 2010, and eight days after January 25, 2010.
January 25, 2010, is the effective date of the amendment to section 4019, which now provides a different rate for earning local custody conduct credits. The court awarded defendant most of her conduct credits at the old rate, for the presentence time she served before January 15, 2010, and the new rate of conduct credits only for the days of actual custody defendant served after the amendment date. Defendant moved for an award of custody credits at the new rate for all her presentence custody time; the court denied her request.
The court awarded presentence credits as follows:
Defendant now appeals.
ANALYSIS
I. Defendant Was Sentenced After the Amendment, and the Credits Should Therefore Have Been Calculated Under the Amended Statute
Before January 25, 2010, subdivisions (b) and (c) of section 4019 provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) of section 4019 provided 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.” (Stats. 1982, ch. 1234, § 7, p. 4554.)
Effective January 25, 2010, Senate Bill No. 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate. New subdivisions (b)(1) and (c)(1) of section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), “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....” (§ 4019, subd. (f); see also Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) The amendment to section 4019 has raised questions whether it should be applied retroactively. Defendant’s appeal initially raised the issue in terms of such retroactivity. The retroactivity question has engendered a split of authority among the Courts of Appeal. The California Supreme Court granted review of People v. Brown, supra, 182 Cal.App.4th at pp. 1363-1365 (review granted June 9, 2010, S181963), which held that the amendments applied retroactively, and People v. Rodriguez, supra, 183 Cal.App.4th at p. 13 (review granted June 9, 2010, S181808), which held that the amendments were not retroactive. Review was also granted in People v. Otubuah, supra, 184 Cal.App.4th at p. 436 [Fourth Dist., Div. Two] (review granted July 21, 2010, S184314), a decision of this court also holding that the amendments were not retroactive.
Section 4019 amendment held retroactive: People v. Brown (2010) 182 Cal.App.4th 1354, 1364–1365 [Third Dist.] review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 [First Dist., Div. Two] review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057 [Second Dist., Div. One] review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408, 417 [First Dist., Div. Three] review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, 483–484 [First Dist., Div. Five] review granted July 21, 2010, S183552; People v. Bacon (2010) 186 Cal.App.4th 333, 335–337 [Second Dist., Div. Eight] petition for review pending S184782; People v. Keating (2010) 185 Cal.App.4th 364, 382-391 [Second Dist. Div. Seven] review granted Sept. 22, 2010, S184354.
However, the retroactivity of the amendments is not strictly at issue in this case. Rather, the issue is how to calculate the credits properly.
Here, defendant's criminal act was committed, and she was admitted to probation, before the amendment to section 4019 became effective. She was not sentenced, however, until after it became effective. Therefore, defendant was required to be sentenced under the provision in effect at that time, i.e., the amended statute.
The court calculated defendant’s presentence credits in two phases, awarding the credits at the old rate for the 253 days she was in custody on or before January 25, 2010, and at the new rate for the eight days that defendant was in custody after January 25, 2010. This was error because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. In other words, the previous version of section 4019 was no longer valid at the time of defendant’s sentencing, and therefore the trial court was unauthorized to apply the previous statute to defendant’s sentence.
We therefore order the judgment modified to award defendant an additional 126 days of presentence conduct credit, for a total of 521 days of presentence credit (261 days actual, plus 260 days conduct credit).
DISPOSITION
The judgment is modified to award presentence credit consisting of 261 days of actual custody time, plus 260 days of presentence conduct credit, for a total of 521 days of presentence credit. The trial court is directed to amend the sentencing minute order of April 16, 2010, and the abstract of judgment to reflect 521 days of presentence credit. The trial court is also directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.
For 253 days before January 25, 2010, defendant served 63 full four-day periods. At the rate of two days per full four-day periods, defendant was awarded 126 days of presentence conduct credit at the old rate.
For eight days on and after January 25, 2020, defendant served 4 full two-day periods. At the rate of two days per full two-day period, defendant was awarded eight days of presentence conduct credit at the new rate.
The total presentence credit awarded was 126 days plus eight days, or 134 days. When the conduct credits were added to defendant’s actual days served (261 days), defendant was awarded a total of 395 days of presentence credit. (For a discussion of credits calculation, see In re Marquez (2003) 30 Cal.4th 14, 24-26.)
Section 4019 amendment held prospective only: People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 [Fifth Dist.] review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 [Fourth Dist., Div. Two] review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, 626–627 [Sixth Dist.] review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 [Second Dist., Div. Four] review granted Sept. 22, 2010, S184957.