Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR537140, SCR545951
Jones, P.J.
Richard Jeffrey Gates appeals from a judgment entered after he pleaded guilty or no contest to criminal offenses in three separate cases. He contends (1) the clerk’s minutes in one of the cases must be corrected to delete a restitution fine that was not imposed by the trial court, and (2) he is entitled to additional custody credits under recent amendments to the Penal Code. We agree and order the appropriate modifications.
I. FACTUAL AND PROCEDURAL BACKGROUND
We need not describe appellant’s offenses in detail given the nature of the issues that have been raised. It should suffice to say that on September 22, 2008, appellant entered pleas in two separate criminal cases. In case No. SCR-537140, appellant pleaded no contest to possessing methamphetamine for sale (Health & Saf. Code, § 11378), and admitted that he had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) In case No. SCR-545951, appellant pleaded guilty to possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
Unless otherwise indicated, all further section references will be to the Penal Code.
A sentencing hearing for both cases was held on February 20, 2009. At the beginning of that hearing, appellant pleaded no contest to receiving stolen property (§ 496, subd. (a)), in a third case, case No. SCR-553957. The court then sentenced appellant in all three cases. In case No. SCR-537140, the court imposed a four-year term. In case No. SCR-545951, the court imposed a consecutive eight month term. In case No. SCR-553957, the court sentenced appellant to time served.
II. DISCUSSION
A. Restitution Fine
The reporter’s transcript of the February 20, 2009 sentencing hearing indicates the court ordered appellant to pay a single $200 restitution fine under section 1202.4, subdivision (b) and a single $200 parole revocation fine under section 1202.45. However, the clerk’s transcripts in case Nos. SCR-537140 and SCR-545951, indicate that the court imposed both of those fines in both cases. Appellant contends the clerk’s transcript in one of the cases must be modified to show that the court only imposed one set of fines. We agree. As another court stated when faced with this same issue, “the clerk’s minutes must accurately reflect what occurred at the hearing.” (People v. Zackery (2007) 147 Cal.App.4th 380, 388.) “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order....” (Id. at p. 387.) We will order the appropriate modification.
Section 1202.4, subdivision (b) states: “In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.”
Section 1202.45, states in part: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
We elect to order the modification in the case with the higher case number.
The People do not dispute that the court only imposed a single fine under section 1202.4, subdivision (b) and a single fine under section 1202.45. However, the People argue the court erred because it did not impose both fines in all three cases.
The People did not raise this issue in the court below. In People v. Tillman (2000) 22 Cal.4th 300, 303, our Supreme Court ruled that if the People fail to object in the trial court to the court’s failure to impose fines under section 1202.4, subdivision (b) and section 1202.45, they cannot raise that issue on appeal. Based on Tillman, we conclude the People have forfeited the right to argue that the court erred when it failed to impose fines in all three cases. (Ibid.)
The sole case the People cite, People v. Soria (2010) 48 Cal.4th 58, does not change this conclusion. There, the defendant pleaded guilty in three separate cases and the trial court imposed restitution fines under section 1202.4 and 1202.45 in each case. (Id. at p. 62.) The defendant appealed and the appellate court ruled the trial court should only have imposed a single set of fines because the cases had been “effectively consolidated”. (Id. at p. 61.) Our Supreme Court reversed ruling that under a correct reading of the statutes, the fines had to be imposed “in every case”. (Id. at p. 66.)
Soria is distinguishable because the court did not discuss the issue that is pivotal here: whether the People forfeited the right to argue the court erred when it failed to impose fines because they did not raise the issue in the court below. On that issue, Tillman is controlling.
B. Custody Credits
The trial court granted appellant credit for 11 days of actual custody plus 4 days of work and conduct credit for a total of 15 days. Appellant now contends he is entitled to six additional days of credit under recent amendments to section 4019.
The Courts of Appeal have reached different conclusions about whether the recent changes to section 4019 must be applied retroactively. People v. Hopkins (2010) 184 Cal.App.4th 615, holds those amendments are not retroactive. People v. House (2010) 183 Cal.App.4th 1049, People v. Delgado (2010) 184 Cal.App.4th 271, and People v. Landon (2010) 183 Cal.App.4th 1096, all hold the amendments are retroactive. This court has adopted the latter view. (See People v. Pelayo (2010) 184 Cal.App.4th 481.) We adhere to our prior decision and conclude appellant is entitled to additional custody credits.
Under the current version of section 4019, “a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f).) The correct way to calculate credits under the current version is to divide the actual custody credits by two, round down if necessary to the nearest whole number, and then multiply that result by two. (Cf. People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) Applied here because appellant served 11 days of actual credit he is entitled to credit for 10 days. Again, we will order the appropriate modification.
III. DISPOSITION
In case No. SCR-545951, the trial court is ordered to prepare amended minutes deleting the restitution fines under section 1202.4, subdivision (b) and section 1202.45.
In addition, the court is ordered to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment showing appellant is entitled to 11 days actual credit plus 10 days work and conduct credit for a total of 21 days of credit.
In all other respects, the judgment is affirmed.
We concur: Needham, J., Bruiniers, J.