Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB056600. Ronald M. Christianson, Judge.
Michael F. Obrand, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck Meredith A. Strong and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Maurice Jefferson appeals from an award of custody credits made after he admitted violating his probation and was ordered to serve 365 days in county jail. The sole issue defendant raised in his appeal is whether the trial court erred when it declined to retroactively apply an increase in custody credits made available as a result of an amendment to Penal Code section 4019, which was effective January 25, 2010. We affirm with a minor correction to the calculation of presentence custody credits.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2006, defendant was charged in a felony complaint with assault with a deadly weapon, a razor blade (§ 245, subd. (a)(1)) (count 1); and corporal injury to a cohabitant (§ 273.5, subd. (a)) (count 2). As to each offense, it was alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The complaint further alleges that each count qualifies as a “serious felony” under section 1192.7, subdivision (c)(8) and (c)(23).
Pursuant to a written plea agreement, defendant pled guilty on August 9, 2006, to count 1, assault with a deadly weapon. (§ 245, subd. (a)(1).) As part of the plea agreement, the enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)) and for great bodily injury to the victim (§ 12022.7, subd. (a)) were stricken. Counsel stipulated to the police report as a factual basis for the plea. On September 20, 2006, the court granted probation for a period of three years, subject to various terms and conditions, including 120 days in county jail.
On March 17, 2010, a petition to revoke defendant’s probation was filed after he was arrested for receiving stolen property. Defendant was arraigned on the alleged violations on March 19, 2010, and remanded into custody. On April 19, 2010, defendant admitted the probation violation. The court reinstated probation but ordered defendant to spend 365 days in county jail, with credit for time served. Over defendant’s objection, the court awarded conduct credits at two separate rates based on an amendment to section 4019 effective January 25, 2010. For actual days served prior to January 25, 2010, the court awarded conduct credits at the old rate provided in subdivisions (b) and (c) of former section 4019. For actual days served on or after the effective date of the amendment, the court awarded conduct credits at the new, increased rate provided in subdivisions (b) and (c) in the amended version of section 4019.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its wording prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the prior amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019, concerns the amended version of section 2019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
DISCUSSION
Relying on the reasoning in our Supreme Court’s decision in the case entitled In re Estrada (1965) 63 Cal.2d 740 (Estrada), defendant argues the court should have retroactively applied the new, increased rate of section 4019 conduct credits to all of his actual custody days. However, in People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two] (Otubuah), review granted July 21, 2010, S184314, we recently concluded the reasoning of Estrada does not apply to the increase in section 4019 custody credits. In our view, the statutory amendment to section 4019 only applies prospectively. Some appellate courts have reached a different conclusion. As defendant acknowledges, the issue is presently before our Supreme Court, which has granted review in this and other cases that have addressed the issue, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S18193, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. While we await guidance from the Supreme Court, we continue to agree with our reasoning and decision in Otubuah.
Defendant also argues that prospective-only application of the amendment to section 4019 violates his state and federal equal protection rights. However, this argument was soundly rejected under analogous circumstances in a case entitled In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette). The appellate court in Stinnette rejected an equal protection challenge to the prospective-only application of an analogous statute that allows state prisoners to earn credit for good behavior or participation in certain programs in state prison. (Id. at p. 806.) No equal protection violation was found, because prospective-only application of the statute was reasonably related to a legitimate public purpose of motivating good conduct in prison. (Ibid.) The same is true here, because the amendment to section 4019 is aimed, at least in part, at providing an incentive for good conduct while in custody. We therefore reject defendant’s equal protection argument.
The People argue defendant pled guilty to a “serious felony” within the meaning of section 1192.7, subdivision (c), so the new, increased rate in the amended version of section 4019 does not apply in any event. In response, defendant argues the record does not show he pled guilty to the offense as a “serious felony.” First, the court ordered “all remaining counts and/or enhancements” dismissed, and defendant believes this dismissal included the allegations making the offense a “serious felony.” Second, the complaint alleged the assault offense was a “serious felony” under section 1192.7, subdivision (c)(8) and (c)(23), but defendant did not admit any of the facts to support these “serious felony” allegations at the time of his guilty plea.
In his reply brief, defendant also contends the trial court awarded conduct credits at two separate rates based on the amendment to section 4019 because this was a “material part” of his agreement to admit the probation violation. The transcript of the probation revocation and sentencing hearing on April 19, 2010, does mention an “advisal of rights and plea form.” We therefore augmented the record on our own motion with a copy of the plea agreement defendant signed on April 19, 2010, when he admitted the subject probation violation. (Cal. Rules of Court, rule 8.155(a).) However, the form agreement does not support defendant’s contention there was a material provision allowing him to accrue conduct credits at the new, increased rate.
Under former section 4019, conduct credits could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019, subds. (b), (c).) Effective January 25, 2010, section 4019 was amended to allow accrual of conduct credits at the rate of four days for every four days of presentence custody. (§ 4019, subds. (b), (c), (f).) However, this increased rate does not apply to anyone convicted of “a serious felony, as defined in Section 1192.7.” (§ 4019, subds. (b)(2), (c)(2).) For anyone with a “serious felony, ” conduct credits are accrued at the old rate of two days for every four days of presentence custody. (§ 4019, subds. (b)(2), (c)(2).)
We agree with the People that the record clearly demonstrates defendant pled guilty to a “serious felony” within the meaning of section 1192.7. Although it is clear the court dismissed all remaining counts and enhancements, there is nothing to indicate it also dismissed the specific allegation that the assault offense was a “serious felony” within the meaning of subdivision (c)(8) and/or (23) of section 1192.7. Most tellingly, the first page of the written plea agreement indicates defendant intended to plead guilty to a “strike” offense. The “strike” offense was then delineated as a violation of subdivision (a)(1) of section 245, “assault with a deadly weapon to wit razor blade.” Defendant then pled guilty on the record to “assault with a deadly weapon, to wit, a razor blade, a violation of 245(a)(1).” Subdivision (c)(23) of section 1192.7 defines “serious felony” as “any felony in which the defendant personally used a dangerous or deadly weapon.” Under these circumstances, we can only conclude that inclusion of the term “razor blade” was tantamount to an admission that defendant personally used a dangerous or deadly weapon in the commission of the offense.
Based on the foregoing, defendant pled guilty to a “serious felony” within the meaning of subdivision (c)(23) of section 1192.7. Therefore, he was not entitled to accrue presentence custody credits at the new, increased rate under the amendment to section 4019, which was effective January 25, 2010. For anyone with a “serious felony, ” conduct credits continue to be accrued at the old rate of two days for every four days of presentence custody. (§ 4019, subd. (b)(2), (c)(2).) “Computational errors of this kind result in an unauthorized sentence, and are subject to correction by the trial court or the appellate court when presented. [Citation.] The correction should be made even if it results in less credit (and hence a longer term in custody) for the defendant. [Citation.]” (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) The record indicates defendant spent 175 actual days in custody. The trial court erroneously awarded defendant conduct credit at the new, increased rate of 35 days for 35 actual days in custody. All of defendant’s 175 actual days in custody should have been calculated at the old rate of two days for every four days of presentence custody. In other words, defendant should have been awarded credit for 175 actual days plus 86 days of custody credit under section 4019, for a total of 261 days of presentence credit instead of 280 days.
“The correct amount of credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.)
DISPOSITION
The judgment is modified to reflect that defendant has 261 days of presentence credit, consisting of 175 days in actual custody and 86 days in conduct credits under section 4019. The trial court is directed to correct the record to reflect this modification. The judgment is affirmed in all other respects.
We concur: RICHLI J., CODRINGTON J.