Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FSB059748, FSB700903, FSB705035, FSB1003374 David Cohn, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
In four separate cases, defendant and appellant Cory Antone McDaniel pled guilty to possession of a controlled substance. In the first three cases, he was placed on probation. In the final case, pursuant to a plea agreement, he was sentenced to the low term of 16 months in state prison. He received credit for time served in each of the cases. Defendant’s sole contention on appeal is that he is entitled to additional presentence conduct credits for all periods of incarceration pursuant to amended Penal Code section 4019 that became effective on January 25, 2010. We agree and will modify the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the 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 4019 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.
I
The details of defendant’s criminal conduct are not relevant to the limited issue he raises in this appeal, and we will not recount them here.
On January 16, 2007, in case No. FSB059748 (case No. 1), defendant pled guilty to possession of a controlled substance, to wit, methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)). In return, the remaining allegations were dismissed, and defendant was granted Proposition 36 drug treatment on various terms and conditions pursuant to section 1210.1.
At the time of sentencing, the trial court struck the prior prison term enhancement.
On July 24, 2007, in case No. FSB700903 (case No. 2), defendant again pled guilty to possession of a methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and was granted Proposition 36 treatment.
On January 28, 2008, in case No. FSB705035 (case No. 3), defendant pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)). In return, the remaining allegations were dismissed, and defendant was placed on formal probation for a period of 36 months on various terms and conditions, including serving 270 days in county jail.
On August 12, 2010, in case No. FSB1003374 (case No. 4), a complaint was filed charging defendant with one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The complaint also alleged that defendant had suffered one prior prison term within the meaning of Penal Code section 667.5, subdivision (b). On that same day, the probation department filed a petition to revoke defendant’s probation for failing to follow the law, failing to cooperate and follow the reasonable directives of the probation officer in a plan of rehabilitation, and possession of a controlled substance.
On August 31, 2010, in case No. 4, defendant pled guilty to possession of methamphetamine in exchange for the dismissal of the remaining allegation and a stipulated sentence of 16 months in state prison.
On September 3, 2010, defendant admitted that he had violated the terms of his probation in case Nos. 1, 2, and 3, and defendant’s probation was revoked.
In case No 1, defendant was sentenced to the low term of 16 months for the substantive count, plus one year for the prior prison term enhancement for a total term of two years four months in state prison, to run consecutively to case No. 4 with credit for time served. In that case, defendant received 253 days of actual credit, plus 114 conduct credits spent for the time spent in custody prior to January 25, 2010, and 24 conduct credits for the time defendant spent in custody after January 25. The court also awarded defendant 185 days of actual credit for time spent in a residential drug treatment facility. Defendant therefore received a total of 576 days of presentence custody credits.
In case No. 2, defendant was sentenced to a total term of 16 months in state prison to run concurrently with case No. 4 and awarded a total of 278 days of presentence custody credits. He received 178 actual days of credit, 76 days of conduct credit for the time spent in custody prior to January 25, 2010, and 24 days of conduct credits for the time he spent in custody after January 25.
In case No. 3, defendant was again sentenced to a total term of 16 months in state prison to run consecutively to case No. 4 and awarded a total of 278 days of presentence custody credits: 178 actual days of credit, 76 days of conduct credit for the time spent in custody prior to January 25, 2010, and 24 days of conduct credits for the time he spent in custody after January 25.
In case No. 4, pursuant to the plea agreement, defendant was sentenced to the stipulated sentence of 16 months in state prison. He was awarded a total of 48 days of presentence custody credits: 24 days of actual credit and 24 days of conduct credit since the 24 actual days in case No. 4 were served after January 25, 2010.
II
DISCUSSION
Defendant contends he is entitled to the enhanced presentence custody credits provided by the amended version of section 4019 to all of the time he spent in custody before being sentenced, including the days he spent in custody before the amendments to section 4019 took effect on January 25, 2010. We agree.
When the crimes were committed, as well as when defendant was granted probation in the various cases, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
Initially, we reject defendant’s claim that amended section 4019 applies retroactively. This issue of retroactive application of the current version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As it will have the last word on the subject, we discuss the issue only summarily.
The California Supreme Court granted review of People v. Brown, supra, 182 Cal.App.4th at pages 1363 through 1365, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13, review granted June 9, 2010, S181808, which held that the amendments were not retroactive.
Under section 3, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [ Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b), (c), amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 41, p. 4422.) Implicitly but necessarily, all other enhanced credits for all other defendants are prospective only.
In any event, the issue here is not whether amended section 4019 should be applied retroactively or prospectively, but whether amended section 4019 applies to all presentence custody, even if some portion of the presentence custody predates the amendment’s effective date.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). “‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) As previously noted, under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants are now eligible to earn two days of conduct credits for every two days of actual custody. (Ibid.) The amendments to section 4019 went into effect on January 25, 2010.
The California Supreme Court has stated: “‘[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. (§ 2900.5, subd. (d)....)” (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) “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 on felony charges.” (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as “conduct credit[s].” (People v. Dieck, supra, 46 Cal.4th at p. 939, fn. 3.)
“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. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b)....)” (Buckhalter, supra, 26 Cal.4th at p. 30.) The previous version of section 4019 granted fewer presentence custody credits. The 2010 modified version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, “including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment” (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions “following arrest and prior to the imposition of sentence for a felony conviction” (id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265). If those persons are not required to register as sex offenders and are not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
The previous version of section 4019 provided for presentence custody credits for: “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 of up to two additional days for every four of actual custody. [Citation.] One such additional day is awarded unless the detainee refused to satisfactorily perform assigned labor, and a second such additional day is awarded unless the detainee failed to comply with reasonable rules and regulations.” (Buckhalter, supra, 26 Cal.4th at p. 30, fn. omitted.)
Here, defendant’s criminal acts and probation violations were committed before the amendment to section 4019 became effective, but his sentencing did not occur until after the amendment to section 4019 became effective. Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant’s presentence credits based on the different versions of section 4019 in effect at different times during defendant’s presentence custody. This was error because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, 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.
III
DISPOSITION
The judgment is modified to award defendant additional presentence conduct credits as follows: (1) in case No. FSB059748 (case No. 1), defendant is entitled to an additional 115 days of conduct credits, for a total of 691 days of presentence credit (253 actual days, plus 253 conduct credits, plus 185 days of actual credit for the time spent in a residential facility); (2) in case No. FSB700903 (case No. 2), defendant is entitled to an additional 78 days of conduct credits, for a total of 356 days of presentence credit (178 actual days, plus 178 conduct credits); and (3) in case No. FSB705035 (case No. 3), defendant is entitled to an additional 78 days of conduct credits, for a total of 356 days of presentence credit (178 actual days, plus 178 conduct credits).
The trial court is directed to amend the sentencing minute order of September 3, 2010, and the abstract of judgment to reflect the above modifications and 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: MILLER, J., CODRINGTON, J.
We note the following appellate courts have found the section 4019 amendment to be retroactive: People v. Brown, supra, 182 Cal.App.4th 1354 (Third Dist.), review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096 (First Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (Second Dist., Div. One), review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408 (First Dist., Div. Three), review granted August 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 (First Dist., Div. Five), review granted July 21, 2010, S183552; and People v. Bacon (2010) 186 Cal.App.4th 333, 335 through 337 (Second Dist., Div. Eight), review granted October 13, 2010, S184782.
The following appellate courts have found the section 4019 amendment to be prospective only: People v. Rodriguez, supra, 183 Cal.App.4th at p. 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 and 627 (Sixth Dist.), review granted July 28, 2010, S183724; and People v. Eusebio (2010) 185 Cal.App.4th 990 (Second Dist., Div. Four), review granted September 22, 2010, S184957.