Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA017491, Kyle S. Brodie, Judge.
Neil Auwarter, 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, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant and appellant Patricia Mendez appeals following the revocation and termination of her probation. She argues she is entitled to have all of her presentence custody credits calculated at the higher rate provided in the amended version of Penal Code section 4019, effective January 25, 2010. In addition, she argues she is entitled to an additional 12 days of credit, because the trial court used the wrong sentencing date when calculating her credits.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged with kidnapping (count 1—Pen. Code, § 207, subd. (a)); false imprisonment (count 4—Pen. Code, § 236); and possession of methamphetamine (count 5—Health & Saf. § 11377, subd. (a)). Pursuant to a written plea agreement, defendant pled guilty on August 8, 2002, to counts 4 and 5. She was then granted supervised probation for a period of 36 months subject to various terms and conditions, including 365 days in jail.
A codefendant was also charged in the same case, but the charges against the codefendant were resolved separately.
On July 20, 2004, a petition was filed alleging defendant violated several terms of her probation. She admitted the probation violations on September 29, 2004. The court reinstated her probation on the original terms and conditions.
A second revocation petition was filed on January 24, 2005, alleging defendant violated the terms and conditions of her probation; she failed to report to the probation officer, to cooperate with a rehabilitation plan, to keep the probation officer advised of her place of residence, and to register with the appropriate authorities. She admitted the violations on July 7, 2010; the court terminated her probation and sentenced her to a total term of two years in state prison.
DISCUSSION
A. MISCALCULATION OF ACTUAL DAYS IN CUSTODY PRIOR TO SENTENCING
Defendant contends and the People concede that the trial court miscalculated the days defendant actually spent in custody through the date she was sentenced. We agree with the parties that defendant is entitled to a correction of the actual days she spent in pre-sentence custody.
Section 1237.1 states in part as follows: “No appeal shall be taken... on the ground of an error in the calculation of presentence custody credits, unless the defendant... first makes a motion for correction of the record in the trial court.” However, section 1237.1 does not require the defendant to first file a motion to correct an award of presentence credits when other issues are raised on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427.) Here, defendant has raised a separate issue in this appeal, so we may consider his miscalculation claim.
The record indicates the probation report was prepared for sentencing on July 1, 2010. However, defendant was not actually sentenced until July 7, 2010. At that time, the court awarded credits based on the probation report without accounting for the additional six days defendant actually spent in custody. Although the minutes and the abstract of judgment show defendant spent 309 actual days in custody, these documents should in fact reflect that she spent 315 actual days in custody. Defendant is therefore entitled to have the record corrected.
B. PRESENTENCE CUSTODY CREDITS PURSUANT TO AMENDED SECTION 4019
Prior to an amendment effective January 25, 2010, section 4019 allowed a defendant to earn two days of presentence conduct credit for every four days in presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, the Legislature amended section 4019 to provide for an increase in the amount of presentence conduct credits to four days for every four days in presentence custody. (Former § 4019, amended by Stats. 2009-2010, ch. 28, § 50.)
We note that section 4019 was amended again effective September 28, 2010, to return to the accrual rate for presentence credits in effect prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) As of this writing, additional amendments to section 4019 are pending in the Legislature. The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Therefore, unless otherwise specified, any reference to section 4019, or the 2010 amendments 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.
In People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two] (Otubuah), review granted July 21, 2010, S184314, we concluded the statutory amendments increasing section 4019 credits is not retroactive to defendants sentenced prior to the January 25, 2010, the effective date of the amendments. Some appellate courts have reached a different conclusion. The issue is presently before our Supreme Court, which has granted review in this and other similar cases that have addressed the issue, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, 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.
A “retroactive law” is “[a] legislative act that looks backward or contemplates the past, affecting acts or facts that existed before the act came into effect.” (Black’s Law Dict. (8th ed. 2004) p. 1343, col. 1.) By contrast, a “prospective statute” is “[a] law that applies to future events.” (Black’s Law Dict. (8th ed. 2004) p. 1449, col. 1.)
In this case, the facts and circumstances are distinguishable from those in Otubuah, because defendant was sentenced after the effective date of the amendments. Here, the court awarded defendant presentence conduct credits under section 4019 at two different rates based on whether the time spent in custody was served before or after the effective date of the January 25, 2010, amendments to section 4019. For the 281 days defendant spent in custody prior to January 25, 2010, the court awarded conduct credits at the rate provided in former section 4019. For the 28 days spent in custody after the January 25, 2010, effective date, the court awarded conduct credits at the higher rate provided in the amendments. As noted above, defendant contends the court should have calculated all of her conduct credits at the higher rate, because she was sentenced after the effective date of the amendments.
Whether the increased rate of accrual for presentence custody credits in section 4019, effective January 25, 2010, applies to all or only some of the time defendant spent in custody prior to sentencing, is a question of statutory construction. “‘The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent.’” (People v. Jefferson (1999) 21 Cal.4th 86, 94.) A de novo standard of review is applied when the trial court’s order turns on the interpretation of a statute. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1288.)
“Conduct credits for presentence custody are credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ (Pen. Code, § 2900.5, subd. (a).) It is the duty of the sentencing court to determine ‘the total number of days to be credited...’ for presentence custody. (Pen. Code, § 2900.5, subd. (d); [citations].” (People v. Duesler (1988) 203 Cal.App.3d 273, 276.) “The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits.” (Ibid.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity” to be heard. (Id. at p. 277.) In sum, section 4019 credits are either withheld or granted at the discretion of the court at the time of sentencing.
As of January 25, 2010, section 4019 read in part as follows: “(b)(1)... for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned.... [¶]... [¶] (c)(1)... for each four-day period in which a prisoner is confined in or committed to a [jail], one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established.... [¶]... [¶] (f) It is the intent of the Legislature that 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....”
We acknowledge the People’s contention that there is some support in case law for the use of a dual formula to calculate an increase in credits. (In re Stinnette (1979) 94 Cal.App.3d 800; In re Strick (1983) 148 Cal.App.3d 906; In re Bender (1983) 149 Cal.App.3d 380.) These cases are distinguishable, because the applicable statutory amendments or enactments at issue expressly provided for the use of a dual formula. For example, the defendant in Strick began serving his sentence on June 3, 1980, and was given credit for presentence custody. Shortly thereafter, he began working as a clerk and continued to work in this capacity throughout his incarceration. Under section 2931, subdivision (a), the defendant qualified to reduce his prison term by one-third for good behavior and participation. (Strick, at p. 909.) However, effective January 1, 1983, the Legislature enacted a new credit system that awarded work-time credits in place of good behavior credits at a higher rate—for every six months of work, a prisoner would be awarded a six-month reduction from his term of confinement. (Id. at pp. 909-910.) The new rate did not apply to work performed before the effective date of January 1, 1983. Prisoners who committed crimes and were serving their sentences prior to the January 1, 1983, effective date could waive participation in the old credit system and begin earning credits at the new, increased rate for work performed on or after January 1, 1983. (Id. at p. 910.) The defendant elected to execute a waiver to obtain the benefits of the new system. As a result, a “dual formula” was applied to calculate the defendant’s release date. He retained the credits he previously accumulated under the old system and began earning credits at the higher rate as of January 1, 1983. (Ibid.) The appellate court concluded it was not a violation of equal protection for the new rate of credits to apply only to work performed after the January 1, 1983, effective date. (Id. at p. 913.)
Here, the trial court did not state a reason for awarding credits under section 4019 at two different rates, and the probation report does not explain its reasons for recommending the use of a dual formula for calculating the credits. The amendments to section 4019 effective January 25, 2010, do not include any provision from which we could conclude the Legislature intended trial courts to award credits at two different rates depending on whether the time in custody was served before or after the effective date of the amendments. In other words, as written, the amendments do not limit a trial court’s award of credits at the new, higher rate to days spent in custody after the January 25, 2010, effective date. Only the amended version of section 4019 was operative at the time defendant was sentenced on July 7, 2010. Under these circumstances, we believe it was error for the trial court to award the credits at two different rates. Without more, it is our view the trial court should have calculated all of defendant’s conduct credits at the higher rate provided in the amended version of section 4019 effective January 25, 2010, because she was sentenced after the effective date of the amendments.
DISPOSITION
The judgment is modified to reflect 315 actual days in presentence custody. (§ 2900.5.) The judgment is also modified to reflect presentence conduct credits of 314 days based on the amendments to section 4019 effective January 25, 2010. (§ 4019, subd. (b)(1), (c)(1), (f).) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.).
We concur: McKINSTER, Acting P.J., KING, J.