Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB053700, Ronald M. Christianson, Judge.
Dabney B. Finch, 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 and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
In February 2006, defendant and appellant Frankie James Molina pled guilty to one count of forgery. (Pen. Code, § 470, subd. (d).) The trial court placed him on probation for three years. Subsequently, defendant admitted that he violated his probation. In May 2010, the trial court sentenced him to two years in state prison and awarded him a total of 565 days of presentence custody credits.
All further statutory references will be the Penal Code unless otherwise noted.
On appeal, defendant raises the sole contention that he is entitled to additional presentence custody credits under the amendment to section 4019, which went into effect on January 25, 2010. While this court has held in other cases that the January 25, 2010 amendment to the conduct credits provision is not retroactive, defendant here was not sentenced until after the effective date of the amendment 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, he should have received credits under that amendment. We therefore modify and affirm the judgment.
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment. (Stats. 2010, ch. 426, § 2.) The latest statutory change will apply only to crimes committed after September 28, 2010.
PROCEDURAL BACKGROUND
On February 15, 2006, defendant entered a plea agreement and pled guilty to forgery. (§ 470, subd. (d).) In return, the trial court placed him on probation for a period of three years on various terms and conditions.
On February 24, 2009, defendant admitted that he violated his probation. The trial court reinstated his probation on the original terms and conditions, except that it extended the probation period to February 24, 2012.
On May 4, 2010, defendant waived his right to a hearing and admitted that he violated his probation again. The probation officer filed a supplemental report listing defendant’s credit for time served. The report listed 356 actual days, consisting of 13 days from February 4 to 16, 2006; 244 days from June 13, 2006 to February 11, 2007; 34 days from January 22 to February 24, 2009; and 65 days from March 1 to May 4, 2010. The report then listed 209 conduct days, for a total of 565 days of credit. The trial court revoked his probation and sentenced him to two years in state prison. The trial court reviewed the probation officer’s calculations and awarded a total of 565 presentence custody credits. It stated that the sum was comprised of 291 actual days, plus 144 conduct credits “under the old 4019s, ” and 65 actual days, plus 65 conduct credits “under the new 4019s.” The trial court added that defendant was “eligible for new 4019 credits from January 25th of this year on.” The superior court clerk entered in the minutes the credits that the trial court had announced as “[c]redit for time served (356 actual + 209 conduct) for a total of 565 days.”
For a discussion of credits calculation, see In re Marquez (2003) 30 Cal.4th 14, 24-26.
ANALYSIS
Defendant Is Entitled to Additional Custody Credits
Defendant argues that because he was sentenced after the effective date of the January 25, 2010 amendment, all of his presentence custody credits should have been calculated under the interim version of section 4019. In the alternative, defendant argues that the interim version of section 4019 should apply retroactively to all cases not yet final as of January 25, 2010. We note that the issue here is not whether amended section 4019 is retroactive. Instead, the question is whether interim section 4019 should have been applied to the entirety of defendant’s presentence custody. In other words, the issue is how to calculate the credits properly.
This issue of retroactive application of the interim 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; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314.)
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.) 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.) Under former section 4019, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody for any person who is not required to register as a sex offender and is not being committed to prison for, or has 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. (Interim § 4019, subd. (f).) The interim statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (Interim § 4019.)
The interim version of section 4019, which was in effect when defendant was sentenced, provides, in pertinent part, “The provisions of this section shall apply in all of the following cases: [¶] (1) When a prisoner is confined in or committed to a county jail, ... 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, ... in a criminal action or proceeding.” (Interim § 4019, subd. (a)(1), italics added.) Section 2900.5, subdivision (a), states, in relevant part, that “[i]n all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, ... all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, ... in the discretion of the court imposing the sentence.” (Italics added.) 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.” (People v. Buckhalter (2001) 26 Cal.4th 20, 30; see also § 2900.5, subds. (a), (d).)
“We interpret statutes with the object of ascertaining and effectuating the Legislature’s intent. [Citation.] ‘In determining such intent, we begin with the language of the statute itself. [Citation.] That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.’ [Citation.]” (People v. Standish (2006) 38 Cal.4th 858, 869.) Giving the words their ordinary meaning here, it is the duty of the trial court to calculate the number of days the defendant was in presentence custody, to determine the total number of days to be credited, and to apply the section 4019 credits, at the time of sentencing. (§ 2900.5, subds. (a), (d).) Furthermore, under the plain meaning of the statute, “all days of custody from the date of arrest to the date on which the serving of the sentence commences” are subject to the interim version of section 4019. (Interim § 4019, subd. (a)(1).)
Defendant was not sentenced until after the January 25, 2010 amendment to section 4019 became effective. Therefore, he was required to be sentenced under the provision in effect at that time, i.e., the amended statute. Nonetheless, at sentencing, the trial court calculated his presentence credits in two phases, awarding the credits at the “old” rate for the 291 days he was in custody on or before January 25, 2010, and at the “new” rate for the 65 days that he was in custody after January 25, 2010. This was an error because interim section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, the former 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 his sentence.
We note that the People provide no authority to support the trial court’s two-tiered application of former and interim section 4019. Instead, the People argue that, “[w]hile credits are calculated at the time of sentencing, they are not earned on the sentencing date. Inmates earn conduct credits over the course of their custody time.” In support of this proposition, the People cite a portion of interim section 4019, subdivision (f), which provides: “a term of four days will be deemed to have been served for every two days spent in actual custody.” However, the People leave out a significant part of interim section 4019, subdivision (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....” (Italics added.) In other words, it is not determined whether “all days are earned under this section” until the trial court determines so at sentencing. (§§ 4019, subd. (f); see also 2900.5, subds. (a), (d).) Furthermore, the People’s argument, in effect, segments presentence custody credits and assumes an “‘earn as you go’” approach to section 4019, by considering preamendment credits to have been already earned under former section 4019. (In re Walrath (1980) 106 Cal.App.3d 426, 430.) The “‘earn as you go’” or “segmental” approach has been rejected. (Id. at pp. 430-431 [noting that the credits-per-day provision is simply a ratio to be used at time of calculation]; see also People v. Johnson (1981) 120 Cal.App.3d 808, 812-813.)
The People also contend that applying interim section 4019 to all presentence custody credits, when sentenced after January 25, 2010, would give rise to equal protection violations. For example, prisoners sentenced on January 26, 2010, but having served the majority of their presentence time prior to the effective date of the amendment, would receive the benefit of the increased rate, whereas a prisoner sentenced on January 24, 2010, would receive the credits at the old rate. However, the purported equal protection violation here is temporal, and “‘[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.’ [Citation.]” (People v. Floyd (2003) 31 Cal.4th 179, 191.) Moreover, the equal protection guarantee “‘“does not prevent the state from drawing distinctions between different groups of individuals but requires the classifications created bear a rational relationship to a legitimate public purpose.” [Citation.]’ [Citation.]” (People v. Ward (2008) 167 Cal.App.4th 252, 258.) Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.), the legislation that amended section 4019 effective January 25, 2010, was enacted in order to address the state’s fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 62.) Application of the interim section 4019 to all presentence custody credits, when a defendant is sentenced after January 25, 2010, is reasonably related to the legitimate public purpose of addressing the state’s fiscal emergency, since increasing the amount of credits would reduce the prison population, resulting in reduced costs to the state.
Accordingly, because defendant had served a total of 356 days in local custody prior to sentencing, and there was no showing that he was not entitled to conduct credits, he was entitled to 356 days of section 4019 credit. We thus order the judgment modified to award defendant an additional 147 days of presentence conduct credit, for a total of 712 days of presentence credit. The abstract of judgment should be amended to reflect that defendant was awarded total credits of 712 days, consisting of 356 actual days and 356 days under interim section 4019.
DISPOSITION
The judgment is modified to award presentence credit consisting of 356 days of actual custody time, plus 356 days of presentence conduct credit, for a total of 712 days of presentence credit. The superior court clerk is directed to generate a new minute order reflecting this modification. The clerk is also directed to amend the abstract of judgment to reflect the award of 712 days of presentence custody credit, and to forward a copy of both the new minute order and the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: RICHLI, J., CODRINGTON, J.
Unless otherwise specified, any reference to “former” section 4019 refers to the version that was in effect prior to January 25, 2010. (Stats. 1982, ch. 1234, § 7.) Any reference to “interim” section 4019 refers to the amendment effective January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.)