Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA356617, Carol H. Rehm, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blythe J. Leszkay and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Rosendo Carlos Mondragon appeals from the trial court’s order denying him 48 additional days of presentence custody credits following the Legislature’s amendment of Penal Code section 4019 governing presentence custody credits. We remand to permit the trial court to exercise its discretion whether to award additional credits.
DISCUSSION
In May 2009, police arrested appellant Rosendo Carlos Mondragon when they discovered him with a gun. Following his arrest, the People filed an information charging appellant with carrying an unregistered loaded firearm and being an ex-felon in possession of a firearm. Additionally, the information alleged appellant had a prior felony conviction for robbery.
In August 2009, appellant entered into a plea bargain. He pleaded no contest to possessing a loaded unregistered firearm and the People dismissed the ex-felon in possession charge. The People also dismissed the prior conviction allegation. The court sentenced appellant under the terms of the plea bargain to state prison for three years. The court also awarded appellant presentence custody credits of 99 days actual time served and 48 days good time/work time.
Following his remand to state prison, appellant in July 2010 filed in pro per a motion to adjust his presentence custody credits His motion noted the Legislature had amended Penal Code section 4019 (§ 4019) in January 2010. The amendment awarded eligible prisoners two days of good time/work time credit for every two days actually served in presentence custody, in contrast to the version of section 4019 in effect when appellant was sentenced that awarded two days of good time/work time credit for every four days in presentence custody. Arguing the amendment applied retroactively, appellant asked the court to award him 48 more days of good time/work time credit for the 99 days he served in actual custody. Finding the January 2010 amendment did not apply retroactively, the court denied appellant’s motion. The court stated:
Appellant’s motion erroneously stated the court awarded him at sentencing 185 days total presentence custody credit. In fact, the court awarded appellant 147 days, consisting of 99 days actual custody and 48 days work time/good time credit.
“The court recognizes that there is a split of authority among the appellate districts regarding retroactive application of this section and the California Supreme Court has granted review in several cases. [¶] The motion is denied without prejudice to resubmission should the California Supreme Court decide this issue in defendant’s favor for retroactive application.”
Appellant filed a notice of appeal. We appointed appellate counsel. In December 2010, appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 stating he could not find any issues for appeal. In our independent review of the record, we observed a potentially arguable issue involving the retroactivity of the amendment to section 4019. We therefore ordered appellate counsel to file a supplemental brief discussing that issue.
In February 2011, appellant filed his supplemental brief in which he asserted he was retroactively entitled to 48 additional days of presentence credit. We agree. Under the statute in effect when appellant was sentenced in August 2009, he was deemed to have served six days for every four days spent in actual custody, giving him “a total of two days of conduct credit for every four-day period of incarceration....” (People v. Dieck (2009) 46 Cal.4th 934, 939.) Under the January 2010 amendment, however, “a term of four days will be deemed to have been served for every two days spent in actual custody” (former § 4019, subd. (f)), giving appellant two days of conduct credit for every two days in custody. A split of authority exists among our appellate districts on the retroactivity of the January 2010 amendment to section 4019, and the issue is now on review before the Supreme Court. We have joined those courts holding that retroactive application is required. Consequently, and in accordance with the reasoning in the majority of decisions on the issue, we conclude the January 2010 amendment to section 4019 entitles appellant to 48 more days of presentence good time/work time credit unless some other legal bar exists to his receiving them.
The Legislature amended the award calculation once again effective September 28, 2010, but that amendment applies to prisoners confined for crimes committed on or after that date. (§ 4019, subd. (g).)
See In re Kemp (2011) 192 Cal.App.4th 252 [122 Cal.Rptr.3d 354], review granted April 13, 2011, S191112; People v. Bacon (2010) 186 Cal.App.4th 333 [111 Cal.Rptr.3d 573], review granted Oct. 13, 2010, S184782; see also, e.g., People v. Keating (2010) 185 Cal.App.4th 364 [110 Cal.Rptr.3d 754], review granted Sept. 22, 2010, S184354; People v. Norton (2010) 184 Cal.App.4th 408 [109 Cal.Rptr.3d 197], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [108 Cal.Rptr.3d 825], review granted July 21, 2010, S183552; but see, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 [109 Cal.Rptr.3d 214], review granted July 28, 2010, S183724.
The Attorney General contends that regardless of the January 2010 amendment’s retroactivity, it does not apply to appellant because he has a prior felony conviction for robbery. (Former § 4019, subd. (b)(2).) Although the People dismissed the prior conviction allegation under the plea bargain, the Attorney General asserts a prior conviction need not be pled and proved for it to bar the amendment’s application. But even if one assumes the trial court may withhold custody credits based on an unproven prior conviction, the trial court had the discretion to disregard the prior conviction and award those credits after the prior conviction was dismissed (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1442, 1444-1445 [trial court’s discretion to strike prior conviction enhancement encompasses discretion to strike prior conviction for sentencing purposes, for calculation of custody conduct credits, for both, or for neither]; see also People v. Harvey (1979) 25 Cal.3d 754, 758 [“Implicit in... a plea bargain... is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.”].) Here, the trial court’s only stated reason for denying appellant’s motion for additional credits was the court’s conclusion that the amendment did not apply retroactively. Accordingly, we do not know how the court would have exercised its discretion if it had addressed appellant’s dismissed prior conviction. Because the trial court appeared disposed in favor of awarding credits when it ruled appellant could resubmit his motion “without prejudice” if the Supreme Court held the amendment was retroactive, we remand the matter to the trial court for it to exercise its discretion whether to award additional presentence custody credit.
DISPOSITION
The matter is remanded to the trial court for reconsideration of appellant’s motion for 48 additional days of presentence custody credit. Other than the application of section 4019, we have examined the entire record and are satisfied that appointed counsel has fully complied with his responsibilities and that no other arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)
WE CONCUR: BIGELOW, P. J., GRIMES, J.