Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR201354.
DONDERO, J.
We have consolidated two appeals from a judgment that revoked defendant’s probation, imposed a previously suspended three-year state prison term, and awarded him presentence custody credits. In one appeal, we conclude that substantial evidence supports the trial court’s finding of defendant’s commission of a willful violation of his probation. In the other appeal, we conclude that Penal Code sections 4019 and 2933 as amended in 2010 must be given retroactive effect to grant defendant additional sentence credits. We therefore affirm the revocation of defendant’s probation and the imposition of a previously suspended state prison term, but modify the award of sentence credits to defendant.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 14, 2009, defendant entered a negotiated plea of no contest to one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). At a sentencing hearing on June 18, 2009, the trial court imposed the middle term of three years in state prison, but suspended execution of sentence and placed defendant on formal probation for three years. One of the conditions of defendant’s probation was that he successfully complete counseling and therapy at the Eagle Recovery Program.
The remaining charges against defendant were dismissed in accordance with the plea agreement. The facts related to the plea and conviction are not pertinent to this appeal.
A request to revoke defendant’s probation and issue a bench warrant was filed on August 27, 2009. The Probation Department alleged that defendant did not complete the Eagle Recovery Program and failed to report an address change.
A contested probation revocation hearing was held on December 11, 2009. According to the evidence presented, defendant entered the Eagle Recovery Program on July 14, 2009, and was discharged on August 18, 2009. Defendant’s probation officer Jamie Nichols testified that the day after defendant was “involuntarily dismissed from the program, ” she received a voice mail message from defendant during which he indicated he “was kicked out of the program” and was “staying at some shelter in Sacramento.” Defendant also mentioned to Nichols that he was “struggling in the program.” Nichols was advised of defendant’s discharge from the Eagle Recovery Program in a letter from defendant’s counselor dated August 20, 2009. At the conclusion of the hearing the court found that defendant committed a “willful violation of his probation, so probation is revoked.”
The discharge letter, which also specified the reasons for defendant’s discharge, was excluded by the court upon a hearsay objection from the defense.
The previously suspended three-year state prison term was imposed at a subsequent sentencing hearing, and defendant was awarded a total of 402 days of presentence custody credits. Defendant thereafter moved for additional sentence credits pursuant to an amendment of Penal Code section 4019. The motion was denied. Two appeals filed by defendant from the revocation of probation and the denial of his request for additional sentence credits have been consolidated.
DISCUSSION
I. The Finding of a Probation Violation (A127461).
Defendant’s sole contention in his first appeal is that the trial court erred by finding a willful violation of probation. He points out that the trial court excluded from evidence as hearsay the letter from the Eagle Recovery Program in which the reasons for his discharge were stated. Therefore, he argues that the only remaining evidence, the testimony of Nichols, “failed to establish a willful probation violation.”
“Penal Code section 1203.2, subdivision (a) authorizes a trial court to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation....’ ” (People v. Jackson (2005) 134 Cal.App.4th 929, 935; see also In re Eddie M. (2003) 31 Cal.4th 480, 487, 503–504; In re Alex U. (2007) 158 Cal.App.4th 259, 265.) “ ‘When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]’ [Citation.]” (People v. Johnson (1993) 20 Cal.App.4th 106, 110.)
“ ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982; see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; People v. Zaring (1992) 8 Cal.App.4th 362, 379.) “A court may not revoke probation unless the evidence supports ‘a conclusion [that] the probationer’s conduct constituted a willful violation of the terms and conditions of probation.’ [Citation.] Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant’s conduct was not contumacious, revoking probation and imposing a prison term are reversible error.” (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) A willful violation requires “ ‘simply a purpose or willingness to commit the act..., ’ without regard to motive, intent to injure, or knowledge of the act’s prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term ‘willful’ requires only that the prohibited act occur intentionally.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787–788; People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The requirement of a knowing or willful violation does not additionally require proof of defendant’s awareness that his acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787–788; People v. Ramsey (2000) 79 Cal.App.4th 621, 632.)
“ ‘As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.’ [Citation.]” (People v. Galvan, supra, 155 Cal.App.4th 978, 981–982; see also People v. O’Connell, supra, 107 Cal.App.4th 1062, 1066.) Where, as here, “the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848–849, fns. omitted.) On appeal we must of course “view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249–1250.)
Even without admission of the formal discharge letter from the Eagle Recovery Program, which is just the type of hearsay document invested with the requisite indicia of reliability that traditionally has been considered admissible at probation revocation proceedings, we find the evidence adequate to support the trial court’s determination of a willful probation violation. (See People v. Maki (1985) 39 Cal.3d 707, 715–717; People v. Minor (2010) 189 Cal.App.4th 1, 22; People v. O’Connell, supra, 107 Cal.App.4th 1062, 1067.) We know from the record before us that defendant did not successfully complete the program, and left for another location without furnishing prior knowledge to his probation officer. Defendant’s admission to his probation officer that he “struggled” with the Eagle Recovery Program and “was kicked out” engenders the reasonable inference that his violation of the counseling condition was willful, rather than the result of some blameless inability to complete the program. Probation officer Nichols also testified that defendant’s dismissal from the program was involuntary. Substantial evidence supports the finding of a willful probation violation, and the revocation of defendant’s probation was not an abuse of discretion. (Pen. Code, § 1203.2; People v. Arreola (1994) 7 Cal.4th 1144, 1161; People v. McGavock (1999) 69 Cal.App.4th 332, 338–339.)
II. The Denial of Defendant’s Motion for Additional Sentence Credits (A129627).
Defendant argues in his second appeal that the trial court erred by denying him an award of additional presentence custody credits under the amended versions of statutes that became effective after he was sentenced but before the judgment will be final. He was awarded a total of 402 days of presentence custody credits pursuant to section 4019 as the statute provided when sentence was imposed. Defendant contends that the subsequent statutory amendments must be applied retroactively to the entire period of his presentence custody, entitling him to additional credits for the time he served prior to January 25, 2010. Defendant requests that we order the trial court to amend the abstract of judgment to reflect “268 actual days, plus 268 conduct days, for a total of 536 days of presentence custody credit.”
Under section 2900.5, a defendant sentenced to imprisonment is entitled to presentence custody credits determined according to the formula specified in section 4019. (People v. Johnson (2004) 32 Cal.4th 260, 266; People v. Donan (2004) 117 Cal.App.4th 784, 789–790.) Part of defendant’s presentence custody was served while the former version of section 4019 was in effect, which awarded presentence credits in accordance with a formula of one day of work time credit and one day of conduct credit for each six-day period of custody. (Former § 4019, subds. (b) & (c).) Effective January 25, 2010, the statute was amended to provide for one day each of work time and conduct credit for every four-day period of custody. (§ 4019, subds. (b) & (c), as amended by Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28, § 50.) Defendant points out that an amendment to section 2933 was also enacted and became effective on September 28, 2010, again after sentence was imposed in the present case, which similarly granted “qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served.” (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3).) The statutory amendments thus essentially doubled the available custody credits for the offense of which defendant was convicted, among others. (People v. Norton (2010) 184 Cal.App.4th 408, 414, review granted Aug. 11, 2010, S183260 (Norton).) Defendant claims that he “is entitled to the additional presentence credits he seeks, under both the version of section 4019 applicable at the time of his sentencing and credits motion, as well as the version of section 2933 currently in effect.”
Subdivision (e) of section 2933 was rewritten by the 2010 legislation. (Stats. 2010, ch. 426 (S.B. 76).) Subdivision (e) previously read: “A prisoner sentenced to the state prison under Section 1170 shall receive one day of credit for every day served in a county jail, city jail, industrial farm, or road camp after the date he or she was sentenced to the state prison as specified in subdivision (f) of Section 4019.” (Italics added.) Thus, in its prior form section 2933 allowed “state prisoners who participate in qualifying work, training, and educational programs the privilege of earning postsentence conduct credit against their sentences.” (In re Maes (2010) 185 Cal.App.4th 1094, 1097, italics added.) Subdivision (e)(1) of section 2933 now reads: “Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.” (Stats. 2010, ch. 426 (S.B. 76).) (Italics added.) As with section 4019, the Legislature did not express any intent on the issue of retroactive or prospective application of the 2010 amendment to section 2933.
The issue of the retroactive application of the 2010 amendments to section 4019 has already been the subject of extensive appellate review. Numerous opinions, both published and unpublished, have previously ruled on the issue of the retroactivity of the amendments to section 4019. A split of authority exists, which will be finally resolved in the many appeals now pending before the California Supreme Court or eventually headed in that direction. Cases which occupy the “majority” view to date have taken the position that the section 4019 amendments apply retroactively. (See People v. Bacon (2010) 186 Cal.App.4th 333, 336, review granted Oct. 13, 2010, S184782; see also People v. Keating (2010) 185 Cal.App.4th 364, 369, review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481, 485, review granted July 21, 2010, S183552; Norton, supra, 184 Cal.App.4th 408, 411; People v. Delgado (2010) 184 Cal.App.4th 271, 282, rehearing granted May 26, 2010; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1052, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, 1363–1364, review granted June 9, 2010, S181963.) Distinctly fewer opinions have decided, as did the trial court in the present case, that the amendments have prospective application only. (See People v. Hopkins (2010) 184 Cal.App.4th 615, 619, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, 432, review granted July 21, 2010, S184314.)
See also a decision from this District, People v. Buntyn (May 21, 2010, A121903) [nonpub. opn.].
Rather than further contribute here to the analytical dialogue on this matter, which has already been quite thorough, we merely express our agreement with the majority of reported decisions, including those from our own Appellate District, that have found the amendments to section 4019 retroactive in effect. (People v. Bacon, supra, 186 Cal.App.4th 333, 336; People v. Pelayo, supra, 184 Cal.App.4th 481, 485; Norton, supra, 184 Cal.App.4th 408, 411.) While we are cognizant of the credible arguments addressed on both sides of the retroactivity issue, as the split of authority would suggest, on balance we are persuaded to follow the reasoning that the statutory amendments reduce the sentence ultimately served for the included offenses, and there is no savings clause in the legislation, so we infer a legislative intent to accord criminal defendants the benefit of mitigation of punishment implemented in sections 4019 and 2933 before their convictions are final. (In re Estrada (1965) 63 Cal.2d 740, 746; Bacon, supra, at p. 336; People v. Doganiere (1978) 86 Cal.App.3d 237, 239–240; People v. Hunter (1977) 68 Cal.App.3d 389, 393.)
DISPOSITION
The judgment is amended to award defendant a total of 536 days of presentence credits, and as so amended the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections and Rehabilitation.
We concur: Marchiano, P. J., Banke, J.
Further statutory references are to the Penal Code, unless otherwise indicated.