Opinion
NOT TO BE PUBLISHED
Patricia M. Murphy, Judge Superior Court County of Ventura Super. Ct. No. 2009010109
David Blake Chatfield, 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, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Randall Charles Nielsen appeals the judgment entered after a jury convicted him of forgery (Pen. Code, § 470, subd. (d)). In a bifurcated proceeding, the trial court found true the allegation that appellant has served a prior prison term (§ 667.5, subd. (b)). Appellant was sentenced to three years in state prison. He contends that he is entitled to additional presentence custody credit under the amendments to section 4019 that went into effect after he was sentenced. We agree, and shall order the judgment amended to reflect the additional credit.
All further undesignated statutory references are to the Penal Code.
Appellant was sentenced on October 22, 2009. The trial court awarded him 213 days of presentence custody credits, consisting of 143 actual days credit and 70 days conduct credit. The court properly calculated the conduct credit under section 4019 as it existed at the time of sentencing, i.e., two days conduct credit for every four days actually served.
Effective January 25, 2010, section 4019 was amended to provide for two days conduct credit for every two days served. (Sen. Bill No. 18 (Stats. 2009-2010 3d Ex. Sess.) ch. 28, § 50.) Appellant contends that this amendment applies retroactively to his sentence. We agree. Absent a saving clause, legislative enactments that mitigate punishment are traditionally deemed to operate retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 748; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits].) The Supreme Court has granted review to resolve a split in authority over whether the January 25, 2010, amendments to section 4019 are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [holding the amendments are retroactive]; contra, People v. Rodriguez (2010) 183 Cal.App.4th 1 , review granted June 9, 2010, S181808.) A majority of published cases on the issue, none of which are yet final, agree that the section 4019 amendments are retroactive. (People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.)
On September 28, 2010, section 4019 was amended again to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment took effect. The amendment applies only to defendants who, unlike appellant, committed crimes on or after the date of enactment, i.e., September 28, 2010. (§ 4019, subd. (g); Stats. 2010, ch. 426, § 2.)
Although the Supreme Court has granted review on the issue and will have the final say on the matter, we agree with the reasoning expressed by the courts in the majority and conclude that section 4019 as amended applies to cases pending on appeal. Accordingly, we shall order the judgment modified to award an additional 72 days of conduct credit, for a total of 142 days of conduct credit.
DISPOSITION
Pursuant to section 4019, appellant’s sentence is modified to award an additional 72 days of presentence conduct credit, for a total of 142 days of conduct credit. The trial court is directed to prepare an amended abstract of judgment reflecting that appellant was awarded 285 days of custody credit (143 days of actual custody and 142 days of conduct credit), and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: YEGAN, Acting P.J. COFFEE, J.