Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR204508
Jenkins, J.
This is an appeal from judgment following the conviction by a jury of appellant Lazebiety Palmer. On appeal, appellant raises a single contention – that the trial court must recalculate the number of presentence conduct credits to which he is entitled under the version of Penal Code section 4019 that became effective January 25, 2010, four days before he was sentenced. We conclude appellant’s contention has merit, and therefore remand this matter with instructions to amend the abstract of judgment to recalculate the presentence conduct credits to which appellant is entitled. In all other regards, we affirm the judgment.
All statutory citations herein are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On August 26, 2009, an information was filed alleging that appellant transported a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and possessed cocaine base for sale (Health & Saf. Code, § 11351.5). The information further alleged for probation ineligibility and enhancement purposes (Health & Saf. Code, §§ 11370.2, subd. (a), 11370, subds. (a), (c)), that appellant had two prior convictions for possession of cocaine base for sale and one prior conviction for driving under the influence causing injury, and that appellant had served prison terms for these prior convictions (§ 667.5).
Given that the sole contention raised on appeal relates to sentencing, we need not provide a detailed discussion of the facts relating to appellant’s underlying crimes.
A jury trial began on December 9, 2009. After trial, the jury found appellant guilty as charged and the trial court found true the enhancement allegations. The trial court thereafter sentenced appellant to 12 years in state prison. Specifically, the trial court sentenced appellant to the lower term of three years for transportation of a controlled substance, stayed the sentence for possession of cocaine base for sale, imposed one year for each of the three prison priors, to be served consecutively, and imposed three years each for the two prior drug convictions, also to be served consecutively. The trial court awarded appellant 159 credits for actual days served and 80 conduct credits, for a total of 239 presentence credits. This appeal followed.
DISCUSSION
The sole issue raised by appellant on appeal is whether he is entitled to additional presentence conduct credits pursuant to the amended version of section 4019 that became effective January 25, 2010, a date falling after commission of his crimes but before sentencing. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010 (“Sen. Bill No. 3X 18”).)
Section 4019 was amended again effective September 28, 2010. (Stats. 2009-2010, Reg. Sess., c. 426 (S.B. 76), § 2, eff. Sept. 28, 2010.) However, because the latest version of a statute applies only to crimes committed after its effective date, it does not affect appellant’s argument that the version of section 4019 in effect at the time of his sentencing should apply to his case. (See Current § 4019, subd. (f).)
Under the former version of section 4019, in effect when appellant committed his crimes, a criminal defendant sentenced to state prison could accrue conduct credit based on his or her willingness to perform assigned labor or compliance with relevant rules and regulations at the rate of two days for every four days of actual presentence custody. (Former § 4019.) Under the version of section 4019 that became effective on January 25, 2010 (“amended version of section 4019” or “amendatory statute”), the rate at which a criminal defendant could accrue presentence conduct credit was increased, such that he or she would be deemed to have served four days for every two days in actual custody, so long as he or she was not required to register as a “sex offender” (§ 290 et seq.) and had not been convicted of a “serious felony” (§ 1192.7) or “violent felony” (§ 667.5).
Before we determine which of these versions of section 4019 applies to appellant, however, we must address one preliminary issue raised by the People: Is this appeal subject to dismissal pursuant to section 1237.1?
I. Does section 1237.1 require dismissal of the appeal?
Section 1237.1 generally prohibits an appeal challenging the calculation of presentence custody credits unless the defendant has first raised the issue in the trial court. The legislative intent behind this statute is to “ ‘promote judicial economy’ (Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) May 16, 1995; Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) April 25, 1995)” by discouraging parties from using the resources of appellate courts for minor ministerial acts better handled by the trial courts. (People v. Acosta (1996) 48 Cal.App.4th 411, 427.) Reflective of this legislative intent, courts have held that section 1237.1 does not apply when issues other than the purely ministerial act of recalculating credits are being litigated on appeal. (People v. Acosta, supra, 48 Cal.App.4th at pp. 427-428 [“if there are other appellate issues..., requiring a motion be made in the trial court in order to raise the question on appeal no longer is an economical expenditure of public moneys”]; see also People v. Duran (1998) 67 Cal.App.4th 267, 270.)
Section 1237.1 provides as follows: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”
Here, it is undisputed that appellant did not challenge the trial court’s award of presentence conduct credits below. However, as appellant notes, we are not asked in this case simply to perform the minor ministerial act of correcting the trial court’s calculation of appellant’s custody credits. Rather, we are asked to weigh in on a legal issue that is the subject of much debate among appellate courts in this state – whether a defendant whose conviction is not final at the time section 4019 is amended is entitled to the benefit of the lesser punishment provided in the statute’s amended version. (E.g., People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260.) While any mistake by the trial court in calculating custody credits under an unchanged statute could have been easily prevented and corrected below if brought to the lower court’s attention at the time of sentencing, the amendment of section 4019 after appellant’s crimes were committed but before his sentencing raises complex issues of statutory interpretation better resolved by this court. As such, we decline to dismiss appellant’s appeal.
II. Which version of section 4019 applies to appellant’s case?
As the legislative history reveals, the relevant amendments to section 4019 were adopted as part of Sen. Bill No. 3X 18, which was introduced at a special session called by the Governor on December 19, 2008, in response to a fiscal emergency. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50; see Governor’s Proclamation to Leg., Sen. Daily J., Jan. 5, 2009, pp. 2-4.) Among other things, Sen. Bill No. 3X 18 was designed to lower the cost of prison administration by reducing prison populations without undermining public safety. (Ibid.)
In this case, appellant was sentenced on January 29, 2010, after the effective date of the amendatory statute. At the sentencing hearing, the trial court calculated appellant’s conduct credits under the former version of section 4019, apparently because, at the time he committed the relevant crimes, the amendatory statute was not yet in effect. Appellant contends, however, that because the amendatory statute was in effect at the time of his sentencing, the trial court was required to apply the amendatory statute, not the version of the statute in effect when he committed his crimes, in calculating his credits. According to appellant, this would not require retroactive application of the amendatory statute; rather, it would simply require a straightforward application of the law in effect at the relevant time (i.e., his sentencing date.)
Alternatively, appellant contends that, even were we to conclude as a general matter that, in the absence of a contrary legislative intent, courts should apply the version of the law in effect at the time a defendant commits his or her crime rather than when he or she is sentenced, in this instance, the Legislature intended the amendatory statute to operate retroactively, and thus would nonetheless apply to his case. Accordingly, appellant asks that we recalculate his presentence conduct credits under the amendatory statute, given that he was sentenced after January 25, 2010, the date the amendatory statute became effective.
We agree with appellant’s initial argument – that, because the amended version of section 4019 was already in effect at the time of his sentencing, the trial court should have applied it when calculating his presentence conduct credits. In doing so, we point out that, generally, “application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ [Citation.]” (People v. Grant (1999) 20 Cal.4th 150, 157.)
Here, as appellant notes, the last act or event necessary to trigger application of the relevant statute – section 4019 – was his sentencing, when the trial court was called upon to calculate his presentence credits. (See People v. Buckhalter (2001) 26 Cal.4th 20, 30 [“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct.... ‘[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. (§ 2900.5, subd. (d); see also id., subd. (a).)”].) As such, the trial court should have applied the version of the statute in effect at the time of that triggering event – to wit, the amended version of section 4019. “A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [55 Cal.Rptr.2d 675].)” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Accordingly, we conclude that remand of this matter is required for recalculation of appellant’s presentence conduct credits pursuant to the amended version of section 4019.
We note the California Supreme Court recently granted a petition for review in a case employing reasoning similar to ours. (See People v. Zarate (2011) 192 Cal.App.4th 939, 944 [review granted May 18, 2011, S191676].)
In closing, we simply note that, even if we were to agree with the People that the issue is properly framed in terms of retroactivity, we would nonetheless find appellant entitled to the “legislative mitigation of the penalty” provided for under the amended version of section 4019. As both parties recognize, California appellate courts are split on the question of whether the amended version of section 4019 comes within the rule of retroactive application announced in In re Estrada (1965) 63 Cal.2d 740 (Estrada). This issue is currently pending before our state’s Supreme Court in numerous cases, including, among others, People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [amendments retroactive]; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 [same]; People v. Norton, supra, 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260 (Norton) [same]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 [same]; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [amendments prospective]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 [same]; and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [same].
In Estrada, the California Supreme Court held that, while generally the governing law is the one in effect when a defendant commits his or her criminal acts, there is a special exception where an amendment is made to the law that represents a “legislative mitigation of the penalty” for the criminal act. In such cases, absent a saving clause, the amendatory statute is applied retroactively. (Estrada, supra, 63 Cal.2d at p. 745.)
Although superseded by grant of review and no longer precedential, this court has several times sided with the majority of appellate courts in holding that the amended version of section 4019 does in fact apply retroactively under the Estrada rule. (E.g., People v. Pelayo, supra, 184 Cal.App.4th 481; People v. Norton, supra, 184 Cal.App.4th 408; People v. Landon, supra, 183 Cal.App.4th 1096.) In so holding, we have reasoned that the amendatory statute is a statute lessening punishment in that it operates to reduce the sentences of qualified prisoners. (E.g., People v. Norton, supra, 184 Cal.App.4th at p. 417.) We have also noted that interpreting the amendatory statute as retroactive in operation is more consistent with the stated legislated aim of “address[ing] the fiscal emergency declared by the Governor.” (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62; see also People v. Norton, supra, 184 Cal.App.4th at p. 419.)
Neither our opinion nor our reasoning in these regards has changed since publication of the aforementioned cases. Accordingly, while of course the California Supreme Court will have final say over this issue, we continue for now to conclude that the amended version of section 4019 is retroactive in operation.
Accordingly, we conclude based on the amended version of section 4019 that this case must be remanded to the trial court for recalculation of appellant’s presentence conduct credits.
DISPOSITION
The matter is remanded to the trial court with instructions to amend the abstract of judgment to recalculate the presentence conduct credits to which appellant is entitled pursuant to section 4019, as amended, and to deliver a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: McGuiness, P. J., Pollak, J.