Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB901021 Bryan Foster, Judge.
Steven S. Lubliner, 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
RAMIREZ P. J.
Defendant and appellant John Anthony Pinales admitted violating seven terms of his probation, but was reinstated on probation. This appeal raises three contentions. First, defendant is entitled to 26 additional days of Penal Code section 4019 conduct credit. Second, his excess credits for actual custody and conduct should have been used to declare his section 1202.4, subdivision (b), restitution fine satisfied. Third, his admitted failure to pay the restitution fine should not have been one of his violations of probation because the restitution fine should have been deemed satisfied. We remand with directions for the trial court to award defendant the additional conduct credits, apply them to his restitution fine, if he has excess credits, and impose mandatory domestic violence terms of probation.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
On August 11, 2009, defendant pled guilty to trespassing by making a credible threat to cause serious bodily injury. (§ 601, subd. (a).) His plea agreement required he be placed on three years’ felony probation, with credit for time served as of pronouncement of judgment to occur on September 9, 2009.
At the September 9, 2009 hearing, defendant was placed on probation with the condition he serve 52 days in jail “with credit for time served a matter of 52 days plus conduct credits pursuant to... [s]ection 4019.” However, section 4019 credits were not calculated; thus, defendant did not receive any section 4019 credits. Another condition of probation required defendant to pay a restitution fine (§ 1202.4, subd. (b)) of $400. Defendant did not object to the failure to calculate his custody credits or apply his credits toward his restitution fine pursuant to section 2900.5, subdivision (a). Defendant’s plea agreement included an appeal waiver, and defendant did not appeal from the order placing him on probation.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28.)
Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2009-2010, ch. 426, § 5.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.
On May 17, 2010, defendant admitted violating six terms of probation, including the term requiring him to pay the restitution fine. Probation was reinstated and continued on the original terms with the modification that he serve 202 days in jail. For the 52 days defendant spent in custody in 2009, the trial court awarded defendant conduct credit under former section 4019. For the 35 days defendant spent in custody after the amendment of section 4019, the trial court awarded conduct credit under amended section 4019. Although not orally pronounced, the sentencing minute order, as corrected on May 20, 2010, provided for 26 days of conduct credit under former section 4019 and 35 days of conduct credit under amended section 4019. Thus, in total, defendant was given a 148 days of credit toward his 202 jail sentence. At the beginning of the hearing, defendant’s trial counsel disagreed with “the split credits.” After a lengthy discussion, the trial court agreed a certificate of probable cause for an appeal would be appropriate on the issue.
II. BIFURCATED CREDITS
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Prior to January 25, 2010, section 4019 provided for “two days [of conduct credit] for every four days the defendant is in actual presentence custody.” (Ibid.) The January 25, 2010 amendment provided for the accrual of two days of conduct credit for every two days of presentence custody. (Amended § 4019, subd. (f).)
The amendment’s increase does not apply “[i]f the prisoner is required to register as a sex offender... was committed for a serious felony... or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.” (Amended § 4019, subds. (b)(2) & (c)(2).)
Defendant contends that because amended section 4019 was operative on the date of his sentencing, all of his credits should have been calculated under amended section 4019. The People contend credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation “is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5, ” and that a contrary interpretation would create equal protection violations.
“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. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere... ‘prior to the imposition of sentence’ may also be eligible for good behavior credits.... ‘[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. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]” (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)
Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available “ ‘ “all or nothing.” ’ ” (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).) Instead, they “are credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ [Citation.] It is the duty of the sentencing court to determine ‘the total number of days to be credited...’ for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to... section 4019 credits. [Citation.]” (Duesler, supra, 203 Cal.App.3d at p. 276.) “If the record fails to show that defendant is not entitled to such credits... he shall be granted them.” (Johnson, at p. 815.) Thus, section 4019 credits are not accumulated and are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
Amended section 4019 contains no provision for a two-tiered division of presentence custody credits and was the only version of section 4019 operative at the time of defendant’s sentencing. Thus, the trial court’s discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because “the record fails to show that defendant is not entitled [to conduct credits], he shall be granted them” (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
We reject the People’s contention that applying amended section 4019 to all presentence custody defeats the purpose of conduct credits or creates equal protection violations. Underlying the People’s contentions are the premises that a defendant sentenced on January 26, 2010, could not have had their behavior in custody influenced by the availability of increased conduct credits, and would receive more credits than an eligible defendant sentenced on January 24, 2010. However, regardless of whether a defendant was sentenced before or after amended section 4019 became operative, section 4019 served its purpose of rewarding good behavior; defendants sentenced after the amendment became effective merely had an increased incentive. Furthermore, the distinction between defendants sentenced before and after the amendment became effective is a rational one as it is based upon a temporal distinction. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 189 [“ ‘punishment-lessening statutes given prospective application do not violate equal protection’ ”]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
At defendant’s September 9, 2009 hearing, the trial court indicated defendant was entitled to section 4019 conduct credits, but did not calculate and award them. Similarly, there was no showing that defendant was not entitled to conduct credits at the May 17, 2010 hearing. Accordingly, defendant was entitled to have all of his conduct credits as calculated under amended section 4019.
III. THE RESTITUTION FINE
“In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.” (§ 2900.5, subd. (a).) Accordingly, the parties correctly agree that any excess credits should be applied toward the restitution fine.
Defendant further contends that, because the credits he should have been awarded on September 9, 2009, would have satisfied his restitution fine, the restitution fine should not have been continued on May 17, 2010, and his admission that he violated probation by failing to pay the restitution fine should be stricken. However, defendant did not appeal the failure to calculate and award his section 4019 conduct credits and apply excess credits to his restitution fine at the September 9, 2009 hearing and did not raise this issue until this appeal. This appeal is taken from the orders from the May 17, 2010 hearing. At that hearing, defendant’s credits, even if calculated entirely under amended section 4019, would not have been sufficient to apply to his fines. Furthermore, because the restitution fine had not been paid or satisfied by credits, defendant’s admission was valid.
IV. DOMESTIC VIOLENCE TERMS
Although not raised by the parties, we note that the trial court failed to impose the mandatory domestic violence terms of probation required by section 1203.097.
“ ‘Domestic violence’ is abuse perpetrated against any of the following persons: [¶]... [¶] (d) A person with whom the respondent has had a child, ...” (Fam. Code, § 6211.) As used in Family Code section 6211, abuse is defined to include behavior that may be enjoined pursuant to Family Code section 6320. (Fam. Code, § 6203, subd. (d).) This includes threatening. (Fam. Code, § 6320, subd. (a).) “If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following....” (Pen. Code, § 1203.097, subd. (a).) The victim of defendant’s offense was a person with whom the defendant has had a child. Accordingly, the trial court was required to impose the domestic violence terms of probation required by Penal Code section 1203.097.
“The trial court’s failure to impose the [section 1203.097] mandatory probation terms at the time of the original sentence created a legally unauthorized sentence. [Citations.] Correction of an unauthorized sentence is proper ‘even if the correction results in a harsher punishment.’ [Citation.] An unauthorized sentence is ‘ “subject to judicial correction when it ultimately [comes] to the attention of the trial court or [reviewing] court” [citation].’ [Citation.]” (People v. Cates (2009) 170 Cal.App.4th 545, 552 [§ 1203.097 unambiguously applies to all offenses not just offenses that inherently involve domestic violence].) Thus, we will direct the trial court to impose the omitted terms of probation.
V. DISPOSITION
The calculation of defendant’s custody credits is reversed. The trial court is directed to calculate defendant’s section 4019 conduct credits under amended section 4019 for all of the time spent in local custody, and apply any excess credits toward the restitution fine. The trial court is further directed to impose the probation terms required by section 1203.097. In all other respects, the order is affirmed.
We concur: McKINSTER J., KING J.