Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF21163, Christopher W. Yeager, Judge.
NARES, J.
Following a revocation of probation, the court sentenced Aaron Marin Ramirez for violating Health and Safety Code section 11377, subdivision (a), possession of a controlled substance. Prior to sentencing, Ramirez had spent time in local custody both before and after January 25, 2010, the effective date of amended Penal Code section 4019. At sentencing, the court used a two-tiered system to calculate Ramirez's conduct credits. For time he served prior to January 25, 2010, the court used section 4019 as it read before its amendment, giving Ramirez two days of conduct credit for every six days of custody. For time spent in custody after January 25, 2010, the court used amended section 4019 to calculate credits, giving him two days of conduct credit for every four days of custody.
All further statutory references are to the Penal Code.
Ramirez asserts this was error because (1) under section 4019's plain language, the court should have used amended section 4019 to calculate all of his credits; (2) amended section 4019 applies retroactively; and (3) the court's calculation of credits denied him equal protection. We conclude the amendments to section 4019 apply retroactively to this case and remand the matter to the trial court to recalculate Ramirez's conduct credits and to modify the abstract of judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
Because the facts underlying Ramirez's offenses are not relevant to the issues raised on appeal, we shall only briefly discuss them.
On September 10, 2009, Ramirez was taken into custody and found to be in possession of drug paraphernalia, which was a violation of his probation. On April 22, 2010, Ramirez was again arrested and taken into custody when he was found in possession of a controlled substance, another violation of his probation.
On April 27, 2010, Ramirez's probation officer filed a motion to revoke his probation. On May 17, 2010, Ramirez admitted he violated his conditions of probation by not obeying all laws.
Prior to sentencing Ramirez filed a motion requesting that the court calculate all of his conduct credits using amended section 4019. As of the date of sentencing he would have served 254 days, with 45 of those days occurring after the effective date of the amendment to section 4019.
The court denied the request, imposing a suspended sentence of 16 months and crediting him with 402 days of good conduct credits as follows: (1) under former section 4019, 209 actual days with 104 credits for a total of 313 days; and (2) under amended section 4019, 45 actual days with 44 credits for a total of 89 days.
DISCUSSION
A. Retroactivity of Section 4019
Prior to January 25, 2010, section 4019 provided that a defendant was entitled to two days of conduct credit for every six days of presentence custody. (Former § 4019, added by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every four days of presentence custody. (Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.)
Numerous published opinions have ruled on this issue, which will be resolved by the California Supreme Court. Two of those opinions, People v. Hopkins (2010) 184 Cal.App.4th 615 (6th Dist.), review granted July 28, 2010, S183724, and People v. Rodriguez (2010) 183 Cal.App.4th 1 (5th Dist.), review granted June 9, 2010, S181808, conclude that the statutory amendment is not retroactive. In contrast, the majority of published decisions hold that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because it is an amendatory statute that mitigates punishment. (See People v. Pelayo (2010) 184 Cal.App.4th 481 (1st Dist., Div. 5), review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408 (1st Dist., Div. 3), review granted Aug. 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096 (1st Dist., Div. 2), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (2nd Dist., Div. 1), review granted June 23, 2010, S182813; & People v. Brown (2010) 182 Cal.App.4th 1354 (3rd Dist.), review granted June 9, 2010, S181963.)
We agree with the reasoning of the majority of published decisions on this issue because section 4019, as amended, mitigates punishment.
In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.)
Courts of Appeal have held that provisions affording or increasing sentencing credit are statutes lessening punishment under Estrada. In People v. Hunter (1977) 68 Cal.App.3d 389, 392–394, the Second District concluded that Estrada is not limited to amendments lessening a maximum sentence and held that amendments to section 2900.5 (custody credits) should be applied retroactively. The court stated: "The 1976 amendment to Penal Code section 2900.5 must be construed as one lessening punishment, as the term is used in Estrada. True, Estrada deals with a statute which lessens the maximum sentence for a particular crime while the amendment to section 2900.5 concerns credit against a lesser sentence imposed as a condition of probation. But in the circumstances which we here consider, the distinction is without legal significance." (Hunter, at p. 393; accord, People v. Sandoval (1977) 70 Cal.App.3d 73, 87.) Relying on Hunter, one Court of Appeal applied the rule in Estrada to section 4019, as originally enacted, treating its provision of conduct credits as a law "granting amelioration in punishment." (People v. Doganiere (1978) 86 Cal.App.3d 237, 239.)
We likewise conclude that the general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. The January 25, 2010 amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits and thus constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody. Therefore, because the amendment of section 4019 applies retroactively. Ramirez is entitled to the benefit of the amendment, and his presentence local conduct credits must be recalculated. Accordingly, we need not decide Ramirez's alternative contention alleging a violation of his equal protection rights.
DISPOSITION
The matter is remanded to the trial court to recalculate Ramirez's conduct credits and to modify the abstract of judgment accordingly. The trial court is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J., IRION, J.