Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV801838, Stephan G. Saleson, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Patrick Lyle Regan pleaded guilty to a drug charge in 2008. After several violations and reinstatements of probation, he eventually had his probation revoked and was sentenced to state prison. The sole issue on appeal relates to the calculation of presentence conduct credits, because defendant was not sentenced until after amendments to the conduct credits statute (Pen. Code, § 4019) became effective. Defendant urges that he was entitled to be sentenced under the new provision for all of his presentence custody time. We agree, and will order the judgment modified accordingly.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In 2008, defendant was charged with, and admitted, a charge of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Defendant was admitted to probation for a term of three years. The terms of defendant’s probation included enrollment in a drug treatment program and to attend recovery meetings. Several times in the intervening years, defendant violated his probation and spent periods of time in custody. The court, finding that the violations were drug-related, reinstated drug court probation.
In June 2010, after defendant’s probation had again been revoked, with new charges pending, the court ultimately revoked defendant’s drug court probation and sentenced him to the middle term of two years on the 2008 offense. The court found that defendant had served 76 actual days in custody before January 25, 2010 (the effective date of the amendment to § 4019), and 25 actual days in custody on or after January 25, 2010. The court therefore awarded defendant conduct custody credits at the accrual rate of former section 4019 for the period before January 25, 2010, and conduct custody credits at the new accrual rate for time served on and after January 25, 2010. Defense counsel later moved to have all defendant’s conduct credits calculated under the new formula of the amended statute; the trial court denied this motion.
Defendant served 76 actual days of custody before January 25, 2010. The court awarded him 38 days of conduct credits, at a rate of two days for each full four-day period in custody. (76/4 = 19; 19 x 2 = 38.) For the period served after January 25, 2010, the court awarded one-for-one credits; defendant received 25 days of conduct credit attributable to 25 days in actual custody. Defendant thus received a total of 164 days of credit. (76 + 38 + 25 + 25 = 164.) For a discussion of credits calculation, see In re Marquez (2003) 30 Cal.4th 14, 24-26.
ANALYSIS
I. Defendant Was Sentenced After the Amendment, and the Credits Should Therefore Have Been Calculated Under the Amended Statute
Before January 25, 2010, subdivisions (b) and (c) of section 4019 provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) of section 4019 provided that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Stats. 1982, ch. 1234, § 7, p. 4554.)
Effective January 25, 2010, Senate Bill No. 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate. New subdivisions (b)(1) and (c)(1) of section 4019 provided that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f); see also Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.)
The amendment to section 4019 has raised questions whether it should be applied retroactively. That issue has engendered a split of authority among the Courts of Appeal. The California Supreme Court granted review of People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, (review granted June 9, 2010, S181963) which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13, (review granted June 9, 2010, S181808), which held that the amendments were not retroactive. Review was also granted in People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314, a decision of this court also holding that the amendments were not retroactive.
However, the retroactivity of the amendments is not strictly at issue in this case. Rather, the issue is how to calculate the credits properly.
Here, defendant’s criminal act was committed, and he was admitted to probation, before the amendment to section 4019 became effective. His sentencing did not occur, however, until after it became effective. Therefore, defendant was required to be sentenced under the provision in effect at that time, i.e., the amended statute.
As noted, the court here used a two-tiered process for calculating defendant’s conduct custody credits, applying the old formula of accrual for actual custody time defendant had served before the effective date of the amendment, and applying the new formula only to the actual custody days defendant had served on or after the effective date of the amendment. This was error because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. In other words, the previous version of section 4019 was no longer valid at the time of defendant’s sentencing, and therefore the trial court was unauthorized to apply the previous statute to defendant’s sentence.
Here, defendant served a total of 101 days of actual custody time before his sentence. Under the new formula, defendant served 50 full two-day periods of actual custody; he should have been awarded two days conduct credit for each such two-day period actually served. We therefore order the judgment modified to award defendant an additional 37 days of presentence conduct credit, for a total of 201 days of presentence credit (101 days actual, plus 100 days conduct credit).
DISPOSITION
The judgment is modified to award presentence credit consisting of 101 days of actual custody time, plus 100 days of presentence conduct credit, for a total of 201 days of presentence credit. The trial court is directed to amend the sentencing minute order of June 24, 2010, and the abstract of judgment, to reflect 201 days of presentence credit. The trial court is also directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
We concur: RAMIREZ, P.J., KING, J.