Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB900690. Ronald M. Christianson, Judge.
Mark Anchor Albert, 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, Pamela Ratner Sobeck, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
INTRODUCTION
On February 20, 2009, a complaint charged defendant and appellant Randy Lynn Romine (defendant) with felony possession of a controlled substance with a firearm under Health and Safety Code section 11370, subdivision (a) (count 1); and felony possession for sale of a controlled substance under Health and Safety Code section 11378 (count 3).
Count 2 of the complaint charged only codefendant Monique Walker with possession of a firearm by a felon under Penal Code section 12021, subdivision (a)(1).
On the same date, defendant pled not guilty to all counts. On March 2, 2009, however, defendant pled guilty to count 3. On motion by the People, the trial court dismissed count 1.
On March 30, 2009, following a sentencing hearing, the trial court sentenced defendant to three years of supervised probation. In addition to the regular terms and conditions of probation, defendant agreed to cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer; provide the probation officer with the place of residence; inform the probation officer about cohabitants and pets and give written notice to the probation officer 24 hours prior to any change; not associate with known convicted felons; and not associate with any persons known to be illegal users or sellers of controlled substances.
On May 3, 2010, the probation officer filed a petition for revocation of probation for failure to comply with the terms of probation. The petition alleged that defendant had failed to cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer; failed to provide the officer with the place of residence, cohabitants and pets, and failed to give written notice to the probation officer 24 hours prior to any change; and associated with known convicted felons and persons known to be illegal users or sellers of controlled substances.
On June 17, 2010, following a probation revocation hearing, the trial court revoked probation and sentenced defendant to the low term of one year four months in state prison. Defendant was awarded 174 actual days and 103 days for conduct, for a total of 277 days.
On appeal, the issue is whether defendant is entitled to additional presentence conduct credits pursuant to amended Penal Code section 4019 that became effective on January 25, 2010. We conclude that the trial court erred in applying a two-tiered division of the presentence conduct credits.
All further statutory references will be to the Penal Code unless otherwise indicated.
We note that since defendant filed her opening brief, section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its version prior to January 25, 2010. The latest statutory change applies only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the prior amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the amendment to section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
The details of defendant’s criminal conduct are not relevant to the limited issue she has raised in this appeal, and we will not recount them here.
On June 17, 2010, the trial court awarded defendant a total of 277 days of presentence conduct credits, consisting of 174 actual custody plus an additional 103 days of good conduct/work credit under section 4019. Over defendant’s objection, the court used a two-tiered system: (1) the court calculated defendant’s custody prior to January 25, 2010, used the former version of section 4019, and calculated the conduct credits; and (2) the court then calculated defendant’s custody from January 25, 2010 and after, used the amended version of section 4019, and calculated the conduct credits. Under this two-tiered system, defendant received 70 days of conduct credit for the 141 days she spent in custody prior to January 25, 2010, plus 33 days of conduct credit for the 33 days she spent in custody between the amendment’s effective date and her sentencing date.
Here, defendant does not contend that she is entitled to the enhanced presentence conduct credits provided by the amended version of section 4019, because the 2010 amendment is retroactive. Instead, defendant argues that amended section 4019 applies to all presentence custody, even those that occurred prior to January 25, when a defendant is sentenced after the effective date of the amendment.
This issue of retroactive application of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). “‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) Under the amended version of section 4019, defendants were eligible to earn two days of conduct credits for every two days of actual custody. (Ibid.) The amendments to section 4019 went into effect on January 25, 2010.
The California Supreme Court has stated: “‘[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)....)” (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) “The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.” (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as “conduct credit[s].” (People v. Dieck, supra, 46 Cal.4th at p. 939, fn. 3.)
“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. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b)....)” (Buckhalter, supra, 26 Cal.4th at p. 30.) The former version of section 4019 granted fewer presentence conduct credits. The 2010 amended version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, “including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment” (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions “following arrest and prior to the imposition of sentence for a felony conviction” (id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265). If those persons are not required to register as sex offenders and are not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
Under the former version of section 4019, “[p]ersons 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 of up to two additional days for every four of actual custody. [Citation.] One such additional day is awarded unless the detainee refused to satisfactorily perform assigned labor, and a second such additional day is awarded unless the detainee failed to comply with reasonable rules and regulations.” (Buckhalter, supra, 26 Cal.4th at p. 30, fn. omitted.)
Here, defendant’s criminal act and some of her probation violations occurred before the amendment to section 4019 became effective, but her sentencing did not occur until after the amendment to section 4019 became effective. Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant’s presentence conduct credits based on the different versions of section 4019 in effect at different times during defendant’s presentence custody. This was an error because section 4019 contains no provision for such a two-tiered division of the presentence conduct credits. Moreover, 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.
Accordingly, defendant is entitled to an additional 71 days of conduct credits under section 4019, for a total of 348 days, instead of 277 days, of presentence conduct credits for her time spent in actual custody in a county jail or penal institution.
DISPOSITION
The judgment is modified to award defendant an additional 71 days of presentence conduct credits, for a total of 348 days of presentence credit. The trial court is directed to amend the minute order of June 17, 2010, and the abstract of judgment to reflect 348 days of presentence credit and 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: King J., Miller J.