Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2007007788, Edward F. Brodie, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Penelope Kittredge Sanborn appeals from denial of her motion to recalculate conduct credits pursuant to Penal Code section 4019. We conclude she is entitled to additional credits, and order modification of the abstract of judgment.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
Appellant has previously been before us on a separate sentencing matter.
In People v. Sanborn, B215158, she was convicted by plea of transportation of methamphetamine (count 1, Health & Saf. Code, § 11379, subd. (a)) and conspiracy to sell methamphetamine (count 3, § 182, subd. (a); Health & Saf. Code, § 11379). She admitted to having a prior drug-related conviction. (Health & Saf. Code, § 11370.2, subd. (c).) On February 6, 2009, she was sentenced to state prison for a six-year term. We found sentencing error and, on February 23, 2010, remanded with directions to modify the abstract of judgment. In April 2010, the remittitur was issued and the trial court amended the abstract of judgment to correct the error.
At the time of sentencing in Case No. B215158, appellant was ordered to serve a two-year prison sentence previously imposed by the Orange County Superior Court. The Ventura County Superior Court selected the Orange County case as the principal term. As to count 1 (transportation of methamphetamine), the court imposed one-third the mid-term of one year which it ordered to run consecutive to the Orange County sentence. As to count 3 (conspiracy), the court selected the low base term of two years to run concurrent to both the Orange County sentence and the sentence in count 1. The court added three years for appellant's prior conviction (Health & Saf. Code, § 11370.2, subd. (c)) for an aggregate term of six years. Appellant requested a certificate of probable cause which the trial court granted. We ordered the abstract of judgment amended to reflect a section 654 stay as to count 3, for a total prison term of four years.
DISCUSSION
Appellant argues that she is entitled to additional conduct credit under the recently enacted amendments to section 4019 that went into effect after she was sentenced. On October 15, 2010, she filed a motion requesting an award of additional days of conduct credit pursuant to the amended section 4019, which became effective while her appeal was pending. Her motion was denied.
When appellant was sentenced in February 2009, section 4019 provided that she was entitled to two days of presentence conduct credit for every four days she had been in actual custody. In accordance with this formula, she was awarded 172 days of actual custody credit and 86 days of conduct credit. Under the amended version of section 4019 that went into effect on January 25, 2010, appellant would be entitled to two days of presentence conduct credit for every two days spent in actual custody, i.e., 172 days of actual custody credit and 172 days of conduct credit. (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.) § 50.)
Absent a saving clause, legislative enactments that mitigate punishment are traditionally deemed to operate retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 748; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendment involving conduct credits].)
The Supreme Court has granted review to resolve a split in authority over whether the January 25, 2010, amendments to section 4019 are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, No. S181963 [holding the amendments are retroactive]; contra, People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, No. S181808.) A majority of published cases on the issue, none of which are yet final, agree that the section 4019 amendments are retroactive. (People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, No. S184782; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, No. S184354; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, No. S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, No. S183260; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, No. S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, No. S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, No. S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, No. S184314; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, No. S184957.)
Although the Supreme Court has granted review, we agree with the reasoning expressed by the courts in the majority and conclude that section 4019 as amended applies to cases pending on appeal. Accordingly, we order appellant's sentence modified to award an additional 86 days of conduct credit, for a total of 172 days of conduct credit.
DISPOSITION
Pursuant to section 4019, appellant's sentence is modified to award an additional 86 days presentence custody credit, for a total of 172 days conduct credit. The trial court is directed to prepare an amended abstract of judgment reflecting these credits (172 days actual custody and 172 days conduct credit), and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.