Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB800125, Bryan F. Foster, Judge.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys 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
RICHLI J.
In January 2008, pursuant to a plea agreement, defendant and appellant Rene Lovani Leal Sepulveda pled guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)); in exchange, defendant was granted probation on various terms and conditions. Subsequently, in March 2010, defendant admitted to violating probation; in April 2010, defendant was sentenced to two years in state prison and awarded a total of 432 days of presentence custody credits.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) he is entitled to additional presentence conduct credits pursuant to amended section 4019 that became effective on January 25, 2010; and (2) the trial court improperly increased the previously imposed section 1202.4, subdivision (b), section 1202.45 fines. We conclude that the trial court erred in applying a two-tiered division of the presentence custody credits. We further find that the trial court erred in increasing defendant’s restitution and parole revocation fines.
I
The details of defendant’s criminal conduct are not relevant to the limited issues he raises in this appeal. Those details are set out in defendant’s opening brief, and we will not recount them here.
On January 8, 2008, a one-count felony complaint was filed, charging defendant with receiving stolen property. (§ 496, subd. (a).) On January 16, 2008, defendant pleaded guilty to the charge; in return, he was placed on probation for a period of three years on various terms and conditions.
Defendant subsequently violated his probation. On August 12, 2008, defendant’s probation was ordered revoked, and a warrant for his arrest was issued.
On February 18, 2009, defendant admitted to violating probation. His probation was thereafter reinstated on the original terms and conditions with the modification that defendant serve 364 days in county jail with credit for time served.
On January 27, 2010, another petition to revoke defendant’s probation was filed.
On March 4, 2010, defendant admitted he had again violated his probation.
On April 1, 2010, defendant was sentenced to two years in state prison and awarded a total of 432 days of presentence custody credits. It appears that the court based its calculation of the presentence custody credits as recommended by the probation department. The probation department recommended defendant was entitled to 277 days of actual credit, plus 120 days of conduct credit under former section 4019, plus 35 days of conduct credit pursuant to amended section 4019. The court also ordered a restitution fine in the amount of $400 pursuant to section 1202.4 and a parole revocation fine of $400 pursuant to section 1202.45 upon successful completion of probation.
According to the probation department, defendant was in custody between January 5, 2008, and May 2, 2008; again between January 2, 2009, and May 4, 2009; and again between January 29, 2010, and March 4, 2010.
II
DISCUSSION
A. Presentence Custody Credits
Defendant contends he is entitled to the enhanced presentence custody credits provided by the amended version of section 4019, because the 2010 amendment is retroactive.
When the crime was committed, as well as when defendant was granted probation, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
This issue of retroactive application of the current version 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.) As that court will have the last word on the subject, we discuss the issue only summarily.
The California Supreme Court granted review of People v. Brown, supra, 182 Cal.App.4th at pp. 1363-1365, 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.
Under section 3, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [ Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b), (c), amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 41, p. 4422.) Implicitly but necessarily, all other enhanced credits for all other defendants are prospective only.
In any event, the issue here is not whether amended section 4019 should be applied retroactively or prospectively, but whether 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.
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.) As previously noted, 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).) These defendants are now 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 previous version of section 4019 granted fewer presentence custody credits. The 2010 modified 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, subdivision (c), a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
The previous version of section 4019 provided for presentence custody credits for: “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 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 probation violations were committed before the amendment to section 4019 became effective, but his sentencing did not occur until after it became effective. Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant’s presentence credits based on the different versions of section 4019 in effect at different times during defendant’s presentence custody. This was error because section 4019 contains no provision for such a two-tiered division of the presentence custody 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.
B. Restitution and Parole Revocation Fines
Defendant also contends, and the People correctly concede, that the trial court improperly increased the section 1202.4, subdivision (b) restitution fine and the section 1202.45 parole revocation fine. We agree.
At the original sentencing on February 15, 2008, where defendant received a grant of probation, the trial court imposed a $200 restitution fine pursuant to section 1204.4, subdivision (b) and a $200 parole revocation fine pursuant to section 1202.45. However, when defendant was sentenced to prison on April 1, 2010, the trial court imposed a $400 restitution fine (§ 1204.2, subd. (b)) and a $400 parole revocation fine (§ 1202.45). This was error, because the trial court was without authority to increase the restitution fine already imposed when probation was granted. (People v. Chambers (1998) 65 Cal.App.4th 819, 821-823.)
“A restitution fine imposed at the time of conviction and granting of probation remains the same despite a future revocation of probation. Therefore, when probation is revoked, the trial court has no authority to impose a second restitution fine in a greater amount than the original fine. [Citation.]” (People v. Garcia (2006) 147 Cal.App.4th 913, 917.) The $400 restitution fine under section 1202.4, subdivision (b) must accordingly be reduced to $200.
Additionally, the $400 parole revocation fine imposed pursuant to section 1202.45 must also be reduced to $200. “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine... shall be suspended unless the person’s parole is revoked.” (§ 1202.45, italics added.)
The trial court here had no power to raise the amount of the sections 1202.4 or 1202.45 restitution fines when it later found defendant in violation of his probation. Therefore, the minute order of April 1, 2010, and the abstract of judgment must be modified to reflect imposition of a $200 restitution fine and parole revocation fine pursuant to sections 1202.4 and 1202.45.
III
DISPOSITION
The judgment is modified to award defendant an additional 277 days of presentence conduct credits, for a total of 554 days of presentence credit. The trial court is directed to amend the sentencing minute order of April 1, 2010, and the abstract of judgment to reflect 554 days of presentence credit and imposition of $200 restitution and parole revocation fines pursuant to sections 1202.4 and 1202.45. 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., CODRINGTON J.