Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. GA061192 Janice Claire Croft, Judge.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN P, J.
After a court trial, Aileen Christine Sevajian (appellant) was found guilty of six counts of grand theft of personal property (Pen. Code, § 487, subd. (a) (counts 1-6); and one misdemeanor count of illegally engaging in the business of immigration consultant (Bus. & Prof. Code, § 22440) (count 7). The trial court sentenced appellant to three years in prison.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the grounds that: (1) the trial court abused its discretion in denying her request for discovery in support of her claim of improper selective prosecution, which constituted a violation of her rights to equal protection and due process; and (2) appellant should be awarded additional presentence conduct credits under amended section 4019.
FACTS
Given the nature of appellant’s appeal, a detailed discussion of the facts is not required. The evidence showed that appellant took money from members of the Armenian community in exchange for her help with immigration issues involving themselves or their family members. She represented that she had connections in high places and stated at various times that she was studying law and needed only to take the bar examination, that she was a paralegal or a lawyer, and that she worked for the FBI or a law firm. The victims later learned that nothing was done on their cases, and appellant did not return the money given her.
DISCUSSION
I. Denial of Discovery
A. Appellant’s Argument
Appellant contends the trial court erred in denying appellant’s motion under Murgia v. Municipal Court (1975) 15 Cal.3d 286 (Murgia). Because of this denial, appellant did not have the information that she needed to adequately plead her claim of discriminatory and retaliatory prosecution.
B. Relevant Authority
We review trial court discovery rulings for abuse of discretion. (People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1185-1187 (Baez) [addressing discovery in connection with discriminatory prosecution].) Discretion is abused when the trial court exceeds the bounds of reason considering all the circumstances before it. (Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 369.) Where there is a basis for the trial court’s ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061.)
The required showing for a claim of discriminatory prosecution was set out by the California Supreme Court in Murgia. To establish the defense, the defendant must demonstrate: “that he [or she] has been deliberately singled out for prosecution on the basis of some invidious criterion.” (Murgia, supra, 15 Cal.3d at p. 298.) With the enactment of section 1054, subdivision (e), California criminal defendants were required to meet the burden of proof set forth in United States v. Armstrong (1996) 517 U.S. 456, 468-469 (Armstrong), i.e., to produce “‘some evidence’” in support of the discriminatory prosecution claim in order to establish entitlement to discovery. (See Baez, supra, 79 Cal.App.4th at pp. 1190-1191.) “The claimant must demonstrate that the [] prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.’” (Armstrong, supra, 517 U.S. at p. 465; Baez, supra, at p. 1189.) “[T]he United States Supreme Court noted that there was a ‘background presumption’ that ‘the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.’ [Citation.]... ‘The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.’ [Citation.]” (Baez, supra, at p. 1189; see Armstrong, supra, at pp. 463-464, 468.)
“Although a defendant seeking discovery is ‘not required to meet the standard of proof requisite to the dismissal of a discriminatory prosecution’ [citation], discovery is not a fishing expedition. A motion for discovery must ‘“describe the requested information with at least some degree of specificity and... be sustained by plausible justification.”’ [Citation.]” (People v. McPeters (1992) 2 Cal.4th 1148, 1171, disapproved on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
C. Proceedings Below
Appellant’s claims of discriminatory prosecution were litigated several times before and during trial. On May 16, 2008, prior to trial, appellant filed a motion to dismiss for violation of equal protection and due process and for discovery of investigative and prosecutorial conduct under Murgia and Yick Wo v. Hopkins (1886) 118 U.S. 356, 368, 373-374 [Chinese laundry operators deprived of equal protection rights when city supervisors applied ordinance and found violations only when operators were Chinese]. A list of documents appellant sought was filed on July 14, 2008. On July 21, 2008, the trial court heard appellant’s Murgia motion.
The items requested were: (1) any and all writings in the possession of the Los Angeles District Attorney’s office and the Glendale Police Department and any and all interdepartmental or intradepartmental memoranda controlled by either of them that were created between July 1, 2004, and June 30, 2005; (2) any and all writings in the possession of these two agencies that were promulgated during the period related to any investigation of appellant and any other person regarding laws regulating immigration advisors; (3) any evidence or correspondence during the same period between the agencies and leaders of the Armenian Council of America, the Armenian General Benevolent Union, the Social Democratic Hunchakian Party, Peter Darakjian, Gary Nalbandian, and any person claiming to be a leader of the Armenian community concerning enforcement of laws regulating immigration advisors; (4) memoranda and minutes of any meetings in which either agency participated where the subject of discussion was the enforcement or nonenforcement of any law regulating immigration advisors; (5) any writing promulgated during the period at issue regarding any meeting between representatives of either of the agencies when enforcement of laws regulating immigration advisors or any investigation of appellant and or any other person was a subject of discussion; specifically, any such discussion at a meeting in January or February 2005 of the Buck and Ballot Brigade of Glendale-Burbank; (6) any instruction to or actions taken by deputy district attorneys Thomas Papageorge or Kathleen Tuttle related to any discussion between the district attorney and Peter Darakjian or any leader of the Armenian Community at a meeting in January or February 2005 of the Buck and Ballot Brigade of Glendale-Burbank.
Appellant testified at this hearing that she was prosecuted because she had “been informed many years for many years [sic] since 2000, that there is motive, there is a goal against me to destroy me.” A criminal organization called Armenian Power contrived to get her prosecuted. A memorandum to two deputy district attorneys followed a meeting between Steve Cooley and Peter Darakjian (Darakjian), an Armenian leader whom she did not know and had never seen. The memorandum directed that prosecution be commenced, and a few weeks later she was charged. Darakjian was associated with the Social Democratic Hunchakian party, and a man with whom she had had a relationship years ago split the party in two and made enemies of Darakjian and his associates. Another Armenian leader named Gary Nalbandian visited her and said he was friends with law enforcement. When she was served with a false subpoena in 2001 she realized that there was a vendetta against her, and they were continuing to harm her. Her research had shown her that “in Los Angeles County District Attorney’s office they can manufacture any case against anybody.” The alleged victims were hired to frame her. The trial court denied the Murgia motion and the accompanying motion to recuse the district attorney’s office. The trial court found no evidence to grant either motion.
Trial began on November 3, 2008, and the investigating officer, Sergeant Tigran Topadzhikyan (Sergeant Topadzhikyan) testified that he had obtained public benefit parole for some of the witnesses. He explained that this parole was authorized by a federal government program whereby law enforcement agencies could obtain permission from the immigration authorities for defendants, witnesses, or cooperating sources to temporarily stay in the United States in order to make appearances in court. Defense counsel pointed out in cross-examination that he had not been informed of the use of public benefit parole. After the defense completed cross-examination of Sergeant Topadzhikyan and the People rested, the defense made a motion under Evidence Code section 402, which resulted in the trial court’s ordering the sergeant to provide a report regarding any benefits the victims in the case had received from the Glendale Police Department. After the defense had reviewed the sergeant’s report, appellant requested more documents, transcripts, and an order setting a briefing schedule regarding issues raised by the “recent discovery of the Glendale Police Department’s grant of public benefit parole to some of the victims.”
At the hearing on the motion, defense counsel argued that appellant was asserting that she was being discriminated against as an individual rather than as a group, as had occurred in the seminal discriminatory-prosecution cases. Counsel asserted that the trial court had before it some evidence of invidious and constitutionally impermissible discriminatory law enforcement and prosecutorial authority. He cited the instigation of the prosecution itself and the apparent attempt on the part of Glendale prosecuting authorities, including Sergeant Topadzhikyan, to obscure from the court and the defense the steps the Glendale Police Department took to file and structure the evidence. This was done by using the public benefit parole program to “get this case in front of the federal authorities in a way which was... fraudulent.” Counsel argued that the “narrow categories of evidence” that appellant requested were reasonable. In addition to the listed documentation, counsel requested that the witnesses be ordered back, and he asked for an opportunity to review their entire immigration files. Counsel suggested that if the trial court was not prepared to allow him everything he wanted, appellant should be allowed to testify to fortify her claim of invidious discrimination.
The prosecutor argued that appellant had failed to show some evidence of discriminatory prosecution. She had not shown that because of her nationality or any other characteristic, the offenses of which she had been charged had been unequally or unethically applied to her. In addition, section 1054.1 did not expressly require the prosecution to disclose to the defense information that may support a discriminatory prosecution claim. Furthermore, the public benefit parole declarations made by Sergeant Topadzhikyan reasonably stated that the witnesses were going to testify against appellant because that was the nature of the police reports and the evidence.
Counsel replied that appellant had to be given the opportunity to show that her role in the north Los Angeles Armenian community entitled her to the discovery. Appellant contended that this community, particularly in Glendale, is represented by various political and organized criminal groups. Her resistance to organized crime and the corruption in the community has led to the “predicament in which she finds herself.” Appellant did not believe her argument should be cast aside without the trial court’s hearing her live testimony. Counsel stated that he did not have access to information about what had happened to other similarly situated suspects.
At the close of argument, the trial court stated: “I respectfully deny the motions. There is a great difference between immigration consultants that file documents and intend to in some way help people and the evidence which I have heard in this case which only shows me that when Ms. Sevajian took money from people she had not intended to do anything. She didn’t [do] anything. She had no [intent] to do anything. She just took their money under false pretenses. We are not talking about immigration people that file things to get things done from the immigration [] court. Ms. Sevajian didn’t do anything. She has impacted a great many people. As to the public benefit parole, you have heard about that during the trial. Witnesses were cross-examined as to that. If some were not, we can certainly recall them. And under the [Baez] case, that was brought out by the defense on cross examination. I am viewing their testimony with that in mind. But I do not find that you have met your burden on the Murgia motion, on Lee Cho (phonetic) [sic] or any of the other cases and I deny these discovery motions.”
Appellant subsequently took the stand in her defense on February 2, 2009, and began her testimony by complaining that she did not have the exhibits and facts or the research materials she required. Appellant testified extensively about a vast conspiracy that had targeted her.
On April 16, 2009, appellant filed an ex parte application to appoint an investigator to assist the defense. The trial court acceded to the defense request. On May 14, 2009, appellant submitted certain evidentiary proffers and moved to dismiss the prosecution on the grounds that credible evidence sufficient to convict beyond a reasonable doubt had not been adduced, and the prosecution “is abusive, discriminatory and violative of her rights to due process and equal protection of the laws and to freedom of association, belief and expression.” Appellant offered to prove that the “prosecution’s case is a fabric of lies woven by persons and groups allied with, fronting for, or which actually constitute (for lack of a better term) an ‘Armenian Mafia’ hostile to her for reasons she will show....” Appellant stated that the police and prosecutors were working in concert with this mafia or at least were controlled and suborned by appellant’s enemies. She proceeded to recount the history and origins of her persecution by “unseen hands... intent on doing her harm” that had resulted in the instant charges. She refuted the testimony of the witnesses against her and stated they were connected with organized criminals. Appellant concluded by asserting that the unfounded charges against her were falsely brought by the efforts of a sinister cabal directed by, among others, Darakjian. The cabal was sanctioned by the district attorney’s office and the Glendale police, executed by Sergeant Topadzhikyan and witness Yehgiayan, carried out to advance the interests of the Armenian Mafia, and intended to punish her for her wisdom, forthrightness, and rectitude.
On May 29, 2009, the trial court heard argument and very extensive testimony from appellant. The trial court allowed appellant to submit multiple exhibits and to produce a witness, Darakjian. Darakjian testified that he did not know appellant and had never seen her. He was not a member of any secret criminal group. He admitted speaking with Sergeant Topadzhikyan about the fraudulent practice of immigration representatives. Darakjian said he acted as a conduit between some members of the community who had asked him for assistance and the sergeant. After that point, he had no idea what occurred until he was telephoned the night before he appeared in court.
The trial court denied a continuance to hear from another witness. The trial court noted that it had heard from the complaining witnesses, who were thoroughly cross-examined, and it had heard from the defendant and the current witness. The trial court denied any further continuances and ordered the attorneys to prepare for closing argument. The trial court subsequently found appellant guilty on all counts.
IV. No Abuse of Discretion
Armstrong expressly rejected the proposition that “a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant.” (Armstrong, supra, 517 U.S. at p. 469.) Armstrong viewed this standard not as an “‘evidentiary obstacle[], ’” but a threshold that “adequately balances the Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective prosecution.” (Id. at p. 470.) We note that, although a claim of discriminatory prosecution is referred to as a defense, it is not an argument that addresses the nature of the charged offense. Rather, it alleges a defect of constitutional dimension in the origination of the prosecution. (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 831.) “The defect lies in the denial of equal protection to persons who are singled out for a prosecution that is ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ [Citation.] [¶] Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citation.]” (Id. at pp. 831-832.)
In the instant case, appellant failed to show that persons similarly situated to her were treated differently than she was treated and that she was singled out for prosecution. Her entire testimony and proffered documents were focused on her theory that she was the victim of a conspiracy organized by leaders of the Armenian community in Glendale. There was no evidence of other persons acting as unlicensed immigration consultants who were known to the authorities and allowed free rein to continue their illegal activities. Her evidence that Sergeant Topadzhikyan received a fax from a consumer affairs investigator served only to show that one of her victims had quite appropriately contacted a consumer protection agency about appellant’s actions. This is merely a further indication that appellant was not unfairly singled out by law enforcement but rather that law enforcement acted upon unsolicited information from a consumer advocate. The e-mail between the deputy district attorneys merely indicated that they were given a case to assess and instructed to determine if charges should be brought. We perceive nothing sinister in the bantering tone employed in the email. There was no evidence that District Attorney Cooley ordered appellant’s prosecution after speaking with Darakjian at a political event as appellant alleges. The evidence showed only that Darakjian had responded to information about criminal activity given him by members of his community by passing on the information to the district attorney, whom he briefly met at a political function. The evidence also showed that appellant did not know Darakjian and Darakjian did not know her. Appellant claimed that her research has shown her that the district attorney’s office could manufacture a case against anyone, but she produced no evidence yielded by this research.
Appellant produced a copy of a fax from an investigator with the Department of Consumer Affairs in Los Angeles that stated, “Attached please find the information you requested. Please let the me [sic] know as soon as you arrest Eyleen Svadjian.”
As part of her pretrial motions, appellant produced a copy of an e-mail from Darakjian, who signed as the Director of the Armenian Council of America, to District Attorney Steve Cooley (Cooley) with the subject line: “Immigration Fraud Cases.” The e-mail stated: “Per our brief conversation at the Buck & Ballot dinner in Glendale, please find the details on two cases of misrepresentation and undelivered promises. I am sure that there are many more out there that are afraid to come fort [sic] intimidated by their perpetrators.” Cooley forwarded the e-mail to Deputy District Attorney Thomas Papageorge (Papageorge) stating, “Tom, please evaluate this for possibility of immigration fraud and get back to me with what you learn. Thanks.” Papageorge forwarded the e-mail to Deputy District Attorney Kathleen Tuttle stating, “As if you didn’t have other things this month, the DA still wants us to be his triage experts on immigration fraud. (That’s a generally good thing for all of our careers, mind you!) Please take a look at this immigration fraud complaint for us, and let me know what you think we should say to the boss. Thanks very much.”
The public benefit parole granted to several of the victims did not represent evidence that appellant was a victim of “different treatment of similarly situated persons.” (Armstrong, supra, 517 U.S. at p. 470.) Sergeant Topadzhikyan testified that the parole was granted to some of appellant’s victims under an established federal program whose goal was to allow witnesses and victims to remain in the United States while involved in criminal proceedings, just as occurred in this case. These witnesses were not promised permanent residency in exchange for their testimony against appellant.
Finally, the prosecutor submitted a declaration signed under penalty of perjury attesting to the fact that appellant’s prosecution was not “vindictive, malicious, or in any other way improperly motivated.” The prosecutor declared that no pressure had been applied at any time concerning decisions to prosecute the case, and the case was supervised in the usual and customary manner of the office. Although appellant argues that “[t]his summary denial did not foreclose the need for and right to the requested discovery, ” this declaration nevertheless is an accepted form of evidence that carries weight in a discriminatory prosecution claim. (See Murgia, supra, 15 Cal.3d at p. 292; Baez, supra, 79 Cal.App.4th at p. 1191; People v. Williams (1996) 46 Cal.App.4th 1767, 1774-1775, 1776.) In addition, the trial court reasonably found the victims to be credible witnesses rather than paid perjurors.
“I, Susan Navas, declare as follows: 1. I am a Deputy District Attorney in the Los Angeles County District Attorney’s Office, and as such I have personal knowledge of the facts set forth in this declaration, and if called as a witness I could and would competently testify thereto. 2. I have been a Deputy District Attorney in Los Angeles County for 10 years. 3. I am currently the calendar deputy in the Pasadena branch of the Los Angeles County District Attorney’s Office. I am the currently assigned prosecutor in the case of People v. Aileen Christine Sevajian, Case No. GA061192, and as such I am assigned to handle the trial, which is scheduled to start July 17, 2008 or within ten calendar days thereafter. 4. This case was filed on June 20, 2005. The preliminary hearing was conducted on October 11, 2005. The case came to me through the ordinary channels of case transfers in early 2006. The two previous prosecutors assigned to this case have not discussed anything with me personally regarding the case other than a general summary of the facts. This case does not involve any specialized concerns requiring approval from any other prosecutor. 5. I have no bias or animus toward the defendant. I have been treating and will continue to treat her fairly, as I do every other defendant charged with a criminal offense. 6. Nothing done or said regarding this case has improperly impacted my ability to fairly prosecute this case. Nothing I have experienced in my office has led me to believe that any prosecutor has any animus toward the defendant. Nothing to my knowledge leads me to believe defendant’s prosecution is vindictive, malicious, or in any other way improperly motivated. 7. No pressure has been at any time directly or impliedly imparted to me concerning any of my decisions to prosecute this case. My prosecution of the case was, and continues to be, supervised in the usual and customary manner in which such cases are supervised in the office. It is being prosecuted by me with no extraordinary restrictions, conditions, or limitations on any of my prosecutorial decisions. This case is similar to the numerous cases I handle on a weekly basis where I exercise my prosecutorial discretion in a fair and appropriate manner. I declare under penalty of perjury under the laws of the State of California that the preceding is true and correct, and that this declaration was executed in the State of California, County of Los Angeles, on July 8, 2008.”
The totality of these factors defeat appellant’s claim. She failed to produce “some evidence” of a reasonable and credible nature that she was “singled out for prosecution on the basis of some invidious criterion” and that her prosecution was begun only because of a “discriminatory design of the prosecuting authorities.” (Armstrong, supra, 517 U.S. at p. 469; Murgia, supra, 15 Cal.3d at p. 298.) Drawing all reasonable inferences in favor of the ruling below, as we must, we conclude there was no abuse of discretion in denying her discovery motion. (See Baez, supra, 79 Cal.App.4th at pp. 1195-1196; People v. Williams, supra, 46 Cal.App.4th at pp. 1775-1776 [trial court did not abuse its discretion in denying defendant’s discriminatory-prosecution discovery motion where there was meager production of relevant evidence in support of his claim that he was singled out for prosecution because of his race, and the People produced evidence in the form of declarations that race played no role in the prosecution].)
II. Conduct Credits Under Section 4019
A. Argument
Appellant contends she was entitled to a recalculation of her presentence conduct credits after the amendment to section 4019 that took effect after her sentencing on July 6, 2009, but during the time her appeal was ongoing. The trial court granted appellant 20 days of actual custody credits and 10 days of conduct credits, for a total of 30 days.
Respondent argues that this court should conclude that the amendment to section 4019 does not apply retroactively, since it is not clear from the statute’s amendatory language or the surrounding circumstances that the Legislature intended such a result. Respondent points out that, in the absence of an express retroactivity provision, a statute will not be applied retroactively, unless there is a clear indication to the contrary from extrinsic sources.
B. Relevant Authority
Under section 2900.5, a criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit for good behavior and work performance. (§ 4019, subds. (b), (c).) The credits authorized by section 4019 are collectively known as conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of section 4019 that was in effect when appellant was sentenced, a criminal defendant sentenced to state prison was deemed to have served six days for every four days of actual presentence custody. (Former § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, § 7, p. 4553.) Under the version of section 4019 that became effective on January 25, 2010, a criminal defendant sentenced to state prison was deemed to have served four days for every two days of presentence custody, as long as he or she was eligible. (§ 4019, subd. (f).) The exceptions that result in ineligibility are not at issue in appellant’s case. Since appellant filed her briefs, section 4019 has been amended again, effective September 28, 2010. The latest version applies only to crimes committed after the effective date. We address appellant’s argument under the version of section 4019 that took effect on January 25, 2010 (interim version).
C. Additional Presentence Conduct Credits Must Be Granted
The amendments to section 4019 that appellant sought to have applied to her case were adopted as part of Senate Bill No. 18, which was introduced at a special session to address a fiscal emergency declared by the Governor on December 19, 2008. (Stats. 2009-2010, 3d Ex. Sess., ch. 28.) Because the interim version of the statute was not yet in effect at the time of appellant’s sentencing, she cannot receive the increased credits this version provided unless it is interpreted to apply retroactively. As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise. (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) This principle is codified in section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.)
The general rule that “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively... is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada); see also Alford, supra, 42 Cal.4th at p. 753.) Estrada is binding authority and requires an examination of “‘all pertinent factors’” in order to determine the legislative intent with respect to the interim version of section 4019. (Alford, supra, at p. 753.)
In Estrada, the defendant was committed to a rehabilitation center after a narcotics violation, and he later escaped. He was convicted of escape without force or violence in violation of section 4530. (Estrada, supra, 63 Cal.2d at pp. 742–743.) At the time Estrada committed the offense, section 3044 provided that a person who was convicted of violating section 4530 could not be granted parole until such time as he had served at least two calendar years from and after the date of his return to prison following the conviction. (Estrada, supra, at p. 743.) After Estrada committed the offense, but before he was convicted and sentenced, sections 3044 and 4530 were amended to provide that a defendant convicted of escape without force or violence could be eligible for parole in less than two years. (Estrada, supra, at pp. 743–744.) The court held that the amended versions of sections 3044 and 4530 applied to Estrada. (Estrada, supra, at pp. 744, 748, 751.) The court reasoned that “‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’” (Id. at p. 745.)
There is currently a split of authority on the issue of whether the interim version of section 4019 represented a “‘legislative mitigation of the penalty’” for certain crimes, and thus whether it falls within the rule of retroactive application set out in Estrada. (Estrada, supra, 63 Cal.2d at p. 745.) We believe the better reasoned decisions are those holding that the interim version of section 4019 should operate retroactively, since it constitutes an amendatory statute mitigating punishment under Estrada. It clearly operated to reduce the sentences of eligible prisoners by increasing the rate at which a prisoner accrued time to offset his or her sentence. The fact that this mitigation of punishment was achieved by a less direct method than the statutory amendments discussed in Estrada is a distinction without a difference in our view. (See People v. Hunter (1977) 68 Cal.App.3d 389, 392-393 [applying Estrada to amendment allowing award of certain custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239, 240 [applying Estrada to amendment involving conduct credits].) The Legislature clearly deemed the sentences served after reduction of the conduct credits to be “‘sufficient to meet the legitimate ends of the criminal law’” for qualified prisoners. It follows that the interim version of the statute is to be applied retroactively. (Estrada, supra, 63 Cal.2d. at p. 745.)
We therefore conclude that appellant is entitled to conduct credits in accordance with the interim version of section 4019. Under that version, appellant is deemed to have served four days for every two days in local custody. Since she was granted 20 days of actual credit, she is also entitled to 20 days of good time/work time credits. Appellant is therefore entitled to an additional 10 days of conduct credit, for a total of 40 days of presentence credit.
The number of actual days is divided by two and the remainder is discarded. The result is then multiplied by two to arrive at the number of conduct credits. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [demonstrating the proper calculation based on the formula for six days being deemed served for every four actually served].)
DISPOSITION
The judgment is modified to award additional presentence credit, as discussed in this opinion. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 10 days of conduct credit for a total presentence credit of 40 days and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: ASHMANN-GERST, J. CHAVEZ, J.