Opinion
B231180
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ETHEL MARIE AUSTIN SPEARMON, Defendant and Appellant.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA 364781)
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Michael D. Carter, Judge. Affirmed as modified.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Ethel Marie Austin Spearmon was charged by information with the crimes of fraudulently applying for a vote by mail ballot (Elec. Code, § 18578), forgery (Pen. Code, § 470, subd. (b)), and perjury by declaration (Pen. Code, § 118, subd. (a)), all occurring in January 2007. A jury convicted defendant of the crimes charged on December 20, 2010. At the sentencing hearing on January 12, 2011, the trial court suspended imposition of sentence, placed defendant on probation for five years, assessed fines and made various orders not at issue on this appeal.
The only issue defendant raises on appeal is her custody credits. The court ordered custody credits of 12 days -- eight days of actual custody and four days "good time/work time." However, the parties agree that defendant spent nine rather than eight days in custody: two days at the time of her arrest, on December 3 and 4, 2009, and seven days during the trial a year later (December 14 to December 20, 2010). They also appear to agree that, while this appeal was pending, the trial court awarded one additional day of actual custody credit, but did not otherwise act on defendant's ex parte motion for additional presentence credits under the January 25, 2010 amendment to Penal Code section 4019. (No documents reflecting these actions have been placed in the appellate record.) The parties further agree that defendant is entitled to additional credits under Penal Code section 4019, but they disagree on the number.
Penal Code section 4019 was amended effective January 25, 2010 (the January 2010 amendment) -- about a year before defendant was sentenced. (Former Pen. Code, § 4019, as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) (The statute was amended again effective September 28, 2010, and again in 2011, but those amendments applied prospectively to prisoners confined for crimes committed on or after specified dates and are not applicable to this case.) The January 2010 amendment resulted in an increase in the number of presentence good conduct and work time credits to be awarded to certain classes of offenders as an offset against a prison sentence. Under the statute in effect before the January 2010 amendment, a term of six days would be deemed to have been served for every four days spent in actual custody, giving defendant "a total of two days of conduct credit for every four-day period of incarceration . . . ." (People v. Dieck (2009) 46 Cal.4th 934, 939 (Dieck).) Under the January 2010 amendment, "a term of four days will be deemed to have been served for every two days spent in actual custody" (former Pen. Code, § 4019, subd. (f)), giving defendant two days of conduct credit for every two days in custody.
Penal Code section 4019 currently provides, for example: "The changes to this section enacted by the act that added this subdivision shall apply prospectively and shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (Pen. Code, § 4019, subd. (h).)
In this case, defendant contends she is entitled to an additional four days of presentence credit, so that she should have been awarded nine days of actual custody credit and eight days of conduct credit (two days for every two days in custody, as provided by the January 25, 2010 amendment). Respondent differs, claiming defendant is entitled only to an additional two days of conduct credit. Respondent argues that conduct credits should be calculated based on the law in effect when defendant was in custody, not on the law in effect at the time of sentencing. Defendant was in custody for two days in 2009, when the prior law was in effect, and for seven days in 2010, after the January 2010 amendment. Under respondent's theory, defendant would receive no conduct credit for the two days of custody in 2009 (because the prior law allowed "two days of conduct credit for every four-day period of incarceration" (Dieck, supra, 46 Cal.4th at p. 939), and six days of conduct credit for the seven days in custody in 2010 (two days for every two days in custody). We agree with defendant.
We adhere to the reasoning in our previous decisions, which held that the January 2010 amendment should be applied retroactively to cases not yet final as of the date of its enactment. Those decisions involved cases where sentencing occurred prior to the January 2010 amendment (rather than, as here, after that date), but the same reasoning applies. While there is a split of authority on the retroactivity of the January 2010 amendment (and the issue is on review before the Supreme Court), this division has joined the courts holding that retroactive application is dictated. Briefly stated, when the Legislature enacted the January 2010 amendment, it did not expressly declare whether or not the amendment should be given retroactive effect. Penal Code section 3 provides that no part of the code is retroactive unless expressly declared to be so. Nevertheless, it is also well established that a criminal defendant, absent a saving clause, "is entitled to the benefit of a more recent statute which mitigates the punishment for the offense . . . ." (People v. Babylon (1985) 39 Cal.3d 719, 725.) And, "[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (In re Estrada (1965) 63 Cal.2d 740, 744.)
In a depublished opinion, People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676, a Fourth District panel took the view that application of the January 2010 amendment to a sentencing that occurred after that date did not involve a retroactivity issue, and that the amendment applied to any sentencing on or after its effective date. The dissent took respondent's view that Penal Code section 4019 credits should be based on the law in effect during the period of incarceration, rather than at the time of sentencing.
See People v. Bacon (2010) 186 Cal.App.4th 333 [2d Dist., Div. 8], review granted Oct. 13, 2010, S184782; see also, e.g., People v. Keating (2010) 185 Cal.App.4th 364 [2d Dist., Div. 7], review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5], review granted July 21, 2010, S183552; but see, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 [6th Dist.], review granted July 28, 2010, S183724.
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Consequently, and in accordance with the reasoning in the majority of published decisions on the issue, we again conclude the January 2010 amendment should be applied retroactively. Here, defendant was in presentence custody for nine days, and under the January 2010 amendment she is entitled to eight days of conduct credit (two days for every two days spent in actual custody).
DISPOSITION
The cause is remanded to the trial court with directions to amend the judgment to order total presentence custody credits of 17 days, consisting of nine days of actual custody credits and eight days of good time/work time credits. As so modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.