Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. 97911858, Rosendo Pena, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Vartabedian, J. and Gomes, J.
OPINION
Appellant and three accomplices robbed a Fresno bank of approximately $63,000 on August 20, 1997. He fled to Texas and was a fugitive for 10 years. In December of 2007 he returned to Fresno and turned himself in. He entered a plea of no contest to two counts of second degree robbery (Pen. Code, § 211/212.5, subd. (c)), and was sentenced to two years on each count, to be served concurrently. The court awarded presentence credit for 141 days, consisting of 123 days of actual time served, plus 18 days of presentence conduct credit. Ordinarily, as we shall explain, a defendant who spends 123 days in custody prior to sentencing would receive 60 days of presentence conduct credit, for a total of 183 days of credit. In appellant’s case the trial court applied Penal Code section 2933.1, a section which limits the amount of credit which may be earned in some instances to “15 percent of the actual period of confinement.” (Pen. Code, § 2933.1, subd. (c).)
Further statutory references are to the Penal Code unless otherwise stated.
APPELLANT’S CONTENTION
Appellant contends that the trial court erred in applying the 15 percent limitation of section 2933.1 to him in this case. Respondent concedes error. As we shall explain, the concession is well taken. We will direct the trial court to amend the abstract of judgment to change appellant’s award of presentence conduct credit from “18” to “60” and his total credits awarded from “141” to “183.” In all other respects, we will affirm the judgment.
DISCUSSION
Subdivision (c) of section 2933.1 states:
“Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”
The persons “specified in subdivision (a)” of section 2933.1 are “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5.” (§2933.1, subd. (a).) Subdivisions (c)(1) through (c)(23) of section 667.5 list various crimes which fall within the definition of a “violent felony” in California. Subdivision (d) of section 2933.1 provides that “[t]his section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative.” (§ 2933.1, subd. (d).) Section 2933.1 became operative on September 21, 1994. Appellant committed his crimes after that, in August of 1997, but in August of 1997 appellant’s crime (second degree robbery) was not one of the crimes listed in subdivision (c) of section 667.5. “Any robbery” was not added to the list of crimes in subdivision (c) of section 667.5 until 2000. (Initiative Measure (Prop. 21, §15, approved March 7, 2000, eff. March 8, 2000; §667.5, subd. (c)(9).) Had appellant been captured, charged, convicted and sentenced before March 8, 2000, he would not have been subjected to the 15 percent limitation of section 2933.1 because his crime was not listed in subdivision (c) of section 667.5 and thus would not have been one of the “offenses listed in subdivision (a)” to which section 2933.1 “shall … apply.” (§ 2933.1, subd. (d).) Although the crime of robbery is now one of the “offenses listed in subdivision (a)” (§ 2933.1, subd. (d)), and although section 2933.1 itself became effective prior to appellant’s 1997 commission of his crimes (see Stats. 1994, ch. 713 (A.B. 2716), §1, eff. Sept. 21, 1994), appellant contends and respondent agrees that application of the section 2933.1 limitation to him would violate the ex post facto clause of the United States and California Constitutions. We agree.
“‘The imposition of punishment which, after commission of a crime, has been increased or made more burdensome is barred by the ex post facto clause of the Constitutions of both the United States (art. I, § 10, cl. 1) and [the] State of California (art. I, § 9).…’ (In re Paez (1983) 148 Cal.App.3d 919, 922 [196 Cal.Rptr. 401], citation omitted.) ‘There is no significant difference between the federal and state constitutional provisions.…’ (People v. Mills (1992) 6 Cal.App.4th 1278, 1283 [8 Cal.Rptr.2d 310], citation omitted.) ‘Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.…’ (Weaver v. Graham (1981) 450 U.S. 24, 28-29 [101 S.Ct. 960, 964, 67 L.Ed.2d 17], citations omitted.) ‘The critical question is whether the law changes the legal consequences of acts completed before its effective date.’ (Id at p. 31 [101 S.Ct. at p. 965], italics added.)” (People v. Palacios (1997) 56 Cal.App.4th 252, 256-257.)
“[L]imits on credit earning are a form of punishment …. [R]etroactive retraction of previously-available sentence credits constitutes punishment in violation of the prohibition on ex post facto laws.” (In re Phelon (2005) 132 Cal.App.4th 1214, 1221.) Because the section 2933.1 limitation applies to “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5” (§ 2933.1, subd. (a)), any amendment to subdivision (c) of section 667.5 is in substance an amendment to section 2933.1 as well. Any amendment to section 2933.1 that would purport to reduce a defendant’s credit after the defendant has committed his crime would therefore violate (and here did violate) the ex post facto clauses of the United States and California Constitutions.
DISPOSITION
The superior court is directed to amend appellant’s abstract of judgment to change his award of presentence conduct credit from “18” to “60” and his total of credits awarded from “141” to “183.” In all other respects, the judgment is affirmed.
Appellant’s brief requests “one day of conduct credit for every two days of actual confinement, for a total of 61 rather than 18 days.” As respondent’s brief points out, however, appellant is entitled to two days of additional presentence credit for every four days spent in actual custody. “It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (§ 4019, subd. (f).) There were 30 full four-day periods in appellant’s 123 days of actual custody. “The correct amount of credit is calculated by dividing the number of days spent in actual custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody.” (People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) Appellant is thus entitled to 60 days of credit earned, not 61, on his 123 days of actual custody.