Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC138077.
SIMONS, Acting P.J.
Damien James Tadder (defendant) appeals from the trial court’s order imposing a jail term after he admitted a violation of probation. He contends he was entitled to additional presentence conduct credits. We agree.
Background
In November 2004, defendant pled guilty to receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)), and the trial court placed him on probation. On January 4, 2010, he admitted a violation of probation and the trial court imposed a six-month jail term, with probation to terminate on his release. The court awarded 49 days of actual custody credit and 24 days of conduct credit.
All undesignated section references are to the Penal Code.
Discussion
Effective January 25, 2010, section 4019 (as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) (hereafter, former section 4019) was amended to increase the rate at which prisoners earn presentence conduct credits. Eligible prisoners are those who were neither required to register as sex offenders (§ 290 et seq.), nor were committed for serious felonies (§ 1192.7), nor had been convicted of serious or violent felonies (§ 667.5). (Former § 4019, subds. (b)(2) & (c)(2).) Defendant contends he was entitled to additional presentence conduct credits under former section 4019, even though he was sentenced before the January 25, 2010 effective date of the legislation. We agree.
Effective September 28, 2010, former section 4019 was further amended by Senate Bill No. 76 (2009-2010 Reg. Sess.) to restore the previous rate of accrual of conduct credits. (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010; see § 4019, subd. (f) [“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”].) That most recent amendment is not at issue here because it is inapplicable to defendant. (§ 4019, subd. (g) [“The changes in this section as enacted by the act that added this subdivision 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 the effective date of that act.”].)
This issue is presently before the California Supreme Court in People v. Brown, review granted June 9, 2010, S181963.
A defendant sentenced to state prison following a criminal conviction is entitled to credit against the sentence imposed for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) In addition, the defendant may be entitled to conduct credits pursuant to section 4019. Prior to January 25, 2010, subdivisions (b) and (c) of section 4019 provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Prior to January 25, 2010, section 4019, subdivision (f) provided 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.” (Stats. 1982, ch. 1234, § 7, p. 4554.)
Former section 4019, subdivisions (b)(1) and (c)(1) amended section 4019 to provide for the accrual of presentence credits at a greater rate so that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to subdivision (f) of former section 4019, “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.”
Defendant contends he is entitled to the benefit of any statutory amendment that reduces punishment or increases credits. In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the California Supreme Court stated, “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.)
In our view, the present matter is governed by Estrada. The effect of former section 4019 was to reduce the overall time of imprisonment, and, thus, the punishment, for those less serious offenders who have demonstrated good behavior while in custody. Even without the presumption of retroactivity, a legislative intent that former section 4019 be applied retroactively might reasonably be inferred from Senate Bill No. 18X (2009-2010 3d Ex. Sess.): “The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.” (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.) Arguably, if the Legislature did not intend retroactive application, it would not have been concerned with “delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act.” (Ibid., italics added.)
We conclude defendant is entitled to the additional conduct credits provided by former section 4019. The People contend defendant’s appeal is moot because he has finished serving his sentence. However, defendant contends that, under section 2900.5, subdivision (a), he is entitled to credit toward the fines imposed by the trial court to reflect the additional conduct credits he is due under former section 4019. (See People v. McGarry (2002) 96 Cal.App.4th 644.) We remand for consideration of defendant’s request for credit towards fines under section 2900.5, subdivision (a).
Section 2900.5, subdivision (a) provides: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.”
DISPOSITION
The present matter is remanded to the trial court with instructions to consider defendant’s request under section 2900.5, subdivision (a) for credit towards his fines, to reflect additional conduct credits due under former section 4019. In all other respects, the judgment is affirmed.
We concur. NEEDHAM, J., BRUINIERS, J.