Opinion
E051524 Super.Ct.No. FWV901239
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DALE TANS, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi, Judge. Affirmed as modified with directions.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven Dale Tans appeals after he pled guilty to second degree commercial burglary (Pen. Code, § 459, count 1), pursuant to a plea agreement. He was placed on supervised probation for a period of three years, under certain terms and conditions. He subsequently admitted violating his probation. The trial court revoked his probation and sentenced him to the midterm of two years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant raises the sole contention that he is entitled to additional presentence custody credits under interim section 4019, effective January 25, 2010. (Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.).) While this court has held in other cases that the January 25, 2010 amendment to the conduct credit provision is not retroactive, defendant here was not sentenced until after the effective date of the amendment and, thus, the case does not involve retroactivity as such. The amended statute was in effect at the time of defendant's sentence; therefore, he should have received credits under the amendment. We modify and affirm the judgment.
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment. (§ 4019, as amended by Stats. 2010, ch. 426, § 2.) The latest statutory change will apply only to crimes committed after September 28, 2010.
Unless otherwise specified, all further references to "interim" section 4019 refer to the amendment effective January 25, 2010. (§ 4019, as amended by Stats. 20092010, ch. 28, § 50.) Any reference to "former" section 4019 refers to the version that was in effect prior to January 25, 2010. (§ 4019, as amended by Stats. 1982, ch. 1234, § 7.)
PROCEDURAL BACKGROUND
On May 12, 2009, defendant was charged by felony complaint with second degree commercial burglary (§ 459, count 1) and forgery (§ 475, subd. (a), count 2). It was further alleged that defendant had served two prior prison terms. (§ 667.5, subd. (b).) Pursuant to a plea agreement, defendant pled guilty to count 1. On motion by the People, the trial court dismissed count 2 and the two prison priors. The trial court placed defendant on supervised probation, as agreed upon, for a period of three years. After subsequently admitting a violation of probation, defendant was sentenced to state prison for two years on July 22, 2010.
The probation officer filed a memorandum on the credit for time served. The memorandum listed 199 actual days, consisting of 75 days from May 8 to July 21, 2009; 85 days from February 5 to April 30, 2010; and 39 days from June 14 to July 22, 2010. The memorandum then broke down the conduct credits into two categories, listing 36 days for "PC 4019 (1/3) Conduct Credit," and 124 days for "PC 4019 (Day for Day) Conduct Credit."
At the hearing on July 22, 2010, the trial court awarded presentence custody credits, pursuant to the credit memo. The trial court stated, "[C]redit for time served 199 days, plus actual—199 days actual and 160 days conduct for a total of 359 days." Defense counsel objected to defendant not being eligible for "the new 4019 credits, for any credits that he served in custody prior to January 25th, 2010." Defense counsel added that the January 25, 2010 amendment should apply, and defendant should receive at least 72 credits under the amendment. The trial court noted the objection.
On November 3, 2010, defendant filed a motion with the superior court to grant additional credit for time served under section 4019. The motion was denied on November 15, 2010.
ANALYSIS
Defendant Is Entitled to Additional Custody Credits
Defendant argues that because he was sentenced after the effective date of the amendment, January 25, 2010, all of his presentence custody credits should have been calculated under the interim version of section 4019. He also contends that the amendment to section 4019 should be given retroactive application to time served before the effective date of the amendment. The issue here is not whether interim section 4019 is retroactive. Instead, the issue is whether interim section 4019 applies to all presentence custody credits, even those that occurred prior to January 25, 2010, when a defendant is sentenced after the effective date of the amendment. In other words, the issue is how to calculate the credits properly.
This issue of retroactive application of the interim version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314.)
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. at 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.) Under former section 4019, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019, subd. (f).) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody for any person who is not required to register as a sex offender and is not being committed to prison for, or has 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). (Interim § 4019, subd. (f).) The interim statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (Interim § 4019.)
The interim version of section 4019, which was in effect when defendant was sentenced, provides, in pertinent part, "[t]he provisions of this section shall apply in all of the following cases: [¶] . . . [¶] (1) When a prisoner is confined in or committed to a county jail, . . . 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, . . . in a criminal action or proceeding ." (Interim § 4019, subd. (a)(1), italics added.) Section 2900.5, subdivision (a), states, in relevant part, that "[i]n 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, . . . 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, . . . in the discretion of the court imposing the sentence." (Italics added.) 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; see also § 2900.5, subd. (d).)
"We interpret statutes with the object of ascertaining and effectuating the Legislature's intent. [Citation.] 'In determining such intent, we begin with the language of the statute itself. [Citation.] That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.' [Citation.]" (People v. Standish (2006) 38 Cal.4th 858, 869.) Giving the words their ordinary meaning here, it is the duty of the trial court to calculate the numbers of days the defendant was in presentence custody, to determine the total numbers of days to be credited, and to apply the section 4019 credits, at the time of sentencing. (§ 2900.5, subds. (a), (d).) Furthermore, under the plain meaning of the statute, "all days of custody from the date of arrest to the date on which the serving of the sentence commences" are subject to the interim version of section 4019. (Interim § 4019, subd. (a)(1).)
Defendant was not sentenced until after the January 25, 2010 amendment to section 4019 became effective. Therefore, he was required to be sentenced under the provision in effect at that time, i.e., interim section 4019. Nonetheless, at sentencing, the trial court calculated his presentence credits in two phases, awarding credits at the old rate for the 75 days he was in custody on or before January 25, 2010, and at the new rate for the 124 days that he was in custody after January 25, 2010. {ct 17} This was an error because interim section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, the former 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 his sentence.
We note that the People provide no authority to support the trial court's two-tiered application of former and interim section 4019. Instead, the People argue that, "[w]hile credits are calculated at the time of sentencing, they are not earned on the sentencing date. Inmates earn conduct credits over the course of their custody time." {rb 6} In support of this proposition, the People cite a portion of interim section 4019, subdivision (f), which provides: "'a term of four days will be deemed to have been served for every two days spent in actual custody.'" {rb 6} However, the People leave out a significant part of interim section 4019, subdivision (f): "It is the intent of the Legislature that 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." (Italics added.) In other words, it is not determined whether "all days are earned under this section" until the trial court determines so at sentencing. (Ibid.; see also § 2900.5, subds. (a), (d).) Furthermore, the People's argument, in effect, segments presentence custody credits and assumes an "earn as you go" approach to section 4019, by considering preamendment credits to have been already earned under former section 4019. The "earn as you go" or "segmental" approach has been rejected. (In re Walrath (1980) 106 Cal.App.3d 426, 430-431 [noting that the credits-per-day provision is simply a ratio to be used at time of calculation]; see also People v. Johnson (1981) 120 Cal.App.3d 808, 812-813.)
The People also contend that applying interim section 4019 to all presentence custody credits, when sentenced after January 25, 2010, would give rise to equal protection violations. For example, prisoners sentenced on January 26, 2010, but having served the majority of their presentence time prior to the effective date of the amendment, would receive the benefit of the increased rate, whereas a prisoner sentenced on January 24, 2010, would receive the credits at the old rate. {rb 6} However, the purported equal protection violation here is temporal, and "'[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 191.) Moreover, the equal protection guarantee, "'"does not prevent the state from drawing distinctions between different groups of individuals but requires the classifications created bear a rational relationship to a legitimate public purpose." [Citation.]' [Citation.]" (People v. Ward (2008) 167 Cal.App.4th 252, 258.) Senate Bill No. 3X 18, the legislation that amended section 4019 effective January 25, 2010, was enacted in order to address the state's fiscal emergency. Application of the interim section 4019 to all presentence custody credits, when a defendant is sentenced after January 25, 2010, is reasonably related to the legitimate public purpose of addressing the state's fiscal emergency, since increasing the amount of credits would reduce the prison population, resulting in reduced costs to the state.
We thus order the judgment modified to award defendant an additional 38 days of presentence conduct credit, for a total of 397 days of presentence credit. The abstract of judgment should be amended to reflect that defendant was awarded total credits of 397 days, consisting of 199 actual days and 198 days under section 4019.
See In re Marquez (2003) 30 Cal.4th 14, 25-26, where the court used the preamendment formula for calculating the defendant's conduct credits.
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DISPOSITION
The judgment is modified to award presentence credit consisting of 199 days of actual custody time, plus 198 days of presentence conduct credit, for a total of 397 days of presentence credit. The superior court clerk is directed to generate a new minute order and abstract of judgment reflecting this modification, and to forward a copy of both to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENORST
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.