Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. SWF016315, F. Paul Dickerson III, Judge.
John L. Dodd, 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, Meredith A. Strong, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
This is the second appeal to this court by defendant in this case. Defendant was convicted of eight counts of unlawful sexual intercourse, six counts of penetration by a foreign object, two counts of sodomy, and two counts of oral copulation with minors under the age of 18. We affirmed defendant’s convictions on appeal with some minor modifications concerning fines and fees. (People v. Tucker (April 9, 2009) E045687 [nonpub. opn.] (Tucker I).)
After the judgment was final, defendant filed an ex parte motion in the trial court requesting that he be awarded additional conduct credits for the time he spent in county jail during trial and awaiting sentencing under a modified version of Penal Code section 4019. The motion was denied by the trial court.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims on appeal that equal protection requires that he receive 200 additional days of conduct credit under the amended version of section 4019.
I
PROCEDURAL BACKGROUND
Defendant was convicted of committing six counts of unlawful intercourse (§ 261.5, subd. (c)), six counts of penetration by a foreign object (§ 289, subd. (b)), two counts of sodomy (§ 286, subd. (b)(1)) and one count of oral copulation (§ 288a, subd. (b)(1)), against Jane Doe 1 while she was under the age of 18. He was also found guilty of committing two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (c)) and one count of oral copulation (§ 288a, subd. (b)(1)) against Jane Doe 2 while she was under the age of 18.
On March 20, 2008, defendant was sentenced to 10 years in state prison and ordered to register as a sexual offender pursuant to section 290. He was credited under the then existing section 4019 with 401 actual days of custody credit and 200 days of good time/work time conduct credits.
We affirmed defendant’s conviction on appeal with minor modifications concerning the fines and fees imposed by the trial court.
On August 26, 2010, defendant filed a motion in the trial court entitled “Application For Full Crediting of Back Time Credits.” He stated that under the “equal protection clause, ” he was entitled to half time credits under section 4019. The trial court issued a order that it had reviewed the request for additional credits and denied the request.
On October 13, 2010, defendant filed a notice of appeal with a request for a certificate of probable cause. The trial court deemed the notice of appeal “inoperative” and denied the request for a certificate of probable cause. This court ordered that defendant was entitled to appeal the issue under section 1237, subdivision (b).
Section 1237, subdivision (b) provides for an appeal “[f]rom any order made after judgment, affecting the substantial rights of the party.”
II
FACTUAL BACKGROUND
A summary review of the facts shows that when Jane Doe 1 was 16 years old, defendant started molesting her. From 2002 through 2004, defendant and Doe 1 engaged in several sexual acts: they had intercourse, they orally copulated each other, defendant penetrated her vagina with foreign objects, and defendant sodomized her. Jane Doe 2 was Doe 1’s best friend and lived with defendant and Doe 1 from 2003 to 2004, when she was 16 and 17 years old. During this time, Doe 2 and defendant engaged in sexual intercourse and orally copulated each other. Defendant admitted that he had sex with both Does 1 and 2 but claimed he was intoxicated most of the time.
III
ANALYSIS
When defendant committed the crimes in the instant case, as well as when defendant was sentenced, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, added by Stats.1982, ch. 1234, § 7, p. 4553.) “‘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.)
Effective January 25, 2010, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009–2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427–4428.) On September 28, 2010, section 4019 was amended again to essentially adopt the language in former section 4019. It applies only to crimes committed after September 28, 2010; accordingly, the most recent amendment is not relevant here. (§ 4019, subd. (g).)
Any reference to the “amended” section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
Defendant contends that he is entitled to the enhanced presentence custody credits provided by the amended version of section 4019 to all of the time he spent in custody before being sentenced, including the days he spent in custody before the amendments to section 4019 took effect on January 25, 2010. He claims that to hold otherwise would violate his equal protection rights as all prisoners in custody should be entitled to the same calculation of custody credits. We need not decide the retroactivity/equal protection issue. When defendant was sentenced in this case, he was ordered to register as a sexual offender under section 290 and would therefore not qualify for the enhanced conduct credits under the amended version of section 4019.
Amended section 4019, subdivision (b)(2), as applied to work time credits, provided as follows: “If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, subject to the provisions of subdivision (d), for each six-day period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or labor camp.” Subdivision (c)(2) of section 4019 adds an additional day for goodtime credits mirroring the above language.
In People v. Branch (2010) 184 Cal.App.4th 516, the court stated, “[W]e have considered whether defendant is entitled to additional presentence custody credit under recent amendments to section 4019. Due to his conviction under section 266i, subdivision (b), defendant is required to register as a sex offender. (§ 290, subd. (c).) Accordingly, he is not entitled to additional credit. (§ 4019, subd. (b)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)” (Id. at p. 518, fn. 2.)
Here, as pointed out by the People, defendant was ordered to register as a sexual offender. Therefore, based on the plain language of the amended version of section 4019, defendant was not entitled to the increased conduct credits. His conduct credits were properly calculated under the former section 4019. The trial court committed no error by denying defendant’s motion to recalculate conduct credits.
IV
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.