Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB058110, David Cohn, Judge.
Victoria Matthews, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. White, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
On November 13, 2006, defendant and appellant Albert Valle pled guilty to possessing a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) On December 12, 2006, pursuant to his plea agreement, defendant was placed on probation. On September 26, 2007, defendant failed to appear for a review hearing; probation was revoked and a bench warrant was issued.
An amendment to Penal Code section 4019 became effective January 25, 2010. (See Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28.)
All further statutory references are to the Penal Code unless otherwise indicated.
Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2009-2010, ch. 426, § 5.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019. On April 4, 2011, section 4019 was yet again amended. (Stats. 2011-2012, ch. 15, § 482.) However, the operation of this latest amendment is conditional on the creation and funding of a community corrections grant program. (Id. at § 636.)
On July 20, 2010, defendant admitted that his failure to appear violated his probation. The trial court imposed the low term of 16 months, but continued the matter so custody credits could be calculated. Defendant had been in custody 12 days prior to the amendment of section 4019, and 40 days after the amendment became effective. Over the objection of defendant’s trial counsel, the trial court awarded conduct credit by granting credit for the 12 days defendant spent in local custody prior to the amendment under former section 4019, and credit for the 40 days defendant spent in local custody after the amendment under amended section 4019. Thus, defendant was granted conduct credit of six days for his preamendment custody and 40 days for his postamendment custody and, including credit for the actual days, received credit for 98 days in total. Defendant’s sole contention on appeal is that he was entitled to conduct credits under amended section 4019 for the entire period of his presentence custody. We agree.
The facts underlying defendant’s conviction are not relevant to the determination of the issue on appeal.
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Prior to January 25, 2010, section 4019 provided for “two days [of conduct credit] for every four days the defendant is in actual presentence custody.” (Duff, at p. 793.) The January 25, 2010 amendment provided for the granting of two days of conduct credit for every two days of presentence custody. (Amended § 4019, subd. (f).)
The amendment’s increase does not apply “[i]f the prisoner is required to register as a sex offender... was committed for a serious felony... 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.” (Amended § 4019, subds. (b)(2) & (c)(2).)
Defendant contends that because amended section 4019 was operative on the date of his sentencing, all of his credits should have been calculated under amended section 4019. The People contend credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation “is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5,” and that a contrary interpretation would create equal protection violations.
“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere... ‘prior to the imposition of sentence’ may also be eligible for good behavior credits.... ‘[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. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]” (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)
Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available “ ‘ “all or nothing.” ’ ” (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).) Instead, they are “credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ [Citation.] It is the duty of the sentencing court to determine ‘the total number of days to be credited...’ for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits. [Citation.]” (Duesler, supra, 203 Cal.App.3d at p. 276.) “If the record fails to show that defendant is not entitled to such credits... he shall be granted them.” (Johnson, at p. 815.) Thus, section 4019 credits are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
Amended section 4019 contains no provision for a two-tiered division of presentence custody credits, and it was the only version of section 4019 operative at the time of defendant’s sentencing. Thus, the trial court’s discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because “the record fails to show that defendant is not entitled [to conduct credits], he shall be granted them” (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
We reject the People’s contention that applying amended section 4019 to all presentence custody defeats the purpose of conduct credits or creates equal protection violations. Underlying the People’s contentions are the premises that a defendant sentenced on January 26, 2010, could not have had their behavior in custody influenced by the availability of increased conduct credits, and would receive more credits than an eligible defendant sentenced on January 24, 2010. However, regardless of whether a defendant was sentenced before or after amended section 4019 became operative, section 4019 served its purpose of rewarding good behavior; defendants sentenced after the amendment became effective merely had an increased incentive. Furthermore, the distinction between defendants sentenced before and after the amendment became effective is a rational one as it is based upon a temporal distinction and the ability of amended section 4019 to provide an increased incentive. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 189 [“ ‘punishment-lessening statutes given prospective application do not violate equal protection’ ”]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
Accordingly, because there was no showing that defendant was not entitled to conduct credits, he was entitled to 52 days of section 4019 conduct credit. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating preamendment formula for calculating conduct credits].)
DISPOSITION
The judgment is modified so that defendant has presentence credit for time served of 104 days, consisting of 52 actual days, and 52 days of amended section 4019 conduct credit. The superior court clerk is directed to prepare a new minute order and amended abstract of judgment reflecting the modification, and then forward certified copies of the minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., KING, J.