Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR542095.
Banke, J.
Pursuant to a negotiated disposition, defendant Brad Calvin Ward pleaded no contest to receiving a stolen car and admitted a prior vehicle theft enhancement and two prior conviction enhancements. He was sentenced to six years in state prison and awarded 366 days of actual and 182 days of conduct credits. He was then found to be a narcotic addict under Welfare and Institutions Code section 3051, and committed to the Department of Corrections for placement. On appeal Ward raises only one issue—that he should receive additional credits under amendments to Penal Code section 4019 that took effect on January 25, 2010, while his appeal was pending. We agree, and modify the judgment to award defendant the additional credit he seeks.
All further statutory references are to the Penal Code.
Under section 1237.1, a defendant must first raise “an error in the calculation of presentence custody credits” in the trial court. (See People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 & fn. 8 [statute applies when the right to such credits is the sole issue on appeal].) We will assume for purposes of this opinion that the legal issue presented here does not involve a “calculation” error within the meaning of section 1237.1, and may thus be addressed for the first time on appeal. (See Acosta, supra, at p. 422 [statute concerns ministerial “ ‘correction of clerical or mathematical error’ ”].)
I.
Under former section 4019, subdivisions (b), (c), and (f), defendants were eligible for two days of conduct credit for every four days in custody; under those subdivisions as amended in January 2010, certain defendants are eligible for two days of conduct credit for every two days in custody. (See People v. Norton (2010) 184 Cal.App.4th 408, 414 (review granted Aug. 11, 2010, action deferred pending consideration of similar issue in People v. Brown (2010) 182 Cal.App.4th 1354) (Norton).) The amendments thus essentially doubled the available credits. (Ibid.) It is not disputed that defendant is entitled to the additional credit he seeks if the section 4019 amendments apply retroactively to prisoners like him who were sentenced before the amendments took effect, but whose judgments were not final on the effective date.
People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
II.
Courts have split on this issue. Cases holding that the amendments apply retroactively include: People v. Bacon (2010) 186 Cal.App.4th 333, 336 (Bacon); People v. Keating (2010) 185 Cal.App.4th 364, 369 (Keating); People v. Pelayo (2010) 184 Cal.App.4th 481, 485 (review granted July 21, 2010, S183552) (Pelayo); Norton, supra, 184 Cal.App.4th at p. 411; People v. Delgado (2010) 184 Cal.App.4th 271, 282; People v. Landon (2010) 183 Cal.App.4th 1096, 1099 (review granted June 23, 2010, S182808) (Landon); People v. House (2010) 183 Cal.App.4th 1049, 1052 (review granted June 23, 2010, S182813); and People v. Brown, supra, 182 Cal.App.4th at pages 1363-1364. These cases represent the majority view. (Bacon, supra, 186 Cal.App.4th at p. 336; Keating, supra, 185 Cal.App.4th at p. 383.)
Cases taking the minority view that the amendments do not apply retroactively include: People v. Eusebio (2010) 185 Cal.App.4th 990, 991-992; People v. Hopkins (2010) 184 Cal.App.4th 615, 619 (review granted July 28, 2010, S183724) (Hopkins); People v. Otubuah (2010) 184 Cal.App.4th 422, 432 (review granted July 21, 2010, S184314); and People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 (review granted June 9, 1010 (S181808)).
III.
As the split of authority would imply, good arguments can be marshaled on both sides of the issue. The arguments have been thoroughly addressed in the reported cases, and no purpose would be served by another extended discussion of them. On the one hand, among other things, criminal statutes are presumed to operate prospectively (§ 3), the legislation amending section 4019 did not state that those amendments were retroactive, and the fact that the Legislature provided for retroactivity in another part of the legislation that increased other credits suggests a contrary intent with respect to the section 4019 amendments (Hopkins, supra, 184 Cal.App.4th at pp. 625-626). On the other hand, among other things, statutory amendments lessening punishment are generally retroactive (In re Estrada (1965) 63 Cal.2d 740, 745), and the section 4019 amendments lessen punishment by shortening prison sentences (Norton, supra, 184 Cal.App.4th at pp. 417-418).
We are persuaded on balance by the arguments favoring retroactive application of the amendments, a conclusion consistent with the reported cases from this Appellate District (Pelayo, supra, 184 Cal.App.4th 481 (Div. Five); Norton, supra, 184 Cal.App.4th 408 (Div. Three); Landon, supra, 183 Cal.App.4th 1096 (Div. Two)), and with the legislation’s stated aim of “address[ing] the fiscal emergency declared by the Governor” (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 62).
IV.
The judgment is amended to award defendant an additional 184 days of credit under section 4019, for a total of 732 days of credit (366 actual and 366 conduct) and, as so amended, the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modification to the Department of Corrections and Rehabilitation.
We concur: Marchiano, P. J., Margulies, J.