Opinion
A131688
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. DONNELL WEAVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 208097)
On October 22, 2008, appellant Donnell Weaver was convicted by guilty plea of felony possession for sale of a controlled substance, and placed on probation. The trial court revoked probation upon appellant's violation of its terms and on November 16, 2009, sentenced him to four years in state prison, with an award of presentence custody credits totaling 650 days: 434 actual days plus 216 conduct days.
On September 16, 2010, this court granted appellant permission to file a late notice of appeal in case No. A127970. Appellant lodged his notice of appeal the next week and subsequently filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues on appeal. We affirmed the judgment in an unpublished opinion filed October 12, 2011. (People v. Weaver, A127970.)
Meanwhile, on February 15, 2011, appellant moved without success to correct his presentence conduct credits. This appeal followed. We reverse the order and remand for recalculation of those credits.
DISCUSSION
Appellant urges this court to retroactively apply the January 25, 2010 amendments to Penal Code section 4019, thereby increasing his presentence conduct credits. The trial court calculated these credits pursuant to the statutory formula as it existed at the time of sentencing on November 16, 2009. This version of the statute awarded the equivalent of three days of credit for every two days spent in custody. (Former § 4019, subd. (f) [Stats. 1982, ch. 1234, § 7, pp. 4553-4554].)
All statutory references are to the Penal Code.
The Legislature amended section 4019 effective January 25, 2010, providing that for crimes such as the one of which appellant stands convicted, four days will be deemed to have been served for every two days spent in actual custody. (Former § 4019, subds. (b)-(c), (f) [Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50].) The legislative package addressed the state's fiscal crisis by, among other things, awarding presentence conduct credits at a higher rate than under former law, thus reducing jail populations. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, §§ 41, 50, 62.)
To complicate matters, the Legislature again amended section 4019 effective September 28, 2010, restoring the calculation of custody credits to the pre-January 25, 2010 formula. The September 28, 2010 amendments apply to crimes committed on or after that date, and thus do not pertain to this case. (Stats. 2010, ch. 426, § 2.)
Appellant points out that as of January 25, 2010, the effective date of the ameliorative amendments, his case was still pending on appeal in case No. A127970 and thus his conviction was not yet final. Therefore, he posits that the amendments apply to him under the principle announced in In re Estrada (1965) 63 Cal.2d 740. There our Supreme Court explained: "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies. [¶] . . . [¶] . . . 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." (Id. at pp. 744-745.) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
Various appellate courts have split on the question of whether the January 25, 2010 amendments to section 4019 are retroactive, and the issue presently is pending before the California Supreme Court. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [retroactive]; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (Pelayo) [same]; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260 (Norton) [same]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (Landon) [same]; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 [same]; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [same]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [prospective]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 [same]; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [same].)
Having reviewed the competing arguments, we are persuaded that the January 25, 2010 amendments should apply retroactively, consistent with other reported cases from the First Appellate District and the legislation's goal of addressing the fiscal emergency declared by the Governor. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.)
Pelayo, supra, 184 Cal.App.4th 481; Norton, supra, 184 Cal.App.4th 408; Landon, supra, 183 Cal.App.4th 1096.
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DISPOSITION
We reverse the postjudgment order denying appellant's motion to correct his presentence custody credits, and remand the matter to the trial court for recalculation pursuant to the formula set forth in the January 25, 2010 amendments to section 4019. The trial court shall prepare an amended abstract of judgment and forward a copy to the California Department of Corrections and Rehabilitation.
Reardon, J. We concur: Ruvolo, P.J. Rivera, J.