Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF615511
Bamattre-Manoukian, ACTING P.J.
Defendant Jeffrey Boyd Whalen was convicted after jury trial of five counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of forgery (§ 470, subd. (d)). The jury further found true allegations that, in committing one of the theft and one of the forgery offenses, defendant took property valued at more than $150,000. (Former § 12022.6, subd. (a)(2).) The trial court sentenced defendant to 16 months in state prison.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that (1) the trial court misunderstood its authority to find that he overcame the presumption against a grant of probation, (2) trial counsel rendered ineffective assistance by failing to object to the court’s sentencing decision, and (3) he is entitled to additional presentence custody credits under recently amended section 4019. As we disagree with all of defendant’s contentions, we will affirm the judgment.
BACKGROUND
Although the facts underlying defendant’s convictions are not relevant to the issues on appeal, we will set forth the facts as stated in the probation officer’s report.
“In June 2002, the defendant entered into an agreement with victim James Norris of Stoneridge Funding, a mortgage brokerage and private lender, to purchase the defendant’s dairy farm in San Martin and lease it back to defendant. The purpose of the agreement between the defendant and victim Norris was to stave off a foreclosure, satisfy lien holders and the bankruptcy trustee so the defendant could continue to work on his farm, and grant the defendant a two-year option to repurchase the farm. The agreement was signed on July 3, 2002.
“The defendant soon had difficulty making the agreed monthly lease payments to victim Norris. It became obvious to victim Norris that the dairy farm simply did not have enough cows and equipment to produce the income required to support the lease payments.
“(Counts Three and Four)
“In late November 2003, the defendant purchased 38 cows for $75,000 from a dairy farmer named David Fine in Texas. The defendant paid a deposit of $10,000, and the cows were shipped to the defendant’s farm, leaving an unpaid balance of $65,000. Victim Norris had no knowledge of this transaction.
“In December 2003, the defendant told victim Norris that a person named Val Rocha loaned the defendant $65,000 and that Rocha held the defendant’s cattle and two trailers as collateral. The defendant told victim Norris that Rocha was owed $65,000 and threatened to foreclose by taking the cattle and trailers. The defendant asked victim Norris for a short-term loan of $65,000 to pay off Rocha. Victim Norris agreed to make the loan, so the dairy farm’s income would not be reduced. As security for the loan, victim Norris wanted the defendant to pledge the cattle and trailers to Norris as collateral. The defendant signed a promissory note and security agreement. The defendant provided a handwritten note, purportedly signed by Rocha, leasing Rocha’s interest in the cattle and the trailers. The $65,000 was sent to David Fine, who was the person that the defendant had purchased the 38 cows from in Texas.
“In truth, Val Rocha had not loaned the defendant any money and was not threatening foreclosure. Rocha did not sign any lease and his signature had been forged on the papers the defendant provided to victim Norris.
“(Counts One and Two)
“In late March 2004, the defendant agreed to purchase even more cattle from David Fine in Texas, this time purchasing approximately 100 cows for a price between $180,000 and $200,000. Victim Norris had no knowledge the defendant was buying cattle from David Fine. In late March 2004, the defendant told victim Norris that he wanted to purchase 80 cows, 76 heifers, a tractor, and a feed mixer wagon for $180,000 from David Fine in Texas, and he would need an initial payment of $50,000 to begin shipping. The defendant suggested Fine was going through a divorce and was looking to unload his cattle at ‘fire sale prices.’ Victim Norris accepted. Believing he was purchasing cattle and farm equipment from Fine, victim Norris sent $50,000 to Fine to start the shipments of cattle to San Martin. Norris typed up a contract and forwarded it to the defendant for Fine’s signature. On April 13, 2004, the defendant faxed the contract back to victim Norris with what appeared to be Fine’s signature on it. Relying on this contract that he believed he had with David Fine, victim Norris made additional payments of money totaling nearly $140,000.
“In truth, David Fine had no knowledge of any contract to sell cattle or equipment to Norris. Mr. Fine’s only knowledge of victim Norris came from the defendant, who told Fine that Norris was the defendant’s lender. Fine never signed any contract with Norris, and his signature had been forged on the contract that the defendant gave to Norris.
“The $65,000 loan was due to be repaid to victim Norris on March 22, 2004, however, the defendant failed to do so. Victim Norris agreed to an extension in part because he believed the defendant’s dairy farm’s revenue would improve with the new cattle victim Norris believed he was purchasing from Fine.
“In April 2004, the cattle purchased from Fine arrived at the defendant’s dairy farm. Without actually counting the cattle or checking ear tags, victim Norris believed these were the cattle he had purchased from Fine. The defendant told victim Norris these were the cattle purchased from Fine. As part of the lease agreement for these cattle, the defendant and victim Norris opened up a joint checking account, into which the farm’s proceeds were automatically deposited. This allowed victim Norris to write checks to himself from the account each month to satisfy all of the obligations the defendant had to Norris, including: rent for the farm, rent for the cows, and interest on the $65,000 loan. This arrangement worked well for approximately one year, at which time the automatic deposits stopped and there were no more funds in the account.
“When the payments stopped in April 2005, victim Norris visited the San Martin dairy farm and discovered his cattle and equipment were not there. The defendant told victim Norris the cattle were moved to the Furtado dairy farm. The defendant drove victim Norris to the Furtado dairy farm, pointed out some cattle and farm equipment, and told Norris the cattle and equipment were being stored at the Furtado dairy farm due to flooding at the San Martin farm. This explanation satisfied Norris for a few months, until he realized he had been tricked. Victim Norris then hired an attorney to help him recover his cattle and equipment.
“In truth, the Furtado dairy farm was not storing any cattle or equipment for the defendant in April 2005. The cattle that were delivered to the San Martin dairy farm in December 2003 and April 2004 from Fine were actually shipped back to Texas in January of 2005. None of this was known to victim Norris. In February 2006, victim Norris filed a civil lawsuit against the defendant to recover all of his missed rent and interest payments, as well as to gain possession of the San Martin dairy farm, the 156 head of cattle, a tractor, and a feed mixer wagon.
“In April 2006, the defendant was arrested in this matter. In mid-2007, the defendant and victim Norris entered into a civil settlement of all claims between them. The essence of the settlement was that the defendant paid approximately $1,300,000 in exchange for title to the San Martin dairy farm. As part of the settlement, victim Norris agreed to write a letter to the criminal prosecutor that the defendant’s payment in the civil action constituted full restitution in the criminal matter.
“(Counts Six, Seven, and Eight)
Victim Sergio Roldan began working in San Martin as a realtor in 2004. He had a background in farming, and he was looking for an opportunity to be involved in a small cattle farm of some sort. Since he regularly passed by the defendant’s dairy farm, he decided to introduce himself to the defendant, and they discussed the possibility of doing business together.
“In February 2006, the defendant told victim Roldan there was an opportunity to purchase 16 cows for $25,000. Victim Roldan provided the $25,000 to purchase cows from Fine. The defendant wrote up an agreement in his own handwriting and attached a handwritten list of the cows, with ear tag numbers. In truth, the cows listed in the defendant’s agreement with victim Roldan were cows that were already at the San Martin dairy farm. The cows were owned by David Fine, the Texas dairy farmer who in December 2005 moved some of his cattle, temporarily, to the defendant’s location. Mr. Fine did not agree to sell 16 cows for $25,000, and he did not receive a $25,000 payment from the defendant for any cows in February or March of 2006. The defendant did not buy 16 cows and did not return victim Roldan’s $25,000.”
“Sometime after victim Roldan paid the $25,000 to purchase 16 cows, the defendant told victim Roldan that he had an opportunity to purchase 40 heifers for $75,000. The defendant asked victim Roldan for a 30-day loan of $30,000 so he could complete the purchase. Victim Roldan agreed and he loaned the defendant $30,000, so he could purchase the 40 heifers. In truth, the defendant did not buy any heifers with the $30,000 loaned to him by victim Roldan. On April 10, 2006, the defendant wrote a check to victim Roldan for $32,500 to repay the loan, but the defendant’s account never had nearly enough to cover that amount.”
“Victim Roldan kept sheep on his five-acre property in San Martin. Sometime after the two transactions described above, but before the defendant’s arrest in April 27, 2006, the defendant told victim Roldan that he knew someone who would trade cows or pay money for Roldan’s sheep. Victim Roldan told the defendant he was interested, but he did not want cows, he wanted $400 per sheep.
“A day or two later, the defendant informed victim Roldan that he had arranged for a buyer to come to victim Roldan’s property to buy the sheep at the agreed price of $400 each. Later that day, when the buyer did not appear, the defendant told victim Roldan the buyer’s truck broke down halfway to San Martin. The defendant offered to drive the sheep to the buyer’s location, while the buyer fixed his truck, so the sale could be completed. The defendant and victim Roldan loaded 43 sheep onto the defendant’s trailer, and the defendant drove off. That was the last victim Roldan ever saw of his sheep. When weeks went by with no payment from the buyer, victim Roldan asked the defendant about it. The defendant told victim Roldan the check was in the mail. When the check did not arrive, victim Roldan asked the defendant several more times about the payment. Each time the defendant assured victim Roldan the check would come. Finally, after learning of the defendant’s arrest in this case, victim Roldan again confronted the defendant and obtained a check from the defendant for almost the entire amount owing for the sheep. Unfortunately, when victim Roldan attempted to cash the check at the defendant’s bank, he was told the check was no good due to insufficient funds in the account.”
Defendant was charged by first amended information with five counts of grand theft (§§ 484, 487, subd. (a); counts 1, 3, 6-8), two counts of forgery (§ 470, subd. (d); counts 2, 4), and one count of passing a check with insufficient funds (§ 476a; count 5). The information further alleged that, in the commission of all the offenses, defendant took property valued at over $150,000. (§ 12022.6, subd. (a)(2).) On March 20, 2009, a jury found defendant guilty of counts 1 through 4 and 6 through 8, and not guilty of count 5. The jury also found true the allegation that, in committing the offenses in counts 1 and 2, defendant took over $150,000.
The prosecutor filed a sentencing memorandum arguing in part that defendant was statutorily ineligible for probation unless the court found that this is an unusual case. “[T]his is not an ‘unusual case where the interests of justice would best be served [by] probation’ (Penal Code § 1203.045) as that phrase is defined in Rule of Court 4.413 and explained in People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227.” “The criteria for determining whether this is an unusual case requiring probation are not the same as the criteria to determine suitability for probation.” “Essentially, the sentencing judge may only consider facts showing that either (1) ‘the circumstance giving rise to the probation restriction is of borderline applicability, ’ or (2) ‘the defendant’s culpability, in a moral or ethical sense, was less than would be typically true.’ (Id.)”
Defendant filed a sentencing memorandum requesting that the court grant him probation. He argued that his was an unusual case within the meaning of section 1203.045, and that he “is substantially less culpable than the typical thief who steals more than $100,000.” “Most thefts of this nature and in amounts this large are committed for the purpose of supporting the defendant’s personal lifestyle, usually involving lavish spending, excessive drug or alcohol use, gambling or other self-indulgent spending. In this case, [defendant] used the proceeds he obtained from Stoneridge Funding for the general intended purpose, supporting the dairy farm operations in an effort to make it a successful business.”
The probation officer’s report stated in part: “Pursuant to Penal Code Section 1203.045, the defendant is ineligible for probation unless there are unusual circumstances. Pursuant to Rule 4.408, an unusual circumstance exists in that the defendant has a minimal criminal record. However, in reviewing criteria affecting probation, it appears that the nature, seriousness, and circumstances of the crime are more serious as compared to other instances of the same crime, and the manner in which the crimes were carried out demonstrated criminal sophistication or professionalism on the part of the defendant. The [victims] essentially trusted the defendant, as the defendant was untruthful on multiple occasions in a series of sophisticated thefts involving loans, property, and farm animals in fraudulent transactions. Therefore, a grant of probation appears unwarranted.” The probation officer recommended that the court sentence defendant to seven years four months in prison.
At the sentencing hearing, the court stated that it had reviewed the parties’ sentencing memoranda, the probation officer’s report, and various letters and character references attached to the memoranda and report. The court also heard statements from defendant’s family members, friends, and civil defense attorney. The court asked the parties to address the applicability of Dorsey, supra, 50 Cal.App.4th 1216, and whether the court had discretion to grant probation. Defendant’s counsel argued, “I think this case fits the Dorsey court’s language. That in a moral or ethical sense, [defendant] has considerably less culpability [because he has paid a significant amount of restitution], if nothing else, than would typically be the case of someone who had been convicted of a theft, particularly a theft either by fraud or by embezzlement....” “I see this as not only meeting the – the requirement of Dorsey, but also California Rules of Court, [rule] 4.413(c)(1)(A), which are the – the fact that this is substantially less serious than the circumstances typically present in other cases involving the same probation limitation.” Counsel further argued that rule 4.413(c)(2)(A) applied because defendant was under considerable “financial pressure, ” “[c]all it duress, if you will, ” when he tried “to keep this whole operation going.” “So I would suggest to the Court that it does have both the authority under the law and good reason to make a finding on that authority that this is a case that’s suitable for a grant of probation.”
All further rule references are to the California Rules of Court.
The prosecutor argued that rule 4.413 does not list the payment of restitution as a factor allowing the court to find unusual circumstances, and that it was unclear how much restitution had been paid. The prosecutor further argued that there were five separate transactions involving two different victims, that the total amount of the losses was close to $300,000, and that the type of pressure defense counsel described was not duress.
In making its sentencing decisions, the court stated in relevant part: “The Court appreciates the comments that were made by the defendant’s many supporters, and the Court takes no issue with what the supporters have to say with respect to the defendant’s general behavior within their community within their circle of family and friends. [¶] The Court, however, ... is required to follow the law. And as the Court has developed a discussion amongst counsel, there’s two separate issues: One is whether or not the defendant is statutorily eligible for probation under the reasonings as discussed by Counsel; and the second is whether or not the Court has the option or the discretion to strike the enhancement for the excessive taking, should the Court find that it must send the defendant to prison. [¶] In considering all of the various factors that the family and friends have stated, as well as both Counsel with respect to what is contained in the various briefing, as well as probation with respect to its report, the Court’s of the opinion that the Dorsey case is controlling, and the Court’s of the opinion that the Dorsey case requires under the facts of this particular case that probation be denied. [¶] The Court, in terms of assessing the circumstances in aggravation, the circumstances in mitigation, as the Court is required to do under the Rules of Court, finds that the circumstances in aggravation outweigh the circumstances that mitigate or that support the grant of probation. [¶]... [¶] The Court again, having read the criteria affecting probation as well as the circumstances in aggravation, circumstances in mitigation, the Court finds that the circumstances in aggravation are more predominant than the circumstances in mitigation for purposes of the presumption determination and find therefore that the Court must deny probation and sentence the defendant to a term of prison confinement.”
The court then stated that, in determining the appropriate sentence, the court found that the circumstances in mitigation outweighed the circumstances in aggravation. It exercised its section 1385 discretion to strike the two-year enhancement under section 12022.6, subdivision (a)(2), and imposed the mitigated term of 16 months on count 1, with concurrent terms of 16 months each on counts 3, 6, 7, and 8. It stayed the sentences on counts 2 and 4 pursuant to section 654. It granted defendant 49 actual days, plus 24 days of section 4019 conduct credits, for a total of 73 days of presentence custody credits.
DISCUSSION
The Denial of Probation
Defendant first contends that the matter must be remanded for resentencing because the trial court misunderstood its authority to find that defendant’s case overcame the presumption against probation. He argues that “[t]he record makes clear that the court misunderstood its authority under Penal Code section 1203.45, Dorsey, and rule 4.413. First, the court was under the misimpression that rule 4.414 was applicable to its determination of whether [defendant’s] case was ‘unusual’ within the meaning of Penal Code section 1203.045, and that the court was required to weigh aggravating against mitigating circumstances in making its determination.” “In addition, not only did the court misunderstand that rule 4.414 could not play a part in its determination of whether [defendant] was eligible for probation, but to the extent that the court used the rule to make this determination, it also misunderstood how it should be applied.” “Further, the record indicates that the court was under the erroneous belief that it was limited to the factors listed in rule 4.413, and could not consider the fact that [defendant] had made substantial restitution to render him eligible for probation.” The court’s misunderstanding of the applicable law was prejudicial in that there is little doubt that the court would have found [defendant] eligible for probation had it correctly understood its authority.”
Defendant separately contends that his counsel rendered ineffective assistance by failing to object to the trial court’s misunderstanding of its discretion to grant defendant probation. He argues that the record shows that when the court made its determination to deny him probation, “defense counsel did not interpose an objection and correct the trial court that California Rules of Court, rule 4.414 was not applicable to the court’s exercise of discretion whether or not [defendant] had overcome the statutory presumption against probation.” “[I]t was professionally unreasonable for defense counsel to fail to object to the trial court’s reliance on rule 4.414 in making its determination....” “[I]t is reasonably likely that had trial counsel advised the trial court that rule 4.414 was not determinative of whether a defendant overcame the statutory presumption against probation, the court would have found that [defendant] had overcome this presumption and granted [defendant] probation rather than sentence him to prison.”
The Attorney General contends that the record does not support defendant’s contention that the court misunderstood its discretion to grant probation. “[Defendant] fails to meet his burden of affirmatively demonstrating trial court error.” “Even if the court applied an erroneous standard, any error was harmless.” The Attorney General further contends that defendant “fails to establish either counsel’s incompetence or prejudice.”
“ ‘To prevail on a claim of ineffective assistance of counsel, defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] Prejudice occurs only if the record demonstrates ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ (Strickland v. Washington (1984) 466 U.S. 668, 694.) ‘When... the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons.... Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
Defendant was presumptively ineligible for probation because the jury found that the theft in count 1 exceeded $150,000. (§ 1203.045, subd. (a).) Rule 4.413 addresses the situation of those who are presumptively ineligible for probation: “If the defendant comes under a statutory provision prohibiting probation ‘except in unusual cases where the interests of justice would best be served, ’ or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.” (Rule 4.413(b).) “However, ‘mere suitability for probation does not overcome the presumptive bar.... [I]f the statutory limitations on probation are to have any substantial scope and effect, “unusual cases” and “interests of justice” must be narrowly construed’ and rule 4.413 ‘limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.’ ” (People v. Stuart (2007) 156 Cal.App.4th 165, 178, quoting Dorsey, supra, 50 Cal.App.4th at p. 1229.) Moreover, rule 4.413(c) is permissive, not mandatory, and “ ‘[t]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.’ [Citation.]” (Stuart, supra, at p. 178.)
“Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person convicted of a crime of theft of an amount exceeding one hundred thousand dollars ($100,000).” (§ 1203.045, subd. (a).) Although the original information contained an allegation of probation ineligibility under section 1203.045, the amended information did not. However, the amended information alleged and the jury found a taking of over $150,000 under former section 12022.6, subd. (a)(2).
Rule 4.413(c) states: “The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.”
Rule 4.413 contemplates a two-step process. (Dorsey, supra, 50 Cal.App.4th at p. 1229.) If, and only if, the court finds the case to be an “unusual” one using the criteria set forth in rule 4.413(c), does the court then decide whether to grant probation using the criteria set forth in rule 4.414. (Rule 4.413(b); People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) These criteria are not exclusive and the court may apply “additional criteria reasonably related to the decision being made.” (Rule 4.408(a); Dorsey, supra, 50 Cal.App.4th at p. 1227.)
“The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion. [Citations.] The standard is the same for review of an order granting [or denying] probation. ‘Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.’ [Citation.]” (Du, supra, 5 Cal.App.4th at p. 831.) “ ‘Abuse of discretion, ’ in turn, depends on whether the trial court’s order ‘ “exceeds the bounds of reason.” ’ [Citation.] Obviously, a decision which simply ignores statutory requirements constitutes an abuse of discretion.” (Dorsey, supra, 50 Cal.App.4th at p. 1225; People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 697.)
“Our function is to determine whether the [trial] court’s order is arbitrary or capricious, or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ [Citation.] The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.]” (Du, supra, 5 Cal.App.4th at p. 831.) A “ ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
In the case before us, the trial court stated it considered the statements of defendant’s family members and friends, the arguments of the parties, and the probation report in making its sentencing determination. The court stated it understood it first had to determine whether defendant was eligible for probation under the law, and that Dorsey was a controlling case on the issue. The court stated that “the Dorsey case requires under the facts of this particular case that probation be denied.” It stated that it had assessed the criteria affecting the decision to grant probation, as well as circumstances in aggravation and mitigation, and had found the circumstances in aggravation “more predominate... for purposes of the presumption determination.” Therefore, the court declined to grant defendant probation.
In Dorsey, the defendant was presumptively ineligible for probation because he was convicted of embezzling public funds exceeding $100,000. (Dorsey, supra, 50 Cal.App.4th at p. 1225.) The trial court granted the defendant probation, finding in part that the defendant had been a law enforcement officer who retained substantial community respect (id. at p. 1222), and the People sought review of the trial court’s decision. The appellate court found that none of the factors listed in former rule 413(c), now rule 4.413(c), applied to the defendant. (Dorsey, supra, at pp. 1226-1227.) The court held that a trial court should not apply the criteria in former rule 414 (now rule 4.414) unless the presumptive bar in section 1203.045 has been overcome, and that “[a] previous course of good conduct and good standing in the community is not ‘reasonably related’ (see rule 408(a)) to the decision of whether an offense constitutes an ‘unusual case where the interests of justice would be best served’ by granting probation.” (Dorsey, at p. 1229.) Therefore, the court remanded the matter to the trial court for reconsideration of whether the presumption of ineligibility was overcome. (Ibid.)
In this case, when the trial court stated that it considered the criteria affecting the grant of probation as well as circumstances in aggravation and mitigation, it also stated that it was aware of the Dorsey decision and its application to defendant’s case. Therefore, we must presume that the court found that defendant had overcome the presumption against probation (rules 4.413 and 4.408(a)), and that it needed to determine whether to grant defendant probation under the criteria set forth in rules 4.414 and 4.408(a). (Dorsey, supra, 50 Cal.App.4th at p. 1229; see Evid. Code, § 664.) It determined, after consideration of those criteria, that defendant should not be granted probation. On the record before us, we cannot say that the trial court’s decision to deny defendant probation was irrational or arbitrary. (Du, supra, 5 Cal.App.4th at p. 831.) Accordingly, we will not set aside the trial court’s determination.
Nor can we find that defendant was prejudiced by trial counsel’s failure to clarify whether the trial court understood that the criteria in rule 4.414 were not to be applied unless and until the court found that defendant overcame the presumption against probation. (Rule 4.413(b) & (c).) We cannot say that there is a reasonable probability that the result of the proceeding would have been different had counsel asked the court to clarify its reasoning on the record in deciding to deny defendant probation. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Presentence Custody Credits
The court granted defendant 49 actual days plus 24 days of section 4019 conduct credits, for a total of 73 days of presentence custody credits. Defendant contends that he is entitled to additional conduct credits pursuant to section 4019 as amended effective January 25, 2010.
The First, Second, and Third District Courts of Appeal have held that the amendment to section 4019 applies retroactively. (People v. Landon (2010) 183 Cal.App.4th 1096, review granted May 20, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408; People v. Pelayo (2010) 184 Cal.App.4th 481; People v. House (2010) 183 Cal.App.4th 1049, review granted May 20, 2010, S182813; People v. Delgado (2010) 184 Cal.App.4th 271; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) However, we agree with the reasoning of this court, and that of the Fourth and Fifth Districts, which have held that the amendment is not retroactive. (People v. Hopkins (2010) 184 Cal.App.4th 615; People v. Otubuah (2010) 184 Cal.App.4th 422; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) Therefore, we reject defendant’s contention.
DISPOSITION
The judgment is affirmed.
I CONCUR: MIHARA, J.
McAdams, J., Concurring and Dissenting.
I concur in the judgment, as modified, in all respects but one.
I dissent on the issue of additional conduct credits under the 2009 amendments to Penal Code section 4019. I agree with the reasoning of the numerous cases that have held the amendments apply retroactively, including, most recently, People v. Keating (2010) 185 Cal.App.4th 364. In my view, such a conclusion follows from California Supreme Court precedent. As the Court reiterated in People v. Nasalga (1996) 12 Cal.4th 784, “provisions of a statute that have an ameliorative effect must be given retroactive effect, even where other provisions of the same statute clearly do not have such an effect.” (Id., at p. 796, following People v. Estrada (1965) 63 Cal.2d 740.) I would therefore find the amendments to Penal Code section 4019 at issue here apply retroactively.
The California Supreme Court has recently granted review in several cases involving this issue, including those which have found the statute applies retroactively (People v. Brown, S181963; People v. House, S182813; People v. Landon, S182808) and one which has found it applies prospectively only. (People v. Rodriguez, S181808.) Several more petitions for review are pending.