Opinion
E052393 Super.Ct.No. FBA800129
08-08-2011
THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA ANN WILLIAMS, Defendant and Appellant.
Victoria Matthews, 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, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed as modified.
Victoria Matthews, 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, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
In April 2008, defendant and appellant Cynthia Ann Williams pled guilty to assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)); in return, the remaining allegations were dismissed, and she was placed on probation for a period of three years on various terms and conditions, including serving 365 days in local custody.
Failing to abide by her probation conditions and terms, defendant's probation was eventually revoked in September 2010. In November 2010, after defendant admitted to violating her probation by failing to report to her probation officer as directed, her probation was terminated, and she was sentenced to three years in state prison with credit of 555 days for time served.
Defendant's sole contention on appeal is whether the trial court erred in not applying the formula provided for in the amended version of Penal Code section 4019 in effect at the time of her sentencing hearing. We conclude that the trial court erred in applying a two-tiered division of the presentence custody credits.
All future statutory references are to the Penal Code unless otherwise stated.
I
DISCUSSION
The details of defendant's criminal conduct are not relevant to the limited issue she raises in this appeal, and we will not recount them here.
Defendant was sentenced to three years in state prison on November 29, 2010, following her admission of violating probation. Applying a "hybrid" calculation as recommended by the probation department, the trial court awarded defendant 271 days of actual credit, plus 134 days of conduct credit under former section 4019, plus 75 days of actual credit and 75 days of conduct credit pursuant to amended section 4019, for a total of 555 days.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). "'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.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. (Former § 4019, subds. (b), (c).) However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants are now eligible to earn two days of conduct credits for every two days of actual custody. (Ibid.)The amendments to section 4019 went into effect on January 25, 2010.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its wording prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the prior amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to 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.
The issue of retroactive application of the current version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
Defendant argues that because she was sentenced on November 29, 2010, after the effective date of the amendments to section 4019, she must be awarded an additional 137 days of conduct credits.
The California Supreme Court has stated, "'[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. (§ 2900.5, subd. (d) . . . .)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) "The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as "conduct credit[s]." (People v. Dieck, supra, 46 Cal.4th at p. 939, fn.3.)
"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. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b) ____)" (Buckhalter, supra, 26 Cal.4th at p. 30.) The previous version of section 4019 granted fewer presentence custody credits. The 2010 modified version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, "including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment" (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions "following arrest and prior to the imposition of sentence for a felony conviction" (id., subd. (a)(4); accord People v. Johnson (2004) 32 Cal.4th 260, 265). If those persons are not required to register as sex offenders and are not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
Here, defendant's criminal acts were committed before the amendment to section 4019 became effective, but neither her probation violation nor her sentencing occurred until after the amendment to section 4019 became effective. At the time of her sentencing on November 29, 2010, the trial court was required to calculate the exact number of days defendant had been in custody prior to sentencing, add applicable conduct credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subds. (a), (d); Buckhalter, supra, 26 Cal.4th at p. 30.) At the time of defendant's sentencing, there was only one version of section 4019 in existence (i.e., the amended version of § 4019 effective January 25). Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant's presentence credits based on the different versions of section 4019 in effect at different times during defendant's presentence custody. This was error, because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, the previous version of section 4019 was no longer valid at the time of defendant's sentencing, and therefore the trial court was unauthorized to apply the previous statute to defendant's sentence.
We note the California Supreme Court recently granted a petition for review in a case employing reasoning similar to ours. (See People v. Zarate (2011) 192 Cal.App.4th 939, 944 [review granted May 18, 2011, S191676].)
II
?
DISPOSITION
The judgment is modified to award defendant an additional 137 days of presentence conduct credits, for a total of 692 days of presentence credit. The trial court is directed to amend the minute order of November 29, 2010, and the abstract of judgment to reflect 692 days of presentence credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
KING_
J.