Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC160650A
THE COURT:A jury convicted petitioner Clinton Sweet of petty theft with priors (Pen. Code, § 666 ), and the superior court found true a prior prison term allegation (§ 667.5, subd. (b)). Petitioner was sentenced to three years in state prison, with a total of 320 days of actual and local conduct credits (214 actual days plus 106 conduct credits). (§ 4019.) Petitioner’s appeal from his conviction, which raises issues distinct from those asserted in this writ proceeding, is presently pending in this court in case No. A124582.
Unless otherwise indicated, all further section references will be to the Penal Code.
At petitioner’s request, we have taken judicial notice of the entire record and the briefs contained in this court’s file in the companion appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
On March 15, 2010, petitioner’s appellate counsel filed a petition for writ of habeas corpus herein, asserting that under the recent amendments to section 4019, petitioner is entitled to additional presentence work and conduct custody credits. The petition argues that the amendments to section 4019 should be retroactively applied to petitioner’s sentence, which was imposed prior to the effective date of the amendments (Jan. 25, 2010). Petitioner further asserts an equal protection right to the benefit of the amended statute. Petitioner maintains that applying the amended statute to him would have resulted in his release on parole as early as February 14, 2010, and no later than February 22, 2010. Since those dates have already passed, petitioner’s habeas petition alleges that petitioner’s appellate remedy in case No. A124582 is inadequate.
Before seeking habeas relief in this court, petitioner unsuccessfully pursued a motion to correct his presentence credits in the superior court. (See People v. Fares (1993) 16 Cal.App.4th 954, 958-960.)
In recognition of the urgency of the petition, we promptly requested briefing from the Attorney General and permitted petitioner to file a reply, and advised the parties that the court might deem the petition as alternatively seeking relief by way of writ of mandate or prohibition. We subsequently permitted petitioner the opportunity to file a verified supplemental petition to affirmatively allege that petitioner is not precluded from relying on the amended statutes (see § 4019, subds. (b)(2), (c)(2)), and allowed for the filing of opposition and reply briefs to the supplemental petition. We later advised the parties that we might proceed by issuing a peremptory writ in the first instance, due to the unusual urgency of the petition (see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180 (Palma); Ng v. Superior Court (1992) 4 Cal.4th 29, 35), afforded the parties an opportunity to respond to our Palma notice, and asked the parties whether they would stipulate to immediate issuance of the remittitur (Cal. Rules of Court, rules 8.272(c), 8.490). While petitioner indicated he was amenable to immediate issuance of the remittitur, the Attorney General was not.
Given that the superior court denied petitioner’s motion to correct his presentence credits, we find it appropriate to proceed by way of writ of mandate. (Code Civ. Proc., § 1085, subd. (a).) And because, as discussed below, we find petitioner is entitled to relief, the petition’s unusual urgency renders this case appropriate for issuance of a peremptory writ in the first instance. (Palma, supra, 4 Cal.4th at p. 35.)
We note that at the time the superior court decided petitioner’s motion, Rodriguez was the only published appellate authority discussing the retroactivity of section 4019, and the superior court was therefore bound to follow that opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
A split has emerged among the appellate courts about whether the amendments to section 4019 are retroactive. One court (the Fifth District) has held that the amended statute only applies prospectively. (People v. Rodriguez (2010) 182 Cal.App.4th 535 (Rodriguez).) To date, several other courts (the Third District, Division One of the Second District, and Division Two of the First District) have held that the amended statute applies retroactively. (People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___, 2010 WL 924421; People v. House (Apr. 9, 2010, B212057) ___ Cal.App.4th ___, 2010 WL 1408922; People v. Landon (Apr. 13, 2010, A123779) ___ Cal.App.4th ___, 2010 WL 1444011.) We agree with those courts which have held that the amendments apply retroactively, and respectfully disagree with the contrary conclusion reached in Rodriguez. Petitioner’s supplemental petition, which has not been rebutted or opposed by the Attorney General, demonstrates that petitioner is not excluded from the amendments by virtue of the provisions of subdivisions (b)(2) and (c)(2) of section 4019. Consequently, we hold that petitioner is entitled to a recalculation of his presentence custody credits.
In light of this conclusion, we need not address petitioner’s equal protection argument.
Let a peremptory writ of mandate issue directing the superior court to vacate its March 10, 2010 ruling denying petitioner’s motion to correct petitioner’s presentence credits, and to issue a new and different order granting petitioner’s motion. Immediately thereafter, respondent shall, after providing notice to the parties and considering any pertinent evidence submitted by the parties, recalculate petitioner’s credits under amended section 4019, revise the sentencing order and abstract of judgment accordingly, and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).)
The clerk shall file a copy of this opinion in the related appeal in case No. A124582.