APPEAL from a judgment of the Superior Court of Stanislaus County. William Hurl Johnson III, Judge. (Stanislaus Super. Ct. Nos. 1226035, 1242767).
The opinion of the court was delivered by: Ardaiz, P.J.
CERTIFIED FOR PARTIAL PUBLICATION *fn1
On June 13, 2007, in Stanislaus County case No. 1226035 (case No. 1226035), appellant Jose Luis Rodriguez pled no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),*fn2 receiving stolen property (§ 496, subd. (a)) and possession of a forged item (§ 475, subd. (a)). That same day, the court imposed a prison term of three years eight months, suspended execution of sentence and placed appellant on three years' probation.
On February 20, 2009, in Stanislaus County case No. 1242767 (case No. 1242767), appellant pled no contest to receiving stolen property and admitted violating probation in case No. 1226035.
That same day, in a sentencing proceeding covering both cases, the court imposed a prison term of three years eight months, consisting of the previously suspended sentence in case No. 1226035, and a concurrent two-year term in case No. 1242767. The court also awarded appellant presentence credit as follows: in case No. 1226035, 338 days, consisting of 226 days of actual time credit and 112 days of conduct credit, and in case No. 1242767, 42 days, consisting of 28 days actual time credit and 14 days conduct credit.
Initially, appellant filed a Wende brief, i.e., an opening brief in which he raised no issues and asked that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Thereafter, appellant requested this court strike his Wende brief; this court granted that request; and appellant filed an opening brief in which he argues: (1) he is entitled to additional presentence credit under an amendment to section 4019 which, although it went into effect after he was sentenced, must be applied retroactively; (2) if it is determined the amendment operates prospectively-only, the failure to calculate appellant's presentence credit under the new law violates his constitutional right to the equal protection of the laws; and (3) the abstract of judgment must be amended to reflect the correct amount of presentence credit to which appellant is entitled. We will reject appellant's first two arguments, but conclude, as appellant acknowledges, that he is entitled to 337 days of presentence credit in case No. 1226035, not 338 days as found by the court, and no credit in case No. 1242767.*fn3 We will modify the judgment accordingly; direct the trial court to prepare an amended abstract of judgment; and otherwise affirm.
I. Statutory Construction
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced in February of last year, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has 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), may accrue conduct credit at the rate of four days for every four days of presentence custody. The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only.
Appellant contends the 2010 amendment to section 4019 is retroactive, i.e., it applies to persons who were sentenced before the amendment's effective date but whose cases are not final as of that date. Therefore, appellant argues, because (1) he is not required to register as a sex offender and he has not been convicted of a serious or violent felony and therefore meets the eligibility requirements for section 4019 credits; (2) he was sentenced before the effective date of the amendment; and (3) his case did not become final prior to that date, the more generous conduct credit-accrual provisions of the current version of section 4019 apply to him and he is entitled to additional conduct credit. We disagree.
As the parties agree, "The problem ... is one of trying to ascertain the legislative intent--did the Legislature intend the old or new statute to apply?" (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).) And here, where "the Legislature [has not] expressly stated which statute should apply," ...