(Monterey County Super. Ct. No. SS081897). Trial Court: Monterey County Superior Court.
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
In appeal No. H033413, defendant Jason Hopkins argues that the trial court erred in failing to award him additional presentence custody credits, following his plea of no contest to a charge of possession of paraphernalia intended to be used for injecting a controlled substance while incarcerated. (Pen. Code, § 4573.6.)*fn1
In appeal No. H034048, Hopkins appeals the trial court order denying his motion for additional presentence custody credits, the same credits which are at issue in appeal No. H033413. By order dated April 24, 2009, we directed that the two appeals be consolidated for purposes of briefing, argument and decision.
In both appeals, Hopkins contends that he is entitled to additional presentence credits because he was held in prison past his parole date solely on the basis of the new charges brought against him. He also contends that the denial of credits violates his constitutional equal protection rights.
By supplemental opening brief, Hopkins further argues that he is entitled to additional presentence conduct credit due to the amendment of section 4019, which went into effect after he was sentenced. Pursuant to this amendment, defendants are now entitled to day-for-day conduct credit, rather than one day for every two days served. Hopkins contends that, although the amendment does not expressly provide that it is retroactive, it should apply to all defendants, including himself, whose cases were not final as of its effective date, January 25, 2010.
We agree that Hopkins is entitled to additional presentence credits due to his being held in prison past his parole date*fn2 and will reverse the order denying his motion for presentence credits and direct that the judgment be modified to award those additional credits. We do not agree that the amendment to section 4019 is retroactive, however. As so modified, we will affirm the judgment.
I. FACTUAL*fn3 AND PROCEDURAL BACKGROUND
On January 26, 2008, Correctional Officer L. Amaya was conducting a security check of a dorm at Correctional Training Facility when he noticed Hopkins and another inmate huddled together between two lockers. Amaya saw that the other inmate was holding a plastic spoon which contained a brown liquid. Amaya ordered the inmate to put the spoon on the bed and proceeded to search both inmates. Before he was searched, Hopkins admitted that he had a syringe in his waistband. Amaya seized the syringe and the spoon, which was found to contain 0.27 grams of heroin. A rules violation report (CDC 115) was prepared on February 6, 2008, charging Hopkins with possession of a controlled substance (heroin) while incarcerated, a level "B" offense, punishable by a loss of between 121 and 150 days of custody credit.
The case was referred to the Monterey County District Attorney's office, which filed a criminal complaint on July 10, 2008, alleging one count of possession of a controlled substance (heroin) in prison. (§ 4573.6.) On August 27, 2008, the complaint was amended to allege one count of possession of drug paraphernalia, rather than possession of heroin. (Ibid.) Hopkins agreed to plead no contest to the amended complaint, in exchange for a sentence of two years in prison, consecutive to any other term. The matter was referred to the probation department for a calculation of credits.
At the September 17, 2008 sentencing hearing, Hopkins was sentenced to two years in prison, consecutive to any other term. The probation officer's report noted that Hopkins was only entitled to custody credits from the date of his parole from the California Department of Corrections and Rehabilitation (CDCR) to the Monterey County Jail, i.e., July 26, 2008. Until that date, Hopkins was a sentenced prisoner and could not earn custody credits against the charged offense. Although Hopkins's counsel argued that he was entitled to additional credits, citing People v. Bruner (1995) 9 Cal.4th 1178 (Bruner), the sentencing court adopted the probation department's recommendation, awarding Hopkins 80 days of credits, consisting of 54 days of custody credit from July 26, 2008, plus 26 days of good time/work time credits.
On October 2, 2008, Hopkins appealed the judgment (H033413), on the grounds that he was "denied presentence credits to which he was entitled."
On February 25, 2009, Hopkins filed a motion in the trial court for additional presentence credits. The motion sought 75 additional days of custody credits under section 2900.5 based on Hopkins's contention that he was scheduled to have been paroled on May 12, 2008 and that his continued custody until July 26, 2008, was solely due to the charged offense of possession of drugs and/or paraphernalia in prison. In support of his motion, Hopkins submitted certified copies of documents from his CDCR central file, including his CDCR chronological history form and documents pertaining to the CDC 115. In these documents, there are several references to an EPRD*fn4 of May 12, 2008.
The district attorney filed the following three-sentence response to Hopkins's motion: "The People object to the defendant's motion for additional pre-sentence credits. The credits were correctly determined by the court at sentencing on September 17, 2008. Pursuant to In re Rojas (1979) 23 Cal.3d 152, the defendant is not entitled to any custody credits prior to his release on parole."
Hopkins's motion was heard and denied on March 18, 2009. Hopkins timely appealed (H034048).
A. Additional Custody Credits Due to ...