(Napa County Super. Ct. No. CR141335)
The opinion of the court was delivered by: McGuiness, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Richard Michael Uoo (appellant) appeals from a judgment entered after he pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). He contends he should have been awarded additional conduct credits under the recently amended Penal Code section 4019, which increased presentence conduct credits for certain qualified prisoners. We agree and therefore remand the matter to the trial court with instructions to recalculate appellant's custody credits.
FACTUAL AND PROCEDURAL BACKGROUND
A criminal complaint was filed July 14, 2008, charging appellant with possession of methamphetamine for sale (Health & Saf. Code, § 11378, count 1) after police executed a warrant and searched his residence and found methamphetamine and indicia of sales. Appellant pleaded no contest, and the trial court suspended imposition of sentence and placed him on three years of probation. The court ordered appellant to serve 300 days in jail and pay various fines as conditions of probation and also provided the probation department with the discretion to release him to a residential treatment program after he had served 120 of the 300 days. On March 9, 2009, the court granted the probation department's request to have appellant released into the Community Corrections Service Center (CCSC) treatment program.
On February 10, 2010, the probation department filed a petition to revoke appellant's probation on the grounds he failed to report to the probation officer as directed, was unsuccessfully discharged from the CCSC treatment program, and tested positive for marijuana on three occasions. Appellant admitted the allegations with the understanding that he would receive a prison sentence of 16 months.
In the presentence report, the probation department recommended, among other things, that appellant receive a state prison sentence and 297 days of presentence credits, consisting of 199 days actually served (Pen. Code, § 2900.5*fn1 ) and 98 conduct credits (former § 4019). At the sentencing hearing held April 22, 2010, the court imposed the agreed upon state prison sentence of 16 months. The court awarded 297 days of presentence credits and denied appellant's request that he be awarded additional conduct credits under the amended provisions of section 4019 that had taken effect on January 25, 2010. Appellant filed a timely notice of appeal on April 29, 2010.
On July 12, 2010, appellate counsel sent a letter to the trial court asking it to correct a clerical error in the abstract of judgment*fn2 and to award appellant an additional two days of presentence conduct credits for time he spent in custody on February 15 and 16, 2010, after the amendments to section 4019 became effective. Counsel stated the application of section 4019, as amended, to those two days spent in custody "would not involve the retroactive application of the new law," and that appellant "will renew that request [for retroactive application to the remaining days spent in custody] as part of [his] appeal rather than do so before [the trial court]." On July 20, 2010, the trial court granted the requests and filed an amended abstract of judgment awarding appellant 299 days of presentence credits, consisting of 199 days actually served (§ 2900.5) and 100 conduct credits (former § 4019 and § 4019, as amended).
Former section 4019 provided that a prisoner who had "satisfactorily complied with the reasonable rules and regulations" and had not "refused to satisfactorily perform labor as assigned" was entitled to two days of conduct credit for every four days spent in custody. (Former § 4019, subds. (c), (d) & (f) [prisoners are deemed to have served six days for every four days in custody].) In October 2009, the Legislature amended the section, effective January 25, 2010, to increase the rate at which qualified prisoners accrue presentence conduct credit. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Under section 4019, as amended, a prisoner who is not required to register as a sex offender (§ 290 et seq.), is not being committed to prison for a serious felony (§ 1192.7), and does not have a prior conviction for a serious felony (§ 1192.7) or a violent felony (§ 667.5) is entitled to two days of conduct credit for every two days spent in custody. (§ 4019, subd. (f) [qualified prisoners are deemed to have served four days for every two days in custody].) Appellant contends the amendment should have been applied to all time he spent in custody, including the days he spent in custody before the amendments to section 4019 took effect.
A split has arisen in the appellate districts regarding whether the amendments to section 4019 are retroactive, i.e., whether they are available to prisoners who had already been sentenced at the time the amendments went into effect, but whose convictions were not yet final on appeal, and our Supreme Court has granted review in several cases involving this issue, including a case from our Court, People v. Norton (2010) 184 Cal.App.4th 408 (Norton), review granted August 11, 2010, S183260.*fn3 In Norton, the "primary question before us . . . [was] whether the general presumption of prospectivity or the rule in Estrada[*fn4 ] controls our construction of section 4019, as amended." (Id. at p. 416.) After reviewing Estrada and its progeny, we stated that "if section 4019, as amended, constitutes an 'amendatory statute' that 'mitigates punishment' within the meaning of Estrada, it will be given retroactive effect unless the Legislature has 'clearly signal[ed] its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent.' [Citation.]" (Norton, supra, 184 Cal.App.4th at p. 417.) We concluded that because section 4019, as amended, mitigates punishment by reducing the sentence of qualified prisoners, "Estrada controls. Under Estrada, we deem the Legislature to have found the sentences reduced by the additional conduct credit 'sufficient to meet the legitimate ends of the criminal law' for qualified prisoners. [Citation.] The same 'inevitable inference' follows: the Legislature intended ...