Monterey County Super. Ct. No. SS080904
The opinion of the court was delivered by: Mihara, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Kenneth Murray pleaded guilty to forgery (Pen. Code, § 470, subd. (d))*fn1 and passing an insufficient funds check (§ 476a, subd. (a)), and was placed on probation. Following revocation of his probation, the trial court ordered execution of the previously suspended prison sentence of three years and eight months. Defendant's appointed appellate counsel originally filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that raised no issues. We requested and received supplemental briefing from the parties addressing whether defendant was entitled to additional credits pursuant to the amendments to section 4019.*fn2 We conclude that defendant is not entitled to additional credits and affirm.
I. Statement of the Case*fn3
Pursuant to a plea agreement, defendant pleaded guilty to one count of forgery and one count of passing an insufficient funds check in July 2008. A month later, the trial court sentenced defendant to three years and eight months in prison, suspended execution of sentence, placed defendant on probation, and ordered him to serve 365 days in jail, most of which was served on home confinement. In September 2009, defendant's probation was revoked for repeatedly failing to report to the supervised home confinement officer as required. The trial court sentenced defendant to prison for three years and eight months. Defendant received credit for 325 days based on 53 days served in jail, 26 days of conduct credit, and the remainder having been served in supervised home confinement.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody, including days served as a condition of probation, 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 (§ 4019, subd. (c).*fn4 " '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, Senate Bill No. 18 was enacted. Among other things, amended section 4019 increased 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. (§ 4019, subds. (b)(1), (c)(1).)
Here, the trial court awarded presentence credits under former section 4019. Since defendant has no current or prior convictions for serious or violent felonies and he is not required to register as a sex offender, he contends that he is entitled to additional conduct credits pursuant to amended section 4019.*fn5
Section 3 states that no part of the Penal Code is "retroactive, unless expressly so declared." The California Supreme Court has interpreted section 3 "to mean '[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' " (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford).) "[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
In the present case, the Legislature did not expressly state which version of section 4019 should apply to cases not yet final as of its effective date. Thus, we must determine whether the Legislature's intent is "very clear from extrinsic sources." (Evangelatos, supra, 44 Cal.3d at p. 1209.)
Defendant relies on an exception to the general rule of prospective application. "[A]bsent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. [Citations.]" (People v. Babylon (1985) 39 Cal.3d 719, 725.) This rule was first articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In that case, the California Supreme Court reasoned that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.)
At issue then is whether a statute that increases presentence credits lessens punishment. People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) addressed this issue in connection with custody credits. In 1976, the Legislature amended section 2900.5 to provide that a defendant was entitled to custody credits against a county jail sentence imposed as a condition of probation. (Hunter, at p. 392.) Applying Estrada, Hunter held that the amendment to section 2900.5 ...