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The People v. andrew Dean Hood

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 27, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDREW DEAN HOOD, DEFENDANT AND APPELLANT.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed as modified with directions. (Super. Ct. No. 05NF0620)

The opinion of the court was delivered by: Aronson, J.

P. v. Hood CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant Andrew Dean Hood pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). He contends he is entitled to additional custody credits based on recent amendments to Penal Code section 4019. For the reasons expressed below, we modify the judgment to award the additional credits.

I FACTUAL AND PROCEDURAL BACKGROUND

In September 2005, defendant pleaded guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378), and admitted several prior convictions (Health & Saf. Code, § 11370.2; Pen. Code, § 667.5, subd. (b).) The court imposed a six-year prison term, but suspended execution of the sentence and granted defendant probation for five years on various terms and conditions, including attendance at a two-year drug rehabilitation program.

In March 2008, defendant violated probation. The court imposed the previously suspended sentence, but recalled the sentence (Pen. Code, § 1170, subd. (d)) in November 2008. The court reinstated defendant to probation on condition he attend outpatient drug treatment. Defendant agreed to waive accrued custody credits, and the court informed him if he violated probation he would return to prison with no credits.

In April 2009, defendant violated probation again. In October 2009, the court lifted the suspension and imposed the six-year prison sentence. The court credited defendant for 180 days spent in custody since the April probation violation, and awarded him conduct credits of 90 days. In March 2010, while the case was pending on appeal, the trial court denied defendant's motion for additional conduct credits based on amended Penal Code section 4019, which took effect January 25, 2010.

II DISCUSSION

Presentence Conduct Credit

The trial court awarded defendant credits for 180 days of actual custody (Pen. Code, § 2900.5) and 90 days of work-conduct credit, calculated at the rate of two days for every four days in custody, per Penal Code section 4019. The Legislature amended Penal Code section 4019 effective January 25, 2010, to allow offenders convicted of nonserious and nonviolent crimes to earn presentence conduct credit at the rate of two days for every two days in custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant contends he is entitled to retroactive application of the new law and therefore should receive additional conduct credits. We agree.

Generally, legislative amendments are presumed to operate prospectively, unless there is an express declaration to the contrary. Because the amendment to Penal Code section 4019 does not state whether retroactive application is permitted, the Attorney General argues we must follow the general rule of prospective application. But in In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court concluded that when the Legislature amends a statute to mitigate punishment, "the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) The court explained, "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.)

Courts have traditionally deemed legislative enactments that increase the amount of credits a defendant may accrue as statutes that mitigate punishment for purposes of the Estrada rule. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) Following this tradition, the majority of courts that have considered the issue have determined the recent amendment to Penal Code section 4019 falls within the Estrada rule because section 4019 effectively reduces the amount of time eligible defendants will have to spend in prison.

Although the Supreme Court has granted review of the issue and will have the final say on the matter (see People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808), we agree with the emerging majority view and conclude the amendment to Penal Code section 4019 should be applied retroactively to cases pending on appeal. Pursuant to the amendment, we will modify the judgment accordingly. (Pen. Code, § 1260.)

III DISPOSITION

The judgment is modified (Pen. Code, § 1260) to reflect defendant is awarded 180 days of presentence conduct credit. The trial court is directed to prepare an amended abstract of judgment, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

WE CONCUR: BEDSWORTH, ACTING P. J. O'LEARY, J.

20101227

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