IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANGELA LYNN BROCK, DEFENDANT AND APPELLANT.
Super.Ct.No. FSB705064 APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Affirmed as modified.
The opinion of the court was delivered by: Richli J.
P. v. Brock CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2008, defendant and appellant Angela Lynn Brock pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); in return, the prior prison term (Pen. Code, § 667.5, subd. (b)) allegation was dismissed, and she was placed on probation for a period of three years on various terms and conditions. Failing to remain sober and appear at review hearings, defendant's probation was eventually revoked. In May 2010, after defendant admitted to violating her probation, her probation was terminated and she was sentenced to two years in state prison with credit of 462 days for time served. Defendant's sole contention on appeal is that she is entitled to additional presentence conduct credits pursuant to amended Penal Code section 4019*fn1 that became effective on January 25, 2010. We conclude that the trial court erred in applying a two-tiered division of the presentence custody credits.
Defendant was sentenced to two years in state prison on May 11, 2010, following her admission of violating probation. On May 28, 2010, the court held a hearing to determine defendant's presentence conduct credits. Apparently relying on calculations recommended by the probation department, the trial court awarded defendant 224 days of actual credit, plus 116 days of conduct credit under former section 4019, plus 29 days of conduct credit pursuant to amended section 4019, and an additional 93 days of actual credit when defendant was at "Salvation Army/Bell,"*fn3 for a total of 462 days.
Defendant contends she is entitled to the enhanced presentence custody credits provided by the amended version of section 4019, because the 2010 amendment is retroactive. She also impliedly argues that she is entitled to conduct credit under amended section 4019 for her time spent at the residential drug treatment program.
When the crime was committed, as well as when defendant was granted probation, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, amended by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
This issue of retroactive application of the current version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As it will have the last word on the subject, we discuss the issue only summarily.*fn4
Under section 3, "'[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.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b), (c), amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 41, p. 4422.) Implicitly but necessarily, all other enhanced credits for all other defendants are prospective only.
In any event, the issue here is not whether amended section 4019 should be applied retroactively or prospectively, but whether amended section 4019 applies to all presentence custody, even those that occurred prior to January 25, when a defendant is sentenced after the effective date of the amendment.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody 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 (id., subd. (c)). "'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.) As previously noted, under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase 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. (Ibid.) The amendments to section 4019 went into effect on January 25, 2010.
The California Supreme Court has stated: "'[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d) . . . .)" (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) "The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as "conduct credit[s]." (People v. Dieck, supra, 46 Cal.4th at p. 939, fn.3.)
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b) . . . .)" (Buckhalter, supra, 26 Cal.4th at p. 30.) The previous version of section 4019 granted fewer presentence custody credits.*fn5 The 2010 modified version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, "including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment" (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions "following arrest and prior to the imposition of sentence for a felony conviction" (id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265). If those persons are not required to register as sex offenders and are not being committed to prison for, or have 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), a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
Here, defendant's criminal act and some of her probation violations occurred before the amendment to section 4019 became effective, but her sentencing did not occur until after the amendment to section 4019 became effective. Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant's presentence credits based on the different versions of section 4019 in effect at different times during defendant's presentence custody. This was an error because section 4019 contains no provision for such a two-tiered division of the presentence custody credits. Moreover, the previous version of section 4019 was no longer valid at the time of defendant's sentencing, and therefore the trial court was unauthorized to apply the previous statute to defendant's sentence.
Accordingly, defendant is entitled to a total of 224 days of presentence conduct credits for her time spent in actual custody in county jail or penal institution. She is not entitled to presentence conduct credits, however, for her time spent at Bell Salvation Army, a residential drug treatment program. In People v. Palazuelos (1986) 180 Cal.App.3d 962, the appellate court pointed out that persons who had been confined in drug treatment facilities as a condition of probation and were later sentenced to prison after revocation of probation were not covered by the provisions of section 4019. (Palazuelos, at pp. 964, 965-966; see also, People v. Darnell (1990) 224 Cal.App.3d 806, 811 [confinement in alcohol rehabilitation program as condition of own-recognizance release]; People v. Ambrose (1992) 7 Cal.App.4th 1917, 1924-1925 [confinement in residential alcoholic treatment center]; People v. Broad (1985) 165 Cal.App.3d 882, 884 [confinement in residential drug treatment facility]; People v. Waterman (1986) 42 Cal.3d 565, 571, fn. 4, [confinement in state mental hospital for treatment of incompetency to stand trial].) In People v. Saffell (1979) 25 Cal.3d 223, our Supreme Court explained that the purposes of conduct credits are to encourage prisoners to conform to prison regulations; refrain from criminal activity, especially assaultive behavior; and make an effort to participate in "rehabilitative" activities while incarcerated. (Id. at p. 233.) The court held that these goals were appropriate to the prison setting but not to hospital treatment modalities and thus refused to award such credits to person committed to state mental hospitals as mentally disordered sex offenders. (Id. at p. 235.)
The judgment is modified to award defendant an additional 79 days of presentence conduct credits, for a total of 541 days of presentence credit. The trial court is directed to amend the minute order of May 28, 2010, and the abstract of judgment to reflect 541 days of presentence credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS