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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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, ...