Super. Ct. No. SCD219414 APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge.
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
On April 13, 2009, pursuant to a negotiated plea agreement with the San Diego District Attorney's Office, Phillip C. Nychay pleaded guilty to unlawfully possessing a usable amount of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). He also admitted serving two of three prior prison terms alleged pursuant to Penal Code*fn2 section 667.5, subdivision (b). In return, the district attorney agreed to dismiss the balance of the complaint and to stipulate to a four-year prison sentence. It was further agreed that the four-year prison sentence would run concurrent to any parole violations.
Immediately upon accepting the plea agreement, the court sentenced Nychay to the low term of two years in prison for possession of a controlled substance and two consecutive one-year terms for the prior prison terms. In addition, Nychay was ordered to pay $800 in state restitution fines. Nychay received presentence custody credit of 50 days. A timely notice of appeal was filed.
Nychay argued on appeal that the trial court erred when it found it lacked discretion in setting restitution. The Attorney General agreed with Nychay. We agreed as well.
Indeed, on December 3, 2009, this court remanded Nychay's case for a new restitution hearing at which the trial court could exercise its discretion pursuant to section 1202.4, subdivisions (b) and (d). In all other respects, we affirmed the judgment. (Unpublished opinion D055289.)
On remand the trial court struck the previously imposed $800 fine and ordered the fine set at $200. At the hearing, Nychay also requested the court recalculate his section 4019 custody credits. The court denied his request.
As Nychay points out, on April 13, 2009, the day he was initially sentenced in superior court case No. SCD219414,*fn3 section 4019 provided that defendants were to accrue conduct credit at the rate of two days for every four days of actual presentence credit. As Nychay notes, under this formula he accrued 34 days' credit for actual time served and 16 days of conduct credit for a total of 50 days credit. On January 29, 2010, the date his case was heard on remand from this court and restitution was reset at $200, section 4019 provided that custody credits were to be increased to four days for every four days served.
Nychay argues he is retroactively entitled to section 4019 credits based on the formula existing under that statute on January 29, 2010, the day his restitution was reset, rather than the credits available on the day he was originally sentenced. However, we need not reach that issue because our remand in D055289 did not result in any need to recalculate Nychay's credits.
Section 2900.1 provides: "Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence ...