Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR184456, VCR202862.
NEEDHAM, J.
Steven Boyd Gaines appeals from sentencing orders imposed after revocation of his probation in two cases. He contends he is entitled to additional presentence conduct credits under an amendment to Penal Code section 4019. He further contends that fines imposed under Penal Code sections 1202.4, 1202.44, and 1202.45 must be reduced. We will order the trial court to amend its sentencing orders and abstract of judgment as set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
In June 2006, Gaines entered a plea of no contest to evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and vehicle theft (Veh. Code, § 10851, subd. (a)) in case number VCR184456. In July 2006, the court placed Gaines on three years probation, with conditions including a year in county jail, less 62 days presentence credit. The court imposed a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), but did not explicitly impose the probation revocation fine mandated by Penal Code section 1202.44.
Except where otherwise indicated, all statutory references are to the Penal Code.
In January 2009, after being arrested on suspicion of taking or driving a stolen vehicle, Gaines admitted that he violated his probation. The court extended his probation in case number VCR184456 for an additional year, imposed a jail term of 120 days (with 92 days of credit for time served), and ordered that all prior terms and conditions of probation remain in full force and effect.
On May 28, 2009, Gaines entered a plea of no contest to the charge of vehicle theft with a prior vehicle theft conviction (§ 666.5) in a new proceeding, case number VCR202862. Based on that offense, Gaines also admitted a violation of his probation in case number VCR184456.
Gaines was sentenced in both cases on May 28, 2009. In case number VCR184456, the court reinstated and modified the previous term of probation by extending it for three years. The court ordered, “All prior orders remain in full force and effect, except as herein modified,” indicating that the $200 restitution fine (previously imposed under § 1202.4, subd. (b)) remained in effect. As to case number VCR202862, the court suspended imposition of sentence and placed Gaines on probation for three years, on the condition that he serve a year in county jail, with 62 days credit. The court ordered a $200 restitution fine (§ 1202.4) and a $200 probation revocation fine, stayed pending successful completion of probation (§ 1202.44).
The court did not specifically state whether it was imposing a new and separate restitution fine (and probation revocation fine) in case number VCR202862, or was intending that the $200 restitution fine previously imposed in case number VCR184456 would also cover case number VCR202862. Because $200 is the minimum mandatory amount to be imposed under section 1202.4, subdivision (b), we conclude that the court was imposing a new $200 restitution fine and matching probation revocation fine in VCR202862, so that Gaines faced identical restitution fines in both cases.
In February 2010, Gaines admitted violating his probation in both case number VCR184456 and case number VCR202862, by failing to “abstain from illegal drugs.” The court revoked probation and continued Gaines’ custody pending further proceedings.
On March 26, 2010, the court terminated probation in both cases, based on Gaines’ poor performance on probation. In case number VCR202862, the court sentenced Gaines to the middle term of three years in state prison for violation of section 666.5. In case number VCR184456, the court sentenced Gaines to a two-year middle term on his conviction for evading a peace officer (Veh. Code, § 2800.2, subd. (a)) and a concurrent two-year middle term on his conviction for vehicle theft (Veh. Code, § 10851, subd. (a)); the sentence in case number VCR184456 was to run concurrently with the three-year term imposed for Gaines’ conviction in VCR202862. In each case, the court left the amount of presentence custody and conduct credits to be determined. The court also imposed a $600 restitution fine (§ 1202.4, subd. (b)) and a suspended $600 parole revocation fine (§ 1202.45), over defense counsel’s objection that the prior fines had been $200.
Unlike the orders in May 2009, in which separate fines were imposed for the new second case, the March 2010 orders apparently imposed fines that covered both cases. The minute order in VCR202862 indicates a $600 restitution fine (§ 1202.4, subd. (b)) and $600 parole revocation fine, suspended unless parole is revoked (§ 1202.45). The minute order in VCR184456 also indicates a $600 restitution fine and a suspended $600 parole revocation fine. On both minute orders, however, the box next to the text “on each case” is not checked, suggesting that the $600 fines were to cover both cases. Indeed, at the sentencing hearing, the court clerk and the judge had the following exchange: “THE CLERK: Is the fine in both cases? [¶] THE COURT: The fine covers everything.”
On April 5, 2010, in both cases, Gaines filed points and authorities arguing that recently amended section 4019, concerning presentence conduct credits, was retroactive and applicable to him. The People filed an opposition to Gaines’ points and authorities. After a hearing, the trial court rejected Gaines’ argument.
On April 9, 2010, the court determined Gaines’ conduct credit (as of April 8, 2010) to be 150 days in case number VCR202862 and 308 days in case number VCR184456. These numbers were calculated as follows: In case number VCR184456, Gaines received 510 days of actual custody credits (§ 2900.5) and 254 days of conduct credits (former § 4019) for time spent in county jail prior to January 25, 2010, plus 54 days of actual custody credits (§ 2900.5) and 54 days of conduct credits (§ 4019) for time spent in custody since January 25, 2010. In case number VCR202862, the court awarded 192 days of actual custody credits (§ 2900.5) and 96 days of conduct credits (former § 4019) for time spent in county jail prior to January 25, 2010, plus 54 days of actual custody credits (§ 2900.5) and 54 days of conduct credits (§ 4019) for time spent in custody since January 25, 2010.
This appeal followed.
II. DISCUSSION
Gaines contends the court erred in regard to the calculation of his presentence conduct credits under section 4019 and the imposition of fines.
A. Calculation of Credits Under Penal Code Section 4019
Former section 4019 provided in relevant part that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, italics added.) By amendment effective January 25, 2010, the current version of the statute provides in relevant part that “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.” (§ 4019, subd. (f), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010, italics added.)
Gaines contends the current version of section 4019, subdivision (f) applies, because he was not sentenced until March 26, 2010, over two months after the amendment to section 4019 became effective. Respondent has not addressed this contention, although Gaines’ opening brief recognizes, as did the trial court, that some of Gaines’ presentence credits were earned before the effective date of the amendment. We need not resolve this issue, because in our view section 4019 would retroactively apply to Gaines’ credits anyway.
In People v. Pelayo (2010) 184 Cal.App.4th 481 (review granted July 21, 2010, S183552), we concluded that the amended presentence conduct credit provisions of section 4019 were retroactive as to all sentences not yet final on direct appeal at the time the amendments went into effect. The California Supreme Court has granted review of the issue, both in cases that reached the same conclusion as we did, and in cases that reached the opposite conclusion. (E.g., People v. Brown, review granted June 9, 2010, S181963; People v. Rodriguez, review granted June 9, 2010, S181808.) Pending our Supreme Court’s resolution of the issue, we continue to be of the view that the amendment to section 4019 applies retroactively. We therefore incorporate and adopt our reasoning in Pelayo.
Accordingly, Gaines’ conduct credits should have been calculated based on current section 4019, rather than former section 4019. Specifically, Gaines should have been awarded 564 days of presentence conduct credits in case number VCR184456 and 246 days of presentence conduct credits in case number VCR202862.
We will order that the trial court’s sentencing orders of April 9, 2010, and the abstract of judgment be amended to reflect the proper number of presentence conduct credits in each case.
B. Restitution Fines
In its order of March 26, 2010, the court sentenced Gaines to state prison in case numbers VCR184456 and VCR202862, after Gaines had admitted violating his probation in both cases. The court imposed a $600 restitution fine (§ 1202.4, subd. (b)) and a suspended $600 parole revocation fine (§ 1202.45), covering both cases. Gaines contends these fines were unauthorized and must be reduced to $200, because the court had previously imposed a $200 restitution fine. Respondent essentially agrees, but points out that the probation revocation fee is no longer suspended (since Gaines violated his probation) and there exists a new parole revocation fee. We reach a similar but different conclusion.
There are three distinct fines at play here. Section 1202.4, subdivision (b)(1) provides for a restitution fine of between $200 and $10,000 if a person is convicted of a felony. (§ 1202.4, subd. (b)(1).) When a person is placed on probation, section 1202.44 provides for a probation revocation restitution fine in the same amount as the restitution fine imposed under section 1202.4, subdivision (b). The probation revocation fine is suspended pending successful completion of probation. When a person is committed to state prison and his sentence includes a period of parole, section 1202.45 provides for a parole revocation restitution fine in the same amount as the restitution fine imposed under section 1202.4, subdivision (b). The parole revocation fine is suspended unless the person’s parole is revoked.
In our reading of the record, on May 28, 2009, when the court reinstated probation in VCR184456 and granted probation in VCR202862, the court reinstated the $200 restitution fee (§ 1202.4, subd. (b)) in VCR184456 and added a $200 restitution fee in VCR202862. Gaines did not object at the time and does not contend that this additional restitution fee, based on a new conviction in a new case, would be improper. Nor could it be. While it is true that a second fine for convictions in the same case cannot be imposed when a defendant’s probation is revoked and he is sentenced to prison (People v. Chambers (1998) 65 Cal.App.4th 819, 823), the court must impose a new and additional restitution fine for a conviction in a new case. (§ 1202.4, subd. (b) [“In everycase where a person is convicted of a crime, the court shall impose a separate and additional restitution fine”] (italics added); People v. Soria (2010) 48 Cal.4th 58, 66 [defendants who entered separate pleas in multiple cases, though as part of a single plea bargain, were subject to multiple fines under § 1202.4, subd. (b) and § 1202.45].) Furthermore, when the defendant is granted probation rather than state prison (like Gaines in May 2009, and unlike the defendant in Chambers), the court may impose new or modified conditions on the new grant of probation. Therefore, as of May 2009, the restitution fine under section 1202.4, subdivision (b) was $200 in each of Gaines’ two cases. By statute, the probation revocation fine (§ 1202.44) also had to be $200 in each case.
In initially sentencing Gaines in case number VCR184456, the trial court apparently failed to impose the probation revocation fine, and the May 2009 order declaring that “[a]ll prior orders remain[ed] in effect” merely carried forward the earlier omission. Nonetheless, by challenging the most recent fines as unauthorized and unlawful, Gaines has opened the door to correction of the trial court’s omission. Respondent urges this correction, and it is plainly within our power to make it. (See People v. Smith (2001) 24 Cal.4th 849, 851-854.)
On March 26, 2010, when the court revoked probation in both cases and sentenced Gaines to state prison, it imposed an aggregate restitution fine under section 1202.4, subdivision (b), for both cases in the amount of $600 and a corresponding parole revocation fine (suspended) under section 1202.45. The restitution fine, however, could not be imposed in an amount higher than what had been imposed when probation was granted, because the original fines survived revocation of probation and remained in effect. (Chambers, supra, 65 Cal.App.4th at p. 823; People v. Guiffre (2008) 167 Cal.App.4th 430, 434 (Guiffre).) Therefore, the restitution fine (§ 1202.4, subd. (b)) must be reduced to $200 in each case. And, because the parole revocation fine must be in the same amount as the restitution fine, the parole revocation fine must be reduced to $200 in each case as well. (§ 1202.45.)
The abstract of judgment indicates that the court had imposed a $600 restitution fine and a $600 parole revocation fine in each case. We believe this is inconsistent with the reporter’s transcript of the sentencing hearing. Regardless, the result in this appeal would be the same.
Lastly, respondent is correct that, because probation was revoked, the previously-imposed probation revocation fines (§ 1202.44) are no longer suspended and are now due. (Guiffre, supra, 167 Cal.App.4th at p. 435.) The probation revocation fine in VCR184456 had to be $200, and the probation revocation fine in VCR202862 was also $200. Therefore, these fines, totaling $400, are now due.
We will order that the sentencing order of March 26, 2010, and the abstract of judgment be amended to reflect a restitution fine of $200 (§ 1202.4, subd. (b)), a suspended parole revocation fine of $200 (§ 1202.45), and a probation revocation fine of $200 now due (§ 1202.44) in each case. (Guiffre, supra, 167 Cal.App.4th at p. 435; see People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183.)
III. DISPOSITION
The trial court shall revise its sentencing orders of April 9, 2010, and amend the abstract of judgment to award appellant the correct number of presentence credits, as set forth in this opinion. The trial court shall revise its sentencing orders of March 26, 2010, and further amend the abstract of judgment to reflect a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b)(1)) and a suspended parole revocation fine of $200 (Pen. Code, § 1202.45) in each of case numbers VCR184456 and VCR202862, and to indicate that probation revocation fines of $200 per Penal Code section 1202.44 are now due in each case, probation having been revoked. The trial court shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur. JONES, P. J., BRUINIERS, J.