Opinion
NOT TO BE PUBLISHED
APPEAL from judgment of the Superior Court of Los Angeles County, No. PA064638. Cynthia L. Ulfig, Judge.
Jennifer Hansen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Bryne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Sean Brian Gunton appeals from the judgment entered upon his conviction by jury of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The trial court sentenced defendant to state prison for the upper term of three years, awarding him 142 days of presentence custody credit and 71 days of conduct credit. It also ordered that he pay $9,619 in attorney fees for his court appointed attorney pursuant to Penal Code section 987.8. Defendant contends that (1) the attorney fee order must be reversed because the trial court did not comply with the statutory requirements for issuing such an order, and (2) his presentence conduct credits must be corrected to comply with the 2010 amendment to section 4019.
All further statutory references are to the Penal Code unless otherwise indicated.
We strike the attorney fee order, modify defendant’s custody credits and otherwise affirm.
As the underlying facts are not germane to the issues raised by defendant, we present only a cursory summary of those facts.
On April 27, 2009, Taylor Tosh’s 1999 Ford E-150 truck was stolen when he was out of town. On May 4 2009, Los Angeles police officers located the stolen vehicle being driven by defendant. When stopped by the officers, he got out of the vehicle and fled but was subsequently captured. Burglary and auto theft tools were found in the truck.
DISCUSSION
I. Attorney fee order
At the sentencing hearing, with no explanation, the trial court stated that, “Attorney’s fees are assessed in the amount of $9,619, that’s $8,674 for the attorney, $945 for the investigator.” The trial court did not attempt to ascertain whether defendant had the “present ability” to pay all or any part of the attorney fees, did not make any finding that defendant’s situation was “unusual, ” and failed to indicate how the fees were calculated. The probation report before the trial court indicated that defendant was unemployed, had an unstable employment history during the last five years, had no “primary, secondary income sources, ” and was a “transient.”
Defendant contends that the trial court violated his right to due process under the Fifth and Fourteenth Amendments by ordering him to pay $9,619. He argues that he was not given notice or a hearing regarding his ability to pay, there was no evidence introduced on that subject, and the trial court made no findings regarding his “present ability to pay” or that there were “unusual” circumstances necessary to overcome the presumption that a person ordered to state prison is unable to reimburse the state for the cost of the person’s defense. He requests that we strike the order imposing attorney fees.
The respondent concedes that the trial court did not comply with the statutory requirements of section 987.8 and claims that the matter should be remanded for the trial court to determine if defendant had the ability to pay.
We find that the trial court failed to comply with the statutory requirements of section 987.8, and we find that remanding for a hearing is inappropriate given in the facts presented.
After a noticed hearing, a defendant with the financial ability to pay may be ordered to reimburse the county for ‘“all or a portion of the cost”’ of a court appointed attorney. (§ 987.8, subd. (b); People v. Smith (2000) 81 Cal.App.4th 630, 637.) There is a presumption the defendant lacks financial ability. “Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.” (§ 987.8, subd. (g)(2)(B); see People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [“express finding of unusual circumstances [required] before ordering a state prisoner to reimburse his or her attorney”].)
Defendant’s ability to pay attorney fees includes his or her present financial position, reasonable discernable future financial position, considered no more than six months into the future from the date of the hearing, and the likelihood the defendant will be able to obtain employment within a six-month period from the date of the hearing. (§ 987.8, subd. (g)(2).) Requiring a defendant to pay for the costs of legal representation provided by the government without first conducting a hearing into the defendant’s ability to pay violates the statutory mandate. (People v. Turner (1993) 15 Cal.App.4th 1690, 1695, disapproved on other grounds in People v. Flores (2003) 30 Cal.4th 1059, 1068 (Flores).) Moreover, the record must show that the attorney fees ordered reflects the actual costs incurred by the county in providing services to the defendant. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1217.)
The statutory requirements for reimbursement of attorney fees were not satisfied here. Defendant was not given a hearing as contemplated by section 987.8, subdivision (e), with the rights to be heard in person, present witnesses, confront and cross-examine, have the evidence against him or her disclosed, and to receive a written statement of the findings. The trial court did not make any inquiry into defendant’s present ability to pay and made no finding in that regard. Further, it failed to give any clue as to how it arrived at the reimbursement figure, making it impossible for defendant to challenge that amount.
The disputed issue before us is whether or not the attorney fee award should be stricken or the matter remanded for the trial court to conduct a hearing to determine if defendant had the present ability to pay.
In Flores, our Supreme Court sanctioned the procedure of remanding to the trial court to conduct a section 987.8 hearing when statutory requirements were not met by the trial court in the first instance. The court held that the provision of section 987.8, subdivision (b) that “allowing the trial court to hold a second hearing within six months ‘of the conclusion of the criminal proceedings’ to determine a defendant’s present ability to reimburse the cost of the legal assistance provided, was not intended to limit the authority of an appellate court to remand the case to the trial court to correct its error in failing to give the defendant the notice and hearing required by the statute.” It found remand appropriate because a showing of “unusual circumstances” on remand was conceivable in the facts presented, as the defendant was given probation, had jewelry worth $1,500, and was stable and employed.
Nothing in the record here suggests that an “unusual circumstances” finding on remand is conceivable to rebut the presumption of inability to pay. Defendant was sentenced to prison for three years, not placed on probation. The probation report indicated that he was a transient living in Granada Hills, was unemployed and had “unstable” employment over the last five years. Given these facts, judicial economy dictates that we strike the attorney fee award without remanding.
II. Additional work credits
The offenses charged in this matter were committed in 2009. Defendant was convicted by jury and sentenced that same year to the upper term of three years with 142 days of custody credits and 71 days of conduct credits. On January 25, 2010, while this matter was pending on appeal, section 4019 was amended (Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18)) to increase the presentence conduct credits to which a defendant is entitled. The amended statute contains no express statement making it retroactive, nor does it contain a saving clause.
Defendant contends that he is entitled to the additional conduct credits provided in amended section 4019. He argues that the amendment applies retroactively to all cases not yet final as of January 25, 2010, when the new statute became effective. Absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal. He further contends that a failure to apply the statute retroactively violates equal protection. We agree that the amendment applies retroactively and therefore need not consider defendant’s constitutional claim.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credits are collectively called “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced, former section 4019 provided that he could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) Effective January 25, 2010, while this matter was pending on appeal, Senate Bill No. 18 became effective, allowing a qualifying defendant to accrue conduct credits at a rate of four days for every four days served. (§ 4019, subd. (f).)
The question of whether amended section 4019 is to be applied retroactively to cases pending at the time it became effective has occupied the attention of several appellate courts, with no clear consensus on the answer. The cases holding that retroactive application of the amendment is proper include the decision of the First Appellate District in People v. Norton (2010) 184 Cal.App.4th 408, and the decisions of Divisions Seven and Eight of the Second Appellate District in People v. Keating (2010) 185 Cal.App.4th 364 and People v. Bacon (2010) 186 Cal.App.4th 333, respectively. A case that holds that the amendment is only to be applied prospectively is the decision of Division Four of the Second Appellate District in People v. Eusebio (2010) 185 Cal.App.4th 990. We join the chorus of appellate decisions finding that the amendment is to be applied retroactively.
Recently, the California Supreme Court granted a hearing in two cases raising this issue, one which concluded that the amendment is to be applied retroactively and one which concluded otherwise. (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.) The court has begun taking other cases raising this issue and holding them for the lead case. (People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724.)
When there is nothing to indicate a contrary legislative intent, the general rule regarding retroactivity is set forth in section 3. It provides that no part of the Penal Code is “retroactive, unless so declared.” Absent a contrary legislative intent, statutes are presumed to be prospective, not retroactive. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Id. at p. 1209.)
But section 3 “is not a straightjacket” and “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent, ” even if the Legislature has not expressly stated that a statute should be applied retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Estrada created an exception to the general rule of prospective operation. “[W]here the amendatory statute mitigates punishment and there is no saving clause [requiring only prospective effect], the rule is that the amendment will operate retroactively so that the lighter penalty is imposed.” (Id. at p. 748.) That is, it will apply to all judgments of conviction that are not yet final on direct review. (Id. at p. 744.) “When the Legislature amends a statute so as to lessen the punishment [without a declaration of prospective operation] it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter punishment now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.) Where the amendatory statute mitigates punishment and there is no saving clause the rule is that the amended statute will apply retroactively. (Id. at p. 748; People v. Babylon (1985) 39 Cal.3d 719, 722 [“[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal”].)
The People claim that the purpose of the increase in credits for good conduct is to motivate good behavior. It was not a legislative determination that sentences were too severe, and therefore subject to the presumption of retroactivity set forth in Estrada. In our view, section 4019, as amended, is a statute lessening punishment, as it effectively operates to reduce the sentence of qualifying prisoners.
Two appellate decisions, long predating the current amendments to section 4019, have held that the Estrada exception applies to amendments awarding greater custody and conduct credits for presentence custody. (People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying amendment liberalizing conduct credits and rejecting argument that Estrada does not apply because an amendment extending the opportunity to earn conduct credits is designed to control future behavior]; People v. Hunter (1977) 68 Cal.App.3d 389, 392 [construed amendment to section 2900.5 extending right to presentence custody credits as one lessening punishment].)
It is also clear that the primary purpose of the amendment to section 4019 goes beyond motivating good behavior. Senate Bill No 18 explicitly states that “[t]his act addresses the fiscal emergency declared by the Governor...” (Stats. 2009, ch. 28, § 62), indicating that the primary purpose of the amendment is to reduce the inmate population, and with it, the costs of prison operation. Applying it prospectively does little to address the fiscal emergency declared by the Governor. However, applying the amendment retroactively will allow inmates to more quickly earn their release and therefore lower the prison costs.
It is also noteworthy that the Legislature included a saving clause in section 2933.3, subdivision (d), amended by the same legislation [providing additional custody credits for prison inmate firefighting training or service only for those eligible after July 1, 2009]. The inclusion of a saving clause in that section, but not in the amendment to section 4019 supports an inference that the Legislature had a different intent with respect to the retroactive application of the two provisions.
DISPOSITION
The award of attorney fees is stricken, conduct credits are increased from 71 days to 142 days, and the judgment is otherwise affirmed. On remand, the trial court is directed to amend the abstract of judgment to reflect these changes.
We concur: BOREN, P. J., ASHMANN-GERST, J.