Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA293702 Judith L. Champagne, Judge.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
On November 22, 2005, a one-count information filed by the Los Angeles County District Attorney charged defendant and appellant Darryl Desha Jackson with selling marijuana (Health & Saf. Code, § 11360, subd. (a).) On December 2, 2005, appellant pled guilty in exchange for three years formal probation, credited with six days time served in county jail, and 200 hours of community service. The trial court also imposed a $20 court security fee (Pen. Code, § 1465.8), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), and a restitution fine (§ 1202.4, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On December 30, 2009, appellant was arrested for possessing marijuana for sale after his son burglarized a medical marijuana facility, stole a few pounds of marijuana, and brought it home where they lived. The trial court revoked appellant’s probation.
On February 19, 2010, after a contested probation violation hearing, the trial court found appellant in violation. It imposed the low term sentence of two years in state prison. He received 110 days of presentence custody credit, including 55 days of actual custody and 55 days of conduct credit. The trial court imposed a $200 restitution fine (§ 1202.4, subd. (b)), a $200 suspended parole revocation fine (§ 1202.45), a $50 lab fee (Health & Saf. Code, § 11372.5, subd. (a)), a $30 criminal conviction assessment fee (Gov. Code, § 70373), and a penalty assessment of $85 ($50 pursuant to § 1464 & $35 pursuant to Gov. Code, § 76000).
Appellant appeals the judgment. He contends: (1) Under section 4019, amended January 25, 2010, he is entitled to additional presentence conduct credits. (2) The trial court improperly assessed him increased fines pursuant to section 1465.8 and Government Code section 70373. (3) The trial court improperly reimposed a restitution fine against appellant at revocation.
We affirm in part, modify the judgment in part, reverse in part, and remand the matter for further proceedings. With respect to custody credits, the matter is remanded for a determination as to how many days appellant spent in custody in 2005 and in 2009-2010. Thereafter, the trial court shall award appellant credit for days actually served and conduct credit in accordance with amended section 4019, which we conclude applies retroactively. With respect to the fines, the People concede, the trial court erroneously imposed two fines against appellant; the $30 assessment under Government Code section 70373 must be stricken, and the court security fee pursuant to section 1465.8 must be limited to $20. As for the restitution fine, we conclude that the trial court only imposed one fine under section 1202.4, subdivision (b).
FACTUAL BACKGROUND
Because the issues on appeal only involve presentence custody credit and the imposition of fines and fees, the facts of appellant’s underlying crime and probation violation are omitted. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
DISCUSSION
I. Presentence Custody Credit
A. Remand to determine days of actual custody in 2005
Appellant contends that the trial court failed to award him conduct credit for the six days he spent in jail after his initial arrest in 2005. He maintains that under the retroactive application of section 4019, in effect since January 25, 2010, he is entitled to six additional days of conduct credit.
As the parties seem to acknowledge, the problem on appeal is that it is unclear how many days appellant actually spent in custody in 2005. Appellant was arrested on November 19, 2005; it appears that he posted bail nine days later, on November 28, 2005. He pled guilty on December 2, 2005, and received “6 days in county jail credit 6.” At the February 19, 2010, sentencing, the trial court stated that appellant “simply got credit for six days back in December of ’05.”
Based upon the foregoing, appellant claims that he received credit for six actual days in custody. The People, on the other hand, assert that appellant received credit for four actual days, plus two days of conduct credit.
The bottom line is that we have no idea how many days appellant actually spent in custody in 2005. As the parties anticipate, the matter must therefore be remanded for a determination by the trial court as to how many days appellant actually spent in custody.
B. Remand to determine amount of custody credits in 2010
The parties agree on the following: Appellant was arrested on December 30, 2009, and remained in custody until sentenced on February 19, 2010, for a total of 52 days. The trial court awarded appellant 110 total days custody credit, comprised of 55 actual days and 55 conduct credits. It is unclear from where the trial court derived the additional three days (the difference between 52 and 55). The matter must be remanded to the trial court to determine the proper number of actual days spent in custody and conduct credit.
C. Retroactivity of section 4019, subdivision (b)
After the trial court determines the number of days appellant spent in custody, it must then determine the number of conduct credits to which appellant is entitled. The underlying offense in this matter was committed in 2005, and appellant served some amount of presentence custody at that time and was then placed on formal probation. In 2009, appellant was arrested and remained in custody until sentenced on February 19, 2010. On January 25, 2010, while appellant was in custody, section 4019 (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50; Sen. Bill No. 18) was amended 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.
Appellant 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.
We agree.
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 credit are collectively called “‘[c]onduct credit.’” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Section 4019 was amended while appellant was in custody awaiting sentencing. 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, 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 been the subject of numerous appellate court decisions, with no clear consensus on the answer. These cases are now pending before our Supreme Court. (See, e.g., 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.) We conclude that amended section 4019 is to be applied retroactively.
In light of this conclusion, we need not address appellant’s contention that applying amended section 4019 prospectively violates his equal protection rights.
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 expressly 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 straitjacket” 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 punishment 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 penalty 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 argue that section 4019 incentivizes good behavior; thus, it should not apply retroactively. We disagree. It is clear that the primary purpose of the amendment to section 4019 goes beyond incentivizing good behavior. Senate Bill No. 18 explicitly states that “[t]his act addresses the fiscal emergency declared by the Governor...” (Stats. 2009-2010, 3rd Ex. Sess., 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 not address the fiscal emergency declared by the Governor. As to the purpose of dealing with the fiscal emergency, 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), which provides additional custody credits for prison inmate firefighting training or service only for those eligible after July 1, 2009, amended by the same legislation. The inclusion of a savings 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.
We therefore conclude that amended section 4019 applies retroactively to all cases not yet final by January 25, 2010, the date when the amendment was adopted. Appellant’s case is not yet final, therefore, upon remand, the trial court shall determine the number of custody credits in accordance with amended section 4019.
II. Criminal Conviction Assessment (Gov. Code, § 70373) and Court Security Fee (§ 1465.8)
Appellant contends that the $30 assessment pursuant to Government Code section 70373, subdivision (a)(1), was erroneously imposed and must be stricken. The People concede the issue. We agree with the parties. Because appellant’s convictions occurred before the January 1, 2009, effective date of Government Code section 70373, this $30 assessment must be stricken.
Appellant also contends that the trial court improperly increased the amount of the $20 court security fee originally imposed pursuant to section 1465.8 when appellant was placed on probation in 2005 to $30 when probation was revoked and appellant was sentenced to state prison in 2010. The People also concede this issue.
Again, we agree with the parties. Appellant pled guilty on December 2, 2005. On the same day, the trial court suspended imposition of sentence and placed appellant on three years formal probation. It also imposed a court security fee of $20 pursuant to section 1465.8, subdivision (a)(1). Following appellant’s probation violations, the trial court sentenced appellant and increased the court security fee to $30.
At the time of appellant’s conviction in 2005, section 1465, subdivision (a)(1) provided for a $20 court security fee. The statute was amended to increase that amount to $30, effective July 28, 2009.
In People v. Alford (2007) 42 Cal.4th 749, our Supreme Court determined that the Legislature intended section 1465.8 to apply where the conviction occurred on or after the statute’s operative date, regardless of when the crime occurred. (People v. Alford, at pp. 753–756.) Appellant’s conviction here occurred on December 2, 2005, well before the amendment in 2009, although sentencing occurred after. Following the rationale in People v. Alford, supra, 42 Cal.4th 749, the trial court should not have imposed the increased security fee of $30, particularly when it initially imposed it in the amount of $20.
Therefore, the judgment should be modified to reflect a court security fee in the amount of $20.
III. Restitution Fine (§ 1202.4, subd. (b))
Appellant contends that the $200 restitution fine under section 1202.4, subdivision (b), imposed after conviction and upon the grant of probation was proper, but that after sentencing and upon the pronouncement of judgment, the trial court improperly imposed a second, unauthorized restitution fine pursuant to section 1202.4, subdivision (b), in the same amount. Appellant also argues that to the extent the record is unclear, the abstract of judgment should be modified to indicate only one $200 restitution fine imposed at the time of conviction.
Upon the conviction of any crime, the trial court shall order the defendant to pay a restitution fine. (§ 1202.4, subd. (b).) “The triggering event for imposition of [a] restitution fine is still [a] conviction.” (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) A restitution fine imposed as a condition of probation “remains in force” when probation is revoked, and consequently, the imposition of another restitution fine upon revocation of probation is not authorized. (Id. at pp. 822–823.)
Here, after appellant was convicted, the trial court placed him on probation and imposed a $200 restitution fine as a condition of his probation. Following revocation of appellant’s probation, the trial court sentenced appellant to prison and pronounced a restitution fine of $200, stating: “The court is reimposing the fines, the mandatory restitution fine of $200.” The abstract of judgment reflects only one set of fines, and the probation report indicates that appellant had not paid anything towards his fines. Under these circumstances, it is evident that the trial court only imposed one restitution fine. There is no error for us to correct.
DISPOSITION
The judgment is affirmed as to the restitution fine of $200. The judgment is modified to reflect a court security fee in the amount of $20. The judgment is reversed as to the criminal conviction assessment ($30). The matter is remanded to determine the number of days appellant spent in custody in 2005 and to determine whether appellant spent 52 or 55 days in custody in 2009 through 2010. The trial court shall then recalculate the number of conduct credits in accordance with amended section 4019.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.