P. v. Williams






Filed 10/3/11 P. v. Williams CA4/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. FREDDIE NELSON WILLIAMS, Defendant and Appellant.

E051696 (Super.Ct.Nos. FVA900751 & FSB900877) OPINION

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Modified and affirmed with directions.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Freddie Nelson Williams contends the trial court erred by calculating some of his Penal Code[1] section 4019 conduct credits under a version of section 4019 that was no longer in effect. We modify the judgment to award additional credits and affirm.
BACKGROUND
On March 13, 2009, in case No. FSB900877, defendant pled guilty to receiving stolen property (Pen. Code, § 496d, subd. (a)) and admitted a 2002 vehicle theft conviction (Veh. Code, § 10851) that subjected him to an increased sentencing range (Pen. Code, § 666.5, subd. (a)).
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.)
On March 25, 2010, in case No. FVA900751, defendant pled no contest to two counts of grand theft. (§ 487, subd. (a).)
On August 2, 2010, defendant was sentenced pursuant to his plea agreements. For the two grand theft convictions (case No. FVA900751), the trial court imposed concurrent midterms of two years. For the receiving stolen property conviction (case No. FSB900877) the trial court imposed a concurrent low term of two years. For case No. FVA900751, the trial court awarded credit for 273 actual days in custody and 241 days of section 4019 conduct credit, for a total of 514 days. Defendant’s trial counsel argued that defendant was “entitled to the new 4019 credits and . . . it should be 273 actual, 273 conduct.” For case No. FSB900877, the trial court awarded credit for 289 actual days in custody and 239 days of section 4019 conduct credit, for a total of 528 days. Defendant’s trial counsel reasserted his objection.
DISCUSSION
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Prior to January 25, 2010, section 4019 provided for “two days [of conduct credit] for every four days the defendant is in actual presentence custody.” (Duff, at p. 793.) The January 25, 2010 amendment provided for the accrual of two days of conduct credit for every two days of presentence custody. (Former § 4019, subd. (f).)[2]
Defendant contends that because the amendment to section 4019 was operative prior to the date of his sentencing, all of his credits should have been calculated under the amended version. The People contend credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation “is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5,” and that a contrary interpretation would create equal protection violations.
“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere . . . ‘prior to the imposition of sentence’ may also be eligible for good behavior credits . . . . ‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing,’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310.) “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]” (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)
Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available “ ‘ “all or nothing.” ’ ” (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).) Instead, they “are credited to the defendant’s term of imprisonment ‘in the discretion of the court imposing the sentence.’ [Citation.] It is the duty of the sentencing court to determine ‘the total number of days to be credited . . .’ for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to . . . section 4019 credits. [Citation.]” (Duesler, supra, 203 Cal.App.3d at p. 276.) “If the record fails to show that defendant is not entitled to such credits . . . he shall be granted them.” (Johnson, at p. 815.) Thus, section 4019 credits are not accumulated and are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
The version of section 4019 in effect at the time of sentencing contained no provision for a two-tiered division of presentence custody credits. Thus, the trial court’s discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because “the record fails to show that defendant is not entitled [to conduct credits], he shall be granted them” (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
We reject the People’s contention that applying the amendment to all presentence custody defeats the purpose of conduct credits or creates equal protection violations. Underlying the People’s contentions are the premises that a defendant sentenced on January 26, 2010, could not have had their behavior in custody influenced by the availability of increased conduct credits, and would receive more credits than an eligible defendant sentenced on January 24, 2010. However, regardless of whether a defendant was sentenced before or after the amendment became operative, section 4019 served its purpose of rewarding good behavior; defendants sentenced after the amendment became effective merely had an increased incentive. Furthermore, the distinction between defendants sentenced before and after the amendment became effective is a rational one as it is based upon a temporal distinction. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 189 [“ ‘punishment-lessening statutes given prospective application do not violate equal protection’ ”]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
Our colleagues in Division One of this District recently held that trial courts were required to calculate section 4019 conduct credits pursuant to the version in effect at sentencing. (People v. Zarate (2011) 192 Cal.App.4th 939, 944, review granted May 18, 2011, S191676.) For the reasons stated above, we decline the People’s invitation to side with their position as advanced by the dissent in Zarate.
Accordingly, because defendant had served a total of 298 days in custody prior to sentence and, there was no showing that he was not entitled to conduct credits, he was entitled to 272 days of section 4019 credit in case No. FVA900751, and 288 days of section 4019 credit in case No. FSB900877. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating preamendment formula for calculating conduct credits].)
Although not raised by the parties, we note that the trial court pronounced a single judgment arising out of two different case numbers but abstracted the judgment into two outdated 2003 versions of mandatory form CR-290. The abstract for case No. FSB900877 also indicates the term imposed for the receipt of stolen goods conviction was the lower term and was two years without indicating that it was the low term due to section 666.5. We have the inherent power to correct clerical errors in abstracts to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will direct preparation of a single amended abstract of judgment, using the updated version of the form, for both case numbers, and reflecting both sections 496d, subdivision (a), and 666.5, subdivision (a), as the basis for the receipt of stolen goods conviction.
DISPOSITION
The judgment is modified to set presentence credit for time served in case No. FVA900751 at 545 days, consisting of 273 actual days and 272 days of section 4019 conduct credit. The judgment is modified to set presentence credit for time served in case No. FSB900877 at 577 days, consisting of 289 actual days and 288 days of section 4019 conduct credit. The superior court clerk is directed to prepare new minute orders, and a single amended abstract of judgment (form CR-290 last revised on Jan. 1, 2007), reflecting the custody credit modifications and that the sentence for the receipt of stolen goods conviction was pursuant to both sections 496d, subdivision (a), and 666.5, subdivision (a). The superior court clerk is then directed to forward certified copies of the new minute orders and amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.


We concur:


McKINSTER
J.


MILLER
J.



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