P. v. Regalado


Filed 4/21/11 P. v. Regalado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DOMINIC FRANCIS REGALADO, Defendant and Appellant.

E050632 (Super.Ct.No. FSB901193) OPINION

APPEAL from the Superior Court of San Bernardino County. John N. Martin, Judge. Affirmed as modified.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On April 8, 2009, defendant and appellant Dominic Francis Regalado pled guilty to elder abuse under Penal Code^[1] section 368, subdivision (b)(1). On May 15, 2009, the trial court granted defendant probation for a period of five years.
On March 26, 2010, the trial court found defendant in violation of numerous terms of probation. The court, therefore, revoked and terminated defendant’s probation. Thereafter, the trial court sentenced defendant to the low term of two years in state prison with credit of 395 days for time served. Defendant’s sole contention on appeal is that he is entitled to additional presentence conduct credits pursuant to amended section 4019 that became effective on January 25, 2010.^[2] We conclude that the trial court erred in applying a two-tiered division of the presentence conduct credits.
II
ANALYSIS^[3]
On March 26, 2010, the trial court awarded defendant a total of 395 days of presentence conduct credits, consisting of 248 days of actual custody plus an additional 147 days of good conduct/work credit under section 4019. Over defendant’s objection, the court used a two-tiered system: (1) the court calculated defendant’s custody prior to January 25, 2010, used the former version of section 4019, and calculated the conduct credits; and (2) the court then calculated defendant’s custody from January 25, 2010 and after, used the amended version of section 4019, and calculated the conduct credits. Under this two-tiered system, defendant received 100 days of conduct credit for the 201 days he spent in custody prior to January 25, 2010, plus 47 days of conduct credit for the 47 days he spent in custody between the amendment’s effective date and his sentencing date.
Here, defendant does not contend that he is entitled to the enhanced presentence conduct credits provided by the amended version of section 4019, because the 2010 amendment is retroactive.^[4] Instead, defendant argues that amended section 4019 applies to all presentence custody, even those that occurred prior to January 25, when a defendant is sentenced after the effective date of the amendment.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). “‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. However, in October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) Under the amended version of section 4019, defendants were eligible to earn two days of conduct credits for every two days of actual custody. (Ibid.) The amendments to section 4019 went into effect on January 25, 2010.
The California Supreme Court has stated: “‘[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. (§ 2900.5, subd. (d) . . . .)” (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) “The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.” (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)). Both types of presentence credits are collectively referred to as “conduct credit[s].” (People v. Dieck, supra, 46 Cal.4th at p. 939, fn. 3.)
“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. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b) . . . .)” (Buckhalter, supra, 26 Cal.4th at p. 30.) The former version of section 4019 granted fewer presentence conduct credits.^[5] The 2010 amended version of section 4019, which was in effect when defendant was sentenced, applies to those persons confined in a county jail or other equivalent specified facility for time served, “including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment” (§ 4019, subd. (a)(1)) or, alternatively, to those confined in such institutions “following arrest and prior to the imposition of sentence for a felony conviction” (id., subd. (a)(4); accord, People v. Johnson (2004) 32 Cal.4th 260, 265). If those persons are not required to register as sex offenders and are not being committed to prison for, or have not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, a term of four days will be deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).)
Here, defendant’s criminal act and some of his probation violations occurred before the amendment to section 4019 became effective, but his sentencing did not occur until after the amendment to section 4019 became effective. Therefore, defendant was required to be sentenced under the amended statute. Nonetheless, at sentencing, the trial court calculated defendant’s presentence conduct credits based on the different versions of section 4019 in effect at different times during defendant’s presentence custody. This was an error because section 4019 contains no provision for such a two-tiered division of the presentence conduct credits. Moreover, the previous version of section 4019 was no longer valid at the time of defendant’s sentencing, and therefore the trial court was unauthorized to apply the previous statute to defendant’s sentence.
Accordingly, defendant is entitled to a total of 496 days, instead of 395 days, of presentence conduct credits for his time spent in actual custody in a county jail or penal institution.
III
DISPOSITION
The judgment is modified to award defendant an additional 101 days of presentence conduct credits, for a total of 496 days of presentence credit. The trial court is directed to amend the minute order of March 26, 2010, and the abstract of judgment to reflect 496 days of presentence credit and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgment as thus modified is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster
J.


We concur:

/s/ Ramirez
P.J.
/s/ Hollenhorst
J.

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