THE PEOPLE, Plaintiff and Respondent,
v.
RONNIE EUGENE BACON, Defendant and Appellant.
No. B214314.
Court of Appeals of California, Second District, Division Eight.
July 1, 2010. CERTIFIED FOR PARTIAL PUBLICATION[*]*334 Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FLIER, J.
On count 1, appellant Ronnie Eugene Bacon was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a) (section 11377(a)).[1] On count 2, he was convicted of furnishing or giving away a controlled substance (§ 11379, subd. (a) (section 11379(a)). He was sentenced to prison for three years on count 1, with a concurrent term of three years on count 2.
Appellant contends that (1) count 2 must be reversed because his actions did not constitute a violation of section 11379(a), and (2) count 1 must be stricken because it is a lesser included offense of count 2.
*335 Subsequent to the initial briefing, the trial court denied a request for additional custody credit. That issue has been raised before this court via supplemental briefing.
We stay count 1 pursuant to Penal Code section 654, award 10 days of additional local conduct credits and otherwise affirm.[2]
FACTS[*]
DISCUSSION
1., 2.[*]
3. The Credits Issue
Appellant spent 18 days in jail prior to the sentencing hearing. The issue is the appropriate formula for computing local conduct credit.
The crimes occurred on August 11, 2008.
When appellant was sentenced on February 9, 2009, he received 26 days of total presentence credits, which was 18 days of actual credits and eight days of local conduct credits.
That computation of local conduct credits complied with Penal Code former section 4019, subdivision (f) (section 4019(f)), which provided that "a term of six days will be deemed to have been served for every four days spent in actual custody." Pursuant to that language of former section 4019, a "total of two days of conduct credit" applied to "every four-day period of incarceration." (People v. Dieck (2009) 46 Cal.4th 934, 939 [95 Cal.Rptr.3d 408, 209 P.3d 623].)
(1) As of January 25, 2010, the Legislature amended Penal Code former section 4019(f), so that, except for crimes not involved here, "a term of four days will be deemed to have been served for every two days spent in *336 actual custody." (See Pen. Code, § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.) § 50 (Senate Bill No. 18).) The amendment does not include a savings clause.
While the appeal was pending, appellant applied to the trial court for 10 more days of local conduct credit, based on Senate Bill No. 18. If Senate Bill No. 18 applies, appellant would have 36 days of total presentence credit, through the combination of 18 days of actual custody and 18 days of local conduct credit. The trial court refused to award the additional credit because appellant was convicted and sentenced prior to the effective date of Senate Bill No. 18.
The issue is therefore whether Senate Bill No. 18 is retroactive.
Numerous published opinions have already ruled on this issue and it will be resolved by the California Supreme Court. Two of those opinions, People v. Hopkins (2010) 184 Cal.App.4th 615 [109 Cal.Rptr.3d 214] (Sixth Dist.) and People v. Rodriguez (2010) 183 Cal.App.4th 1 [107 Cal.Rptr.3d 460] (Fifth Dist.), review granted June 9, 2010, S181808, concluded that the statutory amendment is not retroactive. In contrast, the majority of published decisions have held that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] because it is an amendatory statute that mitigates punishment. Cases with that holding include People v. Pelayo (2010) 184 Cal.App.4th 481 [108 Cal.Rptr.3d 825] (First Dist., Div. Five), People v. Norton (2010) 184 Cal.App.4th 408 [109 Cal.Rptr.3d 197] (First Dist., Div. Three), People v. Delgado (2010) 184 Cal.App.4th 271 [108 Cal.Rptr.3d 789] (Second Dist., Div. Six), People v. Landon (2010) 183 Cal.App.4th 1096 [107 Cal.Rptr.3d 847] (First Dist., Div. Two), review granted June 23, 2010, S182808, People v. House (2010) 183 Cal.App.4th 1049 [107 Cal.Rptr.3d 830] (Second Dist., Div. One), review granted June 23, 2010, S182813, and People v. Brown (2010) 182 Cal.App.4th 1354 [107 Cal.Rptr.3d 286] (Third Dist.), review granted June 9, 2010, S181963).
(2) We agree with the reasoning in the majority of published decisions on this issue. We conclude, therefore, that the amendment of Penal Code section 4019 applies retroactively. Appellant is entitled to the benefit of the amendment, and he should be awarded 10 more days of presentence local conduct credit.
*337 DISPOSITION
The trial court shall prepare an amended abstract of judgment to show that execution of sentence on count 1 is stayed pursuant to Penal Code section 654 pending service of sentence on count 2, and the stay is to become permanent when service of sentence on count 2 is completed. The amended abstract of judgment will also show that appellant has 36 days of presentence credits, which is 18 days of actual custody and 18 days of local conduct credits. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
Rubin, Acting P. J., and Grimes, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the Facts, and parts 1. and 2. of the Discussion.
[1] Subsequent statutory references are to the Health and Safety Code unless otherwise stated.
[2] The amended information originally named the section 11379(a) violation as count 1 and the section 11377(a) violation as count 2. Before the trial started, an oral amendment by the prosecutor made the section 11377(a) violation count 1 and the section 11379(a) violation count 2.
[*] See footnote, ante, page 333.