Opinion
G043826 Super. Ct. No. 08HF1334
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ALFRED PHILLIP ALIRE, Defendant and Appellant.
Leonard J. Klaif, 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, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed and remanded with directions.
Leonard J. Klaif, 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, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Alfred Phillip Alire appeals after a jury found him guilty of one count of pimping (Pen. Code, § 266h, subd. (a)), and one count of pandering by procuring (id., § 266i, subd. (a)(1)). (All further statutory references are to the Penal Code unless otherwise specified.) Defendant contends that the evidence was insufficient to support his conviction for pandering by procuring and that he is entitled to an additional 21 days of presentence conduct credit.
We affirm the judgment and remand with directions. Substantial evidence showed defendant procured at least one woman to become a prostitute within the meaning of section 266i, subdivision (a)(1). We remand the matter to the trial court with directions to modify the judgment to provide defendant an additional 21 days of presentence conduct credit.
FACTS
I.
INVESTIGATION OF PROSTITUTION ACTIVITIES
In April 2008, Detective Ronald Carr of the Irvine Police Department received a complaint of "suspicious activity" occurring at an apartment located on Giotto in Irvine (Giotto apartment). A neighbor living adjacent to the Giotto apartment reported seeing men "coming and going at all hours of the day and night, staying for approximately 30 to 45 minutes, and then leaving" the Giotto apartment. The apartment manager told Carr that the tenants of the Giotto apartment were defendant and defendant's wife, Li Yan Alire. Carr's investigation revealed that defendant and Li Yan also leased two other apartments in Irvine: one on Las Palmas (Las Palmas apartment) and one on Shadow Oaks (Shadow Oaks apartment).
We refer to Li Yan Alire as Li Yan for clarity, not out of disrespect. (Nairne v. Jessop-Humblet (2002) 101 Cal.App.4th 1124, 1126, fn. 1.)
Carr surveilled the Giotto apartment and saw men leaving it on several occasions. One of the men told Carr that he had found the Giotto apartment through an "adult ad" in the Orange County Register, which contained a telephone number ending in 6798 (the adult advertisement telephone number). Other men seen leaving the Giotto apartment told Carr that they had used the adult advertisement telephone number.
Carr found the adult advertisement telephone number listed in an Orange County Register advertisement entitled "Asian and Latina." He searched Craigslist by using the adult advertisement telephone number and found six adult advertisements. One advertisement, dated "2008-4-29," stated, inter alia, "Latinas and Thai Girls. A Magic Secret Hand Massage. W4M." Carr testified that through his training and experience in vice investigations, "W4M generally indicates women for men," and that advertisements containing W4M solicit male clients for women. The advertisement further stated: "New Lovely Asian Girls Full Massage Therapist in Town Today with Magic Hands Guarantee." Another advertisement Carr found through the Craigslist search offered: "Sweet Asian Girl Physical Massage Therapy Session. W4M-23"; this advertisement was dated April 29, 2008.
Carr also found the adult advertisement telephone number in an advertisement on the Web site, www.kaango.com, offering "Juicy Asian Latina Massage," and also in an advertisement on the Web site, www.backpage.com, offering "Asian Nasty Girls Full Body Massage." In addition, Carr found the adult advertisement telephone number listed on two erotic Web sites, www.asianbodymassage.com and www.hotexoticgirls.com. Carr discovered the Web site, www.asianbodymassage.com, was registered to Li Yan. It displayed a picture of an Asian woman in lingerie, listed the adult advertisement telephone number, and advertised: "Oriental Style Acupressure, Choice Your Girl, Massage in Private Rooms, Body Scrub, Full Shower Facilities. In Call. Orange County, 2 Locations." Carr also discovered the www.hotexoticgirls.com Web site was registered to defendant.
In light of Carr's findings, an "undercover operative" called the adult advertisement telephone number and made an appointment. The undercover operative was directed to the Giotto apartment.
On May 13, 2008, several detectives from the Irvine Police Department were assigned to conduct surveillance of the Giotto apartment, the Las Palmas apartment, and the Shadow Oaks apartment. (Through earlier surveillance, Carr had determined that defendant and Li Yan lived at the Shadow Oaks apartment.) That night, defendant arrived at the Las Palmas apartment and parked his car. Defendant did not enter the Las Palmas apartment until after an unidentified man left the Las Palmas apartment 10 minutes later. The detectives saw defendant carrying bags of groceries; defendant stayed at the Las Palmas apartment for about 15 minutes.
Defendant testified at trial that he did not enter the Las Palmas apartment for 10 minutes that night because he was on the telephone. He denied seeing a man leave the Las Palmas apartment.
After defendant left the Las Palmas apartment, he drove to a shopping center parking lot located near the Giotto apartment, and waited in the car for about 35 minutes. Carr testified defendant's conduct was "consistent with someone waiting for customers to leave a location." Defendant then drove to the Shadow Oaks apartment and then drove to the Giotto apartment. Detectives had seen an unidentified man leave the Giotto apartment 25 minutes before defendant arrived. Defendant parked and exited his car. He carried a bag as he entered the Giotto apartment. He left a few minutes later, carrying a large trash bag that he placed in a dumpster, and returned to the Shadow Oaks apartment where he remained for the rest of the night. Detectives searched the trash bag in the dumpster and found empty condom wrappers and food containers.
II.
EXECUTION OF SEARCH WARRANTS
On May 14, 2008, detectives simultaneously executed search warrants issued for the Giotto apartment, the Las Palmas apartment, and the Shadow Oaks apartment. While the three search warrants were being executed, Carr arrested defendant who was sitting in his parked sport utility vehicle. Carr searched defendant's vehicle and found "a fresh bag of condoms"; a white trash bag containing female clothing, lingerie, and scarves; driver's licenses in defendant's name; and two envelopes with handwritten notations of names, times, and amounts of money. One of the envelopes contained $350 in cash, and the other contained $400 in cash.
A.
Search of the Giotto Apartment and Yang Wu's Testimony
At the Giotto apartment, a detective knocked on the door and identified himself three times before entering the Giotto apartment with a key. The detective had previously obtained the key from a woman identified only in the record as "Lisa Knox." Upon opening the door, the officers executing the search warrant saw a woman, later identified as Yang Wu, standing near the door. During a protective sweep of the Giotto apartment, the officers discovered a man in the living room (who Wu admitted at trial was her client and had paid her for engaging in sexual intercourse with him). The officers found $5,780 in a suitcase in the hallway closet and $1,130 in an envelope on the living room couch. Wu told the officers money found at the Giotto apartment was earnings from prostitution. The officers also found two "pay/owe sheets" inside Wu's purse, 32 unused condoms in a kitchen cabinet, and a motion detector that "captured images like a video camera" in a living room wall.
Wu testified against defendant at trial. Wu stated that she answered an advertisement in a Chinese newspaper, seeking a person to perform massages, by calling a telephone number listed in the advertisement. She spoke in Mandarin to a person who identified herself as "Judy." After Judy told Wu "a little bit" about the job, Wu agreed to work for Judy with the understanding that the massage services she was to perform would involve engaging in sex with clients. Of the $160 Wu understood she would charge each client, she would keep $90 and give Judy $70.
Wu was given use immunity for her trial testimony.
Judy told Wu that a person would pick her up from Diamond Bar on either May 1 or 2, 2008, and drive her to Orange County so that she could provide massage services. Defendant, whom Wu testified she knew by his middle name, Phillip, drove Wu from Diamond Bar to the Giotto apartment. On the way to the Giotto apartment, they stopped at a drug store to enable Wu to purchase lubricant. Defendant and Wu did not speak much to each other because of Wu's limited ability to speak English, but defendant told Wu about a video camera in the Giotto apartment. Wu did not sign a rental agreement, and did not pay rent during her stay at the Giotto apartment. When defendant and Wu arrived at the Giotto apartment, Judy called Wu and told her: "[I]t's kind of late. Why don't you just take a shower and go to bed and then tomorrow morning we start work." Wu only communicated with Judy over the telephone.
Wu could not remember if defendant picked her up on May 1 or 2.
Wu testified she would put Judy's portion of the money into envelopes. Defendant would stop by the Giotto apartment either every night or every other night, depending on the number of clients Wu had seen, and pick up the envelopes from her. Defendant sometimes brought food and condoms when he came to collect the money.
Defendant was the only person to ever collect money from Wu. Other than male clients, defendant was the only person Wu ever saw during her stay at the Giotto apartment. At trial, the prosecutor asked Wu: "Now, from the day that the defendant brought you to this apartment to the day that the police came, how many times did you leave the apartment?" Wu responded, "[n]ot even one time."
B.
Search of the Las Palmas Apartment
At the Las Palmas apartment, the police officers knocked on the door and identified themselves. After no one answered the door, they used a key, which Carr had provided, to open the door. While the officers conducted a protective sweep of the Las Palmas apartment, they heard a flushing sound coming from the hallway bathroom. The officers ordered that anyone inside the locked bathroom must "get out," but no one came out.
One of the police officers kicked down the bathroom door and found two women, Elin Lara and Sonia Sanchez, inside. Both of the women were wearing lingerie. The officers found $6,000 in six envelopes hidden inside a vacuum cleaner in the entryway closet; $442 between the cushions of a couch in the living room; and $795 in a backpack in one of the bedrooms. They also found lubricant gel in one of the kitchen drawers and in the bedroom bathroom; baby oil; unused condoms in the refrigerator and underneath the nightstand in one of the bedrooms; condom wrappers in the bedroom bathroom; a video camera system in the master bedroom closet; and Wells Fargo Bank deposit slips in the "dining table area."
C.
Search of the Shadow Oaks Apartment
At the Shadow Oaks apartment, a pay/owe sheet was found near a computer. The pay/owe sheet was split into two columns, with "05-14" and the apartment number of the Las Palmas apartment on one side, and "05-14" and the apartment number of the Giotto apartment on the other side. Underneath the date and location headings were times and telephone numbers. Also found were utility bills containing defendant's name, three telephone bills for the adult advertisement telephone number, and "bills paying rent at the other apartments." Empty condom wrappers in a kitchen cabinet, $7,125 in cash, computers, video cameras, cellular telephones, and "schedules and notations" that referred to the Giotto apartment and Las Palmas apartment were also found.
III.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified that Li Yan insisted they lease three apartments, two of which they subleased to "some friends." At Li Yan's request, starting around April 1, 2008, defendant picked up rent a "couple of times a week" from the Las Palmas apartment and the Giotto apartment. He collected envelopes of money from "these girls," which he gave to Li Yan. Defendant also delivered items when he picked up the envelopes. He testified that "[i]n the beginning," which he clarified was "[a]round April," he did not know his deliveries included condoms. He said Li Yan placed the condoms in a plastic bag, wrapped them in a tissue, and then placed them either in an envelope or inside a grocery bag.
Defendant further testified Li Yan told him Wu was going to lease the Giotto apartment and told defendant to pick up Wu from Diamond Bar on May 1 or 2. Defendant picked up Wu and drove her to the Giotto apartment. Defendant stated he collected money from Wu a week later, which he understood was for rent.
Defendant also testified that he did whatever he was told by Li Yan because she was "very temperamental," and he "didn't know how to control what was going on." He stated he thought Li Yan's frequent requests for him to pick up money from the women in the Giotto apartment and Las Palmas apartment "didn't seem right"; he knew his actions were criminal before being arrested, but continued to do as Li Yan asked while he was "trying to find a way out."
PROCEDURAL HISTORY
Defendant was charged with one count of pimping (§ 266h, subd. (a)), and one count of pandering by procuring (§ 266i, subd. (a)(1)). The jury found defendant guilty on both counts as charged.
The trial court sentenced defendant to a three-year term in state prison for the pimping offense and to a concurrent three-year term for the pandering offense; execution of the latter term was stayed pursuant to section 654. The court awarded defendant a total of 64 days of credit, consisting of 43 days of actual custody credit and 21 days of conduct credit. Defendant appealed.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SHOWED DEFENDANT COMMITTED THE OFFENSE
OF PANDERING BY PROCURING.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.) The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)
Defendant contends substantial evidence does not support the jury's finding that he committed the offense of pandering by procuring because insufficient evidence showed he "[p]rocure[d] another person" for prostitution within the meaning of section 266i, subdivision (a)(1). Section 266i, subdivision (a) provides in relevant part: "[A]ny person who does any of the following is guilty of pandering, a felony . . . : [¶] (1) Procures another person for the purpose of prostitution." Section 266i does not define the term "[p]rocures" as it appears in subdivision (a)(1).
In People v. Montgomery (1941) 47 Cal.App.2d 1, 12, the appellate court stated the term "procure," as used in section 266i, "necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose." Thus, if a defendant is charged with procuring, "he may be found guilty of such procurement if it is properly established that he either assisted, induced, persuaded or encouraged" a person to become a prostitute. (People v. Montgomery, supra, at p. 12.) In People v. Schultz (1965) 238 Cal.App.2d 804, 812, the appellate court similarly stated, "the term 'procure' means assisting, inducing, persuading or encouraging a female person to become an inmate of a house of prostitution [citation]."
Here, the record contains the following evidence showing defendant assisted, induced, persuaded, or encouraged another person to become a prostitute at the Giotto apartment: (1) Wu answered an advertisement in a Chinese newspaper, seeking a person to perform massages; (2) Wu called the telephone number listed in the advertisement and spoke with Judy; (3) after discussing the job, Wu understood that the services she would perform would include engaging in sex with clients; (4) Judy told Wu that a person would pick her up from Diamond Bar on either May 1 or 2, 2008, and drive her to Orange County where she would provide the services they had discussed; (5) on May 1 or 2, defendant picked up Wu in Diamond Bar and drove her to the Giotto apartment which was leased to defendant and Li Yan; (6) on the way to the Giotto apartment, defendant stopped at a drug store to enable Wu to purchase lubricant; (7) when they arrived at the Giotto apartment, defendant told Wu about a video camera in the Giotto apartment; (8) Wu admitted she had been paid to have sex with the man whom officers found in the Giotto apartment; (9) officers found $5,780 in a suitcase in the hallway closet and $1,130 in an envelope on the living room couch, which Wu told them constituted earnings from prostitution; (10) the officers also found two pay/owe sheets inside Wu's purse, 32 unused condoms in a kitchen cabinet, and a motion detector that operated like a video camera in a living room wall; (11) Wu never left the Giotto apartment from the day defendant took her there until the day the police officers executed the search warrant; (12) other than male clients, defendant was the only person Wu ever saw while she stayed at the Giotto apartment; (13) defendant picked up envelopes containing proceeds from the services Wu provided every day or every other day; and (14) defendant brought food and condoms to the Giotto apartment when he came to collect the money.
Evidence was also presented showing that during the search of the Las Palmas apartment, which was also leased to defendant and Li Yan, officers found two women wearing lingerie inside a locked bathroom, over $7,000 hidden throughout the apartment, lubricant gel in a kitchen drawer and in a bathroom, baby oil, unused condoms in the refrigerator and underneath a nightstand, and a video camera system in the master bedroom closet. During the search of the Shadow Oaks apartment where defendant and Li Yan resided, a pay/owe sheet and telephone bills identifying the adult advertisement telephone number found in the six adult advertisements and on erotic Web sites, including one Web site which was registered to defendant, were found. Also found at the Shadow Oaks apartment were empty condom wrappers in a kitchen cabinet, $7,125 in cash, video cameras, and "schedules and notations" that referred to the Giotto apartment and Las Palmas apartment.
The foregoing evidence constitutes substantial evidence defendant procured another person to become a prostitute within the meaning of section 266i, subdivision (a)(1).
In his opening brief, defendant states that at trial, he testified he was "initially in the dark concerning his wife's business activities," and he had no knowledge of Li Yan's prostitution ring at the time he picked up Wu from Diamond Bar and took her to the Giotto apartment. Defendant argues, "[w]hile he admitted eventually figuring out that his wife was running a prostitution ring, [he] denied any knowledge of this illegal activity when he picked up Ms. Wu and drove her to Irvine." In support of his argument, defendant cites to a portion of the record that neither mentions Wu nor the drive from Diamond Bar to the Giotto apartment, much less defendant's knowledge of any prostitution activity at that time. Rather than reflecting defendant's knowledge at the time he drove Wu to the Giotto apartment, the pages defendant cites in his attempt to support this argument include (1) defendant's testimony in regard to his collection of money in envelopes from "the people in Las Palmas"; (2) what defendant did with the envelopes; (3) defendant's feelings about "taking money from the[] girls"; (4) defendant's arguments with Li Yan, stemming from "a lot of reasons"; (5) defendant's filing for divorce from Li Yan in March of some unspecified year as well as his inability to finalize the divorce; (6) defendant's understanding that Li Yan was involved in prostitution; and (7) defendant's knowledge that there were "Chinese men" involved in the "business" with Li Yan. At trial, defendant made vague statements as to when he became suspicious that criminal activity might be afoot. In response to the prosecutor's inquiry of when defendant "realize[d] [what Li Yan was telling him to do] was a crime," defendant stated, "later." The prosecutor continued questioning defendant and asked him if he did not know "it was a crime" until he was arrested. Defendant admitted he knew criminal activities were occurring before he was arrested, but did not specify when he gained this knowledge.
But even if defendant had testified that he had no knowledge of the prostitution activities that were occurring at the Giotto apartment and Las Palmas apartment, and how his conduct had the effect of assisting, inducing, persuading, or encouraging women to engage in prostitution, the jury was free to disregard defendant's testimony on this point in the face of ample evidence showing his extensive role in facilitating the prostitution enterprise. (People v. Silva (2001) 25 Cal.4th 345, 369 [jury not required to accept the defendant's version of events as "[a] rational trier of fact could disbelieve those portions of defendant's statements that were obviously self-serving"].)
Substantial evidence supported defendant's conviction for pandering by procuring.
II.
DEFENDANT IS ENTITLED TO AN ADDITIONAL 21 DAYS' PRESENTENCE
CONDUCT CREDIT PURSUANT TO SECTION 4019.
Defendant contends that he is entitled to 21 days of presentence conduct credit in addition to the 21 days of presentence conduct credit that was awarded by the trial court at the sentencing hearing. The Attorney General agrees that defendant is entitled to additional presentence conduct credit, but argues defendant is only entitled to 19 additional days of presentence conduct credit. For reasons we will explain, we agree with defendant.
Defendant was in custody for three days after he was arrested on May 14, 2008, and before he was released on his own recognizance. On March 15, 2010, defendant was found guilty by the jury as to the charged offenses and was taken into custody. The trial court held defendant's sentencing hearing on April 23, 2010.
At the April 23, 2010 sentencing hearing, the trial court awarded defendant three days' actual custody credit for the three days he spent in custody following his arrest in May 2008, and 40 days' actual custody credit for the 40 days he spent in custody from the conclusion of trial until the sentencing hearing. Based on an award of a total of 43 days' actual custody credit, the court awarded defendant 21 days of presentence conduct credit.
Effective January 25, 2010, section 4019, subdivision (f) was amended to provide in relevant part the following formula for determining presentence conduct credits: "[I]f all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The Attorney General concedes in her respondent's brief that the January 25, 2010 amendment to section 4019 applied to the 40-day time period defendant spent in custody after his trial. The Attorney General further concedes defendant should have been awarded 40 days of presentence conduct credit for this 40-day time period. We agree that the January 25, 2010 amendment to section 4019 applied to the 40-day time period. Applying the calculation to this period, defendant should have been awarded 40 days of presentence conduct credit for the period after his trial concluded and before his sentencing hearing.
Defendant also contends that he was entitled to two days of presentence conduct credit for the three days he was in custody in 2008, based on the retroactive application of the version of section 4019 that became effective on January 25, 2010. The Attorney General contends the version of section 4019 that became effective on January 25, 2010 should be applied prospectively only and thus should not be applied to calculate defendant's presentence conduct credit as to the three-day time period he was in custody in 2008.
We conclude the version of section 4019 that became effective on January 25, 2010 should be applied retroactively in this case. Generally, amendatory statutes are presumed to apply prospectively, not retroactively unless they contain an express declaration to the contrary. (§ 3.) However, In re Estrada (1965) 63 Cal.2d 740 (Estrada)created an exception to section 3. In Estrada, the California Supreme Court stated that "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Estrada, supra, at p. 748.) The Supreme Court further explained that "[i]t 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.)
Courts have traditionally deemed legislative enactments that increase the amount of credits a defendant may accrue as statutes that mitigate punishment for purposes of the Estrada rule. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [statute involving custody credits].) Following this precedent, we conclude the January 25, 2010 amendment to section 4019 falls within the Estrada rule because it effectively reduces the amount of time eligible defendants will have to spend in prison.
The Supreme Court has granted review of the issue and will have the final say on the matter. (See, e.g., People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963). In the meantime, we hold the January 25, 2010 amendment to section 4019 retroactively applies to the calculation of defendant's presentence conduct credit as to the three days he spent in custody in 2008.
We observe that the Legislature again amended section 4019 in September 2010, but that amendment does not affect our analysis. In September 2010, the Legislature amended section 4019 to restore the presentence conduct credit calculation set forth in the version of section 4019 that was in effect before the January 25, 2010 amendment. The Legislature, however, in newly created subdivision (g) of section 4019, declared that the September 2010 amendment to section 4019 shall be applied prospectively only to crimes committed on or after the effective date of that amendment. Thus, the September 2010 version of section 4019 has no effect on this appeal.
Applying the version of section 4019 that became effective January 25, 2010, defendant is entitled to two additional days of presentence conduct credit for the three-day time period he spent in custody in 2008. Adding these two days of presentence conduct credit from 2008 to the 40 days of presentence conduct credit accrued in 2010, discussed ante, we conclude defendant should have received a total of 42 days of presentence conduct credit instead of the 21 days of presentence conduct credit awarded at the sentencing hearing.
Citing the pre-January 25, 2010 version of section 4019, the Attorney General argues defendant is not entitled to any conduct credit for the three-day period he spent in custody in 2008 because subdivision (e) of that version of section 4019 required the period of presentence custody, upon which conduct credit would be calculated, to consist of six or more days. The pre-January 25, 2010 version of section 4019, subdivision (e) provided: "No deduction may be made under this section unless the person is committed for a period of six days or longer." (Stats. 1982, ch. 1234, § 7, p. 4554.) As discussed ante, the January 25, 2010 version of section 4019 should be applied retroactively for purposes of calculating defendant's presentence custody credit. But even retroactively applying the January 2010 version of section 4019, section 4019, subdivision (e), as revised effective January 25, 2010, provided: "No deduction may be made under this section unless the person is committed for a period of four days or longer . . . ." (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendant was in custody for only three days in 2008.
The Attorney General's argument fails, however, because the California Supreme Court made clear in People v. Dieck (2009) 46 Cal.4th 934, 937, 939, that section 4019, subdivision (e) should not be interpreted as requiring a minimum duration of presentence confinement before a criminal defendant might be entitled to presentence conduct credit. The Supreme Court, after analyzing the version of section 4019 in effect before the January 25, 2010 amendment, held section 4019 "does not require that a defendant spend six days in presentence confinement in order to be entitled to receive conduct credit pursuant to section 4019. Rather, the statute entitles a defendant to conduct credit if he or she is sentenced to, or otherwise committed for, a period of at least six days, without regard to the duration of presentence confinement." (People v. Dieck, supra, at p. 937, italics added.) Here, as defendant was sentenced to three years in prison, he was committed for a period greater than that required under either version of section 4019, subdivision (e), and thus was eligible for presentence conduct credits accordingly.
DISPOSITION
The matter is remanded with directions to the trial court to modify the judgment to credit defendant with 43 days of actual time served, plus 42 days of presentence conduct credit, for a total of 85 days of presentence credit, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.