Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR526988.
Siggins, J.
Lance Edward Bowman was convicted by a jury of pandering, attempted pimping, and aiding an act of prostitution. He contends (1) the trial court erroneously allowed the prosecution to amend the information to charge the lesser included offense of attempted pimping after the court granted a defense motion for acquittal on a pimping charge; (2) the jury was erroneously instructed on the offense of pandering, and there was insufficient evidence to support the pandering conviction; (3) the court abused its discretion when it admitted prior acts evidence to prove intent and common plan or scheme; (4) the jury was erroneously instructed on flight as evidence of guilt; and (5) he is entitled to additional conduct credits under Penal Code section 4019. We agree that Bowman is entitled to additional credits, and order his sentence modified to reflect the credits. As modified, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
Bowman was arrested during a prostitution sting operation conducted by Rohnert Park police, when he was found riding in a car that delivered a suspected prostitute to a local hotel. Bowman claimed the woman was a friend who asked for a ride to go shopping, but police recovered a series of text messages from their cell phones that led to charges against him of pandering, pimping, and aiding an act of prostitution.
At the close of the prosecution’s case, Bowman successfully challenged the pimping charge by a motion for acquittal brought under section 1118.1. The prosecution immediately moved to amend the information to substitute an attempted pimping charge in its place. The motion was granted and the jury found Bowman guilty on all three charges. Bowman was sentenced to the four-year midterm for pandering, with an eight-month concurrent term for attempted pimping and credit for time served for aiding an act of prostitution. The court awarded him 115 days of actual custody credit and 57 days of conduct credit. He timely appealed.
DISCUSSION
A. Amendment of the Information to Charge Attempted Pimping
At the close of the prosecution’s case-in-chief, defense counsel moved to dismiss the entire information and argued that there was no evidence that Bowman received any income from acts of prostitution as required to prove pimping. During argument on the motion, the prosecutor indicated he would request jury instructions on attempted pimping as a lesser included offense if the pimping count was dismissed. After several sessions of argument, the court indicated that because there was “no evidence of money changing hands, ” it would “grant the 1118.1 motion as to [the pimping] count only.”
After receiving a clarification that the court was denying the motion for acquittal as to aiding an act of prostitution, the prosecutor immediately moved “to amend to conform to the evidence and conform to proof as to allege Count II as an attempted pimping....” Defense counsel argued there was no evidence Bowman “even intended to receive money or compensation for this transaction, ” but did not challenge the procedural propriety of the amendment. The court concluded the evidence supported attempted pimping, and said it would instruct the jury on that offense.
Section 1118.1 authorizes “a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal.” In determining a motion brought under section 1118.1, “the trial court has discretion to substitute a lesser included offense for the jury’s consideration.” (People v. Powell (2010) 181 Cal.App.4th 304, 311.) Bowman contends that because the trial court did not specifically limit its ruling on the 1118.1 motion when it dismissed the pimping count, it violated his right to be free from double jeopardy when, in its next breath, the court granted the prosecutor’s motion to amend the information to charge attempted pimping.
In People v. Powell, supra, 181 Cal.App.4th 304, the court rejected the argument that Bowman makes here. Powell holds that a trial court does not lack authority to substitute lesser included offenses for the charges dismissed on a section 1118.1 motion when the prosecution promptly seeks to substitute the lesser included offense during the section 1118.1 hearing, even after the court has announced its ruling on the motion. We agree. In these circumstances, the trial court should not be required to announce that the prosecution will have the opportunity to substitute charges when it learns of the court’s ruling. “Overly technical application of the rule that judgment is effective when pronounced disallows the trial court from taking even a single breath between indicating an intent to dismiss and allowing the prosecution to proceed according to the evidence.” (Powell, supra, at p. 313.)
The Powell court also distinguished the cases Bowman relies upon, and so do we. Both People v. Garcia (1985) 166 Cal.App.3d 1056 and People v. McElroy (1989) 208 Cal.App.3d 1415 involved situations where a defendant enjoyed some modicum of repose from prosecution before charges were reinstated. Here, as in Powell, “defendant’s thin dissection of the trial court’s comments in response to his motion for acquittal ignores the unbroken nature of the proceeding within which the court ordered the dismissal[] and stated its intent to instruct on the lesser included offense[].... [¶]... No recess or consideration of matters other than the motion for acquittal allowed defendant to conclude that he was free from prosecution on the [pimping count].” (People v. Powell, supra, 181 Cal.App.4th at p. 313.) Bowman attempts to distinguish Powell on the ground that the prosecutor in Powell had “discussed and submitted lesser-included jury instructions, ” before the court ruled on the section 1118.1 motion, but the record here shows the prosecutor stated his intention to request jury instructions on attempted pimping during argument on the section 1118.1 motion.
B. Pandering
Bowman challenges his conviction for pandering on two grounds. He says the court’s instruction to the jury was overbroad, and the evidence was insufficient to support his conviction. Before we address Bowman’s legal claims, we will discuss the facts supporting the charge of pandering.
1. Factual Background
Dana Rugaard, a Rohnert Park police officer, called a phone number listed in an erotic services ad on the craigslist.org website. A woman who identified herself as “Alexis” answered and said her rate was $300 for a “full service” hour. Officer Rugaard testified “full service” meant oral sex and vaginal intercourse. In answer to the officer’s questions, Alexis said she was open to other forms of sex, as long as he was “gentle, ” and that she would supply condoms.
The officer told Alexis he was staying at the Hampton Inn in Rohnert Park under the name “Smith, ” and she agreed to meet him there. A few minutes later, she called back to obtain directions to the hotel, and Rugaard told her he was staying in room 211. Shortly thereafter, the hotel manager received a call, and, as he had arranged with Rugaard, confirmed that “Dana Smith” was a registered guest.
Shortly after noon, Rugaard saw a woman get out of the back seat of a black Lexus parked in front of the Hampton Inn. She walked through the lobby while talking on a cell phone and got into an elevator. Rugaard followed her, and confirmed she was Alexis as she knocked on the door of room 211. When Rugaard asked her how she got to the hotel, she told him a girlfriend gave her a ride. Rugaard then grabbed her arm, identified himself as a police officer, and told Alexis she was under arrest. As he did, she tried to pull away and yelled, “They’re here. They’re here, ” while holding her cell phone at her side.
Police handcuffed Alexis and took her to the lobby. She was crying and yelled, “I didn’t do anything. This isn’t prostitution.” She made no statements that would identify her pimp. Police seized her cell phone, which then received a text message from someone named “Lance.” Police immediately sent back a message saying, “Come get me.” Lance texted back, “walk across da street.” When police did not respond to Lance’s directive, he texted, “You better call me.”
Bowman was arrested in a nearby parking lot as he was getting out of the front passenger seat of a black Lexus. He and the driver were apprehended by surveillance officers who pulled in behind their car and detained them at gunpoint. A piece of paper in the front passenger side of the car contained handwritten directions to the Hampton Inn, followed by notations listing the number “211” and “$300.” Bowman waived his rights and spoke to the officers. He told them he was confused about what was happening and he was just along for the ride. He later gave police a handwritten statement that claimed he and the driver gave a ride to a friend at her request. They dropped her off to go shopping and she was to call them when she was finished.
Three cell phones were found in the car, and Bowman identified one of them as his. Earlier that day, a series of text messages were exchanged between Alexis’s and Bowman’s phones. Around 1:00 a.m., Alexis texted Bowman, “R U 2 fucked up 2 read my texts? Get this poppin wit malcom so I can go.” A few minutes later, Alexis again texted Bowman, “U tryna to get some bread or wat?” At 2:08 a.m., Alexis texted Bowman, “it’s almost 0230.” Bowman texted back, “what you wanna do mami?” Officer Rugaard testified he understood “mami” was “a slang term meaning either sweetheart or beautiful.” Alexis responded, “bluhd no one is calling & I got work 2 maro.” A few minutes later, Bowman texted back: “U better know u fuckin wit a real nigga so u better b down for me like I am for u and shit will get better for us trust me.” A few minutes later, Bowman texted Alexis: “I got the ride to work and I told you to respond to my message.”
There was also an exchange of text messages between Alexis and Bowman half an hour before Alexis arrived at the Hampton Inn. Bowman texted her: “I’m just your friend huh?” and Alexis replied, “wat.” About this time, Bowman texted “Rose”: “why u wait till now im already in frisco u keep pickin da wrong time. I did not know u were gonna come and I had to make a money move so u gotta wait till I get [nothing further].” The call to the hotel manager to confirm the appointment at the Hampton Inn was also made from Bowman’s phone.
2. Jury Instructions on Pandering
Any person who “[p]rocures another person for the purpose of prostitution” is guilty of pandering. (§ 266i, subd. (a)(1).) The jury was instructed on pandering with a modified version of CALCRIM No. 1151 as follows: “The defendant is charged in Count I with pandering. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant procured, and/or persuaded, and/or arranged [Alexis] to be a prostitute; [¶] AND [¶] 2. The defendant intended to influence [Alexis] to be a prostitute.” Bowman argues this instruction impermissibly allowed the jury to convict him on the basis of acts that were not proscribed under section 266 because it incorrectly defines “procure” to include “persuade” or “arrange.” For several reasons, we disagree.
The instruction also defined the terms “prostitute” and “lewd act.”
In formulating its instruction, the trial court relied on the Bench Notes to CALCRIM No. 1151, which state: “The committee included ‘persuade’ and ‘arrange’ as options in element one because the statutory language, ‘procure, ’ may be difficult for jurors to understand. (Judicial Council of Cal., Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 1151, p. 1000.) In arguing the court’s instruction misdescribed essential elements of pandering, Bowman urges a narrow construction of the term “procure.” But the reported cases do not support his view. People v. Cimar (1932) 127 Cal.App. 9, for example, involved a prosecution under a provision of the pandering statute that penalizes procuring a woman to become an inmate of a house of prostitution. Bowman says the Cimar court took a restrictive view of the term: “A procurer is one who exploits the virtue of a female by soliciting trade for a lewd and lascivious woman to gratify the lust of other persons. A procurer is an agent who promotes prostitution.” (Id. at p. 14.) But the court also observed: “If the conduct of the defendant assisted, induced, persuaded or encouraged the female to become an inmate of the house of ill-fame for the purpose of practicing prostitution, the crime of pandering is sufficiently established.” (Id. at p. 12.) There is no reason to depart from the broader meaning of the term and require the prosecution to prove a solicitation in order to prove pandering.
Bowman has not shown that the language used in the jury instruction was inconsistent with the definitions of “procure” used in the majority of cases. (See People v. Montgomery (1941) 47 Cal.App.2d 1, 10-11 [“Appellant’s attempt to distinguish between ‘persuading’ and ‘procuring’ is without substance:]; id. at p. 12 [“the term ‘procure’... necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose”]; accord People v. Schultz (1965) 238 Cal.App.2d 804, 812.) In this context, “persuading” or “arranging” are more reasonably viewed simply as means by which the illegal act of “procuring” may be achieved. Black’s Law Dictionary defines “procurement” to include “[t]he act of persuading or inviting another, esp. a woman or child, to have illicit sexual intercourse.” (8th ed. 2004) p. 1244, col. 2) In its listing for “procure, ” Merriam-Webster’s Dictionary of Synonyms includes “arrange” as an analogous term. ((1984) p. 641, col. 1.)
Bowman also argues that because the Legislature used “persuades” in some parts of section 266i, but did not use it in section 266i, subd. (a)(1), it was wrong for the court to use it in CALCRIM No. 1151. Although section 266i creates a series of separate offenses, it has never been held that the description of each enumerated act of pandering is exclusive and may not be applied to the description of another. (See People v. Montgomery, supra, 47 Cal.App.2d at pp. 27-28.) “[T]he term ‘procure’ as used in the first clause of section 1 of the statute necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose, and it follows that if a defendant is charged with ‘procuring’ a female..., he may be found guilty of such procurement if it is properly established that he either assisted, induced, persuaded or encouraged her... It is the offense of pandering that is condemned by the statute rather than the particular means by which the crime is committed.” (Id. at p. 12.)
Bowman also contends the use of the word “arrange” made the instruction ambiguous because it allowed the jury to convict him of pandering on the legally insufficient theory that he merely assisted Alexis. His argument is not persuasive on its face, nor is it supported by the record. Bowman was charged in separate counts with pandering and with aiding an act of prostitution. The jury was separately instructed as to each of those charges, and the prosecutor addressed them separately in closing argument. The prosecutor pointed out to the jury the different elements of the two offenses, and the evidence that was necessary to prove each charge. The prosecutor argued Bowman was guilty of pandering because he had a business relationship with Alexis that was based on prostitution. But the prosecutor also argued Bowman was guilty of aiding a prostitute by providing a ride to someone he knew was going to engage in prostitution. The prosecutor also addressed Bowman’s claim that he was only a passenger in the car, by observing that “the only phone communications that exist are between [Alexis] and Mr. Bowman, so it is not an issue that he is not the actual physical driver of the car, because he is arranging for this to happen.” We reject Bowman’s suggestion that the prosecutor’s passing use of the word “arrange” in this context would have served to equate the separate offenses of pandering and aiding a prostitute in the minds of the jury, or to conclude Bowman could be convicted of pandering based merely on giving Alexis a ride to the Hampton Inn. The jurors were instructed to consider each charge separately, and we have no reason to conclude they did not.
Bowman’s final challenge to the instruction on pandering is a claim that it permitted the jury to convict him for merely assisting Alexis. (Cf. People v. Mathis (1985) 173 Cal.App.3d 1251, 1254-1255 [instruction erroneous where it defined “ ‘procuring’ to include mere assistance”].) But the instruction did not state that Bowman could be convicted of pandering for mere assistance. Instead, the jury was required to determine whether Bowman “procured, and/or persuaded, and/or arranged [Alexis] to be a prostitute.” While Bowman contends “[t]here was no evidence that [he] in any way arranged the transaction, ” as we discuss in the next portion of this opinion, there was ample evidence from which the jury could infer otherwise. Even assuming for the sake of argument that the pandering instruction was ambiguous, in the context of the instructions and record as a whole, there is no reasonable likelihood the jury interpreted the instruction to allow Bowman to be convicted of pandering based on mere assistance in an act of prostitution. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.)
3. Sufficiency of the Evidence of Pandering
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The standard is the same where the prosecution relies mainly on circumstantial evidence. (Ibid.) “The credibility of the witnesses is an issue for the trier of fact and the judgment of the trial court will not be reversed unless there is no substantial evidence in the record that will support the conclusion of the trier of fact.” (People v. Hashimoto (1976) 54 Cal.App.3d 862, 866.)
Following our review of this record, we have no difficulty concluding that Bowman’s pandering conviction is supported by substantial evidence. While Bowman says that, at most, the evidence shows he simply assisted Alexis by giving her a ride and acting as her lookout, it shows more than that. Bowman’s phone was used by Alexis to confirm her appointment with Officer Rugaard at the Hampton Inn. The note containing directions to the Hampton Inn, Rugaard’s apparent room number “211” and “$300” was found where Bowman was sitting in the black Lexus. The text messages exchanged between Bowman and Alexis suggest they had a business relationship as does Bowman’s text to “Rose” indicate he “had to make a money move” about the time of Alexis’s appointment with Officer Rugaard. In the early morning hours on the day of her arrest, Alexis was chiding Bowman in text messages, asking him if he was “tryna to get some bread” and expressing her frustration that “no one is calling.” Although these messages could have an innocent explanation, they also support the acceptable inference that Bowman and Alexis were looking for customers. These facts, combined with the prior acts evidence we will discuss in the next section of this opinion, amply support the jury’s guilty verdict on the pandering charge.
C. Admission of Prior Acts Evidence
Part of the evidence used to convict Bowman concerned events that took place approximately 16 months before trial when Bowman was arrested by Santa Rosa police in a similar sting operation and admitted he was acting as a pimp. Bowman sought to exclude this evidence of uncharged bad acts. After hearing argument, the trial court admitted evidence of the prior incident in Santa Rosa as relevant to show intent and common plan or scheme, and concluded it was more probative than prejudicial. The court instructed the jury that it could consider evidence of the uncharged offense only for the limited purposes of deciding whether Bowman acted with the intent to influence Alexis to be a prostitute, or knew she was a prostitute when he allegedly acted, or had a plan or scheme to commit the offenses alleged. The jury was admonished not to consider the evidence for any other purpose.
In the Santa Rosa incident, Bowman was seen driving a woman to a hotel where she had arranged to meet with a police officer posing as a potential customer. When contacted by police and told of their investigation, Bowman yelled at them and claimed he was there to get a room with his girlfriend. After he was arrested for a driver’s license violation, Bowman waived his rights, admitted he was the woman’s pimp, and said he was there to protect her during the transaction.
A search of Bowman’s car uncovered a piece of paper containing directions to the hotel and the putative customer’s cell phone number. Also found in Bowman’s car were papers listing other men’s names, room numbers, cell phone numbers and amounts of money. At least one of the listed amounts was $300. Two hotel room keys were also found in the car, and Bowman was carrying approximately $598 in cash. The officer who posed as the potential customer in the Santa Rosa arrest also testified about typical relationships between prostitutes and pimps, and how pimps would generally aid prostitutes by providing protection, financial assistance, and/or transportation.
Bowman pleaded guilty to misdemeanor soliciting prostitution in the charges arising from the Santa Rosa incident. The jury here was informed that in the prior incident Bowman was found guilty of soliciting another person to engage in an act of prostitution, and that it could consider that conviction as part of the evidence supporting the current misdemeanor charge of assisting an act of prostitution. In answer to a juror question during trial, the court said the Santa Rosa case had been resolved, and told the jury “not to speculate as to how the matter was resolved.”
Evidence Code section 1101, subdivision (a) generally prohibits character evidence that is offered to prove a person’s conduct on a specific occasion, but subdivision (b) permits such evidence for certain purposes: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.” “The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) “Evidence of uncharged crimes is inherently prejudicial but may still be admitted if it has substantial probative effect. [Citation.] The matter lies within the discretion of the trial court.” (Id. at p. 380; accord, People v. Kelly (2007) 42 Cal.4th 763, 783.)
Bowman contends permitting the jury to hear evidence of the Santa Rosa incident was an abuse of discretion because it was not probative of his intent, and the court did not analyze in detail its potential prejudicial impact or the factual differences between the Santa Rosa incident and the charged facts. We disagree. The record reflects the court conducted just such an analysis and concluded the two incidents were sufficiently similar and that introduction of the Santa Rosa incident was probative and not unduly prejudicial. Based upon our review of the record, we agree. Yes, Bowman was driving his own car in Santa Rosa, the crime occurred at a different time of day and at a different hotel, but the two events were sufficiently similar for the purposes of proving a common plan or scheme, and intent.
While Bowman also contends the prior acts evidence was inadmissible because it was cumulative, his argument is inconsistent with the emphasis in his opening brief on the trial court’s observation during sentencing that the current case “would not have necessarily been proven beyond a reasonable doubt, were it not for the previous matter....” Bowman’s intent was a vigorously disputed issue in the trial. He told police that he simply gave Alexis a ride to go shopping at her request, and he argued at trial that the evidence did not prove that he knew she was a prostitute or that he procured her, acted as her pimp, or aided her in an act of prostitution. Bowman has not shown the court abused its discretion when it found the evidence of the Santa Rosa incident admissible to show his intent and a common scheme or plan. (See People v. Ewoldt (1994) 7 Cal.4th 380, 402-405; accord, People v. Kelly, supra, 42 Cal.4th at pp. 782-785.)
D. Jury Instruction on Flight as Evidence of Guilt
Over Bowman’s objection, the court instructed the jury on his flight from the scene with CALCRIM No. 372: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” (See § 1127c.) “ ‘ “An instruction on flight is properly given if the jury could reasonably infer that the defendant’s flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 522.)
Bowman argues this instruction was unwarranted because there was no evidence he left the scene of the crime to avoid detection, he did not know Alexis was arrested, and he did not control the car because he was only a passenger. His argument ignores the evidence that when she was apprehended by police Alexis shouted a warning while holding her cell phone (with which she had previously communicated with Bowman) in her hand by her side, and that the black Lexus apparently left the hotel parking lot thereafter. The resulting inference of flight was not necessarily negated by the surveillance officer’s testimony that when he was told to look out for the car, he was told that Bowman did not know Alexis had been arrested. In such a case, the officer explained, police would be more cautious in approaching a suspect to affect an arrest. As far as the officer knew, no one had spoken to Bowman about Alexis’s arrest or the presence of the police. Moreover, even assuming that there was insufficient evidence of the exact time the black Lexus left the Hampton Inn, in light of the other evidence of Bowman’s guilt, any error in giving the flight instruction was harmless.
E. Conduct Credits Under Section 4019
The court awarded Bowman credits of 115 actual days in custody, and 57 days of conduct credit, for a total of 172 days of presentence credits. Bowman contends an amendment to section 4019 that became effective shortly after his sentencing increased the number of pretrial conduct credits available to eligible defendants, and should be applied to reduce his sentence. The issue is presently pending before our Supreme Court. (People v. Brown, review granted June 9, 2010, S181963; see also People v. Rodriguez, review granted June 9, 2010, S181808; People v. Landon, review granted June 23, 2010, S182808; People v. House, review granted June 23, 2010, S182813; People v. Otubuah, review granted July 21, 2010, S184314; People v. Pelayo, review granted July 21, 2010, S183552); People v. Hopkins, review granted July 28, 2010, S183724; People v. Norton, review granted August 11, 2010, S183260); People v. Weber, review granted August 18, 2010, S184873.)
The relevant changes to section 4019 were effective January 25, 2010. (§ 4019, as amended by Stats. 2009-2010, ch. 28, § 50 (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.).) Although Bowman was sentenced before the changes took effect, his sentence is not yet final for purposes of determining whether the amended statute should apply to his case. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Our review of this legal issue is de novo. (In re Chavez (2004) 114 Cal.App.4th 989, 994.)
Section 4019 was again amended effective September 28, 2010. However, those amendments apply only to crimes committed on or after the revised statute’s effective date. (§ 4019, subd. (g).)
At the time of Bowman’s November 2009 sentencing, section 4019 provided for two days of conduct credit for every six-day period in custody. (Former § 4019, subds. (b) & (c), (f).) The effect of the amendments to section 4019 (effective January 25, 2010) allowed eligible defendants to earn two days of conduct credit for every four days of actual custody. (Former § 4019, subds. (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939.) Moreover, eligible defendants could ultimately earn two days of credit for every two days actually served: “It is the intent of the Legislature that if 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....” (Former § 4019, subd. (f).)
We will apply section 4019 as effective January 25, 2010, in this case. Although penal statutes are generally presumed to operate prospectively unless the Legislature has specified, or at least clearly implied, retroactive application (§ 3; People v. Alford (2007) 42 Cal.4th 749, 753), in In re Estrada (1965) 63 Cal.2d 740 our Supreme Court delineated an exception to this general rule for statutory amendments that lessen punishment. The Estrada rule is based on a consideration that the California Supreme Court has described as “of paramount importance: ‘When the Legislature amends a statute so as to lessen the punishment, 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.’ ” (People v. Nasalga (1996) 12 Cal.4th 784, 791-792.) Thus, “Estrada stands for the rule that when the Legislature amends a statute for the purpose of lessening the punishment, in the absence of a clear legislative intent to the contrary, a criminal defendant should be accorded the benefit of a mitigation of punishment adopted before his criminal conviction became final.” (In re Chavez, supra, 114 Cal.App.4th at p. 999; see also People v. Rossi (1976) 18 Cal.3d 295, 299-300.)
Section 4019, as amended by Senate Bill No. 18, contains neither a savings clause nor an explicit indication of legislative intent regarding retroactivity, but it lessens punishment by increasing the number of credits eligible prisoners can earn for good behavior. (See People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [holding amendment that authorizes conduct credit applies retroactively]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment authorizing actual custody credits applies retroactively].) Pursuant to Estrada, therefore, the amendment effected in Senate Bill No. 18 applies retroactively to all judgments not yet final when it took effect.
Here, the trial court awarded Bowman 115 days of presentence custody credit and 57 days of presentence conduct credit, for a total of 172 days of presentence credit. Under the amended version of section 4019, which we hold applies retroactively, Bowman states he is entitled to an additional 58 days of conduct credit, for a total of 230 days of presentence credit. While the Attorney General does not challenge Bowman’s calculation of the number of additional days of credit under the amended statute, presentence conduct credit is properly calculated under section 4019, as effective January 25, 2010, by dividing the total number of days spent in custody by two, rounding down if necessary to the nearest whole number, and then multiplying the result by two. (Cf. People v. Philpot (2004) 122 Cal.App.4th 893, 908; People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) Under this formula, Bowman, who spent 115 actual days in custody, was entitled to 114 days of conduct credit, for a total of 229 days of presentence credit.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the 57 additional days of presentence conduct credit authorized by section 4019, as amended by Senate Bill No. 18, and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: McGuiness, P.J., Jenkins, J.