Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101210A.
HULL, J.
Defendant Albert Allen Felix was charged with possessing methamphetamine, a felony, and violating a protective order, a misdemeanor. In August 2006 he pleaded guilty to the felony and no contest to the misdemeanor in exchange for a deferred entry of judgment on the felony. The trial court suspended imposition of sentence on the misdemeanor and granted informal probation.
In March 2007, defendant admitted that he had violated the terms of his probation and the terms of the order deferring entry of judgment. The court rescinded its deferral order, suspended imposition of sentence on the felony, and placed defendant on formal probation for the felony and, apparently, the misdemeanor. It imposed a $200 restitution fine and a stayed parallel probation-revocation fine, and a $135 lab fee. The court did not recite the statutory authorization for the latter, or explain how it arrived at that figure.
In March 2008, defendant again admitted that he had violated his probation. The trial court imposed a prison sentence for the felony but suspended its execution, and reinstated defendant on probation.
In May 2009, the trial court again found defendant in violation of the terms of his probation. It ordered execution of sentence and determined that defendant was entitled to 134 days’ conduct credit for 268 days’ presentence custody. It did not make any mention of a restitution fine in its oral rendition of judgment, but both the minute order and abstract of judgment include a $200 restitution fine. The trial court orally imposed and stayed the $200 parole-revocation fine, and a “$135 lab fee, ” again without any elaboration on the manner in which it arrived at that figure. The minute order omits any statutory basis for the latter, or any calculation of penalty assessments. As for the abstract of judgment, it includes an express reference only to a $50 lab fee “per HS 11372.5(a), ” without itemizing any penalty assessments. The trial court placed defendant on informal probation for the misdemeanor.
Defendant contends the January 2010 amendments to Penal Code section 4019 (undesignated statutory section references that follow are to this code) apply retroactively to his pending appeal, entitling him to additional presentence custody credits. Our miscellaneous order No. 2010-002, in which we deemed this issue to be included in all pending appeals without further briefing, was filed March 16, 2010, three weeks before his opening brief. He also cites People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers), which we assume is for the purpose of arguing that the trial court erred in failing to direct the abstract of judgment to reflect that the $200 restitution fine was as “previously imposed.” Finally, he argues the trial court erred under People v. High (2004) 119 Cal.App.4th 1192 (High) in failing to enumerate the penalty assessments along with their statutory bases on the lab fine in the abstract of judgment. We affirm the judgment as modified.
In light of this appeal’s limited focus, the circumstances underlying defendant’s original conviction and his numerous violations of probation are irrelevant. We therefore omit any statement of facts, beyond noting that the original offense involved his presence in a home subject to a protective order excluding him; and upon his arrest, police found methamphetamine on his person.
Discussion
I
Custody Credits
Defendant says in his brief that he has already been released from prison, but asserts that the issue of additional conduct credits is not moot because additional credits can be used to reduce his period of parole. While the fact of his release is not properly before us, nor does the People’s response on the section 4019 issue address this particular assertion, defendant is correct that custody credits may have an effect on his period of parole. (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.)
The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to section 4019 are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963) [amendments are retroactive]; contra, People v. Rodriguez (2010) 183 Cal.App.4th 1 (review granted June 9, 2010, S181808).) A majority of the other published cases on the issue (none of which are yet final) concur that the section 4019 amendments are retroactive. (People v. Keating (2010) 185 Cal.App.4th 364 (review granted Sept. 22, 2010, S184354); 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. Landon (2010) 183 Cal.App.4th 1096 (review granted June 23, 2010, S182808); People v. House (2010) 183 Cal.App.4th 1049 (review granted June 23, 2010, S182183); contra, People v. Hopkins (2010) 184 Cal.App.4th 615 (review granted July 28, 2010, S181963); People v. Otubuah (2010) 184 Cal.App.4th 422 (review granted July 21, 2010, S184314.)
Pending a determinative resolution of the issue, we adhere to the conclusion that the amendments apply to all appeals pending at the time of their enactment. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendments that lessened punishment for a crime apply to acts committed before passage, provided judgment is not final]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both of which apply Estrada to amendments involving custody credits].)
The complaint and the probation report indicate that this is defendant’s first felony conviction, which is neither a “serious” nor “violent felony.” (§ 667.5, subd. (c); § 1192.7, subd. (c).) Nor does it appear that defendant is subject to registration as a sex offender. (§ 290 et seq.) As a result, defendant is not in the class of felons excepted from the additional accrual of custody credit. (§ 4019, subds. (b)(2) & (c)(2); § 2933.1.) With 268 days’ actual custody, he is now entitled to 268 days’ presentence conduct credits rather than 134 days. (§ 4019, subds. (b)(1), (c)(1) & (f).) We will modify the judgment and direct the trial court to amend the abstract of judgment accordingly.
II
The Fines and Fees
In Chambers, we held that a restitution fine imposed in connection with the grant of probation survives the revocation of probation, and therefore the trial court does not have any authority to impose a different restitution fine in connection with the revocation. (Chambers, supra, 65 Cal.App.4th at pp. 822-823.) In People v. Cropsey (2010) 184 Cal.App.4th 961, we noted that an abstract of judgment should reflect that the trial court had previously imposed the restitution fine. (Id. at p. 966.) A defendant may raise this issue initially on appeal. (Id. at p. 965, fn. 3.) The People concede the abstract of judgment in the present case must be amended to reflect expressly that the restitution fine was previously imposed. We accept the People’s concession and will therefore direct the amendment.
In High, we recognized that “a detailed recitation of all the fees, fines, and penalties on the record may be tedious, ” but “California law does not authorize shortcuts;” therefore an abstract of judgment must include a list of each fine, fee, and penalty with its statutory authorization. (High, supra, 119 Cal.App.4th at pp. 1200, 1201.) We are authorized to order correction of such a shortcoming even in the absence of an objection in the trial court. (Id. at p. 1200.) We suppose that the $135 figure for the lab fee appearing elsewhere in the record is an aggregate of the $50 lab fee that the abstract of judgment identifies and the “assessments, a surcharge, and penalties” that might amount to as much as an additional $26 (at least as of July 2009) for every $10 due on an underlying fine or fee. (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.) The People concede that the abstract in the present case must be corrected to make this express calculation with citations to the statutory basis for each increment. We accept the People’s concession and will thus direct the trial court to make this amendment.
Disposition
The judgment is modified to reflect an additional 134 days’ presentence custody credit. As so modified, it is affirmed. The trial court shall prepare an amended abstract of judgment reflecting this modification, as well as including an express statement that the restitution fine is “as previously imposed, ” and a recitation of any assessments, surcharge, or penalties with the statutory basis for each item. The court shall then forward the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, Acting P. J., RAYE, J.
Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.