Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR188375, VCR193384.
Sepulveda, J.
Defendant was sentenced to prison after he violated the terms of his probation. He argues that the trial court (1) impermissibly imposed a second restitution fine, and (2) erred by not applying the version of Penal Code section 4019 in effect when he was sentenced to all of the days he served in presentence local custody. We conclude that defendant’s second argument has merit. We therefore remand the matter for a recalculation of defendant’s presentence credits, and otherwise affirm.
All statutory references are to the Penal Code.
I.
Factual and Procedural Background
Defendant was charged by felony complaint in case No. VCR188375 (hereinafter the first case) on February 27, 2007, with second degree commercial burglary (§ 459—count 1) and petty theft with a prior (§ 666—count 2). On March 8, defendant pleaded nolo contendere to the petty theft charge, in exchange for dismissal of the burglary charge. The trial court suspended imposition of sentence, and placed defendant on three years’ probation, subject to the condition that he serve 180 days in jail. The court also imposed a $200 fine pursuant to section 1202.4.
On September 13, 2007, defendant was charged by felony complaint in a separate case, No. VCR193384 (hereinafter the second case), with one count of petty theft with a prior (§ 666). The district attorney requested the following day that probation be revoked in the first case, alleging that defendant’s arrest in the second case was a violation of the terms and conditions of his probation. On September 27, defendant pleaded nolo contendere in the second case, and the trial court suspended imposition of sentence and placed defendant on three years’ probation, under the condition that he spend 365 days in jail (to be served concurrently with time imposed in the first case). The trial court imposed a $200 fine pursuant to section 1202.4. Also on September 27, defendant admitted in the first case that he had violated the terms of probation, and the trial court revoked and reinstated defendant’s probation.
The trial court revoked, reinstated, and modified probation in both cases after defendant on August 21, 2008, admitted that he violated the terms and conditions of probation in both cases.
On May 14, 2010, the trial court revoked defendant’s probation in both cases, after he admitted violating the terms of his probation in both cases. That same day, pursuant to a plea agreement, the trial court sentenced defendant in the second case to two years in prison for the petty theft with a prior conviction, plus a concurrent two-year term for the petty theft conviction in the first case. In sentencing defendant, the trial court stated, “I’ll impose a restitution fine pursuant to [section] 1202.4, an additional $200, suspended, unless his parole is revoked.” Defendant’s abstract of judgment reflects a $200 fine imposed in both cases pursuant to section 1202.4, subdivision (b), as well as a $200 fine imposed in both cases pursuant to section 1202.45.
As for presentence custody credits, the parties disputed whether the trial court should apply the then-current version of section 4019 to all the time defendant had spent in custody. (Former § 4019, subds. (b), (c), (j); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Over defendant’s objection, the trial court awarded defendant presentence credits under the then-current version of the statute only for time he served following the statute’s effective date (January 25, 2010), but applied the previous version of section 4019 for time served before the effective date of the amended statute. The court in the first case awarded defendant 587 days (366 days of actual custody, plus 221 days pursuant to section 4019). In the second case, the trial court awarded 455 days (278 days of actual custody, plus 177 pursuant to section 4019).
As respondent notes, the trial court referred at the sentencing hearing to a credit calculation that had been prepared before the hearing, presumably by the probation department; however, the specific calculation does not appear in the record on appeal. Defendant’s counsel argued that defendant was entitled to 732 days total credit in the first case, and 556 days total credit in the second case, pursuant to the version of section 4019 in effect on the day defendant was sentenced.
Defendant timely appealed.
II.
Discussion
A. No Improper Restitution Fine Ordered.
Defendant first argues that the trial court erred when it “reimpose[d]” a $200 fine in both cases pursuant to section 1202.4. Section 1202.4, subdivision (b), provides that “[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so....” The fine shall be at least $200 and no more than $10,000 if the defendant, such as defendant here, is convicted of a felony. (§ 1202.4, subd. (b).) Subdivision (m) of the statute provides that “[i]n every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation.” The fine is payable to the state’s Restitution Fund, and it is required in all cases in which a conviction is obtained. (People v. Guiffre (2008) 167 Cal.App.4th 430, 433-434 (Guiffre); People v. Chambers (1998) 65 Cal.App.4th 819, 822 (Chambers).) The fine remains in force if probation is later revoked, and the trial court may not impose a second restitution fine under section 1202.4 after the revocation of probation. (Guiffre at p. 434; People v. Arata (2004) 118 Cal.App.4th 195, 201-202; Chambers at p. 823.) Instead, the abstract of judgment shall simply reflect the restitution fine previously imposed. (People v. Cropsey (2010) 184 Cal.App.4th 961, 966 (Cropsey); Guiffre at p. 435.)
Here, the trial court imposed a $200 fine pursuant to section 1202.4, subdivision (b), in both the first and second cases when it placed defendant on probation, and defendant does not dispute that the court was authorized to do so. When the trial court revoked defendant’s probation for the final time and sentenced him to prison, the $200 fines previously imposed in each case pursuant to section 1202.4, subdivision (b), survived the revocation of probation, and the abstract of judgment should have reflected those previously imposed restitution fines. (Cropsey, supra, 184 Cal.App.4th at p. 966; Guiffre, supra, 167 Cal.App.4th at p. 434; Chambers, supra, 65 Cal.App.4th at pp. 822-823.) That is exactly what happened in this case, as defendant’s abstract of judgment correctly reflects $200 fines imposed in each case pursuant to section 1202.4, subdivision (b).
Defendant contends that the trial court in fact imposed improper second restitution fines in each case, an issue which may be raised on appeal even absent objection below, because the imposition of a second fine would be in excess of the trial court’s statutory authority. (Chambers, supra, 65 Cal.App.4th at p. 823.) Where a trial court revokes probation, “there is no need to reimpose an extant restitution fine. Where a restitution fine(s) has been previously imposed, the trial court should simply say, ‘The abstract of judgment should reflect the restitution fine(s) previously imposed.’ ” (Cropsey, supra, 184 Cal.App.4th at p. 966.) Instead, the trial court made the somewhat confusing statement that it “impose[d] a restitution fine pursuant to [section] 1202.4, an additional $200, suspended, unless his parole is revoked.” (Italics added.) (There was no other reference to section 1202.4 at the sentencing hearing.) Defendant would have this court interpret the trial court’s reference to an “additional $200” under section 1202.4 to be the imposition of a second state Restitution Fund fine, which the trial court was not authorized to impose. (Guiffre, supra, 167 Cal.App.4th at p. 434; Chambers, supra, at pp. 822-823.)
A review of the record and the relevant statutes reveals that the trial court either misspoke when it referred to section 1202.4 at the sentencing hearing, or its comments were incorrectly transcribed, as the imposition of a fine to be suspended unless parole revoked is clearly a reference to section 1202.45 , not section 1202.4, subdivision (b). Section 1202.45 provides that a fine shall be imposed in every case in which a sentence includes a period of parole, and that the fine shall be suspended unless a defendant’s parole is revoked, consistent with what the trial court ordered here when it referred (mistakenly) to section 1202.4. (People v. Taylor (2007) 157 Cal.App.4th 433, 439.) Defendant states in his opening brief that he “believe[s]” that the trial court “meant to impose fines under section 1202.45, ” and his appellate counsel has written to the trial court “inviting it to issue an amended abstract.” However, there is nothing to correct in the abstract of judgment, as it currently shows that $200 fines in fact were imposed under section 1202.45 in both the first and second cases.
In sum, the $200 fines imposed in each case pursuant to section 1202.4, subdivision (b) upon defendant’s convictions survived the revocation of defendant’s probation, and his abstract of judgment correctly reflected the previously imposed fines. (Cropsey, supra, 184 Cal.App.4th at pp. 964, 966 [abstract of judgment correctly included fine previously imposed under § 1202.4, subd. (b), even where defendant claimed to have made payments].) Although the trial court’s statements at the sentencing hearing regarding fines imposed (or the transcription thereof) perhaps could have been more clear, the abstract of judgment conforms with the trial court’s statutory obligation to impose fines pursuant to section 1202.45, and also correctly reflects the previously imposed fines pursuant to section 1202.4, subdivision (b). Because defendant identifies no legal error, we decline to strike the state Restitution Fund fine under section 1202.4, subdivision (b).
In fact, defendant received a windfall. A defendant who is granted probation ordinarily will be subject to two restitution fines: the state Restitution Fund fine under section 1202.4, subdivision (b), and a probation revocation restitution fine pursuant to section 1202.44, which is stayed unless probation is revoked. (Guiffre, supra, 167 Cal.App.4th at p. 434.) The probation revocation restitution fine is mandatory, and it must be in the same amount as the fine imposed pursuant to section 1202.4, subdivision (b). (§ 1202.44; Guiffre at p. 434.) However, no such mandatory probation revocation restitution fine was imposed in this case when the trial court originally placed defendant on probation, so no stay on such a fine was lifted when the trial court revoked defendant’s probation, as ordinarily would have been the case.
B. Defendant Entitled to Additional Presentence Credits.
Defendant next argues that he is entitled to additional presentence conduct credits pursuant to the version of section 4019 that was in effect when he was sentenced. We agree.
Although neither side raises this issue, we note that it is likely that defendant already has completed his two-year sentence, as he was sentenced more than a year ago and was awarded more than one year in presentence credits. Neither side argues that the issue is moot, however, likely because of the possible collateral consequences of our decision on the issue. (E.g., People v. Goodson (1990) 226 Cal.App.3d 277, 280, fn. 2 [appeal not moot even though defendant released on parole before decision filed, because favorable decision on custody credits issue would constructively advance prison release date and shorten parole period].)
Before January 25, 2010, a former version of section 4019 (1982 version) provided that a defendant earned two days of conduct credit for every four actual days in local custody. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) The statute was amended, effective January 25, 2010, to provide qualifying defendants with increased conduct credit of two days for every two actual days in local custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) That amended version, which was in effect when defendant was sentenced, provided: “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).) The provisions of former section 4019 apply to those defendants confined in a county jail for time served, including time served “as a condition of probation after suspension of imposition of a sentence or suspension of execution of sentence, in a criminal action or proceeding, ” or, alternatively, for time served “following arrest and prior to the imposition of sentence for a felony conviction.” (Former § 4019, subd. (a)(2), (4).)
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010, amendment. That version is inapplicable here, however, because it applies only to local custody served by defendants for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) Unless otherwise specified, all references to former section 4019 and its amendments refer to the statute as amended effective January 25, 2010, and in effect when defendant was sentenced.
There is a split of authority on whether the amendments to section 4019 are retroactive, and the issue is currently pending before our Supreme Court in several cases. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [amendments retroactive]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [amendments apply prospectively].) We have been persuaded on balance by the arguments favoring retroactive application of the amendments, and would remand the matter on that basis for a recalculation of defendant’s presentence credits, if retroactivity was an issue.
Here, however, we agree with defendant that the retroactivity of the amendments is not strictly at issue. At the time of defendant’s sentencing on May 14, 2010, there was only one version of section 4019 in effect (the amended version of the statute effective January 25, 2010), and the trial court should not have applied two different versions of the statute when it calculated defendant’s presentence credits. There is nothing in the January 25, 2010, amended version of section 4019 that permitted the trial court to apply both the 1982 and amended versions of section 4019 in calculating defendant’s credit. Although defendant committed his criminal acts and was admitted to probation before the amendments to section 4019 became effective, his sentencing did not occur until after the amendments became effective. Because the 1982 version of section 4019 was no longer in effect at the time of defendant’s sentencing, the trial court erred in applying a two-tiered approach in calculating his conduct credit for presentence custody served before January 25. Accordingly, we remand the matter for a recalculation of defendant’s presentence credits.
The Supreme Court has granted review in a case concluding that a defendant sentenced when the amended version of section 4019 was in effect was entitled to application of that version of the statute to time served both before and after its effective date. (People v. Zarate (2011) 192 Cal.App.4th 939, 943-944, review granted May 18, 2011, S191676 [defendant sentenced Feb. 18, 2010].) We agree with defendant that Zarate’s reasoning applies in this case.
III.
Disposition
The matter is remanded to the trial court with directions to recalculate defendant’s custody credits in a manner consistent with this opinion. The trial court shall prepare an amended abstract of judgment and forward a copy to California’s Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Reardon, Acting P.J., Rivera, J.