P. v. Duncan


Filed 3/9/11 P. v. Duncan CA1/5







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. ROSCOE DUNCAN, Defendant and Appellant.

A127972 (San Francisco County Super. Ct. No. 211216)

Defendant argues that he was erroneously denied the benefit of 2009 amendments to Penal Code section 4019, which increased the amount of good conduct and work credits a defendant may receive for periods of presentence custody. We agree and order the trial court to modify the abstract of judgment to reflect an increase in presentence custody credits.
I. Background
On December 30, 2009, pursuant to a negotiated disposition, Roscoe Duncan pled guilty to possession of heroin for sale. (Health & Saf. Code, § 11351.) On January 11, 2010, he was sentenced to two years in prison. Pursuant to Penal Code section 4019, he was granted presentence custody credits for 193 days of actual custody and 96 days of conduct credit for a total of 289 days.[1]
II. Discussion
Duncan argues that he was entitled to retroactive application of 2009 amendments to section 4019, which took effect on January 25, 2010. Those amendments increased the amount of presentence custody credits a prisoner can earn for good conduct and satisfactory work performance.[2] We agree that the amendments should be retroactively applied.
Under the version of section 4019 in effect at the time that Duncan was sentenced, a defendant earned two days of credit for every four days of custody unless he failed to perform assigned work or abide by the facility's reasonable rules and regulations. (Former § 4019, subds. (a)(4), (b), (c), (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) The amendments to section 4019 which are at issue, with certain exceptions not applicable here,[3] increase the good conduct credits a defendant can receive for presentence custody. Effective January 25, 2010, section 4019 provided for up to two days of credit for every two days of custody under the same conditions. (Former § 4019, subds. (a)(4), (b)(1), (c)(1), (f), as amended by Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28, § 50.)[4]
Numerous, and conflicting, decisions have been published addressing the retroactive application of the amendments to section 4019. The People have argued here and in other cases that the amendments do not apply retroactively. Several courts have agreed. (See, e.g., People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
In People v. Pelayo (2010) 184 Cal.App.4th 481 (Pelayo), review granted July 21, 2010, S183552, we joined several other courts of appeal in holding that the amendments to section 4019 apply retroactively because punishment is mitigated. (See also People v. Jones (2010) 188 Cal.App.4th 165, 183, review granted Dec. 15, 2010, S187135; People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; 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, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As indicated, our Supreme Court has granted hearing in these cases and will ultimately decide the issue. Pending direction from the Supreme Court, we adopt and incorporate our discussion and reasoning in Pelayo, as set forth hereafter, and again hold that the statute must be given retroactive effect.
A. Retroactivity of Penal Statutes in General
The Penal Code provides that â€