Filed 11/19/14 P. v. Freeman CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                         H039179
                                                                   (Santa Cruz County
         Plaintiff and Respondent,                                  Super. Ct. No. F17295)

         v.

JAY PAUL FREEMAN,

         Defendant and Appellant.


         In this appeal, Jay Paul Freeman (appellant) seeks correction of his presentence
custody credits. For reasons that follow, we agree that appellant is entitled to more
custody credits than he was awarded.
                                         Facts and Proceedings Below
         By way of an information filed on March 25, 2009, appellant was charged with
two counts of obtaining money, labor or property by false pretenses (Pen. Code, § 532,
subd. (a), counts one and two),1 two counts of theft from an elder or dependent adult
(§ 368, subd. (d), counts three and four), one count of selling unregistered securities
(Corp. Code, §§ 25110, 25540, subd. (a), count five), four counts of making false
statements or omissions (id., §§ 25401, 25540, subd. (b), counts six-nine), and one count
of sale of a security by willful and fraudulent use of a device, scheme, or artifice to
defraud (id., § 25541, count 10). The information contained the following allegations: as
to counts six, seven, and nine, the value of the property in question exceeded $65,000


1
         All unspecified section references are to the Penal Code.
(§ 12022.6, subd. (a)(1)), and as to counts three, five and 10, the value of the property in
question exceeded $200,000 (§ 12022.6, subd. (b)). The information contained a
white-collar-crime enhancement allegation (§ 186.11) and an allegation that appellant
committed theft of over $100,000 within the meaning of section 1203.045. All crimes
were alleged to have been committed before 2009.
       Subsequently, counts three and four were dismissed pursuant to section 995.
Thereafter, pursuant to a plea agreement, appellant pleaded no contest to counts six
through nine and the remaining counts were to be dismissed. On March 7, 2011,
appellant failed to appear for sentencing and a bench warrant issued. Ultimately,
appellant appeared in court and was remanded to the custody of the Santa Cruz County
Sheriff. On November 30, 2012, the court sentenced appellant to a total term of eight
years. The court awarded appellant 593 actual days of custody credit and 296 days of
conduct credits.
       Here, it is important to note that appellant does not quibble with the actual days of
credit he was awarded—593 days. Rather, he contends that the trial court erred in
calculating his presentence conduct credits.
       Given that the statute under which a defendant is awarded conduct credits has
changed many times over the years since appellant committed his crimes, we set forth in
detail those changes.
Section 4019 Credits
       A criminal defendant is entitled to accrue both actual presentence custody credits
under section 2900.5 and conduct credits under section 4019 for the period of
incarceration prior to sentencing. Conduct credits may be earned under section 4019 by
performing additional labor and by an inmate’s good behavior. (§ 4019, subd. (b) & (c).)
       In both instances, section 4019 credits are collectively referred to as conduct
credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with
awarding these credits at sentencing. (§ 2900.5, subd. (d).)
                                               2
       Before January 25, 2010, conduct credits under section 4019 could be accrued at
the rate of two days for every four days of actual time served in presentence custody.
(Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) Effective January 25,
2010, the Legislature amended section 4019 in an extraordinary session to address the
state’s ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18 amended
section 4019 such that defendants could accrue custody credits at the rate of two days for
every two days actually served, twice the rate as before except for those defendants
required to register as a sex offender, those committed for a serious felony (as defined in
§ 1192.7), or those who had a prior conviction for a violent or serious felony.
(Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c), & (f)]
(hereafter the January 25, 2010 amendment).)
       Effective September 28, 2010, section 4019 was amended again to restore the
presentence conduct credit calculation that had been in effect prior to the January 25,
2010 amendment. By its express terms, the newly created section 4019, subdivision (g),
declared the September 28, 2010 amendments applicable only to inmates confined for a
crime committed on or after that date. (Stats. 2010, ch. 426, § 2 (hereafter the September
28, 2010 amendment).)
       Thereafter, the Legislature again amended section 4019, reinstituting
“one-for-one” conduct credits and making this change applicable to crimes committed on
or after October 1, 2011, the operative date of the amendments. (§ 4019, subds. (b), (c),
& (h) (hereafter the October 1, 2011 amendment).)2 Currently, section 4019,
subdivision (h), states: “The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners who are confined to a

2
       Although commonly referred to as “one-for-one” credits, this is not technically
correct. The current version of section 4019 allows eligible defendants to earn two days
of conduct credit for every two days of actual local custody. A defendant who serves an
odd number of days in presentence custody would earn an equal amount of conduct credit
less one day.
                                             3
county jail, city jail, industrial farm, or road camp for a crime committed on or after
October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.”
          With this background in mind we set forth the periods of time when appellant was
in custody, which are taken from an addendum to the probation officer’s presentence
report.
365 days         02/27/2009-02/26/2010       Presentence                        SCCJ
    52 days      02/26/2012-04/17/2012       Fresh Misdemeanor Charges          Colorado
224 days         04/19/2012-11/27/2012       Presentence/BW return              SCCJ
641 days         Actual time in custody.
          At the sentencing hearing held on November 30, 2012, the trial court considered
the first period of local incarceration before appellant posted bail and stated that was 365
actual days. As for the second period of local incarceration, although the court noted that
appellant had arrived from Colorado on April 19, 2012, the court stated that it had been
informed that his transportation began on April 17. Accordingly, the court credited
appellant with 228 actual days of credit up to and including the day of the sentencing
hearing. As to the period of time that appellant was in custody in Colorado, the court
noted that appellant could not receive credit for that time. The court reasoned that those
credits would be applied in the Colorado case.3 The court reasoned the actual days in
custody to be 593; as noted, appellant agrees with this calculation.
          As to presentence conduct credits, the court stated that because appellant’s crimes
occurred before October 1, 2011, appellant should get conduct credits at 50 percent
(i.e., two days for every four days in custody) and awarded him 296 days for a total of
889 days of presentence custody credits.




3
          Appellant does not contend that the court erred in this regard.
                                                4
       Defense counsel expressed his concern that the court’s calculation may not have
been accurate based on all the changes in the law; he requested a new court date to
address the issue after he had conducted some research. The court declined the request
but stated that if counsel thought the court made an error, then he could calendar a court
date to address the issue. The record does not show that an additional court date was
requested and we cannot find a motion challenging the presentence credits in the record.
                                         Discussion
       In general, section 1237.1 provides: “No appeal shall be taken by the defendant
from a judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court.”
       However, appellant is not precluded by section 1237.1 from raising the issue of
credits on appeal even though he did not raise the issue in the trial court and is presenting
only this single issue on appeal. This is because section 1237.1 “does not preclude a
defendant from raising, as the sole issue on an appeal, a claim his or her presentence
custody credits were calculated pursuant to the wrong version of the applicable statute.”
(People v. Delgado (2012) 210 Cal.App.4th 761, 763 (Delgado).)4 That is the nature of
appellant’s claim here.


4
       The Delgado court explained: “In our view, an error in ‘doing the math,’ or . . . an
apparent oversight in an award of credits, constitutes the type of minor sentencing error at
which section 1237.1 was clearly aimed. A determination of which version of a statute
applies—especially when, as here, that determination involves application of
constitutional principles—does not.” (Delgado, supra, 210 Cal.App.4th. at p. 766.)
Furthermore, a trial court’s failure to award the correct amount of presentence custody
credit due to legal error is a jurisdictional defect that renders the sentence an unauthorized
sentence. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.) “A sentence that fails to
award legally mandated custody credit is unauthorized and may be corrected whenever
discovered. [Citation.]” (Ibid.)
                                               5
       Appellant contends that the trial court erred in failing to calculate his good
conduct credits after January 25, 2010, at the correct rate for the time he spent in custody
up to and including the day he was sentenced. Respondent agrees, but only in part.
Respondent concedes that the time appellant spent in custody from January 25, 2010, up
to and including February 26, 2010, should have been calculated under the January 25,
2010, amendment to section 4019. Since this period of custody totaled 33 days,
respondent concedes that appellant should have been awarded 32 days of conduct credits.
We agree.
       In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court
reviewed the application of the January 25, 2010 amendment to section 4019 and
concluded that the amendment applied prospectively only and that prisoners could earn
credits at different rates if their prison terms overlapped the effective dates of section
4019. (Brown, supra, at pp. 322-323.) Accordingly, under the January 25, 2010
amendment appellant is entitled to 32 days of conduct credits— i.e., two days of
presentence credit for every two days of actual custody (33 divided by 2 = 16 multiplied
by 2 = 32).5 Since the court awarded appellant only 16 days for this period of custody, he
is entitled to an extra 16 days of presentence custody credit.
       As to the period of time that he spent in custody from April 17, 2012 to
November 30, 2012, appellant contends that this period of custody must also be
calculated using the January 25, 2010 amendment to section 4019.
       Appellant asserts that since the September 28, 2010 amendment to section 4019
applies to crimes committed after the effective date of the amendment, it cannot be used
to calculate his presentence conduct credits because he committed his crimes before that
date. Appellant states, “[c]learly then, the first two versions [of section 4019] the 1982
statute and the amendment effective January 25, 2010, apply to [his] time in custody.”


5
       There is no entitlement to credit on the one odd day.
                                              6
Appellant does not explain why the period of time he spent in custody in 2012 should be
calculated pursuant to the January 25, 2010 amendment to section 4019.
       Thus, the issue as framed is this: Is appellant entitled to have his presentence
conduct credits calculated under the January 25, 2010 amendment to section 4019 for the
time he spent in custody in 2012? For reasons that follow, we conclude that he is.
       In Brown, supra, 54 Cal.4th 314, the defendant committed his crimes and was
sentenced prior to the January 25, 2010 amendment to section 4019, so he was awarded
presentence conduct credits under the two-for-four formula. (Brown, supra, at p. 318.)
On appeal, the defendant argued that he was entitled to the more favorable two-for-two
formula, on equal protection and other grounds. (Ibid.) The California Supreme Court
rejected these arguments. First, the court found that the Legislature did not intend the
January 25, 2010 amendment to apply retroactively, since the amendment’s effect was to
“increase the existing incentives for good conduct by offering well behaved prisoners the
prospect of even earlier release from custody.” (Id. at p. 322, fn. omitted.) Similarly, the
court found that defendants who served presentence custody before and after the
amendment’s effective date were not similarly situated, pointing out that “the important
correctional purposes of a statute authorizing incentives for good behavior [citation] are
not served by rewarding prisoners who served time before the incentives took effect and
thus could not have modified their behavior in response.” (Id. at pp. 328-329.)
       Of particular relevance to this case, the Brown court made two observations. First,
the court noted that “[t]o apply [the January 25, 2010 amendment to] section 4019
prospectively necessarily means that prisoners whose custody overlapped the statute’s
operative date (Jan. 25, 2010) earned credit at two different rates.” (Brown, supra, 54
Cal.4th at p. 322.) Second, the Brown court held that the January 25, 2010 amendment to
section 4019 did not lessen the penalty for a particular crime, but “addresse[d] future
conduct in a custodial setting by providing increased incentives for good behavior.”
(Brown, supra, at p. 325.)
                                              7
       Despite Brown, respondent contends that the trial court correctly applied the less
favorable pre-January 25, 2010 version of section 4019 to the presentence custody that
appellant served between April 17, 2012 and November 30, 2012.6 In essence,
respondent’s position is that appellant is not entitled to the benefits of the January 25,
2010 amendment to section 4019 because appellant’s crimes were committed several
years earlier.
       Respondent’s argument is foreclosed by Brown. As pointed out above, Brown
directly addressed the situation where a defendant served presentence custody both
before and after January 25, 2010, finding that such defendants will “[earn] credit at two
different rates.” (Brown, supra, 54 Cal.4th at p. 322.) In addition, Brown explains that
the date of the offense is not relevant for purposes of determining whether to apply the
January 25, 2010 amendment to section 4019, since it did not lessen the penalty for
particular crime, but “addresse[d] future conduct in a custodial setting by providing
increased incentives for good behavior.” (Brown, supra, at p. 325.)
       Furthermore, the September 28, 2010 and October 1, 2011 amendments to
sections 4019 did not completely terminate the conduct credit formulas provided by prior
versions of those statutes. In fact, section 4019 expressly contemplates that some
prisoners will have their conduct credits calculated under “the prior law.” (§ 4019,
subd. (h); see People v. Ellis (2012) 207 Cal.App.4th 1546, 1553; People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 52.)
       In sum, since appellant was in local custody for 228 days in 2012, after the
January 25, 2010 amendment to section 4019, his conduct credits for that time period
6
        As noted, the September 28, 2010 version of section 4019 cannot be applied to
appellant’s presentence conduct credits because it applied only to crimes committed after
September 28, 2010. Similarly, although the October 1, 2011 amendment to section 4019
became effective before appellant was in local custody for the second time (in 2012),
appellant was not eligible to earn presentence conduct credits under that version of the
statute because his crimes were committed prior to October 1, 2011. (See § 4019,
subd. (h).)
                                              8
should have been calculated at a two-for-two rate. That is, he is entitled to 228 days of
conduct credits for that period of time. (See Payton v. Superior Court (2011) 202
Cal.App.4th 1187, 1192 [defendant whose crime was committed in 2008 but served time
in May of 2011 should have received two-for-two credits under January 25, 2010 version
of section 4019].)
                                         Disposition
       The judgment is modified to award appellant custody credits as follows:
From February 27, 2009 until January 24, 2010—332 actual days of custody credit plus
166 days of conduct credit for a total of 498 days of credit.
       From January 25, 2010 until February 26, 2010—33 actual days of custody credit
plus 32 days of conduct credit for a total of 65 days of credit.
       From April 17, 2012 until November 20, 2012—228 actual days of custody plus
228 days of conduct credit for a total of 456 days credit.
       The superior court is ordered to amend the abstract of judgment accordingly. As
so modified the judgment is affirmed.




                                              9
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
MÁRQUEZ, J.
