THE PEOPLE v. ESTEBAN JUAN MENDEZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Esteban Juan Mendez appeals the judgment entered following his conviction based on his no contest plea to willful failure to register as a sex offender.  (Pen.Code, § 290, subd. (b).)

Mendez challenges the number of days of presentence custody credits the trial court awarded him.   He also challenges the assessments the trial court imposed pursuant to Government Code section 70373 and Government Code section 76104.7.

We conclude each of Mendez's contentions is meritorious and order the abstract of judgment corrected accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2008, Mendez reported to register as a sex offender and was arrested for previous failures to register.   Mendez was released from custody on May 20, 2008, and on December 3, 2008, pursuant to a negotiated disposition, entered a no contest plea to one count of violating Penal Code section 290, subdivision (b).

On March 19, 2009, the trial court sentenced Mendez to two years in state prison and awarded Mendez seven days of actual custody credit and two days of local conduct credit for a total of nine days of presentence custody credits.   The trial court also imposed, inter alia, “a $20 penalty assessment, a $20 DNA assessment, and a $30 conviction fee․”  The minute order and the abstract of judgment reflect these additional sanctions as a $20 court security assessment pursuant to Penal Code section 1465.8, subdivision (a)(1), a $20 DNA penalty assessment pursuant to Government Code section 76104.7, and a $30 criminal conviction assessment pursuant to Government Code section 70373.

CONTENTIONS

Mendez contends he is entitled to additional presentence custody credits;  the $30 criminal conviction assessment must be stricken because the amended version of Government Code section 70373 went into effect after the date of his conviction;  and, the $20 DNA penalty assessment pursuant to Government Code section 76104.7 must be stricken because it is unauthorized.

DISCUSSION

1.  The trial court erroneously calculated Mendez's presentence custody credits.

a. Mendez is entitled to one additional day of actual custody credit.

Mendez contends he is entitled to one additional day of actual custody credit.   Mendez's contention is well taken.

Under Penal Code section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing.  (Pen.Code, § 2900.5, subd. (a).)  The sentencing court must grant a defendant actual time credits both for the day of arrest and the day of sentencing.  (People v. Browning (1991) 233 Cal.App.3d 1410, 1412;  People v. Smith (1989) 211 Cal.App.3d. 523, 525-527.)   Here, Mendez was arrested on May 13, 2008 and was released from local custody on May 20, 2008.   Based thereon, Mendez was entitled to eight days of actual custody credit.   However, the court only awarded him seven days.

We shall order the abstract of judgment corrected to reflect eight days of actual custody.

b. Mendez is entitled to four additional days of conduct credit.

Mendez contends he is entitled to four additional days of conduct credit.   Numerous cases have addressed the proper method of calculating presentence custody credits under former Penal Code section 4019.¹  These cases uniformly have concluded the trial court is required “to divide by four the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.”  (People v. Culp (2002) 100 Cal.App.4th 1278, 1283, citing People v. Smith, supra, 211 Cal.App.3d at p. 527;  People v. Bra vo (1990) 219 Cal.App.3d 729, 731.)   Here, Mendez served eight days of actual custody.   Based thereon, he is entitled to four days of conduct credit [ (8 divided by 4) times 2 = 4].

Therefore, Mendez should have received 12 days of presentence custody credits (8 days of actual custody credit plus 4 days of conduct credit).   We shall order the abstract of judgment corrected accordingly.

2. The trial court improperly imposed a $30 criminal conviction assessment pursuant to Government Code section 70373.

Mendez was charged with failure to register as a sex offender in May of 2008.   He was convicted by no contest plea on December 3, 2008 and was sentenced on March 19, 2009.   The amended version of Government Code section 70373, subdivision (b), became effective on January 1, 2009.   Based on this chronology, Mendez contends the $30 criminal conviction assessment imposed under Government Code section 70373 must be stricken because it was enacted after the date of his conviction.

Mendez's claim is persuasive.

“A new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.  [Citation.]”  (People v. Hayes (1989) 49 Cal.3d 1260, 1274.)   However, “a statute may apply retroactively if there is ‘ “a clear and compelling implication” ‘ that the Legislature intended such a result.  [Citation.]”  (People v. Alford (2007) 42 Cal.4th 749, 753-754.)   There is no “clear and compelling implication” of retroactive application of Government Code section 70373.   The statute only applies to cases in which the conviction occurs on or after its effective date.  (People v. Davis (2010) 185 Cal.App.4th 998, 1000-1001.)

Because Mendez was convicted before the effective date of January 1, 2009, the $30 criminal conviction assessment must be stricken.   We shall order the abstract of judgment corrected accordingly.

3. The DNA penalty assessment pursuant to Government Code section 76104.7 must be stricken.

Mendez contends the $20 DNA penalty assessment pursuant to Government Code section 76104.7 was unauthorized.   The People concede this point and it appears their concession is well taken.

The DNA state-only penalty assessment under Government Code section 76104.7, subdivision (a), can only be imposed in addition to an assessment under Government Code section 76104.6.  Government Code section 76104.7, subdivision (a), states:  “Except as otherwise provided in this section, in addition to the penalty levied pursuant to Section 76104.6, there shall be levied an additional state-only penalty of three dollars ($3) for every ten dollars ($10), ․ in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses․”

Thus, Government Code section 76104.7 provides for assessments to be levied upon other fines, penalties, or forfeitures.   Here, the trial court did not impose a DNA penalty assessment pursuant to Government Code section 76104.6, subdivision (a)(1).   Therefore, an assessment under 76104.7 cannot be imposed.   Moreover, there was no fine, penalty, or forfeiture imposed which could have supported a DNA penalty assessment under either Government Code section 76104.6 or 76104.7.²  Therefore, the $20 DNA penalty assessment imposed under Government Code section 76104.7 must be stricken.   We shall order the abstract of judgment corrected accordingly.

DISPOSITION

The judgment is ordered modified to reflect 12 days of presentence custody credits (8 days of actual custody plus 4 days of conduct credit).   The judgment is also ordered modified to strike the $30 criminal conviction assessment under Government Code section 70373 and the $20 DNA penalty assessment under Government Code section 76104.7.   The clerk of the superior court is directed to prepare and forward an amended abstract of judgment reflecting these modifications to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KITCHING, J

FOOTNOTES

FN1. Because Mendez was convicted before the effective date of the amended version of Penal Code section 4019, Mendez's situation falls under the former computing scheme of Penal Code section 4019.  (See Pen.Code, § 4019, subds. (b)(2), (c)(2) & (f).).  FN1. Because Mendez was convicted before the effective date of the amended version of Penal Code section 4019, Mendez's situation falls under the former computing scheme of Penal Code section 4019.  (See Pen.Code, § 4019, subds. (b)(2), (c)(2) & (f).)

FN2. Although the trial court imposed a restitution fine in the amount of $400 pursuant to Penal Code section 1202.4, subdivision (b), Government Code section 76104.7 expressly excludes restitution fines as a basis for imposition of the DNA penalty assessment.  (Gov.Code, § 76104.7, subd. (c)(1).)   A similar result obtains with respect to the $20 court security assessment imposed pursuant to Penal Code section 1465.8.  (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.).  FN2. Although the trial court imposed a restitution fine in the amount of $400 pursuant to Penal Code section 1202.4, subdivision (b), Government Code section 76104.7 expressly excludes restitution fines as a basis for imposition of the DNA penalty assessment.  (Gov.Code, § 76104.7, subd. (c)(1).)   A similar result obtains with respect to the $20 court security assessment imposed pursuant to Penal Code section 1465.8.  (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.)

CROSKEY, J.