THE PEOPLE v. TAMMIE SARAZIN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

After the trial court advised her of her rights, defendant and appellant Tammie Sarazin pled guilty to the charge of transporting methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), and she admitted the truth of the allegations that she had four prior Health and Safety Code section 11370.2, subdivision (c) felony convictions.   She “pled open” to the court, leaving to the court's discretion what sentence to impose if the court determined defendant was not eligible for a Proposition 36 drug treatment program.   After an evidentiary hearing, the court determined defendant was not eligible for Proposition 36, and defendant does not challenge that finding on appeal.

The court sentenced defendant to five years in state prison, composed of the low term of two years for the offense plus three years for one of the prior drug convictions, the remainder being stayed.   Defendant's only challenges to the sentence on appeal are that the court should have struck rather than stayed the sentencing enhancements and that she is entitled to additional local custody credits pursuant to Penal Code section 4019.

Respondent concedes the court lacked authority to stay the three sentencing enhancements and asks us to remand to the trial court to either strike or impose the three additional sentencing enhancements.   From the record, however, it is clear the trial court exercised its sentencing discretion and decided defendant should be sentenced to prison for five years, but not more.   Therefore, we will not remand for sentencing but will order the three Health and Safety Code section 11370.2, subdivision (c) enhancements struck instead of stayed.   We conclude the amendments to Penal Code section 4019 are retroactive, defendant is entitled to 14 additional days of presentence local conduct credits, and direct the trial court to modify the abstract of judgment accordingly.

DISCUSSION

Defendant pled open to the court, the Honorable Thomas C. Falls, Judge Presiding, on May 15, 2009.   Before taking defendant's guilty plea, counsel and the trial court discussed the consequences of the plea at length with defendant on the record.   The court stated for the record that the reason defendant wished to plead open to the court was that defendant and her counsel believed defendant was eligible and suitable for Proposition 36 drug treatment, but the People contended the amount of narcotics in defendant's possession and other circumstances demonstrated defendant possessed the narcotics for sale, and she was therefore ineligible for Proposition 36.   The court explained that if defendant pled guilty, the court would set her case for a hearing before the judge assigned to determine Proposition 36 eligibility but that defendant should not assume she would be afforded Proposition 36 treatment.   The court further explained that if defendant were not eligible for Proposition 36, she should not expect to receive probation but instead a prison sentence, and the court stated the People contended that defendant could be sentenced to prison for 17 years.

Defendant remained out of custody on bail after submitting her guilty plea.   The Proposition 36 eligibility hearing was held five months later, on October 20, 2009, before the Honorable David C. Brougham.   After hearing considerable evidence and the arguments of counsel, the court determined defendant was ineligible for Proposition 36.   Defendant was remanded into custody, and the court ordered a new probation and sentencing report.   Sentencing was continued to November 13, 2009.

Before sentencing, counsel asked the court to reconsider its decision that defendant was ineligible for Proposition 36, and the record indicates the court discussed the matter with counsel both on and off the record.   The court ultimately denied the motion for reconsideration, then turned to sentencing.   The court stated it had read and considered the probation report and each and every document and letter submitted by the defense in support of leniency.   The court noted that the courtroom was full of people showing their support and loyalty to defendant.

The court then stated it had told counsel its tentative sentence was five years, observing that defendant's exposure was 16 years, and the People's early disposition offer was five years.   The court explained although the case was not at an early stage, the court found it appropriate to sentence defendant in accordance with the People's early disposition offer.   The court explained the low term of two years with imposition of only one sentence enhancement was appropriate because of the long gap in time between her prior drug convictions and the present offense.   The People submitted on the court's tentative sentence.   After imposing sentence, at defendant's request, the court recommended that the Department of Corrections place defendant on fire camp duty at the Malibu facility.

Neither defendant nor respondent asserts error in the imposition of a five-year prison sentence.   Defendant and respondent agree the court erred only by staying rather than striking three of the sentence enhancements pursuant to Penal Code section 1385, subdivision (a).   When it is clear the trial court exercised its sentencing discretion and decided to sentence defendant to prison for five years, and not more, no purpose is served by remanding for resentencing.   Instead, we will order that the court strike three of the sentencing enhancements.  (See People v. Jefferson (2007) 154 Cal.App.4th 1381, 1388 [where the People agreed the trial court erred in staying rather than striking an enhancement and argued the case should be remanded for resentencing, the Court of Appeal found the record was clear the trial court exercised sentencing discretion to not impose additional prison time and ordered the enhancement struck instead of stayed].)

Defendant next contends she is entitled to additional presentence conduct credits under amendments to Penal Code section 4019 that became effective while defendant's appeal was pending.   We agree with defendant that the amended statute should be given retroactive effect.   To summarize:  Penal Code section 4019 was amended effective January 25, 2010 (the January 2010 amendment).  (Former Pen.Code, § 4019, as amended by Stats.2009-2010, 3d Ex.Sess., ch. 28, § 50.)  (The statute was amended again effective September 28, 2010, but the new amendments apply to prisoners confined for crimes committed on or after that date.  (Pen.Code, § 4019, subd. (g).)  The January 2010 amendment resulted in an increase in the number of presentence good conduct and work time credits to be awarded to certain classes of offenders as an offset against a prison sentence.   As applicable to defendant, under the statute in effect before the January 2010 amendment, a term of six days would be deemed to have been served for every four days spent in actual custody, giving defendant “a total of two days of conduct credit for every four-day period of incarceration․”  (People v. Dieck (2009) 46 Cal.4th 934, 939.)   Under the January 2010 amendment, “a term of four days will be deemed to have been served for every two days spent in actual custody” (former Pen.Code, § 4019, subd. (f)), giving defendant two days of conduct credit for every two days in custody.

There is a split of authority among our appellate districts on the retroactivity of the January 2010 amendment to Penal Code section 4019 (and the issue is now on review before the Supreme Court).   This division has joined the courts holding that retroactive application is dictated.¹  Briefly stated, when the Legislature enacted the January 2010 amendment, it did not expressly declare whether or not the amendment should be given retroactive effect.  Penal Code section 3 provides that no part of the code is retroactive unless expressly declared to be so.   Nevertheless, it is also well established that a criminal defendant, absent a savings clause, “is entitled to the benefit of a more recent statute which mitigates the punishment for the offense․”  (People v. Babylon (1985) 39 Cal.3d 719, 725.)   And, “[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then ․ it, and not the old statute in effect when the prohibited act was committed, applies.”  (In re Estrada (1965) 63 Cal.2d 740, 744.)

Consequently, and in accordance with the reasoning in the majority of published decisions on the issue, we conclude the January 2010 amendment to section 4019 should be applied retroactively to cases not yet final as of the date of its enactment.   Here, defendant was in presentence custody for 29 days.   She was awarded 14 days of local conduct credits under the former statute (two days for every four days spent in actual custody), but under the January 2010 amendment she is entitled to 28 days local conduct credits (two days of conduct credit for every two days spent in actual custody).

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment striking three of the Health and Safety Code section 11370.2, subdivision (c) enhancements and reflecting total presentence custody credits of 57 days, consisting of 29 days of actual custody credits and 28 days of good conduct/work time credits, and to transmit a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

O'CONNELL, J.*

 * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

FOOTNOTES

FN1. See People v. Bacon (2010) 186 Cal.App.4th 333 (2d Dist., Div.8), review granted October 13, 2010, S184782;  see also, e.g., People v. Keating (2010) 185 Cal.App.4th 364 (2d Dist., Div.7), review granted September 22, 2010, S184354;  People v. Pelayo (2010) 184 Cal.App.4th 481 (1st Dist., Div.5), review granted, July 21, 2010, S183552;  but see, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 (6th Dist.), review granted, July 28, 2010, S183724..  FN1. See People v. Bacon (2010) 186 Cal.App.4th 333 (2d Dist., Div.8), review granted October 13, 2010, S184782;  see also, e.g., People v. Keating (2010) 185 Cal.App.4th 364 (2d Dist., Div.7), review granted September 22, 2010, S184354;  People v. Pelayo (2010) 184 Cal.App.4th 481 (1st Dist., Div.5), review granted, July 21, 2010, S183552;  but see, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 (6th Dist.), review granted, July 28, 2010, S183724.

RUBIN, Acting P. J.