THE PEOPLE v. ABULGHASEN AHMADPOUR (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Abulghasen Ahmadpour appeals from a post-judgment order denying his motion for additional presentence conduct credit pursuant to a recent amendment of Penal Code section 4019.¹  We reverse.

Discussion

Appellant was convicted of five counts of filing or recording a forged instrument (§ 115, subd. (a)) and two counts of forgery (§ 470, subd. (d)).  In April 2008 he was sentenced to prison for seven years.   The trial court awarded him presentence custody credit of 84 days, consisting of 56 days of actual custody credit and 28 days of conduct credit.   Appellant appealed from the judgment, and we affirmed in an unpublished opinion.  (People v. Ahmadpour (August 18, 2009, B208600.)

When appellant was sentenced, section 4019, subdivision (f), provided that a defendant who earns conduct credit is deemed to have served six days for every four days spent in actual presentence custody.   Effective January 25, 2010, subdivision (f) was amended to provide that a defendant who earns conduct credit is generally deemed to have served four days for every two days spent in actual presentence custody.  (Stats.2009, 3d Ex.Sess., ch. 28, § 50.)   If this amendment applies retroactively to appellant, he is entitled to an additional 28 days of conduct credit.²

Based on the January 2010 amendment of section 4019, in October 2010 appellant filed a motion in the trial court seeking an additional 28 days of conduct credit.   The court denied the motion.

Our Supreme Court has granted review to resolve a split in authority whether the January 2010 amendment operates retroactively.  (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, No. S181963 [amendment operates retroactively];  contra, People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, No. S181808.)

We follow the general rule that, absent a saving clause, an amendment mitigating punishment applies retroactively to judgments that are not final when the amendment becomes effective.  (In re Estrada (1965) 63 Cal.2d 740, 744, 748;  People v. Doganiere (1978) 86 Cal.App.3d 237, 239–240;  People v. Hunter (1977) 68 Cal.App.3d 389, 393.)  “ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.  [Citations.]’  [Citation.]”  (People v. Vieira (2005) 35 Cal.4th 264, 306.)

“A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk [of the United States Supreme Court] within 90 days after entry of the order denying discretionary review.”   (U.S. Supreme Court Rules,. rule 13.1, 28 U.S.C.) Here, the California Supreme Court denied review on December 2, 2009.   Appellant therefore had until March 2, 2010, to file a timely petition for a writ of certiorari.   Since the judgment was not final when the amendment to section 4019 became effective in January 2010, appellant is entitled to the benefit of that amendment.

Disposition

The order denying appellant's motion for additional presentence conduct credit is reversed.   The judgment is modified to award appellant presentence custody credit of 112 days, consisting of 56 days of actual custody credit and 56 days of conduct credit.   The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

We concur:

Edward F. Brodie, Judge

Superior Court County of Ventura

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. A subsequent amendment of subdivision (f), effective September 28, 2010, reinstated the “six days ․ for every four days” provision that applied when appellant was sentenced.  (Stats.2010, ch. 426, § 2.) Subdivision (g) of the amended statute provides that the September 2010 amendment applies to prisoners in local custody for a crime committed on or after September 28, 2010.   The September 2010 amendment, therefore, is inapplicable to appellant..  FN2. A subsequent amendment of subdivision (f), effective September 28, 2010, reinstated the “six days ․ for every four days” provision that applied when appellant was sentenced.  (Stats.2010, ch. 426, § 2.) Subdivision (g) of the amended statute provides that the September 2010 amendment applies to prisoners in local custody for a crime committed on or after September 28, 2010.   The September 2010 amendment, therefore, is inapplicable to appellant.

GILBERT, P.J. COFFEE, J.