Filed 7/29/15
                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D065729

        Plaintiff and Respondent,

        v.                                       (Super. Ct. Nos.
                                                  SCD253021 & SCE324175)
TYWAYNE A. WHITAKER,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Timothy

Walsh, Judge. Affirmed.

        Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal,

for Defendant and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Parag

Agrawal, and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       Defendant Tywayne A. Whitaker appeals a combined sentence that the trial court

imposed after Whitaker engaged in additional criminal conduct while on probation.

Whitaker pled guilty to a new charge, and the trial court revoked Whitaker's probation in

the earlier case. The court sentenced Whitaker to a combined term of 13 years eight

months in state prison.

       Whitaker's sole contention on appeal relates to the number of conduct credits the

trial court awarded him for the time he spent in custody prior to sentencing. Whitaker

contends that the trial court improperly calculated his conduct credits by using a two-for-

two formula, rather than a one-for-one formula. He asserts that he is entitled to 327 days

of custody credits, corresponding with the 327 days that he had served in custody at the

time of his sentencing, based on one day of conduct credit for each day actually served in

custody.

       We disagree with Whitaker's contention, and affirm the judgment of the trial court.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On February 21, 2013, Whitaker pled guilty to pandering by encouraging (Pen.

Code, § 266i, subd. (a)(2))1 and pimping (§ 266h, subd. (a)) in case No. SCE324175.

Whitaker admitted that he committed the crimes for the benefit of a criminal street gang

1      Further statutory references are to the Penal Code.
                                              2
(§ 186.22, subd. (b)(1)). Whitaker also admitted that he had suffered two prison priors

(§§ 667.5 subd. (b), 668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7,

subd. (c), and two serious felony priors under the Three Strikes Law (§§ 667, subds. (b)-

(i), 1170.12, 668).

       The trial court sentenced Whitaker to 13 years in state prison, but suspended

execution of the prison sentence pending successful completion of three years of formal

probation.

       In December 2013, Whitaker cashed two "altered/fictitious" checks at a 98 Cent

Store. On December 19, he attempted to cash a third check, but the store clerk contacted

authorities and they arrested Whitaker.

       As a result of Whitaker's December 2013 conduct, the trial court revoked

Whitaker's probation. He faced new charges in case No. SCD253021 for one count of

conspiracy to commit grand theft (§ 182, subd. (a)(1)), three counts of burglary (§ 459),

three counts of obtaining property, labor, or services by false pretenses (§ 530.5, subd.

(a)), and three counts of forgery of a financial institution paper (§ 476).

       Whitaker pled guilty to one count of obtaining property, labor, or services by false

pretenses (§ 530.5, subd. (a)) in exchange for an eight-month prison sentence and

dismissal of the remaining charges. The trial court then ordered that Whitaker's 13-year

prison sentence in case No. SCE324175 be executed, and sentenced Whitaker to a total

term of 13 years eight months.



                                              3
       Whitaker filed a timely notice of appeal. Following the filing of the notice of

appeal, the trial court corrected Whitaker's abstract of judgment to reflect 653 days of

presentence credits—327 custody credits for time served in actual custody, and 326 "PC

4019 2/2" conduct credits.2

                                            III.

                                      DISCUSSION

       Whitaker contends that the trial court improperly used a two-for-two formula,

rather than a one-for-one formula, in calculating the number of conduct credits to which

he is entitled. He asserts that because he served 327 days in actual custody, he is entitled

to 327 days of conduct credits. He argues that the Legislature's amendments to certain

relevant statutory provisions indicate a legislative intent to provide a day-for-day conduct

credit entitlement. The People disagree with Whitaker's contention, and argue that the

proper interpretation of the relevant statutory provision demonstrates that Whitaker is

entitled to only 326 days of conduct credits for his 327 days served, based on a formula

of two days of conduct credit for every two days spent in actual custody.

       Section 4019 specifies the rate at which prisoners in local custody may earn credit

against their sentences for good conduct while in custody. (People v. Brown (2012) 54

Cal.4th 314, 317 [§ 4019 "offer[s] prisoners in local custody the opportunity to earn

'conduct credit' against their sentences for good behavior"].) In order to determine

2      Whitaker requests that this court take judicial notice of an ex parte minute order
dated January 16, 2015, in which the court corrected Whitaker's presentence custody
credits, awarding him a total of 653 days of presentence credits. We grant the request.
                                             4
whether Whitaker is entitled to an additional day of presentence conduct credit, we must

interpret section 4019. In interpreting the statute, we attempt to discern the Legislature's

intent, first by considering the words of the provision. (Smith v. Superior Court (2006)

39 Cal.4th 77, 83.) If the statutory language is unambiguous, the plain meaning controls

and consideration of extrinsic sources to determine the Legislature's intent is

unnecessary. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29

Cal.4th 911, 919.)

       Subdivision (f) of section 4019 provides: "It is the intent of the Legislature that if

all days are earned under this section, a term of four days will be deemed to have been

served for every two days spent in actual custody." (Italics added.) The two days of

presentence conduct credit authorized by section 4019, subdivision (f) are the sum of the

one day of credit authorized by section 4019, subdivision (b) and the one day of credit

authorized by section 4019, subdivision (c).3

       The statutory language expressly and clearly declares the Legislature's intent that

four days will be deemed served for every two days in actual custody. Given that section

4019, subdivisions (b) and (c) both authorize one day of credit for each four-day period

of confinement, section 4019, subdivision (f) must be interpreted to authorize two days of

3      Section 4019, subdivision (b) provides that "for each four-day period in which a
prisoner is confined in or committed to a facility," one day will be deducted from the term
of confinement unless the prisoner has refused to satisfactorily perform assigned labor.
Section 4019, subdivision (c) provides that "[f]or each four-day period in which a
prisoner is confined in or committed to a facility," one day will be deducted from the term
of confinement unless the prisoner has not satisfactorily complied with rules and
regulations.
                                             5
credit for each four-day period of confinement. Section 4019 thus requires that a

defendant actually serve two days in custody before he or she will be entitled to two

additional days of conduct credit. A defendant who serves an odd number of days is not

entitled to an additional single day of conduct credit for his or her final day of actual

custody.

       Courts have interpreted the construction of section 4019, subdivision (f) in this

manner for a number of years. For example, in People v. King (1992) 3 Cal.App.4th 882

(King), the Court of Appeal was tasked with interpreting a prior version of section 4019,

subdivision (f) that provided at the time: " 'If all days are earned under this section, a term

of six days will be deemed to have been served for every four days spent in actual

custody.' " (King, supra, at p. 885.) In King, the defendant had served 47 actual days in

presentence custody and was granted an additional 22 days of presentence conduct credit

under former section 4019, subdivision (f), for a total of 69 days. (King, supra, at p.

884.) The defendant argued that he was entitled to two more days of conduct credit

based on a formula in which the number of days served in custody is divided by two,

adding that product to the number of actual custody days, and rounding up. Under the

defendant's scenario, the 47 days in custody would be divided by two, for a product of

23.5. Adding the 23.5 to the 47 (for a total of 70.5) and then rounding up, the number of

credit days would be 71. (Id. at pp. 884-885.) Another formula, which had been used by

some courts, was to multiply by 1.5 the number of actual custody days and then round up

the result (i.e., 47 x 1.5=70.5, rounded up to 71). (Id. at p. 885.)

                                               6
       The King court rejected both of the formulas proffered by the defendant as

inconsistent with the plain language of former section 4019, subdivision (f), under which

"[c]redits are given for increments of four days" and "[n]o credit is awarded for anything

less [than an increment of four days]." (King, supra, 3 Cal.App.4th at p. 885.) "Thus, for

his 47 days of actual custody, defendant is entitled to 22 days of conduct credit . . . and

no additional credit for the extra 3 days." (Ibid.)

       The King court relied on People v. Smith (1989) 211 Cal.App.3d 523 (Smith),

which addressed the same six-days-for-four-days formula of former section 4019,

subdivision (f), and interpreted that provision in the same manner. The Smith court

concluded that "[c]redits are given in increments of four days." (Smith, supra, at p. 527.)

The court calculated presentence custody credit by dividing the 211 actual custody days

by four, which "is the equivalent to fifty-two sets of four days, with three extra." (Ibid.)

The court multiplied 52 by two, with the result being that the defendant was entitled to

104 days of conduct credit. (Ibid.) The defendant was not entitled to any additional

conduct credit for the extra three days he served in actual custody, however. (Ibid.)

       The California Supreme Court approved of this method for calculating custody

credits under an earlier version of section 4019, subdivision (f) in In re Marquez (2003)

30 Cal.4th 14, 25-26 (Marquez). The Supreme Court explained:

          "Employing this approach, we take the number of actual custody
          days (4+113+113=230) and divide by 4 (discarding any remainder),
          which leaves 57 (230/4=57). We then multiply the result by 2 (57 x
          2=114), resulting in a total of 114 days of conduct credit. To arrive
          at the total amount of credit to which petitioner is entitled (custody

                                              7
           plus conduct), we add the custody credit (230 days) to the conduct
           credit (114 days), giving us a total of 344 days (230+114)." (Id. at p.
           26.)

       The current version of subdivision (f) of section 4019 is drafted in substantially

the same grammatical format as former subdivision (f) of section 4019. The only

substantive difference between the current version and the version that the Marquez,

Smith, and King courts interpreted is that "four days" replaces "six days," and "two days"

replaces "four days."4 Because current section 4019, subdivision (f) is drafted in the

same format as former section 4019, subdivision (f), we conclude that it should be

interpreted and applied in same manner.

       Despite the unambiguous statutory language and the Supreme Court's

interpretation of similar language in Marquez, Whitaker suggests that the Legislature

rejected the formula employed in Marquez and created a "latent ambiguity" in the

statutory framework through various amendments and changes made to section 4019, as

well as to former subdivision (e) of section 2933, which concerned the calculation of

custody credits for time spent in state prison facilities.5



4       Compare current subdivision (f) of section 4019: "It is the intent of the Legislature
that if all days are earned under this section, a term of four days will be deemed to have
been served for every two days spent in actual custody" (italics added), with former
subdivision (f) of section 4019: "If all days are earned under this section, a term of six
days will be deemed to have been served for every four days spent in actual custody."
(§ 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553, italics added.)

5      Whitaker requests that this court take judicial notice of an additional three items:
(1) various former versions of section 4019 and related legislative analysis; (2) certain
                                             8
       It is true that between September 28, 2010 and September 30, 2011, the

Legislature amended former section 2933 to award day-for-day conduct credit to certain

prisoners in local presentence custody who were sentenced to prison. (Former § 2933,

subd. (e)(1), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) "[Under

section 2933, subdivision (e)(1), effective September 28, 2010,] defendants sentenced to

a local jail received maximum presentence conduct credit only at a half-time rate under

section 4019, while those sentenced to state prison could receive full, day-for-day

conduct credit under section 2933 for presentence custody." (People v. Hul (2013) 213

Cal.App.4th 182, 186.)6 However, section 2933, subdivision (e), was repealed in

October 2011, at the same time section 4019 was amended again to provide for the

current two-for-two conduct credit formula. Thus, although section 2933, subdivision (e)

temporarily provided for true one-to-one conduct credits for time served in local custody

for those defendants who were sentenced to state prison during its effective dates, those

conduct credits applied only to defendants who committed their offenses during the time

period that section 2933, subdivision (e) was in effect.

portions of the 1982 version of section 2933; and (3) legislative analysis from both the
Assembly and Senate associated with the September 28, 2010 amendments to sections
2933 and 4019. We grant Whitaker's request and take judicial notice of the documents
provided.

6       Between September 28, 2010 and September 30, 2011, section 2933, subdivision
(e)(1) provided: "Notwithstanding Section 4019 and subject to the limitations of this
subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the
sentence is executed shall have one day deducted from his or her period of confinement
for every day he or she served in a county jail [or] city jail . . . from the date of arrest
until state prison credits pursuant to this article are applicable to the prisoner."
                                                9
       Although it is undisputed that Whitaker committed his crimes after section 2933,

subdivision (e) was repealed, and that this provision therefore has no direct application to

the calculation of Whitaker's conduct credit entitlement, Whitaker suggests that the

Legislature evidenced its intent to reject the Marquez formula by its enactment of section

2933, subdivision (e) and its attempt to "harmonize jail conduct credits with prison

conduct credits" with various statutory amendments in 2010. He contends that the

Legislature's various amendments in the statutory framework has created a "latent

ambiguity" as to whether defendants are entitled to credit under a one-for-one formula or

a two-for-two formula. We reject this contention. Despite Whitaker's attempt to

persuade us that the legislative history yields a result different from the result one would

reach through an examination of the words of the statute itself, because the language of

section 4019, subdivision (f) is not ambiguous, we need not turn to the legislative history,

or to any other extrinsic source, to aid in our interpretation of the statutory provision.

(See Smith v. Superior Court, supra, 39 Cal.4th at p. 83.)

       Further, we are not convinced that the legislative history creates the ambiguity that

Whitaker suggests. The Legislature very easily could have written the statute to provide

for a one-for-one formula for conduct credits if it had intended that credits be awarded in

that manner. The Legislature clearly understood how to do so, since it temporarily

provided for such an entitlement to prisoners sentenced to terms in state prison in section

2933, subdivision (e)(1). However, the Legislature chose not to continue to provide for

such an enhanced credit system for defendants sentenced to state prison terms. Instead,

                                              10
the Legislature repealed the enhanced conduct credit provision and retained the statutory

language of section 4019 that requires a defendant to serve two days in actual custody in

order to receive two days of conduct credits. Whitaker must therefore serve two days of

actual custody in order to be entitled to two days of credit for his conduct.

       The trial court properly applied the two-for-two formula in calculating that

Whitaker was entitled to 326 days of conduct credit for his 327 days served.

                                             IV.

                                      DISPOSITION

       The judgment is affirmed.


                                                                                AARON, J.

WE CONCUR:


NARES, Acting P. J.


McDONALD, J.




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