Filed 5/28/13 P. v. Britton CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038180
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1112922)

         v.

RICK DOMINIQUE BRITTON,

         Defendant and Appellant.



         Rick Dominque Britton was convicted and sentenced to three years in state prison
pursuant to a plea bargain. At sentencing, the trial court gave him credit for 90 actual
days spent in presentence custody and the parties do not dispute that number. On appeal,
defendant Britton maintains that he is also entitled to 90 days of conduct credit but he
improperly received only 44 days of conduct credit.1 He contends that he is entitled to



1
        Penal Code 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." This provision precludes
appeals based on mere mathematical or clerical errors unless a motion has been brought
in the trial court to correct any error. (See People v. Delgado (2012) 210 Cal.App.4th
761, 765-767.) Since defendant challenged the trial court's determination of presentence
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one-for-one credit under current Penal Code section 40192 and the trial court incorrectly
interpreted section 4019 as foreclosing credit for crimes committed before October 1,
2011.
        We find the trial court did not misinterpret section 4019 and affirm the judgment.
                                              I
                                     Procedural History
        By information filed September 11, 2011, defendant was charged with three
offenses alleged to have occurred in July or August 2011: (1) driving or taking a vehicle
with a prior conviction (Veh. Code, § 10851, subd. (a), § 666.5) (count one), (2) buying
or receiving a stolen motor vehicle with a prior conviction (§§ 496d, 666.5) (count two),
(3) driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)). As to
counts one and two, the information alleged a prior felony conviction for violating
Vehicle Code section 10851. The information also alleged two prior prison terms
(§ 667.5, subd. (b)), one served for a felony conviction for failure to register as a sex
offender (former § 290, subd. (d)(2)) and the other served for a felony conviction of "auto
theft" (Veh. Code, § 10851, subd. (a)).
        On November 9, 2011, defendant pleaded no contest to all counts and admitted all
allegations in exchange for a three-year state prison sentence.
        On March 2, 2012, the deputy probation officer's "waived referral" memorandum
was filed for purposes of sentencing. The memorandum, dated December 2, 2011,
specified that defendant was arrested on August 5, 2011. At the time of arrest, defendant
was on parole and there was an outstanding warrant for his arrest because he had
absconded from parole supervision and failed to participate in the GPS program. A



custody credit at the time of sentencing and now claims the trial court misinterpreted the
law, we address his contentions on the merits.
2
      All further statutory references are to the Penal Code unless otherwise specified.
                                              2
parole hold was placed on defendant on August 5, 2011 based on the warrant and the new
offenses. The memorandum indicates that defendant was offered a parole revocation
term of "8 months with eligibility for half time credits" and he was expected to be
released on December 3, 2011, one day after the date of the memorandum.
       Also on March 2, 2012, the sentencing hearing was held. The probation officer
indicated to the court that defendant was entitled to 134 days total credit consisting of 90
actual days plus 44 days conduct credit. Defense counsel objected on ex post facto, equal
protection, and due process grounds to the court's failure to award "half time credits" to
defendant. The court responded that defendant was not entitled to more credits and
implied that the law in effect at the time of commission of the offenses controlled. The
court sentenced defendant to a middle three-year prison term on count one, imposed a
time-served disposition on count three, and stayed the sentence on count two pursuant to
section 654. It struck the two prior prison term allegations in the interest of justice
(§ 1385). The court awarded defendant presentence credit for 90 actual days plus 44 days
pursuant to section 4019 for total credits of 134 days.
       Defendant timely filed a notice of appeal.
                                              II
                                         Discussion
A. Section 4019
       The current version of section 4019, which was in effect and operative beginning
October 1, 2011 and at the time of sentencing in this case on March 2, 2011 (Stats. 2011-
2012, 1st Ex. Sess., ch. 12, § 35, pp. 5976-5977, eff. Sept. 21, 2011, operative Oct. 1,
2011), makes clear 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." (§ 4019,
subd. (f); see § 4019, subds. (b)-(e).) Subdivision (h) of section 4019 provides: "The
changes to this section enacted by the act that added this subdivision shall apply

                                              3
prospectively and shall apply to prisoners who are confined to a 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."
       The 2011 changes to the accrual of conduct credit were initially made applicable
to prisoners confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15,
§ 482, pp. 497-498, eff. Apr. 4, 2011, operative Oct. 1, 2011 [former § 4019, subd. (h)].)
Further amendments to section 4019 that were enacted before that legislation became
operative made those changes applicable to prisoners confined for crimes committed on
or after October 1, 2011. (See Stats. 2011, ch. 15, § 636, p. 622, eff. Apr. 4, 2011; Stats.
2011, ch. 39, §§ 53, 68, pp. 1730-1731, 1742, eff. June 30, 2011, operative Oct. 1, 2011;
Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 2011; Stats. 2011-2012, 1st Ex. Sess., ch.
12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.)
B. Statutory Construction
       The question presented in this case is whether subdivision (h) of section 4019
authorizes conduct credit to be earned under that section for actual days in custody on or
after October 1, 2012 for crimes committed before that date. Appellant argues, in
language very similar to the language used in a case no longer citable (Cal. Rules of
Court, rules 8.1105(e)(1), 8.1115(a)), as follows: "Obviously, it would have been
impossible to earn days in presentence confinement on an offense which had not yet been
committed. [The second sentence of section 4019, subdivision (h),] is therefore
meaningless surplusage unless the liberalized 1-for-1 credit charge [sic] applies to crimes
committed before the stated October 1, 2011 date. Any seeming contradiction between
the two sentences is only apparently implied. The ambiguity is reasonably resolved by
giving effect to both sentences and harmoniously concluding that the liberalized 1-for-1
change applies both to prisoners confined for crimes committed after October 1, 2011 as

                                              4
well as to prisoners confined after October 1, 2011 for earlier crimes [committed] before
October 1, 2011, but only for credits earned on and accrued after October 1, 2011. Thus,
the correct classification is between presentence credits earned prior to October 1, 2011
and credits earned after October 1, 2011."3
       Defendant recites several principles of statutory construction, of which we are well
aware, in support of his contentions. "[I]n reviewing the text of a statute, [courts] must
follow the fundamental rule of statutory construction that requires every part of a statute
be presumed to have some effect and not be treated as meaningless unless absolutely
necessary. 'Significance should be given, if possible, to every word of an act. [Citation.]
Conversely, a construction that renders a word surplusage should be avoided. [Citations.]'
[Citations.]" (People v. Arias (2008) 45 Cal.4th 169, 180.) In addition, "[w]hen a statute
is capable of more than one construction, ' "[w]e must . . . give the provision a reasonable
and commonsense interpretation consistent with the apparent purpose and intention of the
lawmakers, practical rather than technical in nature, which upon application will result in
wise policy rather than mischief or absurdity." ' [Citations.]" (In re Reeves (2005) 35
Cal.4th 765, 771, fn. 9.) Lastly, "under the traditional 'rule of lenity,' language in a penal
statute that truly is susceptible of more than one reasonable construction in meaning or
application ordinarily is construed in the manner that is more favorable to the defendant.
(People v. Avery (2002) 27 Cal.4th 49, 57-58 . . . )" (People v. Canty (2004) 32 Cal.4th
1266, 1277.)
       "When construing a statute, our primary task is to ascertain the Legislature's
intent. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147


3
       The California Supreme Court granted review in People v. Olague (S203298) on
August 8, 2012 and dismissed review in light of its decision in People v. Brown (2012)
54 Cal.4th 314 on March 20, 2013. "After an order dismissing review, the Court of
Appeal opinion remains unpublished unless the Supreme Court orders otherwise." (Cal.
Rules of Court, rule 8.528(b)(3).)
                                              5
. . . .) We begin our task by determining whether the language of the statute is
ambiguous. (Ibid.) A statutory provision is ambiguous if it is susceptible of two
reasonable interpretations. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25
Cal.4th 508, 519 . . . .)" (People v. Dieck (2009) 46 Cal.4th 934, 939-940.) Defendant
maintains that subdivision (h) of section 4019 creates an ambiguity, which should be
resolved in his favor, with regard to whether the section's more generous credit
provisions apply to presentence custody occurring after October 1, 2011 for crimes
committed before October 1, 2011.
       Defendant urges us to not follow People v. Ellis (2012) 207 Cal.App.4th 1546
(review den. Oct. 31, 2012) because its interpretation of section 4019 "render[ed] the
second sentence of subdivision (h) meaningless su[rp]lusage, since those who committed
crimes prior to October 1, 2011 would already be receiving credits pursuant to the
applicable prior law." In Ellis, the Fifth District Court of Appeal concluded with respect
to subdivision (h) of section 4019: "[T]he Legislature's clear intent was to have the
enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. (See People v. Lara [(2012) 54 Cal.4th 896, 906,] fn. 9 . . . .) The
second sentence does not extend the enhanced rate to any other group, but merely
specifies the rate at which all others are to earn conduct credits. So read, the sentence is
not meaningless, especially in light of the fact the October 1, 2011, amendment to section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant's crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced."4 (People v. Ellis, supra, 207 Cal.App.4th at p. 1553.)


4
       Section 1170, subdivision (h)(6), now provides: "The sentencing changes made
by the act that added this subdivision shall be applied prospectively to any person
sentenced on or after October 1, 2011."
                                              6
       The Court of Appeal, Fourth District, Division 3, agrees with Ellis. In People v.
Rajanayagam (2012) 211 Cal.App.4th 42, that court rejected an argument that the second
sentence of section 4019, subdivision (h), "implies any days earned by a defendant after
October 1, 2011, shall be calculated at the rate required by the current law, regardless of
when the offense was committed." (Id. at p. 51.) It concluded that such an interpretation
would render meaningless the language in the first sentence (ibid.), which provides that
the changes to the accrual of presentence conduct credit "shall apply prospectively and
shall apply to prisoners who are confined to a county jail . . . for a crime committed on or
after October 1, 2011." (§ 4019, subd. (h).) The court concluded that adopting the
defendant's interpretation would violate an elementary rule requiring courts, if possible,
ascribe meaning to every word, phrase, and sentence of a statute and to avoid
interpretations that render some words superfluous. (People v. Rajanayagam, supra, 211
Cal.App.4th at p. 51.)
       The appellate court in Rajanayagam concluded: "[S]ubdivision (h)'s first sentence
reflects the Legislature intended the enhanced conduct credit provision to apply only to
those defendants who committed their crimes on or after October 1, 2011. Subdivision
(h)'s second sentence does not extend the enhanced conduct credit provision to any other
group, namely those defendants who committed offenses before October 1, 2011, but are
in local custody on or after October 1, 2011. Instead, subdivision (h)'s second sentence
attempts to clarify that those defendants who committed an offense before October 1,
2011, are to earn credit under the prior law. However inartful the language of
subdivision (h), we read the second sentence as reaffirming that defendants who
committed their crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1553 . . . .)
To imply the enhanced conduct credit provision applies to defendants who committed
their crimes before the effective date but served time in local custody after the effective

                                              7
date reads too much into the statute and ignores the Legislature's clear intent in
subdivision (h)'s first sentence." (Id. at p. 52, fn. omitted.)
       "It is a settled principle of statutory construction, that courts should 'strive to give
meaning to every word in a statute and to avoid constructions that render words, phrases,
or clauses superfluous.' (Klein v. United States of America (2010) 50 Cal.4th 68, 80 . . . ;
accord, Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 . . . .) We harmonize
statutory provisions, if possible, giving each provision full effect. (Cacho v. Boudreau
(2007) 40 Cal.4th 341, 352 . . . .)" (In re C.H. (2011) 53 Cal.4th 94, 103.)
       We find that the first and second sentences of subdivision (h) of section 4019 may
be reconciled on another basis as well. Those sentences may be harmonized by
considering a custody scenario involving multiple restraints. A prisoner confined to jail
before October 1, 2011 for a crime committed before that date may subsequently commit,
after September 30, 2011, another offense (such as, for example, an assault, an unlawful
possession of a controlled substance or weapon, or a sex offense) while in presentence
confinement. That prisoner may then be held in presentence custody for that offense as
well and, consequently, qualify as a prisoner "confined to a county jail . . . for a crime
committed on or after October 1, 2011." (§ 4019, subd. (h).) The second sentence of
section 4019, subdivision (h), states: "Any days earned by a prisoner prior to October 1,
2011, shall be calculated at the rate required by the prior law." This language may be
reasonably understood as clarifying that conduct credit based on days in custody prior to
October 1, 2011 (the statute's operative date) must be "calculated at the rate required by
the prior law" even if earned by a prisoner confined for another offense committed on or
after October 1, 2011. (§ 4019, subd. (h).)
       A number of courts have concluded that, as to crimes committed before October 1,
2011, the current version of section 4019 is not applicable and former law governs
calculation of conduct credit. (People v. Hul (2013) 213 Cal.App.4th 182, 186-187;

                                               8
People v. Rajanayagam, supra, 211 Cal.App.4th at p. 51; People v. Verba (2012) 210
Cal.App.4th 991, 993; People v. Ellis, supra, 207 Cal.App.4th at p. 1553; see also People
v. Kennedy (2012) 209 Cal.App.4th 385, 400.) We too reach the same conclusion.
C. Calculation of Conduct Credit
       It appears undisputed that defendant was in presentence custody following his
release from a parole revocation term through sentencing on March 2, 2011 and this
period of custody occurred after October 1, 2011. Any days in presentence custody
served while he was under a parole hold and before his parole revocation term began
should have been credited only against the parole revocation term. (See People v. Bruner
(1995) 9 Cal.4th 1178, 1194.) The reported 90 actual days of presentence custody is
consistent with credit for the time spent in local custody following his release from the
parole revocation term (expected to be December 3, 2011) through sentencing on
March 2, 2012. Nothing in the appellate record establishes that any part of 90 actual days
was served before October 1, 2011.
       As discussed, the Legislature explicitly provided that section 4019 as amended
operative October 1, 2011 applied prospectively rather than retroactively. (§ 4019, subd.
(h).) Subdivision (h) of that section evinces an intent that the prior law must be applied
to calculations of conduct credit as to custody for offenses committed before October 1,
2011 and as to custody occurring before October 1, 2011. Thus, it operates as an implied
savings clause. (See In re Estrada (1966) 63 Cal.2d 740, 747 [where new law increases
punishment, an offender can be punished under old law if there is an express or implied
saving clause]; cf. People v. Gill (1857) 7 Cal. 356, 357 [amended penal law's saving
clause continued old law in effect as to offenses committed prior to amendment].)
       Former section 4019, effective September 28, 2010, which was in effect before the
2011 amendments, provided that "a term of six days will be deemed to have been served
for every four days spent in actual custody." (Stats.2010, ch. 426, § 2, p. 2088. eff.

                                             9
Sept. 28, 2010.) Accordingly, defendant was entitled to 44 days of conduct credit under
that provision.5 (Cf. In re Marquez (2003) 30 Cal.4th 14, 26.)
                                       DISPOSITION
       The judgment is affirmed.


                                           ________________________________
                                           ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
PREMO, J.




5
       Neither party has suggested that defendant was entitled to enhanced credits under
former section 2933 (Stats. 2010, ch. 426, § 1, p. 2087, eff. Sept. 28, 2010). Subdivision
(e)(3) of former section 2933 provided that "[s]ection 4019, and not this subdivision,
shall apply if the prisoner is required to register as a sex offender, pursuant to Chapter 5.5
(commencing with Section 290) . . . ." (Ibid.) The Deputy Probation Officer's
December 2, 2011 sentencing memorandum stated that defendant was "ineligible for
local sentencing due to his requirement to register as a sex offender pursuant to Penal
Code Section 290."
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