Filed 4/8/15 P. v. Lee CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B257221

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA404953)
         v.

CLIFTON LEE,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Clifford
Klein, Judge. Reversed and remanded with directions.
         Coleman, Balogh & Scott, Evan C. Greenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
                                            _____________________
       Defendant Clifton Lee appeals from the trial court’s denial of his postjudgment
motion to apply excess custody credits to his $180 restitution fine pursuant to Penal Code
section 2900.5. 1 Defendant contends, and the Attorney General concedes, that the
version of section 2900.5 in effect at the time of the original sentencing hearing entitles
defendant to offset the restitution fine with excess custody credits. We agree and
conclude the court imposed an unauthorized sentence. We reverse the postjudgment
order and remand the cause to the trial court to apply excess custody credits to satisfy the
restitution fine.


                                PROCEDURAL HISTORY2


       Because we are only reviewing the trial court’s denial of defendant’s
postjudgment motion, we will not recount the statement of facts on appeal.
       On November 16, 2012, defendant was arrested and taken into custody following a
fight during which defendant struck the victim with a glass bottle. After a preliminary
hearing on December 4, 2012, the court held the defendant to answer and ordered
defendant into custody. Defendant remained in custody throughout the pendency of his
case. On October 10, 2013, a jury convicted defendant of misdemeanor assault (§ 240).
That same day, the court sentenced defendant to a six-month jail term with credit for six
months already served and imposed a $180 restitution fine. On May 5, 2014, defendant
filed a motion under section 2900.5 to apply excess custody credits to his restitution fine.
On June 16, 2014, the court denied the motion and defendant timely filed a notice of
appeal.


       1   All further references are to the Penal Code, unless otherwise stated.

       2We grant the Attorney General’s request for judicial notice of the entire record in
defendant’s prior appeal to this court. (People v. Lee (Oct. 10, 2014, B252810) [nonpub.
opn.].)

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                                        DISCUSSION


       The trial court was required to apply defendant’s excess custody credits to his
$180 restitution fine at the October 10, 2013 sentencing hearing under the then-existing
version of section 2900.5. The court imposed an unauthorized sentence for two reasons:
(1) the amendment to section 2900.5 subdivision (a) striking “restitution fines” from the
statute effective January 1, 2014, does not apply retroactively, and; (2) the court failed to
calculate and allocate defendant’s custody credits at his sentencing hearing pursuant to
section 2900.5 subdivision (d).
       Pursuant to section 2900.5, subdivision (a), when a defendant’s custody time
exceeds the sentence, the excess custody time may be applied to fines. When defendant
was sentenced in 2013, subdivision (a) of section 2900.5 stated in pertinent part: “In all
felony and misdemeanor convictions . . . all days of custody of the defendant . . . shall be
credited upon his or her term of imprisonment, or credited to any fine on a proportional
basis, including, but not limited to, base fines and restitution fines, which may be
imposed, at the rate of not less than thirty dollars ($30) per day . . . . [W]here the court
has imposed both a prison or jail term of imprisonment and a fine, any days to be credited
to the defendant shall first be applied to the term of imprisonment imposed, and thereafter
the remaining days, if any, shall be applied to the fine on a proportional basis, including,
but not limited to, base fines and restitution fines.” (Former § 2900.5, subd. (a).)
       In its ruling on defendant’s postjudgment motion, the trial court noted that section
2900.5, subdivision (a), was amended effective January 1, 2014, to strike “restitution
fines,” which can be satisfied by jail credits. (Stats. 2013, ch. 59, § 7.) The court pointed
to section 1205, subdivision (f), which defendant did not cite, that “states in relation to
fines satisfied by jail credits, ‘This section shall not apply to restitution fines and
restitution orders.’” Therefore, the amendment to section 2900.5 “clarified that both
statutes should be read as consistent as not pertaining to restitution fines. Based on these
statutes, the petition is denied.”
       “Whether a statute operates prospectively or retroactively is, at least in the first


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instance, a matter of legislative intent. When the Legislature has not made its intent on
the matter clear with respect to a particular statute, the Legislature’s generally applicable
declaration in section 3 provides the default rule: ‘No part of [the Penal Code] is
retroactive, unless expressly so declared.’ We have described section 3, and its identical
counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the
time-honored principle . . . that in the absence of an express retroactivity provision, a
statute will not be applied retroactively unless it is very clear from extrinsic sources that
the Legislature . . . must have intended a retroactive application.’ (Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1208-1209 (Evangelatos); see also id., at p. 1208
[requiring ‘“express language or [a] clear and unavoidable implication [to] negative[ ] the
presumption”’].) In applying this principle, we have been cautious not to infer
retroactive intent from vague phrases and broad, general language in statutes.
(Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229-230; see
Evangelatos, [supra,] at p. 1209, fn. 13.) Consequently, ‘“a statute that is ambiguous
with respect to retroactive application is construed . . . to be unambiguously
prospective.”’ (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841,
quoting I.N.S. v. St. Cyr (2001) 533 U.S. 289, 320-321, fn. 45.)” (People v. Brown
(2012) 54 Cal.4th 314, 319-320.)
       We need not address whether the trial court correctly interpreted the amendment to
section 2900.5 effective January 1, 2014. This amendment did not apply at the time of
defendant’s offense and sentencing and the 2014 amendment makes no reference to
retroactive application as required by section 3. “Furthermore, nothing in the legislative
history of section 2900.5 . . . suggests the Legislature intended the statute to have such an
effect.” (People v. Brown, supra, 54 Cal.4th at p. 322.) Therefore, any substantive
change in section 2900.5 applies prospectively and it was error for the court not to apply
defendant’s excess custody credits to the $180 restitution fine at the 2103 sentencing
hearing. The failure to accurately award custody credits results in an unauthorized
sentence, subject to correction at any time. (People v. Brite (1983) 139 Cal.App.3d 950,
955 [trial court’s failure to comply with section 2900.5, subdivision (d), in the first


                                              4
instance made its initial finding and resulting sentence a nullity]; see People v. Jack
(1989) 213 Cal.App.3d 913, 916-917 [unauthorized award of presentence credits may be
corrected at any time].)
       Moreover, “[i]t is the duty of the court imposing the sentence to determine the date
or dates of any admission to, and release from, custody prior to sentencing and the total
number of days to be credited pursuant to . . . section [2900.5].” (§ 2900.5, subd. (d).)
The court’s failure to comply with section 2900.5 subdivision (d) renders the sentence a
nullity so that the court may correct the judgment at any time.
       The trial court imposed a six-month sentence, and awarded six months of credit
for time served. Defendant, however, had served more than six months in custody before
sentencing. As the Attorney General concedes, it appears from the record that defendant
remained in custody 329 days from his November 16, 2012 arrest until he was sentenced
and released on October 10, 2013. Defendant is entitled to apply his excess custody
credits to his restitution fine at a minimum of $30 per day pursuant to the pre-2014
version of section 2900.5, subdivision (a). Only six days of excess custody credit is
required to satisfy the $180 restitution fine imposed by the trial court.




                                              5
                                      DISPOSITION


        The order denying defendant’s motion to apply his excess presentence custody
credits to the $180 restitution fine is reversed. The cause is remanded to the trial court
with directions to apply the pre-2014 version of section 2900.5 to satisfy the restitution
fine.




              KRIEGLER, J.


We concur:




              TURNER, P.J.




              MOSK, J.




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