Filed 6/11/13 P. v. Landon CA1/2
Opinion on remand from the Supreme Court

                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                  FIRST APPELLATE DISTRICT
                                             DIVISION TWO



THE PEOPLE,
         Plaintiff and Respondent,                                   A123779
v.
BRENDA LOUISE LANDON,                                                (Mendocino County Super. Ct,
                                                                     Nos. SCUKCRCR0781676 &
         Defendant and Appellant.                                    SCWLCRCR0885031)



         On August 14, 2008, defendant pleaded guilty to driving under the
influence (DUI) with a blood alcohol level greater than 0.08 percent (Veh. Code,
§ 23152, subd. (b)); she admitted four prior DUI convictions. Subsequently,
defendant was arrested for another DUI and, on September 18, 2008, she pleaded
guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152,
subd. (a), 23550, subd. (a)) and admitted committing the crime while released on
her own recognizance (Pen. Code, § 12022.1, subd. (b)).1 The court held a
sentencing hearing for both of these cases and sentenced defendant to state prison
for a total of four years eight months.
         Defendant appealed, and urged us to remand the matter to the trial court for
a new sentencing hearing. Defendant contended the lower court erred and violated

         1   All further unspecified code sections refer to the Penal Code.


                                                        1
her due process rights under the Fourteenth Amendment when it found her
statutorily ineligible for probation under Penal Code section 1203, subdivision
(e)(4). We rejected this request for remand for a new sentencing hearing because
defendant failed to establish prejudice.
       While the appeal was pending, the Legislature amended section 4019,
which changed the calculation of presentence conduct credit. Defendant filed a
motion in the trial court requesting that her presentence conduct credits be
calculated in accordance with the amended statute. The lower court denied this
request, finding that the amended statute did not apply retroactively. Defendant
appealed from this ruling.
       In our opinion filed April 13, 2010, we applied the amended statute
retroactively. The California Supreme Court granted the People‟s petition for
review. In People v. Brown (2012) 54 Cal.4th 314, the Supreme Court held that
the amendment is applicable prospectively only and, therefore, defendant was not
entitled to benefit from the amendment to section 4019.
       On May 15, 2013, the Supreme Court transferred the present case back to
us with directions to vacate our prior decision and to reconsider the cause in light
of People v. Brown, supra, 54 Cal.4th 314. Under the holding of People v. Brown,
we vacate our prior decision and now conclude defendant is not entitled to the
benefits of amended section 4019. In all other respects, we reissue our original
opinion in this matter. Accordingly, we affirm the judgment.
                                 BACKGROUND
The Two Arrests and Pleas
       At 9:49 p.m., on November 21, 2007, an officer received a dispatch report
regarding a female driving a white van and a possible DUI. The officer spotted
the white van, which was traveling at an extremely high rate of speed and without
lit headlights. The officer saw the van proceed through two intersections without
stopping or slowing. The officer had to drive approximately 70 miles per hour to
come close enough to stop the van.


                                           2
       Defendant was the driver of the white van. As defendant got out of the
vehicle, the officer saw her almost fall over. Defendant had an “extremely
unsteady gait.” The officer noticed that the left side of defendant‟s nose had blood
from a scratch and defendant had a cut on the right side of her forehead.
Defendant was too intoxicated to respond to the officer‟s question about what had
happened. The officer had defendant perform field sobriety tests. She refused to
submit to a preliminary alcohol-screening test. Dispatch advised the officer that
defendant was on probation for a DUI and that she had a suspended driver‟s
license. The officer arrested defendant. She was transported to a medical center
where a blood sample was taken and she had a blood-alcohol content of 0.26
percent.
       On March 13, 2008, an information was filed in case No.
SCUKCRCR0781676, which charged defendant with two counts of DUI with
prior convictions within 10 years (Veh. Code, §§ 23152, subds. (a) & (b), 23550,
subd. (a)), and one count of misdemeanor driving while privileges were suspended
(Veh. Code, § 14601.2, subd. (a)). The information alleged defendant had a
blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578) and was
driving 20 miles per hour over the maximum speed limit (Veh. Code, § 23582,
subd. (a)).
       On April 8, 2008, defendant pleaded not guilty to all charges and denied all
allegations.
       At 8:55 p.m., on June 28, 2008, an officer received a report of a woman
driving a beige Mazda recklessly northbound on Main Street in Willits. The report
stated that the driver, later identified as defendant, was swerving in and out of
lanes of traffic and tailgating.
       An officer stopped defendant‟s car as she was driving from a gas station.
When defendant got out of her vehicle and approached the officer, the officer
smelled alcohol and marijuana on defendant‟s breath and person. The officer also
noticed that defendant‟s eyes were red and watery and that she was slurring her


                                          3
speech. Defendant told the officer that she had numerous joint and skeletal
problems making her unable to perform the field sobriety tests. She submitted to
an in-field preliminary alcohol screening that showed a blood-alcohol content of
0.10 percent. The officer arrested defendant.
        On July 21, 2008, an information in case No. SCWLCRCR0885031 was
filed. This information charged defendant with one count of DUI with prior
convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)),
one count of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), and
one count of misdemeanor driving while privileges were suspended (Veh. Code,
§ 14601.2, subd. (a)). The information alleged that the crimes were committed
while defendant was released on her own recognizance (§ 12022.1, subd. (b)).
        On August 14, 2008, pursuant to a negotiated disposition in case No.
SCUKCRCR0781676, defendant pleaded guilty to a DUI with a blood-alcohol
level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)), and admitted four
prior DUI convictions.
        On September 18, 2008, pursuant to a negotiated disposition in case No.
SCWLCRCR0885031, defendant pleaded guilty to a DUI with prior convictions
within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), and admitted
committing the crime while released on her own recognizance (§ 12022.1, subd.
(b)).
Defendant’s Competency
        The matter was set for sentencing but, on December 2, 2008, defense
counsel expressed doubt regarding defendant‟s competency under section 1368.
The court suspended proceedings and appointed two psychologists to evaluate
defendant‟s competence. On December 17, 2008, the court reviewed the
psychologists‟ reports and found defendant legally competent and reinstated
criminal proceedings.




                                         4
The Probation Report
       The probation officer filed her report and recommendation. The probation
officer recommended that the court deny probation and sentence defendant to a
total of five years. The probation report set forth the following convictions of
defendant in Louisiana: soliciting for prostitution in February 1989, “access
device fraud” in 1992, forgery in 1993, and issuing worthless checks in 1993.
       Defendant‟s current probation officer spoke with Felix Indest, defendant‟s
probation officer in Louisiana. According to Indest, defendant had a history of
substance abuse and prostitution.
       With regard to criteria affecting probation, the California probation officer
stated that the circumstances of the crimes as compared to other instances of the
same crime were more serious because of defendant‟s high blood alcohol and the
speed she was traveling in her vehicle. The circumstances in aggravation,
according to the probation report, were defendant‟s numerous prior convictions as
an adult, which increased in seriousness. Additionally, defendant was on
probation when the crime was committed and defendant‟s prior performance on
probation had been unsatisfactory. Defendant appeared remorseful but the
probation officer warned that defendant‟s DUI history was likely to persist and
that she would continue to endanger others if not imprisoned. With regard to
circumstances in mitigation, the probation officer noted that defendant suffered
from an alcohol addiction, which possibly reduced her culpability for the crime.
       The probation officer noted that defendant had pleaded guilty to her fifth
DUI. The probation officer stated that defendant had been provided ample
opportunity to address her alcohol problems, but had failed to do so and continued
to be a serious danger to the community. At the time of the probation report,
defendant had a pending matter in the court for her sixth DUI. The probation
officer stated that defendant had four prior felony convictions in Louisiana and
was presumptively ineligible for probation, except in unusual cases where the



                                          5
interest of justice would be served. The probation officer stated that she did “not
see any circumstances in this case, which would justify this case as unusual.”
The Sentencing Hearing
       Defendant testified at the sentencing hearing and promised never to drink
alcohol again and requested probation conditioned on a long-term residential
treatment program. Defense counsel argued that the court did not have reliable
evidence that two of the convictions in Louisiana would have been punishable as
felonies in California within the meaning of section 1203, subdivision (e)(4).
Further, even if defendant had two or more prior felony convictions, defense
counsel argued that probation was proper in this case.
       At the end of the hearing on January 6, 2009, the court found defendant
statutorily ineligible for probation; it did not find that there were sufficient unusual
circumstances to grant probation. The court sentenced defendant to a total of four
years eight months for both cases. The court awarded a total of 289 days credit for
time served (193 actual days in custody, plus 96 conduct credit days under former
section 4019, subdivisions (b) and (c)).
       On January 15, 2009, defendant filed a timely notice of appeal. The People
petitioned the California Supreme Court for review, which was granted.
Presentence Credits
       On January 25, 2010, section 4019 was amended to provide for one day of
work time credit and one day of conduct credit for each four-day period in
custody. On February 9, 2010, defendant filed a motion under section 1237.1 in
superior court, requesting an order to recalculate her presentence credits in
accordance with amended section 4019. Defendant argued that the amended
version of the statute entitled her to an increase in presentence credits. After a
hearing on February 19, 2010, the court denied the motion.
       On February 23, 2010, defendant filed a notice of appeal from the denial of
her request for presentence credits. Defendant requested permission from this



                                           6
court to file a supplemental brief to address this issue and we granted this request
on March 3, 2010.
       In our opinion filed on April 13, 2010, we affirmed the denial of probation.
However, we concluded that defendant was entitled to additional presentence
credits under the retroactive application of the amendment to section 4019. The
People petitioned for review and the California Supreme Court granted review on
June 23, 2010. On May 15, 2013, this case was transferred to us with directions to
vacate our decision and to reconsider the cause in light of People v. Brown, supra,
54 Cal.4th 314. Pursuant to California Rules of Court, rule 8.200(b)(1), any
supplemental brief to be filed by defendant was due May 30, 2013. On June 4,
2013, counsel for defendant advised this court that he would not be filing a
supplemental brief.
                                   DISCUSSION
                              I. Denial of Probation
       Defendant contends that the lower court‟s refusal to grant her probation
based on section 1203, subdivision (e)(4)2 violated her due process rights under
the Fourteenth Amendment. The trial court found that she was presumptively
ineligible for probation because she had two convictions in Louisiana. Defendant
maintains that the two convictions in another state have to be punishable in
California as a felony and the evidence did not show that defendant‟s four
convictions in Louisiana constituted a felony if committed in California.
Defendant concedes that her prior forgery conviction in Louisiana qualified as a
felony under California law, but maintains that the record is insufficient to show



       2 Section 1203, subdivision (e)(4) provides: “Except in unusual cases
where the interests of justice would best be served if the person is granted
probation, probation shall not be granted to any of the following persons:” “Any
person who has been previously convicted twice in this state of a felony or in any
other place of a public offense which, if committed in this state, would have been
punishable as a felony.”


                                          7
that any of the other three convictions met the statutory requirements. She asserts
that we should remand the matter for a new sentencing hearing.
       The People do not challenge defendant‟s argument that the record does not
establish that any of the convictions in Louisiana, other than the forgery
conviction, satisfies the statutory requirements under section 1203, subdivision
(e)(4). The People contend, however, that even if the statutory requirements were
not met, defendant cannot prevail because she cannot demonstrate prejudice from
any sentencing error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
       We agree with the People that defendant cannot demonstrate prejudice.
Had the trial court not found defendant presumptively ineligible for probation as
the result of her two prior convictions in Louisiana, the trial court would still
undoubtedly have terminated probation and sentenced her to state prison. The trial
court was presented with overwhelming evidence that defendant‟s conduct while
on probation was unsatisfactory. Defendant‟s criminal history consisted of six
misdemeanor California convictions and four Louisiana convictions. At the time
of defendant‟s arrest in case No. SCUKCRCR0781676, defendant was on two
grants of summary probation from Lake County for two DUI convictions.
       The probation officer stated in her report that defendant “is appearing
before the court, having pled guilty to a fifth felony [DUI]. She has been given
several opportunities to address her alcohol problems, but they have had little
effect on her. She continues to be a serious danger to the community. The
defendant has a pending matter in superior court for her sixth [DUI] matter. It
appears that the defendant has not realized society will not accept this type of
behavior.”
       Rather than provide evidence to show prejudice, defendant claims the
sentencing hearing did not comport with the most basic of procedural safeguards
and maintains that the information considered by the court was not reliable. (See
People v. Peterson (1973) 9 Cal.3d 717, 726 [probation hearings do not require the
same procedural safeguards as trials on the issue of guilt, but “an applicant for


                                           8
probation is nevertheless entitled to relief on due process grounds if the hearing
procedures are fundamentally unfair”]; see also People v. Arbuckle (1978) 22
Cal.3d 749, 754-755 [“Reliability of the information considered by the court is the
key issue in determining fundamental fairness”]; People v. Eckley (2004) 123
Cal.App.4th 1072, 1080 [“A court‟s reliance, in its sentencing and probation
decisions, on factually erroneous sentencing reports or other incorrect or
unreliable information can constitute a denial of due process”].) Defendant argues
that a sentence cannot be based on false information. (See United States v. Weston
(9th Cir. 1971) 448 F.2d 626, 634 [the defendant denied the information contained
in the presentencing report and the Ninth Circuit held that the hearsay information
in the report was of so little value that the trial court should not have relied upon
this information when imposing the maximum term].)
       Defendant‟s argument lacks merit because most of the evidence presented
at the sentencing hearing was reliable. Although the evidence may not have
satisfied the requirements of section 1203, subdivision (e)(4), the evidence did
show defendant would be unable to comply with the conditions of probation in the
future. This evidence was both reliable and overwhelming. Indeed, when
sentencing defendant to the midterm for case No. SCUKCRCR0781676, the court
commented on defendant‟s repeated offenses and stated, “This is a borderline
aggravated [case].”
       We decline to order a remand because it is not reasonably probable the trial
court would impose a different sentence. (People v. Coelho (2001) 89
Cal.App.4th 861, 889-890 [where the trial court was unaware of the breath of its
discretion, no reversal and remand for resentencing is necessary as the remand
would be an idle act that exalts form over substance because it is not reasonably
probable the court would impose a different sentence]; see also People v. Fuhrman
(1997) 16 Cal.4th 930, 945-946 [no remand required where record shows that it is
unlikely that the trial court would strike the prior conviction in a three strikes



                                           9
case].) Defendant gave the court no reason to believe that she would comply with
the conditions of her probation in the future.
                               II. Presentence Credit
       Under section 2900.5, a person sentenced to state prison for criminal
conduct is entitled to credit against the term of imprisonment for all days spent in
custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019
provides that a criminal defendant may earn additional presentence credit against
his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b))
and compliance with rules and regulations (§ 4019, subd. (c)). These forms of
presentence credit are called, collectively, conduct credit. (People v. Dieck (2009)
46 Cal.4th 934, 939, fn. 3.)
       When defendant was sentenced in January 2009, under the version of
section 4019 then in effect, conduct credit could be accrued at the rate of two days
for every four days of actual presentence custody. (Former § 4019.) In October
2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate
Bill 18). Senate Bill 18 “addresses the fiscal emergency declared by the Governor
by proclamation on December 19, 2008.” (Stats. 2009, 3d Ex. Sess., ch. 28, § 62.)
Its provisions provide various means by which prison populations may be reduced,
thereby easing prison overcrowding and lowering the cost. This Bill, among other
things, amended section 4019, effective January 25, 2010, to provide that any
person who is not required to register as a sex offender and is not being committed
to prison for, or has not suffered a prior conviction of, a serious felony as defined
in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), to
accrue conduct credit at the rate of four days for every four days of presentence
custody.
       Defendant contended that the amendment applies retroactively and, because
her conviction was not final on January 25, 2010, the amendment applies to her.
“[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a
change in the law during the pendency of his appeal.” (People v. Babylon (1985)


                                          10
39 Cal.3d 719, 722.) “ „[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.)
       In Brown, supra, 54 Cal.4th 314, the Supreme Court rejected the
defendant‟s argument that the statute applies retroactively and held that the
amendment to section 4019 applies prospectively only. (Brown, at p. 318.) The
court also concluded that the prospective application of Senate Bill No. 18 does
not violate equal protection principles. (Brown, at pp. 328-330.) Defendant, here,
is therefore not entitled to the benefits of amended section 4019 for any time spent
in custody prior to the amendment‟s effective date of January 25, 2010. Thus, the
lower court properly calculated defendant‟s conduct credit based on former section
4019, and awarded defendant 289 days of presentence custody credit (193 actual
days in custody plus 96 work and conduct credits).
                                   DISPOSITION
       The judgment is affirmed.



                                                 _________________________
                                                 Lambden, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




                                         11
