People v. Doganiere

Opinion

GARDNER, P. J.

Defendant was placed on probation on condition he serve time in the county jail. He did so, but his full sentence was reduced by good time/work time credited to him pursuant to Penal Code section 4019. Thereafter his probation was violated and he was sentenced to prison. Under Penal Code section 2900.5, the trial court gave him credit for the time actually spent in custody under his prior probation order. However, he also wants credit for the good time/work time he earned under Penal Code section 4019.

Under Penal Code section 2900.5 as it existed at the time of his original sentencing (it has been amended since as we shall see), defendant was entitled to credit only for dates actually spent in custody and not for any credit he might receive against his full term. Under the section as it then read, defendant simply could not get credit for days not served. Under the section as it then read, he could receive credit only for “all days of custody.” The trial court so held.

[239]

However, a problem arises in the application of a 1978 amendment to Penal Code section 2900.5. (In fairness to the trial judge, it should be noted that the issue was never presented at the trial level.)

In 1978, the section was amended to provide for the inclusion of days credited to the period of confinement pursuant to section 4019, i.e., good time/work time credits. The question is, “Does the amendment apply to the defendant?”

Penal Code section 3 provides that no part of the Penal Code is retroactive unless specifically so declared. However, in

In re Estrada,

63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], the Supreme Court carved out an exception of that rule.

Estrada

held that laws granting amelioration in punishment should be held to be retroactive as to nonfinal judgments because it would be presumed the amelioration of the punishment was based on the legislative finding that the former punishment was too severe. It would then follow, reasoned the