NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RAMIREZ, P. J.

Defendant and appellant Mark Anthony Torres contends the trial court erred by calculating his conduct credits at two different rates. We hold that his conduct credits should have been calculated entirely under Penal Code1 section 2933 because an amendment to that section was operative at the time of his sentencing. Accordingly, we modify the judgment to correct the credit award and otherwise affirm.

BACKGROUND

On March 18, 2005, defendant pled guilty to receiving stolen property. (§ 496, subd. (a).) On April 18, 2005, he was placed on probation.

Section 4019 was amended effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.) This amendment increased the ratio by which section 4019 conduct credits are calculated from two days of conduct credit for every four days of presentence custody, to two days of conduct credit for every two days of custody. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50.)

The previous ratio was restored to section 4019 by an amendment that became operative on September 28, 2010. (Stats. 2010, ch. 426, §§ 2, 5.) However, the change only applies to persons confined for a crime committed on or after the effective date of the amendment. (§ 4019, subd. (g).) Section 2933 was also amended to provide conduct credits upon execution of a prison sentence. (Stats. 2010, ch. 426, § 1.)

On October 5, 2010, defendant admitted he had violated his probation by leaving the state without permission. The trial court imposed a low prison term of 16 months. Defendant had spent 116 days in presentence local custody; the trial court awarded 44 days of section 4019 conduct credit for the 88 days defendant had been in custody prior to January 25, 2010, and awarded 28 days of section 4019 conduct credit for the 28 days defendant had been in custody after January 25, 2010.

DISCUSSION

Defendant initially contended the entirety of his conduct credits should have been calculated pursuant to the increased ratio of the January 25, 2010 version of section 4019 and not pursuant to the September 28, 2010 version of section 4019 because he committed his offense prior to September 28, 2010. The People contended that credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation "is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5," and that a contrary interpretation would create equal protection violations. The People agree that the September 28, 2010 amendment to section 4019 does not apply to defendant.

Neither defendant nor the People addressed the September 28, 2010 amendment to section 2933. Accordingly, we requested supplemental briefing.

Without asserting which provision applies, defendant contends his conduct credits should have been calculated using either the two-for-two ratio of the January 25, 2010 version of section 4019 or the one-for-one ratio of section 2933; thus, either way he is entitled to additional conduct credits. The People contend that section 2933 credits are to be awarded by prison authorities and not trial courts, that the September 28, 2010 amendments do not clarify the Legislature's intent as to the earlier amendment of section 4019, and that the amendment of section 2933 is prospective so as to not be applicable to defendant.

We reject a bifurcated or split calculation of conduct credits and, because the amendment to section 2933 was operative when defendant was sentenced, we hold that defendant's conduct credits should have been calculated entirely under that section.

Determining the Ratio for Calculating Conduct Credits

"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere . . . `prior to the imposition of sentence' may also be eligible for good behavior credits . . . . `[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody `prior to sentencing,' add applicable good behavior credits . . . and reflect the total in the abstract of judgment. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed "[a]t the time of sentencing." (Cal. Rules of Court, rule 4.310.) "[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]" (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler).)

It has been long established that presentence conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available "`"all or nothing."'" (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814.) Instead, they "are credited to the defendant's term of imprisonment `in the discretion of the court imposing the sentence.' [Citation.] It is the duty of the sentencing court to determine `the total number of days to be credited . . .' for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to . . . credits. [Citation.]" (Duesler, supra, 203 Cal.App.3d at p. 276.) "If the record fails to show that defendant is not entitled to such credits . . . he shall be granted them." (Johnson, at p. 815.) Thus, conduct credits are not accumulated by segment and are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the ratio provided by the law in effect at the time of sentencing. Accordingly, the trial court had to calculate conduct credits using the ratio in effect on September 28, 2010, and was not authorized to calculate credits using a no-longer-operative law.

Because "a change in procedural law is not retroactive when applied to proceedings that take place after its enactment" (People v. Sandoval (2007) 41 Cal.4th 825, 845), applying a new formula to be used as the procedure for calculating conduct credits for periods of presentence custody predating the new formula's adoption is not a retroactive application.

We reject the People's contentions that applying custody credit increases to all presentence custody defeats the purpose of conduct credits or creates equal protection violations.

Underlying the People's first contention is the premise that a defendant sentenced after an increase became effective, could not have had their behavior in custody influenced by the availability of increased conduct credits. However, this premise is immaterial to the purpose of conduct credits as amendments to increase credits preserve the purpose of rewarding good behavior—the Legislature has merely decided to provide an increased reward.

As to the second contention, the purported equal protection violation is temporal and the distinction is thus rational as "`[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 189-191 ["`punishment-lessening statutes given prospective application do not violate equal protection'"]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)

Section 2933 or Section 4019

Former section 2933, subdivision (e), provided credit for time spent in local custody after the date a defendant was sentenced to prison. After the September 28, 2010 amendment, subdivision (e) now provides: "Notwithstanding Section 4019 . . . a prisoner sentenced to the state prison . . . 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, city jail, industrial farm, or road camp from the date of arrest until state prison credits . . . are applicable to the prisoner." (§ 2933, subd. (e)(1).) It also provides that such credit may not be received "if it appears by the record that the prisoner has refused to satisfactorily perform labor . . . or has not satisfactorily complied with the reasonable rules and regulations." (§ 2933, subd. (e)(2).) Lastly, "Section 4019, and not this subdivision, shall apply" for sex offenders, those committed for a serious felony, and those with a prior conviction for a serious or violent felony. (§ 2933, subd. (e)(3).)

Section 2900.5, subdivision (d), requires a sentencing court "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 this section." However, subdivision (a) states: "when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order . . . credited to the period of confinement pursuant to Section 4019 . . . shall be credited upon his or her term of imprisonment." Section 2900.5, subdivision (e), states: "It shall be the duty of any agency to which a person is committed to apply the credit provided for in this section for the period between the date of sentencing and the date the person is delivered to the agency."

While section 2900.5 does not refer to section 2933, it also does not preclude a trial court's application of section 2933 pursuant to its duties under section 2900.5. Furthermore, the new local custody conduct credits of section 2933, subdivision (e), are the same kind of credit, and are in lieu of, the conduct credits of section 4019 that are expressly referred to in section 2900.5. Similarly, while section 2933 otherwise deals with credits awarded by the Department of Corrections and Rehabilitation, subdivision (e) applies in place of section 4019, which is determined by a trial court at sentencing and applies upon execution of a prison sentence. As indicated in subdivisions (d) and (e) of section 2900.5, execution of sentence is the appropriate dividing line between a trial court's responsibility for determining conduct credits and that of the prison authorities.

Accordingly, we hold that a trial court's duties under section 2900.5 includes calculating and awarding section 2933, subdivision (e), local custody conduct credits, when those credits are in lieu of section 4019 credits. Furthermore, because section 2933, subdivision (e), and not section 4019, applied to defendant, his conduct credits should have been calculated under section 2933. Thus, because there was no showing that defendant had failed to perform assigned labor or follow rules, defendant was entitled to 210 days of section 2933, subdivision (e), conduct credit for his 210 days in presentence local custody.

DISPOSITION

The judgment is modified to set presentence credit for time served of 420 days, consisting of 210 actual days, and 210 days of section 2933, subdivision (e), conduct credit. The superior court clerk is directed to prepare a new minute order and a corrected abstract of judgment reflecting the custody credit modification. The clerk is then directed to forward certified copies of the new minute order and abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

McKINSTER, J. and CODRINGTON, J., concurs.