NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERREN, J.

Alberto Baez appeals the October 6, 2010, order revoking his probation and executing a previously stayed state prison sentence (Pen. Code,1 § 1237, subd. (b)). In accordance with the September 28, 2010, amendment to section 2933, appellant was awarded 80 days actual custody credit and 80 days conduct credit for the time he spent in custody from the date of his arrest on the probation violation until his sentence was executed. The trial court also credited appellant's sentence with the 266 days that were previously awarded under section 4019 when he was convicted in October 2009. Appellant contends the court was required to recalculate these prior credits under the September 28, 2010, amendment to section 2933. We agree with the court's conclusion that the amendment does not apply to the time appellant spent in custody prior to his conviction, the credits for which were included in a judgment that became final in December 2009. The abstract of judgment, however, fails to include the 160 days of credit that were awarded for appellant's time in custody on the probation violation. We shall order the judgment modified to correct this clerical error. Otherwise, we affirm.

STATEMENT OF THE CASE

On September 9, 2009, appellant pled guilty to unlawfully driving or taking a vehicle (Veh. Code, § 10851) and misdemeanor battery (§ 243, subd. (e)(1)). He also admitted serving two prior prison terms (§ 667.5, subd. (b)). On October 19, 2009, the court imposed a three-year state prison sentence on the charge of unlawfully driving or taking a vehicle. Execution of the sentence was suspended and appellant was granted three years probation. Pursuant to section 4019, subdivision (b), appellant was awarded 178 days actual custody credit, plus 88 days good conduct credit, for a total of 266 days presentence custody credit. As to the misdemeanor battery charge, the court sentenced appellant to 266 days in county jail with credit for time served.

On July 19, 2010, appellant's probation was revoked. On October 6, 2010, probation was terminated and the previously suspended three-year prison term was executed. Appellant was awarded 160 days presentence custody credit, consisting of 80 days actual custody credit (the amount of time spent in custody following the revocation of probation) and 80 days conduct credit. The court also credited appellant's sentence with the 266 days presentence custody credit that were included in the judgment of conviction. In doing so, the court rejected appellant's claim that the prior credits had to be recalculated under the current statutory scheme, which would give him an additional 90 days conduct credit.2 The court reasoned: "The Court is simply confirming the credits . . . award[ed] to [appellant] on this case on October 19, 2009, which were 178 actual, plus 88 good time/work time, for a total of 266. . . . [¶] The Court also notes that although a grant of probation was issued, the Court's pronouncement of sentence on this case . . . bec[a]me final on December 19, 2009, well before the imposition . . . of the modifications to [section] 4019 [and section 2933] . . . ."

DISCUSSION

When appellant was convicted and sentenced in October 2009, section 4019 provided that he was eligible to receive two days of conduct credit for every four days actually served in presentence custody. (Former § 4019, subds. (b), (c).) Effective January 25, 2010, section 4019 was amended to provide four days of conduct credit for every four days presentence custody. (Former § 4019, subds. (b)(1), (c)(1); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) On September 28, 2010, section 4019 was amended again to restore the former computation for prisoners confined for crimes committed after the amendment went into effect. (Stats.2010, ch. 426, § 2; § 4019, subds. (b) & (g).) That same date, section 29333 was amended to provide, with exceptions not relevant here, that prisoners sentenced to state prison for whom the sentence is executed shall receive "one-for-one" presentence custody credits (i.e., one day of credit for every day actually served). (Stats. 2010, ch. 426, § 1; § 2933, subd. (e).)4

Appellant contends that the custody credits he was awarded under section 4019 when his sentence was imposed in October 2009 should have been recalculated under section 2933 when the sentence was executed in October 2010. He first argues that the statute applies retroactively because it lessens punishment and does not include a saving clause. He alternatively asserts that he is entitled to the additional credits under a prospective application of the statute because the amendment was in effect when his sentence was executed following the violation of his probation. He also claims that recalculation of his prior credits under section 2933 is compelled by the equal protection clauses of the state and federal Constitutions. None of these claims has merit. As the court correctly found, appellant is not entitled to additional credit for time he spent in custody prior to his conviction under a statutory amendment that was enacted after his conviction became final.

No part of the Penal Code is "retroactive, unless expressly so declared." (§ 3.) "`[A] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Absent "an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) Our Supreme Court has recognized, however, that "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (In re Estrada (1965) 63 Cal.2d 740, 748.) This rule of retroactivity applies only in cases in which the defendant's conviction is not yet final: "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (Id. at p. 744.)

Appellant was convicted, sentenced, and granted probation on October 19, 2009. "An order granting probation and imposing sentence, the execution of which is suspended, is an appealable order. (§ 1237, subd. (a) . . . .) . . . [¶] In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citations.] Thus, a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation. [Citations.] As relevant here, when a court imposes sentence but suspends its execution at the time probation is granted, a defendant has the opportunity to challenge the sentence in an appeal from the order granting probation. [Citation.] If the defendant allows the time for appeal to lapse during the probationary period, the sentence becomes final and unappealable. [Citation.] This is so regardless of the fact the defendant will not serve the sentence unless the court revokes and terminates probation before the probationary period expires." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; cf. People v. Howard (1997) 16 Cal.4th 1081, 1088-1095.)

When appellant was sentenced on October 19, 2009, section 4019 provided that he was entitled to two days of conduct credit for every four days of actual custody. The court accordingly awarded him 178 days actual custody credit and 88 days conduct credit, for a total of 266 days. That calculation became part of the judgment, which became final 60 days later. Because section 2933 was not amended until September 28, 2010, the rule of retroactivity established in Estrada does not apply with regard to his time spent in custody prior to his conviction. Moreover, appellant received the prospective application of the statute to which he was entitled. As we previously indicated, appellant's credit for the time he served in 2010 on the probation violation was calculated in accordance with section 2933 as it existed when the sentence was executed on October 6, 2010. In other words, he received one day of conduct credit for every day he served from the date of his arrest on the probation violation until the date his sentence was executed. (§ 2933, subd. (e)(1).)5

Appellant's equal protection claim fails because, among other things, he fails to demonstrate that the state has no legitimate interest in refusing to apply a newly-enacted statute to convictions that have long since become final. "`A refusal to apply a statute retroactively does not violate the Fourteenth Amendment.' [Citation.] `[T]he Fourteenth 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.' [Citations.]" (Baker v. Superior Court (1984) 35 Cal.3d 663, 668-669.)

In arguing that he is entitled to additional presentence custody credits, appellant overlooks the fact that the abstract of judgment fails to include the 160 days of credit he was awarded under section 2933 for the time he spent in custody following his arrest for the probation violation. We shall exercise our authority to correct this apparently inadvertent clerical error. (See People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

DISPOSITION

The judgment is modified to reflect the award of an additional 160 days presentence custody credit, consisting of 80 days actual custody credit and 80 days conduct credit. The trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

GILBERT, P.J. and COFFEE, J., concurs.