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Name: People v. Landon
Case #: A123779
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 04/13/2010
Subsequent History: rev. granted 6/23/10 (S182808)

Amended Penal Code section 4019, which changed the calculation of presentence conduct credit, applies retroactively. While this appeal was pending, the Legislature amended section 4019. Defendant filed a motion in the trial court requesting that her presentence conduct credits be calculated in accordance with the amended statute. The trial court denied the request, finding that the amended statute did not apply retroactively. Defendant appealed from this ruling. The court noted SB 18 has neither a saving clause nor an express statement of intent. But, under In re Estrada (1965) 63 Cal.2d 740, if the amendment reduces punishment, retroactive application must be presumed as to cases not yet final on the effective date. The amendment to section 4019 reduces punishment for a subset of prisoners who have good conduct in jail. It is insignificant that the time reduction is tied to conduct instead of to a specific offense. Moreover it can be reasonably inferred from section 59 of SB 18 that the Legislature intended retroactive application. (Accord People v. Brown (2010) 182 Cal.App.4th 1354.)
A sentencing remand is not required where an appellant cannot show prejudice from the alleged sentencing error. The trial court found appellant presumptively ineligible for probation because of her out-of-state priors. Appellant argued that all but one of the priors should not have been considered because there was insufficient evidence to show they qualified as felonies in California. Respondent countered a sentencing remand was not necessary even if appellant was not presumptively ineligible for probation because she could not establish prejudice from any sentencing error. The appellate court agreed with respondent. Appellant is entitled to a sentencing remand where it can be shown it is reasonably probable the trial court would impose a different sentence. The evidence presented at the sentencing hearing overwhelmingly showed appellant would not be able to comply with conditions of probation. This was appellant’s fifth DUI conviction, and a sixth DUI case was pending. Appellant had been given several chances to address her alcoholism to no avail. Under these circumstances, the court would not have granted probation even if she was not found presumptively ineligible. Since appellant cannot show prejudice, remand is not required.