Filed 7/12/13 P. v. Soto CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MALIA SOTO,

Defendant and Appellant.

 H038355

 (Monterey County

 Super. Ct. No. SS112299A)

In this appeal, Malia Soto (appellant) contends that a statutory amendment to 

Penal Code section 4019, which provides for earning presentence conduct credits at the 

rate of one day for every actual day served, must be applied to her, even though she 

committed her crimes before the operative date of the amendment. In addition, appellant 

contends that the lower court erred in imposing a probation revocation fine (§ 1202.44)1

that exceeded the restitution fine (§ 1202.4, subd. (b)) the court had imposed. For 

reasons that follow, we agree that the probation revocation fine must be reduced, but 

disagree that appellant is entitled to the increased custody credits she seeks. 

Facts and Proceedings Below

On February 17, 2012, the Monterey County District Attorney filed an amended 

information in which appellant was charged with pimping a minor over the age of 16 

 

1 All unspecified statutory references are to the Penal Code.
2

(§ 226h, subd. (b)(1), count one), battery (§ 242, count two), conspiracy to commit the 

crime of possessing or disseminating obscene material depicting a minor (§§ 182, subd. 

(a)(1), 311.2 subd. (b), count three) and battery on a spouse or cohabitant (§ 243, subd. 

(e), count four). All the crimes were alleged to have occurred on or about September 1, 

2011, through September 29, 2011. 

Subsequently, on March 22, 2012, in open court, the prosecutor moved to amend 

the charging document to add one count of abusing or endangering the health of a child 

(§ 273a, subd. (a), count five) and one count of possessing or controlling materials 

depicting a minor engaging in sexual conduct or simulated sexual conduct (§ 311.11, 

subd. (a), count six). Appellant moved to withdraw her plea of not guilty. She entered 

into a plea agreement under the terms of which she agreed to plead no contest to counts 

five and six in exchange for a promised disposition of felony probation, with a four-year 

eight-month prison term imposed, but with execution suspended, and the dismissal of all 

the remaining charges.2 After the court advised appellant of her constitutional rights and 

the consequences of her plea, appellant entered no contest pleas to counts five and six. 

On May 1, 2012, pursuant to the terms of the plea agreement, the court imposed 

but suspended execution of the four-year eight-month prison term and placed appellant 

on probation; the court ordered appellant to serve a 300-day county jail sentence, 

awarded her 225 days of presentence credits consisting of 113 actual days and 112 days 

of conduct credits pursuant to section 4019. The court ordered that appellant pay a $240 

restitution fine pursuant to section 1202.4, subdivision (b), and imposed but suspended a 

probation revocation fine of $480 pursuant to section 1202.44. Subsequently, however, 

on May 10, 2012, over appellant's objection, the court reduced appellant's custody credits 

to 181 days consisting of 121 actual days (as of the date of this hearing) and 60 days of 

conduct credits pursuant to section 4019. 

 

2 Appellant was advised that she would have to register as a sex offender. 
3

Appellant filed a timely notice of appeal and sought and was granted a certificate 

of probable cause. 

Discussion

Custody Credits

Appellant argues the trial court erred in restricting presentence conduct credits to 

33 percent (one for two credits) because the October 2011 amendment to section 4019, 

which awards one for one credits applies to all the time she spent in custody after the 

amendment's operative date.3 The probation officer's report indicates that appellant was 

arrested on January 26, 2012. 

Certainly, a criminal defendant is entitled to accrue both actual presentence 

custody credits under section 2900.5 and conduct credits under section 4019 for a period 

of incarceration prior to sentencing. Conduct credits may be earned under 4019 by 

performing additional labor (§ 4019, subd. (b)) and by an inmate's good behavior. (§ 

4019, subd. (c).) In both instances, the section 4019 credits are collectively referred to as 

conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is 

charged with awarding such credits at sentencing. (§ 2900.5, subd. (a).) 

Before January 25, 2010, conduct credits under section 4019 could be accrued at 

the rate of two days for every four days of actual time served in pre-sentence custody. 

(Stats.1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f) ].) Effective January 25,

2010, the Legislature amended Penal Code section 4019 in an extraordinary session to 

address the state's ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18 

amended section 4019 such that defendants could accrue custody credits at the rate of two 

days for every two days actually served, twice the rate as before except for those 

 

3 Generally, issues relating to the award of custody credits may not be raised for the 

first time on appeal. (§ 1237.1; People v. Clavel (2001) 103 Cal.App.4th 516, 518-519.) 

However, because appellant is raising another issue on appeal we may address this issue. 

(People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn. 3; People v. Acosta (1996) 48 

Cal.App.4th 411, 420-421.) 
4

defendants required to register as a sex offender, those committed for a serious felony (as 

defined in § 1192.7), or those who had a prior conviction for a violent or serious felony. 

(Stats.2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c), & (f) ].) 

Effective September 28, 2010, Penal Code section 4019 was amended again to 

restore the presentence conduct credit calculation that had been in effect prior to the 

January 2010 amendments, eliminating one-for-one credits (hereafter the September 2010 

amendment, Stats. 2010, ch. 426, § 2). By its express terms, the newly created section 

4019, subdivision (g), declared these September 28, 2010 amendments applicable only to 

inmates confined for a crime committed on or after that date, expressing legislative 

intention that they have prospective application only. (Stats. 2010, ch. 426, § 2.) This 

was the statute in place when appellant committed her crimes on or between 

September 1, 2011, and September 29, 2011. 

The current version of section 4019 (hereafter October 1 amendment) was in effect 

and operative beginning October 1, 2011, and at the time of sentencing in this case on 

May 1, 2012. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, pp. 5976-5977, eff. Sept. 21, 

2011, operative Oct. 1, 2011.)4 That section states in pertinent part "if all days are earned 

under this section, a term of four days will be deemed to have been served for every two 

days spent in actual custody." (§ 4019, subd. (f); see § 4019, subds. (b)-(e).) This award 

of custody credits is sometimes referred to as one-for-one credits. Nevertheless, 

subdivision (h) of section 4019 provides: "The changes to this section enacted by the act 

 

4

Initially, the 2011 changes to the accrual of conduct credit were made applicable 

to prisoners confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15, 

§ 482, pp. 497-498, eff. Apr. 4, 2011, operative Oct. 1, 2011 [former § 4019, subd. (h)].) 

Further amendments to section 4019 that were enacted before that legislation became 

operative made those changes applicable to prisoners confined for crimes committed on 

or after October 1, 2011. (See Stats. 2011, ch. 15, § 636, p. 622, eff. Apr. 4, 2011; Stats. 

2011, ch. 39, §§ 53, 68, pp. 1730-1731, 1742, eff. June 30, 2011, operative Oct. 1, 2011; 

Stats. 2011, ch. 40, § 3, p. 1748, eff. June 30, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 

12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.)
5

that added this subdivision shall apply prospectively and shall apply to prisoners who are 

confined to a county jail, city jail, industrial farm, or road camp for a crime committed on 

or after October 1, 2011. [Hereafter the first sentence] Any days earned by a prisoner 

prior to October 1, 2011, shall be calculated at the rate required by the prior law." 

(Hereafter the second sentence) 

Appellant argues that although the first sentence of subdivision (h) of section 4019 

indicates that the October 1 amendment is to apply only to crimes committed after 

October 1, 2011, the second sentence is inconsistent with this construction. Appellant 

contends that in order to give meaning to both sentences of this statute and to harmonize 

the seemingly conflicting language, this court should hold that even where the crime was 

committed prior to October 1, 2011, conduct credits for any time spent in custody on or 

after October 1, 2011 should be calculated based on the enhanced one-for-one credits. 

We are not persuaded so to do.

"[I]n reviewing the text of a statute, [courts] must follow the fundamental rule of 

statutory construction that requires every part of a statute be presumed to have some 

effect and not be treated as meaningless unless absolutely necessary. 'Significance 

should be given, if possible, to every word of an act. [Citation.] Conversely, a 

construction that renders a word surplusage should be avoided. [Citations.]' [Citations.]" 

(People v. Arias (2008) 45 Cal.4th 169, 180.) In addition, "[w]hen a statute is capable of 

more than one construction, ' "[w]e must . . . give the provision a reasonable and 

commonsense interpretation consistent with the apparent purpose and intention of the 

lawmakers, practical rather than technical in nature, which upon application will result in 

wise policy rather than mischief or absurdity." ' [Citations.]" (In re Reeves (2005) 35 

Cal.4th 765, 771, fn. 9.) Finally, "under the traditional 'rule of lenity,' language in a penal 

statute that truly is susceptible of more than one reasonable construction in meaning or 

application ordinarily is construed in the manner that is more favorable to the defendant. 

[Citation.]" (People v. Canty (2004) 32 Cal.4th 1266, 1277.)
6

"When construing a statute, our primary task is to ascertain the Legislature's 

intent. [Citation.] We begin our task by determining whether the language of the statute 

is ambiguous. [Citation.] A statutory provision is ambiguous if it is susceptible of two 

reasonable interpretations. [Citation.] ' "If there is no ambiguity in the language, we 

presume the Legislature meant what it said and the plain meaning of the statute governs." 

[Citation.]' [Citation.]" (People v. Dieck, supra, 46 Cal.4th at pp. 939-940.) 

Appellant contends that had "the Legislature intended the law to apply exclusively 

to crimes committed after its operative date, regardless of the time frame of custody, it 

would have either left out the second sentence, or altered it to make such an interpretation 

clear." 

In People v. Ellis (2012) 207 Cal.App.4th 1546 (review den. Oct. 31, 2012), with 

respect to subdivision (h) of section 4019, the Fifth District Court of Appeal concluded: 

"[T]he Legislature's clear intent was to have the enhanced rate apply only to those 

defendants who committed their crimes on or after October 1, 2011. [Citation.] The 

second sentence does not extend the enhanced rate to any other group, but merely 

specifies the rate at which all others are to earn conduct credits. So read, the sentence is 

not meaningless, especially in light of the fact the October 1, 2011, amendment to section 

4019, although part of the so-called realignment legislation, applies based on the date a 

defendant's crime is committed, whereas section 1170, subdivision (h), which sets out the 

basic sentencing scheme under realignment, applies based on the date a defendant is 

sentenced."5 (Id. at pp. 1553-1554.) 

Appellant submits that this court should reject the Ellis court's reading of section 

4019, since it ignores fundamental principles of statutory construction, is self-

 

5

Section 1170, subdivision (h)(6), now provides: "The sentencing changes made by 

the act that added this subdivision shall be applied prospectively to any person sentenced 

on or after October 1, 2011."
7

contradictory, and is at odds with the California Supreme Court's decisions in People v. 

Brown (2012) 54 Cal.4th 314 (Brown) and People v. Lara (2012) 54 Cal.4th 896. 

The Court of Appeal, Fourth District, Division 3, agrees with Ellis. In People v. 

Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam) (review denied Feb. 13, 2013), 

the court rejected an argument that the second sentence of section 4019, subdivision (h), 

"implies any days earned by a defendant after October 1, 2011, shall be calculated at the 

rate required by the current law, regardless of when the offense was committed." (Id. at 

p. 51.) The court concluded that such an interpretation would render meaningless the 

language in the first sentence (ibid.), which provides that the changes to the accrual of 

presentence conduct credit "shall apply prospectively and shall apply to prisoners who 

are confined to a county jail . . . for a crime committed on or after October 1, 2011." 

(§ 4019, subd. (h).) Accordingly, the court concluded that adopting the defendant's 

interpretation would violate an elementary rule requiring courts, if possible, ascribe 

meaning to every word, phrase, and sentence of a statute and to avoid interpretations that 

render some words superfluous. (Rajanayagam, supra, 211 Cal.App.4th at p. 51.)

The Rajanayagam court concluded: "[S]ubdivision (h)'s first sentence reflects the 

Legislature intended the enhanced conduct credit provision to apply only to those 

defendants who committed their crimes on or after October 1, 2011. Subdivision (h)'s 

second sentence does not extend the enhanced conduct credit provision to any other 

group, namely those defendants who committed offenses before October 1, 2011, but are 

in local custody on or after October 1, 2011. Instead, subdivision (h)'s second sentence 

attempts to clarify that those defendants who committed an offense before October 1, 

2011, are to earn credit under the prior law. However inartful the language of 

subdivision (h), we read the second sentence as reaffirming that defendants who 

committed their crimes before October 1, 2011, still have the opportunity to earn conduct 

credits, just under prior law. [Citation.] To imply the enhanced conduct credit provision 

applies to defendants who committed their crimes before the effective date but served 
8

time in local custody after the effective date reads too much into the statute and ignores 

the Legislature's clear intent in subdivision (h)'s first sentence." (Id. at p. 52, fn. omitted.)

"It is a settled principle of statutory construction, that courts should 'strive to give 

meaning to every word in a statute and to avoid constructions that render words, phrases, 

or clauses superfluous.' [Citations.] We harmonize statutory provisions, if possible, 

giving each provision full effect. [Citation.]" (In re C.H. (2011) 53 Cal.4th 94, 103.) 

As confirmed by the Supreme Court in Brown, supra, 54 Cal.4th 314, 322, 

footnote 11, the first sentence means just what it says, but the necessary corollary of that 

sentence is that it does not apply to crimes committed prior to October 1, 2011; and the 

necessary implication is that for crimes committed prior to October 1, 2011, the statutory 

scheme that was displaced by the new terms of Penal Code section 4019 continues to 

apply. It is axiomatic that since the new credit scheme applies prospectively (per the first 

sentence), everyone in jail prior to October 1, 2011, is there for a crime committed prior 

to that date, and subject to whatever credit scheme was operating at the time. However, 

to hold that appellant is entitled to the benefit of the October 1 amendment for days spent 

in custody after October 1, 2011, would require that we write an entire sentence into 

section 4019. That is, after the first sentence, we would have to add: However, if a 

defendant has not been sentenced by October 1, 2011, for a crime he or she committed 

before October 1, 2011, he or she is entitled to one-for-one credits for any time spent in 

custody after that date up to and including the date of sentencing. Appellate courts may 

not "rewrite the clear language of [a] statute to broaden the statute's application." (In re 

David (2012) 202 Cal.App.4th 675, 682; See People v. Statum (2002) 28 Cal.4th 682, 

692 [a court may not rewrite a statute to conform to a presumed intent that is not 

expressed].) As confirmed by the Supreme Court in Brown, the critical date in the statute 

is the date of the offense, and not the date when the presentence custody is served. (Id. at 

p. 322, fn. 11.) 
9

A number of courts have concluded that, as to crimes committed before October 1, 

2011, the current version of section 4019 is not applicable and former law governs 

calculation of conduct credit. (People v. Hul (2013) 213 Cal.App.4th 182, 186-187;

Rajanayagam, supra, 211 Cal.App.4th at p. 51; People v. Verba (2012) 210 Cal.App.4th 

991, 993; People v. Ellis, supra, 207 Cal.App.4th at p. 1553; see also People v. Kennedy

(2012) 209 Cal.App.4th 385, 400.) We reach the same conclusion. In so doing, we reject 

appellant's claim that she is entitled to the enhanced one-for-one credits for the time she 

spent in custody after October 1, 2011, up to and including the day she was sentenced. 

Probation Revocation Fine

As noted, at sentencing, the court imposed a restitution fund fine of $240, which is 

what the probation officer's report had recommended.6 However, the court imposed but 

suspended a probation revocation fine in the amount of $480; again, this was the amount 

that was recommended by the probation officer. 

Appellant argues that the probation revocation fine must be reduced to $240. 

Respondent concedes the issue. We accept that concession. 

Section 1202.44 provides, "In every case in which a person is convicted of a crime 

and a conditional sentence or a sentence that includes a period of probation is imposed, 

the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of 

Section 1202.4, assess an addition probation revocation restitution fine in the same 

amount as that imposed pursuant to subdivision (b) of Section 1202.4."

As can be seen, the statute requires a probation revocation fine in the "same 

amount" as the restitution fine imposed pursuant to section 1202.4, subdivision (b). 

Since the lower court imposed a restitution fine of $240, the probation revocation fine 

must be reduced to that amount. 

 

6 Appellant does not challenge the amount of this fine. 
10

Disposition

The judgment (order of probation) is modified to reflect the imposition of a $240 

probation revocation fine. As so modified the judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

______________________________

RUSHING, P. J.

______________________________

PREMO, J.