Filed 4/8/15 P. v. Lee CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT 

DIVISION FIVE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CLIFTON LEE, 

 Defendant and Appellant. 

 B257221 

 (Los Angeles County 

 Super. Ct. No. BA404953) 

 APPEAL from an order of the Superior Court of Los Angeles County, Clifford 

Klein, Judge. Reversed and remanded with directions. 

 Coleman, Balogh & Scott, Evan C. Greenberg, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, 

Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for 

Plaintiff and Respondent. 

_____________________ 
2

 Defendant Clifton Lee appeals from the trial court’s denial of his postjudgment 

motion to apply excess custody credits to his $180 restitution fine pursuant to Penal Code 

section 2900.5. 1 Defendant contends, and the Attorney General concedes, that the 

version of section 2900.5 in effect at the time of the original sentencing hearing entitles 

defendant to offset the restitution fine with excess custody credits. We agree and 

conclude the court imposed an unauthorized sentence. We reverse the postjudgment 

order and remand the cause to the trial court to apply excess custody credits to satisfy the 

restitution fine. 

PROCEDURAL HISTORY2

 Because we are only reviewing the trial court’s denial of defendant’s 

postjudgment motion, we will not recount the statement of facts on appeal. 

 On November 16, 2012, defendant was arrested and taken into custody following a 

fight during which defendant struck the victim with a glass bottle. After a preliminary 

hearing on December 4, 2012, the court held the defendant to answer and ordered 

defendant into custody. Defendant remained in custody throughout the pendency of his 

case. On October 10, 2013, a jury convicted defendant of misdemeanor assault (§ 240). 

That same day, the court sentenced defendant to a six-month jail term with credit for six 

months already served and imposed a $180 restitution fine. On May 5, 2014, defendant 

filed a motion under section 2900.5 to apply excess custody credits to his restitution fine. 

On June 16, 2014, the court denied the motion and defendant timely filed a notice of 

appeal. 

 

1 All further references are to the Penal Code, unless otherwise stated. 

2 We grant the Attorney General’s request for judicial notice of the entire record in 

defendant’s prior appeal to this court. (People v. Lee (Oct. 10, 2014, B252810) [nonpub. 

opn.].) 
3

DISCUSSION 

 The trial court was required to apply defendant’s excess custody credits to his 

$180 restitution fine at the October 10, 2013 sentencing hearing under the then-existing 

version of section 2900.5. The court imposed an unauthorized sentence for two reasons: 

(1) the amendment to section 2900.5 subdivision (a) striking “restitution fines” from the 

statute effective January 1, 2014, does not apply retroactively, and; (2) the court failed to 

calculate and allocate defendant’s custody credits at his sentencing hearing pursuant to 

section 2900.5 subdivision (d). 

 Pursuant to section 2900.5, subdivision (a), when a defendant’s custody time 

exceeds the sentence, the excess custody time may be applied to fines. When defendant 

was sentenced in 2013, subdivision (a) of section 2900.5 stated in pertinent part: “In all 

felony and misdemeanor convictions . . . all days of custody of the defendant . . . shall be 

credited upon his or her term of imprisonment, or credited to any fine on a proportional 

basis, including, but not limited to, base fines and restitution fines, which may be 

imposed, at the rate of not less than thirty dollars ($30) per day . . . . [W]here the court 

has imposed both a prison or jail term of imprisonment and a fine, any days to be credited 

to the defendant shall first be applied to the term of imprisonment imposed, and thereafter 

the remaining days, if any, shall be applied to the fine on a proportional basis, including, 

but not limited to, base fines and restitution fines.” (Former § 2900.5, subd. (a).) 

 In its ruling on defendant’s postjudgment motion, the trial court noted that section 

2900.5, subdivision (a), was amended effective January 1, 2014, to strike “restitution 

fines,” which can be satisfied by jail credits. (Stats. 2013, ch. 59, § 7.) The court pointed 

to section 1205, subdivision (f), which defendant did not cite, that “states in relation to 

fines satisfied by jail credits, ‘This section shall not apply to restitution fines and 

restitution orders.’” Therefore, the amendment to section 2900.5 “clarified that both 

statutes should be read as consistent as not pertaining to restitution fines. Based on these 

statutes, the petition is denied.” 

 “Whether a statute operates prospectively or retroactively is, at least in the first 
4

instance, a matter of legislative intent. When the Legislature has not made its intent on 

the matter clear with respect to a particular statute, the Legislature’s generally applicable 

declaration in section 3 provides the default rule: ‘No part of [the Penal Code] is 

retroactive, unless expressly so declared.’ We have described section 3, and its identical 

counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the 

time-honored principle . . . that in the absence of an express retroactivity provision, a 

statute will not be applied retroactively unless it is very clear from extrinsic sources that 

the Legislature . . . must have intended a retroactive application.’ (Evangelatos v. 

Superior Court (1988) 44 Cal.3d 1188, 1208-1209 (Evangelatos); see also id., at p. 1208 

[requiring ‘“express language or [a] clear and unavoidable implication [to] negative[ ] the 

presumption”’].) In applying this principle, we have been cautious not to infer 

retroactive intent from vague phrases and broad, general language in statutes. 

(Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229-230; see 

Evangelatos, [supra,] at p. 1209, fn. 13.) Consequently, ‘“a statute that is ambiguous 

with respect to retroactive application is construed . . . to be unambiguously 

prospective.”’ (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841, 

quoting I.N.S. v. St. Cyr (2001) 533 U.S. 289, 320-321, fn. 45.)” (People v. Brown 

(2012) 54 Cal.4th 314, 319-320.) 

 We need not address whether the trial court correctly interpreted the amendment to 

section 2900.5 effective January 1, 2014. This amendment did not apply at the time of 

defendant’s offense and sentencing and the 2014 amendment makes no reference to 

retroactive application as required by section 3. “Furthermore, nothing in the legislative 

history of section 2900.5 . . . suggests the Legislature intended the statute to have such an 

effect.” (People v. Brown, supra, 54 Cal.4th at p. 322.) Therefore, any substantive 

change in section 2900.5 applies prospectively and it was error for the court not to apply 

defendant’s excess custody credits to the $180 restitution fine at the 2103 sentencing 

hearing. The failure to accurately award custody credits results in an unauthorized 

sentence, subject to correction at any time. (People v. Brite (1983) 139 Cal.App.3d 950, 

955 [trial court’s failure to comply with section 2900.5, subdivision (d), in the first 
5

instance made its initial finding and resulting sentence a nullity]; see People v. Jack

(1989) 213 Cal.App.3d 913, 916-917 [unauthorized award of presentence credits may be 

corrected at any time].) 

 Moreover, “[i]t is the duty of the court imposing the sentence 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 . . . section [2900.5].” (§ 2900.5, subd. (d).) 

The court’s failure to comply with section 2900.5 subdivision (d) renders the sentence a 

nullity so that the court may correct the judgment at any time. 

 The trial court imposed a six-month sentence, and awarded six months of credit 

for time served. Defendant, however, had served more than six months in custody before 

sentencing. As the Attorney General concedes, it appears from the record that defendant 

remained in custody 329 days from his November 16, 2012 arrest until he was sentenced 

and released on October 10, 2013. Defendant is entitled to apply his excess custody 

credits to his restitution fine at a minimum of $30 per day pursuant to the pre-2014 

version of section 2900.5, subdivision (a). Only six days of excess custody credit is 

required to satisfy the $180 restitution fine imposed by the trial court. 
6

DISPOSITION 

 The order denying defendant’s motion to apply his excess presentence custody 

credits to the $180 restitution fine is reversed. The cause is remanded to the trial court 

with directions to apply the pre-2014 version of section 2900.5 to satisfy the restitution 

fine. 

 KRIEGLER, J. 

We concur: 

 TURNER, P.J. 

 MOSK, J.