Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F09901370
Opinion Modifying Opinion and Denying Petition for Rehearing
CORNELL, J.
THE COURT:
It is ordered that the nonpublished opinion filed herein on June 11, 2010, be modified as follows:
On page 5, after the last paragraph in the section labeled “SECTION 17(b) DISCRETION, ” add a new section labeled “SECTION 4019” and insert the following five paragraphs into that new section:
SECTION 4019
Under Penal Code section 4019, all persons who, like appellant, are confined in county jail before being sentenced (Pen. Code, § 4019, subd. (a)(1)), can earn credit against such sentence for willingness to perform assigned labor (Pen. Code, § 4019, subd. (b)) and compliance with rules and regulations (Pen. Code, § 4019, subd. (c)). (All further statutory references are to the Penal Code.) We refer to such credit as conduct credit.
The court sentenced appellant in July 2009, and ― calculating appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody ― awarded him 222 days of presentence credit, consisting of 148 days of actual time credit and 78 days of section 4019 conduct credit. However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019 (the amendment), we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles.
Under section 3, it is presumed that a statute does not operate retroactively “absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].” (People v. Alford (2007) 42 Cal.4th 749, 753-754.) The Legislature neither expressly declared, nor does it appear by “clear and compelling implication” from any other factor(s), that it intended the amendment operate retroactively. (Ibid.) Therefore, the amendment applies prospectively only. We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].) (The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
This modification does not affect a change in the judgment.
The petition for rehearing is denied.
WE CONCUR: LEVY, Acting P.J., GOMES, J.