Opinion
D058659
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ANTHONY DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD207382)
APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Christopher Anthony Davis was charged with one count of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and one count of possessing cocaine base (Health & Saf. Code, § 11351.5) within 1,000 feet of an educational institution (Health & Saf. Code, § 11353.6, subd. (b)). It was further alleged Davis had three prior drug-related convictions (Health & Saf. Code, § 11370, subd. (a)).
Davis spent 117 days in local custody before the court sentenced him to eight years in state prison on May 9, 2008. The court awarded presentence credits of 175 days for the 117 days of actual custody plus 58 days of conduct credit pursuant to Penal Code section 4019. (Undesignated statutory references will be to the Penal Code.)
" 'Conduct credit' collectively refers to worktime credit pursuant to [Penal Code] section 4019, subdivision (b), and to good behavior credit pursuant to [Penal Code] section 4019, subdivision (c)." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck), italics added.)
At the time of sentencing in this case, section 4019 provided for an award of up to two days of conduct credit for every four days that a defendant was in actual presentence custody. (See People v. Buckhalter (2001) 26 Cal.4th 20, 30.)
In November 2010, more than two years after he was sentenced and committed to the Department of Corrections and Rehabilitation, Davis filed a motion seeking an additional 59 days of presentence custody credits for a total of 234. He asserted he was entitled to the additional credits for the 117 days he spent in presentence custody because the amendments to section 4019 that were effective from January 25, 2010 through September 27, 2010 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428) (the January 25, 2010 amendments) apply retroactively and double the conduct credits awarded for time he spent in local presentence custody. The court disagreed and denied the motion. This appeal challenges the denial of Davis's motion.
Davis claims that, despite the fact that the judgment was final before the January 25, 2010 amendments became effective, and, thus, the judgment was final when he brought his November 2010 motion for an additional 59 days of section 4019 presentence custody credits, he is entitled to the retroactive benefit of the more favorable conduct credit ratio of one day of conduct credit for every one day of local presentence custody actually served as set forth in the January 25, 2010 amendments because the failure to apply this more favorable conduct credit ratio violates federal and state guarantees of equal protection of the laws. We conclude the January 25, 2010 amendments do not apply retroactively to Davis in this case because the judgment of conviction was final before the amendments became effective, and the retroactive application of the amendments to the final judgment would violate the separation of powers doctrine. Accordingly, we affirm the court's denial of Davis's motion for an additional 59 days of section 4019 local presentence custody credits.
As Davis was sentenced on May 9, 2008 and he never filed a notice of appeal, the judgment became final on July 9, 2008, 60 days after he was sentenced. (See People v. Vieira (2005) 35 Cal.4th 264, 306; California Rules of Court, rule 8.308 [in criminal cases a notice of appeal "must be filed within 60 days after the rendition of the judgment or the making of the order being appealed"].)
The California Supreme Court used the term "conduct credit ratio" in Dieck, supra, 46 Cal.4th at page 942 ["[former] section 4019, subdivisions (b) and (c) cannot be read as limiting conduct credit entitlement only to those who have served a six-day period of confinement, because such an interpretation would alter the conduct credit ratio set forth in the statute" (italics added)]. We use this term to refer to the number of conduct credits a defendant is eligible to earn under section 4019 for a given period of time actually spent in presentence local custody.
DISCUSSION
The facts underlying Davis's conviction are not relevant to the issue on appeal.
--------
In light of the undisputed fact that the judgment of conviction in this case was final before the January 25, 2010 amendments to section 4019 became effective, we reject Davis's claim that equal protection principles require that those amendments be applied retroactively in this case, because retroactive application of those legislative amendments to the final judicial judgment would violate the separation of powers doctrine.
"The California Constitution divides power equally among three branches of state government: the Legislature (Cal. Const., art. IV, § 1); the executive branch (Cal. Const., art. V, § 1); and the courts. (Cal. Const., art. VI, § 1.) Although there is a certain overlap and interdependence among the three branches, each is constitutionally vested with certain 'core' or 'essential' functions that the others may not perform." (Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 176 (Perez) citing People v. Bunn (2002) 27 Cal.4th 1, 14, 16 (Bunn).)
The separation of powers doctrine protects each branch's core constitutional functions against usurpation by another branch and is embodied in article III, section 3, of the California Constitution, which states that "[p]ersons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Bunn, supra, 27 Cal.4th at p. 5.) The purpose of the separation of powers doctrine "is to prevent both the concentration of power in a single branch of government and overreaching by one branch against another." (Perez, supra, 146 Cal.App.4th at pp. 176-177, citing Bunn, , supra, at p. 16.)
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the California Supreme Court suggested that the separation of powers doctrine limits the retroactive application of an amended statute mitigating punishment to judgments that are not final on the effective date of the amended statute. Specifically, the high court stated:
"If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Id. at p. 745, italics added.)
Later in the opinion, the Estrada court reiterated that retroactive application of an amendatory statute lessening punishment is limited to judgments that are not final on the effective date of the statute:
"When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745, italics added.)
Estrada properly draws a distinction between final and nonfinal judgments of conviction because holding otherwise to retroactively apply legislatively mitigated punishment to judgments finalized by the courts would be tantamount to readjudicating litigated controversies in violation of the separation of powers doctrine. In this regard, the California Supreme Court has explained that "the Legislature may not undertake to readjudicate controversies that have been litigated in the courts and resolved by final judicial judgment." (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53, citing Mandel v. Myers (1981) 29 Cal.3d 531, 547-550 (Mandel); Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211.) Explaining that "direct legislative influence over the outcome of judicial proceedings is constitutionally constrained," the high court stated in Bunn:
"Separation of powers principles do not preclude the Legislature from amending a statute and applying the change to both pending and future cases, though any such law cannot 'readjudicat[e]' or otherwise disregard judgments that are already 'final.' " (Bunn, supra, 27 Cal.4th at p. 17, italics added, citing Mandel, supra, 29 Cal.3d at p. 547 & Hunt v. Superior Court (1999) 21 Cal.4th 984, 1008.)
Following Estrada and relying on the separation of powers doctrine, appellate courts have adopted a finality of judgment rule prohibiting the retroactive application of a statute to a final judgment. In Perez, supra, 146 Cal.App.4th at page 188, the Court of Appeal held "the Legislature violated the separation of powers doctrine when it amended [Code of Civil Procedure] section 340.1 to revive childhood sex abuse actions where a final judgment had been entered under the statute of limitations that previously existed." In support of its holding, the Perez court explained that, "[a]lthough the Legislature was guided by understandable intentions in this case—recognizing the need for an extended and revived limitations period due to the delayed discovery of harm that is inherent in childhood sexual abuse—the separation of powers doctrine 'is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved.'" (Perez, 146 Cal.App.4th at p. 189, quoting Plaut v. Spendthrift Farm, Inc., supra, 514 U.S. at p. 228, original italics.)
In Bennett v. Procunier (1968) 262 Cal.App.2d 799 (Bennett), the Court of Appeal addressed an issue similar to the one Davis raises here, that is, whether an amended statute potentially increasing custody credits could be applied retroactively to a final judgment. (Id. at pp. 799-800.) The Bennett court held the amended statute could not be so applied, reasoning:
"The foregoing rule [allowing retroactive application of amended statutes reducing the penalty for a crime] is expressly limited to situations in which the judgment has not become final before the enactment of the new legislation. Here, the judgment was final before the amendment, and the petitioner is bound by law as it existed at that time. The trial court was right in denying any modification of the judgment." (Id. at p. 801, italics added.)
For all of the foregoing reasons, we conclude Davis is not entitled to the additional conduct credits he requested because the January 25, 2010 amendments to section 4019 cannot constitutionally be retroactively applied to cases like his in which the judgment of conviction became final before those amendments went into effect as such application would violate the separation of powers doctrine.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
McINTYRE, J.
AARON, J.