Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. KA039817 Charles E. Horan, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Edward Dominguez (defendant) appeals from the sentence imposed by the trial court after the court voided a 1999 plea agreement pursuant to which defendant pleaded guilty to brandishing a firearm at a person in a motor vehicle, in violation of Penal Code section 417.3, and admitted a prior juvenile adjudication that qualified as a strike offense under the “Three Strikes” law. The trial court vacated the four-year sentence imposed pursuant to the plea agreement and imposed a six-year sentence instead. Defendant contends the trial court abused its discretion by increasing his sentence by two years. Defendant further contends he is entitled to additional conduct credit under the amended version of section 4019. Respondent contends defendant’s appeal is barred because he failed to obtain a certificate of probable cause.
All further statutory references are to the Penal Code unless otherwise stated.
We hold that a certificate of probable cause is not required because defendant’s appeal does not challenge the validity of the plea agreement, but rather, the trial court’s discretion to determine the appropriate sentence within the constraints of the plea bargain. We further hold that the six-year sentence imposed was not an abuse of discretion and that defendant is entitled to additional conduct credit under section 4019.
BACKGROUND
1. The Crime
On February 19, 1998, the victim, James DeAnda (DeAnda), was in his car and stopped at a red light. Defendant, who had been following DeAnda, exited his own vehicle and approached the driver’s side of DeAnda’s car. Defendant demanded that DeAnda get out of the car, and then kicked DeAnda’s car door and hit the window when DeAnda refused to do so.
When the traffic signal turned green, DeAnda drove away, and defendant followed in his own car. DeAnda pulled over at a curb and defendant stopped alongside DeAnda’s vehicle. Because his car window would not roll down, DeAnda opened his car door and asked why defendant was following him. Defendant again demanded that DeAnda get out of the car, and DeAnda explained that he did not want to fight. Defendant reached under the driver’s seat of his car and pulled out a gun. Defendant pointed the gun at DeAnda’s head and squeezed the trigger. When the gun failed to discharge, defendant looked at the gun with an expression of surprise. DeAnda then drove away and reported the incident to the police.
2. The Charges
In a three-count information filed on July 14, 1998, defendant was charged in count 1 with brandishing a firearm in violation of section 417.3; in count 2 with possession of weapons on school grounds, in violation of section 626.10, subdivision (a); and in count 3 with assault with a firearm, in violation of section 245, subdivision (a)(2). The information further alleged, pursuant to section 1170.12, subdivisions (a) through (d), and section 667, subdivision (a)(1) and subdivisions (b) through (i), as to all counts, that defendant had suffered a prior juvenile adjudication for murder, and as to count 3, that defendant had personally used a firearm within the meaning of sections 12022.5, subdivisions (a) and (d), and section 1192.7, subdivision (c)(8).
Defendant initially pleaded not guilty and denied all of the special allegations. Pursuant to section 995, the trial court dismissed count 3.
3. The Plea Agreement and Prior Sentence
On February 18, 1999, defendant advised the trial court that he wished to plead no contest to count 1 in exchange for dismissal of count 2 and a total sentence of four years. Defense counsel informed the court that defendant had executed a plea form and had been advised that he faced a maximum potential sentence of 11 years. Under the terms of the plea agreement, defendant was to remain free of custody until April 26, 1999, and the prosecutor agreed to stay execution of the sentence until that date. The prosecutor explained to defendant that if he failed to surrender on April 26, 1999, the court could deem the plea agreement void and impose the maximum sentence: “[W]e’re going to count on you showing up on the 26th of April, and... if you fail to appear, willfully, if you’re sick or you run down on the road on April 26, 1999, before surrender, then the court is going to be free to sentence you to the maximum amount of time. Eleven years as opposed to the four.”
Defense counsel and the prosecutor mistakenly believed that defendant’s prior juvenile adjudication could serve as the basis for a five-year sentence enhancement under section 667, subdivision (a) that would apply in addition to a maximum potential sentence of six years (the upper term of three years under section 417.3, doubled to six years under the Three Strikes law).
Later in the proceedings, the prosecutor reiterated the consequences of defendant’s failure to surrender on April 26, 1999: “[I]f you are arrested for another criminal offense between now and then, or you willfully fail to appear on this date, the court could give you four years, but they would be free to give you as much as 11 years, which is the maximum amount of time.” After further discussion and explanation of this condition, the trial court accepted defendant’s plea and sentenced him to four years in state prison. Defendant failed to appear on April 26, 1999, and the court issued a bench warrant for his arrest.
4. Sentencing on July 21, 2009
Ten years after defendant failed to surrender, he was arrested following a traffic stop. At the July 21, 2009 sentencing hearing, the trial court voided the plea agreement and vacated the prior sentence. The court then explained that defendant’s prior juvenile adjudication could not serve as the basis for a sentence enhancement under section 667, subdivision (a), and that the maximum sentence that could be imposed was six years rather than eleven years.
After hearing argument from counsel, the statements of several witnesses who spoke on defendant’s behalf, and statements by defendant, the trial court imposed the upper term sentence of three years, doubled to six years under the Three Strikes law, and dismissed the remaining counts and allegations. The court awarded defendant 114 days of presentence credit, consisting of 76 days of credit for actual time served and 38 days of conduct credit.
Defendant filed the instant appeal. He did not obtain a certificate of probable cause to appeal.
DISCUSSION
I. Certificate of Probable Cause
“[S]ection 1237.5 provides that a defendant may not appeal ‘from a judgment of conviction upon a plea of guilty or nolo contendere’ unless the defendant has applied to the trial court for, and the trial court has executed and filed, ‘a certificate of probable cause for such appeal.’ [Citation.]” (People v. Shelton (2006) 37 Cal.4th 759, 766.) The purpose of such a requirement is “to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted.” (People v. Buttram (2003) 30 Cal.4th 773, 790 (Buttram).)
“Exempt from this certificate requirement are postplea claims, including sentencing issues, that do not challenge the validity of the plea. [Citations.] For example, ‘when the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was “part of [the] plea bargain.” [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself.’ [Citation.]” (People v. Cuevas (2008) 44 Cal.4th 374, 379.) An appeal that challenges the trial court’s discretion to impose a specified maximum sentence therefore does not require a certificate of probable cause.
Such is the case here. The terms of defendant’s plea agreement accorded the trial court discretion concerning the sentence to be imposed in the event defendant failed to surrender on the agreed upon date. Defendant’s claim on appeal is that the trial court abused the discretion the parties intended it to exercise. His challenge is therefore one contemplated and reserved by the plea agreement itself (Buttram, supra, 30 Cal.4th at p. 786), and did not require a certificate of probable cause.
II. Sentence
We review the trial court’s sentencing decision under the abuse of discretion standard. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Under this standard, defendant bears the burden of showing that the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) Absent such a showing, the trial court’s discretionary determination to impose a particular sentence decision will not be reversed on appeal. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A trial court’s “‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Id. at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
Defendant failed to establish an abuse of discretion by the trial court.
The record shows that the trial court considered the aggravating factors in defendant’s case, including his prior juvenile adjudication for murder, the violent nature of the offense that resulted in his guilty plea, his failure to abide by the terms of the plea agreement, and his 10 years as a fugitive, and weighed these factors against mitigating circumstances such as defendant’s disadvantaged upbringing, and his accomplishments in abandoning gang affiliations and criminal activity, learning a trade, and caring and providing for his family. The trial court concluded that leniency was not warranted simply because defendant was productive during his years as a fugitive. The terms of defendant’s plea agreement expressly allowed the trial court to impose the maximum sentence authorized under the law if defendant failed to surrender on April 29, 1999. The imposition of such sentence was not an abuse of discretion.
III. Conduct Credit
Under section 2900.5, a criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit for good behavior and work performance. (§ 4019, subds. (b), (c).) The credits authorized by section 4019 are collectively referred to as conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the former version of section 4019, which was in effect in July 2009 when defendant was sentenced, a criminal defendant sentenced to state prison could accrue conduct credit at the rate of two days for every four days of actual presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4553.) Under the version of section 4019 that became effective on January 25, 2010, a defendant can accrue conduct credit at the rate of four days for every four days of presentence custody, as long as he or she is eligible. (§ 4019, subd. (f).)
Ineligible defendants are those who are required to register as sex offenders (§ 290 et seq.) or who have been convicted of a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5. (§ 4019, subds. (b)(2), (c)(2).)
The amendments to section 4019 were adopted as part of Senate Bill No. 18, which was introduced at a special session to address a fiscal emergency declared by the Governor on December 19, 2008. (Stats. 2009-2010, 3d Ex. Sess., ch. 28.) Because the amended version of the statute was not in effect at the time of defendant’s sentencing, he cannot receive the increased credits unless the statute is interpreted to apply retroactively. As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication that the Legislature intended otherwise. (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208–1209.) This principle is codified in section 3, which provides that “[n]o part of [the Penal Code] is retroactive, unless expressly so declared.”
Respondent argues that the language of section 3 requires the amended version of section 4019 to operate prospectively rather than retroactively because there is no explicit indication of a contrary legislative intent. However, the general rule that “when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively... is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.” (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada); see also Alford, supra, 42 Cal.4th at p. 753.) Estrada is binding authority and requires an examination of “all pertinent factors” in order to determine the legislative intent with respect to the amended version of section 4019. (Alford, supra, at p. 753.)
In Estrada, the defendant was committed to a rehabilitation center after a narcotics violation, and he later escaped. He was convicted of escape without force or violence in violation of section 4530. (Estrada, supra, 63 Cal.2d at pp. 742–743.) At the time Estrada committed the offense, section 3044 provided that a person who was convicted of violating section 4530 could not be granted parole until such time as he had served at least two calendar years from and after the date of his return to prison following the conviction. (Estrada, at p. 743.) After Estrada committed the offense, but before he was convicted and sentenced, sections 3044 and 4530 were amended to provide that a defendant convicted of escape without force or violence could be eligible for parole in less than two years. (Estrada, at pp. 743-744.) The court held that the amended versions of sections 3044 and 4530 applied to Estrada. (Estrada, at pp. 744, 748, 751.) The court reasoned that “‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’” (Id. at p. 745.)
There is a conflict in authority as to whether the amended version of section 4019 represents a “‘legislative mitigation of the penalty’” for certain crimes, and thus whether the amended version of section 4019 falls within the rule of retroactive application set out in Estrada. (Estrada, supra, 63 Cal.2d at p. 745.) We believe the better reasoned decisions are those holding that the newer version of section 4019 should operate retroactively, since it constitutes an amendatory statute mitigating punishment under Estrada. The amended version of section 4019 clearly operates to reduce the sentences of eligible prisoners by increasing the rate at which a prisoner accrues time to offset his or her sentence. That this mitigation of punishment is achieved by a less direct method than the statutory amendments discussed in Estrada is a distinction without a difference in our view. (See People v. Hunter (1977) 68 Cal.App.3d 389, 392–393 [applying Estrada to amendment allowing award of certain custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [applying Estrada to amendment involving conduct credits].) The Legislature clearly has deemed the sentences served after reduction of the conduct credits to be “‘sufficient to meet the legitimate ends of the criminal law’” for qualified prisoners. It follows that the statute is to be applied retroactively. (Estrada, supra, at p. 745.)
Holding in published opinions that the amended statute applies retroactively are People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057, review granted June 23, 2010, S182813; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260; People v. Delgado (2010) 184 Cal.App.4th 271, petition for review pending, petition filed July 23, 2010, time for grant or denial of review extended to September 1, 2010, S183663; People v. Keating (2010) 185 Cal.App.4th 364; People v. Weber (2010) 185 Cal.App.4th 337, review granted, depublished by, August 18, 2010, S184873; and People v. Bacon (2010) 186 Cal.App.4th 333. Holding that the amendment applies prospectively only, are People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; and People v. Eusebio (2010) 185 Cal.App.4th 990.
The trial court awarded defendant 76 days of credit for actual time served and 38 days of conduct credit under former section 4019. Under section 4019, as amended, defendant is deemed to have served four days for every two days in local custody and is therefore entitled to a total of 76 days of conduct credits. He is therefore entitled to an additional 38 days of conduct credit, for a total of 152 days of presentence credit.
DISPOSITION
The judgment is modified to award additional presentence credit of 38 days. The judgment is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 38 days of conduct credit for a total presentence credit of 152 days and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.