Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB050054, David Cohn, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Alice Tomasa Fuentes appeals after she pleaded guilty to possession of a controlled substance. She was placed on supervised probation for drug offenders pursuant to Proposition 36 (Pen. Code, § 1210 et seq.). She was eventually sentenced to state prison after several probation violations. On appeal she raises the sole contention that amendments to section 4019, providing for behavior credits against a state prison sentence, should be applied retroactively to her. We conclude the amendments to the conduct credits provisions are not retroactive and we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
In May 2005, police were called to investigate reports of trespassers in a condemned building. The investigating officers found defendant, who had a methamphetamine pipe and a baggie of methamphetamine next to her. She had a syringe and more methamphetamine on her person. Defendant was charged with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and two counts of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)).
Defendant pleaded guilty to the felony offense and was granted drug probation under Proposition 36. Defendant violated her probation on many occasions between 2005 and 2010, when she was eventually sentenced to state prison for two years. At sentencing, defendant was awarded 395 days of total presentence credit, consisting of 261 actual days of custody, plus 134 days of local conduct credits under section 4019. Of defendant’s actual days of presentence custody, she served 253 days before January 25, 2010, and 8 days after January 25, 2010.
January 25, 2010, is the effective date of the amendment to section 4019, which now provides a different rate for earning local custody conduct credits. The court awarded defendant most of her conduct credits at the old rate, for the presentence time she served before January 15, 2010, and the new rate of conduct credits only for the days of actual custody defendant served after the amendment date. Defendant moved for an award of custody credits at the new rate for all her presentence custody time; the court denied her request.
Defendant now appeals, asserting that the amended custody credit statute is a statute reducing punishment, and thus should be applied retroactively.
ANALYSIS
Former section 4019 permitted defendants to earn additional credits against their state prison sentence on the basis of two days of conduct credit for each four days of actual time served. The amended provisions permit certain eligible defendants to earn two days of conduct credits for each two days of actual time served.
“A new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.” (People v. Ledesma (2006) 39 Cal.4th 641, 664.) Despite this general principle, however, the California Supreme Court has held that, “where the amendatory statute mitigates punishment and there is no saving clause, ... the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d 740, 748.)
The present issue is pending before the California Supreme Court, and has resulted in a split of authority among the districts. Consistent with cases already decided by this court, we again conclude that the amendment to section 4019 is intended to be prospective only. First, the amendment does not inevitably result in a reduction of a prisoner’s punishment. The statute affects credits only, not the actual sentence. Second, another portion of the statute, affecting a different section (§ 2933.3, subd. (d)), was expressly made retroactive, but the Legislature failed to make a similar provision as to the amendment to section 4019. Third, the statute’s purpose is to motivate good conduct among prisoners, to maintain discipline and minimize threats to prison personnel. “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.) In such circumstances, where the purpose is to influence behavior and not necessarily to reduce punishment, the prospective-only operation of the statute is reasonably related to a legitimate public purpose, and does not violate equal protection if applied to some prisoners (to whom it applies currently) but not others (whose past conduct is already completed).
Section 4019 amendment held retroactive: People v. Brown (2010) 182 Cal.App.4th 1354, 1364-1365 (Third Dist.) review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 (First Dist., Div. Two) review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057 (Second Dist., Div. One) review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408, 417 (First Dist., Div. Three) review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, 483-484 (First Dist., Div. Five) review granted July 21, 2010, S183552; People v. Bacon (2010) 186 Cal.App.4th 333, 335-337 (Second Dist., Div. Eight) petition for review pending S184782; People v. Keating (2010) 185 Cal.App.4th 364, 382-391 (Second Dist., Div. Seven) review granted Sept. 22, 2010, S184354.
Also, as the People point out, the amending bill was a fiscal emergency enactment. Although defendant urges that awarding more conduct credits has the effect of saving money by releasing prisoners earlier, it is nevertheless true that the Legislature did not answer fiscal concerns by directly enacting early releases. Rather, it simply provided that some prisoners would have the opportunity to increase the rate at which they accrued conduct credits. The Legislature’s concerns in the enacting bill were comprehensive, and did not manifest an intent retroactively to reduce prison sentences.
The presumption of prospective application has not been rebutted in this case. We conclude that the amended provisions of section 4019 apply prospectively only.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.
Section 4019 amendment held prospective only: People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 (Fifth Dist.) review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 (Fourth Dist., Div. Two) review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, 626–627 (Sixth Dist.) review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 (Second Dist., Div. Four) review granted Sept. 22, 2010, S184957.