Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FWV902145 Jon D. Ferguson, Judge.
Michael A. Ramos, District Attorney, Grover D. Merritt and Paul W. Feldman, Deputy District Attorneys, for Plaintiff and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
McKinster J.
I
INTRODUCTION
On August 12, 2009, defendant and respondent Joe Ambro Garcia entered a Target store with the intent to commit a theft. On August 20, 2009, defendant was charged with second degree burglary under Penal Code section 459.
All statutory references are to the Penal Code unless otherwise specified.
On October 26, 2009, pursuant to a plea agreement, defendant pled guilty to violating section 459, in exchange for a maximum sentence of 16 months in prison.
On December 15, 2009, defendant was placed on 36 months of probation, on the condition that he serve 365 days in county jail, with credit for time served of two days.
On January 29, 2010, at a postdisposition hearing, defendant raised the issue of eligibility for additional credits under amended section 4019. On March 5, 2010, the trial court determined that defendant was entitled to credits under amended section 4019 and ordered briefing on the issue to be filed, with a further hearing to be conducted on March 19, 2010.
On March 19, 2010, the trial court granted defendant’s motion for recalculation of section 4019 credits; the court ruled that credits should be calculated under the amended provisions of that section.
On April 7, 2010, the People timely filed their notice of appeal. On appeal, the People contend that amended section 4019, effective January 25, 2010, applies prospectively, and therefore defendant’s presentence conduct credits must be recalculated under section 4019, prior to the amendment. For the reasons set forth below, we agree with the People.
II
ANALYSIS
The Legislature amended section 4019 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (Sen. Bill No. 3X 18)); this amendment changed the calculation of presentence conduct credit. The amendment became effective in January 2010. Here, defendant was sentenced in December 2009. The People contend that the trial court erred in applying section 4019, retroactively, to this case. Defendant claims that the trial court was correct in its retroactive application of section 4019.
A. Retroactivity
The issue, whether the amendment to section 4019 should be applied retroactively or prospectively, has split our sister courts of appeal and is pending review in our Supreme Court.
Section 4019 amendment held retroactive: People v. Brown (2010) 182 Cal.App.4th 1354 (Third Dist.), review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096 (First Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (Second Dist., Div. One), review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408 (First Dist., Div. Three), review granted August 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 (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).
As an amendment to the Penal Code, the amendment of section 4019 “‘is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753; see also § 3 [“No part of [the Penal Code] is retroactive, unless expressly so declared.”]; In re E.J. (2010) 47 Cal.4th 1258, 1272 [“‘[S]ection 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted “unless express language or clear and unavoidable implication negatives the presumption.” [Citation.]’ [Citation.] ‘[I]n 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 or the voters must have intended a retroactive application.’”].) However, “[w]here 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).) Thus, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.)
In People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two) (Doganiere) we held, on the basis of Estrada, that amendments to section 2900.5 to provide credit for section 4019 conduct credits were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to section 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive] (Hunter).) This was based upon the conclusion that there is no legal significance between lessening the maximum sentence for a crime and increasing presentence credits, because both mitigate punishment. (See Hunter, at p. 393.)
Defendant relies on Estrada and the mitigating effect of increasing the rate at which custody credits are earned to argue that the amendment of section 4019 was retroactive. Despite numerous cases applying Estrada, our Supreme Court has never cited either Doganiere or Hunter, and has never stated that increases to the custody credit scheme are a mitigation of punishment. Instead, our Supreme Court has been consistent in describing the custody credit scheme as a means of encouraging and rewarding good behavior. (People v. Brown (2004) 33 Cal.4th 382, 405 [“section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody”]; People v. Sage (1980) 26 Cal.3d 498, 510 (conc. & dis. opn. of Clark, J.) [“The purpose of conduct credit is to foster good behavior and satisfactory work performance. [Citation.] That purpose will not be served by granting such credit retroactively.”]; People v. Saffell (1979) 25 Cal.3d 223, 233 [“The purposes of the provision for ‘good time’ credits seem self-evident. First, and primarily, prisoners are encouraged to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody. Second, [prisoners are induced] to make an effort to participate in what may be termed ‘rehabilitative’ activities.”].) Thus, we conclude that increases in custody credits should not be considered a mitigation in punishment. Accordingly, the reasoning underlying our decision in Doganiere was flawed. Instead, because the custody credit scheme and, in particular, conduct credits, are incentives or rewards for good behavior, increasing the rate at which credits are accrued does not represent a determination that a prior punishment was too severe. Thus, Estrada does not apply, and there is no presumption of retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)
Senate Bill No. 3X 18 is explicit that it is intended to address a declared fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) However, the purpose of an amendment is not necessarily indicative of a legislative intent for or against retroactivity. (See People v. Nasalga (1996) 12 Cal.4th 784, 795 [increasing threshold amounts to address inflation only indicates consideration of decline of dollar and does not indicate intent for prospective application].) Defendant contends that retroactivity will further the goal of reducing prison population. While applying the increased conduct credits retroactively would reduce prison populations and conserve financial resources more quickly than a prospective only amendment, the Legislature could also have determined that a prospective application better balanced public safety concerns and the need to conserve financial resources by reducing the prison population. Thus, the goal of conserving financial resources by reducing prison population does not indicate an intent for retroactivity.
Having searched for a legislative intent regarding prospective or retroactive application, we find no intent for retroactivity and thus, the section 3 presumption is not rebutted. (In re E.J., supra, 47 Cal.4th at p. 1272 [“‘[I]n 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 or the voters must have intended a retroactive application.’”].) Thus, the amendment to section 4019 applies prospectively.
B. Equal Protection
In response to the People’s appeal, defendant also claims that prospective application of amended section 4019 violates the equal protection clauses of the federal and California Constitutions. In support of his argument, defendant relies on Kapperman, supra, 11 Cal.3d 542, and Hunter, supra, 68 Cal.App.3d 389. Again, we disagree.
Neither Kapperman nor Hunter is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Hunter held that an amendment to the same statute without an express limitation was to be interpreted in line with Kapperman and Estrada to apply retroactively. (Hunter, supra, 68 Cal.App.3d at pp. 391-393.) However, Kapperman and Hunter both addressed actual custody credits under section 2900.5, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
Section 4019’s primary purpose is to motivate good conduct. (People v. Brown, supra, 33 Cal.4th at p. 405.) Defendants who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. Because a defendant’s conduct cannot be influenced retroactively, a rational basis exists for the Legislature’s implicit intent that the amendment apply prospectively. Accordingly, prospective application of section 4019 does not violate a defendant’s right to equal protection.
IV
DISPOSITION
The order is reversed as to the award of conduct credits under amended section 4019. The trial court is ordered to calculate defendant’s conduct credits under former section 4019, to correct the abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The order is otherwise 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).