Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072422 Tomson D. Ong, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Defendant and appellant John Holston admitted to a violation of probation. On April 29, 2009, the trial court imposed on defendant the previously suspended term of 16 years in state prison, subject to specified custody credits. On appeal, defendant contends that he should have been given additional custody credits under the new provisions of Penal Code section 4019. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Defendant was convicted of the sale, transportation, and offer to sell a controlled substance in violation of section 11352, subdivision (a). On January 9, 2007, the trial court sentenced defendant to 16 years in state prison, suspended the sentence, and placed defendant on probation.
On March 19, 2009, defendant admitted to violating probation. On April 29, 2009, the trial court found defendant in violation of the terms of his probation and imposed on him the previously suspended term of 16 years in state prison. Pursuant to section 4019, defendant was credited with 947 days in custody consisting of 628 days actual custody credits and 319 days conduct credit. On April 20, 2010, pending this appeal, the trial court granted defendant’s motion to correct his presentence credits, and awarded defendant an additional credit of 365 days in actual custody.
On appeal, defendant contended that the trial court erred by failing to grant him credit for time served in county jail. Defendant concedes that this issue is now moot.
DISCUSSION
Defendant contends that he is entitled to additional custody credit under the amended version of section 4019, effective January 25, 2010. We disagree.
A criminal defendant in presentence custody “may... be eligible for presentence good behavior/worktime credits (collectively referred to as conduct credits)” pursuant to section 4019, subdivisions (b), (c) and (f). (People v. Cooper (2002) 27 Cal.4th 38, 40.) Under the version of Penal Code section 4019 in effect at the time of defendant’s sentencing on April 29, 2009, “a defendant receives two days of conduct credit for each four-day block of time served.” (People v. Kimbell (2008) 168 Cal.App.4th 904, 908.)
The version of section 4019 effective at the time of defendant’s sentencing (Stats. 1982, ch. 1234, § 7) stated in pertinent part, “(a) The provisions of this section shall apply... [¶]... [¶] (4) When a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned.... [¶] (c) [F]or each six-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established.... [¶]... (f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody....”
In October 2009, the legislature passed Senate Bill number 18 (SB 18), which amended section 4019 and went into effect on January 25, 2010, while this appeal was pending. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50 (SB 18).) Under the amended version of section 4019 a defendant received two days of conduct credit for each two-day block of time served, except for certain crimes not involved here.
The version of Penal Code section 4019 effective January 25, 2010, states in pertinent part, “(a) The provisions of this section shall apply... [¶]... [¶] (4) When a prisoner is confined in a county jail... following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned.... [¶] (c)(1) [F]or each four-day period in which a prisoner is confined in or committed to a [county jail] as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established.... [¶]... (f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....”
Defendant contends that the amended version of section 4019, effective January 25, 2010, is retroactive and, therefore, he is entitled to additional custody credit. The Courts of Appeal disagree about the retroactive effect of the recent amendment to section 4019. Although recognizing that defendant’s position is arguable, this division has followed those cases holding that the amendment to section 4019 is to be applied prospectively. The following discussion reflects the position in those cases.
“[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]” (People v. Vieira (2005) 35 Cal.4th 264, 306.)
This issue is currently before the California Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 (retroactive); People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 (not retroactive); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 (retroactive); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 (retroactive); People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 (retroactive); People v.Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 (not retroactive); People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260 (retroactive); People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957 (not retroactive); People v. Keating (2010) 185 Cal.App.4th 364, 382-392, review granted September 22, 2010, S184354 (retroactive); People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010, S184782 (retroactive); People v. Jones (2010) 188 Cal.App.4th 165, review granted December 15, 2010, S187135 (retroactive).
It is presumed that the amendment to section 4019 is to be applied prospectively. “‘A new statute 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.) SB 18 is not explicit on whether the amendment is to be applied prospectively or retroactively.
Defendant relies on In re Estrada (1965) 63 Cal.2d 740, which held that “If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, ... it, and not the old statute in effect when the prohibited act was committed, applies [in the absence of clear legislative intent to the contrary].” (Id. at p. 744; italics added.) The court in In re Estrada explained that, “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... should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
In re Estrada, supra, 63 Cal.2d 740, however, is not applicable to the present case because the amendment to section 4019 does not automatically “lessen[] punishment.” It does not provide additional custody credit to a defendant simply because he or she is in presentence custody. Instead, it provides additional conduct credit to a defendant who has earned it—for good behavior or for performing assigned labor.
Furthermore, retroactive application of section 4019 would undermine its purpose. “[A] court [may] determin[e] whether the... meaning of a statute comports with its purpose.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) “‘The purpose of... section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing. [Citations.]’ [Citation.] ‘Conduct credit is awarded to prisoners in penal institutions to encourage good behavior. [Citation.]’” (People v. Silva (2003) 114 Cal.App.4th 122, 127-128.) The only way to advance the statute’s purpose of rewarding good behavior would be to apply it prospectively, not retroactively, because behavior can only be influenced before it has occurred. Applying section 4019 retroactively will not encourage defendant to behave appropriately in presentence custody because he is no longer in presentence custody.
Legislative intent may be ascertained by looking to other enhanced work-time statutes that were amended by SB 18. “‘[A] statute’s language must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]’ [Citation.]” (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 460.) For example, SB 18 also amended section 2933.3 (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 41 (SB 18)), which provides credit for inmates who have completed firefighter training. (§ 2933.3, subd. (c).) The amendment added an express provision of retroactivity to the statute, providing that credit to inmates dating back to July 1, 2009, even though the statute only took effect on January 25, 2010. (§ 2933.3, subd. (d).) By adding this retroactivity provision, the Legislature demonstrated that it could have added a similar provision to section 4019. As the Legislature failed to do so, it may be inferred that it did not intend for section 4019 to apply retroactively.
Defendant also contends that the denial of retroactive application of the section 4019 amendments would violate his right to equal protection under the federal and state constitutions. Equal protection of laws is guaranteed to all persons by both the United States and the California Constitutions. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) “‘Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment....’” (People v. Gonzales (2001) 87 Cal.App.4th 1, 12.) “[M]ost legislation is tested only to determine if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.] [¶]... [Under] the rational relationship test... ‘“‘[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are “plausible reasons” for [the classification], “our inquiry is at an end.’”’” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200, italics omitted.)
Defendant relies on People v. Sage (1980) 26 Cal.3d 498, to support his claim that his equal protection rights would be violated. In that case, the court considered a previous version of section 4019 which denied presentence conduct credit to a detainee eventually sentenced to prison, although credit was given to detainees sentenced to jail. The court found no rational basis, nor compelling state interest, to deny presentence conduct credit to detainee/felons. (People v. Sage, supra, 26 Cal.3d at pp. 507-508.)
People v. Sage, supra, 26 Cal.3d 498 is distinguishable. In that case, the violation was based on the defendant’s ultimate status as a misdemeanant or felon, not on the dates the defendant was in presentence custody as is the case here. Further, as discussed, above, there is a rational basis for denying increased presentence custody credits to defendants who were not in presentence custody when the amendments were passed—their conduct cannot be influenced retroactively. It, therefore, is rational for the amendment to apply prospectively only.
Defendant also relies on In re Kapperman (1974) 11 Cal.3d 542. In In re Kapperman, the court reviewed a provision which made custody credit prospective, applying only to persons delivered to the Department of Corrections after the effective date of the legislation. The court concluded that this limitation violated equal protection, and extended the benefits retroactively to those improperly excluded by the Legislature. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.)
In re Kapperman, supra, 11 Cal.3d 542, however, is also distinguishable. It involved actual custody credits, not conduct credits as is the case here. As noted above, conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. The denial of retroactive application of the section 4019 amendments would not violate defendant’s right to equal protection under the federal and state constitutions.
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.