Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. DF008995B. L. Bryce Chase, Judge.
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
On August 29, 2008, in Kern County case No. DF008995B (case No. DF008995B), appellant, James Frank Pasillas, was charged by felony complaint with two counts of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of carrying a loaded and unregistered firearm (§ 12031, subd. (a)(2)(F)). Thereafter, on October 6, 2008, appellant filed a notice of motion to suppress evidence (§ 1538.5); on March 17, 2009, following a hearing, the court denied that motion; and on May 7, an information was filed in which it was alleged appellant committed, in addition to the three counts contained in the 2008 complaint, an additional count of carrying a loaded and unregistered firearm, two counts of possession of a loaded unregistered firearm capable of being concealed on his person (§ 12025, subd. (b)(6)), and a single count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). In addition, it was alleged that in the commission of each of the receiving stolen property counts and the count of transportation of marijuana, a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Except as otherwise indicated, all statutory references are to the Penal Code.
Except as otherwise indicated, all further references to dates of events are to dates in 2009.
In Kern County Superior Court case No. DF009327A (case No. DF009327A), it was alleged in an information filed on May 21, that appellant committed a single count of receiving stolen property (§ 496, subd. (a)) and that he committed that offense while released on bail (§ 12022.1).
On August 10, the court ordered the two cases consolidated for trial, and on September 8, an amended information was filed charging appellant with the eight felony counts and four enhancements alleged in the two cases.
On September 22, pursuant to a plea agreement, appellant pled no contest to one count of possession of a loaded unregistered firearm capable of being concealed on his person (§ 12025, subd. (b)(6)). On October 28, the court imposed a prison term of 16 months on that offense and awarded appellant presentence custody credit of 288 days, consisting of 192 days of actual time credit and 96 days of conduct credit.
Appellant filed a notice of appeal on December 22. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief, which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing.
Pursuant to this court’s “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (Supplemental Briefing Order) ― discussed in greater detail below ― we deem to be raised the contention that appellant is entitled to additional conduct credit under the January 25, 2010 amendment to section 4019 (January 2010 amendment). We will affirm.
FACTS
This portion of our factual statement is taken from the transcript of the hearing on appellant’s suppression motion.
On August 27, 2008, at approximately 11:00 p.m., City of Delano Police Officer Martin Cervantes, after receiving a radio dispatch report of “two male subjects [who] were unknown to the area” in a parked car “on the 300 block of Rounds Street, ” drove to that location in his marked police car. There, he saw a car with the license plate number provided by dispatch, parked with the passenger side adjacent to the curb; appellant was sitting in the front passenger seat and Jeffrey Ott was in the driver’s seat.
Officer Cervantes pulled up and “parked almost directly in front of the vehicle.” As he was coming to a stop, when he was within 20 feet of the car, the officer shined his spotlight into the car, at which point appellant “put[] his hands towards his waistband like he was pushing something down.” Officer Cervantes then got out of his car, and as he did so, appellant and Ott quickly got out of their car, exiting by, respectively, the driver-side door and the front passenger-side door. Ott “had his hands in his pockets” and appellant “had his hands in his waistband, ” in the front of his pants, and “he was like pushing down.” At that point, Officer Cervantes “took [his] gun out, ” directed both men to get back into the car, and “advise[d] dispatch [he] had two subjects at gun point....” Appellant and Ott got back in the car, and the officer told them to “put their hands on the roof of the car.” Ott did so, but appellant “[c]ontinued to move his hands around his waistband.” Officer Cervantes “[gave] several more verbal commands, ” and appellant finally complied when Officer Shaun Manuele arrived on the scene.
With Ott and appellant back in the car, Officer Cervantes asked Ott for permission to search the car. Ott consented, and the officer opened the glove box and found a loaded handgun. Officer Cervantes ordered Ott out of the car, Ott complied, and the officer placed him under arrest.
While Officer Cervantes was talking with Ott, Officer Manuele made contact with appellant. Appellant’s eyes were red, bloodshot and watery, and he smelled of burnt marijuana. In response to a question from Officer Manuele, appellant said he had been smoking marijuana just before Officer Cervantes arrived. At that point, Officer Manuele noticed a marijuana “cigar” in the gutter. He asked appellant if he had been smoking the marijuana “cigar, ” and appellant said that he had. Officer Manuele then asked for permission to search appellant, appellant gave his consent, and as the officer was “spreading” appellant by “kick[ing] out [appellant’s] leg, ” a small-caliber handgun fell to the ground.
This portion of our factual statement is taken from the transcript of the preliminary hearing in case No. DF009327A.
On April 18, City of Delano Police Officer Raul Perez was on patrol in a police vehicle when he saw appellant, who was walking southbound on Morningside Way, drop a billfold and a black bag, and keep on walking. The officer stopped his car, got out, retrieved the billfold and black bag, approached appellant, and asked if he “had any warrants.”
Inside the billfold, Officer Perez found a social security card bearing the name of Topacio Samano. The officer later made contact with Samano and showed her the billfold and black bag. Samano said those items belonged to her and that she had not given anyone permission to have them.
DISCUSSION
Under section 2900.5, a person sentenced to state prison for criminal conduct 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 against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The court sentenced appellant on October 28 and calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) However, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, and has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody. (§ 4019, former subds. (b)(1), (c)(1), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28X, § 50.)
Section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010 amendment, but that version applies only to local custody served by defendants for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) The most recent amendment to section 4019 is inapplicable to appellant’s case because his crimes were committed in August 2008 and April 2009.
This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the January 2010 amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here. As we explain below, they are without merit.
We assume without deciding, as indicated in the report of the probation officer, that appellant is not required to register as a sex offender and has not suffered a prior conviction of a serious or violent felony.
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the January 2010 amendment to operate retroactively. (Alford, at p. 753.) Therefore, that amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the January 2010 amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
The issue of whether the January 2010 amendment applies retroactively is currently before the California Supreme Court in a number of cases, including this court’s decision in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.