Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F09800207, Jeffrey Y. Hamilton, Jr., Judge.
Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
Appellant, Joshua Jason Rangel, pled no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and admitted an enhancement allegation that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of four years, consisting of the three-year midterm on the substantive offense and one year on the prior prison term enhancement, and initially awarded appellant 172 days of presentence credit, consisting of 115 days of actual time credit and 57 days of conduct credit. Thereafter, appellant moved for an order correcting the presentence credit award. After briefing was completed in the instant appeal, the court granted the motion, awarding appellant 174 days of presentence credit, consisting of 116 days of actual time credit and 58 days of conduct credit.
Except as otherwise indicated, all statutory references are to the Penal Code.
We take judicial notice of the abstract of judgment, certified on September 1, 2010, which indicates the corrected presentence credit award. (Evid. Code, §§ 452, subd. (d), 459.)
On appeal, appellant contends he is entitled to additional conduct credit under a recent amendment to section 4019. We will affirm.
Appellant also argues that he is entitled to 116 days of actual time credit, not 115 days as the trial court initially determined. However, this error has been corrected. As indicated above, the court, after briefing was completed, issued a revised credit award which included 116 days of actual time credit.
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.)
When, in August 2009, the court made the presentence credit award which appellant now challenges on appeal, the court 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. (Former § 4019.) 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, or 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. Appellant argues that none of the factors that would disqualify him for increased credit under the 2010 amendment are applicable; the amendment applies retroactively; and therefore he is entitled to 116 days of conduct credit. We disagree and conclude the amendment applies prospectively only.
We assume without deciding, as the People do not dispute, that appellant is correct on this point.
Under Penal Code section 3, it is presumed that a statute operates 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 amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, upon which appellant chiefly relies, 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 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 bears a rational relationship to a legitimate public purpose].)
The issue of whether the January 25, 2010, amendment to section 4019 applies retroactively is currently before the California Supreme Court in numerous cases, including People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
DISPOSITION
The judgment is affirmed.