Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI026096, Margaret A. Powers, Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
McKINSTER, J.
Defendant and appellant Wayne Rasheed has filed the instant appeal, seeking to have additional presentence conduct credits awarded to him, on equal protection grounds, pursuant to a version of Penal Code section 4019 which came into effect after defendant’s sentencing. Consistent with this court’s other decisions on the question of retroactivity, we hold that the amended conduct credits provision does not apply retroactively to defendant’s presentence custody, and that such denial does not violate his Equal Protection rights. Accordingly, we affirm the ruling denying his request for a recalculation of credits.
FACTS AND PROCEDURAL HISTORY
In 2006, defendant engaged in a comprehensive identity theft scheme; he falsely used the identity of other persons to, e.g., apply for driver’s licenses, purchase vehicles, open bank accounts, and obtain loans to purchase property in the other persons’ names. These other individuals did not know defendant, and had not given defendant permission to use their identifying information for these purposes.
In November 2007, defendant pleaded no contest to one count of conspiracy, two counts of perjury, four counts of identity theft, one count of grand theft, and one count of false impersonation. He also pleaded no contest in a second case to three counts of false impersonation and three counts of forgery. The court imposed a sentence of 15 years on the first case, and a consecutive term of four years on the second case. Defendant was released on a Vargas waiver (People v. Vargas (1990) 223 Cal.App.3d 1107, 1113); i.e., in exchange for a release on his own recognizance (OR), defendant agreed to imposition of a particular sentence if he did not abide by certain conditions. In this case, if he returned to court as promised, defendant would be resentenced to a term of six years eight months on counts 1, 2, 9 and 10 of the first case, and the second case would be dismissed. Defendant also forfeited any rights in the real property he had gained by his fraudulent scheme. Defendant did return to court, and was resentenced, as agreed, to a term of six years eight months.
In January 2008, defendant filed a motion to withdraw his plea on the asserted ground that defense investigators had coerced him into the plea, and he misunderstood that he would be allowed to withdraw his plea once he returned from his Vargas OR release for sentencing. The People opposed the motion on the ground that no good cause was shown. The court was not required to believe defendant’s claims as to the ill-identified “investigators” who allegedly threatened him, and the record failed to support any claim that defendant had been told he would be allowed to withdraw his plea upon returning to court for sentencing; and defendant had gotten what he wanted—OR release—and should not be allowed to renege on the agreement or trifle with the court after the fact. The trial court denied the motion.
Defendant was sentenced, in accordance with his plea bargain, on February 1, 2008, to six years eight months in state prison. Defendant was given credit at sentencing for 330 actual days of incarceration, plus conduct credits of 164 days, for a total of 494 days.
Defendant filed no appeal.
In July 2010, defendant filed a motion in the trial court to recalculate his custody credits. The presentence custody credits provision, Penal Code section 4019, had been amended effective January 25, 2010; under the former scheme, a defendant could earn two days of credit for each full four-day period served, and under the amended version, she or he could earn up to two days of credit for each two-day period served. The trial court denied defendant’s request for additional presentence custody credits. Defendant now appeals.
ANALYSIS
I. The Amendment to Penal Code Section 4019 Is Not Retroactive
Defendant here was sentenced in 2008. He filed no appeal. The judgment in his case is long since final. The court at that time awarded him presentence conduct credits of 164 days, based on 330 days of actual custody. Under the version of Penal Code section 4019 in effect at the time both of defendant’s offenses and his sentencing, he could be awarded up to two days of conduct credits for each period of four days of actual presentence custody he had served. Defendant’s sentence fully complied with former section 4019 with respect to such credits. (Former § 4019, Stats. 1982, ch. 1234, § 7, p. 4553.)
Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
The question of whether a defendant sentenced before January 25, 2010, is entitled to the benefit of the amended version of section 4019 is currently before the California Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [finding retroactive application].) That court has granted review of People v. Brown, supra, 182 Cal.App.4th, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which held that the amendments were not retroactive. Because the California Supreme Court will ultimately resolve the conflict on the issue among the various Courts of Appeal, we discuss the issue only briefly.
The following appellate courts have found the section 4019 amendment to be retroactive: People v. Brown, supra, 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; and People v. Bacon (2010) 186 Cal.App.4th 333 (Second Dist., Div. Eight), review granted October 13, 2010, S184782.
Under Penal Code section 3, “ ‘[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.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Penal Code section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (Pen. Code, § 2933.3, subds. (b), (c), added by Stats. 2009, supra, ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are to be prospective only.
We recognize that, under In re Estrada (1965) 63 Cal.2d 740, “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.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.) Accordingly, amended section 4019 applies prospectively only.
II. Defendant Is Not Entitled to Enhanced Credits Under Equal Protection Principles
Relying on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498, defendant contends that failure to apply amended section 4019 retroactively would violate his state and federal equal protection rights.
Neither Kapperman nor Sage 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. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, 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. Similarly, Sage is inapposite, because that case involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (People v. Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Ibid., fn. omitted.)
People v. Doganiere (1978) 86 Cal.App.3d 237 [Fourth Dist., Div. Two] also is not helpful to defendant. In that case, the defendant had already earned conduct credit before violating probation and being returned to custody. Here, by contrast, defendant seeks to take advantage of provisions that were not in effect while he was in presentence custody.
The purported equal protection violation at issue here is temporal, rather than based on defendant’s status as a misdemeanant or felon. One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those similarly situated to him, whose sentencing occurred before the January 2010 amendment, cannot be further enticed to behave themselves during their presentence custody. A defendant’s conduct cannot be influenced retroactively; this provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
Simply put, the principal purpose of section 4019 is to motivate good conduct. A defendant’s past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only. Thus, defendant is not entitled to additional conduct credits.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., KING, J.
The following appellate courts have found the section 4019 amendment to be prospective only: People v. Rodriguez, supra, 183 Cal.App.4th 1 (Fifth Dist.), review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422 (Fourth Dist., Div. Two), review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615 (Sixth Dist.), review granted July 28, 2010, S183724; and People v. Eusebio (2010) 185 Cal.App.4th 990 (Second Dist., Div. Four), review granted September 22, 2010, S184957.