Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FWV902022, FWV901621 & FVA900402. David Cohn, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
On March 26, 2009, defendant and appellant Lorna Rose Robinson pled guilty to possession of methamphetamine for sale in case No. FVA900402. (Health & Saf. Code, § 11378.) The trial court placed her on probation for a period of three years. On September 25, 2009, she pled guilty to one count of possession of a controlled substance in case No. FWV901621. (Health & Saf. Code, § 11377, subd. (a)). That same day, she also pled guilty to one count of possession of illegal substances in a jail facility in case No. FWV902022. (Pen. Code, § 4573.6.) The trial court placed defendant on probation for a period of three years on both cases. She was then directed to attend a residential drug treatment program at Cedar House. Defendant subsequently admitted to violating her probation. On April 14, 2010, the trial court revoked and terminated her probation. It then sentenced her to state prison for two years in case No. FVA900402, two years in case No. FWV901621, and two years in case No. FWV902022, and ordered all three sentences to run concurrent. In case No. FWV901621 the court awarded 72 days of custody credit, consisting of 39 days actual credit and 33 days conduct credit. In case Nos. FVA900402 and FWV902022, the court awarded 106 days of credits, consisting of 61 actual days and 45 days of conduct credit.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that she is entitled to additional conduct credits under the January 25, 2010 amendment of section 4019, since she was sentenced after the effective date of the amendment. We affirm.
We note that since defendant filed her opening brief, section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to return to its wording prior to January 25, 2010. The latest statutory change will apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the prior 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.
ANALYSIS
Defendant Is Not Entitled to Additional Credits
As of April 14, 2010, when defendant was sentenced, she had been in actual custody for 61 days, consisting of 31 days in 2009 and 30 days in 2010. The trial court awarded her 45 days of conduct credit under section 4019, based on the 61 actual days in custody, as follows: 15 days under the 2009 version of section 4019 (for 31 days actually served in 2009) and 30 days under the 2010 version of section 4019 (for 30 days actually served in 2010). Defendant now claims she is entitled to “day for day” conduct credits under the amended version of section 4019 for the time served in 2009, as well as 2010, since she was not sentenced until April 14, 2010, after the effective date of the amendment. The crux of her argument is that the 2010 amendment should be applied retroactively to her conduct credits earned in 2009. She also claims that applying the amendment prospectively only violates equal protection. We disagree.
Defendant is only appealing the calculation of credits as to case Nos. FVA900402 and FWV902022, not case No. FWV901621.
A. The Amendment to Section 4019 Applies Prospectively
We recognize that there is a split among the districts as to whether the section 4019 amendment has retroactive effect. We further recognize that the California Supreme Court has granted review of most of the recent decisions on this issue and that some of the case law cited in this opinion regarding the application of the section 4019 amendment no longer constitutes binding authority of the issue. While the parties do not mention this, apparently all of the cases addressing the issue of retroactivity concern defendants who were sentenced prior to the effective date of the amendment, January 25, 2010. None of them address the situation where, as here, the defendant was sentenced after the effective date, but who had earned custody credits prior to the change. We side with the view that the section 4019 amendment applies only prospectively. Thus, it should not apply to time earned prior to the amendment, regardless of the sentencing date.
Section 4019 amendment held to apply retroactively: People v. Brown (2010) 182 Cal.App.4th 1354, 1364-1365 (Third Dist.), review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 (First Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057 (Second Dist., Div. One), review granted June 23, 2010, S182183; People v. Norton (2010) 184 Cal.App.4th 408, 417 (First Dist., Div. Three), review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, 483-484 (First Dist., Div. Five), review granted June 21, 2010, S183552. Section 4019 amendment held to apply only prospectively: 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.
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)).
When defendant was in custody in 2009, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019; People v. Duff (2010) 50 Cal.4th 787, 793.) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody (§ 4019, subd. (f)) for 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). The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (§ 4019.) Section 3 provides that the Penal Code shall not have retroactive effect unless expressly so declared. Thus, “‘[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.]’” (People v. Alford (2007) 42 Cal.4th 749, 753.)
The Supreme Court in In re Estrada (1965) 63 Cal.2d 740 (Estrada) created an exception to the section 3 presumption of prospective application. In Estrada, the court considered whether a statute mitigating punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute. The statute was silent as to retroactive application. (Id. at p. 744.) According to Estrada, a statutory amendment reducing punishment for a crime or changing procedure in favor of a defendant should be given retroactive effect as to cases that have not reached final judgment. (Id. at pp.744-745.)
In reaching its holding, the Estrada court explained: “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 now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745.) 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.)
Relying on Estrada in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two), we held that amendments to section 2900.5, providing credit for section 4019 conduct credits, were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to § 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. (See Ibid.)
Despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding behavior. (See People v. Brown (2004) 33 Cal.4th 382, 405 (Brown).)
We thus conclude the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)
Moreover, since section 4019 focuses primarily on encouraging cooperation and good behavior by detainees (see Brown, supra, 33 Cal.4th at p. 405), applying the amendment retroactively would not further this objective since it is not possible to influence behavior after it has occurred. (See In re Stinnette (1979) 94 Cal.App.3d 800, 806 (Stinnette).) In other words, the amendment cannot act as an incentive to those persons who, like defendant, completed a period of confinement, and thereby earned credits, prior to the effective date of the amendment.
Defendant does not dispute that section 4019 credits act as an incentive for good behavior. However, she argues that prisoners and probationers who earned presentence credits prior to the effective date of the amendment “have [already] responded to the existing incentives in order to earn their credits.” Defendant asserts that the incentives for earning section 4019 credits “remain unchanged after the amendment to section 4019; only the numerical formula for calculating those credits has.” We disagree.
In view of section 4019’s primary purpose of motivating good behavior (Brown, supra, 33 Cal.4th at p. 405), it appears that the intent of the amendment was to increase the incentive for good conduct. The incentive did not “remain unchanged, ” as defendant claims.
In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded that the amendment to section 4019 applies prospectively. Thus, defendant is not entitled to additional credits for the time she spent in custody in 2009, regardless of the sentencing date.
B. Applying the Amendment Prospectively Does Not Violate Equal Protection
Defendant further argues that applying the 4019 amendment prospectively violates her equal protection rights because she “is a member of a distinct class who would be harmed by prospective-only application of the amendment.” She cites Kapperman, supra, 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 (Sage), superseded by statute as stated in People v. Brunner (1983) 144 Cal.App.3d 934, in support of her claim. Again, we disagree.
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. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits under section 2900.5, not conduct credits under section 4019. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
In Sage, the Supreme 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 county jail (misdemeanants) and to felons who served no presentence time. (Sage, supra, 26 Cal.3d at p. 507.) The Supreme Court held that the failure of section 4019 to provide presentence credits for felon detainees when it provided such credits for misdemeanant detainees violated equal protection. (Id. at pp. 506-509.) Sage is distinguishable on the ground that the purported equal protection violation at issue in the instant case is temporal, rather than based on the defendant’s status as a misdemeanant or a felon. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., McKINSTER, J.