Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F08907888, Hilary Chittick, Judge.
Syda Kosofsky, 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, and David A. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.
On January 5, 2009, the driver’s license of Holly Bare and a check for $400 made payable to Bare were found in a purse belonging to appellant Anna Maria Pena Rosales. On November 19, 2009, a jury convicted Rosales of three counts of identity theft (Pen. Code, § 530.5, counts 1, 2 and 3) and of four counts of receiving stolen property (§ 496, subd. (a), counts 4, 5, 6 and 7). Count 5 pertained to Bare’s check and count 6 pertained to Bare’s driver’s license.
All further statutory references are to the Penal Code unless otherwise specified.
On January 13, 2010, the trial court sentenced Rosales on this case and also for convictions incurred in another case. The total term imposed in both cases was three years four months in state prison. This included concurrent terms of 16 months on the aforementioned counts 5 and 6. Rosales was awarded 257 days of presentence custody credit. As we shall explain in more detail below, on January 25, 2010, an amendment to section 4019 went into effect. That amendment provided for a more generous awarding of presentence custody credit than did the version of section 4019 in effect at the time Rosales was sentenced.
ROSALES’S CONTENTIONS
Rosales raises two contentions of error on appeal.
First, she contends that because she was found in possession of the driver’s license and the check at the same time, and there was no other evidence of when she received these two items, she cannot be convicted of two separate counts of receiving stolen property for having received these two stolen items. The People concede the point. The concession is well taken. (See People v. Mitchell (2008) 164 Cal.App.4th 442, 461-463.)
Second, she contends that the amendment to section 4019 (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50), effective January 25, 2010, which took effect 12 days after her sentencing, should be applied retroactively so as to award her an additional 87 days of presentence credit. She contends that a failure to award her the additional credit would violate her right to equal protection under the California and United States Constitutions. As we shall explain, we find this contention to be without merit.
Section 4019 was further amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426, § 2.) The September 2010 amendments were expressly made to apply only to cases involving crimes occurring on or after the effective date of September 28, 2010. The September 2010 amendments do not affect this case and do not change our analysis in this matter. Unless otherwise noted, all subsequent references to section 4019 or its amendments refer to the version of section 4019 effective January 25, 2010.
ROSALES IS NOT ENTITLED TO ADDITIONAL CONDUCT CREDIT UNDER THE AMENDED VERSION OF SECTION 4019
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. (Id., 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 (id., subd. (b)) and compliance with rules and regulations (id., 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 Rosales was sentenced on January 13, 2010, the trial court calculated Rosales’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.) The Legislature, however, 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), will be deemed to have served four days for every two days spent in actual custody. Rosales argues that she is entitled to 87 additional days of conduct credit. We disagree and conclude the amendment applies prospectively only.
Our starting point is section 3, which provides that “‘No part of [the Penal Code] is retroactive, unless expressly so declared.’” 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 factors, that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only. Rosales argues that the failure of the Legislature to include a “savings clause” expressly prohibiting retroactive application of the amendment to section 4019 constitutes a clear and compelling implication that the Legislature intended retroactive application. We are not persuaded. This argument is in essence an argument that we ignore section 3 rather than follow it.
Rosales then argues that uncodified section 59 of Senate Bill No. 18 (Stats. 2009-2010 3d Ex. Sess. 2009, ch. 28, § 59) (hereafter Senate Bill No. 18) demonstrates a legislative intent that the amendment to section 4019 was intended to apply retroactively to defendants already sentenced. That section states in part: “The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time, ” and “An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act.” Rosales contends that the “changes made by this act regarding time credits” (Senate Bill No. 18) include a retroactive application of the section 4019 amendments to prisoners who were sentenced prior to the January 25, 2010, effective date of those amendments. Again, we are not persuaded. Senate Bill No. 18 did much more than simply amend section 4019. Among the many changes it made was the addition of section 2933.05. (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 39.) This new statute authorizes the Department of Corrections and Rehabilitation to “award a prisoner program credit reductions from his or her term of confinement as provided in this section.” (§ 2933.05, subd. (a).) This statute directs the secretary of the Department of Corrections and Rehabilitation to “promulgate regulations that provide for credit reductions for inmates who successfully complete specific program performance objectives for approved rehabilitative programming ranging from credit reduction of not less than one week to credit reduction of no more than six weeks for each performance milestone.” (Ibid.) The statute further states: “Regulations promulgated pursuant to this subdivision shall specify the credit reductions applicable to distinct objectives in a schedule of graduated program performance objectives concluding with the successful completion of an in-prison rehabilitation program. Commencing upon the promulgation of those regulations, the department shall thereafter calculate and award credit reductions authorized by this section.” (Ibid.) The “credit reductions for inmates who successfully complete specific program performance objectives for approved rehabilitative programming” (§ 2933.05, subd. (a)) are “changes made by this act regarding time credits” (Sen. Bill No. 18). We see nothing in the uncodified section 59 of Senate Bill No. 18 that states or even implies that the amendments to section 4019 were intended to apply to persons who already had been sentenced under the version of section 4019 in effect at the time of their sentencing.
The uncodified section 59 of Senate Bill No. 18 states in its entirety: “The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.”
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amended 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 further conclude that prospective-only application of the amendment does not violate Rosales’s equal protection rights. Rosales cites People v. Sage (1980) 26 Cal.3d 498 in support of her equal protection argument. Sage is inapposite because it involved a former version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons. (Sage, at p. 508.) The 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.) The purported equal protection violation at issue here is temporal, rather than based on a defendant’s status as misdemeanant or felon.
One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Rosales and those like her who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment apply only prospectively.
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 already has 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].)
DISPOSITION
The judgment is reversed as to count 6 only. The trial court is directed to correct the abstract of judgment accordingly and to forward the corrected abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.