Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF142783, Ronn M. Couillard, Judge.
Phillip J. Cline, District Attorney, Don H. Gallian and William E. Yoshimoto, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys, for Plaintiff and Appellant.
Dooley, Herr, Peltzer & Richardson, and Leonard C. Herr, for Defendant and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
In this appeal, the People contend that the Superior Court improperly awarded certain conduct credits to respondent Richard Williams because the award of conduct credits was not authorized by any statute. Williams contends that the award of conduct credits was consistent with the policy of Tulare County at the time he was sentenced. Thus, according to Williams, not granting him the conduct credits, even if the award of conduct credits was not specifically authorized by statute, would be a violation of the ex post facto clauses of the federal and state Constitutions because he would be punished to a greater extent than other similarly situated defendants. For the following reasons, we will strike the award of conduct credits and remand for resentencing.
PROCEDURAL BACKGROUND
On January 31, 2006, Williams was charged by an amended information with felony violations of Penal Code section 236, false imprisonment by violence, fraud or deceit (Count 2) and section 243.4, subdivision (c), sexual battery by fraud (Count 3), along with five misdemeanor violations of section 242, simple battery (Counts 1, & 4-7) for crimes allegedly committed in May and August of 2004. After a seven day jury trial, he was convicted of five misdemeanor offenses; the lesser included offense of violation of section 236, false imprisonment without fraud or deceit (Count 2), two violations of section 242 (Counts 1 & 6), two counts of violation of section 240, simple assault (Counts 3 & 5). Williams was acquitted on Count 4; Count 7 was dismissed by the People prior to jury deliberations.
All further section citations are to the Penal Code, unless otherwise stated.
On November 30, 2006, the Superior Court placed Williams on informal probation and sentenced him to 180 days on Count 1 and a consecutive 180 days on Count 3, for a total confinement time of 360 days. No time was imposed on the remaining counts and no conduct credit was given. The court also recommended a home detention electronic monitoring program.
On February 2, 2007, the Superior Court approved Williams’s request to complete his 360 days of confinement on home detention by electronic monitoring program instead of in county jail. On September 25, 2007, Williams moved the Superior Court to grant “good time/work time” credits pursuant to section 4019. The People opposed the grant of conduct credits, citing People v. Silva (2003) 114 Cal.App.4th 122. On September 26, 2007, the Superior Court granted Williams 108 days conduct credit finding that “Tulare County policy allows conduct credits while on the monitor.” On November 15, 2007, the People filed their notice of appeal of the order granting conduct credit.
DISCUSSION
On appeal, Williams does not contend that he is entitled to conduct credit under section 4019. Any such claim would be rejected. (See People v. Silva, supra, 114 Cal.App.4th at pp. 128-129 [section 4019 does not apply where defendant is on home electronic monitoring program because defendant is not in actual custody, confined in a jail or similar facility].) Moreover, an award of conduct credit to Williams under section 4019 would be erroneous and an act in excess of the trial court’s jurisdiction. (People v. Minjarez (1980) 102 Cal.App.3d 309, 315.)
Rather, Williams contends that the trial court was required by the ex post facto clauses of the federal and state Constitutions to award the conduct credit because Tulare County awards conduct credit to those defendants on its home electronic monitoring program. And here, the trial court did note that “[e]x post facto wise, I don’t think he should be denied what everybody else has been getting.” However, we disagree that Williams was entitled to an award of conduct credit because of the ex post facto clauses of the federal and state Constitutions.
The ex post facto clause in the California Constitution is interpreted in the same manner as that in the United States Constitution. (People v. Snook (1997) 16 Cal.4th 1210, 1220.) “The Ex Post Facto Clause is a limitation upon the powers of the Legislature [citation], and does not of its own force apply to the Judicial Branch of government. But the principle on which the Clause is based – the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties – is fundamental to our concept of constitutional liberty. [Citations.] As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.” (Marks v. United States (1977) 430 U.S. 188, 191-192.) Thus, the due process clause bars the retroactive application of an unforeseeable judicial enlargement of a criminal statute. (Id. at p. 192.)
In this case, however, there was no retroactive application of an unforeseeable judicial enlargement of a criminal statute. Williams committed his crimes in 2004 and he was sentenced in 2006. People v. Silva, supra, 114 Cal.App.4th 122, which denied conduct credit to defendants while they were in a home electronic monitoring program, was decided in 2003. Thus, Williams was on notice in 2004 that he would not be entitled to conduct credits for being on a home electronic monitoring program.
We are sympathetic to the Superior Court’s concerns about meting out punishment fairly. However, those concerns cannot be addressed by awarding Williams conduct credits while he was on a home electronic monitoring program. Thus, we will strike the award of conduct credits.
DISPOSTION
The Superior Court is directed to modify its sentencing order accordingly, granting only such credits as provided by law.
WE CONCUR: Dawson, J., Kane, J.