Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF060173 Paul E. Zellerbach, Judge.
Robert Booher, 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, and Peter Quon, Jr., Marvin E. Mizell, Angela Borzachillo, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Hollenhorst, J.
Defendant Jose Esteban Astorga appeals from a judgment entered following jury convictions for transportation of marijuana (Health & Saf. Code, § 11360, subd. (a); count 1) and possession for sale of marijuana (Health & Saf. Code, § 11359; count 2). The court sentenced defendant to three years in state prison.
Defendant contends the trial court erred in denying his motion to suppress evidence procured during a traffic stop. Defendant also asserts the trial court erred in excluding evidence of dismissal of charges against him for a prior drug offense and in excluding evidence that his daughter told an investigating officer defendant did not know anything about the prior incident. In supplemental briefing, defendant further argues that the amendment to Penal Code section 4019, increasing the rate of custody credits, should have been applied retroactively, and the failure to do so violated defendant’s right to equal protection under the federal and state Constitutions.
Unless otherwise noted, all statutory references are to the Penal Code.
We conclude there was no prejudicial error and affirm the judgment.
1. Facts
During the evening of April 16, 2007, California Highway Patrol Officer David Heidt and his canine partner, Bronco, were patrolling the Interstate 10 freeway in Indio when Heidt noticed defendant’s car weaving and slightly exceeding the speed limit. Heidt pulled defendant over to the side of the highway. Heidt noticed defendant and his wife, Maria Rodriguez-Castaneda, who was sitting in the front passenger seat, were both extremely nervous. Their hands were shaking and they were sweating profusely.
Heidt smelled alcohol in the car and noticed open beer cans on the floor of the front passenger side. After conducting sobriety tests, Heidt concluded defendant was not driving impaired but, because defendant and Maria appeared to be extremely nervous, Heidt continued investigating to determine if they were involved in criminal activity. Bronco alerted Heidt to drugs in the spare tire in the trunk. Inside the tire were six packages of marijuana, weighing a total of 25 pounds.
During an investigative interview, defendant said an unknown man handed him the tire at a gas station and said he would pay defendant $500 to take the tire to a gas station in Pomona. Defendant said he had done the same thing five times before.
Sergeant Manuel J. Garcia testified that based on the large amount of marijuana, he believed it was possessed for sale.
Prior Uncharged Incident
During the trial in the instant case, a border patrol agent, James Proffitt, testified that during the morning of February 26, 2007, he was working at a checkpoint south of Indio on Highway 86. His dog, Bullet, alerted Proffitt to the trunk of defendant’s car. Proffitt requested a secondary investigative inspection.
Defendant consented to Proffitt searching the car, including the trunk. Bullet alerted Proffitt to the trunk. When Proffitt asked defendant how to remove the tire from the trunk, defendant’s demeanor changed and his voice quivered. After removing the tire, Proffitt cut open the tire and found an envelope containing six bundles of marijuana, weighing 31.3 pounds. The envelope had defendant’s and his daughter’s names on it.
Sheriff’s Deputy Francisco Lopez testified that, while detaining defendant and his family at the checkpoint, defendant’s daughter, Crystal, told him that when she and her family were in Mexicali, she borrowed defendant’s car and, while at a friend’s house, loaded a tire with marijuana in it to take to Pomona. Lopez also interviewed defendant, who repeatedly said, “I don’t know anything.”
2. Motion to Suppress Evidence
Defendant contends the trial court erred in denying his motion to suppress evidence discovered during an unlawfully prolonged detention. Defendant does not dispute the lawfulness of the initial traffic stop. Defendant complains that the search of his car and the seizure of marijuana from a spare tire in his car trunk were unlawful because the evidence was procured during an unduly prolonged detention.
A. Procedural Background
Prior to trial, defendant filed a motion to suppress all evidence obtained as a result of defendant’s prolonged detention. During the motion hearing, Heidt testified to the following facts. While Heidt was travelling westbound on Interstate 10, he noticed defendant’s car weaving and traveling a little faster than the speed limit. Heidt pulled over defendant to make a traffic enforcement stop. From the passenger side of defendant’s car, Heidt told defendant he was being pulled over for speeding and failing to maintain the lane. Heidt requested defendant’s driver’s license, registration, and insurance. Defendant gave Heidt his driver’s license and registration, but did not have car insurance. Defendant appeared nervous. He stuttered and his hands shook. As Heidt spoke to defendant, he began to sweat profusely from his forehead.
Defendant’s wife, Maria, who was in the front passenger seat, also appeared nervous. She constantly looked around and at defendant as Heidt talked to her. Her hands were shaking and she also started sweating. Heidt noticed open beer cans in a plastic bag down by her feet. Heidt asked Maria for identification, which she provided.
After noticing the beer cans, Heidt proceeded to determine whether defendant was driving while intoxicated. Heidt asked defendant to exit the vehicle. Defendant’s breath smelled of alcohol and he continued to appear extremely nervous. He was constantly moving and avoided eye contact. Heidt asked pre-field sobriety questions, such as where defendant was coming from, where he was going, and whether he had been arrested before. Defendant said he had previously been arrested for possession of drugs. Heidt conducted a couple of field sobriety tests on defendant. Heidt concluded defendant had been drinking, but not enough to interfere with his driving.
Heidt then spoke to Maria. Her answers to questions as to where she was coming from and where she was going, differed from defendant’s answers and she avoided eye contact. Meanwhile, additional officers arrived to assist Heidt.
Based on the totality of the circumstances, including defendant’s and Maria’s nervousness and defendant’s statement he had previously been in possession of drugs, Heidt suspected defendant was involved in criminal activity and therefore decided to have his canine, Bronco, sniff the car exterior. Bronco alerted Heidt to the car trunk. Heidt opened the trunk and Bronco went to the tire laying in the trunk. Heidt removed the tire hubcap and noticed the tire did not belong to the car and that it was unusually heavy. Meanwhile, Sergeant Crescenti arrived. Heidt told him the circumstances and Crescenti inspected the tire. The two officers believed there was something inside the tire. Crescenti cut open the tire and found packages that smelled like marijuana. Defendant was then arrested. The detention lasted about 45 minutes.
After hearing oral argument on defendant’s motion to suppress, the trial court denied defendant’s motion to suppress evidence.
B. Applicable Law
In reviewing the denial of defendant’s suppression motion, we defer to the trial court’s factual findings supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search and seizure were reasonable under Fourth Amendment standards. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; Ornelas v. United States (1996) 517 U.S. 690, 696-697.) In determining whether a detention is legal, reviewing courts consider the totality of the circumstances. (People v. Souza (1994) 9 Cal.4th 224, 230-231.)
In evaluating the reasonableness of an investigative detention, a reviewing court examines “‘whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ [Citation.]” (United States v. Sharpe (1985) 470 U.S. 675, 682 (Sharpe).)
An officer may prolong the detention if he or she discovers something suspicious during the course of the traffic stop. (People v. Valencia (1993) 20 Cal.App.4th 906, 918 [Fourth Dist., Div. Two].) Facts coming to light during the investigatory detention may provide reasonable suspicion to prolong the detention. (People v. Warren (1984) 152 Cal.App.3d 991, 995-997.) There is no set time limit; the determination whether a detention was unduly prolonged is based upon whether the officers acted diligently in their reasonable investigation of their suspicions. (Sharpe, supra, 470 U.S. at pp. 685-686.) “Whether an investigatory detention was unduly prolonged turns on ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.’ [Citations.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1577, quoting Sharpe, supra, at p. 686.)
C. Discussion
Defendant argues his detention was unlawfully prolonged. He claims that after Heidt determined defendant was not impaired by alcohol and could safely drive his car, Heidt obtained sufficient information to issue a citation for speeding and should have immediately released defendant. Defendant claims it therefore was unlawful for Heidt to continue investigating and prolonging defendant’s detention. Defendant asserts that nervousness alone was not a sufficient ground for detention. In addition, defendant argues his disclosure that he had previously been arrested for drug possession was also not a valid ground for detaining him since the disclosure was made after defendant should have been released.
Here, based on the totality of the circumstances, we conclude the detention was not unduly prolonged. Heidt became aware of facts and circumstances calling for further investigation within the time reasonably necessary to perform the duties related to the traffic stop. This, in turn, justified prolonging the detention further for purposes of broadening the scope of inquiry and conducting further investigation. (People v. Webster (1991) 54 Cal.3d 411, 430-432.) When Heidt continued his investigation after concluding the sobriety tests, Heidt had a reasonable suspicion that defendant was involved in criminal activity. Defendant and Maria appeared unusually nervous. They began sweating profusely and their hands were shaking. Defendant stuttered and was restless after exiting the car. While defendant’s nervousness alone may not have been enough to prolong defendant’s detention, his nervousness, restlessness, and lack of eye contact, in conjunction with Maria’s nervousness, was sufficient.
Furthermore, each additional investigative step, including Heidt asking Maria questions regarding her trip origin and destination, asking defendant about his criminal past, having Bronco sniff the car, opening the car trunk, and ultimately cutting open the spare tire, reflected that Heidt diligently pursued a means of investigation reasonably designed to confirm or dispel his suspicions of criminal activity quickly. The record shows the requisite diligence to justify the prolonged detention. (People v. Gomez (2004) 117 Cal.App.4th 531, 538.) There was no “delay unnecessary to the legitimate investigation of the law enforcement officers.” (Sharpe, supra, 470 U.S. at p. 687.)
Defendant’s reliance on Williams v. Superior Court (1985) 168 Cal.App.3d 349 is misplaced. In Williams, the court concluded it was unreasonable for officers to extend a traffic stop to question the defendants on unrelated matters when they already had all the information necessary to issue a traffic citation, since “there was no objectively reasonable suspicion justifying prolongation of the detention to the time of the search.” (Id. at p. 362.)
Williams is factually distinguishable from the instant case since Heidt had an objectively reasonable suspicion, supported by specific and articulable facts, justifying prolonging the detention. Heidt acted unreasonably when, after observing defendant’s and Maria’s extreme nervousness and lack of eye contact, Heidt briefly questioned Maria about her trip origin and destination, and asked defendant about his criminal history. When their responses reasonably raised additional suspicions of criminal activity, Heidt acted reasonably in having Bronco sniff the exterior of defendant’s car for drugs. After Bronco alerted to the car trunk, there were more than reasonable grounds for briefly prolonging defendant’s detention while investigating further.
We further note that in 1982, three years after People v. McGaughran (1979) 25 Cal.3d 577 (McGaughran), California’s voters added a provision to our state Constitution that precludes suppression of relevant evidence in a criminal case unless compelled by federal law. (See People v. McKay (2002) 27 Cal.4th 601, 605.) Under federal law, an officer may, without violating the Fourth Amendment, arrest a person who in the officer’s presence commits “even a very minor criminal offense” (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354), such as a Vehicle Code violation. Consequently, the McGaughran limit on the time an officer may detain a Vehicle Code violator is no longer the law in California for purposes of Fourth Amendment analysis.
Defendant also argues that since Heidt did not arrest defendant for a traffic infraction before conducting the search, the search was unlawful. We are unpersuaded. The prolonged detention was lawful since it was incident to vehicle infractions (speeding and no vehicle insurance) and a violation of the open container law (Veh. Code, § 23223). There thus was sufficient evidence to justify prolonging the detention.
3. Admissibility of Evidence of Dismissal of Prior Charges
Defendant contends the trial court abused its discretion in barring evidence of dismissal of charges against him for possessing drugs in February 2007.
A. Procedural Background
Before the trial in the instant case, the prosecution moved to allow evidence of Proffitt finding marijuana in defendant’s car on February 26, 2007. The prosecution asserted the evidence was admissible under Evidence Code section 1101, subdivision (b), because it was being used to prove defendant knew about, and intended to sell, the marijuana found in his car on April 16, 2007. Defendant objected to the evidence on the grounds the charges against defendant for the February incident were dismissed. Also, defendant’s daughter, Crystal, said she was responsible for the marijuana found in February and claimed defendant did not know about it. The trial court granted the prosecution’s motion to allow evidence of the uncharged offense.
During the trial, defense counsel argued that, if the court permitted evidence of the February offense, evidence of dismissal of the charges against defendant should also be permitted. The trial court noted this may be the case as to an acquittal, because there had been a factual finding of innocence, but such was not the case as to a dismissal since there had been no factual finding of innocence. Here, the reason for the dismissal was speculative.
The trial court concluded that, because there was no evidence as to why the prior drug possession charges against defendant were dismissed, evidence of dismissal of the charges was inadmissible. The court concluded the only relevant evidence was evidence that defendant was arrested in February for possession of a tire filled with marijuana. The court thus permitted evidence of the February 2007 incident, as well as evidence that Crystal claimed she was responsible for loading the tire containing marijuana in defendant’s car for the purpose of transporting the marijuana to Pomona.
During closing argument, the prosecutor argued that the February 2007 incident showed that defendant knew about, and intended to sell, the marijuana found in his car on April 16, 2007. Defendant argued that evidence of the February incident did not establish he knew about the marijuana in his car in April 2007, since his daughter claimed responsibility for the February offense.
B. Applicable Law
Under Evidence Code section 1101, subdivision (a), “evidence of a person’s character or a trait of his or her character... is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of Evidence Code section 1101 states: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact... other than his or her disposition to commit such an act.”
Here, the issue at trial was whether defendant knew he was in possession of marijuana and intended to sell it. Defendant does not dispute that evidence of the February 2007 incident was admissible to prove a fact other than whether defendant participated in the crime, such as his knowledge, intent or motive. Rather, citing People v. Griffin (1967) 66 Cal.2d 459, 464 (Griffin)and People v. Mullens (2004) 119 Cal.App.4th 648, 664-665, defendant argues that, by allowing the evidence of the uncharged offense, the trial court was also required to allow evidence that the charges against defendant for the February offense were dismissed.
In Griffin, supra, 66 Cal.2d 459, the California Supreme Court stated that “competent and otherwise admissible evidence of another crime is not made inadmissible by reason of the defendant’s acquittal of that crime.” (Id. at p. 464.) The court in Griffin further stated that evidence, in the form of a properly authenticated acquittal, was admissible to rebut prosecution evidence that the defendant committed another similar crime. (Id. at pp. 465-466.) Relying on Griffin, the courtin People v. Mullens, supra, 119 Cal.App.4th 648, held that, “if a trial court permits the prosecution to present evidence that the defendant committed one or more similar offenses for which he or she is not charged in the current prosecution, the trial court must also allow the defense to present evidence of the defendant’s acquittal, if any, of such crimes, and failure to allow such acquittal evidence constitutes error. [Citations.]” (Id. at pp. 664-665.)
Normally, under the Evidence Code, judgments of either conviction or acquittal are hearsay and therefore inadmissible (Evid. Code, § 1200, subds. (a), (b)), although evidence that a witness has been convicted of a felony is admissible to attack the credibility of a witness (Evid. Code, § 788). There are, however, exceptions to this rule based on statutory and decisional law. (See Sen. Com. on Judiciary, com. on Assem. Bill No. 3212 (1965 Reg. Sess.) reprinted at 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1200, pp. 3-4; see also Evid. Code, § 1200 com. by Sen. Com. on Judiciary.) Griffin, supra, 66 Cal.2d 459 creates a hearsay exception for a properly authenticated acquittal. In referring to the phrase “properly authenticated acquittal, ” we assume the Supreme Court in Griffin was referring to the judgment of acquittal that must be entered under section 1165 when a general verdict is returned in favor of the defendant.
C. Discussion
Here, defendant did not seek to introduce evidence in the form of a judgment of acquittal. Rather, he attempted to introduce evidence the February 2007 charges against him were dismissed. Defendant did not attempt to introduce any evidence of a properly authenticated jury verdict or other evidence of factual findings by the trier of fact. The dismissal did not arise from a factual determination by the trial court as to the validity of the February 2007 charges. Unlike a judgment of acquittal, the reasons for the dismissal were subject to speculation, with no determination by the trier of fact as to whether the charges had any merit. Defense counsel acknowledged the parties did not know why the charges were dismissed. Evidence of dismissal of the charges did not fall within the Griffin hearsay exception for a properly authenticated acquittal. The trial court thus properly excluded such evidence from trial as inadmissible evidence. (Griffin, supra, 66 Cal.2d at pp. 465- 466.)
Furthermore, even if there was error in excluding evidence of dismissal of the February charges, there was no prejudicial error under People v. Watson (1956) 46 Cal.2d 818, 836, since the trial court permitted Lopez to testify that defendant’s daughter, Crystal, told him she was responsible for the marijuana found in defendant’s car in February. Lopez testified that Crystal told him that when she and her family were in Mexicali in February, she borrowed defendant’s car and, while at a friend’s house, loaded a tire with marijuana to take to Pomona. In addition, Lopez also testified that he interviewed defendant about the February incident, and defendant repeatedly said he did not know anything. It is not reasonably probable that defendant would have received a more favorable result had the trial court permitted evidence of dismissal of the February charges. (People v. Scheid (1997) 16 Cal.4th 1, 21; People v. Watson, supra, at p. 836.)
4. Declaration Against Interest Hearsay Exception
Defendant contends the trial court abused its discretion in excluding from evidence hearsay testimony by Lopez that Crystal told him defendant did not know about the marijuana found in his car on February 26, 2007.
A. Procedural Background
During an evidentiary hearing under Evidence Code section 402, defense counsel moved to introduce Crystal’s statements made to Lopez on February 26, 2007. The court found that Crystal was unavailable to testify because she was in custody in a federal correction facility and she would likely assert her Fifth Amendment privilege against self-incrimination even if physically present.
As to the admissibility of Crystal’s hearsay statements to Lopez, the prosecutor objected to allowing several of the statements on the ground they did not fall within the hearsay exception under Evidence Code section 1230, since they did not directly implicate Crystal of criminal liability. The prosecutor objected to the following statements: “My dad did not know anything”; “Look, my parents did not know anything”; “When we got to Mexicali, I told my dad I was going to a friend’s house, ”; “I asked my dad if I could borrow the car”; “I don’t know, ” in reference to how much she would be paid for transporting the marijuana; and “To Pomona. I don’t know where exactly until I arrive. Someone was going to call me and they would tell me where to drop it off in Pomona.”
The trial court concluded the statements were against Crystal’s penal interest and thus admissible under Evidence Code section 1230, with the exception of the following two statements: “My dad did not know anything” and “Look, my parents did not know anything.” The court explained that those statements did not inculpate Crystal. They exculpated her parents. The court therefore excluded the two statements as inadmissible hearsay.
B. Applicable Law
“In California, ‘[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true.’ ([Evid. Code, ] § 1230.) The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]” (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) Here, the trial court found that Crystal was unavailable to testify and this is undisputed on appeal.
Whether a statement is against the declarant’s penal interest initially turns on whether the statement is disserving to the declarant’s interest. As the Supreme Court reiterated in Duarte: “In order to ‘“protect defendants from statements of unreasonable men if there is to be no opportunity for cross-examination, ”’ we have declared [Evidence Code] section 1230’s exception to the hearsay rule ‘inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.’ [Citations.]” (Duarte, supra, 24 Cal.4th at p. 612, quoting People v. Leach (1975) 15 Cal.3d 419, 441.)
As the court explained in People v. Greenberger (1997) 58 Cal.App.4th 298: “‘[I]n the absence of any legislative declaration to the contrary, ’ not all statements which implicate the declarant are admissible against the nondeclarant. [Citation.] Only those statements or portions of statements that are specifically disserving of the penal interest of the declarant were deemed sufficiently trustworthy to be admissible. Statements not specifically disserving were characterized as ‘collateral’ statements and inadmissible.” (Id. at p. 328, quoting People v. Leach, supra, 15 Cal.3d. at p. 441.)
“The focus of the declaration against interest exception... is the basic trustworthiness of the declaration.” (People v. Frierson (1991) 53 Cal.3d 730, 745.) In determining whether a statement is against the declarant’s interest under Evidence Code section 1230 and thus sufficiently trustworthy to be admissible, “the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” (People v. Frierson, supra, at p. 745; see also Duarte, supra, 24 Cal.4th at p. 614.)
The determination as to whether trustworthiness is present “‘requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion.’ [Citation.] A reviewing court may overturn the trial court’s finding regarding trustworthiness only if there is an abuse of discretion.” (People v. Frierson, supra, 53 Cal.3d at p. 745.)
C. Discussion
Here, the trial court did not abuse its discretion in excluding Crystal’s two hearsay statements in which she told Lopez that her parents did not know anything. The statements did not inculpate Crystal. She was merely expressing her view as to her parents’ state of mind, apparently in an attempt to convince Lopez that her parents were innocent. These statements were not trustworthy since they exculpated Crystal’s own parents. Furthermore, the trial court permitted Crystal’s other statements to Lopez, acknowledging her own culpability. The court also permitted Lopez to testify that defendant repeatedly said that he did not know anything.
Under such circumstances, there was no abuse of discretion or prejudicial error in excluding Crystal’s two statements that defendant and Maria did not know anything. Defendant’s citation to federal case law is unpersuasive, not only because the cases are distinguishable, but also because we are not bound by federal Court of Appeal case law. (People v. $8,921 United States Currency (1994) 28 Cal.App.4th 1226, 1232, fn. 6 [Fourth Dist., Div. Two]; Cal. Rules of Court, rule 81115; Cal. Style Manual, §§ 1:25, 1:33-1:34.)
5. Conduct Credit
While this appeal was pending, the Legislature amended section 4019 (Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18)), which changed the calculation of presentence conduct credit. This court granted defendant’s motion to file supplemental briefing on the new issue of application of amended section 4019 to the calculation of defendant’s conduct credits.
Relying on People v. Brown (2010) 182 Cal.App.4th 1354, 1364, defendant contends that the section 4019 amendment is retroactive and therefore he is entitled to additional conduct credits. In support of his claim, he asserts that the legislative intent of the amended statute was to reduce prison overcrowding and costs by shortening defendant’s incarceration time. We recognize 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 recently granted review of most all of the recent decisions on this issue and therefore most of the case law cited in this opinion regarding the application of the section 4019 amendment no longer constitutes binding authority on the issue. Until the issue is decided by the California Supreme Court, we side with the view that the section 4019 amendment applies only prospectively.
Section 4019 amendment held to apply retroactively: People v. Brown, supra, 182 Cal.App.4th at pages 1364-1365 [2010 Cal. LEXIS 5108](Third Dist.), review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 [2010 Cal. LEXIS 5793] (First Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, 1057 [2010 Cal. LEXIS 5947] (Second Dist., Div. One), review granted June 23, 2010, S182183; People v. Norton (2010) 184 Cal.App.4th 408, 417 (First Dist., Div. Three); People v. Pelayo (2010) 184 Cal.App.4th 481, 483-484 [2010 Cal. LEXIS 7217] (First Dist., Div. Five), review granted June 21, 2010, S183552.
Defendant was sentenced on March 20, 2009. Defendant received credit for 174 actual days in custody, plus 86 days credit for good conduct, for a total of 260 days of credit. Under section 4019, as amended, defendant claims he is entitled to an additional 86 days of good conduct credit, for a total of 346 days credit.
Whether section 4019, as amended, applies retroactively is a question of law subject to independent review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.)
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 for good conduct, such as willingly performing assigned labor (§ 4019, subd. (b)) and complying with rules and regulations (§ 4019, subd. (c)).
When defendant was sentenced in March of 2009, under former section 4019, defendant was entitled to accrual of conduct credit at the rate of two days for every four days of actual presentence custody. (Former § 4019.) Later, in October 2009, “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. The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only.” (People v. Rodriguez, supra, 183 Cal.App.4th at p. 5 (Rodriguez); see also § 4019, subd. (f).)
Section 3 provides that the Penal Code shall not have retroactive effect unless expressly so declared. (§ 3.) “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.]”’ [Citation.]” (People v. Landon, supra, 183 Cal.App.4th at p. 1106, quoting People v. Alford (2007) 42 Cal.4th 749, 753.)
The Supreme Court in In re Estrada (1965) 63 Cal.2d 740, 744-745, 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.)
“Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective. [Citations.]” (In re N.D. (2008) 167 Cal.App.4th 885, 891.)
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.” (In re 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 section 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 People v. House, supra, 183 Cal.App.4th at p. 1057; Hunter, supra, at p. 393.)
But 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. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Sage (1980) 26 Cal.3d 498, 510; People v. Saffell (1979) 25 Cal.3d 223, 233.)
Furthermore, because conduct credits are intended to motivate good behavior, the section 4019 amendment, which increases the credit accrual rate, does not represent a determination that a prior punishment is too severe. (See Rodriguez, supra, 183 Cal.App.4th at p. 9 [“it cannot be said that the punishment-reducing amendment at issue here ‘obviously’ evinces a legislative determination that sentences for some felons are too severe, or that the Legislature intended a reduction in sentence for some felons should be extended to all to whom it lawfully can be extended”].) 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; see also People v. Otubuah, supra, 184 Cal.App.4th at p. 436.)
We conclude, as we did in People v. Otubuah, supra, 184 Cal.App.th at page 436, that, “[h]aving searched for a legislative intent regarding prospective or retroactive application, we agree with the Fifth District that ‘there is no “‘clear and compelling implication’” [citation] that the Legislature intended the amendatory statute at issue [Pen. Code, § 4019] to apply retroactively. Accordingly, the [Penal Code] section 3 presumption is not rebutted.’ (People v. Rodriguez (2010) 182 Cal.App.4th 535, 544 [republished at 183 Cal.App.4th 1]; see also In re E.J., supra, 47 Cal.4th at p. 1272 [‘“[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application”’].)”
As the court in People v. Hopkins, supra, 184 Cal.App.4th 615, recently explained in support of its holding that the section 4019 amendment applies prospectively only: “Senate Bill No. 18, the legislation which amended [Penal Code] section 4019, was enacted in order to address the state’s fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats.2009, 3d Ex.Sess., ch. 28, § 62.) By increasing the amount of credits available to certain inmates, qualifying inmates’ terms will be shortened and prison populations reduced, resulting in reduced costs to the state. Obviously, if the amendment to [Penal Code] section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however that applying the amendment prospectively is inconsistent with the Legislature’s goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature’s intent to reduce prison expenditures is particularly instructive on the issue of retroactivity. It certainly cannot be conflated into a determination, as in Estrada, that the original punishment for a particular crime was too severe and that a lesser punishment was more appropriate. ‘Rather, because the express purpose of Senate Bill [No.] 18 was to address the state’s fiscal emergency, it is also plausible the Legislature determined the following: The persons whose sentences will be reduced under the [Penal Code] section 4019 amendment are just as culpable and deserving of punishment as they were before the amendment; after all, there has been no legislative determination that the offenses for which those persons were sentenced should be punished less severely.’ [Citation.]” (People v. Hopkins, supra, at p. 625, quoting in part Rodriguez, supra, 183 Cal.App.4th at p. 9.)
The court in Hopkins thus concluded the rule laid out in Estrada was not applicable “because the amendment to [Penal Code] section 4019 does not necessarily lessen a defendant’s punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody.[] Applying the amendment to [Penal Code] section 4019 retroactively would not advance the statute’s purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred.” (People v. Hopkins, supra, 184 Cal.App.4th at p. 625, citing Rodriguez, supra, 183 Cal.App.4th 1.)
We therefore conclude the amendment to section 4019 applies prospectively and defendant is not entitled to an increase in his custody credits.
6. Equal protection
We also reject defendant’s equal protection challenge to the amended version of section 4019. Defendant raised this issue as well in his supplemental brief, and the People filed a responsive brief. As argued in Rodriguez, supra, 183 Cal.App.4th at p. 13, defendant asserts that there is no rational basis for applying the section 4019 amendment to defendants sentenced after the statute’s effective date but not to those defendants sentenced before that date whose judgments are not final.
The constitutional right to equal protection of the laws under the federal and state Constitutions “‘“compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”’ [Citation.] Where, as here, the statutory distinction at issue neither ‘touch[es] upon fundamental interests’ nor is based on gender, there is no equal protection violation ‘if the challenged classification bears a rational relationship to a legitimate state purpose. [Citations.]’ [Citation.]” (Rodriguez, supra, 183 Cal.App.4th at p. 13.) That is, where there are plausible reasons for the classification, our inquiry ends. (Ibid.)
In Rodriguez, supra, 183 Cal.App.4th at page 14, the court concluded that the prospective-only operation of amended section 4019 did not violate equal protection because the amended statute was “aimed, at least in part, at providing an incentive for good conduct by inmates.” (Rodriguez, supra, at p. 14.)
In Rodriguez the defendant argued, as defendant argues in the instant case, that there was no rational basis for “for challenged classification because, ‘while incentivizing good conduct is a result of the amendment to [Penal Code] section 4019, it is not the purpose of the amendment; the express purpose of the bill is to respond to a fiscal emergency.’” (Rodriguez, supra, 183 Cal.App.4th at p. 14.) The Rodriguez court rejected this argument, explaining that “it is of no moment that incentivizing conduct is not the express purpose of the statute. As indicated above, classification withstands equal protection challenge ‘“‘“if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”’”’” [Citation.] Here, it is much more than merely reasonably conceivable that the Legislature enacted the 2010 amendment with the additional purpose of increasing the incentive for good conduct.” (Ibid.)
As in Rodriguez, supra, 183 Cal.App.4th at page 14, we conclude the prospective-only application of the section 4019 amendment does not violate appellant’s equal protection rights.
7. Disposition
The judgment is affirmed.
We concur: Ramirez P. J., Richli J.
Section 4019 amendment held to apply only prospectively: People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 [2010 Cal. LEXIS 6013] (Fifth Dist.), review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 [2010 Cal. LEXIS 7417] (Fourth Dist., Div. Two), review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, 626-627, [2010 Cal. LEXIS 7522] (Sixth Dist.), review granted July 28, 2010, S183724.