Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. SS070591A & SS081072A
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
The trial court found that defendant Benjamin Bruce violated his probation in case Nos. SS070591A and SS081072A. On November 20, 2009, the court sentenced him to three years eight months in prison. In case No. SS070591A, the court awarded a total of 408 days custody credits, consisting of 272 actual days of custody plus 136 days of conduct credit under Penal Code section 4019. In case No. SS081072A, the court awarded a total of 138 days custody credits, consisting of 92 actual days of custody plus 46 days of conduct credit under section 4019.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that pursuant to section 4019 as amended effective January 25, 2010, he is entitled to an additional 136 days of conduct credit in case No. SS070591A and an additional 46 days of conduct credit in case No. SS081072A.
For reasons that we will explain, we determine that the amendment to section 4019 operates prospectively and that defendant is not entitled to additional presentence conduct credit. Therefore, we will affirm the judgment in each case.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying defendant’s convictions are not included as they are not relevant to defendant’s contention on appeal.
Grants of Probation in case Nos. SS070591A and SS081072A
On March 6, 2007, defendant was charged by amended complaint No. SS070591Awith six felony counts of “acquir[ing] and retain[ing] possession of access card information” with fraudulent intent (§ 484e, subd. (d); counts 1-6) and nine misdemeanor counts of fraudulent use of an access card (§ 484g, subd. (a); counts 7-15). Pursuant to a plea bargain, defendant pleaded no contest to three felony counts (§ 484e, subd. (d); counts 1, 2, & 5). On June 21, 2007, defendant’s sentence was suspended and he was placed on probation for three years with various terms and conditions, including 180 days in jail. Defendant was awarded custody credit and ordered to pay restitution, various fines, and a fee.
On March 11, 2008, the probation officer filed a petition and notice of probation violation. A declaration in support of the petition alleged that defendant violated probation by violating section 484e, subdivision (d) and section 484g. The declaration referred to case No. SS081072A.
That same day, defendant was charged by complaint No. SS081072A with two felony counts of “acquir[ing] and retain[ing] possession of access card information” with fraudulent intent (§ 484e, subd. (d); counts 1 & 2) and one misdemeanor count of misrepresenting himself as the holder of an access card (§ 484g, subd. (b); count 3). On March 18, 2008, defendant pleaded no contest to all three counts based on the condition that he would receive probation. Based on his plea in this case, he was found in violation of probation in case No. SS070591A.
On April 15, 2008, in case No. SS081072A, the court sentenced defendant to three years eight months for counts 1 and 2, suspended execution of the sentence, and placed defendant on probation for three years with various terms and conditions. For count 3, the court denied probation and ordered defendant to serve 365 days in county jail. Defendant was awarded custody credits and ordered to pay restitution and various fines and fees. In case No. SS070591A, in which defendant was found in violation of probation, the court sentenced defendant to three two-year terms for counts 1, 2, and 5, suspended execution of sentence, and placed defendant on probation under the “original terms and conditions, ” except that he was to serve 336 days in county jail, with 336 days of custody credits. The court ordered that each two-year term was to run concurrent “to any other time and sentence that [defendant is] serving.” The court also awarded custody credits.
Termination of Probation in case Nos. SS070591A and SS081072A
On August 6, 2009, the probation officer filed a petition and notice of probation violation in case Nos. SS070591A and SS081072A, alleging that defendant failed to report to his probation officer. On October 16, 2009, after hearing testimony from defendant’s probation officer, the court found defendant in violation of probation in both cases.
On November 20, 2009, in case No. SS070591A, the court terminated probation and imposed the previously suspended sentence of three concurrent two-year terms. The court granted defendant 272 actual days, plus 136 days of section 4019 conduct credit, for a total of 408 days of presentence custody credits. In case No. SS081072A, the court terminated probation and imposed the previously suspended sentence of three years eight months. Defendant was granted 92 actual days, plus 46 days of section 4019 conduct credit, for a total of 138 days of presentence custody credits. The terms in the two cases were to run concurrently. Defendant was also ordered to pay various fines in both cases, as well as the balance of any other fines and fees that were previously imposed.
On January 7, 2010, defendant filed a timely notice of appeal in both cases.
III. DISCUSSION
Section 4019 provides for presentence credit for worktime and for good behavior. (§ 4019, subd. (b)(1) & (c)(1).) These types of presentence credit are collectively referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn.3 (Dieck).) The presentence credit scheme of section 4019 “ ‘ “focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, supra, 46 Cal.4th at p. 939.)
During the times that defendant was sentenced in each case, former section 4019 provided that a defendant could accrue conduct credit at a rate of two days for every four-day period of actual presentence custody. (Former § 4019, subds. (b), (c), & (f); Dieck, supra, 46 Cal.4th at p. 939.) Effective January 25, 2010, Senate Bill No. 18 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) amended section 4019 to increase the amount of presentence conduct credit that may be granted to certain offenders. As amended, section 4019 now provides that an eligible defendant may accrue conduct credit at rate of four days for every four days of presentence custody. (§ 4019, subds. (b)(1), (c)(1), & (f).)
On appeal, defendant argues that the amendment to section 4019 should be applied retroactively, thereby entitling him to additional conduct credit in each case, because his conviction in each case was not yet final when the amendment became effective. Defendant contends that retroactive application is compelled by both statutory construction and the equal protection clauses of the state and federal constitutions.
As an initial matter, the record does not reflect that this issue was raised by defendant in the trial court. In general, a defendant is precluded from raising a purported error in the calculation of presentence custody credits for the first time on appeal. (See § 1237.1; People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) We will, however, consider the merits of defendant’s appeal. Whether the amendment to section 4019 is retroactive is an issue currently before the California Supreme Court. If we do not consider defendant’s claim now, he will undoubtedly press his claim in the trial court and again in this court as necessary, so that he may seek review in the California Supreme Court, or so that he has preserved his claim until the California Supreme Court issues a ruling. In this appeal, the People have filed a responding brief addressing whether defendant is entitled to additional credits under amended section 4019. Consequently, in the interests of judicial economy, we will consider the substance of defendant’s claim now.
The issue of whether a statutory amendment applies retroactively is determined under the independent standard of review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) The specific question of whether the amendment to section 4019 applies retroactively has divided the appellate courts and, as we have stated, is presently pending before the California Supreme Court.
For example, in the following cases, the appellate courts have determined that the amendment to section 4019 applies retroactively: People v. Landon (2010) 183 Cal.App.4th 1096 [First App. Dist., Div. Two], review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408 [First App. Dist., Div. Three], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [First App. Dist., Div. Five], review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049 [Second App. Dist., Div. One], review granted June 23, 2010, S182813; People v. Keating (2010) 185 Cal.App.4th 364 [Second App. Dist., Div. Seven], petn. for review pending, S184354; People v. Brown (2010) 182 Cal.App.4th 1354 [Third App. Dist.], review granted June 9, 2010, S181963.
We determine that section 4019 applies prospectively. Section 3 provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. “ ‘It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that... the Legislature[] intended otherwise. [Citations.]’ [Citations] ‘We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]’ [Citation.] Nonetheless, ‘in 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... must have intended a retroactive application.’ [Citations.]” (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794 (Whaley).)
The Legislature has not expressly declared that the amendment to section 4019 operates retroactively, and we do not believe that there is a “ ‘clear indication’ ” from extrinsic sources that the Legislature intended a retroactive application. (Whaley, supra, 160 Cal.App.4th at p. 794.)
We are not persuaded by defendant’s argument that the amendment to section 4019 should be applied retroactively because the Legislature enacted Senate Bill No. 18 during California’s fiscal emergency with the intention of reducing the prison population. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) Although retroactive application of the amendment to section 4019 might result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced, prospective application of the amendment would also result in savings.
We are also not persuaded by defendant’s citations to other portions of Senate Bill No. 18 which amended other credit statutes besides section 4019. Defendant contends that some of those amendments include a saving clause, and the absence of a saving clause in the amendment to section 4019 “demonstrates a legislative intent that the amendment be construed retroactively.” Defendant cites, as an example, section 41 of Senate Bill No. 18, which amended section 2933.3 to provide for additional credit to certain inmates who have completed training for inmate firefighter assignments. (§ 2933.3, subds. (b) & (c).) Amended section 2933.3 further provides that “[t]he credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009.” (Id., subd. (d).) Although defendant refers to subdivision (d) of section 2933.3 as a saving clause, we believe that subdivision (d) may be characterized as an express retroactivity provision. Further, the failure of the Legislature to include a retroactivity provision in the same bill regarding amended section 4019 would suggest that the Legislature did not intend for the amendment to section 4019 to have retroactive effect.
Defendant also points to section 59 of Senate Bill No. 18. Defendant argues that section 59 “assigns to the CDCR the task of recalculating credits. If the Legislature intended that the amended Section 4019 appl[ied] only prospectively, then recalculating conduct credits would be unnecessary. Calculating credits is a task assigned to the sentencing court....” We are not persuaded by defendant’s argument. As we have stated, Senate Bill No. 18 amended other credit statutes in addition section 4019, and at least one of those statutes, section 2933.3, expressly provides for retroactive credit. Thus, the language in section 59 of Senate Bill No. 18 regarding the calculation of additional credits is pertinent to section 2933.3, and the prospective application of section 4019 would not make section 59 of Senate Bill No. 18 surplusage. Further, although defendant is correct when he states that “[t]here is no suggestion [section 59 of Senate Bill No. 18] was intended to apply to some of [Senate Bill No. 18’s] custody credit calculations and not others, ” there is also no suggestion that section 59 of Senate Bill No. 18 was intended to apply to changes other than those that the Legislature expressly provided are to be applied retroactively, as in section 2933.3, subdivision (d).
Section 59 of Senate Bill No. 18 states: “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.”
Defendant’s reliance on People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) for the proposition that the amendment to section 4019 operates retroactively is also misplaced. The defendant in Hunter sought retroactive application of the 1976 amendment to former section 2900.5, which allowed a credit for “ ‘back time, ’ ” that is, “periods of incarceration in county jail awaiting trial and judgment, ” against a sentence imposed as a condition of probation. (Hunter, supra, 68 Cal.App.3d at p. 391.) The court determined that the amendment “must be construed as one lessening punishment, as the term is used in [In re Estrada (1965) 63 Cal.2d 740 (Estrada)].” (Hunter, supra, 68 Cal.App.3d at p. 393.) Following Estrada, the Hunter court ruled that the amendment to former section 2900.5 must be applied retroactively. (Hunter, supra, 68 Cal.App.3d at p. 393.)
In Estrada, the California Supreme Court stated, “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.” (Estrada, supra, 63 Cal.2d at p. 748.) However, the rule in Estrada is not applicable in the present case because the amendment to section 4019 does not necessarily lessen a defendant’s punishment. As we have discussed, section 4019 allows a defendant to earn additional conduct credit, while section 2900.5 provides that a defendant is entitled to additional custodycredit for the sole reason that he or she is in presentence custody. (Contra, People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [determining that Estrada applied where the amended statute provided for conduct credit because “it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe”].)
Defendant also relies on People v. Babylon (1985) 39 Cal.3d 719 (Babylon), where the California Supreme Court stated “the general principle that, absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal....” (Id. at p. 722.) In Babylon, the Legislature amended the statute under which the defendants were charged during the pendency of their appeals. (Ibid.) Under the amended statute, the defendants’ activities were not proscribed. (Ibid.) Because the amendments did not include a savings clause, the court concluded that the defendants were entitled to the benefit of the amended statute, and reversed the convictions. (Id. at pp. 727-728.) Babylon is obviously distinguishable from the present case because the statutory amendment addressed in Babylon decriminalized the acts for which the defendants had been convicted, while the amendment to section 4019 provides only that a defendant may earn additional presentence conduct credit.
Nor are we persuaded by defendant’s contention that retroactive application is necessary based on equal protection principles under the authority of In Re Kapperman (1974) 11 Cal.3d 542 (Kapperman) and People v. Sage (1980) 26 Cal.3d 498 (Sage). Kapperman is not applicable because the issue raised in that case involved actual custody credit, not conduct credit. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) These two types of credit are distinguishable because custody credit is awarded automatically on the basis of time served (§ 2900.5), while conduct credit must be earned by a defendant (§ 4019). Sage is also inapposite. In Sage, the California Supreme Court discussed a prior version of section 4019 that allowed presentence conduct credit to misdemeanants but not to certain felons. (Sage, supra, 26 Cal.3d at p. 507.) The Sage court concluded there was no rational basis, much less a compelling state interest, for the distinction. (Id. at p. 508.) In contrast, the issue in this case concerning the current amendment to section 4019 is temporal, rather than based on the defendant’s status as a misdemeanant or felon.
Moreover, the primary purpose of the presentence credit scheme set forth in section 4019 is the encouragement of “ ‘ “minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, supra, 46 Cal.4th at p. 939.) Since a defendant who was sentenced prior to the effective date of the amendment to section 4019 cannot be retroactively encouraged to behave well during presentence custody, there is a rational basis for the Legislature’s implicit intent that the amendment to section 4019 apply prospectively, and prospective application furthers the primary purpose of section 4019.
In sum, we determine that the amendment to section 4019 operates prospectively and that defendant is not entitled to additional presentence conduct credit.
IV. DISPOSITION
The judgments in case Nos. SS070591A and SS081072A are affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.
On the other hand, some appellate courts, including this court, have concluded that the amendment applies prospectively. (See, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 [Sixth Dist.], review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 [Second App. Dist., Div. Four], petn. for review pending, S184957; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth App. Dist., Div. Two], review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1 [Fifth App. Dist.], review granted June 9, 2010, S181808.)