Opinion
A130328
10-22-2012
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO R. BURRELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. Nos. C158815 & C150478B)
I. INTRODUCTION
While serving his sentence pursuant to a 2008 judgment, appellant filed a motion to retroactively increase his presentence custody credits pursuant to a 2010 amendment to Penal Code section 4019. The trial court denied the motion, rejecting appellant's claim that the equal protection clause mandates that the 2010 amendment be given retroactive effect. We affirm.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2008 Judgment
In July 2005, appellant pleaded no contest to a charge of being an accessory to a felony (§ 32) in case No. C150478B (the 2005 case). Appellant was placed on probation.
In June 2008, appellant pleaded no contest to a charge of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) in case No. C158815 (the 2008 case). Appellant also admitted that he had been personally armed with a firearm in the commission of that offense. (§ 12022, subd. (c).)
A consolidated sentencing hearing was held on August 13, 2008. In the 2005 case, appellant admitted violating the terms of probation. The court then revoked and terminated probation, and did not sentence appellant to a prison term. In the 2008 case, the court sentenced appellant to a 10-year prison term. The court awarded appellant credit for 217 days he was in actual custody. The version of section 4019 that was in effect at that time also provided that an eligible prisoner could earn additional pre-sentence good conduct credits at a rate of two custody credits for every four actual days served. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554 [former § 4019, subd. (f)].) Accordingly, the court awarded appellant 108 days of additional custody credits, for a total of 325 days of presentence credits in the 2008 case.
Appellant did not appeal the judgment or his sentence. B. The 2010 Motions to Correct Appellant's Sentence
In October 2009, the Legislature amended section 4019, effective January 25, 2010 (the January 2010 amendments). The January 2010 amendments increased the rate at which certain prisoners could earn presentence conduct credits to two custody credit days for every two actual days served. However, this enhanced credit formula was not applicable to certain categories of offenders, including individuals required to register as sex offenders, imprisoned for the commission of a serious felony, or who had suffered a prior conviction for a serious or violent felony. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c) & (f)].)
On July 23, 2010, appellant, then acting in pro per, filed a motion in his 2005 case to amend the abstract of judgment to correct his presentence credits, arguing that he had not received full credit for the time he actually spent in custody in that case.
Effective September 28, 2010, the Legislature amended section 4019 to restore the formula for calculating conduct credits that was in effect prior to the January 2010 amendments. (Stats 2010, ch. 426, § 2 & 5 [former § 4019, subds. (b) & (c)].) However, this version of section 4019 expressly applied only to prisoners confined for a crime committed on or after September 28, 2010, the effective date of the statute. (Stats. 2010, ch. 426, § 2 [former § 4019, subd. (g)].)
Although not at issue in this appeal, we note for the record that section 4019 was amended again, effective October 1, 2011. (Stats. 2011, ch. 15, § 482; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35.)
On October 14, 2010, appellant filed an in pro per motion in his 2008 case to correct and recalculate his presentence conduct credits pursuant to the January 2010 amendments to section 4019. Appellant argued that the Legislature intended for the amendments to apply retroactively and that the constitutional guarantee of equal protection required that appellant receive the additional credits afforded by the January 2010 amendments.
On November 4, 2010, the trial court filed an order denying appellant's motion to amend the abstract of judgment in the 2005 case. Observing that no abstract of judgment had ever been filed in that case, the court ruled that appellant was not entitled to an award of presentence credits in the 2005 case because probation was revoked and terminated in that case when appellant pled no contest in the 2008 case.
On November 4, 2010, the trial court also filed an order denying appellant's motion to correct the award of presentence conduct credits in the 2008 case. The court denied appellant's motion on the following ground: "Amended Penal Code section 4019 ('Section 4019') does not apply retroactively to Defendant's case, as claimed. Defendant was sentenced on August 13, 2008, pursuant to a plea bargain. Defendant's sentence became final on October 12, 2008. (See Cal. Rules of Court, rule 8.308(a).) However, the amendments to Section 4019 were not effective until January 25, 2010. Because Defendant's sentence was already final before the effective date of the amendment, amended Section 4019 does not apply retroactive to his case. [Citations.] Accordingly, he is not entitled to additional pre-sentence credits."
Appellant filed timely notices of appeal from both November 4, 2010, orders. C. The 2011 Motion to Correct Appellant's Sentence
On August 8, 2011, while this appeal was pending, appellant filed another trial court motion to correct his presentence credits in the 2008 case. Pursuant to that motion, appellant sought credit for an additional period of time that he was in custody prior to his sentence in the 2008 case for which he did not receive credit. On August 25, 2011, the trial court filed an order granting the motion to modify appellant's sentence to reflect his correct custody credits. Pursuant to that order, the court awarded appellant 294 actual days plus 146 conduct credits for a total of 440 days. The court directed that all other orders were to remain the same and that an amended abstract was to be prepared.
III. DISCUSSION
A. Issues Presented
Although appellant is nominally appealing from the order denying him additional custody credits in the 2005 case, he makes no argument to us regarding that case in his appellate briefs. Therefore, we affirm the trial court's finding that no additional custody credits are awardable in the 2005 case.
Although unclear, it appears that the problem appellant attempted to raise by filing his July 2010 pro per motion in the 2005 case may have been rectified by the August 25, 2011 order the trial court filed while this appeal was pending.
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With regard to the 2008 case, we address two issues: (1) whether the order denying appellant additional presentence conduct credits is an appealable order; and (2) whether the January 2010 amendments to section 4019 apply retroactively to appellant's 2008 case. B. The Order Is Appealable
Respondent urges us to dismiss this appeal pursuant to section 1237.1, which states: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." (§ 1237.1.)
Obviously, this claim was not raised at the time of sentencing since it did not arise until the January 2010 amendments were adopted. However, respondent does not dispute that appellant did first make a motion to correct his sentence in the trial court. And, there is no question that the order denying that motion was timely appealed. Instead, respondent contends that appellant should be precluded from attempting to indefinitely extend the time to appeal the 2008 judgment by filing an application to correct his sentence after the judgment became final.
Respondent's theory, which is not supported by relevant authority, is based on a false factual premise. Appellant is not appealing from a judgment, but rather from a sentence that he contends is unauthorized by the law. "There is no time limitation upon the right to make [a] motion to correct the sentence." (People v. Fares (1993) 16 Cal.App.4th 954, 958; People v. Clavel (2002) 103 Cal.App.4th 516, 519.) Indeed, there is authority that the trial court has jurisdiction to correct an unauthorized sentence at any time. (See People v. Picklesimer (2010) 48 Cal.4th 330, 338.)
Furthermore, section 1237, subdivision (b) establishes that a defendant may appeal "From any order made after judgment, affecting the substantial rights of the party." Respondent contends that appellant's substantial rights are not affected because his claims lack merit. We are not persuaded by this circular reasoning. In view of the important constitutional issue appellant raises and the fact that this issue did not arise until the January 2010 amendments went into effect, so long as appellant is still serving his sentence, his substantial rights are implicated and the challenged order is appealable under section 1237, subdivision (b). C. The January 2010 Amendments to Section 4019 Apply Prospectively
As reflected above, the trial court found that appellant is not entitled to the benefits of the January 2010 amendments because the judgment in this case became final before the effective dates of those amendments. To support this conclusion, the court cited cases in which arguably similar statutory amendments were applied retroactively but only to cases in which the judgment was not yet final. (See, e.g., In re Estrada (1965) 63 Cal.2d 740 [an amendment to a criminal statute which mitigates punishment applies to all judgments that are not yet final.].)
On appeal, respondent urges us to affirm the trial court's order on the basis of this distinction between final and non-final judgments, arguing that the separation of powers doctrine precludes a court from retroactively applying a statute mitigating punishment to a final judgment. (Citing Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 176-177; Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 53.) Appellant, by contrast, argues that the equal protection clause controls the outcome of this appeal and mandates that he be afforded the benefit of the January 2010 amendments notwithstanding that the judgment against him became final in 2008.
We need not resolve this debate because, after we granted rehearing in this case, our Supreme Court decided People v. Brown (2012) 54 Cal.4th 314 (Brown)which establishes that the January 2010 amendments to section 4019 operated prospectively, and applied only to prisoners who served their presentence time after the amendments took effect. (Id. at p. 323.) Thus, even if the judgment against appellant was not yet final, he would not be entitled to have his presentence credits recalculated under the formula established by the January 2010 amendments.
In reaching its decision, the Brown court rejected several arguments that appellant makes here. For example, the court expressly rejected the contention that a prospective application of the January 2010 amendments would thwart legislative intent. Finding that the Legislature did not provide any clear indication as to whether these amendments operated prospectively or retroactively, the Brown court applied section 3, which provides that no part of the Penal Code is retroactive " 'unless expressly so declared.' " (Brown, supra, 54 Cal.4th at p. 319.) The Brown court underscored that the "strong presumption" codified in section 3 reflects the established principle that " '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.]" (Id. at p. 324.)
The Brown court also recognized that the January 2010 amendments to section 4019 are substantively distinct from a statutory amendment which reduces punishment for a particular criminal offense. (Brown, supra, 54 Cal.4th at p. 325.) In this regard, the court reaffirmed but clarified its prior holding in In re Estrada, supra, 63 Cal.2d 740, that there is a "reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments." (Brown, supra, 54 Cal.4th at p. 324.) The Brown court expressly found that this presumption does not apply to the January 2010 amendments because those amendments did not alter the "penalty" for a crime, but rather "addresse[d] future conduct in a custodial setting by providing increased incentives for good behavior." As the court explained, "a statute increasing the rate at which prisoners may earn credits for good behavior does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent." (Id. at p. 325)
Finally, the Brown court concluded that applying the January 2010 amendments prospectively does not violate the equal protection clauses of the state and federal constitutions. (Brown, supra, 54 Cal.4th at p. 328.) In reaching this conclusion, the court found that prisoners serving time before and after a conduct credit statute takes effect are not similarly situated because "the important correctional purposes of a statute authorizing incentives for good behavior [citation] are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response." (Id. at pp. 328-329.)
In short, appellant's equal protection claim is inconsistent with Brown, supra, 54 Cal.4th 314. This binding authority establishes that appellant is not entitled to a recalculation of his presentence custody credits pursuant to the January 2010 amendments to section 4019.
IV. DISPOSITION
The November 4, 2010, orders in case No. C150478B and case No. C158815 are affirmed.
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Haerle, Acting P.J.
We concur: __________
Lambden, J.
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Richman, J.