Opinion
A130328
10-26-2011
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
The trial court denied two motions by appellant to increase his pre-sentence custody credits retroactively based on the Legislature's 2010 amendment to Penal Code section 4019. Although this issue is currently pending before our Supreme Court in several cases (see, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, rev. granted June 9, 2010, S181963 (Brown)), based on the unanimous rulings of the various Divisions of this Court holding that that amendment should be given retroactive effect, we affirm the recent ruling of the trial court giving appellant the increased custody credits.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 16, 2008, appellant, who was then on probation after pleading no contest in 2005 to a charge of being an accessory to a felony (§ 32), pled no contest to a charge of possession of cocaine base for sale and admitted that he had been personally armed with a firearm in the commission of that offense. (Health & Saf. Code, § 11351.5 & § 12022, subd. (c).) The trial court sentenced him to a prison term of 10 years on August 13, 2008. Under the then-applicable version of section 4019, the court awarded appellant credit for 217 days he was in actual custody plus 108 days of additional custody credits, for a total of 325 days of presentence credits in the case filed in 2008, case No. C158815. Regarding the 2005 conviction (case No. C150478B), appellant admitted violating the terms of probation, the court found that such had been violated, and then both revoked and terminated probation, and did not sentence appellant to a prison term.
Several years after appellant began serving his term in case No. C158815, specifically on January 25, 2010, the Legislature amended section 4019 to increase the rate at which certain prisoners could earn presentence credits to two custody credit days for every two actual days served. On September 28, 2010, the Legislature further amended that section to move that day-for-day provision to section 2933 as regards persons sentenced to state prison (albeit with specific exclusions for certain felonies, i.e., serious or violent felonies, etc.). (See § 2933, subd. (e)(1)-(3).)
On, respectively, July 23, 2010, and October 14, 2010, appellant, then acting in pro per, filed motions in both cases to increase his presentence custody credits in accordance with the amendments to section 4019 arguing, in effect, that those changes in the law increasing such credits should be given retroactive effect so as to apply to judgments already in effect. The trial court denied both motions on November 4, 2010. As regards the conviction for the 2005 charge (case No. C150478B), the court ruled that appellant was not entitled to any custody credits in that case, because appellant's probation had been terminated in that case. As a result, it noted, there was no abstract of judgment to correct. As regards appellant's 2008 conviction (case No. C158815), the court denied appellant's motion because, it held, the 2010 amendment to the credit sentencing statute should not be applied retroactively.
Appellant filed timely notices of appeal from the trial court's order. However, on August 25, 2011, the trial court effectively reversed the November 2010 ruling and granted the retroactive custody credits.
III. DISCUSSION
Although, per the notices of appeal and the covers of appellant's briefs to us, he is nominally appealing from the denial of custody credits in case No. C150478B, he makes no argument to us regarding that case in either brief. And, in any event, we agree with the trial court that no additional custody credits are awardable in that case for the simple reason that no prison sentence was imposed in it and, thus, there is no abstract of judgment to modify or correct in that case.
With regard to case No. C158815, we must address two issues, i.e., whether (1) the post-judgment order denying additional custody credits is appealable and (2) the 2010 amendment to section 4019 can and should be applied retroactively. We hold that that the answer to both questions is in the affirmative.
With regard to the first question, respondent urges us to dismiss the appeal because, under section 1237.1, "[n]o 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.)
However, several courts have held that this section does not apply as and when issues other than the purely ministerial act of recalculating credits are being litigated on appeal. (See, e.g., People v. Duran (1998) 67 Cal.App.4th 267, 269-270; People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.) In view of the important issue being raised by this appellant (and, of course, by numerous other appellants awaiting the outcome of our Supreme Court's review of Brown), we decline to apply section 1237.1 and, in reliance on it, dismiss this appeal.
Regarding the underlying issue of the retroactivity of the amendments to section 4019, this court has, along with several other Divisions of this District, already ruled that such amendments are retroactive. (See People v. Landon (2010) 183 Cal.App.4th 1096, 1105-1109, rev. granted June 23, 2010, S182808 (Landon); see also People v. Norton (2010) 184 Cal.App.4th 408, 415-420, rev. granted August 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481, 484-491, rev. granted July 21, 2010, S183552.) We will repeat, albeit in abbreviated form, what we said in Landon.
As we noted there, notwithstanding the provision of section 3 that "[n]o part of [the Penal Code] is retroactive, unless expressly so declared," per our Supreme Court's decision of many decades ago in In re Estrada (1965) 63 Cal.2d 740 (Estrada), "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.) We continue to believe, as we held in Landon, that the 2010 amendments to section 4019 effectively constituted a reduction in punishment, both as to yet-to-be sentenced defendants and also as to already-sentenced, and now-imprisoned, defendants. (See also People v. Doganiere (1978) 86 Cal.App.3d 237, 240; People v. Hunter (1977) 68 Cal.App.3d 389, 392.) In Estrada, the amendment at issue lessened the punishment for a group of offenders. Here, the amendment to section 4019 reduces the punishment for a subset of prisoners who have good conduct credit in jail while awaiting trial. We do not deem it significant that the reduction in time is tied to conduct rather than to the offenses involved.
Finally, and as we also noted in Landon and as the Third District pointed out in its opinion now under review in Brown, it is reasonably inferable from the language of the January 2010 amendment to section 4019 that the Legislature intended its bill to have a retroactive effect. It did so by (1) noting its concern that there might "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" and (2) specifically encouraging the Department of Corrections and Rehabilitation to implement the changes made regarding time credits by that legislation "in a reasonable time." (See Stats. 2009, 3d Ex. Sess., ch. 28, § 59.)
IV. DISPOSITION
The trial court's order denying appellant's motion in case No. C150478B is affirmed. We also affirm its August 25, 2011, order granting appellant's request for the increased custody credits in case No. C158815.
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Haerle, Acting P.J.
We concur:
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Lambden, J.
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Richman, J.