Opinion
B230786
12-16-2011
THE PEOPLE, Plaintiff and Respondent, v. MARCOS FLOREZ, Defendant and Appellant.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA294725)
APPEAL from an order of the Superior Court of Los Angeles County, Alex Ricciardulli, Judge. Affirmed.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.
Marcos Florez argues he should be awarded additional conduct credits under an amendment to Penal Code section 4019 effective January 25, 2010, even though his judgment of conviction was final prior to that date. Appellant acknowledges that appellate courts are split on the retroactive application of the January 25, 2010 amendment, and that the issue is pending before the Supreme Court. He argues the amendment should apply retroactively. Alternatively, he argues that retroactive application of the amendment is compelled by the equal protection clause. Respondent argues that the separation of powers doctrine precludes retroactive application of the amendment. It also contends that the legislation enacting the January 25, 2010 amendment does not suggest a legislative intent that it applies retroactively to final judgments.
We conclude that the January 25, 2010 amendment to section 4019 does not apply to appellant because his judgment was final when that amendment became effective. We reject appellant's equal protection argument because we find a rational basis for prospective application of the amendment.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was convicted of possession of heroin for sale (Health & Saf. Code, § 11351) and of sale, transportation, or offering to sell heroin (Health & Saf. Code, § 11352, subd. (a)) on June 12, 2006. On January 19, 2007, he was sentenced to state prison for a term of 10 years, with 403 days of actual custody credit and 200 days of conduct credit. We affirmed the conviction in an unpublished opinion filed October 22, 2008. (People v. Florez (October 22, 2008, B197645) [nonpub. opn.].) After the Supreme Court denied appellant's petition for review on January 14, 2009, we issued our remittitur on February 11, 2009. The judgment of conviction was final at that point. (Cal. Rules of Court, rule 8.366(b)(1).)
On December 8, 2010, appellant filed a "Motion for Amended Abstract of Judgment to Include Conduct Credits Pursuant to Penal Code [sections] 2900.5 and 4019" seeking an additional 203 days of conduct credits pursuant to amendments to section 4019 effective January 25, 2010. The trial court denied the motion on the ground that the January 25, 2010 amendment to section 4019 did not apply because appellant's conviction was final when the amendments went into effect. Appellant filed a timely appeal from the denial of his motion.
Further statutory references are to the Penal Code.
DISCUSSION
When appellant was sentenced in 2007, former section 4019 provided that he was eligible for two days of conduct credit for every four days actually served in presentence custody. (Former § 4019, subds. (b), (c).) Effective January 25, 2010, section 4019 was amended to provide four days of conduct credits for every four days of presentence custody for prisoners except those who are required to register as sex offenders, who committed a serious felony, or who have a prior conviction for a serious or violent felony. (Former § 4019, subds. (b)(1), (c)(1); Stats. 2009, 3d Ex. Sess. ch. 28, § 50.) Section 4019 was amended again on September 28, 2010, to restore the former computation for prisoners confined for crimes committed after that date. (Stats. 2010, ch. 426, § 2; § 4019, subds. (b) & (g).) Because this opinion concerns only the January 25, 2010 amendment to section 4019, our reference to amendments to the statute refers only to that amendment (January 25 amendment).
Appellant argues that he is entitled to additional conduct credits under the January 25 amendment on two grounds. First, he contends that the Legislature intended the amendment to apply retroactively. Second, he contends that he is entitled to the additional credits under the equal protection clause. We first address the statutory argument and reject retroactive application.
Section 3 provides that "no part" of the Penal Code "is retroactive, unless expressly so declared." No such express declaration appears in the January 25 amendment. Alternatively, a penal statute may be given retroactive application if there is a clear and compelling implication that the Legislature so intended. (People v. Alford (2007) 42 Cal.4th 749, 754.) The leading case on the retroactive application of amendments to criminal statutes is In re Estrada (1965) 63 Cal.2d 740 (Estrada). It held that if an "amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies," unless the Legislature says otherwise. (Id. at p. 744, italics added.)
California courts are divided on the retroactive application of the January 25 amendment and the issue is now before the Supreme Court. We have held that the amendment does not apply retroactively to a defendant whose appeal was pending as of January 25, 2010. (People v. Eusebio, (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957 (Eusebio).)The Supreme Court also has granted review in People v. Kemp (2010) 192 Cal.App.4th 252, review granted April 13, 2011, S191112, deferred pending disposition of People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, which held that federal and state principles of equal protection require that the January 25 amendment applies retroactively, even to prisoners whose judgment was final on January 25, 2010.
Review has been granted in cases addressing whether the January 25, 2010 amendment applies to defendants whose cases were not final as of January 25, 2010, including People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, deferred pending disposition of People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
Appellant's statutory argument that he is entitled to enhanced conduct credits under the January 25 amendment is premised on the assumption that the amendment mitigates punishment by affording prisoners additional credits which will result in shortened sentences. He cites Estrada in support of his argument. We held in Eusebio that the January 25 amendment does not reduce punishment and that Estrada does not apply on that ground, a view we still endorse pending resolution of the issue by the Supreme Court.
Our conclusion that the January 25 amendment does not apply to a prisoner whose sentence is not yet final is even more compelling in the case of a prisoner whose sentence was final before the amendment went into effect. Even if the amendment did reduce punishment, Estrada does not aid appellant. The Supreme Court in Estrada held that an amendatory act imposing 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." (Estrada, supra, 63 Cal.2d at p. 745, italics added.)
According to appellant, section 59 of Senate Bill 18 (Stats. 2009, 3d Ex. Sess., ch. 28) raises an inference that the Legislature intended to allow retroactive application of the amendment. Section 59 sets up a procedure to address delays in the calculation and implementation of additional credits allowed under the January 25 amendment. The cases now pending before the Supreme Court are divided on whether the creation of this procedure is a basis from which we may infer an intent that the amendment apply retroactively. In Eusebio, we held that it is not and we reach the same conclusion here. We conclude that appellant is not entitled to additional conduct credits under the January 25 amendment based on interpretation of the statute.
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."
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Alternatively, appellant argues that because the January 25 amendment to section 4019 was motivated solely by fiscal concerns, there is no rational basis to justify the disparate treatment resulting from applying it only to prisoners sentenced after it went into effect. We reject the contention. One of the principal purposes of section 4019 is to motivate good conduct. (People v. Dieck (2009) 46 Cal.4th 934, 939.) But since appellant's judgment of conviction was final prior to January 25, 2010, his presentence behavior cannot be influenced retroactively. This provides a rational basis for the Legislature's implicit intent that the January 25 amendment apply only prospectively. We reject appellant's equal protection argument. Our holding is without prejudice to appellant's right to seek further relief in the event the Supreme Court rules that a person whose judgment of conviction was final before January 25, 2010 is entitled to additional conduct credits under the January 25 amendment to section 4019.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.