Opinion
D057744 Super. Ct. No. JCF19137
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. LETICIA KARINA GALINDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge. Affirmed in part, reversed in part, and remanded with directions.
INTRODUCTION
Background
In January 2007 Leticia Karina Galindo pleaded no contest to one count of willfully and unlawfully transporting marijuana for sale (Health & Saf. Code, § 11360, subd. (a)). At sentencing, the court suspended the imposition of sentence and placed Galindo on formal probation for three years on condition she serve 120 days in county jail "with credit for 69 days already served" based on 47 days of actual time in custody plus 22 days of conduct credit. The court then committed her to the Imperial County jail for 120 days.
The facts of the offense are omitted because they are not relevant to the issues raised on appeal.
" 'Conduct credit' collectively refers to worktime credit pursuant to [Penal Code] section 4019, subdivision (b), and to good behavior credit pursuant to [Penal Code] section 4019, subdivision (c)." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck), italics added.)
In early 2009, Galindo's probation was revoked and reinstated on condition she serve 180 days in county jail. On June 25, 2010, after Galindo again admitted she had violated the terms of her probation, the court set the matter for sentencing.
At the sentencing hearing on July 9, 2010, the court found Galindo was a narcotic addict not eligible for probation and sentenced her to the middle term of three years in state prison. The court awarded her 265 days of credit for actual time served in custody plus 166 days of conduct credit "for a total of 431 days served awaiting sentence." This timely appeal followed.
Contention and Holding
Galindo contends she is entitled to additional presentence conduct credits under amendments to Penal Code section 4019 that were effective from January 25, 2010, through September 27, 2010 (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427- 4428), which, she argues, apply retroactively in this case. (Undesignated statutory references are to the Penal Code.) Specifically, she asserts she should have been awarded 264 days (not 166 days) of conduct credit under the amended version of section 4019 in addition to the 265 days of actual custody credit she received, for a total of 529 days (not 431 days) of credit for the presentence time she served in local custody. Thus, Galindo claims she is entitled under the amended version of section 4019 to 98 additional days (529 - 431 = 98) of presentence custody credit.
"[T]he term 'presentence' . . . refer[s] to a period of incarceration that occurs prior to sentencing, an order of probation, a judgment of imprisonment, or any other form of commitment to a custodial facility." (Dieck, supra, 46 Cal.4th at p. 938, fn. 2)
Section 4019 was again amended by Statutes 2010, chapter 426, section 2, effective September 28, 2010.
We conclude the amended version of section 4019 applies retroactively. Accordingly, we remand the matter to the trial court to determine the number of additional days of presentence credit to which Galindo is entitled under that section and to correct both its minutes from the July 9, 2010, sentencing hearing and the abstract of judgment. In all other respects, the judgment is affirmed.
DISCUSSION
I.
ADDITIONAL PRESENTENCE CONDUCT CREDITS CLAIM (§ 4019)
A. Background
As noted, ante, at the July 9, 2010, sentencing hearing the court awarded Galindo 265 days of presentence credit for actual time served in custody plus 166 days of conduct credit, for a total of 431 days credit for the time she served in local custody while awaiting sentence. The record shows that for the time Galindo spent in local custody before January 25, 2010—the effective date of the amendments to section 4019—the court awarded conduct credits pursuant to former section 4019, and for the time she spent in presentence local custody after that date the court awarded conduct credits pursuant to the amended version of section 4019. Thus, the court did not retroactively apply the provisions of the amended version of section 4019.
Defense counsel objected that "amended Penal Code [s]ection 4019 is retroactive" and stated, "[O]ur position is [that] it should be 265 [days of actual time in custody] plus 264 [days of conduct credit] for a total of 529 [days of presentence credit]."
The court overruled the defense objection, concluding the amended version of section 4019 did not apply retroactively: "The Court takes the position that the separate periods of incarceration before the change in the law do not—are not recalculated according to the new law. They have been calculated in the past that they are violation of probation periods and, therefore, the credit calculation at that time is what is used. However, she has credits for the period of time she served after the change in the law, and on those she's receiving the full benefit of that law as well. So credits would be 265 actual days, 166 [conduct] credits, for a total of 431."
B. Statutory presentence credit scheme (§ 4019)
"The presentence credit scheme, 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 . . . ." (People v. Buckhalter (2001) 26 Cal.4th 20, 36.) " '[O]nce a person begins serving his prison sentence, he is governed by an entirely distinct and exclusive scheme for earning credits to shorten the period of incarceration.' " (Dieck, supra, 46 Cal.4th at p. 939, fn. 3, quoting Buckhalter, at p. 31.)
1. Former section 4019, subdivisions (b), (c) and (f)
Prior to January 25, 2010, subdivisions (b) and (c) of former section 4019 together allowed a defendant to earn up to a total of two days of conduct credit for each six-day period of presentence confinement or commitment to custody. (Former § 4019, subds. (b) & (c), amended by Stats. 1982, ch. 1234, § 7, p. 4553.)
Subdivision (b) of former section 4019 governed a defendant's entitlement to presentence worktime credits and provided that, " 'for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . .' " (See Dieck, supra, 46 Cal.4th at p. 939.) Subdivision (c) of that section governed a defendant's entitlement to presentence good behavior credits and provided that, " '[f]or each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted' from each six-day period of confinement unless the prisoner" had failed to comply with applicable rules and regulations. (See Dieck, at p. 939.)
If a defendant earned all of the available presentence conduct credits, he or she would be deemed under subdivision (f) of former section 4019 to have served six days for every four days spent in actual custody, and thus would be entitled to a total of two days of conduct credit under subdivisions (b) and (c) of that section for each four-day period of incarceration. As the California Supreme Court has explained, subdivision (f) of former section 4019 "clarifie[d] that subdivisions (b) and (c) are to be read together to provide a total of two days of conduct credit for every four-day period of incarceration: 'It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.' " (People v. Dieck, supra, 46 Cal.4th at p. 939, quoting former § 4019, subd. (f), italics added.)
Thus, the conduct credit ratio set forth in former section 4019 was two days of conduct credit for every four days spent in actual custody, which equates to a ratio of one-to-two (or 50 percent). (Former § 4019, subds. (b), (c) & (f); Dieck, supra, 46 Cal.4th at p. 939.) Accordingly, assuming the defendant earned all of the presentence conduct credits available under subdivisions (b) and (c) of former section 4019, he or she was entitled under subdivision (f) of that section to an award of one day of conduct credit for every two days spent in actual custody. (See Dieck, supra, 46 Cal.4th at p. 939.)
The California Supreme Court used the term "conduct credit ratio" in Dieck, supra, 46 Cal.4th at page 942 ["[former] section 4019, subdivisions (b) and (c) cannot be read as limiting conduct credit entitlement only to those who have served a six-day period of confinement, because such an interpretation would alter the conduct credit ratio set forth in the statute" (italics added)]. We use this term to refer to the number of conduct credits a defendant is eligible to earn under section 4019 for a given period of time actually spent in presentence local custody.
2. Amended section 4019, subdivisions (b)(1), (c)(1) and (f)
The amended version of section 4019 that became effective on January 25, 2010 (before Galindo was sentenced in July of that year), and remained in effect through September 27, 2010, doubled the conduct credit ratio by allowing a defendant to earn two days of presentence conduct credit for every two days spent in actual custody, rather than two days of presentence conduct credit for every four days spent in actual custody as provided by former section 4019. (§ 4019, amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428, eff. Jan. 25, 2010; specifically, subds. (b)(1), (c)(1) & (f) of amended § 4019, discussed, post.)
See Statutes 2010, chapter 426, section 2, amending section 4019 effective September 28, 2010.
This doubling of the conduct credit ratio—from two days of conduct credit for every four days of actual custody (50 percent) to two days of conduct credit for every two days of actual custody (100 percent)—resulted from amendments to subdivisions (b), (c) and (f) of former section 4019. New subdivisions (b)(1) and (c)(1) of the amended version of section 4019 together allowed a defendant to earn up to a total of two days of conduct credit for each four-day period of presentence confinement or commitment to custody, rather than two days of conduct credit for each six-day period of presentence confinement or commitment to custody as provided by former section 4019, subdivisions (b) and (c).
Subdivision (b)(1) of amended section 4019, which governed a defendant's entitlement to presentence worktime credits, provided that, "for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . ." (Ibid., italics added.) As noted, subdivision (b) of former section 4019 had allowed a defendant to earn one day of presentence worktime credit for each six-day period of confinement or commitment to custody.
Subdivision (c)(1) of amended section 4019, which governed a defendant's entitlement to presentence good behavior credits, similarly provided that, "[f]or each fourday period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless . . . the prisoner" had failed to comply with applicable rules and regulations. (Ibid., italics added.) As also noted, subdivision (c) of former section 4019 had allowed a defendant to earn one day of presentence good behavior credit for each sixday period of confinement or commitment to custody.
Subdivision (f) of section 4019, which was also amended, provides: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Italics added.)
Under this amendment to subdivision (f) of section 4019, a defendant who earned all of the available presentence conduct credits would be deemed to have served four days for every two days spent in actual custody, rather than six days for every four days spent in actual custody as provided by the former version of subdivision (f), and thus would be entitled to a total of two days of conduct credit under subdivisions (b)(1) and (c)(1) of amended section 4019 for each two-day period of incarceration. Subdivision (f) of amended section 4019 thus clarified that subdivisions (b)(1) and (c)(1) of that section are to be read together and with amended subdivision (f) to provide a total of two days of conduct credit for every two-day period of incarceration, which results in the new conduct credit ratio of 100 percent. Accordingly, assuming the defendant earned all of the presentence conduct credits available under subdivisions (b)(1) and (c)(1) of amended section 4019, he or she would be entitled under subdivision (f) of that section to an award of one day of conduct credit for every one day spent in actual custody. (See Dieck, supra, 46 Cal.4th at p. 939.)
C. Analysis
Numerous published opinions have addressed the issue of whether amended section 4019 applies retroactively, which will be resolved by the California Supreme Court. Two of the Court of Appeal decisions—People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808—conclude that the statutory amendments are not retroactive. In contrast, the majority of published decisions hold that the statutory amendments are retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because section 4019 is an amendatory statute that mitigates punishment. (See People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal. App.4th 1049, review granted June 23, 2010, S182813; & People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
We agree with the reasoning of the majority of published decisions on this issue because section 4019, as amended, mitigates punishment. In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "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." (Ibid.)
Some decisions of the Court of Appeal have held that provisions affording or increasing sentencing credit are statutes lessening punishment under Estrada. In People v. Hunter (1977) 68 Cal.App.3d 389, 392-394, for example, the Second District concluded that Estrada is not limited to amendments lessening a maximum sentence and held that amendments to section 2900.5 (custody credits) should be applied retroactively. The court stated: "The 1976 amendment to Penal Code section 2900.5 must be construed as one lessening punishment, as the term is used in Estrada. True, Estrada deals with a statute which lessens the maximum sentence for a particular crime while the amendment to section 2900.5 concerns credit against a lesser sentence imposed as a condition of probation. But in the circumstances which we here consider, the distinction is without legal significance." (Hunter, at p. 393; accord, People v. Sandoval (1977) 70 Cal.App.3d 73, 87.) Relying on Hunter, the Court of Appeal in People v. Doganiere (1978) 86 Cal.App.3d 237, 239, applied the rule in Estrada to section 4019, as originally enacted, treating its provision of conduct credits as a law "granting amelioration in punishment."
We likewise conclude that the general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. Those amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits and thus constituted a reduction in punishment for those offenders who have demonstrated good behavior while in custody. Therefore, we hold the amendments to section 4019 apply retroactively, and thus Galindo is entitled to the benefit of the amendments and her presentence local conduct credits must be recalculated.
DISPOSITION
The award of 166 days of section 4019 conduct credits and the total award of 431 days of presentence custody credit are reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions to (1) determine the number of additional days of section 4019 conduct credits and the resulting total number days of custody credit to which Galindo is entitled pursuant to the retroactive application of the amended version of section 4019 that became effective on January 25, 2010; (2) correct its minutes from the July 9, 2010 sentencing hearing to reflect the corrected credit awards; (3) correct the abstract of judgment accordingly; and (4) forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NARES, J.
I CONCUR:
AARON, J. BENKE, concurring and dissenting.
The majority concludes that because Leticia Karina Galindo's conviction is not yet final, she is entitled to application of what it phrases as the general rule of In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada). Under this rule, if the legislative intent regarding retroactive application of lessened punishment is unclear, the principle noted in Estrada controls, even in the presence of the rule of construction contained in Penal Codesection 3 which mandates prospective application of the law in the absence of express language of retroactivity.
All further statutory references are to the Penal Code.
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My view of Estrada, and the direction it gives, is somewhat different from that of my colleagues.
I start by observing that the inference relied upon by my colleagues is not a rule, as is suggested by the majority. As the court in Estrada expressly states, it is an inevitable inference the Legislature intended to apply to every case in which it could apply.
I view the inference noted in Estrada as a factor the court considered in applying the rule Estrada actually pronounces: "Where the Legislature has not set forth in so many words what it intended, the rule of construction [section 3] should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Estrada, supra, 63 Cal.2d at p. 746.)
In Estrada the question was whether the defendant was entitled to an earlier parole date because of changes to section 3044. The court in Estrada found that in addition to the inference noted above, there were additional factors sufficient to support a conclusion the Legislature intended retroactive application of the changes to section 3044.
In short, using that court's own terminology, Estrada did not require the inference of legislative intent be followed blindly in the face of other factors pointing to a different conclusion. Rather, the inference noted in Estrada was but one consideration in addition to other facts and circumstances. Viewed in this way, Estrada does not pit the legislative inference against the rule of construction found in section 3; rather, it places them in harmony with each other.
Accepting that the language relied upon by my colleagues is not a rule, but rather an inference and factor to consider in reaching any conclusion with respect to legislative intent, we are in any given case led to at least three options. The first is that examining all factors and circumstances, legislative intent can be ascertained, in which case, like the situation in Estrada, that intent must be carried out. The second is that the totality of facts and circumstances may point to a conclusion that despite the inference, the Legislature intended the new and lesser punishment not be applied to non-final cases. Lastly, as Estrada instructs, if after examining all facts and circumstances, which would include the inference, intent still cannot be ascertained, we must adopt the presumption of prospective application embodied in section 3. (In re Estrada, supra, 63 Cal.2d at p. 746; see also People v. Alford (2007) 42 Cal.4th 749, 753-754.)
It would serve little purpose here repeating the various views and supporting arguments respecting section 4019 which are contained in existing cases. There have been multiple legislative changes in the credits awarded in section 4019. The changes are arguably related not only to policies underlying the awarding of credits in general, but the awarding of credits as they relate to budget matters, and specific categories of criminal offenders. As my colleagues state, at this point the law is far from clear. I agree.
At this point in time, given the absence of clarity or confident direction from the Legislature, I believe Estrada compels a conclusion that section 3 controls and therefore the changes to section 4019 are not retroactive.
In all other respects I agree with the majority opinion.
BENKE, Acting P. J.