Opinion
H036504
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. ALONZO HALE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS060675, SS071520, SS080942)
1. Introduction
Defendant Alonzo Hale asserts that, by virtue of an amendment of Penal Code section 2933 effective on September 28, 2010, he is entitled to more presentence custody credits than the trial court awarded on March 2, 2008, when defendant was sentenced to prison. Defendant appeals from the trial court's January 7, 2011 denial of his motion requesting additional credits. For the reasons stated below, we will affirm the order after concluding that the amendment of section 2933, effective on September 28, 2010, does not allow prisoners to retroactively earn extra conduct credits for periods of actual confinement served prior to the effective date of the amendment.
Unspecified section references are to the Penal Code.
2. Proceedings
Defendant was sentenced to seven years in prison as the product of three separate cases in the Monterey County Superior Court.
We will refer to these cases as the first case (SS060675), the second case (SS071520), and the third case (SS080942).
A. The First Case
On January 13, 2006, shortly after noon, Monterey County Sheriff's detectives stopped a fight on a Seaside street between defendant and another Hispanic male. Both men admitted that the fight followed a verbal exchange in which the men professed allegiance to rival gangs, defendant claiming Norteño and the other man Sureño.
After a preliminary examination, an information was filed on October 31, 2006, charging defendant with the felony of disturbing the peace (§ 415, subd. (1)) with the intent to promote a criminal street gang (§ 186.22, subd. (d)) and alleging that defendant had a juvenile "conviction" in 1996 of forcible assault (§ 1170.12, subd. (c)(1)) and that he had served a prior prison term for a vehicle theft in 1999 (§ 667.5, subd. (b)).
B. The Second Case
On March 4, 2007, a traffic stop in Seaside revealed defendant in the back seat of a vehicle with two other males. The vehicle contained a CD with Norteño markings. Defendant was carrying two knives, a switch blade in his jacket and a pocket knife in his pants.
On March 24, 2007, an information was filed charging defendant with possession of a switchblade (§ 653k) with the intent to promote a criminal street gang and a prior juvenile "conviction" of forcible assault.
On August 2, 2007, over opposition, the court granted the prosecutor's motion to consolidate the first and second cases.
On August 3, 2007, an amended information was filed in the second case repeating the allegations of the original information and adding that the switchblade possession occurred while defendant was released on bail in the first case (§ 12022.1).
On September 14, 2007, defendant entered a plea of guilty to all charges and admitted all enhancements on the condition that he would receive felony probation and the court would entertain his request to strike his prior strike under People v. Superior Court (Romero) (1998) 13 Cal.4th 497 (Romero).
On October 25, 2007, the court struck the prior strike and found unusual circumstances warranting the grant of probation. In the first case, the court imposed, but suspended the execution of, a sentence of three years, including a one-year prison prior enhancement; and, the court required defendant to serve 289 days in jail as a condition of probation, awarding him credit of 289 days, consisting of 193 actual days plus 96 for good conduct. In the second case, the court imposed, but suspended execution of, a consecutive sentence of two years eight months, including two years for the on-bail enhancement; and, as a condition of probation, defendant was ordered to spend 180 days in the county jail and given credit of 157 days based on 105 actual days plus 52 for good conduct.
C. The Third Case
On February 18, 2008, police officers found defendant and two other males in a vehicle in the parking lot of a Salinas bar. A bag of marijuana was found in the front seat passenger where defendant was sitting. Also in the vehicle was a loaded, unregistered firearm in a zippered pouch.
On February 21, 2008, a complaint was filed charging defendant with possession of a loaded, unregistered firearm (§ 12031, subd. (a)(1)) with the intent to promote a criminal street gang, active participation in a criminal street gang (§ 186.22, subd. (a)), and possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). These crimes were also charged as violations of defendant's probation in the two prior cases.
At a hearing on March 19, 2008, the complaint was amended to allege defendant's prior juvenile strike "conviction." Pursuant to a negotiated plea agreement, defendant agreed to plead guilty to the weapon possession charge and to admit the strike and the probation violations on condition that his prison sentence would be between six years four months and eight years four months, depending on whether his strike would be stricken under Romero.
At a hearing on May 2, 2008, the court declined to strike the prior strike. At a hearing on May 21, 2008, the court sentenced defendant to prison for seven years, including the lower term of 16 months in the third case, doubled due to the prior strike, plus two consecutive terms of eight months, one-third the midterms in the first and second cases, plus consecutive enhancements of one year for the prior prison term and two years for committing a crime while on bail.
The court awarded defendant the following credits: in the first case, 86 days of actual custody (July 28 through 29 and October 7 through December 27, 2006 and March 8 through 9, 2007) with 42 days of conduct credits; in the second case 121 days of actual custody (July 13 through November 10, 2007) and 60 days for conduct; in the third case, 93 days of actual custody (February 19, 2008 through sentencing) and 46 days for conduct. On January 21, 2009, in response to a request from defendant's counsel, the trial court issued an amended abstract of judgment adding a previously overlooked period of custody in the second case (March 4 through 7, 2007) to now total 124 days of actual custody and 62 days for conduct.
It appears that defendant was awarded more actual custody credit for his first two cases when sentenced on October 25, 2007 than at his May 21, 2008 sentencing because some custodial periods were double-counted at the first sentencing.
D. Subsequent Proceedings
On April 29, 2009, this court filed an unpublished opinion (People v. Hale (Apr. 28, 2009, H033052) [nonpub. opn.]) affirming the judgment. On July 29, 2009, the California Supreme Court summarily denied defendant's petition to review our decision. On January 11, 2010, the United States Supreme Court summarily denied defendant's petition for writ of certiorari.
This court has granted defendant's request to take judicial notice of the records filed in defendant's prior appeal People v. Hale, supra, H033052.
On December 16, 2010, defendant filed a motion in the Monterey County Superior Court asking for an award of extra conduct credits pursuant to a recent amendment of section 2933, specifically requesting 44 more days in the first case, 62 more in the second case, and 47 more in the third case. At a hearing on January 7, 2011, the trial court denied the motion based on "most all of the reasons" in the prosecutor's opposition.
3. The Statutory Framework
To understand the analysis of the issue on appeal it is best to put the latest amendments of sections 2933 and 4019 in their statutory context.
A. The Pre-Existing Statutory Scheme for Sentence Credits
Since 1972, section 2900.5 has provided that for each day in local jail custody following arrest, a prisoner earns one day of custody credit against the prison sentence resulting from a felony conviction of the charge resulting in the custody. Beginning in 1977, section 4019 provided that a person in local custody, including jail, could earn one day of pre-sentence credit for a period of satisfactorily performing labor and another day for the same period of complying with rules and regulations. (Stats. 1976, ch. 286, § 4, pp. 595-596.)
Former section 2900.5, enacted in 1972 (Stats. 1971, ch. 1732, § 2, p. 3686) was repealed effective January 1, 1995. (Stats. 1991, ch. 437, § 9, pp. 2217-2218.) Current section 2900.5, with similar provisions, took effect on January 1, 1995. (Stats. 1991, ch. 437, § 10, pp. 2218-2219.)
Section 2900.5, subdivision (a) currently provides in part: "(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence."
When the Determinate Sentence Act was enacted effective July 1, 1977, it included authorization in section 2931 for the Department of Corrections to reduce the term of any state prison sentence by one-third for "good behavior and participation." (Stats. 1976, ch. 1139, § 276, p. 5146.)
In 1979, the period of good conduct under section 4019 was established as six days of commitment. (Stats. 1978, ch. 1218, § 1, pp. 3941-3942.) "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 on felony charges." (People v. Buckhalter (2001) 26 Cal.4th 20, 36; People v. Brown (2004) 33 Cal.4th 382, 405; People v. Dieck (2009) 46 Cal.4th 934, 939.)
In 1983, section 2933 was enacted, authorizing reduction of a prison sentence of six months for every six months' "performance in work, training or education programs established by the Department of Corrections." (Stats. 1982, ch. 1234, § 4, pp. 4551-4552.) The statute proceeded to define "[w]orktime credits" as arising from "performance in work assignments" as well as "elementary, high school, or vocational education programs." (Former § 2933, subd. (a).) The California Supreme Court determined that it was the responsibility of the Department of Corrections and not the courts to calculate any credits due for post-sentence conduct. (People v. Buckhalter, supra, 26 Cal.4th 20, 31.)
In the same legislation that enacted section 2933, the Legislature added subdivision (f) to section 4019, providing, "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." (Stats. 1982, ch. 1234, § 7, p. 4554.) "Subdivision (f) clarifies that conduct credit, if earned, is to be awarded based upon four days of confinement, not six days." (People v. Dieck, supra, 46 Cal.4th 934, 943.)
With amendments that are unimportant to the issue presented by this appeal, this statutory scheme has persisted until two amendments of section 4019 and 2933 effective in 2010.
B. The 2010 Amendments of Sections 2933 and 4019
The first legislation amending sections 2933 and 4019 (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, §§ 38, 50, pp. 4420-4421, 4427-4428) was signed by the Governor on October 10, 2009, but because it was enacted during a special session of the Legislature, it took effect on January 25, 2010, 91 days after the special session adjourned. (Cal. Const., Art. 4, § 8, subd. (c)(1).) The second amendment was urgency legislation that took effect September 28, 2010. (Stats. 2010, ch. 426, §§ 1, 2, pp. 2086-2088.)
(1). The Amendments of Section 4019
The changes to section 4019 effected by the first amendment (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428) have been widely discussed in a series of published cases, almost all of which have been granted review by the California Supreme Court. The first amendment allowed eligible prisoners to earn extra credit for the same conduct. For all days earned under the statute, a term of four days was "deemed to have been served for every two days spent in actual custody" (subd. (f)).
In pertinent parts, the amendments to section 4019 added these provisions. "(b) (1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), 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 it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"[¶] . . . [¶]
"(c) (1) Except as provided in Section 2933.1 and paragraph (2), for 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 it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp."
The amendment further provided: "(f) 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, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c)."
The first amendment disqualified certain prisoners from earning this extra credit. Left subject to the former credit scheme of two days of credit for four days of custody is any prisoner who "is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5." (§ 4019, subds. (b)(2), (c)(2).) Because the first amendment of section 4019 did not expressly provide whether it was prospective or retroactive, the California Supreme Court is currently considering this question.
Subdivision (b)(2) of the amendment stated: "(2) If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, subject to the provisions of subdivision (d), for each six-day period in which the 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 it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp."
Subdivision (c)(2) of the amendment stated: "(2) If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, for each sixday period in which the 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 is [sic] appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp."
Curiously the amendment did not disqualify from extra credit those with current convictions of violent felonies unless their crimes are serious felonies.
The California Supreme Court is currently considering whether section 1385 authorizes trial courts to strike strikes for purposes of section 4019 credit eligibility. (People v. Jones (2010) 188 Cal.App.4th 165 [3rd Dist.], review granted December 15, 2010, S187135; People v. Koontz (2011) 193 Cal.App.4th 151 [2nd Dist., Div. 6], review granted May 18, 2011, S192116; People v. Lara (2011) 193 Cal.App.4th 1393 [6th Dist.], review granted May 18, 2011, S192784.)
A number of appellate courts have concluded that the amendment is retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354 [3rd Dist.], review granted June 9, 2010, S181963; People v. House (2010) 183 Cal.App.4th 1049 [2nd Dist., Div. 1], review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096 [1st Dist., Div. 2], review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408 [1st Dist., Div. 3], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5], review granted July 21, 2010 S183552; People v. Keating (2010) 185 Cal.App.4th 364 [2nd Dist., Div. 7], review granted Sept. 22, 2010, S183354); People v. Bacon (2010) 186 Cal.App.4th 333 [2nd Dist., Div. 8], review granted Oct. 13, 2010, S184782; People v. Jones, supra, 188 Cal.App.4th 165 [3rd Dist.], review granted December 15, 2010, S187135; People v. Kemp (2011) 192 Cal.App.4th 252 [3rd Dist.], review granted Apr. 13, 2011, S191112.)
Yet other courts, including this one, have concluded that the amendment is not retroactive. (People v. Rodriguez (2010) 182 Cal.App.4th 535 (republished at 183 Cal.App.3d 1) [5th Dist.], review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422 [4th Dist., Div. 2], review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615 [6th Dist.], review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 [2nd Dist., Div. 3], review granted Sept. 22, 2010, S184957.)
A majority of the Fourth District, Division One, concluded that defendants sentenced after the effective date of the first amendment are entitled to an award of double credits, even for custody served prior to the effective date of the amendment. (People v. Zarate (2011)192 Cal.App.4th 939 (review granted May 18, 2011, S191676). The majority did not perceive this as a retroactive application of the amendment, while the dissent did. As indicated, the California Supreme Court has granted review in all of these cases.
The second amendment of section 4019 (Stats. 2010, ch. 426, § 2, p. 2088), effective on September 28, 2010, eliminated the extra credit provisions from section 4019 and returned the statute verbatim to the way it was amended in 1982. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) The only difference is new subdivision (g), which provides: "The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act." In other words, this amendment was intended to apply prospectively.
As we will see, what the Legislature took away with the second amendment to section 4019, it gave back, to certain prisoners, with the simultaneous amendment to section 2933.
(2). The Amendments of Section 2933
In contrast to the two 2010 amendments of section 4019, the concurrent amendments of section 2933 have yet received little published discussion in case law, although they appear to be equally significant.
The first amendment of section 2933 eliminated from section 2933, subdivision (a) the provisions for "worktime" credits and replaced them with what appear to be custody credits. "For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months . . . pursuant to regulations adopted by the" Department of Corrections and Rehabilitation. (§ 2933, subd. (b); Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 38, pp. 4420-4421.)
On the other hand, the same legislation also enacted section 2933.05 (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 39, p. 4421) which authorizes the Department to promulgate regulations under which "program credit reductions" may be earned for completing "approved rehabilitative programming." (§ 2933.05, subd. (a).) These program credits are limited to no more than six weeks during any 12 months of continuous confinement. (Ibid.) " '[A]pproved rehabilitation programming' [sic] shall include, but is not limited to, academic programs, vocational programs, vocational training, and core programs such as anger management and social life skills, and substance abuse programs." (§ 2933.05, subd. (c).
The first amendment also added subdivision (e) to section 2933, which provided: "A prisoner sentenced to the state prison under Section 1170 shall receive one day of credit for every day served in a county jail, city jail, industrial farm, or road camp after the date he or she was sentenced to the state prison as specified in subdivision (f) of Section 4019." (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 38, p. 4421.)
We need not attempt to determine the meaning of this first version of subdivision (e) of section 2933, as the second amendment substantially revised the subdivision, and nothing else in section 2933. (Stats. 2010, ch. 426, § 1, p. 2087.) The subdivision currently states:
"(e)(1) Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.
"(2) A prisoner may not receive the credit specified in paragraph (1) if it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by, or has not satisfactorily complied with the reasonable rules and regulations established by, the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(3) Section 4019, and not this subdivision, shall apply if the prisoner is required to register as a sex offender, pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667. 5."
The current version of section 2933, subdivision (e) thus preserved much of the effect of the first amendment of section 4019, despite different phrasing, of entitlement to credits against a prison confinement for periods of custody served in jail. The first amendment provided prisoners the opportunity to earn up to two days of conduct credit for every two days of actual custody, one day for satisfactorily performing two days of assigned labor and one for two days of complying with custodial rules and regulations. While section 2933, subdivision (e)(1) appears to award one day of conduct credit for every day in actual local custody, subdivision(e)(2) makes this award contingent on both performing labor and complying with rules and regulations. The extra conduct credit is unavailable if the prisoner has either refused to perform assigned labor or has not complied with applicable rules. Both schemes are limited to qualified prisoners who neither are required to register as sex offenders, nor are committed for a serious felony, nor have prior strikes. Those disqualified by their status are limited to the section 4019 scheme of two days of conduct credit for four days in custody.
Like the first amendment of section 4019 and unlike the concurrent amendment of section 4019, this amendment of section 2933 did not expressly provide for prospective or retroactive application.
4. Jurisdiction To Modify Judgment
In the trial court, the prosecutor argued that the trial court lacked authority to entertain a motion to modify the sentence after the judgment has become final. On appeal, the Attorney General concedes that the trial court had authority to entertain defendant's motion under section 1237.1, which provides: "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."
This court has stated, "the trial court has jurisdiction to resentence a prisoner by amending the judgment to correct its original, erroneous calculation of his presentence credits, and there is no time limitation upon the right to move the trial court to correct the sentence due to miscalculation of custody credits." (People v. Little (1993) 19 Cal.App.4th 449, 452.) Other courts have also regarded errors in computing custody credits involving undisputed facts as unauthorized sentences that can be corrected at any time, including on appeal. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473-474; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1411; People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Taylor (2004) 119 Cal.App.4th 628, 647; see People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.)
5. The Effect Of The Juvenile Adjudication
In the trial court, the prosecutor argued that defendant is precluded by the terms of the second amendment of section 2933 from earning the credit it confers, because he "has a prior conviction for a serious felony." (§ 2933, subd. (e)(3). What the prosecutor referred to was a 1996 juvenile court adjudication that defendant had committed a forcible assault.
On appeal, the Attorney General concedes that juvenile adjudications do not qualify as prior convictions within the meaning of this statute. This court has recently approved a similar concession as to the credit exclusion in the first amendment of section 4019, noting in People v. Pacheco (2011) 194 Cal.App.4th 343 at page 346: "(See Welf. & Inst.Code, § 203 ['An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose']; People v. West (1984) 154 Cal.App.3d 100, 106 [juvenile adjudication for serious felony did not support enhancement under Proposition 8 for one 'convicted of a serious felony']; People v. Westbrook (2002) 100 Cal.App.4th 378, 382, 385 [same, drug treatment disqualification under Proposition 36 for one who 'previously has been convicted of one or more serious felonies'].)"
6. The Retroactivity Of The September 2010 Amendment Of Section 2933
Defendant makes two limited arguments for the retroactive application of the second amendment of section 2933. We find it helpful to put these arguments in the broader context of determining retroactivity of Penal Code amendments.
A. Legislative Intent
We begin with section 3 of the Penal Code, which states that "[n]o part of it is retroactive, unless expressly so declared." This statute has been interpreted as a rule of construction that applies when the legislative intent cannot otherwise be ascertained. (In re Estrada (1965) 63 Cal.2d 740, 746.) It embodies a presumption that a new statute operates prospectively absent either an express declaration of retroactivity or a clear and compelling implicit indication that the Legislature intended retroactive application. (People v. Hayes (1989) 49 Cal.3d 1260, 1274; People v. Alford (2007) 42 Cal.4th 749, 753-754.)
Examining the text of the amendment and its legislative history, we see no express declaration of retroactivity for the amendments of section 2933 or 4019, and defendant does not identify one. We do see an express declaration of retroactivity in another statute amended by the same legislation that amended sections 2933 and 4019. (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 41, p. 4422.) Subdivisions (b), (c), and (d) were added to section 2933.3, providing:
"(b) Notwithstanding any other law, any inmate who has completed training for assignment to a conservation camp or to a correctional institution as an inmate firefighter or who is assigned to a correctional institution as an inmate firefighter and who is eligible to earn one day of credit for every one day of incarceration pursuant to Section 2933 shall instead earn two days of credit for every one day served in that assignment or after completing that training.
"(c) In addition to credits granted pursuant to subdivision (a) or (b), inmates who have successfully completed training for firefighter assignments shall receive a credit reduction from his or her term of confinement pursuant to regulations adopted by the secretary.
"(d) The credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009."
Thus, section 2933, subdivision (d), which took effect on January 25, 2010, was made retroactively applicable to inmates eligible after July 1, 2009. This shows that the Legislature can make itself clear when it provides for retroactive application of credit statutes. Because no such provision was included in the amendments to sections 2933 or 4019, we must search for some other compelling indication of legislative intent.
Defendant invokes an uncodified section of the legislation that created the first 2010 amendments of sections 2933 and 4019. Section 59 stated: "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." (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 59, p. 4432.) He points out that uncodified section 3 of the legislation implementing the second amendments stated, "The Legislature intends that nothing in this act shall affect Section 59 of Chapter 28 of the Third Extraordinary Session of the Statutes of 2009, and that this act be construed in a manner consistent with that section." (Stats. 2010, ch. 426, § 3, p. 2088.)
The Attorney General does not directly respond to this contention. We see nothing in section 59 suggesting that the "additional time credits to be granted against inmate sentences resulting from changes in the law pursuant to this act" were intended to apply retroactively to increase conduct credits already earned and awarded under section 4019 prior to the effective date of the first 2010 amendment of that section. As discussed above, the legislation containing section 59 amended and enacted other statutes pertaining to credits, including enacting section 2933.05, requiring the promulgation of program credit regulations, and providing in section 2933.3 for a limited retroactivity for credits for inmate firefighters. The fact that implementing all these changes would take some administrative time does not suggest that the Legislature intended to increase the administrative burden by making the changes (other than section 2933.3) retroactive. Nothing in uncodified section 59 directs the Department to recalculate the conduct credits awarded under otherwise final judgments.
Defendant does not otherwise argue that the Legislature intended the extra credit provisions of section 4019 or 2933 to be applied retroactively in order to serve a policy, such as saving money by emptying prisons. "Credit is a privilege, not a right. Credit must be earned." (§ 2933, subd. (c).) Section 4019, and now section 2933, subdivision (e), were designed at least in part to facilitate management of prisoners by motivating compliant behavior while in local custody. This objective cannot be served by a retroactive application of the amendment of section 2933, as "it is impossible to influence behavior after it has occurred." (In re Stinnette (1979) 94 Cal.App.3d 800, 806 (Stinnette) [upholding expressly prospective application of section 2931 authorizing post-sentence good conduct credit for behavior in prison].) We will not ascribe this incongruous intent to the Legislature. Giving compliant prisoners extra credit for their past behavior would confer an unexpected windfall and unearned bonus on those who have already behaved believing that they were earning two days of conduct credit for every four days of good behavior in custody. Finding no compelling indication of retroactive application, we conclude that the amendment of section 2933 is as prospective as when similar language was added to section 4019. In other words, the second amendment of section 2933 is not retroactive.
The California Supreme Court has granted review of a case holding otherwise. (People v. Kemp, supra, 192 Cal.App.4th 252 [3rd Dist.], review granted Apr. 13, 2011, S191112.)
B. Equal Protection
Defendant also argues that so long as anyone in local custody is entitled to the extra conduct credits authorized by section 2933, subdivision (e), equal protection requires that it be extended to those who were in local custody prior to September 28, 2010, the effective date of the amendment.
We perceive no equal protection problem in giving the amendment a prospective application. " '[A] reduction of sentences only prospectively from the date a new sentencing statute takes effect is not a denial of equal protection.' " (People v. Floyd (2003) 31 Cal.4th 179, 189 [finding no equal protection violation in the expressly prospective application of Proposition 36 (§ 1210.1) providing for mandatory probation for some convicted of nonviolent drug possession offenses].) " '[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' " (Id. at p. 191, quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.) " 'In the context of equal protection, "[a] refusal to apply a statute retroactively does not violate the Fourteenth Amendment." ' " (Stinnette, supra, 94 Cal.App.3d 800, 806.)
Defendant, who was last in local custody (according to the record on appeal) from February 19, 2008 through May 2, 2008, subject to the then-prevailing version of section 4019 that allowed him to earn two days of conduct credit for every four days in local custody, is simply not similarly situated to someone in local custody after January 25, 2010, or after September 28, 2010, who is allowed to earn two days of conduct credit for every two days in local custody. (In re Strick (1983) 148 Cal.App.3d 906, 912-914 [worktime credits under newly enacted section 2933 applied prospectively].)
In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), on which defendant relies, does not alter our conclusion. In that case, the court reviewed "the constitutionality of Penal Code section 2900.5 which gives credit to persons convicted of felony offenses for time served in custody prior to the commencement of their prison sentence. Subdivision (c) of section 2900.5 makes the credit prospective only, limiting the application of the section to those persons who are delivered into the custody of the Director of Corrections on or after March 4, 1972, the effective date of the section." (Id. at pp. 544-545, fn. omitted.) The Supreme Court was unable to find that this legislative classification was "reasonably related to a legitimate public purpose." (Id. at p. 545.) The court rejected arguments that extending the scope of custody credits would interfere with the effective operation of the then-prevailing Indeterminate Sentence Law (id. at pp. 546-548) and it would create an insurmountable administrative burden (id. at pp. 549-550.)
Within the reasoning of Kapperman is a ground to distinguish it. Kapperman pronounced its "holding is consistent with the rationale of the recent decision of the United States Supreme Court in McGinnis v. Royster [(1973)] 410 U.S. 263." (Kapperman, supra, 11 Cal.3d at p. 548.) Noting that McGinnis had rejected an equal protection challenge to the application of a good-time credit statute in New York by "holding that the provision and its different treatment of jail and prison commitment could be justified as having a rational basis founded in the significant differences between county jails and state prisons with regard to rehabilitation facilities and programs" (ibid.), Kapperman distinguished McGinnis on two grounds. The credit provided by section 2900.5 was not dependent on "whether a prisoner was incarcerated in a county jail as distinguished from a state prison; rather, credit is granted or withheld solely on the basis of the date on which a person was delivered into the custody of the Director of Corrections. Thus, possible differences between county and state rehabilitation programs are in no way related to the classification made by the Legislature and cannot serve to justify that classification. [¶] Even if McGinnis had concerned a question of retroactivity it still would not be controlling inasmuch as it dealt with a different kind of credit. McGinnis involved a potential 10 days a month 'good-time' credit awarded as a bonus for good conduct and efficient performance of duty while in prison. It did not involve" credit for actual custody. (Ibid.)
Thus, the holding of Kapperman was not intended to apply to changes in what it called "good time" credits and what we call "conduct" credits. Moreover, as stated in the previous section, there is a rational basis for prospective application of an increase in the ability to earn conduct credits, namely the statutory objective of motivating compliant behavior cannot be achieved by awarding an unearned windfall.
People v. Sage (1980) 26 Cal.3d 498 (Sage), on which defendant relies, is also distinguishable. In that case, the Supreme Court considered a former version of section 4019 that authorized presentence conduct credit, but only for those ultimately sentenced to jail time, not prison time. (Id. at p. 504.) The court concluded that there was no "rational basis for, much less a compelling state interest in" maintaining this distinction. (Id. at pp. 507-508.)
Section 4019 was amended to codify the Sage holding. (Stats. 1982, ch. 1234, § 7, p. 4553.)
The statute in Sage did not distinguish between prisoners based on the time of its enactment or its effective date. As explained above, this kind of temporal distinction is inevitable and constitutional. (People v. Floyd, supra, 31 Cal.4th 179, 189-191.) Because the grounds for the legislative distinctions in Sage and Stinnette were different, we reject defendant's claim that Sage implicitly overruled Stinnette.
7. Disposition
The order denying defendant's motion for increased conduct credits is affirmed.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
WE CONCUR:
MIHARA, ACTING P.J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
.