Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA701682 Arthur Harrison, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott Taylor and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
In August 2008, pursuant to a plea agreement, defendant and appellant Ramiro Hernandez pled guilty to one count of possession of cocaine for sale (Health & Saf. Code, § 11351) and admitted he had possessed more than four kilograms of cocaine (Health & Saf. Code, § 11370.4, subd. (a)(2)). In return, the remaining allegations were dismissed, and defendant was immediately sentenced to a total term of seven years in state prison with credit of 246 days for time served.
About two years later, on July 8, 2010, defendant filed a motion seeking additional conduct credits pursuant to amended Penal Code section 4019 that became effective on January 25, 2010. On July 23, 2010, the trial court denied defendant’s motion. Defendant now appeals, contending he is entitled to additional presentence conduct credits pursuant to amended section 4019. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
We note that section 4019 has been amended again. Effective September 28, 2010, section 4019 was amended to apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to “former” section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.
The details of defendant’s criminal conduct are not relevant to the limited issue he raises in this appeal, and we will not recount them here.
DISCUSSION
Defendant was sentenced on August 28, 2008. The court awarded him 82 days of conduct credits under former section 4019, based on 164 actual days in custody. He now claims he is entitled to 82 more days of conduct credits under the amended version of section 4019. He argues the 2010 amendment is retroactive and applies to all judgments, including final ones. We disagree.
When the crime was committed, as well as when defendant was sentenced, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, added by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 4427-4428.)
The question of whether a defendant sentenced before January 25, 2010, is entitled to the benefit of the amended version of section 4019 is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [finding retroactive application].) As that court will have the last word on the subject, we discuss the issue only summarily.
The California Supreme Court granted review of People v. Brown, supra, 182 Cal.App.4th at pages 1363 through 1365, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13, review granted June 9, 2010, S181808, which held that the amendments were not retroactive.
Under section 3, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b), (c), added by Stats. 2009, supra, ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are prospective only.
We recognize that, under In re Estrada (1965) 63 Cal.2d 740, “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.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.) Accordingly, amended section 4019 applies prospectively only.
Relying on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498, defendant contends that failure to apply amended section 4019 retroactively would violate his state and federal equal protection rights.
Neither Kapperman nor Sage is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. Similarly, Sage is inapposite, because that case involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (People v. Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Ibid., fn. omitted.)
People v. Doganiere (1978) 86 Cal.App.3d 237 [Fourth Dist., Div. Two] also is not helpful to defendant. In that case, the defendant had already earned conduct credit before violating probation and being returned to custody. Here, by contrast, defendant seeks to take advantage of provisions that were not in effect while he was in presentence custody.
The purported equal protection violation at issue here is temporal, rather than based on defendant’s status as a misdemeanant or felon. One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those similarly situated to him whose sentencing occurred before the January 2010 amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
Defendant also relies on In re Kemp (2011) 192 Cal.App.4th 252. We decline to follow the Third District Court of Appeal’s decision in In re Kemp, which recently held that “prisoners whose judgments became final before January 25, 2010, are, for purposes of the new amendments, similarly situated to prisoners whose judgments were still pending or were not final on or after this date. Because there is no rational basis for treating the two subgroups differently, petitioner is entitled to have his conduct credits calculated under the formula provided by the new amendments.” (Id. at p. 263.)
Simply put, the principal purpose of section 4019 is to motivate good conduct. A defendant’s past conduct cannot be motivated retroactively. This is a rational basis for applying the amendments prospectively only. Thus, defendant is not entitled to additional conduct credits.
II
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.
We note the following appellate courts have found the section 4019 amendment to be retroactive: People v. Brown, supra, 182 Cal.App.4th 1354 (Third Dist.), review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096 (First Dist., Div. Two), review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049 (Second Dist., Div. One), review granted June 23, 2010, S182813; People v. Norton (2010) 184 Cal.App.4th 408 (First Dist., Div. Three), review granted August 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 (First Dist., Div. Five), review granted July 21, 2010, S183552; and People v. Bacon (2010) 186 Cal.App.4th 333, 335 through 337 (Second Dist., Div. Eight), review granted October 13, 2010, S184782.
The following appellate courts have found the section 4019 amendment to be prospective only: People v. Rodriguez, supra, 183 Cal.App.4th at p. 5 (Fifth Dist.), review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 (Fourth Dist., Div. Two), review granted July 21, 2010, S184314; People v. Hopkins (2010) 184 Cal.App.4th 615, 626 and 627 (Sixth Dist.), review granted July 28, 2010, S183724; and People v. Eusebio (2010) 185 Cal.App.4th 990 (Second Dist., Div. Four), review granted September 22, 2010, S184957.