Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. PA052386 Harvey Giss, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Following his November 2005 no contest plea to grand theft from a person (Pen. Code, § 487, subd. (c)), defendant and appellant Brandon Meaux was granted probation. After Meaux was arrested for another grand theft person in 2008, the trial court revoked his probation and imposed the upper term of three years in prison. Meaux contends imposition of the upper term was improper because: (1) the trial court based his sentence on events occurring subsequent to the original grant of probation, in contravention of California Rules of Court, rule 4.435; (2) the trial court failed to consider mitigating factors when selecting the upper term sentence; and (3) application of the amended Determinate Sentencing Law (DSL) to him violated ex post facto principles and the federal and state contract clauses. Meaux further contends his custody credits must be recalculated in light of recent amendments to section 4019. We affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The crime and plea.
On June 28, 2005, Luz Torres, who was eight months pregnant, was shopping with her sister near Gladstone Avenue and Sayre Street in Los Angeles. As they were walking to a bus stop, Meaux snatched Torres’s purse and fled to a waiting car. A complaint filed on June 30, 2005 charged Meaux with grand theft from a person (§ 487, subd. (c)), as well as with robbery based on an unrelated incident occurring on the same date (§ 211).
Because the matter did not proceed to trial, we glean the facts from the probation report.
On October 18, 2005, pursuant to a negotiated disposition, Meaux pleaded no contest to grand theft person in exchange for dismissal of the robbery charge, four years probation, jail time, and community service with the California Department of Transportation (Caltrans). The court that took the plea expressed concern about the negotiated disposition, stating, “why is Mr. Meaux being given Caltrans only? [¶]... There were numerous victims involved in this case. [¶] They may be purse snatches and not robberies; but nevertheless he frightened[, ] scared and took the property of defenseless women sitting at bus benches....” “I’m greatly troubled by Caltrans on a case of this magnitude where there are numerous victims....” The court accepted the plea but cautioned that if Meaux violated the conditions of his probation, he could be sentenced to three years in prison. Meaux affirmed that he understood. The court observed that Meaux and his co-defendant were “getting a huge break because you’re pleading to a grand theft person, which is not a strike, ” rather than the charged robbery.
The trial court advised: “In the future if you commit what ordinarily would be a petty theft-such as taking a six-pack of beer, carton of cigarettes or someone’s cell phone-this plea could be used against you, and you could end up in prison for three years.” The trial court also stated: “If you violate the conditions of your probation... you could end up in state prison for three years.”
Meaux was subsequently sentenced by a different judge. Echoing the comments of the court that took the plea, the sentencing court stated that it “was very disturbed by the fact situation. It appeared to be a bunch of young punks stealing purses from ladies. And in one situation, the victim fell to the ground and could have been dragged under a car.” In justification of the negotiated disposition, the prosecutor pointed out that Meaux had no prior record, had never been arrested, and was “quite young.” The court stated it would “reluctantly go along with the negotiated plea” but reiterated that Meaux faced prison time if he violated probation. The court opined that Meaux “got a good deal” and admonished him to comply with the terms of his probation, because a violation could “ruin the rest of [Meaux’s] life.” Consistent with the terms of the negotiated disposition, the court suspended imposition of sentence, dismissed the robbery charge, placed Meaux on probation for four years on condition he serve 125 days in county jail, and ordered him to complete 50 days of Caltrans community service. It imposed a restitution fine, a suspended parole restitution fine, and a court security fee, and ordered Meaux to make restitution to the victims.
2. Probation violation and revocation.
In November 2008, Meaux was again arrested for theft, and the People moved to revoke his probation. At the ensuing probation revocation hearing, the People presented evidence establishing that on the afternoon of November 22, 2008, Meaux, accompanied by two companions, drove his truck through an employee parking lot at Six Flags Magic Mountain, a Santa Clarita amusement park. When he narrowly avoided several emergency vehicles who were responding to a call, he was stopped by park security, who summoned the Sheriff’s Department. A search of Meaux’s person and truck revealed a stolen cellular telephone in Meaux’s pocket and stolen cameras and another cellular telephone in the vehicle. It was determined that the items had been stolen earlier that day from a park patron and from a car parked at a fast food restaurant located just outside the park.
The responding deputy ascertained that Meaux was on probation and subject to a search condition.
The trial court found Meaux in violation of probation. It observed, “I recall this case. I was really upset at the defendant’s conduct, stealing purses from women. Taking them from them personally. [¶] He could have been convicted of robbery, ” but for the favorable negotiated disposition.
The trial court denied Meaux’s section 1538.5 motion to suppress the evidence discovered in the search of his truck and person. Meaux does not challenge this ruling on appeal.
The sentencing hearing transpired on March 26, 2009. The court observed at the outset that Meaux had been charged in 2005 with both a robbery and a grand theft person, and “If he [had not been] so young on that case when he was sentenced and didn’t have a clean record, he would have had a strike on his record by now because one of those counts was a strike. But the prosecution indicated... they were willing to give him a break because of his youth and this was the first time offense.” The court observed that Meaux had “snatched a purse from a woman that was eight months pregnant, totally helpless. And I was furious when I read that particular aspect.” The trial court reminded the parties that, at the 2005 sentencing hearing, it had advised Meaux that if he violated probation he would “have a heavy price to pay.”
Meaux’s counsel requested that the court reinstate probation rather than impose a prison sentence. The defense presented, and the court considered, several letters from Meaux’s relatives and friends. Those letters urged, inter alia, that Meaux be given a chance to finish probation; a prison term was harsh and would have serious and detrimental consequences for his future employment prospects; and Meaux had needed “a wake up call” to get “past the childhood phase of his life.” In response to these letters, the trial court stated that it had already given Meaux a “break” by initially granting probation; Meaux had already gotten a “wake up call” when initially placed on probation; Meaux should have considered the consequences of his conduct before violating probation; and the court felt no compunction about sentencing him to prison. The court explained, “First time shame on you. Second time shame on me, if I let you get away with it.”
The trial court rejected the request to reinstate probation and sentenced Meaux to the high term of three years in prison. The court explained, “[t]he court is sentencing the defendant to the high term of three years in state prison. I’m doing it for the reason that the defendant, as I indicated already, got an incredible break, avoided a robbery conviction, preyed upon helpless people... including a pregnant woman. He seems not to have learned his lesson. I think he’s a danger to the public. And I think that that’s an appropriate sentence, because he was on probation at the time all of this occurred.”
DISCUSSION
1. Contentions related to the trial court’s consideration of sentencing factors.
a. The trial court did not violate California Rules of Court, rule 4.435, by imposing the upper term based on factors occurring subsequent to the original grant of probation; any error was harmless.
Meaux contends the trial court abused its discretion and violated California Rules of Court, rule 4.435 by imposing the upper term based upon events occurring subsequent to the initial grant of probation, that is, his poor performance on probation. In our view, the record does not unequivocally support this claim. In any event, to the extent the trial court erred, any error was harmless.
Preliminarily, the People point out that the waiver doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Kelley (1997) 52 Cal.App.4th 568, 582.) “Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.’ [Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.) Here, Meaux never objected to the trial court’s purported reliance on his probation performance as an aggravating factor, and has therefore forfeited this claim on appeal.
In any event, Meaux’s claim lacks merit. California Rules of Court, rule 4.435(b)(1), formerly rule 435(b)(1), provides in pertinent part that when a court imposes sentence after revoking probation, “[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.” The rule “clearly prohibits the superior court from considering events subsequent to the grant of probation when determining the length of a prison term upon revocation of probation.” (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.) The “spirit and purpose of the rule” is to “preclude the possibility that a defendant’s bad acts while on probation” will influence his sentence upon revocation of probation. (Id. at p. 1163.) On the other hand, it is well settled that a court may consider events occurring subsequent to a probation grant when deciding whether to revoke or reinstate probation. (People v. White (1982) 133 Cal.App.3d 677, 681; People v. Jones (1990) 224 Cal.App.3d 1309, 1316, fn. 4; People v. Ayub (1988) 202 Cal.App.3d 901, 905.)
Rule 4.435 does not preclude a sentencing court’s consideration of events occurring between an initial grant of probation and a reinstatement of probation. (People v. Black (2009) 176 Cal.App.4th 145, 150-151; People v. Harris (1990) 226 Cal.App.3d 141, 145.) Here, however, probation was never revoked and reinstated, and Harris and its progeny are inapplicable.
Courts have broad sentencing discretion, and we review a trial court’s sentencing choices, including whether to reinstate probation or impose a prison sentence, and whether to impose the upper term, for abuse of discretion. We reverse only if there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583; People v. Downey (2000) 82 Cal.App.4th 899, 909.) A trial court abuses its discretion if it relies upon circumstances that are not relevant to, or that otherwise constitute an improper basis for, the sentencing decision. (People v. Sandoval, supra, at p. 847; People v. Moberly, supra, at p. 1196.)
Our review of the record does not convince us that the trial court relied upon events occurring subsequent to the initial grant of probation as a basis for its imposition of the upper term, despite Meaux’s argument that the court “unquestionably” did so. At the sentencing hearing, the trial court was required to consider two questions: first, whether to incarcerate Meaux or reinstate probation, as his counsel requested; and second, the appropriate sentence if probation was not reinstated. As to the first question, the trial court properly considered postprobation circumstances. “Obviously, a court must consider postprobation events to determine whether or not there has been a violation of probation and, if probation has been revoked, whether the defendant should be reinstated on probation or incarcerated.” (People v. White, supra, 133 Cal.App.3d at p. 681.) Moreover, where a court initially suspends imposition of sentence and places a defendant on probation but later revokes probation and imposes sentence, it must state its reasons for choosing imprisonment over reinstatement of probation. (People v. Cotton (1991) 230 Cal.App.3d 1072, 1080-1081; People v. Jones, supra, 224 Cal.App.3d at pp. 1312-1315; People v. Pennington (1989) 213 Cal.App.3d 173, 176-177; Cal. Rules of Court, rule 4.406(b)(2).) In our view, the trial court’s statements that it was imposing sentence because Meaux had failed to learn his lesson and had been on probation when the Magic Mountain crimes were committed, were directed toward its decision not to reinstate probation, rather than to the imposition of the upper term. Its comments regarding the aggravated nature of the crime, on the other hand, were applicable to its selection of an upper term sentence. A fair reading of the record, in context, does not persuade us that the trial court considered postprobation events as a basis for imposition of the upper term.
But even assuming arguendo that the trial court did rely on Meaux’s postprobation conduct as one factor in support of imposition of the upper term, any error was harmless. (See People v. Downey, supra, 82 Cal.App.4th at p. 917.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them in qualitative as well as quantitative terms. (People v. Avalos, supra, 47 Cal.App.4that p. 1582; People v. Sandoval, supra, 41 Cal.4th at p. 847; § 1170, subd. (b).) “The mere fact a trial court erroneously relies upon certain factors in imposing an upper term does not per se require reversal. Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent the erroneous factors. [Citation.] Thus, where the trial court has stated several factors warranting the upper term, and only some of those factors are erroneous, the sentence is generally affirmed. [Citations.]” (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; People v. Price (1991) 1 Cal.4th 324, 492 [“When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper”]; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318-1319.) An upper term sentence may properly be imposed where even a single aggravating factor is present. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Holguin, supra, at p. 1319.)
The trial court in the instant case relied upon at least one valid aggravating factor: the vulnerability of the victim, who was eight months pregnant when Meaux snatched her purse. (See Cal. Rules of Court, rule 4.421(a)(3).) The trial court repeatedly stressed its view, both at original hearing where probation was granted, as well as at 2009 sentencing hearing, that the crime was aggravated due to the victim’s vulnerability. It is highly unlikely, given the court’s comments, that it would have imposed a more favorable sentence had it known it was improper to rely on the fact Meaux had not “learned his lesson” and reoffended. Accordingly, even assuming for purposes of argument that the trial court improperly relied upon events occurring after the initial grant of probation, any error was harmless.
b. The trial court did not fail to consider mitigating factors.
In a related vein, Meaux urges that the trial court improperly failed to consider the “substantial mitigating factors” of his lack of a criminal record and early acknowledgement of wrongdoing. (See People v. Goldberg, supra, 148 Cal.App.3d at p. 1162; Cal. Rules of Court, rule 4.423(b)(1) & (3) [lack of a significant criminal record, and the fact a defendant “voluntarily acknowledged wrongdoing... at an early stage of the criminal process” are mitigating factors].) We disagree.
As noted ante, the waiver doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott, supra, 9 Cal.4th at p. 353; People v. Kelley, supra, 52 Cal.App.4th at p. 582.) Meaux never objected to the trial court’s purported failure to consider mitigating circumstances, and accordingly he has forfeited this claim on appeal.
Apart from the question of waiver, however, Meaux’s argument fails on the merits. California Rules of Court, rule 4.435 provides that when a prison term is imposed after termination of probation, if the sentence was previously suspended “the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).” (Cal. Rules of Court, rule 4.435(b)(1).) Rule 4.433(c)(5) provides that if a sentence of imprisonment is to be imposed, the trial court must give “reasons for those matters for which reasons are required by law.”
A remand for resentencing is required when the court fails to consider relevant mitigating factors. (People v. Strunk (1995) 31 Cal.App.4th 265, 273-275; People v. Kelley, supra, 52 Cal.App.4th at p. 582.) The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. (Cal. Rules of Court, rule 4.409; People v. King (2010) 183 Cal.App.4th 1281, 1322; People v. Weaver, supra, 149 Cal.App.4th at p. 1318; People v. Myers (1999) 69 Cal.App.4th 305, 310; People v. Kelley, supra, at p. 582; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836.)
Here, the record contains no affirmative indication that the trial court failed to consider the cited mitigating factors. To the contrary, at the 2009 sentencing hearing the trial court expressly referenced Meaux’s lack of a criminal record, noting that one reason for the 2005 negotiated disposition had been Meaux’s “clean record.” The same judge presided over the 2005 hearing, the probation revocation hearing, and the 2009 sentencing hearing. The court stated, at the probation violation hearing, that it recalled the case and the plea. While the court did not expressly reference the fact that Meaux had pleaded prior to the preliminary hearing, nothing in the record suggests it was unaware of this fact, and common sense suggests otherwise. The fact the court focused its explanatory comments on the vulnerability of the victim and, in regard to the revocation of probation, the fact Meaux reoffended and had not “learned his lesson, ” does not mean it considered only those factors. (People v. Myers, supra, 69 Cal.App.4that p. 310; see also People v. Weaver, supra, 149 Cal.App.4th at pp. 1317-1318 [presuming trial court was aware of, and considered, certain mitigating circumstances despite the fact that neither the court nor the sentencing documents expressly referred to them].) Under these circumstances, we discern no reversible error.
c. Ineffective assistance of counsel.
Meaux next asserts that his counsel provided ineffective assistance by failing to object to the court’s purported reliance on factors occurring subsequent to the original grant of probation and failure to consider mitigating circumstances. He correctly points out that “a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.” (People v. Scott, supra, 9 Cal.4th at p. 351.)
“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
Assuming arguendo that counsel lacked a tactical reason for his failure to make the suggested arguments, and that his performance in this regard fell below an objective standard, Meaux has nonetheless failed to establish prejudice. As noted, the trial court stressed the vulnerability of the victim when imposing the upper term, and the record does not suggest Meaux would have received a more favorable sentence had counsel pointed out that postprobation circumstances could not be considered. Likewise, as we have discussed, the court expressly referenced Meaux’s lack of a criminal record and nothing suggests it failed to consider the fact Meaux pleaded prior to commencement of a preliminary hearing. Moreover, the trial court was unlikely to attach great weight to the fact Meaux pleaded early in the proceedings, given that his plea was made as part of a plea bargain. (See People v. Holguin, supra, 213 Cal.App.3d at p. 1318 [“a guilty plea resulting from a plea bargain is not a sufficient acknowledgment of guilt to constitute a mitigating factor since the admission is only to receive a benefit from the prosecution”]; People v. Burg (1981) 120 Cal.App.3d 304, 306-307.) Because Meaux has failed to establish prejudice, his ineffective assistance claim fails. (See People v. Lopez, supra, 42 Cal.4th at p. 966.)
2. Imposition of the upper term under the amended DSL was constitutionally permissible.
Meaux’s crime was committed in 2005, prior to the 2007 amendments to the DSL enacted in the wake of Cunningham v. California (2007) 549 U.S. 270. Meaux was sentenced in 2009 under the amended version of the law. Meaux contends application of the amended version of the DSL to him violated ex post facto principles and the contract clauses of the state and federal constitutions. The thrust of Meaux’s argument is that, under the version of the law in effect when he committed the crime, the court could have imposed, at most, a midterm sentence, rather than the upper term permissible under the amended version of the law. We discern no constitutional error.
a. Background.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that the version of California’s determinate sentencing law then in effect violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 549 U.S. at pp. 292-293; People v. Black (2007) 41 Cal.4th 799, 805; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
In the wake of Cunningham, “[t]he California Legislature quickly responded” by amending the law to rectify the constitutional defects identified in Cunningham. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) “Senate Bill No. 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. [Citations.] Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (People v. Wilson, supra, at p. 992; People v. Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) In People v. Sandoval, supra, 41 Cal.4th 825, the California Supreme Court judicially reformed the former DSL to conform to the new law. (People v. Miller (2008) 164 Cal.App.4th 653, 669.) The amendments to the DSL, and the judicial reformation of the statute, cured the constitutional defects identified by Cunningham. (People v. Wilson, supra, at p. 992.)
b. Application of the amended DSL to Meaux did not violate ex post facto principles.
Meaux complains that application of the amended DSL to him violated ex post facto principles. He asserts that when his crime was committed in 2005, the maximum sentence that could have been imposed under the law extant at that time was the midterm, in that there was no jury finding of aggravating factors, his plea admitted only the elements of the crime (People v. French, supra, 43 Cal.4th at p. 48), and he had not suffered prior convictions that fell within Apprendi’s prior conviction exception. Under the amended DSL, however, the choice of the appropriate term rests within the sound discretion of the court, which may select whichever term it believes best serves the interests of justice. (§ 1170, subd. (b).) Thus, he contends, as applied to him the amendment to the DSL “effectively increased the maximum sentence to which [he] was exposed, thereby disadvantaging him.” (See Miller v. Florida (1987) 482 U.S. 423, 432-433, 435-436 [retroactive application of amended statute that made it easier for the court to select a longer sentence made punishment more onerous and violated ex post facto principles].)
The People assert, without citation to authority, that “Cunningham had no application to this case because appellant admitted by his plea all facts necessary... to impose the upper term.” To the extent the People suggest a no contest plea, without more, constitutes an admission to aggravating circumstances, they are incorrect. By entering into a plea agreement that includes the upper term as the maximum sentence, a defendant does not implicitly admit that his conduct could support that term. (People v. French, supra, 43 Cal.4th at pp. 48-49.) A no contest plea admits all the elements of the offense, but does not constitute an admission of any aggravating circumstance. (Id. at p. 49.)
As Meaux acknowledges, People v. Sandoval, supra, 41 Cal.4th 825, while not directly deciding the ex post facto issue presented here, concluded that application on resentencing of the judicially reformed DSL to crimes committed prior to its effective date does not implicate ex post facto or due process concerns. Sandoval adopted the procedure enacted by the Legislature for all Cunningham resentencings. The court concluded that “the federal Constitution does not prohibit the application of the revised sentencing process... to defendants whose crimes were committed” prior to the date Sandoval was decided (July 19, 2007). (People v. Sandoval, supra, 41 Cal.4th at p. 857; see also People v. Miller, supra, 164 Cal.App.4th at p. 669.) Sandoval explained that a law violates the ex post facto clause of the federal Constitution “only if it is retroactive-that is, if it applies to events occurring before its enactment-and if its application disadvantages the offender. [Citation.] A retroactive law does not violate the ex post facto clause if it ‘does not alter “substantial personal rights, ” but merely changes “modes of procedure which do not affect matters of substance.” ’ ” (People v. Sandoval, supra, at p. 853; see also Miller v. Florida, supra, 482 U.S. at p. 429; In re E.J. (2010) 47 Cal.4th 1258, 1277.) Thus, whether a change in the law violates the ex post facto clause is a matter of degree. (People v. Sandoval, supra, at p. 854.)
Sandoval further reasoned that removal from the DSL of the provision calling for imposition of the middle term in the absence of aggravating or mitigating circumstances was not intended to, and would not be expected to, increase the sentence for any particular crime. (People v. Sandoval, supra, 41 Cal.4th at p. 855.) To the extent the amendment could be viewed as granting the trial court greater discretion to impose an upper term, the revision would also afford the court equally increased discretion to impose the lower term. (Ibid.) Sandoval’s analysis compels the conclusion that the application of the amended DSL to Meaux likewise does not violate ex post facto principles or his due process rights.
Meaux argues that Sandoval was incorrectly reasoned, and in any event the pertinent portion of the case was dicta because the issue was decided in the context of resentencings, and the ex post facto analysis was unnecessary to the determination of whether Sandoval had been improperly sentenced. “Although dicta of the California Supreme Court does not control our decisions, it ‘carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]’ [Citation.]” (People v. Smith (2002) 95 Cal.App.4th 283, 300.) Sandoval’s ex post facto analysis is logical and compelling when considered in light of the pertinent authorities, and compels us to reach the same result.
c. Contract clause claim.
Meaux further asserts that application of the amended version of the DSL and the related, amended rules of court to him “detrimentally impaired” his rights under the Contract Clauses of the United States and California Constitutions, which prohibit states from passing laws impairing the obligation of contracts. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) He argues that when he entered into his plea agreement, any possible future state prison term was controlled by the provisions of section 1170, subdivision (b) and the corresponding rules of court as they existed in 2000. Under those provisions, if he violated the terms of his probation, he could not have been sentenced to the upper term absent specific findings in aggravation, “tempered by the requirement that any aggravating factors [must have] outweighed any mitigating factors.” The changes to the DSL, however, allowed the court to sentence him to the upper term based only upon the court’s reasonable exercise of its sentencing discretion. By removing the requirement that the court must articulate and weigh specified circumstances in aggravation and mitigation, he urges, the amendments to the DSL “substantially lessened” the showing required to impose an upper term sentence, which, in turn, “breached the expected and bargained for considerations” under the plea agreement.
We are unconvinced. “A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles.” (People v. Shelton (2006) 37 Cal.4th 759, 767; People v. Toscano (2004) 124 Cal.App.4th 340, 344; People v. Gipson (2004) 117 Cal.App.4th 1065, 1069.) An argument similar to Meaux’s was considered and rejected in People v. Gipson, supra, 117 Cal.App.4th 1065. In Gipson, the defendant was found guilty of assault with a deadly weapon, and a prior “strike” allegation was found true. He was accordingly sentenced pursuant to the provisions of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The prior conviction was the result of a 1992 plea bargain that predated enactment of the Three Strikes law. On appeal, Gipson contended that the 1992 plea bargain was a contract between him and the state, which the Legislature could not impair by subsequent enactments. He asserted that the plea agreement incorporated by reference section 667, as it existed in 1992, which provided a recidivist penalty of five years for each prior serious felony, not for a doubling of a future sentence. (Gipson, at p. 1068.)
Gipson rejected this argument. It explained that plea bargains are contractual in nature and must be measured by contract law standards, and the government must fulfill any promise that it expressly or impliedly makes in exchange for a defendant’s guilty plea. (People v. Gipson, supra, 117 Cal.App.4th at p. 1069.) The existing applicable law is part of every contract, the same as if expressly referred to or incorporated in its terms. (Ibid.) “ ‘Both the United States and California Constitutions contain clauses prohibiting the Legislature from passing laws which impair the obligations in contracts. [Citations.] Although the language of both contracts clauses is facially absolute, it has been determined that their “prohibition[s] must be accommodated to the inherent police power of the State ‘to safeguard the vital interests of its people.’ ” [Citation.] Thus, impairment of an existing contract is not necessarily unconstitutional.’ [Citation.]” (Ibid.) Contracts are “ ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....’ [Citation.]” (Id. at p. 1070, italics added.) The purpose of the Three Strikes law, Gipson reasoned, is to “promote the state’s compelling interest in the protection of public safety and in punishing recidivism.” (Ibid.) Gipson concluded, therefore, that the defendant’s “contract clause challenge fails. His plea bargain is ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....’ [Citation.] The plea bargain ‘vest[ed] no rights other than those which relate[d] to the immediate disposition of the case.’ [Citation.] The 1994 amendment to section 667 did not affect the 1992 plea bargain; it did not create or destroy any substantive rights defendant had in the plea bargain. Subsequent to the plea bargain, the Legislature amended the law; defendant committed another crime; defendant became subject to the penalty described in the amended statute. The increased penalty in the current case had nothing to do with the previous case except that the existence of the previous case brought defendant within the description of persons eligible for a five-year enhancement for his prior conviction on charges brought and tried separately.” (People v. Gipson, supra, at p. 1070.)
The same is true here. Inherent in Meaux’s 2005 plea bargain was the reserve power of the state to amend the law for the public good. Laws setting forth punishment for crime and periods of incarceration are obviously critical to public safety, and the amendment to the DSL was enacted in order to ensure those laws conformed to constitutional principles. Furthermore, the amendment to the DSL at issue here affected Meaux far less than the enactment of the Three Strikes law in Gipson. Under both the original and the amended versions of the law, an upper term sentence was possible.
Meaux argues that Gipson is distinguishable because, unlike Gipson, he was not sentenced due to a second, unrelated conviction; instead, his sentence was for the same crime committed in 2005. However, we note that Meaux was told, at the 2005 sentencing hearing, “If you violate the conditions of your probation, Mr. Meaux, you could end up in state prison for three years.” Meaux stated that he understood. Given this exchange, Meaux expressly understood and agreed that should he violate probation, he could be sentenced to three years. Under these circumstances there can be no merit to his claim that the amendment of the DSL violated his plea bargain.
3. Custody credits.
Meaux was sentenced on March 26, 2009. The trial court awarded 70 days of actual credit and 34 days of presentence conduct credit, for a total of 104 days. In October 2009, the Legislature passed Senate Bill No. 18, which amended section 4019 to increase the number of presentence conduct credits available to eligible defendants. (People v. Eusebio (2010) 185 Cal.App.4th 990, 992-993; People v. Delgado (2010) 184 Cal.App.4th 271, 282.) The amended version of the law took effect on January 25, 2010, after Meaux’s opening brief was filed. (People v. Eusebio, supra, at p. 992.) Meaux contends in his reply brief that he is entitled to the benefit of the amendment, which should be applied retroactively to him. Apart from this question, Meaux additionally contends that because there was “considerable confusion” in the court’s calculation of his credits, the matter should be remanded for resentencing. We disagree with both contentions.
a. The amendments to section 4019 operate prospectively only.
Section 4019 provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution’s rules and regulations. (People v. Dieck (2009) 46 Cal.4th 934, 939.) A prisoner’s good conduct time is deducted from his or her period of confinement. (§ 4019, subds. (b)(1) & (c)(1).) Prior to the amendments, section 4019 allowed for six days of credit for every four days of custody. (Former § 4019, subds. (b), (c); People v. Eusebio, supra, 185 Cal.App.4th at p. 992.) Under the amended version of the law, an inmate earns credits at twice the previous rate, that is, up to four days of credit for every twodays of custody, subject to exceptions not relevant here. (§ 4019, subds. (b)(1), (c)(1), (f); People v. Eusebio, supra, at pp. 992-993.)
Prisoners who are required to register as sex offenders, who were committed for a serious or violent felony, or who have prior convictions for serious or violent felonies, are not eligible for increased credits under the amended version of the statute. (§ 4019, subds. (b)(2), (c)(2) & (f).)
The amended version of section 4019, subdivision (b)(1) provides, in pertinent part: “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....”
The question of whether the amendment applies retroactively has been addressed in a number of published opinions and has divided the appellate courts. One line of cases holds that the amendment to section 4019 has retroactive effect. (People v. Bacon (2010) 186 Cal.App.4th 333; People v. Keating (2010) 185 Cal.App.4th 364; People v. Delgado, supra, 184 Cal.App.4th 271.) Another line of authority holds that the amendment must be applied prospectively only. (People v. Eusebio, supra, 185 Cal.App.4th 990.) The question is currently on review before our Supreme Court. We conclude section 4019 does not operate retroactively, and accordingly Meaux is not entitled to recalculation of his custody credits.
The California Supreme Court has granted review in the following cases relating to the issue: People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260.
“To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration[.]” (People v. Nasalga (1996) 12 Cal.4th 784, 792.) The Legislature did not specify whether it intended the amendment to section 4019 to have retroactive application. (People v. Eusebio, supra, 185 Cal.App.4th at p. 993; People v. Keating, supra, 185 Cal.App.4th at pp. 383-384.) Therefore, we consider other factors to determine legislative intent. (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada); People v. Keating, supra, at p. 384.)
Several factors inform our conclusion. Section 3 of the Penal Code provides that “ ‘[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.’ ” (People v. Grant (1999) 20 Cal.4th 150, 156-157; People v. Alford (2007) 42 Cal.4th 749, 753; People v. Keating, supra, 185 Cal.App.4th at p. 384.) Section 3 embodies a general rule of construction that “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.” Estrada, supra, 63 Cal.2d at p. 746.) Section 3 applies where, after considering all the pertinent factors, it is not possible to ascertain the legislative intent. (Ibid.)
The leading case addressing the retroactive application of amendments to criminal statutes is Estrada. (People v. Eusebio, supra, 185 Cal.App.4th at p. 994.) Estrada held that when an amendatory statute lessens punishment and contains no savings clause, it operates retroactively in cases in which judgment was not final on the amendment’s effective date. (Estrada, supra, 63 Cal.2dat p. 748; People v. Eusebio, supra, at p. 994; People v. Keating, supra, 185 Cal.App.4th at p. 385.) Estrada concluded an amendment reducing the penalty for the offense of prison escape should have retroactive effect. The court reasoned: “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.” (Estrada, at p. 745.) In other words, “ ‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’ ” (Ibid.) When a lesser penalty has been deemed sufficient to satisfy the public interest, the Legislature obviously intends that no prisoner remain subject to the original, greater penalty. (Ibid.; People v. Keating, supra, at p. 385.) “In these circumstances, ‘the rule of construction that statutes are normally to be interpreted to operate prospectively and not retroactively... has been rebutted.’ [Citations.]” (People v. Keating, supra, at p. 385; Estrada, at p. 747.)
Estrada’s rationale does not readily fit the amendment to section 4019. Unlike the law at issue in Estrada, the amendment to section 4019 does not lessen the penalty for a particular substantive crime, and consequently does not easily allow the inference of a legislative judgment that the “former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.” (Estrada, supra, 63 Cal.2d at p. 745.) The amendment to section 4019 “does not reduce punishment as such and is different from the reduction in prison terms” at issue in Estrada. (People v. Eusebio, supra, 185 Cal.App.4th at p. 994.) The “primary purposes of conduct credits for prison inmates are to encourage conformity to prison regulations, to provide incentives to refrain from criminal, particularly assaultive, conduct, and to encourage participation in ‘rehabilitative’ activities. [Citations.]” (People v. Austin (1981) 30 Cal.3d 155, 163; People v. Brown (2004) 33 Cal.4th 382, 405 [“section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody”]; People v. Silva (2003) 114 Cal.App.4th 122, 128.) Applying the amendment retroactively would not further the statutory objective of rewarding good behavior, in that it is not possible to influence behavior after it has occurred. An increase in conduct credits is not, in our view, equivalent to a mitigation in punishment.
Further, the Legislature knew how to provide for retroactivity in the applicable legislation, where it so intended. Senate Bill No. 18, the legislation that amended section 4019, expressly provided for retroactive application of another portion of the law, that is, enhanced conduct credits for prison inmates who complete training as firefighters after July 1, 2009. (§ 2933.3, subd. (d), as amended by § 41 of Sen. Bill No. 18.) “For these prisoners, the newly enhanced credit for prison time will apply retroactively for the period between July 1, 2009, and January 25, 2010.” (People v. Eusebio, supra, 185 Cal.App.4th at p. 995.) By expressly providing for limited retroactivity in section 2933.3, subdivision (d), it may reasonably be inferred that the Legislature intended that other changes to the presentence custody scheme would not operate retroactively. (People v. Eusebio, supra, at p. 995.)
In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded the amendments to section 4019 are not retroactive.
b. Calculation of custody credits.
In Meaux’s opening brief, he argued that the trial court had neglected to award him credit for the time he spent in custody prior to being granted probation in 2005. The People correctly point out that when Meaux was originally granted probation in 2005, the eight days in question were applied, with Meaux’s waiver, to reduce his Caltrans community service obligation. In his reply brief, Meaux concedes the point. Nonetheless, he urges that because “there was considerable confusion” about the manner in which the trial court calculated his credits, the matter should be remanded so the trial court may “more clearly arrive at a proper determination” of his credits.
We do not believe remand is necessary. The parties agree that Meaux was arrested on the probation violation on January 16, 2009 and remained in custody until his sentencing on March 26, 2009, for a total of 70 days of actual credit. Under the version of section 4019 in effect when Meaux was sentenced, the “proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.” (People v. Culp (2002) 100 Cal.App.4th 1278, 1283; People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Application of this formula here yields 34 days of presentence conduct credit. Adding Meaux’s actual and conduct credits, he is entitled to a total of 104 days credit, the amount reflected on the abstract of judgment. Meaux is correct that the trial court’s calculations at sentencing are confusing and did not precisely track the foregoing. Regardless, the court arrived at the correct total, which is accurately reflected on the abstract of judgment. Remand would therefore be an idle act. (See People v. Richardson (2007) 156 Cal.App.4th 574, 591; People v. Gamble (2008) 164 Cal.App.4th 891, 901; cf. People v. Gutierrez (2003) 29 Cal.4th 1196, 1205.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P.J.KITCHING, J.
The amended version of subdivision (c)(1) provides, in relevant part: “Except as provided in Section 2933.1 and paragraph (2), 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 not satisfactorily complied with the reasonable rules and regulations established by the sheriff....” The amended version of subdivision (f) 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....”