Opinion
H035897
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. RUDOLFO SALAS, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SS090830, SS091004)
Defendant Rudolfo Salas, Jr., was sentenced to prison after violating probation in two separate cases. On appeal, he contends the trial court (1) erred in calculating his presentence conduct credit without giving him "the full benefit of [Penal Code] section 4019[] as it existed at sentencing," (2) miscalculated his presentence custody credit, and (3) improperly doubled his restitution and parole revocation fines (§§ 1202.4, subd. (b), 1202.45) after revoking his probation. We reject his first contention but agree that in one of the two cases, the court miscalculated defendant's presentence custody credit and improperly doubled his restitution and parole revocation restitution fines. We modify the judgment and affirm.
Further statutory references are to the Penal Code unless otherwise noted.
I. Background
The details of defendant's crimes are irrelevant to the issues he raises on appeal, so we need not recount them. In a negotiated disposition in 2009, he pleaded no contest to infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) and child endangerment (§ 273a, subd. (b)) in case No. SS090830A (Case A) and possession of a firearm by a misdemeanant (§ 12021, subd. (c)(1)) in case No. S091004A (Case B). On June 25, 2009, the trial court suspended imposition of sentence and, separately in each case, placed defendant on four years' formal probation on condition, among others, that he serve time in the county jail, pay a $200 restitution fine (§ 1202.4, subd. (b)), and, in the event probation was revoked and not reinstated, pay a $200 probation revocation restitution fine (§ 1202.44).
Released from jail on September 23, 2009, defendant violated probation in both cases that same day. He admitted these violations, and in February 2010, the court reinstated and modified his probation in each case to include additional time in the county jail.
In May 2010, defendant again violated probation in both cases. He admitted these violations, and on July 28, 2010, the court revoked his probation and sentenced him to a two-year prison term in Case A and a consecutive eight-month term in Case B. The court doubled the $200 restitution fine (§ 1202.4, subd. (b)) in Case A. It also imposed, but suspended, a $400 parole revocation restitution fine (§ 1202.45) in Case A and a $200 parole revocation restitution fine in Case B.
Defendant filed a timely notice of appeal.
II. Discussion
A. Conduct Credit
A defendant ordered to serve a jail term (as a condition of probation or otherwise) or committed to state prison is entitled to credit against the jail or prison term for all days spent in custody before sentencing. (§ 2900.5, subds. (a), (c).) A defendant may earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). " 'Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the 1982 version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. (Former § 4019, subds. (b), (c).)
We will refer to the version of section 4019 that was in effect until January 25, 2010 as "the 1982 version of the statute." (Stats. 1982, ch. 1234, § 7.)
Former section 4019 was amended effective January 25, 2010 to increase conduct credit for defendants who had no current or prior convictions for serious or violent felonies and were not required to register as sex offenders. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Under the January 2010 version of the statute, these defendants were eligible to earn two days of conduct credit for every two days in actual custody. (Former § 4019, subds. (b)(1), (c)(1).)
We will refer to this version of section 4019 as "the January 2010 version." We note that section 4019 was amended again effective September 28, 2010 to reinstate the conduct credit provisions in the 1982 statute. (Stats. 2010, ch. 426, § 2.) The September 2010 version of the statute applies to defendants in local custody for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) It does not apply here because defendant committed his crimes in 2009. The statute has been amended since September 2010, but those amendments are not at issue here.
Defendant was sentenced on July 28, 2010, six months after the effective date of the January 2010 version of section 4019. He contends the court erred in calculating presentence conduct credit for time spent in custody before January 25, 2010 under the 1982 version, thus giving him the benefit of the January 2010 version only for time spent in custody after January 25, 2010. He argues that he was "entitled to the benefit of the amended section 4019 as it existed at sentencing because (1) retroactive application best effectuates the Legislature's intent; and (2) the equal protection clauses of the state and federal constitutions require retroactive application to all defendants meeting the statute's requirements." We disagree.
1. Retroactive Versus Prospective Application
Section 3 states that no part of the Penal Code is "retroactive, unless expressly so declared." The California Supreme Court has interpreted section 3 "to mean 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. [Citation.]' " (People v. Alford(2007) 42 Cal.4th 749, 753 (Alford).)"[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
When it amended section 4019, the Legislature did not expressly state to what extent the January 2010 version of the statute would apply to cases not yet final on its January 25, 2010 effective date. Thus, we must determine whether "it is very clear from extrinsic sources" (Evangelatos, supra, 44 Cal.3d at p. 1209) that the Legislature intended that version to be retroactive.
Defendant relies on an exception to the general rule of prospective application. "[A]bsent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. [Citations.]" (People v. Babylon (1985) 39 Cal.3d 719, 725.) This rule was first articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In that case, the California Supreme Court reasoned that "[w]hen 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." (Id. at p. 745.)
At issue, then, is whether the Legislature's enactment of a statute increasing presentence credit was intended to lessen punishment within the meaning of Estrada. People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter)addressed this issue in connection with custody credit. In 1976, the Legislature amended section 2900.5 to provide that a defendant was entitled to custody credit for presentence custody time against a county jail sentence imposed as a condition of probation. (Hunter, at p. 392.) Applying Estrada, Hunter held that the amendment to section 2900.5 "must be construed as one lessening punishment," and thus applied the amended statute retroactively. (Hunter, at p. 393.)
People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere)considered whether a subsequent amendment to section 2900.5, which entitled a defendant to section 4019 conduct credit against a prison term for time spent in custody pursuant to a probation order, applied retroactively. (Doganiere, at pp. 238-239.) The court rejected the People's argument that custody credit is distinguishable from conduct credit because conduct credit is "designed to control future prison inmate behavior, encourage future cooperation in prison programs, and foster future inmate self-improvement." (Id. at p. 239.) Doganiere concluded that "[u]nder Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe." (Id. at p. 240.)
We disagree with the reasoning in Doganiere. In enacting legislation authorizing conduct credit, the Legislature is not seeking to lessen punishment. Rather, "conduct credit[] [is] designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility." (People v. Silva (2003) 114 Cal.App.4th 122, 128.)
In In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette), the court considered whether prospective application of the conduct credit statutes of the recently enacted Determinate Sentencing Act violated the petitioner's equal protection rights. Stinnette rejected the petitioner's equal protection challenge, reasoning that the purpose of the statutes was "motivating good conduct among prisoners so as to maintain discipline and minimize threats to prison security. Reason dictates that it is impossible to influence behavior after it has occurred." (Stinnette, at p. 806; People v. Guzman (1995) 40 Cal.App.4th 691, 695 ["The purpose of . . . section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing."].) Similarly here, retrospective application of the January 2010 version of section 4019 could have no impact on defendant's past behavior.
Since there is no " 'compelling implication that the Legislature intended otherwise'" (Alford, supra, 42 Cal.4th at p. 753), we conclude that the January 2010 version of section 4019 applies prospectively rather than retroactively.
2. Equal Protection
Defendant contends that prospective application of the January 2010 version of section 4019 violated his equal protection rights. We disagree.
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) " ' "The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." ' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments at issue here do not involve a "'" 'suspect classification'"'" or a "'" 'fundamental interest,'"'" courts apply the rational basis test to determine whether the "distinction drawn by the challenged statute bears some rational relationship to a conceivable legitimate state purpose." (Stinnette, supra, 94 Cal.App.3d at p. 805.) Here, as previously stated, the state has a legitimate purpose of encouraging good behavior by inmates. Since "it is impossible to influence behavior after it has occurred" (id. at p. 806), awarding additional conduct credit only as of the effective date of the statute was rationally related to a legitimate state interest. Applying the January 2010 version of section 4019 prospectively does not violate defendant's equal protection rights.
3. Calculation of Conduct Credit
The trial court calculated defendant's conduct credit at the rate established by the law in effect when he accrued the underlying custody credit. Conduct credit based on custody credit earned before January 25, 2010 was calculated under the 1982 version of section 4019, and conduct credit based on custody credit earned on and after January 25, 2010 was calculated under the January 2010 version. This method was entirely consistent with the unambiguous language of those versions of the statute.
" 'Under settled canons of statutory construction, . . . we ascertain the Legislature's intent . . . to effectuate the law's purpose. [Citation.]' " (People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1126.) " 'Because the language of a statute is generally the most reliable indicator of the Legislature's intent, we look first to the words of the statute, giving them their ordinary meaning and construing them in context. If the language is unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls. [Citations.]' " (People v. Anderson (2010) 50 Cal.4th 19, 29.)
The statutory language here makes it clear that an inmate earns conduct credit on an ongoing basis. The 1982 version of section 4019 provided that "for each six-day period in which a prisoner is confined . . . , one day shall be deducted from his or her period of confinement . . . unless . . . the prisoner has refused to satisfactorily perform labor as assigned . . . " and "[f]or each six-day period in which a prisoner is confined . . . , one day shall be deducted from his or her period of confinement . . . unless . . . the prisoner has not . . . complied with . . . reasonable rules and regulations . . . ." (Former § 4019, subds. (b)-(c), italics added.) In other words, the Legislature explained, "if all days [were] earned under this section, a term of six days [would] be deemed to have been served for every four days spent in actual custody." (Former § 4019, subd. (f), italics added.) The language of the January 2010 version of section 4019 is similar, speaking in terms of " each four-day period in which a prisoner is confined . . . ." (Former § 4019, subds. (b)(1) & (c)(1), italics added.) This language can only be interpreted to mean that as long as the inmate satisfies the prerequisites, another two days are, in effect, added to his or her "conduct credit account" for each four-day period under the 1982 version of section 4019 (or two-day period under the January 2010 version). (Former § 4019, subd. (f).) Credit is not earned, as defendant's argument suggests, at some future date. It may be tallied then, but it is earned contemporaneously. Thus, the court did not err in calculating the credit defendant earned before January 25, 2010 under the 1982 version of section 4019 and the credit he earned on and after January 25, 2010 under the January 2010 version of the statute.
The California Supreme Court has granted review in a case holding that a defendant sentenced after the effective date of the January 2010 version of section 4019 was entitled to have the amended statute applied to time served both before and after its effective date. (See People v. Zarate (2011) 192 Cal.App.4th 939, 943-944, review granted May 18, 2011, S191676.)
B. Calculation of Custody Credit
1. Case A
Defendant contends the court miscalculated his presentence custody credit. He points out that in Case A, the probation department calculated "69 days" between January 25 and April 8, 2010. Nobody questioned this calculation at sentencing, and the court accepted it.
In fact, there are 74 days between January 25 and April 8, 2010—five more than the court awarded. The miscalculation affected the court's (and defendant's trial counsel's) cumulative total, which should have been 224 days instead of "219" days— 114 before January 25, 2010 and 110 (not "105") after that date. The mistake was a purely mathematical one that we may correct on appeal notwithstanding defendant's failure to first raise the issue below. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) The abstract of judgment must be modified to reflect 224 (not "219") days of "actual" credit in Case A.
The correct cumulative total in the first case should have been calculated as follows: 97 days (between March 21 and June 25, 2009), plus 17 days (between January 8 and January 24, 2010), plus 74 days (between January 25 and April 8, 2010), plus 36 days (between June 23 and July 28, 2010) = 224 days.
It must also be modified to reflect the correct amount of conduct credit in Case A. The court awarded 56 days of conduct credit under the 1982 version of section 4019 and 104 days of conduct credit under the January 2010 version. The latter calculation was based on the miscalculated "69" actual days between January 25 and April 8, 2010. The court's calculation of conduct credit under the January 2010 version of section 4019 should have been based on 110 (not "105") actual days (74 between January 25 and April 8, 2010, plus 36 between June 23 and July 28, 2010). Defendant is entitled to six additional days of conduct credit in Case A.
114 actual days (97 between March 21 and June 25, 2009, plus 17 between January 8 and January 24, 2010) ÷ 4 = 28.5 (rounded down to 28) x 2 = 56. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14; see former § 4019, subd. (f).)
105 ÷ 2 = 52.5 (rounded down to 52) x 2 = 104. (Former § 4019, subd. (f).)
2. Case B
Defendant contends that in Case B, the probation department correctly counted 91 days between June 26 and September 23, 2009, but "the court reduced the amount of actual days to 68 days." Without further explanation or argument, he asserts that "[t]he full amount must be restored." We are not convinced that the court "reduced" defendant's actual time credit by 23 days.
Section 2900.5, subdivision (b) provides that when a defendant is sentenced consecutively, "[c]redit should be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." (§ 2900.5, subd. (b).) Defendant concedes that although he spent additional time (i.e., beyond 91 days) in custody in both cases simultaneously, "[h]e could receive presentence credit[] for only one case at a time . . . , because he was serving consecutive sentences." (Italics added.)
Applying this principle, the probation report explained that "[i]f sentenced consecutively, [defendant] would have the following combined total credit [in Case B]: 135 [d]ays (91 actual days plus 44 conduct/work credits)." Defendant's trial counsel, who interrupted the court as she was about to award custody and conduct credit in Case B, agreed with this calculation: "THE COURT: . . . [¶] . . . [¶] [I]n regards to [Case B], the Court imposes an additional eight months in prison. This is consecutive to [Case A]. [¶] Your credit[] for that -- [¶] [DEFENDANT'S TRIAL COUNSEL]: Would be 91 plus 44, for 135."
At this point, defendant chimed in, "I believe it's 136, Your Honor." The court awarded 136 days, which she explained "breaks down to 68 actual, 68 good time/work time." The court misspoke when (apparently reading from the wrong section of the probation report) she awarded 136 days broken down as "68 actual, 68 good time/work time." Defendant's trial counsel was correct. The judgment must be modified to reflect 91 (not "68") "actual," 44 "local conduct," and 135 (not "136") "total credits" in Case B.
The calculation is 91 actual days ÷ 4 = 22.75 (rounded down to 22) x 2 = 44 days.
C. Restitution Fines
Defendant contends the trial court lacked authority to double his restitution fine to $400 after revoking his probation in Case A. The restitution fine (§ 1202.4, subd. (b)) "should be reduced to $200," he argues. Additionally, since the restitution and parole revocation restitution fines must be the same, the latter should be $200, not $400. The Attorney General concedes these arguments and also notes that the $200 probation revocation restitution fine (§ 1202.44) that the court originally imposed but then suspended is now due.
We accept the Attorney General's concessions. The trial court did not have the authority to impose a second restitution fine in Case A because the restitution fine it imposed on June 25, 2009 survived the revocation of defendant's probation. (People v. Guiffre (2008) 167 Cal.App.4th 430, 434 (Guiffre).)Instead of imposing a second $200 restitution fine, the court should have lifted the stay on the $200 probation revocation restitution fine (§ 1204.44) that it originally imposed and then suspended. (Guiffre, at p. 435.) That fine became due when the court revoked defendant's probation. (Ibid.)
The court properly imposed a new parole revocation restitution fine (§ 1202.45) in Case A, but the amount was incorrect. The amount of the parole revocation restitution fine must match the amount of the restitution fine. (§ 1202.45.) The court should have imposed a $200 parole revocation restitution fine. (§ 1202.45; People v. Garcia (2006) 147 Cal.App.4th 913, 918.)
"[T]his court has the inherent power to correct the judgment to reflect what the law requires. [Citations.]" (Guiffre, supra, 167 Cal.App.4th at p. 435.) The judgment must be modified to correct the court's errors.
III. Disposition
The judgment is modified to reflect 224 "actual," 166 "local conduct," and 390 "total credits" in Case A, and 91 "actual," 44 "local conduct," and 135 "total credits" in Case B.
The judgment is further modified to reflect (1) that the $200 restitution fine originally imposed in Case A (§ 1202.4, subd. (b)) survived the revocation of defendant's probation, (2) that the $200 probation revocation fine the court originally imposed (§ 1202.44) is now due, and (3) that a new $200 parole revocation restitution fine (§ 1202.45) has been imposed but suspended.
The trial court shall prepare an amended abstract of judgment reflecting these modifications and forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
Mihara, J. I CONCUR: Lucas, J. I CONCUR IN THE JUDGMENT ONLY: Bamattre-Manoukian, Acting P. J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.