Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF063055, Donald E. Rudloff, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Gil Gonzalez and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
Following a court trial, defendant Sosant Singh Sidhu was found guilty as charged of driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subd. (a).) The court also found defendant had three misdemeanor DUI convictions within 10 years of his current offense on June 19, 2005 (Veh. Code, § 23540), making his current offense a felony (Veh. Code, § 23550). In addition, the court found defendant willfully refused to submit to a chemical test in order to determine his blood-alcohol content at the time of his current offense. (Veh. Code, §§ 23577, 23612.) Defendant was sentenced to the upper term of three years in prison. At the time of his sentencing in November 2009, defendant was 70 years old.
The court found, in a bifurcated court trial, that defendant had DUI convictions in 1995, 1998, and 2002.
Defendant appeals, raising two claims of evidentiary error. He first claims the trial court prejudicially erred in admitting the lay or expert opinion testimony of a sheriff’s deputy who testified that, while driving under the influence of alcohol on June 19, 2005, defendant caused a collision between his vehicle and another vehicle by failing to stop at a stop sign or yield the right-of-way. We conclude the deputy’s opinion concerning the cause of the collision was erroneously admitted, but harmless.
Defendant further claims the trial court prejudicially erred in admitting evidence that, during a subsequent DUI arrest on November 17, 2007, he refused again to submit to a chemical test to determine his blood-alcohol content. This evidence was admitted to show defendant “willfully” refused to submit to a chemical test during his prior DUI arrest on June 19, 2005. (Evid. Code, § 1101, subd. (b).) We conclude this evidence was also erroneously admitted, but was harmless, even when considered in combination with the deputy’s testimony concerning the cause of the collision.
Defendant also raises two claims of sentencing error. He claims the trial court abused its discretion in sentencing him to the upper term of three years, and he is entitled to additional good conduct credits pursuant to the 2009 amendments to Penal Code section 4019. We reject these claims and affirm the judgment in all respects.
II. FACTS AND PROCEDURAL HISTORY
A. Defendant’s June 2005 DUI Arrest
Around 9:45 p.m. on June 19, 2005, Riverside County Sheriff’s Deputy Michael Bianco responded to the scene of a traffic collision in the City of Coachella near the intersection of Highway 86 and Avenue 50. At the intersection, Highway 86 had two northbound lanes and two southbound lanes, separated by a 30-foot-wide median. A car approaching the intersection by traveling westbound on Avenue 50 was required to stop at two stop signs in order to cross Highway 86, one before crossing the northbound lanes and one on the median before crossing the southbound lanes. A car traveling on Highway 86 did not have to stop at the intersection.
After June 19, 2005, the stop signs on Avenue 50 were replaced with traffic lights.
When he arrived at the scene on his motorcycle, Deputy Bianco saw a white pickup truck, later determined to be defendant’s truck, south of the intersection on the west shoulder of Highway 86. The truck was upside down and on its roof. A maroon pickup truck was on the inside shoulder of Highway 86 south of the intersection, but it was right side up and facing south. The deputy later determined that the two trucks had been involved in a collision. Defendant was driving the white pickup truck, and Julia Hernandez was driving the maroon pickup truck. Hernandez’s husband and three children were with her. The driver of a third vehicle who witnessed the collision also stopped at the scene.
Deputy Bianco testified that, when he arrived at the scene, he first approached defendant, who was leaning against his truck, and asked him whether he was okay. Defendant told the deputy he was not injured, though he had a visible scrape on his head. Then, after checking on the Hernandez party, the deputy came back to defendant and asked him what had happened. Defendant said he was driving the white pickup truck westbound on Avenue 50. He stopped at the stop sign, looked for traffic and, seeing none, proceeded across the southbound lanes of Highway 86. There, his truck was hit and it rolled over. The deputy saw there was “impact damage” to the passenger side of defendant’s truck and “rollover damage” to the top portion of the hood. Though the truck was upside down when the deputy arrived, it was turned right side up before it was towed from the scene.
Deputy Bianco noticed that defendant had a “moderate odor” of alcohol on his breath, his eyes were watery and red, and he was “a little off balance.” Defendant told the deputy he drank two beers at a casino at lunch that day. He started drinking at “[n]oon, ” but did not recall when he stopped drinking. Because defendant’s speech was slurred, Deputy Bianco asked him whether he would submit to field sobriety tests (FSTs), and defendant agreed. Before he administered the FSTs, Deputy Bianco asked defendant whether he was on any medication or had any injuries that would make him appear to be intoxicated, and defendant answered “no” to both questions. The deputy also asked defendant whether he had bumped his head during the collision, and defendant said he had not.
It was dark outside, and Deputy Bianco used his flashlight in administering the FSTs. He first administered the horizontal gaze nystagmus test. Defendant was unable to “smoothly follow” a pen the deputy moved back and forth before his eyes, and he had “jerking of the eye[s]” when he looked to the extreme right and left. During the Romberg, or modified attention test, which requires a person to close their eyes and estimate when 30 seconds have passed, defendant swayed and stood for 45 seconds instead of 30 seconds. Then, during the one-leg-stand test, which requires a person to hold each leg several inches off the ground while counting to 30, defendant tried to lift each foot off the ground but could not do so and told the officer he could not do so. Finally, the deputy administered the walk-and-turn/heel-to-toe test, which requires a person to walk on an imaginary line for nine steps, placing one foot directly in front of the other, then walk back on the same line. Defendant walked the required nine steps, but took 11 steps while walking back and walked into the deputy’s motorcycle. He also fell off the imaginary line four or five times and did not once touch his heels to his toes.
After he administered the FSTs, Deputy Bianco placed defendant under arrest for being under the influence of alcohol. The deputy then informed defendant that he had an obligation under the implied consent law to submit to a chemical test in order to determine his blood-alcohol content, but defendant refused to submit to the chemical test. The deputy also asked defendant to submit to a breath test, but no breath test was administered. In accordance with the sheriff’s department policy, defendant was transported to “JFK Urgent Care” after the collision. He was at the hospital for 15 to 20 minutes, received an “okay to book, ” and was taken to jail.
At trial, Deputy Bianco opined that defendant was driving under the influence of alcohol. His opinion was based on his observations of defendant, defendant’s performance on the FSTs, and his training and experience, including his investigations of over 100 other DUI cases.
Hernandez testified she was driving south on Highway 86, north of the intersection with Avenue 50, around 9:00 p.m. on June 19, 2005. Her husband and three children with her, and they were on their way home from Los Angeles. It was dark, her headlights were on, and she was traveling about 65 miles per hour. When asked what happened during the collision, she replied, “Everything happened so fast.” She hit her brakes when she saw the taillights of the other truck, and the front of her truck hit the “rear” of the other truck. She spoke with a woman who was stopped at a stop sign who said she had called police. After the collision, Hernandez and her husband and children stayed with the woman and did not speak to defendant. From where she was standing, Hernandez could see the other truck, and it was turned over. Defendant came out of the truck through the passenger door, sat on top of it, and lit a cigarette.
Deputy Bianco further testified concerning how the accident occurred or “what had taken place in the collision.” He opined that defendant caused the accident when he failed to stop at the stop sign before crossing into the southbound lanes of Highway 86. His failure to stop caused Hernandez to hit the passenger side of his truck, which then rolled over.
B. Defendant’sNovember 2007 DUI Arrest
California Highway Patrol Officer Ramon Perez testified that around 7:00 p.m. on November 29, 2007, he was in his patrol car after completing a traffic stop on the southbound side of Highway 86 near the intersection of Avenue 50. Through his rearview mirror, he saw a pickup truck, driven by defendant, straddling the shoulder and southbound slow lane of Highway 86. The truck was traveling slowly, around 50 miles per hour in a 60-mile-per-hour zone. Officer Perez activated his lights and siren, and followed the truck for 1.6 miles. The truck did not yield until it pulled into the driveway of defendant’s home. Defendant “staggered” out of the truck, lit a cigarette, and was belligerent and swearing, using the “F” word many times.
After backup units arrived, Officer Perez ordered defendant to walk toward him and defendant did so. Defendant was staggering, had slurred speech, and a smell of alcohol on his breath. Officer Perez arrested defendant for evading an officer and DUI. After waiving his Miranda rights, defendant told the officer he had drank two beers at a casino, but he did not know when he had started or stopped drinking. Officer Perez then advised defendant of his duty to submit to either a blood or breath test under the implied consent law, and asked defendant to take a breath test. Defendant replied, “Fuck you guys.” Then, when asked whether he would take a blood test, defendant replied that he could not.
Miranda v. Arizona (1966) 384 U.S. 436.
C. Defense Evidence
Defendant testified in his own defense. He was a mechanic and had a shop off Avenue 50, west of Highway 86. At the time of the collision on June 19, 2005, he was driving his brother’s white pickup truck. Around noon that day, he went to Fantasy Springs Casino, an approximate 10-minute drive from his shop, to eat lunch. For lunch, he had a cheeseburger and drank two beers. After lunch, defendant drove back to his shop and continued working. Later that day, defendant’s employee, who was deceased at the time of trial, drove defendant’s brother’s white pickup truck to a Jack in the Box restaurant and called defendant from the restaurant when the truck would not start. One of defendant’s customers gave defendant a ride to the Jack in the Box. Then the customer took defendant’s employee home while defendant stayed at the restaurant and fixed his brother’s white truck.
Defendant then headed home in the truck, driving south on Highway 86. When he slowed to turn west on Avenue 50, he was rear-ended. The truck flipped upside down, then flipped right side up. He could not get out because the doors were jammed; someone broke the rear window and he crawled out. He could not “stand up straight” because his head, neck, and back were injured. He also believed his dentures were impacted during the collision because his jaw hurt. After an officer told him he smelled like he had been drinking, he told the officer he had had two beers during lunch. He did not drink any other alcoholic beverages that day. He could not do some of the FSTs because his back hurt, but he tried to do the tests because he believed he had to do what the officer told him. The officer never asked him to submit to a breath test, and when he was asked to submit to a blood-alcohol test, he told the officer he could not because he excessively bleeds when he is cut.
On cross-examination, the prosecutor asked defendant about a 2002 DUI conviction for which he was on probation in June 2005. Defendant did not recall whether he was told he had to submit to a chemical test when he pled guilty to the 2002 DUI charge. He said he doubted the signature on the plea form was his, but he also said “[i]t could be” his signature.
The truck defendant was driving at the time of the June 19, 2005, collision was not repaired. It was towed to defendant’s shop and taken to salvage when the city later closed his shop. He took photographs of the truck two or three years after the collision, and the photographs were admitted into evidence. They showed damage to the roof, the rear of the truck, and the broken rear window, but they did not show any damage to the sides of the truck.
The defense also called Deputy Bianco to testify. The deputy acknowledged the license plate number of the truck shown in defendant’s photographs was the same as the license plate number of the truck defendant was driving when he was arrested on June 19, 2005. Still, the deputy testified that, in his opinion, the truck shown in defendant’s photographs was not the truck involved in the June 19, 2005, collision. The truck shown in defendant’s photographs did not have “rollover damage, ” such as damaged side mirrors, the “A pillar” was not bent, and it was not struck at 65 miles per hour. Also, though the truck shown in defendant’s photographs had rear-end damage, the rear license plate was not damaged. The deputy believed the damage to the roof of the truck shown in defendant’s photographs occurred when something was dropped on it.
III. DISCUSSION
A. Deputy Bianco’s Testimony That Defendant Caused the Collision Was Erroneously Admitted, But Harmless
Defendant claims the trial court prejudicially erred in admitting Deputy Bianco’s lay or expert opinion testimony that defendant caused the collision between his truck and Hernandez’s truck, because defendant failed to yield the right-of-way before crossing Highway 86 and while traveling westbound on Avenue 50. He argues the deputy was not competent to testify to the cause of the collision as a nonexpert and, even if he testified as an expert witness, his opinion concerning the cause of the collision was nonetheless inadmissible because it was based solely on the statements of others, including defendant and Hernandez, and not on any physical evidence at the scene.
We agree that under Evidence Code section 800, Deputy Bianco’s testimony that defendant failed to yield the right-of-way was not a proper lay opinion. (See People v. Melton (1988) 44 Cal.3d 713, 744 [lay opinion admissible where “‘helpful to a clear understanding’” of the lay witness’s testimony, that is, “where the concrete observations on which the opinion is based cannot otherwise be conveyed.”].) We also agree the opinion was inadmissible as an expert opinion. As defendant points out, the deputy based his opinion solely on the statements of others, namely, defendant, Hernandez, and the other witness who stopped at the scene. Any expertise the deputy may have had concerning accident reconstruction and causation was not implicated as a basis for his opinion. Instead, the deputy’s opinion was based entirely on what others told him, and it was not based on anything beyond common knowledge or a common understanding of what the witnesses told the deputy. As such, the deputy’s opinion was of no assistance to the trier of fact. (People v. McDonald (1984) 37 Cal.3d 351, 367 [expert opinion improper when it does not assist trier of fact], overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
Even though the deputy’s opinion that defendant caused the collision was erroneously admitted, it is not reasonably probable its admission affected the court’s verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) In finding defendant guilty of driving under the influence, the court explained that, though the question whether defendant caused the collision was probative of whether he was driving under the influence, the issue was not whether defendant caused the collision. Rather, the question was whether defendant was driving under the influence. On that question, the court plainly credited the testimony of Deputy Bianco that defendant was driving under the influence, but gave little to no weight to the deputy’s opinion that defendant caused the collision.
In rendering its verdict, the court pointed out that Deputy Bianco had investigated at least 100 DUIs, some resulting in arrests and some not resulting in arrests. According to the deputy, defendant’s eyes were watery, his speech was slurred, and he performed poorly on the FSTs. The court indicated it did not believe defendant’s claim he had had only two beers some nine hours before the collision, given the symptoms he exhibited shortly after the collision. And the court expressly rejected defendant’s claim that the scrape on his head or his other injuries explained his failure to perform well on the FSTs, noting that defendant was taken to a hospital “for an okay to book” and, thereafter, was promptly transported to jail.
Regarding the collision, the court noted that Hernandez testified she was driving south on Highway 86 when something “flashed in front of her from her left to her right, ” and she struck the truck defendant was driving. The court said Hernandez’s view of how the collision occurred was “the most rational” as opposed to defendant’s view that Hernandez rear-ended him while he was turning west onto Avenue 50 from Highway 86. Still, the court said it was “not drawing any conclusions” concerning how the collision occurred or whether the truck shown in defendant’s photographs was the truck involved in the collision. To be sure, the court said it was “not really clear as to how the accident occurred, ” and this issue was “[t]o some extent” irrelevant to whether defendant was driving under the influence.
The court’s comments in rendering its verdict show it placed little to no weight on Deputy Bianco’s testimony that defendant caused the collision. As discussed, in rendering its verdict the court did not even mention the deputy’s testimony concerning how the collision occurred, but instead focused almost exclusively on the evidence that defendant was exhibiting symptoms of driving under the influence shortly after the collision occurred. Thus, there is no reasonable probability that the deputy’s testimony concerning how the collision occurred affected the court’s verdict on the DUI charge.
B. The Evidence Concerning Defendant’s Arrest and Refusal to Submit to a Chemical Test in November 2007 Was Also Erroneously Admitted, But Harmless
As discussed, the prosecution presented evidence through the testimony of Officer Perez that, in November 2007, defendant was again arrested for DUI and again refused to submit to a chemical test in order to determine his blood-alcohol content-after being advised of his obligation to submit to the test. The evidence of defendant’s conduct at the time of his November 2007 DUI arrest was offered to prove he “willfully” refused to submit to a chemical test more than two years earlier, in June 2005, as alleged in the “refusal enhancement” allegation. (Veh. Code, §§ 23577, 23612.) More specifically, the evidence of defendant’s conduct at the time of his November 2007 arrest was offered to show he had a similar “modus operandi, motive, intent, knowledge, and absence of mistake” when he drove under the influence of alcohol and refused to submit to a chemical test two years earlier in June 2005. (Evid. Code, § 1101, subd. (b).)
Evidence of uncharged crimes or misconduct is, of course, inadmissible if its only relevance is to show the defendant’s “conduct on a specified occasion” or “predisposition to criminality.” (Evid. Code, § 1101, subd. (a); People v. Roldan (2005) 35 Cal.4th 646, 705, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Such evidence is admissible, however, when relevant to prove some fact in issue, such as motive, intent, knowledge, identity, or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Lindberg (2008) 45 Cal.4th 1, 22.) Still, the evidence, even if relevant, may be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability its admission would create “‘substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’” (People v. Lindberg, supra, at pp. 22-23; Evid. Code, § 352.)
Defendant claims the admission of his conduct and statements at the time of his November 2007 DUI arrest violated Evidence Code sections 1101, subdivision (a) and 352. He argues the evidence was not probative of whether he “willfully” refused to submit to the chemical test two years earlier in June 2005, and was unduly prejudicial. Though he concedes there “might be an inference” from his June 2005 DUI arrest that he knew, two years later in November 2007, that he was required to submit to a chemical test upon being arrested for DUI, he argues, “the opposite is not true. One simply cannot infer present knowledge of a duty to do an act based on knowledge acquired at some later time, here, two years in the future.”
We fail to see how the evidence that defendant refused to undergo chemical testing in November 2007 was sufficiently probative of whether he willfully refused to undergo the same testing two years earlier to warrant its admission. In order to prove the truth of the refusal enhancement allegation, the prosecution had to prove, among other things, that defendant “willfully” refused to submit to a chemical test or breath test at the time of his arrest in June 2005. (Veh. Code, §§ 23577, 23612; Judicial Council of Cal. Crim. Jury Instns., CALCRIM No. 2131.) More specifically, the prosecution had to prove that defendant refused to submit to a chemical or breath test in June 2005, despite his knowledge, at that time, that he had an obligation under the implied consent law to submit to one test or the other.
Thus, in this context, defendant’s willfulness was akin to his intent. And, in order to be admissible to prove his intent in June 2005, defendant’s conduct in November 2007 had to be “sufficiently similar” to his June 2005 conduct to support an inference he “probably acted with the same intent in each instance.” (People v. Lindberg, supra, 45 Cal.4th at p. 23; People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 [“‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’”].) Though defendant’s conduct on both occasions was remarkably similar-on both occasions, he told the arresting officers he had had two beers with his lunch at a casino several hours earlier and he was exhibiting symptoms of intoxication-it was not sufficiently similar to show he knew, in June 2005, that he was obliged to submit to a chemical or breath test but nevertheless refused to submit to either test.
Nevertheless, the admission of the November 2007 evidence was harmless. (People v. Cole (2004) 33 Cal.4th 1158, 1195 [erroneous admission of evidence under Evidence Code section 1101, subdivision (b) is reviewed under the People v. Watson, supra, 46 Cal.2d 818 standard].) Defendant’s willful refusal to submit to the chemical test in June 2005 was amply demonstrated by Deputy Bianco’s testimony that he advised defendant of his obligation to submit to the test but defendant still refused to take it. And in rendering its decision, the court said it was “sure” the deputy “went through the litany of questions and required admonishment with regard to the chemical testing.” The court also said: “If the defendant is, in fact, a bleeder, then he would have a justifiable interest in not providing blood. But the alternative is always available; that is the Breathalyzer. The record reflects that [defendant] was on probation for driving under the influence [in June 2005].” The court also said it found defendant’s claim he was unaware of the testing requirement in June 2005 “less than credible.”
C. No Cumulative Error
Defendant claims Officer Perez’s testimony concerning the circumstances of his November 2007 arrest, in combination with Deputy Bianco’s opinion that he caused the June 2005 collision, was cumulatively prejudicial. (People v. Hill (1998) 17 Cal.4th 800, 844-845.) He also claims he would not have testified had the evidence not been admitted, and it was the credibility of his testimony, or lack thereof, that “ultimately doomed his fate.” We disagree.
As discussed, the court did not mention Deputy Bianco’s opinion that defendant caused the collision in explaining its reasons for finding defendant guilty of driving under the influence in June 2005. Instead, the court based its verdict on Deputy Bianco’s opinion that defendant was driving under the influence, the symptoms of driving under the influence that defendant exhibited shortly after the collision in June 2005, and defendant’s poor performance on the FSTs. In addition, the court’s true finding on the refusal enhancement was amply supported by Deputy Bianco’s testimony that he specifically advised defendant of his obligation under the implied consent law to submit to testing. All of this evidence was admitted in the prosecution’s case-in-chief, and all of this evidence would have been admitted even if Officer Perez’s and Deputy Bianco’s complained-of testimony had not been admitted, and even if defendant had not testified. Thus, there is no reasonable probability defendant would have realized a more favorable result had none of the complained-of testimony had been admitted or had defendant not testified.
D. The Upper Term of Three Years Was Properly Imposed
Defendant claims the trial court abused its discretion in imposing the upper term of three years on his current DUI conviction, because the “single” aggravating factor the court relied upon in selecting the upper term, namely, the “seriousness of the offense, ” rested solely on inadmissible evidence, namely, Deputy Bianco’s opinion that defendant caused the June 2005 collision and Officer Perez’s testimony concerning defendant’s November 2007 DUI arrest. Not so.
In imposing the upper term, the court said it was relying solely on “the seriousness of the offense” in order to avoid a dual use problem. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c), (d).) In relying on the seriousness of the offense, the court was effectively relying on California Rules of Court, rule 4.421(a)(1), which allows the upper term to be imposed when the offense involved a “threat of great bodily harm.” Defendant’s June 2005 DUI offense certainly involved the threat of great bodily harm. Though no one was killed or injured in the collision between defendant’s truck and Hernandez’s truck, someone certainly could have been killed or seriously injured, as the court repeatedly pointed out.
Contrary to defendant’s argument, this aggravating factor was to no extent dependent upon Deputy Bianco’s opinion that defendant caused the collision. Nor was it to any extent dependent upon Officer Perez’s testimony concerning defendant’s November 2007 DUI arrest. To be sure, the evidence that defendant caused the collision was amply demonstrated by Hernandez’s testimony, and Officer Perez’s testimony had nothing to do with defendant’s current DUI offense.
Finally, though the court did not rely on how the collision occurred or who caused it in finding defendant guilty of his current DUI offense, this does not mean the court did not properly rely on Hernandez’s testimony that defendant caused the collision in imposing the upper term. Hernandez’s testimony amply supported a finding, beyond a reasonable doubt, that defendant caused the collision (People v. Sandoval (2007) 41 Cal.4th 825, 839 [upper term may be imposed based on a single aggravating factor if proved beyond a reasonable doubt].) In addition, the evidence showed that defendant exhibited symptoms of being under the influence of alcohol to an excessive degree immediately following the collision.
E. Defendant is Not Entitled to Additional Good Behavior Credits Because the 2009 Amendment to Penal Code Section 4019 Does Not Apply Retroactively
Lastly, defendant claims he is entitled to additional good behavior credits because the October 2009 amendment to Penal Code section 4019, which became effective January 25, 2010, and provides for additional good behavior credits (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.) § 50), applies retroactively to his November 9, 2009, sentence, which was not final on January 25, 2010 (In re Estrada (1965) 63 Cal.2d 740, 745). We disagree.
Defendant was awarded 118 days of work time credit plus 58 days of good conduct credit, for a total of 176 days of custody credit. On this appeal, he argues he is entitled to 60 additional good conduct credits.
Penal Code section 4019 sets forth the formula for calculating good behavior credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.) An October 2009 amendment to the statute provides for more good behavior credits than were available under the former statute. (Sen. Bill No. 18, supra, § 50.) “A new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.” (People v. Ledesma (2006) 39 Cal.4th 641, 664.) The California Supreme Court has held, however, that, “where the amendatory statute mitigates punishment and there is no saving clause, ... the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada, supra, 63 Cal.2d at p. 748.)
Whether the amendment was intended to apply retroactively to convictions not final as of January 25, 2010, is presently pending before our state Supreme Court, and the appellate courts have split on the question. (E.g., People v. Keating (2010) 185 Cal.App.4th 364, 382-391, review granted Sept. 22, 2010, S184354 [amendment retroactive]; People v. Otubuah (2010) 184 Cal.App.4th 422, 436 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314 [amendment prospective only].)
We conclude the amendments to Penal Code section 4019 are prospective only. First, the amendments do not inevitably result in a reduction of a prisoner’s punishment. The statute affects credits only, not the actual sentence. Second, another portion of the statute, affecting a different Penal Code section (Pen. Code, § 2933.3, subd. (d)), was expressly made retroactive, but the Legislature failed to make a similar provision as to the amendment to Penal Code section 4019. (Legis. Counsel’s Dig., Sen. Bill No. 18 (2009-2010 3rd Ex. Sess.) ch. 28, § 41.) Third, the statute’s purpose is to motivate good conduct among prisoners, to maintain discipline, and minimize threats to prison personnel. (People v. Silva (2003) 114 Cal.App.4th 122, 127-128.) “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.) In such circumstances, where the purpose is to influence behavior and not necessarily to reduce punishment, the prospective-only operation of the statute is reasonably related to a legitimate public purpose, and does not violate equal protection if applied to some prisoners (to whom it applies currently) but not others (whose past conduct is already completed).
Also, the amending bill was a fiscal emergency enactment. (Legis. Counsel’s Dig., Sen. Bill No. 18, supra, ch. 28, § 62.) Although awarding more conduct credits has the effect of saving money by releasing prisoners earlier, it is nevertheless true that the Legislature did not answer fiscal concerns by directly enacting early releases. Rather, it simply provided that some prisoners would have the opportunity to increase the rate at which they accrued conduct credits. The Legislature’s concerns in enacting the bill were comprehensive, and did not manifest an intent to retroactively reduce prison sentences. In sum, the presumption of prospective application has not been rebutted in this case. Consequently, defendant is not entitled to additional good conduct credits via the amended formula.
IV. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., McKinster J.