Opinion
E051298 Super.Ct.No. FSB904542
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS SMITH, Defendant and Appellant.
Donna L. Harris, 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 Ratner Sobeck, Meredith S. White and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Affirmed as modified.
Donna L. Harris, 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 Ratner Sobeck, Meredith S. White and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant's sole contention on appeal was that he was entitled to have all of his conduct credits calculated under the January 25, 2010 version of Penal Code section 4019. We agree but correct the erroneous inclusion of postsentencing local custody time in the calculation of defendant's custody credits. At oral argument, defendant raised a new theory and claimed he was retroactively entitled to conduct credits under section 2933. We reject this tardy contention.
Undesignated statutory references are to the Penal Code.
BACKGROUND
On November 9, 2009, defendant and appellant Thomas Smith pled guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and admitted a prison prior (Pen. Code, § 667.5, subd. (b)). Pursuant to a plea agreement, defendant was placed on probation.
On December 3, 2009, defendant failed to appear for a review hearing; probation was revoked and a bench warrant was issued. On January 6, 2010, defendant was reinstated on probation.
An amendment to section 4019 became effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.)
On June 9, 2010, defendant admitted he violated the terms of his probation. The trial court sentenced him to the midterm of two years for the possession count and added an additional one year for the prison prior enhancement. Thus, defendant was sentenced to state prison for a total of three years. Defendant requested he be remanded forthwith and authorized counsel to appear without him at a hearing regarding his custody credits. The trial court remanded defendant to the sheriff "for immediate delivery to the Department of Corrections forthwith as [defendant] requested." The trial court also informed defendant that he might be held in local custody "to allow the probation department to prepare a summary report under Penal Code 1203(c)" but, otherwise, he was to be remanded for immediate delivery. Defendant remained in local custody until June 24, 2010.
On June 25, 2010, a separate hearing was held to determine defendant's presentence custody credits. Over the objection of defendant's trial counsel, the trial court awarded conduct credit by granting credit for the 47 days defendant spent in local custody prior to the January 25, 2010 amendment to section 4019, and credit for the 35 days defendant spent in local custody after the amendment. The 35 postamendment days in custody included the 15 days after defendant had been sentenced but remained in local custody. However, the trial court awarded credit for 82 actual days, including the 15 postsentencing days, and 58 days of section 4019 credit.
DISCUSSION
1. Background
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Prior to January 25, 2010, section 4019 provided for "two days [of conduct credit] for every four days the defendant is in actual presentence custody." (Duff, at p. 793.) The January 25, 2010 amendment provided for the granting of two days of conduct credit for every two days of presentence custody. (Former § 4019, subd. (f).) On September 28, 2010, during the pendency of this appeal, amendments to sections 4019 and 2933 became operative; section 4019 was restored to the earlier ratio that provided two days of conduct credit for every four days of presentence custody. (Stats. 2010, ch. 426 §§ 2, 5.)
The amendment's increase does not apply "[i]f the prisoner is required to register as a sex offender . . . was committed for a serious felony . . . or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5." (Former § 4019, subds. (b)(2) & (c)(2).)
Former section 2933, subdivision (e), provided credit for time spent in local custody after the date a defendant was sentenced to prison. After the September 28, 2010 amendment, subdivision (e) provided: "Notwithstanding Section 4019 . . . a prisoner sentenced to the state prison . . . for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits . . . are applicable to the prisoner." (Former § 2933, subd. (e)(1).) It also provided that such credit may not be received "if it appears by the record that the prisoner has refused to satisfactorily perform labor . . . or has not satisfactorily complied with the reasonable rules and regulations." (Former § 2933, subd. (e)(2).) Lastly, "Section 4019, and not this subdivision, shall apply" for sex offenders, those committed for a serious felony, and those with a prior conviction for a serious or violent felony. (Former § 2933, subd. (e)(3).)
2. Section 4019
Defendant contends (1) that the January 25, 2010 amendment of section 4019 should apply retroactively, and (2) because the January 25, 2010 amendment was operative on the date of his sentencing, all of his credits should have been calculated under that version section 4019. The People contend credits are calculated at sentencing but are earned over the course of the time in custody, that a bifurcated calculation "is consistent with the legislative intent behind section 4019 and comports with the requirements of section 2900.5," and that a contrary interpretation would create equal protection violations. The People also contend that the amendment of section 4019 does not apply retroactively. We hold that, because defendant was sentenced after the January 25, 2010 amendment section 4019 became operative, the entirety of his section 4019 credits should have been calculated under that version section 4019. Accordingly, we do not address the retroactivity of the January 25, 2010 amendment.
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [Citations.] Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere . . . 'prior to the imposition of sentence' may also be eligible for good behavior credits . . . . '[T]he court imposing a sentence' has responsibility to calculate the exact number of days the defendant has been in custody 'prior to sentencing,' add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) This responsibility is to be performed "[a]t the time of sentencing." (Cal. Rules of Court, rule 4.310.) "[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors. [Citation.]" (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler))
Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available " ' "all or nothing." ' " (People v. Johnson (1981) 120 Cal.App.3d 808, 813-814 (Johnson).) Instead, they are "credited to the defendant's term of imprisonment 'in the discretion of the court imposing the sentence.' [Citation.] It is the duty of the sentencing court to determine 'the total number of days to be credited . . .' for presentence custody. [Citations.] [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations. [Citations.] The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits. [Citation.]" (Duesler, supra, 203 Cal.App.3d at p. 276.) "If the record fails to show that defendant is not entitled to such credits . . . he shall be granted them." (Johnson, at p. 815.) Thus, section 4019 credits are either withheld or granted at sentencing. It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.
Section 4019, as operative at defendant's sentencing, contains no provision for a two-tiered division of presentence custody credits. Thus, the trial court's discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because "the record fails to show that defendant is not entitled [to conduct credits], he shall be granted them" (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.
We reject the People's contention that applying the January 25, 2010 version of section 4019 to all presentence custody defeats the purpose of conduct credits or creates equal protection violations. Underlying the People's contentions are the premises that a defendant sentenced on January 26, 2010, could not have had their behavior in custody influenced by the availability of increased conduct credits, and would receive more credits than an eligible defendant sentenced on January 24, 2010. However, regardless of whether a defendant was sentenced before or after the amendment became operative, section 4019 served its purpose of rewarding good behavior; defendants sentenced after the amendment became effective merely had an increased reward. Furthermore, the purported equal protection violation is temporal and the distinction is thus rational as "'[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 189-191 [" 'punishment-lessening statutes given prospective application do not violate equal protection' "]; cf. People v. Sage (1980) 26 Cal.3d 498, 507 [no rational basis, and no compelling state interest, justifying the distinction in awarding conduct credits to detainees sentenced to jail and denying conduct credits to detainees sentenced to prison].)
3. Section 2933
Prior to oral argument, defendant's counsel submitted a letter stating additional authorities that she intended to rely upon at oral argument. At oral argument, defendant's counsel contended that the September 28, 2010 amendment of section 2933 should apply retroactively. Defendant based his claim both on equal protection grounds, as well as on the interpretive rule of In re Estrada (1965) 63 Cal.2d 740. The People did not assert any prejudice from the raising of the tardy contention, declined to offer any argument on the point, and chose to rely upon our familiarity with their position as to how the recent wave of amendments to the conduct credit scheme should be interpreted. "[I]n the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim," (People v. Norman (2003) 109 Cal.App.4th 221, 230) we shall address the merits of defendant's claim and hold that the September 28, 2010 amendment of section 2933 does not apply retroactively.
The issue of the retroactivity of recent amendments to the custody credit scheme has split our sister Courts of Appeal and is pending review in our Supreme Court; the bulk of the cases pending review concern the analytically analogous—as to both equal protection and the applicability of Estrada—January 25, 2010 amendment of section 4019, but our Supreme Court has also granted review in cases applying section 2933.As our Supreme Court will have the last word on this subject, we discuss the issue only summarily.
See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [lead § 4109 case]; In re Kemp (2011) 192 Cal.App.4th 252, review granted April 13, 2011, S191112 [§ 2933 retroactive based on reasons used by same court as to § 4019].
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The amendment to section 2933 did not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (Stats. 2010, ch. 426 § 1.) However, as an amendment to the Penal Code, the amendment of section 2933 " 'is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford(2007) 42 Cal.4th 749, 753; see also § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"]; In re E.J. (2010) 47 Cal.4th 1258, 1272 [" '[S]ection 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted "unless express language or clear and unavoidable implication negatives the presumption." [Citation.]' [Citation.] '[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' "].) Neither the bill that amended section 2933 nor its legislative history contains such a clear and unavoidable implication.
We recognize that, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (In re Estrada, supra, 63 Cal.2d at p. 748.) However, presentence conduct credits are not a mitigation of punishment. They are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.)
As indicated above, we also reject the notion that applying conduct credit increases prospectively violates equal protection.
4. Calculation of Credits
Although not raised by the parties, we note that defendant was sentenced on June 9, 2010, but the trial court awarded defendant custody and conduct credits until his local custody ended on June 24, 2010. The trial court was responsible for determining custody credits for the period prior to sentencing; the Department of Corrections and Rehabilitation is responsible for determining any credits for the period between the date of sentencing and the date of delivery. (§ 2900.5, subds. (d)-(e).) Thus, defendant's custody credits should only have been for the period up to his sentencing on June 9, 2010. On June 9, 2010, defendant had only 67 days of actual presentence local custody.
Because there was no showing that defendant was not entitled to conduct credits, he was entitled to 67 days of actual custody credit and 66 days of section 4019 conduct credit. (See In re Marquez (2003) 30 Cal.4th 14, 25-26 [stating preamendment formula for calculating conduct credits].)
DISPOSITION
The judgment is modified so that defendant has presentence credit for time served of 133 days, consisting of 67 days of actual custody and 66 days of section 4019 conduct credit. The superior court clerk is directed to reflect the modification in a new minute order and an amended abstract of judgment, and then forward certified copies of those documents to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.