Opinion
C066671
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. BRIAN CHARLES SULLIVAN, Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 08F1524, 08F4503, 08F8085, 08F8938)
On December 5, 2008, the trial court sentenced defendant Brian Charles Sullivan to an aggregate state prison term of seven years, based upon his no contest pleas to possession of a controlled substance, forgery, four counts of commercial burglary, and receiving stolen property, charges that were the subject of four separate criminal cases. The court granted him 74 days of custody credit and 36 days of conduct credit under the formula in existence at the time of sentencing.
On our own motion (Evid. Code, §§ 452, 459), we take judicial notice of this court's record in People v. Sullivan (Aug. 10, 2009, C061022) (nonpub. opn.).
That formula was to divide the actual number of days served by four, truncate any remainder, and multiply the quotient by two. (See People v. Smith (1989) 211 Cal.App.3d 523, 527.)
Counsel was appointed to represent defendant on appeal. Appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436), declaring that he had found no arguable issues. We agreed with counsel's concession and affirmed the judgment on August 10, 2009. Our remittitur issued on October 15, 2009.
Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18, (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50), which amended Penal Code section 4019 (the new amendment) to provide two days of conduct credit for every two days actually served in presentence custody to a class of prisoners (eligible prisoners) deemed safe for early release from prison. This class consists of prisoners who were neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies.
Undesignated statutory references are to the Penal Code.
Defendant, an eligible prisoner under the new amendment, filed a motion in superior court to modify his sentence and award him additional conduct credits, claiming that retroactive application of the new amendment was required under equal protection principles. The trial court denied relief, concluding the new amendment did not apply to judgments that became final prior to January 25, 2010.
"Section 1170, subdivision (d) does not confer standing on a defendant to initiate a motion to recall a sentence. Instead, that section permits a court to recall a sentence 'on its own motion.'" (People v. Pritchett (1993) 20 Cal.App.4th 190, 193.) Hence, defendant's "motion" is legally nothing more than a request for the court to initiate a recall of his sentence.
Defendant appeals the denial of this motion (§ 1237, subd. (b)), renewing his argument. The People respond that (1) defendant has not rebutted the presumption that statutes are not accorded retroactive application; (2) equal protection was not violated because a rational basis exists for treating classes of prisoners differently; and (3) retroactive application of the new amendment to final judgments would violate the separation of powers doctrine.
Resolution of the issue is currently pending before the California Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; In re Kemp (2011) 192 Cal.App.4th 252, review granted Apr. 13, 2011, S191112.)
While we await further guidance from the Supreme Court we shall conclude, contrary to the People's arguments, that the new amendment is retroactive to all eligible prisoners irrespective of the date their judgments became final. We shall therefore order correction of defendant's sentence.
DISCUSSION
I. Presumption Against Retroactivity
Relying on section 3, which states that no part of the Penal Code is retroactive "unless expressly so declared," the People assert that, absent a contrary expression of legislative intent, the new amendment can apply only prospectively.
However, in In re Estrada (1965) 63 Cal.2d 740, the California Supreme Court created an exception to section 3 for statutory amendments that reduce punishment for a particular crime. According to the Estrada court: "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." (Id. at p. 745.)
The People respond that the new amendment was designed to encourage good behavior while in prison, not to lessen punishment. Since it is impossible to influence behavior after it has occurred (see In re Stinnette (1979) 94 Cal.App.3d 800, 806), they claim the rationale of Estrada is absent.
This argument fails to comport with the Legislature's stated purpose in enacting the amendment, which is controlling in discerning legislative intent. (People v. Butler (1996) 43 Cal.App.4th 1224, 1234.) The purpose of the new amendment, as expressly stated in Senate Bill No. 3X 18, was to aid the state in addressing the "fiscal emergency" declared by the Governor in December 2008, not to encourage good behavior as asserted by the People. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) The new amendment accomplishes this fiscal purpose by identifying a class of prisoners deemed safe for early release and increasing the rate at which they earn presentence conduct credits, thereby reducing the cost of their incarceration. Accordingly, the amendment is a punishment-lessening statute, and the rationale of Estrada still applies. (See People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [applying Estrada to amendment involving conduct credits].)
II. Equal Protection
"The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in similar fashion." (People v. Leng (1999) 71 Cal.App.4th 1, 11.) We ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) If groups are similarly situated but treated differently, the state must then provide a rational justification for the disparity. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.)
Dividing the class of eligible prisoners into two groups based on the date their judgments became final bears no rational relationship to either their dangerousness or their cost of incarceration (see In re Kapperman (1974) 11 Cal.3d 542, 544-550 [finality of judgment does not constitute rational basis for disparate treatment between groups of prisoners equally situated]), nor can we discern any principled basis for discriminating between the two classes. Consequently, principles of equal protection require that the new amendment be applied to all eligible prisoners, regardless of when their judgments became final. (Cf. People v. Sage (1980) 26 Cal.3d 498, 508-509 (Sage) [no rational basis to treat detainee/felons different from detainee/misdemeanants for purposes of awarding conduct credits].)
As indicated previously, the rationale of encouraging good behavior while in prison cannot be used, since it is contrary to the Legislature's stated purpose in passing the amendment.
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III. Separation of Powers
Nor does retroactive application of the new amendment to prisoners whose judgments were final prior to its effective date violate the separation of powers doctrine by interfering with judgments already final, as urged by the People. The awarding of additional conduct credits is a routine ministerial act, and does not constitute either resentencing or a material interference with a judgment previously imposed. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 117-118; Sage, supra, 26 Cal.3d at pp. 508-509; In re Kapperman, supra, 11 Cal.3d at pp. 548-550.)
IV. Calculation
The trial court awarded defendant 74 days of presentence credit for time actually served and 36 days of conduct credit. Under the new amendment to section 4019, defendant is entitled to conduct credit equal to the amount of presentence custody credit. Because defendant served 74 days of presentence custody, he is entitled to 74 days of conduct credit as well. The judgment must be modified to award him an additional 38 days of conduct credit.
DISPOSITION
The judgment is modified to reflect an additional 38 days of conduct credits. As modified, it is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting that defendant is entitled to 74 days of actual custody credit plus 74 days of conduct credit, for a total of 148 days of presentence credit. The court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
BUTZ, J. We concur:
HULL, Acting P. J.
MURRAY, J.