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People v. Sutton

California Court of Appeals, Second District, Second Division
Feb 3, 2011
No. B220851 (Cal. Ct. App. Feb. 3, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA356337, Anne H. Egerton, Judge.

Law Offices of James Koester and 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, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.


CHAVEZ, J.

Sean Lamont Sutton appeals from the judgment entered upon his conviction by jury of battery by gassing (Pen. Code, § 243.9). The trial court sentenced defendant to the midterm of three years in state prison. The trial court awarded him presentence credits of 229 days custody credits and 114 days conduct credits. Defendant contends that his presentence conduct credits must be corrected to comply with the 2010 amendment to section 4019.

All further statutory references are to the Penal Code unless otherwise indicated.

We modify defendant’s presentence credits and otherwise affirm.

FACTS

Because the issue raised is not dependent on the underlying facts, we present only a cursory summary of those facts.

On April 16, 2009, at approximately 9:40 a.m., defendant, an inmate at the Twin Towers facility, in the Los Angeles County Jail system, was waiting to be seen at the infirmary. When given a sack lunch by one of the custody assistants, appellant mumbled that the lunch “suck[ed]” and threw it at one of the assistants, but did not hit her. The custody assistant called for a supervisor. When the supervisor arrived, staff members attempted to restrain defendant, who was being “verbally assaultive.” As one of the deputies was turning appellant around to face him, appellant spat in the deputy’s face.

DISCUSSION

The offense charged in this matter was committed in 2009. Defendant was convicted by jury and sentenced later that same year. On January 25, 2010, while this matter was pending on appeal, section 4019 (Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18)) was amended to increase the presentence conduct credits to which a defendant is entitled. The amended statute contains no express statement making it retroactive nor does it contain a saving clause.

Defendant contends that he is entitled to the additional conduct credits provided in amended section 4019. He argues that the amendment applies retroactively to all cases not yet final as of January 25, 2010, when the new statute became effective. Absent a savings clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal. We agree.

Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are collectively called “‘[c]onduct credit.’” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

When defendant was sentenced, former section 4019 provided that he could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) Effective January 25, 2010, while this matter was pending on appeal, Senate Bill No. 18 became effective, allowing a qualifying defendant to accrue conduct credits at a rate of four days for every four days served. (§ 4019, subd. (f).)

The question of whether amended section 4019 is to be applied retroactively to cases pending at the time it became effective has been the subject of numerous appellate court decisions, with no clear consensus on the answer. These cases are now pending before our Supreme Court. (See, i.e., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) We conclude that amended section 4019 is to be applied retroactively.

When there is nothing to indicate a contrary legislative intent, the general rule regarding retroactivity is set forth in section 3. It provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Absent a contrary legislative intent, statutes are presumed to be prospective, not retroactive. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) “[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.” (Id. at p. 1209.)

But section 3 “is not a straitjacket” and “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent, ” even if the Legislature has not expressly stated that a statute should be applied retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Estrada created an exception to the general rule of prospective operation. “[W]here the amendatory statute mitigates punishment and there is no saving clause [requiring only prospective effect], the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) That is, it will apply to all judgments of conviction that are not yet final on direct review. (Id. at p. 744.) “When the Legislature amends a statute so as to lessen the punishment [without a declaration of prospective operation] 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.) Where the amendatory statute mitigates punishment and there is no saving clause the rule is that the amended statute will apply retroactively. (Id. at p. 748; People v. Babylon (1985) 39 Cal.3d 719, 722 [“[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal”].)

The People argue that it is unclear that a change in the accrual rate of conduct credits constitutes an amendatory statute lessening punishment. The People assert that the legislative intent behind conduct credits is to motivate good behavior. It was not a legislative determination that sentences were too severe, and therefore subject to the presumption of retroactivity set forth in Estrada. While the amendment in Estrada reduced the penalty for an offense, the People argue that the purpose of the increase in credits for good conduct is to incentivize good behavior. In our view, section 4019, as amended, is a statute lessening punishment, as it effectively operates to reduce the sentence of qualifying prisoners.

Two appellate decisions, long predating the current amendments to section 4019, have held that the Estrada exception applies to amendments awarding greater custody and conduct credits for presentence custody. (People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying amendment liberalizing conduct credits and rejecting argument that Estrada does not apply because an amendment extending the opportunity to earn conduct credits is designed to control future behavior]; People v. Hunter (1977) 68 Cal.App.3d 389, 392 [construed amendment to section 2900.5 extending right to presentence custody credits as one lessening punishment].)

It is clear that the primary purpose of the amendment to section 4019 goes beyond encouraging good behavior. Senate Bill No. 18 explicitly states that “[t]his act addresses the fiscal emergency declared by the Governor...” (Stats. 2009, ch. 28, § 62), indicating that the primary purpose of the amendment is to reduce the inmate population, and with it, the costs of prison operation. Applying it prospectively does not address the fiscal emergency declared by the Governor. As to the purpose of dealing with the fiscal emergency, applying the amendment retroactively will allow inmates to more quickly earn their release and therefore lower the prison costs.

It is also noteworthy that the Legislature included a saving clause in section 2933.3, subdivision (d), which provides additional custody credits for prison inmate firefighting training or service only for those eligible after July 1, 2009, amended by the same legislation. The inclusion of a savings clause in that section but not in the amendment to section 4019 supports an inference that the Legislature had a different intent with respect to the retroactive application of the two provisions.

We therefore conclude that amended section 4019 applies retroactively to all cases not yet final by January 25, 2010, the date when the amendment was adopted.

DISPOSITION

The award of conduct credits is increased from 114 days to 228 days, and the total presentence credits awarded is increased to 457 days. The judgment is otherwise affirmed. On remand, the trial court is directed to amend the abstract of judgment to reflect the modification to defendant’s presentence credits.

We concur: BOREN, P.J., DOI TODD, J.


Summaries of

People v. Sutton

California Court of Appeals, Second District, Second Division
Feb 3, 2011
No. B220851 (Cal. Ct. App. Feb. 3, 2011)
Case details for

People v. Sutton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SEAN LAMONT SUTTON, Defendant and…

Court:California Court of Appeals, Second District, Second Division

Date published: Feb 3, 2011

Citations

No. B220851 (Cal. Ct. App. Feb. 3, 2011)