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People v. Trevino

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 3, 2012
Super.Ct.No. RIF143493 (Cal. Ct. App. Feb. 3, 2012)

Opinion

E052416 Super.Ct.No. SWF024612 Super.Ct.No. RIF143931 Super.Ct.No. RIF143493 Super.Ct.No. SWF021720 Super.Ct.No. SWF006062

02-03-2012

THE PEOPLE, Plaintiff and Respondent, v. CHARLES THOMAS TREVINO, Defendant and Appellant.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. William Bailey, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Charles Thomas Trevino pled guilty to making a building, room, or space available for lease or rent for the purpose of unlawfully manufacturing, storing, or distributing a controlled substance for sale or distribution. (Health & Saf. Code, § 11366.5, subd. (a).) He also admitted that he was out on bail on another matter when he committed that offense. (Pen. Code, § 12022.1.) On December 29, 2009, the trial court sentenced him to five years in state prison and awarded him 171 days of presentence custody credits (115 actual and 56 conduct). The trial court also sentenced him in four other cases at the same time. The court designated case No. SWF024612 as the principal case and ran the terms in the other cases (case Nos. RIF143931, RIF143493, SWF021720 & SWF006062) concurrent with that case.

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

In his opening brief, defendant states that, "[a]lthough this appeal theoretically involves five cases, only the principal case . . . needs attention since the other terms, which are concurrent, will be fully served before the term in the principal case is fully served . . . ."

On appeal, defendant contends that he is entitled to 58 additional conduct credits under the January 25, 2010 amendment of section 4019. (Stats. 2009, 3d Ex. Sess. 2009- 2010, ch. 28, § 50.) We affirm.

We note that section 4019 has been amended twice since January 2010, but those amendments only apply to crimes committed after certain dates. The discussion in this opinion concerns the amended version of section 4019 that became effective on January 25, 2010. Thus, any reference to section 4019 or the 2010 amendment to section 4019 concerns the amended version of section 4019 that became effective on January 25, 2010. Any reference to "former" section 4019 concerns the version of section 4019 that was in effect prior to January 25, 2010.

PROCEDURAL BACKGROUND

The facts underlying defendant's convictions are not relevant to the determination of the issue on appeal.

On November 10, 2010, defendant filed a motion, in propria persona, with the trial court to recalculate his custody credits pursuant to the 2010 amendment to section 4019. The court denied the motion.

On November 29, 2010, defendant filed a notice of appeal asserting that he was appealing the trial court's order denying his motion.

ANALYSIS


Defendant Is Not Entitled to Additional Custody Credits

When defendant committed the crime in this matter, as well as when he was sentenced, former section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, subds. (b), (c), as amended by Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, however, section 4019 was amended to provide that a defendant was entitled to two days of conduct credit for every two days of presentence custody. Defendant was sentenced on December 29, 2009, before the effective date of the 2010 amendment. He now argues that he is entitled to 58 additional days of custody credits under section 4019.Respondent contends that defendant has forfeited his claim. Since we disagree with defendant's claim on the merits, we need not address the forfeiture claim.

We note that, in his motion, defendant claimed he was entitled to an additional 803 days of custody credits.
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The question of whether a defendant sentenced before January 25, 2010, is entitled to the benefit of the 2010 amendment to section 4019 is currently before the California Supreme Court. (See 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.) Because the California Supreme Court will ultimately resolve the conflict on the issue among the various Courts of Appeal, we discuss the issue only briefly.

Under section 3, "'[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.]' [Citation.]" (People v. Alford(2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication. We recognize that, under In re Estrada (1965) 63 Cal.2d 740, "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." (Id. at p. 748.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.) Accordingly, the section 3 presumption of prospective application is not rebutted.

Relying on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 (superseded by statute on other grounds as stated in People v. Brunner (1983) 144 Cal.App.3d 934), defendant further contends that failure to apply the 2010 amendment to section 4019 retroactively would violate his federal equal protection rights. Neither Kapperman nor Sage is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. Similarly, Sage is inapposite because that case involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, at p. 508.) The California Supreme Court found that there was neither "a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid.)

The purported equal protection violation at issue in this matter is temporal, rather than based on defendant's status as a misdemeanant or a felon. One of section 4019's principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant and those similarly situated to him, whose sentencing occurred before the January 2010 amendment, cannot be further enticed to behave themselves during their presentence custody. A defendant's past conduct cannot be motivated retroactively. This is a rational basis for applying the amendment prospectively only. Thus, defendant is not entitled to additional conduct credits.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.
We concur:

McKINSTER

J.

MILLER

J.


Summaries of

People v. Trevino

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Feb 3, 2012
Super.Ct.No. RIF143493 (Cal. Ct. App. Feb. 3, 2012)
Case details for

People v. Trevino

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHARLES THOMAS TREVINO, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Feb 3, 2012

Citations

Super.Ct.No. RIF143493 (Cal. Ct. App. Feb. 3, 2012)