Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA097209, Eleanor J. Hunter, Judge.
Linda L. Gordon, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Martel Anderson was convicted, following a jury trial, of one count of possession of a controlled substance in violation of Health and Safety Code section 11351.5. Appellant admitted suffering a prior narcotics-related conviction within the meaning of Health and Safety Code section 11370.2 and serving a prison term within the meaning of Penal Code section 667.5, subdivision (b). On February 7, 2009, the trial court sentenced appellant to a total term of seven years in state prison.
Appellant appealed from the judgment of conviction. On January 26, 2010, this Court affirmed the judgment, in case number B214563. On March 30, 2010, the California Supreme Court denied appellant's petition for review, in case number S180335.
On March 8, 2010, while his petition was still pending in the California Supreme Court, appellant filed a motion to correct his presentence custody credits in the trial court. He contended that the January 2010 amendments to Penal Code section 4019 should be applied to his sentence, thereby increasing his presentence credits. The trial court denied the motion. Appellant appeals from that denial of that motion. We affirm the trial court's order.
FACTS
The underlying facts of the offense in this case are not relevant to any issue on appeal and so are omitted.
DISCUSSION
Appellant contends that the trial court erred in denying his motion for additional presentence custody credits based on the amendments to Penal Code section 4019 which became effective on January 25, 2010. He contends that the denial violates his state and federal rights to due process and equal protection. We see no error.
All further statutory references are to the Penal Code unless otherwise indicated.
A criminal defendant in presentence custody "may... be eligible for presentence good behavior/worktime credits (collectively referred to as conduct credits)" pursuant to section 4019, subdivisions (b), (c), and (f). (People v. Cooper (2002) 27 Cal.4th 38, 40.)
Former subdivisions (b) and (c) of section 4019 provided that for each six-day period in which a prisoner is confined in or committed to a local jail facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) summarized these provisions by calculating that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody."
In October 2009, the Legislature passed Senate Bill number 18, which amended subdivisions (b), (c), and (f) and went into effect on January 25, 2010. (Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B.18).) With exceptions for certain offenses not relevant here, the amended version of section 4019 permits a prisoner to accrue presentence credits at twice the previous rate. Thus, under subdivisions (b)(1) and (c)(1), a prisoner may now have one day of work credit and one day of conduct credit deducted from his confinement for each four-day period of actual confinement. As subdivision (f) now summarizes: "[I]f all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody."
Our courts have been split as to whether the amended version of section 4019 applies prospectively or retroactively. Appellant contends it should apply retroactively and that, as a result, he is entitled to additional presentence custody credit. We disagree.
This issue is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 (holding the amendment does not apply retroactively) and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 (holding the amendment applies retroactively). Our courts have been split regarding this issue: the First and Third Districts have unequivocally held that the amendment applies retroactively, while the Fifth and Sixth Districts have unequivocally held it does not. The Fourth District is internally split: its Second Division has held the amendment does not apply retroactively, while its Third Division has held that it does. Our district is also internally split: our First, Sixth, Seventh, and Eighth Divisions have held the amendment applies retroactively, while our Fourth Division has held that it does not.
Appellant relies on In re Estrada (1965) 63 Cal.2d 740, which holds that "[w]hen 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.... It is an inevitable inference that the Legislature must have intended [in the absence of clear legislative intent to the contrary] that the new statute imposing the new lighter penalty... should apply to every case to which it constitutionally could apply." (In re Estrada, supra, 63 Cal.2d at p. 745.)
Estrada, however, is not applicable to the present case because the amendment to section 4019 does not automatically "lessen punishment;" rather, it awards additional conduct credit to those who have earned it for good behavior or for performing assigned labor, as opposed to additional custody credit, which is awarded to a defendant simply because he or she is in presentence custody. Thus, Estrada is not binding in this context and does not require retroactive application of section 4019.
Furthermore, retroactive application of section 4019 would undermine its purpose. "[A] court [may] determin[e] whether the... meaning of a statute comports with its purpose." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) "'The purpose of... section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing. [Citations.]' [Citation.] 'Conduct credit is awarded to prisoners in penal institutions to encourage good behavior. [Citation.]'" (People v. Silva (2003) 114 Cal.App.4th 122, 127-128.) The only way to advance the statute's purpose of rewarding good behavior would be to apply it prospectively, not retroactively, because behavior can only be influenced before it has occurred. Applying section 4019 retroactively will not encourage appellant to behave appropriately in presentence custody because he is no longer in presentence custody.
We may also glean legislative intent by looking to other enhanced work time statutes that were amended by Senate Bill number 18. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, which states: "The words of [a] statute must be construed in context... and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.") For example, Senate Bill number 18 also amended section 2933.3, which provides credit for inmates who have completed firefighter training. (§ 2933.3, subd. (c).) The amendment added an express provision of retroactivity to the statute, providing credit to inmates dating back to July 1, 2009, even though the statute only took effect on January 25, 2010. (§ 2933.3, subd. (d).) By adding this retroactivity provision, the Legislature demonstrated that it could have added a similar provision to section 4019. Since the Legislature failed to do so, we infer that it did not intend for section 4019 to apply retroactively.
Appellant also contends that the denial of retroactive application of the section 4019 amendments would violate his right to due process and equal protection under the federal and state constitutions. We see no violation.
Appellant relies on In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 to support his claim. In Kapperman, the Supreme Court reviewed a provision which made custody credit prospective, applying only to persons delivered to the Department of Corrections after the effective date of the legislation. The Court concluded that this limitation violated equal protection, and extended the benefits retroactively to those improperly excluded by the Legislature. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) In People v. Sage, the Supreme Court considered a previous version of section 4019 which denied presentence conduct credit to a detainee eventually sentenced to prison, although credit was given to detainees sentenced to jail. The Court found no rational basis, nor compelling state interest, to deny presentence conduct credit to detainee/felons. (People v. Sage, supra, 26 Cal.3d at pp. 507-508.)
Kapperman involved actual custody credits, not conduct credits as is the case here. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. The violation in Sage was based on the defendant's ultimate status as a misdemeanant or felon, not on the dates the defendant was in presentence custody as is the case here. Further, as we discuss, supra, there is a rational basis for denying increased presentence custody credits to defendants who were not in presentence custody when the amendments were passed: a defendant's conduct cannot be influenced retroactively, so it is rational for the amendment to apply prospectively only.
DISPOSITION
The trial court's order is affirmed.
We concur: MOSK, J.KRIEGLER, J.