Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC939832
Duffy, J.
Defendant John Baxter pleaded no contest to procuring an adult for prostitution. He was sentenced to a three-year prison term.
Defendant asserts that he is entitled to receive additional presentence conduct credits in accordance with a recent amendment to section 4019 of the Penal Code which he contends should be applied retroactively to his circumstances. We conclude that the amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted and sentenced prior to the effective date of the amendment (January 25, 2010), but the judgment did not become final until after such effective date. Accordingly, we will affirm the judgment.
Further statutory references are to the Penal Code unless otherwise stated.
Our summary of the evidence is taken from testimony at the preliminary examination.
On the evening of April 8, 2009, Notoya Byrd, at the suggestion of her friend, Margaret Wooward, whom she had met that day in Stockton, went with her friend to a room at the Ramada Inn in San Jose to have some drinks and relax. Byrd observed Wooward leave the hotel room several times that evening, each time coming back with money (in denominations of 50s and 100s) that she handed to defendant. Byrd as a result suspected that there was prostitution activity occurring. After she used the restroom, she noticed that her wallet was open and that money was missing and her identification had been taken out. After Byrd asked Wooward if she had taken her money; Wooward did not respond, but defendant interjected that Wooward did not need to talk to her friend and that defendant was “[Byrd’s] daddy now.” Byrd told defendant and another male, Craig Edmonds, that she wanted to leave; both men “just laughed” at her. After Byrd said that the men could keep her money, defendant explained to Byrd “how the game [would] go[], ” that “she would have to respect the game and that the money she received would go to him.”
While Byrd was in the bathroom pretending to take a shower, she sent a text message to her boyfriend asking for help. The boyfriend placed a 911 call, and several officers with the San Jose Police Department responded to the room at the Ramada Inn at about 2:15 a.m. The police found a laptop computer in the room and “there was material on [it] that was related to prostitution activity.” One of the officers viewed an advertisement for erotic services in the San Francisco Bay Area that he determined had been previously accessed from the computer. It included a telephone number; an officer dialed the number and defendant’s cell phone rang.
PROCEDURAL BACKGROUND
Defendant was charged by information with three felonies, namely, procuring an adult for the purpose of prostitution (§ 266i, subd. (a)(1); count 1); false imprisonment (§ 236); and procuring for another person a place as an inmate in a house of prostitution (§ 266i, subd. (a)(3); count 3). On June 19, 2009, defendant entered a plea of nolo contendere (no contest) to count 1. He did so with the understanding that he would receive a prison sentence of not less than, and no more three years; the remaining counts would be dismissed (the People having conceded that count 3 should be dismissed); and two violations of probation not alleged in the information would also be part of the disposition. Before accepting the plea, defendant was apprised fully of the rights he was giving up as a result of his no contest plea and concerning the consequences of that plea. Counsel stipulated that there was a factual basis for the plea, and the court found the existence of such a factual basis.
Codefendant Edmonds, who is not a party to this appeal, was also charged in the information.
On July 17, 2009, the court sentenced defendant to the low term of three years in prison for the count 1 conviction with a credit of 150 days, based upon 100 actual days served and 50 days of custody credits calculated under former section 4019. The court dismissed counts 2 and 3, and the court recited that the resolution included two uncharged probation violations. Defendant filed a timely appeal based upon the sentence or other matters occurring after the plea.
DISCUSSION
I. Retroactivity of Recent Amendment to Section 4019
Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior during detention (§ 4019, subd. (c)(1)). Such credits are collectively referred to as “conduct credits.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The recently enacted Senate Bill No. 18 (2009-2010 3d Ex. Sess.) amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) The formula in place for calculating credits under section 4019 at the time defendant was sentenced (in July 2009) was that a defendant could accrue conduct credit of two days for every four days of actual presentence custody (former § 4019, subds. (b), (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant may accrue conduct credit of four days for every four days of presentence custody (§ 4019, subds. (b)(1), (c)(1)).
The amendment to section 4019 provides for the higher accrual rate of conduct credits unless the defendant is required to register as a sex offender, or is being committed to prison for, or has suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5. (§ 4019, subds. (b) and (c).) Thus, if, as defendant urges, the higher conduct credit accrual rate applies because his conviction was not final as of the effective date of Senate Bill No. 18, he would be a qualifying defendant under the amendment.
Defendant contends that he is entitled to additional presentence conduct credits under the amendment to section 4019 because his conviction was not final when the amendment to section 4019 became effective. Defendant asserts that “a non-retroactive interpretation [of the amendment to section 4019] would violate [his] right to equal protection and conflict with the [L]egislature’s intent to reduce California’s prison population. [Citations.]” The Attorney General responds that the amendment to section 4019 should not be construed to have retroactive application to persons, such as defendant here, who were sentenced before the amendment’s effective date but whose convictions were not final as of January 25, 2010.
In People v. Hopkins (2010) 184 Cal.App.4th 615 (Hopkins), we recently addressed similar arguments that the amendment to section 4019 should be given retroactive application. There, the defendant also claimed that since his conviction was not yet final as of the effective date of the amendment on January 25, 2010 (because his appeal was then pending), he was “entitled to day-for-day credit, rather than one day for every two days served” under the old formula. (Id. at p. 623.) We held that the amendment to section 4019 should be given prospective application only and thus rejected the defendant’s contentions. (Hopkins, at pp. 623-628.)
We observed: “Section 3 provides that no part of the Penal Code is ‘retroactive, unless expressly so declared.’ This statute ‘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.” ’ (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)” (Hopkins, supra, 184 Cal.App.4th at p. 624.) We rejected the argument that because the amendment to section 4019 was intended to address California’s fiscal emergency by a reduction of the prison population, it was the legislative intent that Senate Bill No. 18 be applied retroactively: “Obviously, if the amendment to section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however that applying the amendment prospectively is inconsistent with the Legislature’s goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature’s intent to reduce prison expenditures is particularly instructive on the issue of retroactivity.” (Hopkins, at p. 625.)
Defendant here-as did the defendant in Hopkins, supra, 184 Cal.App.4th at page 624-relies on In re Estrada (1965) 63 Cal.2d 740 (Estrada), in support of his retroactivity argument. In Estrada, the high court held 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.” (Id. at p. 748.) Defendant contends that the effect of section 4019’s amendment is to lessen the punishment for a crime, and thus the rule in Estrada should apply. As we concluded in Hopkins, “We find that the rule laid out in Estrada is not applicable here because the amendment to section 4019 does not necessarily lessen a defendant’s punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody. Applying the amendment to section 4019 retroactively would not advance the statute’s purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred. [Citation.]” (Hopkins, at p. 625, fn. omitted.) We thus held that there was “nothing in Senate Bill No. 18 which provides the necessary ‘ “clear and unavoidable implication negat[ing] the presumption [of prospective operation], ” ’ set forth in section 3. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1208.) [¶] As a result, the presumption against retroactivity embodied in section 3 is not rebutted and the amendment to section 4019 applies prospectively only.” (Id. at p. 627.)
Additionally, defendant here-as did the defendant in Hopkins, supra, 184 Cal.App.4th at pages 627 to 628-relies on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman) and People v. Sage (1980) 26 Cal.3d 498 (Sage), in support of his equal protection argument. We reject defendant’s claim that the equal protection clause compels that the amendment to section 4019 be applied retroactively for the same reasons we provided in Hopkins. There, we noted, “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, supra, 11 Cal.3d 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. [¶] Sage is similarly inapposite, because it involved a prior version of section 4019 which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, supra, 26 Cal.3d 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 here is temporal, rather than based on the defendant’s status as a misdemeanant or felon. [¶]... [O]ne of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Hopkins and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.” (Hopkins, at pp. 627-628.)
We conclude therefore, following our decision in Hopkins, supra, 184 Cal.App.4th 615, that the amendment to section 4019 operates prospectively and that defendant is not entitled to the benefit of additional conduct credits under the new formula.
We acknowledge that there is a current split of authority concerning the retroactivity of the recent amendment to section 4019. (Cf. Hopkins, supra, 184 Cal.App.4th 615 [amendment not retroactive]; People v. Otubuah (2010) 184 Cal.App.4th 422 [same]; People v. Keating (June 7, 2010, B210240) ___ Cal.App.4th ___ [2010 WL 2252631] [amendment retroactive].) The question is now pending before our high court for resolution. (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.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.