Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD211897, Katherine A. Bacal, Judge.
AARON, J.
I.
INTRODUCTION
A jury convicted Carlton Saunders Burnett of three counts: petty theft with a prior (Pen. Code, § 484) (count 1); obtaining property, labor or services by false pretenses (§ 532, subd. (a)) (count 2); and issuing multiple checks without sufficient funds (§ 476a, subd. (a)) (count 3).
All statutory references are to the Penal Code.
Burnett contends that the trial court erred in refusing to instruct the jury with a portion of CALCRIM No. 1970 that provides a defense to the charge of issuing a check with insufficient funds and further provides that the prosecution has the burden to prove that the facts underlying that defense did not occur.
Burnett also claims that he is entitled to additional presentence conduct credit based on an amendment to section 4019, which went into effect after Burnett was sentenced in this case. With respect to this claim, after Burnett appealed his conviction, he filed several motions in the trial court in which he requested that the court recalculate his presentence custody credits pursuant to amended section 4019. The trial court granted Burnett's request after the parties had completed their briefing in this court. We requested and received supplemental briefing from the parties concerning whether the trial court had jurisdiction to recalculate Burnett's presentence credits while his appeal was pending in this court, and if so, whether Burnett's claim on appeal that he should receive additional presentence conduct credits under amended section 4019 is moot, since the court has recalculated his credits to give Burnett additional credits under amended section 4019.
We conclude that the trial court properly declined to give the portion of CALCRIM No. 1970 at issue because there was no evidence that would support the defense described in the instruction, and that in the absence of such evidence, the prosecution's burden was simply to prove the elements of the offense charged beyond a reasonable doubt.
With respect to the presentence conduct credit issue, we conclude that Burnett may raise the question whether he is entitled to presentence credit based on amended section 4019 in this appeal, and that Burnett is entitled to a recalculation of his credits pursuant to the amendment to section 4019.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petty theft with a prior and obtaining property by false pretenses (counts 1 and 2)
Counts 1 and 2 pertain to an unsecured loan that Burnett made to Tracey Worden. In August 2007, Worden responded to an ad that Burnett posted on "Craig's List" (an Internet site), in which Burnett—under the name Griffin Financial—offered to make unsecured personal loans. After several communications between Burnett and Worden, Burnett agreed to wire $15,000 into Worden's bank account in exchange for a refundable deposit of $500. Worden sent Burnett $500, but Burnett never wired any money into Worden's account. After many delays and unfulfilled promises by Burnett, Worden contacted the San Diego Police Department to report what had occurred. In November 2007, Worden received $50 from Burnett. On February 16, 2009, one day before trial, Burnett paid Worden an additional $450.
B. Issuing multiple checks without sufficient funds (count 3)
Count 3 is based on Burnett's negotiation of checks drawn on a closed bank account. In June 2005, Burnett opened a checking account at Wells Fargo Bank. The address listed on Burnett's Wells Fargo account was on Kenyatta Drive in San Diego. Wells Fargo mailed the statements for this account to Burnett at the Kenyatta Drive address each month.
In August, September and October 2005, Burnett's Wells Fargo account was overdrawn by $1,643.15. On October 31, 2005, Wells Fargo mailed a letter to Burnett at the Kenyatta Drive address notifying him that there were insufficient funds in the account, and advising him that if he did not resolve the overdraft status of the account, the account would be closed.
On November 9, 2005, Burnett opened an account at Comerica Bank with a $100 deposit. Two weeks later, Burnett deposited an additional $235 into his Comerica account.
On December 21, 2005, Burnett presented a check in the amount of $7,500, drawn on his Wells Fargo account, for deposit into his Comerica account. Burnett received $6,000 "cash back" from this deposit. That same day, Burnett withdrew an additional $1,300 in cash from his Comerica account.
The following day, Burnett presented a check in the amount of $4,500, drawn on his Wells Fargo account, for deposit into his Comerica account. Burnett obtained cash back from this deposit in the amount of $2,000. Burnett made an additional withdrawal in the amount of $2,000 from the Comerica account that same day.
Wells Fargo returned both the December 21 and December 22, 2005 checks to Comerica because Burnett's Wells Fargo account had been closed due to the overdraft status of the account. Burnett made several promises to cover the Comerica overdrafts, but never did. Comerica's total loss on Burnett's account was $11,973.68.
C. Requested jury instruction
Burnett requested that the trial court instruct the jury with an ancillary section of CALCRIM No. 1970 that sets out a defense to the charge of issuing a check without sufficient funds. The portion of the instruction that is at issue provides that if, at the time the defendant delivered the check, the defendant informed the person designated to receive the check that there were insufficient funds to cover the check, the defendant is not guilty of issuing a check without sufficient funds. The instruction further states that the People have the burden of proving, beyond a reasonable doubt, that at the time the defendant delivered the check, the defendant did not inform the person designated to receive the check that there were insufficient funds to cover the check. Burnett acknowledged in the trial court that he had presented no evidence that would support the defense, but argued that he was nevertheless entitled to the requested instruction.
The portion of CALCRIM No. 1970 requested at issue is a bracketed section that appears after the general instruction, and provides: "Defense: Defendant Informed Payee About Insufficient Funds [¶] [If, when the defendant delivered the check, he told the person designated to receive payment on the check that there were insufficient funds to allow the check to be paid, then the defendant is not guilty of this crime.] [¶] The People have the burden of proving beyond a reasonable doubt that when the defendant [delivered] the [check, he] did not tell the person designated to receive payment that there were insufficient funds to allow the [check] to be paid. If the People have not met this burden, you must find the defendant not guilty of this crime."
The trial court refused to give the instruction, stating: "Well, I agree with you that the defense need not present any affirmative defense in order for these last two bracketed paragraphs [as set forth in fn. 2, ante] to be applicable. However, they are to be given only if there is sufficient evidence to raise a reasonable doubt on these grounds. So what I would be looking to hear is what evidence other than some conclusions or argument that was presented in court, that would support the giving of these two paragraphs." The court concluded, "I heard and I can recall no evidence relating to defendant informing payee about insufficient funds."
D. Verdict and sentence
The jury convicted Burnett on all three counts, and Burnett admitted having incurred a prison prior. The trial court sentenced Burnett to a total term of three years eight months in custody, and determined that he was entitled to custody credit of 124 actual days, and an additional 62 days in accordance with section 4019, for a total of 186 days credit.
III.
DISCUSSION
A. CALCRIM No. 1970
1. Standard of review
"The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law." (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) In considering whether a jury instruction should have been given, "[q]uestions of statutory interpretation are subject to de novo review as well." (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)
" ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citations.]" (Ramos, supra, 163 Cal.App.4th at p. 1088.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Ibid.)
2. Section 476a, subdivision (a)
Section 476a, subdivision (a) provides, "Any person who for himself or as the agent or representative of another or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers any check, or draft or order upon any bank or depositary, or person, or firm, or corporation, for the payment of money, knowing at the time of that making, drawing, uttering, or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with the bank or depositary, or person, or firm, or corporation, for the payment of that check, draft, or order and all other checks, drafts, or orders upon funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in a county jail for not more than one year, or in the state prison."
"Conviction for a violation of Penal Code section 476a, subdivision (a), requires a person with the intent to defraud make, draw, utter or deliver, in this case, a check, knowing at that time there are insufficient funds for its payment. There is, however, no fraudulent intent if the maker informs the payee at the time the check is uttered that there are insufficient funds to pay the check." (People v. Pugh (2002) 104 Cal.App.4th 66, 73 (Pugh).)
3. The trial court did not err in refusing to instruct the jury with the portion of CALCRIM No. 1970 pertaining to the defense of disclosure of insufficient funds
a. There was not sufficient evidence to warrant giving the requested instruction
The trial court is required to instruct the jury only on the relevant and/or raised theories of defense. Further, the court may " 'properly refuse an instruction offered by the defendant if it... is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246 (Burney), quoting People v. Moon (2005) 37 Cal.4th 1, 30; see also People v. Ponce (1996) 44 Cal.App.4th 1380, 1386 ["trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence"].)
Burnett notes that a trial court has a duty to instruct on a particular defense when " 'it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case, ' " citing People v. Sedeno (1974) 10 Cal.3d 703, 716 and People v. Breverman (1998) 19 Cal.4th 142, 157. Burnett contends that the trial court's duty "to instruct on defenses relied on by a defendant is even clearer" when, as here, the defendant requests an instruction in support of a defense (citing People v. Ratliff (1986) 41 Cal.3d 675, 694-695 (Ratliff) and People v. Lemus (1988) 203 Cal.App.3d 470, 475-476 (Lemus)). Ratliff and Lemus are inapposite, however, because in both cases, the defendants relied at trial on the defenses described by the instructions at issue, and in both, evidence presented at trial provided a basis for the requested instructions. (See Ratliff, supra, at p. 694 [error to refuse to give alibi instruction where prosecution witness's testimony provided "some basis" for the defense]; Lemus, supra, at p. 477 [defendant's testimony constituted sufficient evidence to warrant instruction].) Here, in contrast, Burnett did not rely at trial on the defense described in the relevant portion of CALCRIM No. 1970, and there was no evidence presented at trial that would have provided a basis for that defense.
The record shows that Burnett's defense at trial was that he was unaware that his Wells Fargo account had been closed, not that he timely disclosed to Comerica that there were insufficient funds in his Wells Fargo account to cover the checks that he presented to Comerica for deposit. Burnett's trial counsel did not raise the subject of the defense of timely disclosure until a jury instruction conference with the court, after the close of evidence. During that discussion, Burnett's counsel acknowledged that "there was no affirmative evidence given by the defense" that Burnett had timely disclosed the fact that there were insufficient funds in his Wells Fargo account to cover the checks, but argued that Burnett was nevertheless entitled to the instruction.
Burnett asserts in his brief, "Wells Fargo does not and did not in this case send out a notice saying 'your account has been closed.' The bank considers the insufficient funds notice sufficient notice." In addition, in his opening statement, Burnett's counsel argued, "What you are not going to see is any concrete evidence that he was ever notified that the Wells Fargo account had been closed." The trial court instructed the jury with another portion of CALCRIM No. 1970 that Burnett requested, which provides, "Defense: Reasonable Expectation of Payment [¶] [Even if the defendant... delivered... a check... knowing that there were insufficient funds for payment of the check..., the defendant did not intend to defraud if, at the time he acted, he reasonably and actually believed that the check would be paid by the bank... when presented for payment]."
In order to establish that the trial court erred in refusing to give the requested instruction, Burnett would have to demonstrate that there was substantial evidence that would support the defense. Burnett cites Lemus, supra, 203 Cal.App.3d at pages 475-476, in support of his contentions that the evidence that would support the defense "[need] not be of a character to inspire belief" and that "any evidence presented, no matter how weak" will justify giving the instruction to the jury. Lemus does not support Burnett's contentions. In fact, the Lemus court specifically rejected the premise underlying Burnett's argument. The Lemus court explained that before 1975, trial courts had a duty to instruct the jury " 'upon every material question upon which there is any evidence deserving of any consideration whatever'... [citation]" and that " '[t]he fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. [Citations.]' [Citation.]" (Lemus, supra, at p. 475.) The Lemus court went on to note that the Supreme Court subsequently moderated this rule in People v. Mayberry (1975) 15 Cal.3d 143, and that in People v. Flannel (1979) 25 Cal.3d 668 (Flannel), the court further clarified that trial courts need not give a requested instruction "whenever any evidence is presented, no matter how weak, " and that the court need not give an instruction in the absence of " 'evidence substantial enough to merit consideration.' " (Lemus, supra, at p. 476, citing Flannel, supra, at p. 685, fn. 12.)
Flannel was superseded by a statutory amendment on an unrelated issue, as explained in In re Christian S. (1994) 7 Cal.4th 768, 777.
Even if Burnett were correct that "any evidence presented, no matter how weak" would justify giving the instruction at issue, here there was no evidence that would support the defense of timely disclosure. Not only was there no evidence in the record that would support that defense, but the evidence at trial was entirely inconsistent with the defense. Burnett received $6,000 cash back from the December 21 deposit and $2,000 cash back from the December 22 deposit. It defies common sense that Comerica would have given Burnett several thousand dollars in cash back from the two Wells Fargo checks that he presented for deposit if Burnett had informed Comerica employees at the time he made the deposits that there were insufficient funds in his Wells Fargo account to cover those checks.
Burnett maintains that "the 'state of the evidence' includes a lack of evidence, " and argues that he was entitled to the instruction at issue because the prosecution presented no evidence that Burnett did not inform the Comeria employees that there were insufficient funds to cover the checks he deposited. Citing People v Ibarra (2007) 156 Cal.App.4th 1174, 1191 (Ibarra), Burnett maintains that because he had a constitutional right not to testify, he was not required to present any evidence at trial, but rather, was entitled to rely on the state of the evidence and argue that the People failed to prove the charges beyond a reasonable doubt. Ibarra stands merely for the proposition that a defendant is not required to produce any evidence, and that it is the prosecution's burden to prove all elements of an offense beyond a reasonable doubt. (Id. at pp. 1191-1192.) Ibarra does not purport to alter the rule that there must be evidence in the record to support a defense before a defendant is entitled to a jury instruction on that defense. Burnett is correct that he was not required to present evidence in support of the defense at issue. (See pt. III.B., post.) However, as the trial court correctly noted, he was required to point to evidence in the record that raised a reasonable doubt as to the facts underlying the defense before he would be entitled to the instruction.
"A party is not entitled to an instruction on a theory for which there is no supporting evidence." (People v. Memro (1995) 11 Cal.4th 786, 868.) Here, there was no evidence, much less substantial evidence introduced at trial (Burney, supra, 47 Cal.4th at p. 246) that would support the defense that, at the time Burnett made the two deposits and received cash back from Comerica, he informed Comerica bank employees that there were insufficient funds in his Wells Fargo account to cover the checks he was depositing. Because there was no evidence that would support this defense, the trial court properly refused to instruct the jury with the provision of CALCRIM No. 1970 that Burnett requested.
B. In the absence of any evidence of disclosure, the prosecution was not required to prove that Burnett did not make the disclosure described in CALCRIM No. 1970
Citing the portion of CALCRIM No. 1970 that provides that the People have the burden of proving beyond a reasonable doubt that when the defendant delivered the check, he did not tell the person designated to receive payment that there were insufficient funds to allow the check to be paid, and that if the People have not met this burden, the jury must find the defendant not guilty of the crime charged, Burnett contends that the trial court should have given the requested jury instruction because the "prosecution offered no evidence whatsoever that Mr. Burnett did not tell the teller his account was overdrawn or closed, or, indeed, any evidence of anything said back and forth between teller and customer. The prosecution did not call the teller as a witness, nor elicit from the bank investigator it did call as a witness... any testimony that she ever spoke with the teller, or about anything the teller may have heard or said." Burnett also points to the argument that his counsel made to the court in support of this instruction at trial, i.e., that Comerica was a bank that had a "solid reputation 'with set procedures in place'... 'to protect itself when questionable checks passed through there' " and that there was no testimony that those procedures had not been followed.
Burnett contends that, based on the fact that the prosecution did not present evidence that Burnett did not tell the tellers that his Wells Fargo account was overdrawn or closed, nor any other evidence of what was said during the exchanges between Burnett and the tellers, "the jury could conclude that indeed something might have taken place prior to the cashing of those checks... [that] would provide an innocent explanation for what took place and bring reasonable doubt to the table as far as [Burnett's] intent to defraud the bank."
Reasonable doubt can "grow out of the lack of evidence." (People v. Simpson (1954) 43 Cal.2d 553, 566.) However, where, as here, the prosecution has presented sufficient evidence to prove the intent element of the offense charged, it is the defendant's burden to point to evidence in the record sufficient to raise a reasonable doubt as to that element. According to Burnett's argument, a defendant could satisfy his burden to raise a reasonable doubt as to his guilt under section 476a, subdivision (a), based on nothing more than rank speculation on the part of the jury that certain events that have no factual basis in the record, but that would provide an innocent explanation, might have occurred.
There is substantial evidence in the record from which a reasonable jury could have found that Burnett intended to defraud Comerica. First, the circumstances of Burnett's deposits and withdrawals support the reasonable inference that Burnett engaged in the transactions with the intent to defraud. Burnett made large deposits at Comerica on checks drawn on his overdrawn Wells Fargo account, immediately obtained substantial sums of cash back from Comerica when he made those deposits, and made additional substantial withdrawals later on the same days that he made the deposits. The dollar amounts of Burnett's withdrawals nearly equaled the total amount of the deposits. These facts constitute substantial evidence to support a finding that Burnett intended to defraud Comerica. In addition, the evidence shows that Wells Fargo repeatedly notified Burnett that his Wells Fargo account was overdrawn, and warned him that the account would be closed unless the overdrafts were resolved. This evidence supports the reasonable inference that Burnett was aware that there were not sufficient funds in his Wells Fargo account to cover the checks that he tendered to Comerica, and thus, that in tendering the checks, he harbored the intent to defraud.
To the extent that Burnett is arguing that in the absence of any evidence that would raise a reasonable doubt in the minds of jurors as to whether a defendant charged under section 476a, subdivision (a) did inform the person designated to receive the check that there were insufficient funds to cover the check the defendant is depositing, the prosecution must nevertheless prove that the defendant did not inform the payee that there were insufficient funds to cover checks, and that he was entitled to have the court instruct the jury that the prosecution bore this burden, he is simply incorrect. The prosecution is clearly not under an obligation to disprove an affirmative defense that the defendant has not relied on at trial and as to which there is no factual basis in the record.
Because we conclude that there was no instructional error, we need not address Burnett's alternative argument that he did not waive any such errors by his failure to object to them at trial.
The bench notes for CALCRIM No. 1970 state that there must be sufficient evidence of disclosure by the defendant before the prosecution's burden as described in that instruction would arise: "Defenses—Instructional Duty: If there is sufficient evidence to raise a reasonable doubt that the defendant informed the payee that there were insufficient funds to cash the check, the court has a sua sponte duty to give the bracketed option headed 'Defense: Defendant Informed Payee About Insufficient Funds.' " (Judicial Council Of Cal., Crim. Jury Instns. (2010) Advisory Com., Criminal Writings and Fraud, Section C, Check with Insufficient Funds, 1970 Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a), emphasis added in part, citing People v. Poyet (1972) 6 Cal.3d 530, 535–537 (Poyet), and Pugh, supra, 104 Cal.App.4th at p. 73.) The bench notes are consistent with case law pertaining to the burdens of the defendant and the prosecution with respect to a defense such as the one at issue here. In People v. Mower (2002) 28 Cal.4th 457, the Supreme Court explained that with respect to a defense that implicates an element of the offense charged, it is the defendant's burden to raise a reasonable doubt as to the underlying facts—but not to prove those facts—because it negates an element of the offense. (Id. at pp. 478-479; see People v. Neidinger (2006) 40 Cal.4th 67, 75-79 [where defense negates an element of the crime, defendant has the burden to raise a reasonable doubt as to the facts underlying the defense].) As the Pugh court observed, the defense at issue in this case would negate the element of intent since, if, upon delivering a check, a defendant tells the person designated to receive the check that there are not sufficient funds to cover the check, there would be no intent to defraud. (Pugh, supra, 104 Cal.App.4th at p. 73.)
A "defendant may not merely point to [a] defense, but has the burden to raise a reasonable doubt about the facts underlying [the] defense." (People v. Frazier (2005) 128 Cal.App.4th 807, 818.) It was thus Burnett's burden to raise a reasonable doubt regarding whether he informed the Comerica employees that there were insufficient funds in his Wells Fargo account to cover the checks that he deposited, based on the evidence at trial, before the prosecution would have any additional burden to prove that Burnett did not tell the person designated to receive the check that there were insufficient funds to cover the check. In the absence of any evidence supporting this defense, the prosecution's burden was merely to prove the elements of the offense charged beyond a reasonable doubt, including that Burnett intended to defraud. The trial court was not required to instruct the jury that the prosecution had the burden to prove that the facts underlying the defense at issue did not occur.
In light of our conclusion that Burnett failed to raise a reasonable doubt as to whether he informed the Comerica employees that there were not sufficient funds in his Wells Fargo account to cover the checks he deposited, and thus, that the trial court had no duty to give the requested instruction pertaining to the defense of disclosure and the burden of proof of this defense, we do not address whether the portion of CALCRIM No. 1970 that allocates to the prosecution the burden to prove that when the defendant delivered the check, he did not tell the person designated to receive payment that there were insufficient funds to cover the check, accurately states the law with respect to the burden of proof of the defense.
C. Burnett's other claims of instructional error are without merit
Burnett maintains that there was instructional error because the instructions given were inadequate to inform the jury of the burden of proof applicable to affirmative defenses.
The trial court correctly instructed the jury under the provision in CALCRIM No. 1970 that expressly requires the People to prove beyond a reasonable doubt that the defendant presented the checks with the intent to defraud. In the absence of any evidence supporting the defense in question, we conclude that this instruction accurately and adequately sets forth the applicable burden of proof.
The trial court instructed the jury as follows: "Even if the defendant drew, used or attempted to use a check or order knowing that there were insufficient funds for payment of the check or order, the defendant did not intend to defraud if at the time he acted he reasonably and actually believed that the check or order would be paid by the bank or depositary when presented for payment. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant intended to defraud. If the People have not met this burden, you must find the defendant not guilty of this crime."
Burnett specifically questions the adequacy of CALCRIM Nos. 220 and 222, arguing that they fail "to advise the jury it may consider the absence of evidence it might have expected from the prosecution." Burnett contends that this omission is particularly problematic when, as here, the "lack of evidence is the core of the defense...." However, as Burnett acknowledges in his brief, courts have repeatedly held that CALCRIM Nos. 220 and 222 sufficiently convey this concept. (See e.g., People v Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; and People v Flores (2007) 153 Cal.App.4th 1088, 1093.) We agree with these decisions.
D. Retroactivity of section 4019
Burnett contends that he is entitled to additional presentence conduct credit as provided for in section 4019, amended effective January 25, 2010 (amended section 4019). (Enacted by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50.) Amended section 4019 went into effect after Burnett was sentenced on August 7, 2009, but before the judgment in his case was final.
As noted, ante, after Burnett filed the instant appeal, he filed several motions in propria persona in the trial court seeking to have his presentence credit recalculated in accordance with amended section 4019. The trial court granted Burnett's request on May 19, 2010, and recalculated Burnett's presentence custody credit in accordance with amended section 4019.
We requested supplemental briefing from the parties concerning whether the trial court acted in excess of its jurisdiction when it granted relief to Burnett. The parties agree that a trial court retains jurisdiction to correct errors in the calculation of presentence credits even when a defendant's judgment of conviction is on appeal. We need not decide whether the trial court retained jurisdiction to "modify" Burnett's presentence custody credits because the parties agree that issue is ripe for decision by this court.
At the time of Burnett's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, amended by Stats. 1978, ch. 1218, § 1, & Stats. 1982, ch. 1234, § 7.) The January 25, 2010 amendments to section 4019 allowed a defendant to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50, eff. Jan. 25, 2010.) Subdivision (f) of the 2010 version of section 4019 provided that "if 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."
The Legislature amended section 4019 again, effective September 28, 2010, to essentially return the provision to its pre-January 25, 2010 version—i.e., to provide for only two days of conduct credit for each six-day period of confinement, such 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." (§ 4019, subd. (f); see also, subds. (b) and (c), as amended by Stats. 2010, ch. 426, § 2.) The Legislature left no doubt as to its intention regarding to which prisoners the September 28, 2010 amendments would apply; the Legislature added subdivision (g), which provides, "The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act [i.e., September 28, 2010]." (§ 4019, subd. (g), as amended by Stats. 2010, ch. 426, § 2, italics added.) We refer to the version of section 4019 that was in effect from January 25 to September 28, 2010 as the 2010 version of section 4019.
The January 25, 2010 version of section 4019 excluded those who were "required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), w[ere] committed for a serious felony, as defined in Section 1192.7, or ha[d] a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5" from being eligible to receive the additional conduct credits. Those individuals could earn only two days for every six-day period of confinement, such that "six days will be deemed to have been served for every four days spent in actual custody." (Amended § 4019, subd. (f); see also subds. (b)(2) and (c)(2); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50, eff. Jan. 25, 2010.)
Burnett contends that he is entitled to a recalculation of his presentence conduct credits under the 2010 version of section 4019, which, he asserts, applies retroactively to him since the judgment in his case is not yet final. A split has arisen in the appellate courts regarding whether the amendments that took effect on January 25, 2010, apply retroactively to defendants like Burnett, whose sentences were imposed before the amendments became effective, but whose underlying convictions were not yet final on appeal on January 25, 2010. Some appellate court decisions have held that amended section 4019 applies retroactively pursuant to the holding in In re Estrada (1965) 63 Cal.2d 740 (Estrada), because the amendments mitigate punishment. Other decisions have held that amended section 4019 does not apply retroactively, because the Legislature did not indicate that it intended the amendments to apply retroactively. The Supreme Court is currently reviewing the issue.
See People v. Brown (2010) 182 Cal.App.4th 1354, 1363-1365, review granted June 9, 2010, S181963, and People v. Rodriguez (2010) 183 Cal.App.4th 1, 13-14, review granted June 9, 2010, S181808.
We recognize that the proper resolution of this issue is not clear-cut, and we await further guidance on the matter from the Supreme Court. However, in the absence of such guidance, we conclude that the cases holding that the January 25, 2010 amendments to section 4019 should apply retroactively because they effectively mitigate punishment, and are more persuasive than those that hold that the amendments do not apply retroactively.
In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "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." (Ibid.)
The general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. The January 25, 2010 amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits, and thus, constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody. The People contend that the underlying purpose of the January 25, 2010 amendments suggests that the Legislature did not intend retroactive application. Specifically, the People argue that the purpose of the January 25, 2010 legislative amendments is twofold: one, to address budgetary concerns by reducing prison populations, and two, to create further incentives for good behavior. According to the People, the first purpose may be served by either retroactive or prospective application; however, the second purpose is served only by prospective application. Under the People's analysis, if the Legislature's only concern had been budgetary, it could have better served that purpose by granting additional credits to all prisoners, regardless of conduct. The fact that the Legislature did not do this suggests that the Legislature had the additional purpose of creating incentives for good behavior, indicating the Legislature's intention that the January 25, 2010 amendments apply prospectively.
However, if the Legislature's intention was to reduce prison populations, but to do so responsibly by providing early release only for less serious offenders who have demonstrated good behavior, such a purpose can be served by retroactive application of the 2010 version of section 4019. Rather than simply granting additional credits to all prisoners, the Legislature increased credits only for those prisoners who earned them. Thus, only those prisoners who have demonstrated good behavior, both in the past and going forward, would be entitled to the additional credits under the January 25, 2010 amendments.
In addition, the People's argument overlooks the fact that even if amended section 4019 were to be applied prospectively, it would nevertheless provide additional credits for past behavior, since a prisoner sentenced shortly after January 25, 2010, would be granted the enhanced benefits, notwithstanding the fact that some or much of his or her presentence custody occurred before the effective date of that legislation, and, therefore, at a time when the additional incentives were not in place.
Accordingly, we conclude that pursuant to Estrada, the 2010 version of section 4019 applies retroactively to this case. Because the trial court has recalculated Burnett's presentence custody credits to give Burnett additional credits in accordance with amended section 4019, we need not remand the case to the trial court.
IV.
DISPOSITION
The judgment is affirmed, as modified by the trial court.
I CONCUR: HUFFMAN, J.
BENKE, concurring and dissenting.
I do not agree with the majority that Carlton Saunders Burnett is entitled to presentence credits pursuant to the version of Penal Code section 4019 in effect at the time of his sentencing. In addition to the reasons noted in my dissent in People v. Zarate (2011) 192 Cal.App.4th 939, 945-947, I offer the following.
All further statutory references are to the Penal Code unless otherwise specified.
My colleagues conclude that Burnett is entitled to credits existing between January 25, 2010, and September 28, 2010, because in their view, the legislative changes applicable in section 4019 reduce Burnett's punishment. The basis for the majority's conclusion is language from In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada): "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."
The majority concludes that because his conviction is not yet final, Burnett is entitled to application of what it phrases as the general rule of Estrada. Under this rule, if the legislative intent regarding retroactive application of lessened punishment is unclear, the principle noted in Estrada controls, even in the presence of the rule of construction contained in section 3 which mandates prospective application of the law in the absence of express language of retroactivity.
My view of Estrada, and the direction it gives, is somewhat different from that of my colleagues.
I start by observing that the inference relied upon by my colleagues is not a rule, as is suggested by the majority. As the court in Estrada expressly states, it is an inevitable inference the Legislature intended to apply to every case in which it could apply. Respectfully, there is a significant difference between a rule and an inference. A rule denotes a principle that governs. An inference on the other hand merely suggests.
I view the inference noted in Estrada as a factor the court considered in applying the rule Estrada actually pronounces: "Where the Legislature has not set forth in so many words what it intended, the rule of construction [section 3] should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Estrada, supra, 63 Cal.2d at p.746.)
In Estrada the question was whether the defendant was entitled to an earlier parole date because of changes to section 3044. The court in Estrada found that in addition to the inference noted above, there were additional factors sufficient to support a conclusion the Legislature intended retroactive application of the changes to section 3044.
In short, using that court's own terminology, Estrada did not require the inference of legislative intent be followed blindly in the face of other factors pointing to a different conclusion. Rather, the inference noted in Estrada was but one consideration in addition to other facts and circumstances. Viewed in this way, Estrada does not pit the legislative inference against the rule of construction found in section 3; rather, it places them in harmony with each other.
Accepting that the language relied upon by my colleagues is not a rule, but rather an inference and factor to consider in reaching any conclusion with respect to legislative intent, we are in any given case led to at least three options. The first is that examining all factors and circumstances, legislative intent can be ascertained, in which case, like the situation in Estrada, that intent must be carried out. The second is that the totality of facts and circumstances may point to a conclusion that despite the inference, the Legislature intended the new and lesser punishment not be applied to non-final cases. Lastly, as Estrada instructs, if after examining all facts and circumstances, which would include the inference, intent still cannot be ascertained, we must adopt the presumption of prospective application embodied in section 3. (In re Estrada, supra, 63 Cal.2d at p. 746; see also People v. Alford (2007) 42 Cal.4th 749, 753-754.)
It would serve little purpose here repeating the various views and supporting arguments respecting section 4019 which are contained in existing cases. There have been multiple legislative changes in the credits awarded in section 4019. The changes are arguably related not only to policies underlying the awarding of credits in general, but the awarding of credits as they relate to budget matters, and specific categories of criminal offenders. As my colleagues state, at this point the law is far from clear. I agree.
At this point in time, given the absence of clarity or confident direction from the Legislature, I believe Estrada compels a conclusion that section 3 controls and therefore the changes to section 4019 are not retroactive.
In all other respects I agree with the majority opinion.