Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC93478.
Duffy, J.
Defendant Robert Guido Colaizzi pleaded no contest to three counts of insurance fraud with the understanding that he would receive a sentence of four years in prison and that seven remaining felony counts alleged against him would be dismissed. On September 14, 2009, he was sentenced to prison for four years. After entry of judgment, defendant made a motion to have the conduct credits provided in the judgment recalculated based upon an amendment to section 4019 of the Penal Code that became effective January 25, 2010. He contended in the motion, as he contends on appeal, that he should receive 253 days’ additional presentence conduct credits pursuant to the amendment to section 4019, which he asserts should be applied retroactively to his circumstances. The trial court rejected defendant’s claim.
Further statutory references are to the Penal Code unless otherwise stated. We note that section 4019 has been amended further. Effective September 28, 2010, section 4019 was amended to restore the statute’s wording as it existed before January 25, 2010. This latest amendment applies only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) This opinion concerns the prior amended version of section 4019 that became effective January 25, 2010. Accordingly, for convenience, our references herein to section 4019 or the amendment to section 4019 are to the amended version of the statute that became effective January 25, 2010. Our references to “former” section 4019 are to the statute in effect prior to January 25, 2010. We will refer to the amendment that became effective September 28, 2010, as the “further amendment to section 4019.”
We will affirm the postjudgment order. We conclude that the amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted, sentenced, and judgment became final prior to the effective date of the amendment. We hold further that applying the statutory amendment prospectively does not violate defendant’s right to equal protection of the laws under the United States and California Constitutions.
We present an abbreviated version of the facts underlying the conviction, derived from the report of the probation officer, because they are not relevant to the claim on appeal.
Between February 2005 and February 2008, defendant submitted claims to his insurance carriers in which he fraudulently asserted that he had received services from two physicians and had paid them in cash for those services. One physician—in response to an Explanation of Benefits form she received that indicated that she had treated defendant on a daily basis between October 2007 and February 2008—reported to a representative of Blue Shield in February 2008 that she had provided no services to defendant. Blue Shield determined through its subsequent investigation that defendant had submitted a fraudulent insurance claim that he had been treated by a second physician who had not in fact treated him. Blue Shield made contact with an Anthem Blue Cross investigator, who determined that defendant had submitted similar fraudulent claims to that entity relative to alleged services provided by both of those doctors. Subsequent investigation revealed that defendant had presented similar fraudulent claims to CIGNA between January and February 2008. The aggregate amount of the loss, based upon restitution figures submitted by the three entities, was in excess of $185,000.
PROCEDURAL BACKGROUND
Defendant was charged by first amended complaint with 10 felonies, namely, insurance fraud (§ 550, subd. (a)(1); counts 1, 3, 5, 7, and 9), and grand theft (§§ 484-487, subd. (a); counts 2, 4, 6, 8, and 10). As to one of the grand theft counts (count 4), it was alleged further that the value of the property taken was in excess of $65,000 within the meaning of section 12022.6, subdivision (a)(1).
Pursuant to a negotiated disposition, defendant pleaded no contest to three counts of insurance fraud (counts 1, 3, and 7), admitted the allegation under section 12022.6, subdivision (a)(1), and waived the right to a preliminary examination. The plea was based upon the understanding that defendant would receive a sentence of four years in prison and that the remaining counts would be dismissed. 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.
On September 14, 2009, and in accordance with the negotiated disposition, the court sentenced defendant to a total prison term of four years, i.e., two years for the count 1 conviction, a consecutive one-year term for the count 3 conviction, and a consecutive one-year term for the enhancement under section 12022.6, subdivision (a)(1). The court also sentenced defendant to a two-year concurrent prison term for the count 7 conviction. Defendant received presentence credits totaling 253 days, based upon 169 actual days plus 84 days’ conduct credit pursuant to former section 4019. The court also ordered defendant to pay restitution to the three victims totaling $185,611.75. The court dismissed the remaining counts pursuant to the negotiated plea.
After entry of judgment and in October 2010, defendant filed a motion to correct the judgment, seeking an award of a total of 506 days’ presentence credits, based upon 253 actual days and 253 days’ conduct credit pursuant to section 4019. The motion was based upon the contention that the amendment to section 4019 should apply retroactively to defendant’s circumstances. The court initially denied the motion on December 3, 2010, reasoning that (1) the sentencing court had properly calculated the number of conduct credits to which defendant was entitled under former section 4019, as that statutory formula existed as of the date of sentencing, and (2) as of the date defendant filed the motion, the further amendment to section 4019 had become effective, under which the statutory formula that existed prior to January 25, 2010, had been effectively restored. On December 20, 2010, defendant filed a notice of appeal from that order. On December 29, 2010, the court entered an order modifying its prior order, again denying defendant’s motion and reasoning that (1) the amendment to section 4019 that became effective January 25, 2010, was not retroactive and therefore inapplicable to defendant, (2) the further amendment to section 4019, effective September 28, 2010, by its own terms was inapplicable to defendant.
On January 5, 2011, defendant filed a notice of appeal from the court’s order of December 29, 2010. An appeal from such a postjudgment order affecting defendant’s substantial rights is proper. (§ 1237, subd. (b); People v. Hyde (1975) 49 Cal.App.3d 97, 103.)
DISCUSSION
I. Retroactivity of Amendment to Section 4019
A. Background and Issues Presented
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.) Section 4019’s scheme for presentencing credit “ ‘ “focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, at p. 939.)
Senate Bill No. 18 (2009-2010 3d Ex. Sess.), enacted in October 2009, 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, p. 4427.) The formula in place for calculating credits under section 4019 at the time defendant was sentenced (in September 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)(2) and (c)(2).) Thus, if, as defendant urges, the higher conduct credit accrual rate as provided under Senate Bill No. 18 applies, he would be a qualifying defendant under the amendment.
Defendant contends that he is entitled to a total of “506 days of presentence credit, based on 253 days of actual credit and 253 days of conduct credits under” the amendment to section 4019. He argues that “it can reasonably be inferred... that the Legislature intended the January 2010 amendment to section 4019 to apply retroactively to all persons serving prison sentences at the time it went into effect.” Because defendant is among that class of persons, he is entitled to additional conduct credits in accordance with the formula provided in the amendment (i.e., credit at a rate of four days for every four days of presentence custody). Defendant asserts that this conclusion is compelled by decisional authority and statutory construction. He asserts further that the failure to give retroactive application to the amendment to section 4019 constitutes a violation of the equal protection clauses of the federal and state Constitutions (U.S. Const., 6th Amend.; Cal. Const., Art. I, § 7.) The Attorney General responds that the amendment to section 4019 should be applied prospectively to persons sentenced on or after the amendment’s effective date of January 25, 2010, and that such prospective application in defendant’s case does not violate his equal protection rights.
The Attorney General also challenges defendant’s calculation of the conduct credits to which he claims entitlement. The Attorney General points out, correctly, that defendant indisputably was entitled to 169 days of actual custody credits, as referenced in the record and defendant’s opening brief. As discussed, post, we reject defendant’s claim that he was entitled to additional conduct credits based upon retroactive application of the amendment to section 4019. But even were defendant’s position meritorious (which it is not), the maximum number of conduct credits to which he would be entitled is 168 days, for a total of 337 days’ credit.
The question of retroactive application of a statutory amendment is governed by the independent standard of review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) Appellate courts are divided concerning whether the amendment to section 4019 should be given retroactive application. The issue posed here is one that is now pending before our high court for resolution. (See People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
A number of cases, now depublished, have addressed the question of retroactivity of the amendment to section 4019. Some courts have held that the amendment to section 4019 must be applied retroactively to those defendants sentenced before the effective date of the amendment whose judgments had not yet become final when the amendment became effective. (See, e.g., People v. Bacon (2010) 186 Cal.App.4th 333 [Second App. Dist., Div. Eight], review granted Oct. 13, 2010, S184782; People v. Keating (2010) 185 Cal.App.4th 364 [Second App. Dist., Div. Seven], review granted Sept. 22, 2010, S184354; People v. Norton (2010) 184 Cal.App.4th 408 [First App. Dist., Div. Three], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [First App. Dist., Div. Five], review granted July 21, 2010, S183552; People v. Landon (2010) 183 Cal.App.4th 1096 [First App. Dist., Div. Two], review granted June 23, 2010, S182808; People v. Brown (2010) 182 Cal.App.4th 1354 [Third App. Dist.], review granted June 9, 2010, S181963.) (We observe, however, that in each of these cases, due to the pendency of an appeal, the defendant’s conviction was not final at the time the amendment to section 4019 became effective. Here, it is apparent that defendant’s conviction was final as of January 25, 2010.) An additional case cited by defendant in his briefs in support of his position regarding retroactivity has since been depublished and cannot be cited or relied upon as precedent. (See In re Kemp (2011) 192 Cal.App.4th 252 [Third App. Dist.], review granted Apr. 13, 2011, S191112.) A contrary conclusion that the amendment to section 4019 applies prospectively has been reached by other courts, including this court. (See, e.g., People v. Eusebio (2010) 185 Cal.App.4th 990 [Second App. Dist., Div. Four], review granted Sept. 22, 2010, S184957; People v. Hopkins (2010) 184 Cal.App.4th 615 [Sixth App. Dist.], review granted July 28, 2010, S183724]; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth App. Dist., Div. Two], review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1 [Fifth App. Dist.], review granted June 9, 2010, S181808.)
B. Retroactivity of Amendment to Section 4019
Defendant bases his claim of error on two positions: (1) based upon principles of statutory interpretation, the amendment to section 4019 must be construed as fully retroactive to all persons serving prison sentences at the time it became effective; and (2) irrespective of whether the Legislature intended retroactivity, the amendment to section 4019 must be applied retroactively to all defendants currently serving a prison sentence, on parole, or probation, because a prospective application would violate those defendants’ federal and state constitutional guarantees of equal protection. We address these two arguments below.
1. Statutory argument
Section 3 states that no part of the Penal Code is “retroactive, unless expressly so declared.” Our high court has held that section 3 “mean[s] ‘[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 (Alford).) Therefore, absent “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.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
The amendment to section 4019 contains no “ ‘express declaration of retroactivity.’ ” (Alford, supra, 42 Cal.4th at p. 753.) Accordingly, we must evaluate whether there is “ ‘a clear and compelling implication’ ” that the Legislature intended retroactivity. (Ibid.)
Defendant posits that the Legislature intended retroactive application of its amendment of section 4019 increasing conduct credits because the amendment’s purpose was to address California’s fiscal emergency by reducing the prison population. But a prospective, as well as a retroactive, application of the amendment would effect savings through a reduction in prisoners’ terms, thereby addressing the state’s fiscal emergency. The fact that retroactive application of the amendment would result in greater savings does not result in the clear implication that the Legislature intended for Senate Bill No. 18 to apply retroactively.
Defendant also argues that it may be inferred from section 59 of Senate Bill No. 18 that the Legislature intended the amendment to section 4019 to be retroactive. Defendant argues that if the amendment had been intended to be prospective only, the Legislature would not have been concerned with “delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act.” (Senate Bill No. 18, section 59.) This argument is not persuasive. Senate Bill No. 18 amended other credit statutes besides section 4019; at least one of those statutes, section 2933.3, specifies retroactive credit. Accordingly, the language in section 59 of Senate Bill No. 18 regarding the calculation of additional credits applies to section 2933.3, and such language would not be surplusage were we to find that the amendment to section 4019 applies prospectively.
Section 59 of Senate Bill No. 18 states: “The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.”
Finally, defendant argues that in the event we determine that the statute is merely ambiguous on the question of its retroactive application—as opposed to concluding, as defendant urges, that there is a clear intent that the amendment was to be applied retroactively—the rule of lenity should be applied such that we should “defer to defendant’s interpretation of the statute.” We reject this argument as well.
In People v. Overstreet (1986) 42 Cal.3d 891, 896, the high court explained the rule of lenity: “When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute. [Citations]” As the high court explained further, “The rule of lenity is inapplicable unless the statute in question is ambiguous, meaning susceptible of two reasonable meanings that ‘ “stand in relative equipoise....” ’ [Citations.]” (People v. Lee (2003) 31 Cal.4th 613, 627.)
The issue defendant presents here does not involve a circumstance where we are asked to construe statutory language that is ambiguous, where such language is reasonably susceptible of two different meanings, or where those two reasonable meanings stand in equipoise. (People v. Lee, supra, 31 Cal.4th at p. 627.) Rather, we are asked by defendant to find that the Legislature intended for its amendment to section 4019 to be applied retroactively to all persons serving prison sentences at the time the amendment went into effect. We disagree with defendant that the Legislature intended the amendment to be so applied retroactively and conclude that the rule of lenity is inapplicable to the controversy before us.
2. Equal protection argument
Defendant contends that, irrespective of whether the Legislature intended the amendment to section 4019 to be applied retroactively, such retroactive application must be afforded to all defendants serving a sentence, on parole, or on probation under the equal protection clauses of the federal and state constitutions. We reject this constitutional challenge.
Defendant 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 claim. Neither case applies here. In Kapperman, the court held that an express prospective limitation upon a statute creating presentence custody credits violated equal protection because no legitimate purpose was served by excluding those already sentenced. (Kapperman, at pp. 544-545.) Kapperman does not apply, because it addressed actual custody credits, not conduct credits. Conduct credits must be earned, while custody credits are awarded automatically on the basis of time served.
Sage, supra, 26 Cal.3d 498, is similarly inapposite. That case concerned a prior version of section 4019 (see Stats. 1978, ch. 1218, § 1, p. 3941) under which presentence conduct credits were available to misdemeanants, but not to felons. (Sage, at p. 508.) Our high court held that there was neither “a rational basis for, [nor] a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Ibid., fn. omitted.) Here, the purported equal protection violation defendant asserts is one that is temporal, and is not based on the defendant’s status as misdemeanant or felon. One of the primary purposes of section 4019 was to motivate good conduct. (People v. Dieck, supra, 46 Cal.4th at p. 939; People v. Silva (2003) 114 Cal.App.4th 122, 127.) Defendant and others like him who were sentenced prior to the effective date of the amendment cannot be incentivized further 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. We therefore reject defendant’s claim that the equal protection clause compels that the amendment to section 4019 be applied retroactively.
Defendant further cites People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) in support of his position. In Doganiere, the court addressed the potential retroactivity of an amendment to section 2900.5, under which a defendant could receive section 4019 conduct credit against a prison term for time spent in custody pursuant to a probation order. (Doganiere, at pp. 238-239.) The court held that custody credit is indistinguishable from conduct credit, rejecting the argument that they are different because conduct credit is “designed to control future prison inmate behavior, encourage future cooperation in prison programs, and foster future inmate self-improvement.” (Id. at p. 239.) Doganiere concluded that “[u]nder [In re Estrada (1965) 63 Cal.2d 740], it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe.” (Id. at p. 240.)
We decline to follow Doganiere’s reasoning here in order to find the amendment of section 4019 retroactive under defendant’s equal protection challenge. We disagree with the premise in Doganiere that conduct credit is indistinguishable from custody credit. The Legislature’s enactment of a law authorizing conduct credit was not an attempt to lessen punishment. Instead, “conduct credits are designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility.” (People v. Silva, supra, 114 Cal.App.4th at p. 128.)
In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette), is instructive. In Stinnette, the court considered whether prospective application of the conduct credit statutes of the Determinate Sentencing Act violated the petitioner’s equal protection rights. The court in Stinnette rejected the equal protection challenge, reasoning that the purpose of the statute was “motivating good conduct among prisoners so as to maintain discipline and minimize threats to prison security. Reason dictates that it is impossible to influence behavior after it has occurred.” (Id. at p. 806; see also People v. Guzman (1995) 40 Cal.App.4th 691, 695: “The purpose of [§] 4019 is to encourage good behavior by incarcerated defendants prior to sentencing.”)
We therefore conclude that the equal protection clauses of the federal and state constitutions do not compel that the amendment to section 4019 be applied retroactively to defendant’s circumstances. Defendant is therefore not entitled to the benefit of additional conduct credits under the new formula as provided in the amendment to section 4019 that became effective January 25, 2010.
DISPOSITION
The postjudgment order denying defendant’s motion for recalculation of conduct credits is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.