Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF152996, Richard Todd Fields, Judge.
Gary V. Crooks, 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, Peter Quon, Jr. and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant Steven Andrew Garcia appeals from the trial court’s decision denying his motion to grant additional pre-sentence credits under Penal Code section 4019, as amended on January 25, 2010. As discussed below, we affirm the trial court’s ruling because defendant’s conviction was final in 2009 and the amendments to section 4019 are not retroactive.
All section references are to the Penal Code unless otherwise indicated.
Facts and Procedure
In September of 2009, the owner of a number of items that defendant had stolen found those items at a pawn shop. Law enforcement officers arrested defendant and, on September 22, 2009, the People charged defendant with two counts of receiving stolen property (checks and jewelry) (§ 496, subd. (a)) and alleged he had three prison priors under section 667.5. On October 1, 2009 defendant pled guilty to one count of receiving stolen property and admitted to having served one prior prison term. The trial court immediately sentenced defendant to the low term of one year and four months on the substantive count and a consecutive term of one year for the prior prison term allegation, for a total of two years and four months in prison. The court calculated defendant’s credit for time served as 14 days actual plus six days conduct credit under the then-current version of section 4019. The abstract of judgment was filed on October 5, 2009.
On July 14, 2010, defendant filed an ex-parte motion to re-calculate his pre-sentence credits under the version of section 4019 that became effective January 25, 2010. Defendant requested an additional eight days of credit, for a total of 14 days actual and 14 days conduct credit. The trial court denied defendant’s motion that same day. This appeal followed.
Discussion
Defendant argues the Legislature intended that the amended section 4019 apply retroactively to all judgments, including final ones. Defendant further argues the trial court violated his right to equal protection under the federal and state constitutions and should credit him with an additional 8 days. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) We disagree.
The Amendment to Section 4019 Applies Prospectively
We recognize that there is a split among the districts as to whether the section 4019 amendment has retroactive effect. We further recognize that the California Supreme Court has granted review of most of the recent decisions on this issue and that some of the case law cited in this opinion regarding the application of the section 4019 amendment no longer constitutes binding authority of the issue. We side with the view that the section 4019 amendment applies only prospectively. Thus, it should not apply to time earned prior to the amendment.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).
When defendant was in custody under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019; People v. Duff (2010) 50 Cal.4th 787, 793.) However, the Legislature amended section 4019 effective January 25, 2010, to provide for the accrual of two days of conduct credit for every two days of presentence custody (§ 4019, subd. (f)) for any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c). The statute does not contain a saving clause, i.e., a clause stating that the amendment shall have prospective application only. (§ 4019.) Section 3 of the Penal Code provides that the Penal Code shall not have retroactive effect unless expressly so declared. Thus, “‘[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.)
The Supreme Court in In re Estrada (1965) 63 Cal.2d 740 (Estrada) created an exception to the section 3 presumption of prospective application. In Estrada, the court considered whether a statute mitigating punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute. The statute was silent as to retroactive application. (Id. at p. 744.) According to Estrada, a statutory amendment reducing punishment for a crime or changing procedure in favor of a defendant should be given retroactive effect as to cases that have not reached final judgment. (Id. at pp. 744-745.) In reaching its holding, the Estrada court explained: “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 amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745.) Thus, “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.)
Relying on Estrada in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two), we held that amendments to section 2900.5, providing credit for section 4019 conduct credits, were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to § 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. (Doganiere, at p. 240.)
Despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding behavior. (See People v. Brown (2004) 33 Cal.4th 382, 405 (Brown).)
We thus conclude the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)
Moreover, since section 4019 focuses primarily on encouraging cooperation and good behavior by detainees (see Brown, supra, 33 Cal.4th at p. 405), applying the amendment retroactively would not further this objective since it is not possible to influence behavior after it has occurred. (See In re Stinnette (1979) 94 Cal.App.3d 800, 806 (Stinnette).) In other words, the amendment cannot act as an incentive to those persons who, like defendant, completed a period of confinement, and thereby earned credits, prior to the effective date of the amendment.
In view of section 4019’s primary purpose of motivating good behavior (Brown, supra, 33 Cal.4th at p. 405), it appears that the intent of the amendment was to increase the incentive for good conduct. The incentive did not remain unchanged.
In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded that the amendment to section 4019 applies prospectively. Thus, defendant is not entitled to additional credits for the time he spent in custody.
Applying the Amendment Prospectively Does Not Violate Equal Protection
Defendant further argues that applying the section 4019 amendment prospectively violates his equal protection rights because he is a member of a distinct class who would be harmed by prospective-only application of the amendment. He cites Kapperman, supra, 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 (Sage), superseded by statute as stated in People v. Brunner (1983) 144 Cal.App.3d 934, in support of his claim. Again, we disagree.
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 under section 2900.5, not conduct credits under section 4019. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
In 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 county jail (misdemeanants) and to felons who served no presentence time. (Sage, supra, 26 Cal.3d at p. 507.) The Supreme Court held that the failure of section 4019 to provide presentence credits for felon detainees when it provided such credits for misdemeanant detainees violated equal protection. (Sage, at pp. 506-509.) Sage is distinguishable on the ground that the purported equal protection violation at issue in the instant case is temporal, rather than based on the defendant’s status as a misdemeanant or a felon. 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. Thus, defendant’s equal protection argument fails.
Disposition
The trial court’s decision to deny defendant’s motion to correct pre-sentence custody credits is affirmed.
We concur: KING, J., MILLER, J.