Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC803320.
Mihara, J.
A jury convicted defendant Antoine Monsha Harris of the lesser included offense of misdemeanor assault (Pen. Code, § 240). The trial court imposed a five-month county jail term.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends the court (1) violated his right to due process by failing to expressly instruct the jury that the unanimity instruction (CALCRIM No. 3501) applied not only to the charged counts but also to the lesser included offenses; (2) violated his rights to a jury trial and to due process by instructing the jury with CALCRIM No. 3472, which he claims “is an incorrect statement of the law” that “could have precluded the jury from considering self-defense in any way[, ] shape[, ] or form”; and (3) miscalculated his presentence conduct credit under former rather than amended section 4019. We affirm.
I. Factual Background
Defendant’s girlfriend D.L. called 911 on March 24, 2008 to report that he had choked her and stolen her car. Santa Clara Police Officer Alex Torke interviewed her at the scene. She told him an argument about the volume of music she was listening to had begun with “playful” pushing in a closet, then escalated. She claimed defendant grabbed her hair, threatening, “I should smash your face into the wall.” He tried to choke her for 20 to 30 seconds, telling her, “I don’t care if I go to jail.” She coughed, had difficulty breathing, and felt she was going to vomit. She told defendant he had to move out. He agreed and began packing.
D.L. told Officer Torke that when she tried to leave, defendant “grabbed her by her hair and pulled her back into the apartment....” She screamed and tried to telephone her aunt, but defendant snatched the phone out of her hand and threw it across the room, telling her she was not going to call anyone. When she jumped on the couch to get away from him, he threw her to the floor. He took one of the trash bags they had been packing his belongings in and tried to pull it over her head, then tried to choke her again. She fought him off, and they left the apartment.
D.L. told defendant she did not want him to drive her car, but he refused to give her the keys and drove off without her. She called 911.
Thirty minutes later, defendant called D.L. to say he had left the car at a nearby shopping mall, and Officer Torke drove her there to retrieve it.
II. Procedural Background
Defendant was charged by information with theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), false imprisonment (§§ 236, 237, subd. (a)), infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)), and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). It was also specially alleged that he had personally used a dangerous or deadly weapon (a plastic bag) in the commission of the section 245 offense (§§ 667, 1192.7).
At trial, D.L. testified that she and defendant had been living together for almost a year when she began to suspect him of cheating. Several days of discord followed. On the evening in question, he was watching television in the living room, and she was in the bedroom, cleaning and listening to music. He asked her to turn the volume down, and she ignored him. He turned it down; she turned it up again. A few minutes later, he turned it back down. After 15 or 20 minutes of that, defendant came into the walk-in closet where she was putting clothes away. He “began to kind of play around, like kept asking... ‘what’s wrong?’ [and] ‘why are you acting like that’ ” and trying to tickle her “and stuff like that.” She told him to stop and pushed him away, but “not too hard at first.” “It was kind of a leave me alone push.” They continued to tussle as “he was trying to get [her] to talk, like, in a playful way, ” and they ended up on the floor of the closet. In the process, one of her braided hair extensions was pulled out.
D.L. explained that she and defendant had “goofed around” like this before, but this time, she did not find it funny, so she told him to stop and pushed him “[p]retty hard.” “It was an angry push.” Defendant again asked what was wrong and she pushed him a third time. On her knees now, she “tri[ed] to move him out of the way, ” but he pushed her hands away. He was holding onto one arm “fairly hard, ” but it did not hurt.
They continued wrestling as D.L. tried to pull out of defendant’s grasp. She bit defendant’s arm “[p]retty hard”—“[p]robably” hard enough to leave bite marks. He released her arm, and “[t]hen he pushed me back and he tried to choke me.” “He tried to choke me with one hand, but I had a hold of his hands so he couldn’t.” He had his hand on her throat for “like five, ten seconds.” She did not cough. She did not recall telling police that she could not breathe for a few seconds. “No. I was able to breathe.” D.L. told defendant he had to move out. “He got up and said that that was fine, that he would leave.”
Out of the closet, they argued over whether she would help him pack his belongings. After helping defendant pack for a while, D.L. decided to go outside. Wanting her to help him finish packing, he grabbed the back of her shirt, catching her braids in the process, and pulled her back inside.
They continued packing and “going back and forth putting things into my car.” As defendant carried the last bag, they started arguing over who would drive. They had been sharing the car for a couple of months, and he drove it daily, but D.L. did not want him to drive it that day. He was already in the car, with all his belongings, but instead of getting in the car, she walked away. He followed her in the car, but she refused to get in, and he eventually drove off without her.
The prosecution called two additional witnesses, Officer Torke and Dr. Michelle Jorden, who testified as an expert in the areas of strangulation and asphyxiation and their effects on the human body.
Defendant did not testify. His ex-wife and a childhood friend described his good character and reputation as a peaceful and nonviolent person. His mother told the jury that shortly after defendant was arrested, D.L. told her, “I’m actually going to the DA office tomorrow to have them drop those charges because they’re not true.” Defendant’s mother admitted she had never shared that information with the police or her son.
After deliberating for just under three hours, the jury returned not guilty verdicts on the four charged counts. The jury convicted defendant of misdemeanor assault (§ 240), a lesser offense included in the section 245 count. It deadlocked six-to-six on battery on a cohabitant (§ 243, subd. (e)), a lesser offense included in the domestic violence count.
The clerk’s minutes of a pre-sentencing hearing state that “[t]he District Attorney’s Office will not pursue this offense.”
Defendant declined probation, and the trial court sentenced him to a five-month term in the county jail. Defendant filed a timely notice of appeal.
III. Discussion
A. Unanimity Instruction
Defendant contends the trial court’s failure to expressly instruct the jury that the unanimity instruction applied not only to the charged counts but also to the lesser included offenses rendered the instructions prejudicially incomplete or misleading with respect to misdemeanor assault. The evidence showed “a large number of possible assaults, ” he asserts, and “[j]urors might have individually voted for guilt based upon different assaults or simply concluded that there must have been an assault somewhere.” Permitting the jury to amalgamate evidence of multiple offenses in this way, he claims, unconstitutionally reduced the prosecution’s burden, in violation of his constitutional due process rights. We disagree.
We note at the outset that the record does not support defendant’s assertion that, because D.L. described “no less than seven incidents that might have constituted assault, ” and Officer Torke described at least one more, the jurors had a large number of potential assaults to choose from. All but three of the acts defendant identifies as potential assaults were eliminated when the district attorney elected, during closing argument, which acts the People were relying upon for each count.
The verdict in a criminal case must be unanimous, and “the jury must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) “[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (Russo, at p. 1132.)
When an appellate court reviews a potentially misleading or confusing instruction for federal constitutional error, the relevant inquiry is “ ‘whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ [Citations.]” (People v. Young (2005) 34 Cal.4th 1149, 1202.) “ ‘ “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” ’ [Citations.]” (Ibid.) Counsel’s arguments are also relevant to the determination. (People v. Garceau (1993) 6 Cal.4th 140, 189, disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) We must also assume that jurors are intelligent people who are capable of understanding, correlating, and following all instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) We will find error only if it is reasonably likely that the jury instructions as a whole provided the jury with an inaccurate understanding of the applicable law. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
Here, the court instructed the jurors with CALCRIM No. 3501 as follows: “The defendant is charged with inflicting corporal injury on a cohabitant or former cohabitant, misdemeanor false imprisonment, and assault with a deadly weapon by means of force likely to produce great bodily injury in counts 2, 3 and 4.... [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] or [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged.”
We do not think there is a reasonable likelihood the jury would have understood this instruction to apply only to the charged counts and not to the corresponding lesser included offenses. The challenged instruction told the jurors in broad general terms that they could not find defendant guilty unless “you all agree... on which act [defendant] committed for each offense.” It was immediately followed by instructions on the relevant lesser included offenses. The jury was told, pursuant to CALCRIM No. 3517, that “[i]f all of you find that the defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct.” The court explained which counts were affected by this instruction: “Battery against a cohabitant or former cohabitant is a lesser crime of inflicting corporal injury on a cohabitant or former cohabitant charged in count 2. Assault is a lesser crime of assault with a deadly weapon or by means of force likely to produce great bodily injury charged in count 4. [¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can only accept a verdict of guilty of a lesser crime if you have found the defendant not guilty of the corresponding greater crime.” (Italics added.) Instructions on the elements of the lesser included offenses (CALCRIM Nos. 841, 915) followed.
We see nothing in any of these instructions to suggest the unanimity requirement would not apply to the lesser included offenses. On the contrary, we think rational jurors would infer from the sequence of the instructions, from the reference in CALCRIM No. 3517 to the corresponding greater crimes, and also from the arguments of counsel that the unanimity instruction applied not only to the charged crimes but also to the lesser included offenses.
The district attorney repeatedly emphasized the need for unanimity, and she did so without distinguishing the greater from the lesser included offenses. She told the jurors that if they could not unanimously agree on which act constituted a given crime, it meant the People had not proven their case beyond a reasonable doubt. With respect to the domestic violence count: “[A]s it’s charged, we’re talking really about the defendant pulling [D.L.’s] hair.... There are a couple of incidents where he pulled her hair: one in the closet and one as she was leaving the apartment.” “But you all have to unanimously agree which act constitutes the crime. So if seven of you think he pulled her hair in the closet, and five of you think he pulled her hair outside of the apartment, that’s not a conviction. That is, the People have not proven their case beyond a reasonable doubt.... But if all 12 of you think that it happened in the closet or outside and all other elements are met, that’s what the unanimity instruction is all about. You have to agree on which act, because there’s a couple of crimes in this case.” (Italics added.)
The district attorney again emphasized the need for unanimity with respect to the aggravated assault count: “Count 4 is really the strangulation, that’s what the assault with a deadly weapon or by means of force likely to produce great bodily injury is all about. [¶]... [¶] So... if you all agree that the defendant strangled [D.L.] in the closet, you can convict the defendant of a Penal Code section 245 count 4. If you agree that he tried to put the plastic bag over her head, all of you can also convict him of count 4. Again, there is the incident in between of the further strangling where he was unsuccessful. It’s those three acts.” (Italics added.)
The district attorney returned to the unanimity requirement again in her summation: “So the unanimity instruction... what that is... all 12 of you have to agree what you’re talking about, what particular set of circumstances, and then which one applies to which count. So you all have to agree on what act we’re talking about for which crime. So, really, which strangulation incident we’re talking about. Which hair pulling incident we’re talking about.” (Italics added.)
Defendant’s trial counsel made the same point in her rebuttal argument, telling the jury with respect to the section 245 count: “[Y]ou have to be unanimous, all twelve of you, about which one it is if you choose to convict. So let’s say six of you think that there was choking and six of you think [it was] to pull the bag over her head[;] that would not be [a verdict] on that count, okay?... There’s a lesser included offense to this too. It’s simple assault. [¶] So let’s say you believe... that [defendant] reached out and put his hand on her neck but didn’t do so for the amount of time with the amount of force or with the kind of shape of his hands that would actually result in the kind of injuries that the doctor was talking about, okay? That would be a simple assault.” (Italics added.)
The arguments of counsel thus made it even more unlikely that any juror could have misunderstood the unanimity instruction. Both counsel explained the unanimity requirement in broad general terms. The district attorney, moreover, linked it to the requirement that crimes be proven beyond a reasonable doubt—a requirement that the jury was repeatedly told applied not only to the greater but also to the lesser offenses (e.g., CALCRIM Nos. 220, 3145, 3517). The jury expressed no confusion in this regard.
We conclude that rational jurors would have understood that the unanimity instruction applied not only to the charged counts but also to the lesser included offenses.
Defendant invokes the maxim expressio unius est exclusio alterius, asking, “Why must a jury, composed of intelligent persons who are expressly instructed that they must agree as to some charges but not told anything as to others, necessarily conclude that unanimity is required even on the charges for which no instruction was given?” The answer is that the offenses defendant claims lacked a unanimity instruction did not describe unrelated crimes but corresponding lesser included ones. The unanimity instruction, considered in the context of the instructions as a whole, plainly applied to the lesser as well as to the greater offenses.
Under this rule of statutory construction, which means “ ‘to express or include one thing implies the exclusion of the other, ’ ” if exemptions are specified in a statute, courts may not imply additional exemptions absent a clear legislative intent to the contrary. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 389.)
Defendant’s reliance on People v. Salas (1976) 58 Cal.App.3d 460 (Salas) is misplaced. The defendant in that case was charged with aggravated robbery, which required proof of two distinct separate intents: the intent to permanently deprive the victim of his property and the intent to inflict great bodily injury. The trial court instructed the jury, pursuant to CALJIC No. 2.01, that intent could be found by circumstantial evidence, but only if “ ‘the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion.’ ” (Salas, at p. 473 & fn. 1.)
His reliance on cases in which no unanimity instruction was given is similarly misplaced. (E.g., People v. Davis (2005) 36 Cal.4th 510; People v. Diedrich (1982) 31 Cal.3d 263; People v. Melendez (1990) 224 Cal.App.3d 1420, disapproved on other grounds in People v. Majors (1998) 18 Cal.4th 385.) Those cases are inapposite, because a unanimity instruction was given here.
The trial court in Salas also gave CALJIC No. 2.02, but only with respect to the specific intent to commit robbery, and not with respect to the specific intent to inflict great bodily injury. The Court of Appeal held that the trial court erred in pinpointing the specific intent for robbery while failing to pinpoint the specific intent for great bodily injury, because the jury could reasonably have interpreted the competing instructions to mean that in determining whether the defendant possessed the specific intent to inflict great bodily injury, they did not need to consider whether the proved circumstances were irreconcilable with any other rational conclusion. (Salas, supra, 58 Cal.App.3d at pp. 474-475.)
In Salas, the trial court gave CALJIC No. 2.02 as follows: “ ‘The specific intent with which an act is done may be manifested by the circumstances surrounding its commission. But you may not find the defendant guilty of the offense charged in [this case] unless the proved circumstances not only are consistent with the hypothesis that he had the specific intent to permanently deprive the owner of his property[, ] but are irreconcilable with any other rational conclusion.... (Salas, supra, 58 Cal.App.3d at p. 473 & fn. 2, italics added.) The court gave this instruction only with respect to the specific intent to commit robbery, and not with respect to the specific intent to inflict great bodily injury. (Salas, at p. 474.)
Here, unlike in Salas, there were no inconsistent or competing instructions. The court gave a general unanimity instruction that, as we have already explained, rational jurors would have understood applied not only to the charged crimes but also to the lesser included offenses.
B. CALCRIM No. 3472
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 3472, which he asserts “is an incorrect statement of the law.” He claims the court should have modified the instruction to state that “ ‘[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to kill (i.e., force a deadly issue).’ ” (Italics added.) The court’s failure to modify the instruction is an error of constitutional magnitude, defendant argues, because “the court’s instruction may have removed self-defense from the jury’s consideration” if the jury believed that defendant started the quarrel.
CALCRIM No. 3472 states that that “[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”
1. Background
At defendant’s request, the trial court gave a series of standard jury instructions on self-defense: CALCRIM Nos. 3470 (right to self-defense or defense of another), 3471 (right to self-defense; mutual combat or initial aggressor), 3472 (right to self-defense; may not be contrived), and 3474 (danger no longer exists or attacker disabled). Defendant did not suggest that CALCRIM No. 3472 was in any way infirm, nor did he ask for any modification or clarification.
2. Analysis
“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570.) “While the trial court has the obligation to instruct on general legal principles so central to the determination of guilt or innocence that to ensure a fair trial they must be explained to the jury” (People v. Daya (1994) 29 Cal.App.4th 697, 714 (Daya), citation omitted), “defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions.” (Ibid.) Thus, if CALCRIM No. 3472 is a correct statement of the law, defendant’s failure to have requested modification or clarification below precludes him from challenging the instruction here. (Daya, at p. 714.)
In People v. Crandell (1988) 46 Cal.3d 833 (Crandell), abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365, the California Supreme Court considered a challenge to CALJIC No. 5.55, the predecessor to CALCRIM No. 3472. The court held that CALJIC No. 5.55 was a “correct but irrelevant instruction” that should not have been given because the evidence in that case did not support it. (Crandell, at pp. 872-873.)
In People v. Garvin (2003) 110 Cal.App.4th 484 (Garvin), the court held that the standard CALJIC instructions on self-defense, including CALJIC No. 5.55, were “legally correct” instructions. (Garvin, at p. 489; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1381-1382 [harmless error to give CALJIC No. 5.55, a “correct but irrelevant instruction”].)
The language of the two instructions is substantially similar. CALJIC No. 5.55 states that “[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense, ” while CALCRIM No. 3472 states that “[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” Significantly, neither instruction contains the “intent to kill (i.e., force a deadly issue)” language that defendant contends is “key.” We conclude that CALCRIM No. 3472 is a correct statement of the law.
People v. Hecker (1895) 109 Cal. 451 (Hecker), on which defendant relies, does not compel a different conclusion. In that murder case, the California Supreme Court described the circumstances in which a wrongful aggressor can gain the right of self-defense against his victim. The court explained that “[t]he acts which a defendant may do and justify under the plea of self-defense depend primarily upon his own conduct, and secondarily upon the conduct of the deceased. There is no fixed rule applicable to every case, though certain general principles, well established, stand forth as guides for the action of men and measures for the jury’s determination of their deportment.” (Hecker, at p. 462.) The court then recited five general principles, the first being that “[s]elf-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing.” (Ibid.) Defendant relies on this principle here, arguing that CALCRIM No. 3472 is an incorrect statement of the law because it “lacked the key words, deadly issue.”
We disagree with defendant’s premise. The Hecker court stated that a defendant does not have the right to claim self-defense when he or she contrives a necessity for using deadly force. Likewise, an initial aggressor has no right to claim self-defense when he or she contrives a necessity for using nondeadly force by provoking a fight. As our Supreme Court more recently stated: “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Thus, CALCRIM No. 3472 correctly informed the jury that, if it determined that defendant had provoked a physical altercation with D.L. with the intent to create an excuse to use deadly or nondeadly force, self-defense was not available as a defense to his actions.
People v. Robertson (1885) 67 Cal. 646 (Robertson), which the Hecker court cited and which defendant discusses at length, does not advance his position. The case stands for the proposition for which the Hecker court cited it: “Self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing.” (Hecker, supra, 109 Cal. at p. 462.) Robertson does not hold that a defendant who seeks a quarrel with the intent to create an excuse to use nondeadly force can later claim that he acted in self-defense.
Since CALCRIM No. 3472 correctly states the law, “if defendant believed the instruction[] required clarification or modification, it was incumbent upon him to request it.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.) He cannot raise the issue for the first time on appeal. (Ibid.)
C. Section 4019
Defendant contends that the Legislature’s amendment to section 4019, which went into effect on January 25, 2010, should have been applied retroactively to give him an additional eight days of conduct credit against his jail term. (Stats. 2009, 3 Ex. Sess. 2009-2010, ch. 28, § 50.) We disagree.
Defendant was sentenced on August 7, 2009. The trial court awarded him 16 days of custody credit under section 2900.5 and eight days of conduct credit under former section 4019, for a total of 24 days. Had the amended statute been in effect, defendant would have been eligible for an additional eight days of conduct credit, for a total of 32 days.
A defendant ordered to serve a jail term, either as a condition of probation or otherwise, or committed to state prison, is entitled to credit against the jail or prison term for all days spent in custody prior to sentencing. (§ 2900.5, subds. (a), (c).) A defendant may earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). “ ‘Conduct credit’ collectively refers to work time credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four days served in local custody. (Former § 4019, subds. (b), (c).) However, in October 2009, Senate Bill No. 18 was enacted. Among other things, amended section 4019 increased conduct credit for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants are now eligible to earn two days of conduct credit for every two days in custody. (§ 4019, subds. (b)(1), (c)(1).) The amendments to section 4019 went into effect on January 25, 2010.
Here, the trial court awarded presentence credit under former section 4019. Since defendant has no current or prior convictions for serious or violent felonies and is not required to register as a sex offender, he contends that he is entitled to additional conduct credit pursuant to amended section 4019.
This issue is currently before the California Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
Section 3 states that no part of the Penal Code is “retroactive, unless expressly so declared.” The California Supreme Court has interpreted section 3 “to mean ‘[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.]’ ” (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford).) “[I]n the absence of 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 Legislature did not expressly state which version of section 4019 should apply to cases not yet final as of its effective date. Thus, we must determine whether “it is very clear from extrinsic sources” (Evangelatos, supra, 44 Cal.3d at p. 1209) that the Legislature intended amended section 4019 to be retroactive.
Defendant relies on an exception to the general rule of prospective application. “[A]bsent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. [Citations.]” (People v. Babylon (1985) 39 Cal.3d 719, 725.) This rule was first articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In that case, the California Supreme Court reasoned that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper 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.” (Id. at p. 745.)
At issue then is whether the Legislature’s enactment of a statute that increases presentence credit was intended to lessen punishment within the meaning of Estrada. People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) addressed this issue in connection with custody credit. In 1976, the Legislature amended section 2900.5 to provide that a defendant was entitled to custody credit for presentence custody time against a county jail sentence imposed as a condition of probation. (Hunter, at p. 392.) Applying Estrada, Hunter held that the amendment to section 2900.5 “must be construed as one lessening punishment, ” and thus applied the amended statute retroactively. (Hunter, at p. 393.)
People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) considered whether a subsequent amendment to section 2900.5, which entitled a defendant to section 4019 conduct credit against a prison term for time spent in custody pursuant to a probation order, applied retroactively. (Doganiere, at pp. 238-239.) The court rejected the People’s argument that custody credit is distinguishable from conduct credit 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 Estrada, 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 disagree with the reasoning in Doganiere. In enacting legislation to authorize conduct credit, the Legislature is not seeking to lessen punishment. Rather, “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 (2003) 114 Cal.App.4th 122, 128.)
In In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette), the court considered whether prospective application of the conduct credit statutes of the recently enacted Determinate Sentencing Act violated the petitioner’s equal protection rights. Stinnette rejected the equal protection challenge, reasoning that the purpose of the statutes 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; People v. Guzman (1995) 40 Cal.App.4th 691, 695 [“The purpose of Penal Code section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing.”].) Similarly, here, retroactive application of amended section 4019 could have no impact on a defendant’s past behavior.
Since there is no “ ‘compelling implication that the Legislature intended otherwise’ ” (Alford, supra, 42 Cal.4th at p. 753), we conclude that amended section 4019 applies prospectively rather than retroactively.
Defendant next contends that prospective application of amended section 4019 violates his equal protection rights.
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ ‘ “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” ’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments to section 4019 do not involve a “ ‘ “ ‘suspect classification’ ” ’ ” or a “ ‘ “ ‘ fundamental interest, ’ ” ’ ” courts apply the rational basis test to determine whether the “distinction drawn by the challenged statute bears some rational relationship to a conceivable legitimate state purpose.” (Stinnette, supra, 93 Cal.App.3d at p. 805.) Here, as previously stated, the state has a legitimate purpose of encouraging good behavior by inmates. Since “it is impossible to influence behavior after it has occurred” (id. at p. 806), awarding additional conduct credit only as of the effective date of the statute was rationally related to a legitimate state interest. Accordingly, prospective application of the amendment to section 4019 does not violate defendant’s equal protection rights.
III. Disposition
The judgment is affirmed.
I CONCUR: Bamattre-Manoukian, Acting P. J.
McAdams, J., Concurring and Dissenting.
I concur in parts III A and B of the opinion (the unanimity instruction and CALCRIM No. 3472) but I dissent as to part C (the application of amended Penal Code section 4019).
I dissent because I agree with the reasoning of the numerous cases that have held the amendments apply retroactively. In my view, such a conclusion follows from California Supreme Court precedent. As the Court reiterated in People v. Nasalga (1996) 12 Cal.4th 784, “provisions of a statute that have an ameliorative effect must be given retroactive effect, even where other provisions of the same statute clearly do not have such an effect.” (Id. at p. 796, following In re Estrada (1965) 63 Cal.2d 740.) I would therefore find the amendments to Penal Code section 4019 at issue here apply retroactively.
The California Supreme Court has recently granted review in several cases involving this issue, including those which have found the statute applies retroactively (People v. Brown, S181963; People v. House, S182813; People v. Landon, S182808) and those which found it applies prospectively only. (People v. Rodriguez, S181808; People v. Hopkins, S183724.) Several more petitions for review are pending.