Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC825176.
Duffy, J.
Defendant Henry Leonard Lias pleaded no contest to driving a vehicle with a blood alcohol content (BAC) of 0.08 percent or more and causing bodily injury to another (count 2), and driving with a license that had been suspended or revoked due to a prior conviction of driving under the influence (count 3). He also admitted certain special allegations pertaining to these two counts. Defendant was sentenced to a 16-month prison term for the count 2 conviction and a 30-day county jail term for the count 3 conviction.
Defendant raises three challenges on appeal. First, defendant argues that the court imposed an unauthorized sentence when it revoked his driving privilege. Second, he contends that the abstract of judgment failed to reflect a portion of the sentence, namely, the imposition of a 30-day jail sentence for the count 3 conviction. Third, defendant asserts that he should receive additional presentence conduct credits in accordance with a recent amendment to section 4019 of the Penal Code that he contends should be applied retroactively to his circumstances.
Further statutory references are to the Penal Code unless otherwise stated.
We conclude that the court did not have authority to order the revocation of defendant’s driving privileges as part of the sentence. We hold further that the abstract of judgment omitted the court’s imposition of a 30-day jail sentence for the count 3 conviction. Lastly, we conclude that the amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted and sentenced prior to the effective date of the amendment (January 25, 2010), but the judgment did not become final until after such effective date. We will therefore modify the judgment, order that the abstract of judgment be corrected, and affirm the judgment as so modified.
Our summary of the evidence is taken from the probation report.
On November 11, 2008, at approximately 10:28 p.m., defendant was driving his car, ran a red light and broadsided another vehicle driven by Rosario Paita. She was injured and her car was totaled. After the accident, defendant told the officers, “ ‘I’m not going to lie, I’m drunk.’ ” The laboratory results of a blood sample drawn from defendant showed that his BAC was 0.21 percent.
PROCEDURAL BACKGROUND
Defendant was charged by information with driving under the influence of alcohol and causing bodily injury, a felony (Veh. Code, § 23153, subd. (a); count 1); driving a vehicle with a BAC of 0.08 or more and concurrently committing an act forbidden by law, namely, a neglect of duty imposed by law in driving a vehicle, which caused bodily injury to another, a felony (Veh. Code, § 23153, subd. (b); count 2); and driving while his license was suspended or revoked as a result of a prior driving under the influence conviction, a misdemeanor (Veh. Code, § 14601.2, subd. (a); count 3). The complaint contained special allegations that, as to counts 1 and 2, defendant had a BAC of 0.15 percent or more (Veh. Code, § 23578); and that within five years of the offense charged in count 3, defendant had violated Vehicle Code section 14601.2, an offense of which he was previously convicted.
Defendant waived a preliminary examination and arraignment on the information. On June 4, 2009, defendant entered a plea of nolo contendere (no contest) to counts 2 and 3 and admitted the special allegations as to those counts with the understanding that he would receive a prison sentence of no more than 16 months. The People moved to dismiss count 1 and the remaining allegation, which motion the court took under submission to be granted at the time of sentencing. 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.
In October 2009, the court sentenced defendant to the low term of 16 months in prison for the count 2 conviction with a credit of 487 days and the sentence deemed served; parole was fixed at a term of three years. It also denied probation and imposed a concurrent sentence on the count 3 conviction of 30 days in jail with a credit of 30 days for time served. The court dismissed count 1. Defendant filed a timely appeal based upon the sentence or other matters occurring after the plea.
DISCUSSION
I. Order Revoking Driving Privileges
At the time defendant changed his plea, the court advised him that as a consequence of his no contest plea, his “driver’s license could be suspended or revoked for up to three years.” At sentencing, the court stated: “The defendant’s driving privilege is ordered revoked for the term prescribed by law.” The clerk’s minutes and the abstract of judgment similarly reflect this revocation order.
Defendant did not object below. He argues on appeal, however, that suspension or revocation of his driver’s license was not made part of the terms of his plea. He contends that the revocation announced by the court is an unauthorized punishment and should therefore be stricken.
Since the rule that unpreserved claims of error are forfeited does not apply in instances of “ ‘unauthorized sentences’ or sentences entered ‘in excess of jurisdiction’ ” (People v. Welch (1993) 5 Cal.4th 228, 235; see also In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 2), we address the merits of defendant’s claim here that the court’s order revoking his driving privileges was an unauthorized sentence.
The Attorney General responds that although license suspension or revocation was not a term of defendant’s plea bargain, it was in fact a possible consequence of his no contest plea of which he was advised by the court. The Attorney General argues further that the court’s order did not constitute an unauthorized sentence; rather it simply apprised the Department of Motor Vehicles (DMV) that it should suspend or revoke defendant’s driving privileges as prescribed by law.
Defendant argues correctly that the court itself was not authorized to suspend or revoke defendant’s driving privileges as a result of his convictions. Based upon defendant’s conviction under Vehicle Code section 23153, subdivision (a) (count 2), theDMV was required to suspend defendant’s driving privileges for a period of one year. (Veh. Code, § 23554.) Likewise, had defendant’s conviction under Vehicle Code section 23153 occurred within 10 years of a separate offense resulting in a conviction of reckless driving (Veh. Code, § 23103), driving under the influence (Veh. Code, § 23152), or driving under the influence and causing injury (Veh. Code, § 23153), the DMV would be required to revoke his license for three years. (Veh. Code, § 23560.) Further, there is no provision for suspension or revocation of driving privileges as a result of defendant’s conviction in count 3 of violating Vehicle Code section 14601.2, subdivision (a). Rather, in light of defendant’s admission of the special allegation to the offense charged in count 3, he was subject to a jail term of at least 30 days and no more than a year and a fine of no less than $500 and no more than $2,000. (Veh. Code, § 14601.2, subd. (d)(2).) Moreover, defendant points out that even assuming that revocation of his driving privileges was a potential consequence of his plea-if, for instance, the count 2 conviction may have represented his second conviction under Vehicle Code section 23153 within 10 years-it would be the DMV, not the court, that would accomplish the revocation. (See Veh. Code, § 23560: “The person’s privilege to operate a motor vehicle shall be revoked by the [DMV] pursuant to paragraph (4) of subdivision (a) of [Veh. Code] Section 13352.”)
“If any person is convicted of a first violation of [Vehicle Code] Section 23153, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (2) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.” (Veh. Code, § 23554.) “The department shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a violation of [Vehicle Code] Section... 23153, ... For the purposes of this section, suspension or revocation shall be as follows: [¶]... [¶] (2) Upon a conviction or finding of a violation of [Vehicle Code] Section 23153 punishable under [Vehicle Code] Section 23554, the privilege shall be suspended for a period of one year.” (Veh. Code, § 13352, subd. (a)(2).)
“If a person is convicted of a violation of [Vehicle Code] Section 23153 and the offense occurred within 10 years of a separate violation of [Vehicle Code] Section 23103, as specified in [Vehicle Code] Section 23103.5, 23152, or 23153 that resulted in a conviction, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 120 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than five thousand dollars ($5,000). The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (4) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with [Vehicle Code] Section 13550.” (Veh. Code, § 23560.) “The department shall immediately suspend or revoke the privilege of a person to operate a motor vehicle upon the receipt of an abstract of the record of a court showing that the person has been convicted of a violation of [Vehicle Code] Section 23152 or 23153, subdivision (a) of [Vehicle Code] Section 23109, or Section 23109.1, ... For the purposes of this section, suspension or revocation shall be as follows: [¶]... [¶] Except as provided in this paragraph, upon a conviction or finding of a violation of Section 23153 punishable under Section 23560, the privilege shall be revoked for a period of three years....” (Veh. Code, § 13352, subd. (a)(4).)
This punishment would apply unless defendant had been designated-which did not occur here-a habitual traffic offender (Veh. Code, § 14601.2, subd. (d)(2)), in which case he would have been subject to additional punishment under Vehicle Code section 14601.3, subdivision (e)(3), which similarly does not call for license suspension or revocation.
The Attorney General agrees that under the statutes cited by defendant (Veh. Code, §§ 23554, 23560), it is the DMV, not the court, that is the entity that suspends or revokes the convicted offender’s driving privileges. He also concedes that there are other statutes, including Vehicle Code sections 23550.5 and 23566, that require the DMV to suspend or revoke the driving privileges of a convicted offender as a result of the offender’s prior conviction status. But the Attorney General contends that, because it must be presumed that the trial court was aware of and correctly followed the law (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in People v. Price (2001) 25 Cal.4th 1046, 1069, fn. 13; see also People v. Mosley (1997) 53 Cal.App.4th 489, 496-497 [presumption applies to court’s imposition of sentence]), the court’s order may be fairly construed as an instruction to the DMV to suspend or revoke defendant’s license as may be appropriate under the law, rather than the court itself ordering revocation of the license. We disagree.
The court’s pronouncement at the sentencing hearing was that “[t]he defendant’s driving privilege is ordered revoked for the term prescribed by law.” This language cannot reasonably be construed as instructing the DMV to revoke or suspend defendant’s driving privileges in accordance with its duties under the law. Rather, the pronouncement is that the court has ordered the revocation of defendant’s driving privileges for an unstated period, but for a term that may be determined from applicable law. As so construed, this language, as argued by defendant, constitutes an unauthorized sentence, since, as the parties agree, the court itself was not empowered to suspend or revoke defendant’s license.
Although we agree with defendant that the proper remedy here is to order that the court’s revocation be stricken, we do so with a caveat. Such an order, without explanation, might suggest that the DMV is restricted from taking the appropriate action with respect to defendant’s driving privileges. Our order here contains no such suggestion. Rather, we specifically note that our order striking the court’s purported revocation of defendant’s driving privileges shall have no impact on the obligation of the DMV to take appropriate action to suspend or revoke defendant’s driving privileges as required by law as a consequence of defendant’s conviction.
Indeed, as the court observed in Baldwin v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1630, the fact that the trial court may sentence the defendant in a certain manner does not change the DMV’s statutory duty to suspend or revoke the defendant’s license based upon his or her actual prior conviction history. Thus, in Baldwin, the fact that the defendant, convicted of driving under the influence, was sentenced as though he had only one prior driving under the influence conviction did not alter the DMV’s obligation under Vehicle Code section 13352, subdivision (a)(5) to revoke his license upon a showing that he in fact had three drunk driving convictions within a period of seven years. (Baldwin, at pp. 1634-1636.)
II. Omission of Count 3 Sentence in Abstract of Judgment
Defendant argues that the abstract of judgment fails to include the portion of the court’s order that imposed a 30-day concurrent jail sentence with a credit for time served for the count 3 conviction. He contends that the abstract should be amended to reflect this portion of the court’s order. The Attorney General concedes the omission and that the abstract should be amended.
Where the clerk’s minutes or abstract of judgment do not accurately reflect the oral pronouncement, the appellate court may order them corrected. (People v. Zackery (2007) 147 Cal.App.4th 380; 385-386, 388, 389; People v. Rowland (1988) 206 Cal.App.3d 119, 123-124.) Here, the court’s oral pronouncement of sentence for the count 3 conviction was a concurrent 30 days in county jail with a credit for time served. Accordingly, we will order that the abstract be amended to properly reflect this aspect of the sentencing.
I. Retroactivity of Recent Amendment to Section 4019
After submission of his opening brief, defendant sought and obtained leave to file a supplemental opening brief to address whether he is entitled to additional presentence conduct credits by virtue of the recent enactment of Senate Bill No. 18 (2009-2010 3d Ex. Sess.), which 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.) In his supplemental brief, defendant argues at length that because his conviction was not final when the amendment to section 4019 became effective, he is entitled to additional conduct credits in accordance with the formula provided in the amendment. The Attorney General in his supplemental brief asserts that the amendment to section 4019 should not be construed to have retroactive application to persons, such as defendant here, who were sentenced before the amendment’s effective date but whose conviction was not final as of January 15, 2010.
As we explained in a recent case addressing the same question of whether the amendment to section 4019 should be applied retroactively to a defendant sentenced prior to the amendment, but whose sentence was not yet final as of January 25, 2010, insofar as the calculation of conduct credits is concerned: “At the time [the defendant] was sentenced in September 2008, section 4019 provided that a defendant could accrue conduct credit at a rate of two days for every four days of actual presentence custody. (Former § 4019.) The statute was amended effective January 25, 2010, to provide that a qualifying defendant may accrue conduct credit at a rate of four days for every four days of presentence custody.” (People v. Hopkins (2010) 184 Cal.App.4th 615, 624, fn. omitted (Hopkins).)
We begin by acknowledging that there is an existing controversy in the California appellate courts concerning the retroactivity of the recent amendment to section 4019 (cf. People v. Eusebio (2010) 185 Cal.App.4th 990 [2d Dist. Div. 4; amendment not retroactive] (Eusebio); People v.Hopkins, supra, 184 Cal.App.4th 615 [6th Dist.; same]; People v. Otubuah (2010) 184 Cal.App.4th 422 [4th Dist., Div. 2; same]; People v. Keating (2010) 185 Cal.App.4th 364 [2d Dist. Div. 7; amendment retroactive]; People v. Bacon (2010) ___ Cal.App.4th ___ [2010 Cal.App.Lexis 1028; 2d Dist. Div. 8; same]; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5; same]); and that the question is now pending before our high court for resolution. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) For the reasons that we stated in Hopkins, we reject defendant’s claim that the amendment of section 4019 should be applied retroactively in this instance.
The record shows that defendant at the time of sentencing, after calculation of the number of days in custody along with the number of days of conduct credits pursuant to former section 4019, was deemed to have served the entire prison sentence imposed by the court; additionally, he was given credit for time served for the entire jail term imposed for the count 3 conviction. In light of these facts, we requested supplemental briefing as to whether the issue that defendant poses is at this point an entirely theoretical one that we need not address. Both defendant and the Attorney General responded that the issue was not entirely theoretical. Defense counsel has observed that if, after applying the credits available to his prison sentence, there are excess credits, these credits are to be applied to the period of his parole. (See § 2900.5: “(a) In all felony and misdemeanor convictions, ... all days of custody of the defendant, ... including days credited to the period of confinement pursuant to section 4019, shall be credited upon his or her term of imprisonment.... [¶]... [¶] (c) For the purposes of this section, ‘term of imprisonment’ includes any period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole....”) Defense counsel has also noted that in the event there are credits remaining after they are applied to his “term of imprisonment” (ibid.), including the term of his parole, they are to be applied against any base fines and restitution fines that were imposed in this case (see § 2900.5, subd. (a)), which, in the aggregate, were more than $6,000. Accordingly, we conclude that this is not a theoretical controversy, and we will address the merits of defendant’s claim.
Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior during detention (§ 4019, subd. (c)(1)). Such credits are collectively referred to as “conduct credits.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The recently enacted Senate Bill No. 18 (2009-2010 3d Ex. Sess.) amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50, p. 4427.) The formula in place for calculating credits under section 4019 at the time defendant was sentenced (in October 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 applies because his conviction was not final as of the effective date of Senate Bill No. 18, he would be a qualifying defendant under the amendment.
Defendant contends that he is entitled to additional presentence conduct credits under the amendment to section 4019 because his conviction was not final when the amendment to section 4019 became effective. Defendant asserts that this conclusion is compelled by both statutory construction and application of the equal protection clause of the California Constitution.
In Hopkins, supra, 184 Cal.App.4th 615, we recently addressed similar arguments that the amendment to section 4019 should be given retroactive application. There, the defendant also claimed that since his conviction was not yet final as of the effective date of the amendment on January 25, 2010 (because his appeal was then pending), he was “entitled to day-for-day credit, rather than one day for every two days served” under the old formula. (Id. at p. 623.) We held that the amendment to section 4019 should be given prospective application only and thus rejected the defendant’s contentions. (Hopkins, at pp. 623-628.)
We observed: “Section 3 provides that no part of the Penal Code is ‘retroactive, unless expressly so declared.’ This statute ‘reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted “unless express language or clear and unavoidable implication negatives the presumption.” ’ (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.)” (Hopkins, supra, 184 Cal.App.4th at p. 624.) We rejected the argument that because the amendment to section 4019 was intended to address California’s fiscal emergency by a reduction of the prison population, it was the legislative intent that Senate Bill No. 18 be applied retroactively: “Obviously, if the amendment to section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however that applying the amendment prospectively is inconsistent with the Legislature’s goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature’s intent to reduce prison expenditures is particularly instructive on the issue of retroactivity.” (Hopkins, at p. 625.)
Defendant here-as did the defendant in Hopkins, supra, 184 Cal.App.4th at page 624-relies on In re Estrada (1965) 63 Cal.2d 740 (Estrada), in support of his retroactivity argument. In Estrada, the high court held that “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) Defendant contends that the effect of section 4019’s amendment is to lessen the punishment for a crime, and thus the rule in Estrada should apply. As we concluded in Hopkins, “We find that the rule laid out in Estrada is not applicable here because the amendment to section 4019 does not necessarily lessen a defendant’s punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody. Applying the amendment to section 4019 retroactively would not advance the statute’s purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred. [Citation.]” (Hopkins, at p. 625, fn. omitted; see also Eusebio, supra, 185 Cal.App.4th 990 [concluding that Estrada did not compel conclusion that amendment to section 4019 applies retroactively].) We thus held in Hopkins that there was “nothing in Senate Bill No. 18 which provides the necessary ‘ “clear and unavoidable implication negat[ing] the presumption [of prospective operation], ” ’ set forth in section 3. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1208.) [¶] As a result, the presumption against retroactivity embodied in section 3 is not rebutted and the amendment to section 4019 applies prospectively only.” (Hopkins, at p. 627.)
Additionally, defendant here-as did the defendant in Hopkins, supra, 184 Cal.App.4th at pages 627 to 628-relies on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman) and People v. Sage (1980) 26 Cal.3d 498 (Sage), in support of his equal protection argument. We reject defendant’s claim that the equal protection clause compels that the amendment to section 4019 be applied retroactively for the same reasons we provided in Hopkins. There, we noted, “Neither Kapperman nor Sage is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served. [¶] Sage is similarly inapposite, because it involved a prior version of section 4019 which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, supra, 26 Cal.3d at p. 508.) The California Supreme Court found that there was neither ‘a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.’ (Ibid.) The purported equal protection violation at issue here is temporal, rather than based on the defendant’s status as a misdemeanant or felon. [¶]... [O]ne of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Hopkins and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.” (Hopkins, at pp. 627-628; see also Eusebio, supra, 185 Cal.App.4th 990 [distinguishing Kapperman and Sage and holding there was rational basis for prospective application of amendment to § 4019].)
We conclude therefore, following our decision in Hopkins, supra, 184 Cal.App.4th 615, and Eusebio decided by Justice Epstein of the Second District Court of Appeal (Division Four), that the amendment to section 4019 operates prospectively and that defendant is not entitled to the benefit of additional conduct credits under the new formula.
DISPOSITION
The court’s purported revocation of defendant’s license referenced in the reporter’s transcript of the October 1, 2009 sentencing hearing, in the clerk’s minutes of said hearing, and in the abstract of judgment, is ordered stricken. This court’s order shall have no impact on the obligation of the Department of Motor Vehicles to take appropriate action to suspend or revoke defendant’s driving privileges as required by law as a consequence of defendant’s conviction. The trial court is directed to prepare an amended abstract of judgment that (1) strikes the purported revocation of defendant’s license; and (2) includes the court’s concurrent sentence of 30 days in county jail with a credit of 30 days for time served for the conviction under Vehicle Code section 14601.2 (count 3), and deliver it to the Department of Corrections. As so modified, the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.