Opinion
B229857
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JAIME RODRIGUEZ, Defendant and Appellant.
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Ann Krausz for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA079051)
APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed.
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Ann Krausz for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Jaime Rodriguez appeals from an order denying his motion for additional presentence conduct credits pursuant to the 2009 amendment to Penal Code section 4019. Although defendant was convicted in 2008, and his conviction was final long before the 2009 amendment went into effect on January 25, 2010, he contends that the amended statute should be applied retroactively to him, and that a failure to do so violates equal protection. We affirm.
BACKGROUND
Defendant was charged with vehicle theft (Veh. Code, § 10851, subd. (a)) and grand theft auto. The felony complaint also alleged that defendant had served two prior prison terms within the scope of Penal Code section 667.5, subdivision (b). (Undesignated statutory references are to the Penal Code.) Defendant apparently entered into a plea agreement and pleaded guilty or nolo contendere to both counts and admitted two prior prison term allegations. On July 30, 2008, the court sentenced defendant to five years in prison, but suspended execution of the sentence and placed him on probation. On January 21, 2009, the trial court revoked probation and ordered execution of the formerly suspended sentence after defendant admitted violating probation. The court calculated defendant's local credits as 114 days of actual custody plus 57 days of conduct credits.
On November 16, 2010, defendant filed a motion asking the court to apply the 2009 amendment to section 4019 to him, although his motion variously requested no increase in his local conduct credits, 76 days of additional local conduct credits, 1 day of additional local conduct credit, 76 days of additional post-sentence actual custody credit, and 1 day of additional post-sentence actual custody credit. The trial court denied his motion on November 30, 2010.
DISCUSSION
Section 4019 permits a person detained in a jail or other local detention facility to earn additional credit against his or her ultimate sentence by performing assigned labor and complying with the facility's rules and regulations. (§ 4019, subds. (b), (c).) Such credits are collectively referred to as presentence conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Their purpose is to encourage cooperation and good behavior by those detained in local custody. (Id. at p. 939.) Prior to the 2009 amendment, former section 4019 provided for conduct credits of two days for every four days served. (Ibid; former § 4019, subds. (b), (c), (f).)
In October of 2009, the legislature amended section 4019, effective January 25, 2010, to permit certain offenders to earn presentence conduct credits at a rate of four days of conduct credits for every four days actually served in local custody. (Stats. 2009, 3d Ex. Sess. 2009, ch. 28X, § 50.) Defendant seeks to have this amendment to section 4019 applied to him, even though his conviction was final in 2008.
Effective September 28, 2010, section 4019 was amended to restore the presentence conduct credits rate that existed before January 25, 2010. This latest amendment expressly applies only to crimes committed after its effective date, which was September 28, 2010. (§ 4019, subd. (g).)
Appellate courts throughout the state have reached opposing conclusions regarding the retroactivity of the 2009 amendment to section 4019, and the California Supreme Court has granted review on all of these cases, both those applying the amendment retroactively and declining to do so. (See, e.g., 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; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.) We have previously held, based upon In re Estrada (1965) 63 Cal.2d 740 (Estrada),that the 2009 amendment to section 4019 should be applied retroactively to cases where the judgment was not yet final on the effective date of the amendment, January 25, 2010.
Generally, no part of the Penal Code is "retroactive, unless expressly so declared." (§ 3.) Estrada recognized a limited exception to this rule: "[W]here 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." (Estrada, supra, 63 Cal.2d at p. 748.) "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." (Id. at p. 745) "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Id. at p. 744.)
Defendant's judgment of conviction was already final when the 2009 amendment to section 4019 went into effect. Accordingly, the general rule barring retroactivity, not the Estrada exception to that rule, applies to his case.
Defendant alternatively argues that the failure to apply the 2009 amendment to section 4019 retroactively violates equal protection. To succeed on an equal protection claim, a defendant must first show that the state has adopted a classification that treats similarly situated persons in an unequal fashion. (People v. Wilkinson (2004) 33 Cal.4th 821, 836 (Wilkinson).)If defendant shows such disparate treatment, the legislation is reviewed differently based upon the nature of the classification. Strict scrutiny applies where the legislation creates a suspect classification based upon race or national origin or infringes a fundamental interest. (Ibid.) An intermediate level of scrutiny applies to classifications based upon gender or illegitimacy. (Ibid.) At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. (Ibid.)
Defendant argues that strict scrutiny is required here because his liberty is implicated. "A defendant, however, 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.'" (Wilkinson, supra, 33 Cal.4th at p. 838.) Thus, "the rational basis test applies to equal protection challenges based on sentencing disparities." (People v. Ward (2008) 167 Cal.App.4th 252, 258.) The burden of demonstrating the invalidity of a classification under the rational basis test rests upon its challenger. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17.)
In his opening brief, defendant relied upon a case in which review has now been granted. (In re Kemp (2011) 192 Cal.App.4th 252, review granted Apr. 13, 2011, S191112.) Defendant recognizes that Kemp is no longer citable, but urges this court to rely upon the principles set forth in that decision. In Kemp, the Third District Court of Appeal concluded that equal protection required application of the 2009 amendment to section 4019 to defendants whose judgments were already final when the amendment went into effect. It concluded that, in light of the declared purpose of the bill that amended the statute, namely, addressing "the fiscal emergency declared by the Governor by proclamation on December 19, 2008 . . ." (Stats. 2009, 3d Ex. Sess. 2009, ch. 28X, § 62), no rational basis supported disparate treatment of defendants whose convictions were already final and those whose convictions were not yet final when the amendment took effect.
But In re Kemp is contrary to—and largely failed to address—a substantial body of law holding that temporal classifications resulting from a statutory change do not violate equal protection. "A refusal to apply a statute retroactively does not violate the Fourteenth Amendment." (People v. Aranda (1965) 63 Cal.2d 518, 532 [refusing retroactive application of statutory amendment treating juvenile crimes as misdemeanors after discharge from Youth Authority did not violate equal protection].) "'[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.'" (Baker v. Superior Court (1984) 35 Cal.3d 663, 669 [extension of MDSO commitments following repeal of MDSO law did not violate equal protection], quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 .) "Equal protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.] The only requirement is that 'classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose.' [Citations.] The Legislature properly may give only prospective operation to statutes which lessen the punishment for a particular offense, 'to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.' [Citation.]" (In re Moreno (1976) 58 Cal.App.3d 740, 743 [refusing retroactive application of amendment eliminating minimal parole eligibility period for conviction of particular offense did not violate equal protection]; see also In re Stinnette (1979) 94 Cal.App.3d 800, 806 [refusal to apply new prison conduct credits retroactively to time served prior to effective date of new statute did not violate equal protection].) Most recently, the California Supreme Court rejected a claim that equal protection required retroactive application of Proposition 36. (People v. Floyd (2003) 31 Cal.4th 179, 188-189.) The court cited the body of law rejecting equal protection claims "arising from the timing of the effective date of a statute lessening the punishment for a particular offense," and observed that the Estrada rule is not constitutionally compelled. (Ibid.)
Limiting application of the 2009 amendment to section 4019 to defendants whose judgments were not yet final when the statute became operative on January 25, 2010, is rationally related to the stated purpose of the act that amended the statute, namely addressing the fiscal emergency declared in 2008 by reducing government expenditures. Applying the amendment to defendants whose judgments were not yet final imposes little or no additional expense upon courts or prison administrators because the award of credits will be made through "normal" processes, that is, at the time of sentencing or, for those already sentenced as of the effective date, through a motion to correct credits (§ 1237.1) in the trial court, a request by Department of Corrections and Rehabilitation staff to the trial court to correct credits, or by raising the issue in a pending appeal. But, as this case illustrates, applying the amendment to persons, such as defendant, whose judgments were already final on January 25, 2010, creates additional expense for the trial and appellate courts that would not otherwise have arisen, thus offsetting at least a portion, if not all, of any financial savings to be gained by reducing the duration of inmates' incarceration. In addition, the state has a "powerful interest in the finality of its judgments. This interest is particularly strong in criminal cases, for '[w]ithout finality, the criminal law is deprived of much of its deterrent effect.' [Citations.]" (In re Harris (l993) 5 Cal.4th 813, 831.) Limiting application of the 2009 amendment to section 4019 to defendants whose judgments were not yet final when the amendment took effect is rationally related to the state's interests in the finality of judgments and avoiding additional litigation and administrative costs. Thus, refusing retroactive application of the amendment to defendant did not violate equal protection.
Even if, overall, the state would realize greater financial savings by applying the amended version of section 4019 to persons whose judgments were already final, equal protection does not require that the classification be perfectly tailored to achieve the state's goal. Under rational basis analysis, a classification need not be perfect, and may be under- or overinclusive, or both, without violating equal protection. (Warden v. State Bar (1999) 21 Cal.4th 628, 649, fn. 13.)
Defendant also attempts to argue in his reply brief that the relevant classification is based upon wealth, not timing, in that defendants who could afford to post bail would receive day-for-day prison credits under section 2933 and thus serve half of their sentences, whereas those who could not make bail and spent time in jail would serve more than half their sentences. The same claim (albeit arising before the 2009 amendment to section 4019) has been soundly rejected in numerous cases, such as McGinnis v. Royster (1973) 410 U.S. 263, 268, 270 ; People v. Heard (1993) 18 Cal.App.4th 1025, 1028-1031; People v. DeVore (1990) 218 Cal.App.3d 1316, 1319-1320; and People v. Caddick (1984) 160 Cal.App.3d 46, 50-53. We need not revisit its merits here.
Accordingly, we reject defendant's claims.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur:
ROTHSCHILD, J.
JOHNSON, J.