Opinion
H043359
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN SAMPAGA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142110)
Defendant Adrian Sampaga appeals from orders issued on March 10, 2016, specifically: (1) an order revoking probation and imposing a felony sentence on an attempted burglary conviction (Pen. Code, §§ 459, 664), which triggered a "probation revocation restitution fine" (§ 1202.44); and (2) an order granting his petition for recall of sentence under section 1170.18 and reducing his conviction to a misdemeanor.
All further statutory references are to the Penal Code unless otherwise specified.
Section 1170.18 was added in 2014 when the voters approved Proposition 47, known as the Safe Neighborhoods and Schools Act. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) "Proposition 47 . . . reduced certain drug-related and property crimes from felonies to misdemeanors. The measure also provided that, under certain circumstances, a person who had received a felony sentence for one of the reduced crimes could be resentenced and receive a misdemeanor sentence." (People v. Morales (2016) 63 Cal.4th 399, 403.) Section 1170.18 establishes a procedure for seeking resentencing under specified criminal statutes added or amended by Proposition 47 where the defendant's offense would have been a misdemeanor if it had been committed when Proposition 47 was in effect. Proposition 47 added section 459.5 (Voter Information Guide, supra, text of Prop. 47, § 5, p. 71), which defines a new crime of shoplifting and is one of the sections specified by section 1170.18.
On appeal, defendant argues: (1) the trial court should have granted his petition for recall of sentence and resentencing before revoking felony probation, and therefore the order revoking probation must be reversed and the probation revocation restitution fine must be vacated; (2) the trial court imposed an unauthorized sentence when it reduced his conviction to misdemeanor attempted burglary rather than to misdemeanor attempted shoplifting (§ 459.5), and he must be resentenced to the latter; and (3) since misdemeanor attempted shoplifting carries a maximum penalty of 30 days imprisonment (§§ 19, 459.5, 664), he will have excess custody credits that must be applied to any outstanding fines and fees (§ 2900.5, subd. (a)).
We affirm the trial court's order revoking probation and imposing a felony sentence on defendant's conviction of attempted burglary. But we reverse the court's order reducing defendant's felony attempted burglary conviction to a misdemeanor conviction under the authority of section 1170.18 because it constitutes an unauthorized sentence in this context. We remand the matter for resentencing under section 459.5, calculation of custody credits, and application of any excess custody credits under governing law.
I
Procedural History
A complaint, filed August 19, 2014, alleged that defendant committed felony second degree robbery (§ 211) on or about August 15, 2014. It further alleged that defendant had been previously convicted of a serious or violent felony, namely robbery, and therefore he was subject to sentencing under the Three Strikes law.
On August 26, 2014, the prosecutor moved to amend the information to add an attempted commercial burglary charge (§§ 459, 664) as count 2. Defense counsel made "an oral Romero motion" (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The trial court explained to defendant that he could be sentenced to a term of 18 months if he entered a plea of no contest and the court struck the prior conviction. A waiver/plea form signed and initialed by defendant indicated that he was entering a no contest plea to attempted second degree burglary (§§ 459, 461, subd. (b), 664) on condition that he be placed on felony probation with a jail term condition not exceeding one year. The form reflected defendant's understanding that, if he later violated probation, the court could sentence him to a maximum prison term of a year and a half. The form specified that the factual basis for the plea was that defendant attempted to take three deodorants from Star Market in Salinas without paying for them. Defendant pleaded no contest to attempted second degree burglary, a felony, and admitted the prior strike conviction allegation. The trial court granted the Romero motion.
The probation report filed in court on September 30, 2014 indicated that, on August 15, 2014, defendant had "walked out" of Star Market "with three unpaid bottles of deodorant" and that, after being apprehended, defendant told police that "[h]e went inside to steal deodorant, as he needed hygiene products." It recommended that defendant be granted felony probation.
At the time of sentencing on September 30, 2014, the prosecution agreed that probation was appropriate even though defendant had a strike on his record because his criminal conduct had been "minimal." The trial court suspended imposition of sentence and placed defendant on three years of formal felony probation under certain terms and conditions. One of the conditions required defendant to serve 93 days in county jail with 93-days credit for time served (47 actual days plus 46 days conduct credit). Another condition required defendant to report to the probation officer immediately upon his release and "thereafter when and as required."
The trial court ordered defendant to pay a restitution fine of $300.00 to the State Restitution Fund (§ 1202.4, subd. (b)), and an additional restitution fine in the amount of $300.00 was "imposed, suspended, and not to be paid unless and until probation is revoked and not reinstated" (§ 1202.44).
Defendant was also ordered to pay other fines and fees that are not being challenged in this appeal.
On October 15, 2015, a notice of probation violation was filed. It alleged that defendant had violated probation by failing to report to his probation officer as required.
On October 22, 2015, defendant failed to appear for arraignment on the alleged violation of probation. The trial court summarily revoked probation and issued a no-bail bench warrant.
The bench warrant was served, and defendant was held in custody without bail. On December 28, 2015, defendant was arraigned on the alleged probation violation. Defendant was held in custody without bail.
On January 12, 2016, defendant admitted the alleged violation of probation. The court ordered a supplemental probation report and scheduled a hearing for February 18, 2016. Defendant was held in custody without bail.
On January 13, 2016, defendant filed a petition for recall of sentence and resentencing to be heard on February 18, 2016. The written response of the County of Monterey District Attorney (D.A.), which was filed February 11, 2016, stated that the D.A. had no objection to the petition and that defendant was entitled to the requested relief.
The People have not asserted, and nothing in the record before us indicates, that defendant has suffered a disqualifying conviction that would preclude relief under section 1170.18. (See § 1170.18, subd. (i).) "[S]ection 1170.18, subdivision (b), provides that a person meeting the requirements of subdivision (a) . . . 'shall' be resentenced 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Harris v. Superior Court (2016) 1 Cal.5th 984, 991-992.) The D.A. did not oppose defendant's petition on dangerousness grounds.
At the February 18, 2016 hearing, the matter was set for a hearing on March 10, 2016. The defendant remained in custody, and no bail was allowed.
On March 10, 2016, based on the probation violation, the trial court terminated probation and imposed a one-year term on defendant's attempted burglary conviction. (See §§ 461, subd. (b), 664, subd. (a), 1170, subd. (h)(1).) The trial court determined that defendant had 244 days credit, consisting of 122 actual days plus 122 days conduct credit. It also ordered defendant to pay "the previously suspended $300 state restitution fine."
The trial court next considered defendant's petition for recall of sentence and resentencing, and recalled the felony sentence. The court redesignated the crime a misdemeanor, but it did not reimpose any term of imprisonment. It ordered defendant to pay the balance of all previously-imposed fines, fees, and restitution "imposed through the Monterey County Revenue Division." The court advised defendant that, "[f]ollowing completion of this misdemeanor sentence," he would be on parole for a period of one year, and the court ordered him to report to the parole office by May 2, 2016.
In a separate case (case No. MS325590), the trial court accepted appellant's no contest plea to misdemeanor embezzlement (§ 508) as charged. The trial court placed defendant on "non-reporting probation" under certain terms and conditions.
Defendant timely appealed from the March 10, 2016 orders.
II
Discussion
A. Sequence of Orders Issued on March 10, 2016
Due to the sequence of the court orders on March 10, 2016, defendant was required to pay the previously imposed, but stayed, $300 probation revocation restitution fine. "The fine under section 1202.44 is stayed, unless probation is revoked. Once probation is revoked, imposition of the fine under section 1202.44 is mandatory and the court must lift the stay. [Citation.]" (People v. Preston (2015) 239 Cal.App.4th 415, 429.) Section 1202.44 expressly provides that the "probation revocation restitution fine shall become effective upon the revocation of probation."
Defendant argues that the trial court erred when it revoked probation and sentenced him before granting his petition for recall of sentence and resentencing. Citing People v. Garcia (2016) 245 Cal.App.4th 555 (Garcia), defendant maintains that as a probationer he met the criteria for filing such a petition under section 1170.18, subdivision (a). He reasons that, if the court had considered the petition and recalled his felony sentence before it had revoked felony probation, he no longer would have been on "reporting probation" or subject to probation revocation.
On March 10, 2016, section 1170.18, subdivision (a), provided in pertinent part: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence . . . ." (Voter Information Guide, supra, text of Prop. 47, § 14, p. 73.) In Garcia, this court held that section 1170.18 "appl[ies] to all those with felony dispositions, including those placed on probation who otherwise meet the conditions specified in the statutory scheme." (Garcia, supra, 245 Cal.App.4th at p. 559.) We observed that "there is nothing in either the ballot materials or the statutory language that appears to limit the phrase 'currently serving a sentence for a conviction' to those serving a term of imprisonment." (Id. at p. 558.) We indicated that construing section 1170.18 to include such a limitation "would create an incongruity the voters would not have either anticipated or approved." (Garcia, supra, at p. 559.)
Section 1170.18 was amended effective January 1, 2017 (Stats. 2016, ch. 767, § 1), and its subdivision (a) now reads: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence . . . ."
Thus, defendant was "serving a sentence" within the meaning of section 1170.18 when he filed the petition. But Garcia says nothing about the order in which a trial court must resolve a notice of probation violation and a subsequently filed petition for recall of sentence under section 1170.18. That issue was not before us in Garcia.
Moreover, the record does not establish that the trial court misunderstood the applicable law, incorrectly believing that it lacked the discretion to grant defendant's resentencing petition without first revoking defendant's probation and imposing a term of imprisonment. Defense counsel cited Garcia to the trial court before it issued any orders, and we must presume that the trial court was aware of and understood Garcia's holding. (See Evid. Code, § 664 [presumption that "official duty has been regularly performed"]: People v. Coddington (2000) 23 Cal.4th 529, 644 [presumption that court knows and applies the correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Defendant has not cited any authority or made a persuasive argument that a petition for recall of sentence must be addressed before disposing of a previously filed notice of probation violation that was pending when such petition was filed. Defendant fails to establish that the trial court erred when it revoked probation before addressing his petition for recall of sentence and resentencing him to misdemeanor or that the $300 probation revocation restitution fine (§ 1202.44) was improperly imposed. B. Reduction of Offense to Misdemeanor Attempted Burglary Not Authorized
Defendant does not argue on appeal that resentencing his offense as a misdemeanor required the trial court to retroactively decrease the probation revocation restitution fine. The $300 probation revocation restitution fine was within the statutory limits for misdemeanors. (See §§ 1202.4, subd. (b)(1) ["If the person is convicted of a misdemeanor, the fine shall not be less than one hundred fifty dollars ($150) and not more than one thousand dollars ($1,000)"]; 1202.44 [court must "assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4"].)
Defendant argues that the trial court imposed an unauthorized sentence when it reduced his conviction to a misdemeanor conviction of attempted burglary under section 1170.18. We agree.
Section 1170.18, subdivision (a), allows eligible petitioners who would have been guilty of a misdemeanor if Proposition 47 had "been in effect at the time of the offense" to "petition for a recall of sentence . . . to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5 , 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." (Emphasis added.) Section 1170.18, subdivision (b), states in pertinent part: "Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5 , 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Emphasis added.)
To state the obvious, sections 459 (defining burglary) and 461 (specifying the punishment for burglary) are not sections listed in section 1170.18, subdivisions (a) and (b). Neither section 459 nor section 461 was added or amended by Proposition 47.
A petitioner seeking retroactive resentencing of a burglary offense to a misdemeanor has the burden to prove that the offense would have constituted misdemeanor shoplifting as statutorily defined by section 459.5 had Proposition 47 been in effect when the offense was committed. (See 1170.18, subds. (a), (b); People v. Sherow (2015) 239 Cal.App.4th 875, 879-880; Evid. Code 500; cf. People v. Acosta (2015) 242 Cal.App.4th 521, 523-524, 526 [attempted second degree burglary of a vehicle not within purview of section 1170.18].) Section 459.5, subdivision (a), provides: "Notwithstanding Section 459 , shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. . . ." (Italics added.) With an exception not shown to be applicable here, section 459.5 makes shoplifting punishable as a misdemeanor.
Section 459.5, subdivision (a), states in part: "Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170."
Under Proposition 47, shoplifting and second degree burglary are mutually exclusive crimes. Subdivision (b) of section 459.5 provides: "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." In other words, section 459.5 effectively carves out or splits off a new crime of shoplifting from the crime of second degree burglary (see §§ 459, 459.5, 460, subd. (b)). This conclusion is supported by the ballot materials, which explained to voters: "Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Voter Information Guide, supra, Legis. Analyst's analysis of Prop. 47, p. 35.) A court acting under the authority of section 1170.18 to recall a felony burglary sentence and retroactively resentence the offense as a misdemeanor cannot lawfully sentence the petitioner to misdemeanor burglary under section 459 rather than misdemeanor shoplifting under section 459.5.
As defendant correctly indicates, "[a] claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to correction whenever the error comes to the attention of the reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)" (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7.) "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) "[O]bvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (People v. Smith (2001) 24 Cal.4th 849, 852.)
The Attorney General nevertheless suggests that defendant forfeited the claim that the court erred by sentencing him to misdemeanor attempted burglary rather than misdemeanor attempted shoplifting by failing to raise "[t]he factual issue" whether he was "eligible for a reduction under the . . . shoplifting statute . . . ." We discern no factual issue.
Misdemeanor shoplifting under section 459.5 was the relevant misdemeanor among those listed by section 1170.18. The D.A. expressly advised the trial court that the People had no objection to resentencing and conceded that defendant was entitled to relief. The parties did not dispute below that defendant's offense involved property (three deodorant bottles) valued at $950 or less and that he had entered an open store (Star Market), during regular business hours, with the intent to steal. Once the court determined that defendant was eligible for relief under section 1170.18 and recalled the felony sentence, resentencing the crime as misdemeanor attempted shoplifting under section 459.5 was the only option. C. Application of Excess Custody Credit
Defendant asserts that misdemeanor attempted shoplifting conviction carries a maximum term of imprisonment of three months or 90 days, i.e. half of a six month term of imprisonment (see §§ 19, 459.5, 664, subd. (b)). Defendant argues that consequently he is entitled to excess custody credits because, on March 10, 2016, the trial court determined that defendant was entitled to a total of 244 days credit and then recalled his one-year felony sentence. By his calculation, he will be entitled to at least 154 days of excess custody credit (244 days minus 90 days) when a misdemeanor attempted shoplifting sentence is imposed.
Section 459.5 does not prescribe the punishment applicable to misdemeanor shoplifting. Section 19 provides: "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both." Section 664, subdivision (b), provides: "If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted." In addition, section 664, subdivision (c), provides: "If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted."
On appeal, the Attorney General does not dispute (1) defendant's claim as to the maximum term of imprisonment for misdemeanor attempted shoplifting, (2) defendant's assertion that he will have excess custody credits if he is resentenced to attempted misdemeanor shoplifting, or (3) his calculation of excess custody credit under that circumstance. The Attorney General's only response is to contend that defendant forfeited the argument that he is entitled to have excess custody credit applied toward outstanding fines and fees under section 2900.5, subdivision (a), by not raising it below, citing Scott, supra, 9 Cal.4th 331.
After the trial court in this case recalled the sentence, it did not actually impose a new sentence for misdemeanor attempted shoplifting, calculate defendant's custody credits and apply them first to the term of imprisonment imposed for misdemeanor attempted shoplifting, and then determine the remaining number of days of excess credit. Consequently, defendant had no opportunity to assert that the court was required to apply excess custody credits to any fine. Accordingly, we conclude that the forfeiture rule is inapplicable here.
Upon remand, the trial court should impose an authorized sentence under section 1170.80, calculate defendant's custody credits, and apply them pursuant to governing law. D. Applicable Version of Section 2900 .5
Reciting a former version of section 2900.5, subdivision (a), that was in effect in 2016, defendant asserts that he is entitled to have excess custody credits applied toward his outstanding fines and fees at a minimum rate of $125 per day. The legislative history of the bill increasing the per-day rate of credit from not less than $30 to not less than $125 discloses the arguments in support of the bill, including the facts that (1) the minimum rate of credit had not been increased since 1976, (2) the failure to adjust the rate of credit had greater impact on poor defendants and contributed to jail overcrowding, and (3) increasing the rate would provide a governmental savings due to the cost of housing someone in county jail. (See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1375 (2015-2016 Reg. Sess.) pp. 3-4.)
Former section 2900.5, subdivision (a), in effect in 2016 provided: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any fine . . . at the rate of not less than one hundred twenty five dollars ($125) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine, including, but not limited to, base fines, on a proportional basis." (Stats. 2015, ch. 209, § 2, eff. Jan. 1, 2016, italics added.)
Section 2900.5 was amended effective January 1, 2017 (Stats. 2016, ch. 769, § 2), and it no longer requires excess custody credits to be applied toward "any fine" as did the 2016 version. (See fn. 9, ante.) Section 2900.5, subdivision (a), currently provides, in part, that any excess custody credits must "be credited upon [the defendant's] term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence" and that, where the base fine is only partially satisfied, "the penalties and assessments imposed on the base fine shall be reduced by the percentage of the base fine that was satisfied." (Italics added.)
Section 2900.5, subdivision (a), currently states: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any base fine that may be imposed, at the rate of not less than one hundred twenty-five dollars ($125) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the base fine. If an amount of the base fine is not satisfied by jail credits, or by community service, the penalties and assessments imposed on the base fine shall be reduced by the percentage of the base fine that was satisfied." (Italics added.)
In 2014 when defendant committed the offense, section 2900.5 as amended in 2013 was in effect. Subdivision (a) of that version of section 2900.5 provided in part that any excess custody credits must "be credited upon [the defendant's] term of imprisonment, or credited to any fine, including, but not limited to, base fines, on a proportional basis, that may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence." (Stats. 2013, ch. 59, § 7, italics added.) The 2013 amendment of section 2900.5 eliminated all references to "restitution fines" in subdivision (a). (Compare Stats. 2013, ch. 59, § 7 with Stats. 2011, ch. 15, § 466, eff. April 4, 2011, operative Oct. 1, 2011.) Although section 2900.5, subdivision (a), as amended in 2013 referred to "any fine," its legislative history established an intent to make excess custody credits inapplicable to restitution fines.
Section 2900.5, subdivision (a), as amended in 2013 stated: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any fine, including, but not limited to, base fines, on a proportional basis, that may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine, including, but not limited to, base fines, on a proportional basis." (Stats. 2013, ch. 59, § 7, italics added.) The previous version of section 2900.5, subdivision (a), provided: "In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant. . . shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines." (Stats. 2011, ch. 15, § 466, eff. April 4, 2011, operative Oct. 1, 2011, italics added.)
The Legislative Counsel's Digest of Senate Bill No. 514, the 2013 bill amending section 2900.5, stated: "This bill would delete restitution fines from the preceding provisions, thereby prohibiting a defendant from applying any credit earned for spending specified days in custody, jail, or prison toward restitution fines." (Legis. Counsel's Dig., Sen. Bill No. 514, 1 Stats. 2013, (2013-2014 Reg. Sess.) p. 1422.) Other legislative history reiterated that intent. (See Assem. Com. on Public Safety, report on Sen. Bill 514 (2013-2014 Reg. Sess.) as amended April 23, 2013, p. 1 [this bill "[c]larifies that a term of imprisonment cannot satisfy a restitution fine"]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No: SB 514 (2013-2014 Reg. Sess.) as amended April, 23, 2013, p. 1 [same]; Sen. Com. on Public Safety, report on Sen. Bill No. 514 (2013-2014 Reg. Sess.) as amended April 23, 2013, pp. 2 [same], 4 ["this bill amends Penal Code 2900.5 to be consistent with Penal Code section 1205," which then stated that, "restitution fines and orders may not be satisfied by the time a defendant is confined"]; see also People v. Morris (2015) 242 Cal.App.4th 94, 100-101.)
Defendant now argues that his excess custody credits must be applied to reduce his outstanding fines and fees at a minimum rate of $125 per day under the retroactivity rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada). He invokes the rule but provides no analysis. The People do not discuss the Estrada rule in their brief.
"The statute at issue in Estrada . . . reduced the minimum term for the crime of escape without force or violence. [Citatiton.]" (People v. Brown (2012) 54 Cal.4th 314, 327, fn. 14 (Brown).) Estrada "held that new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final." (People v. Conley (2016) 63 Cal.4th 646, 656.) "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. (See Estrada, supra, 63 Cal.2d at p. 745.)" (Id. at p. 657.) "[T]he retroactive application of ameliorative changes to the criminal laws is ultimately governed by the intent of the legislative body." (Id. at p. 661.)
In Brown, the California Supreme Court determined that Estrada did not require courts to retroactively apply a version of section 4019 that increased presentence conduct credit. (Brown, supra, 54 Cal.4th at pp. 323-324.) The court explained: "The holding in Estrada was founded on the premise that ' "[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law" ' (Estrada, at p. 745, italics added) and the corollary inference that the Legislature intended the lesser penalty to apply to crimes already committed. In contrast, a statute increasing the rate at which prisoners may earn credits for good behavior does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent." (Id. at p. 325, fn. omitted; see id. at p. 326, fn. 16.)
Since defendant merely cites Estrada and offers no legal argument as to why its rule applies in the context of excess custody credits (or why the statutory presumption of prospective effect does not apply), we pass his claim without consideration. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) Moreover, we decline to render an advisory opinion regarding the applicability of the Estrada rule since the trial court has not yet, in the first instance, imposed a sentence for misdemeanor attempted shoplifting, calculated and applied defendant's custody credits to any term of imprisonment imposed, or exercised its discretion to set the dollar rate to be accorded each day of any excess custody credit. (See People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 ["The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court"].)
Section 3 states: "No part of it is retroactive, unless expressly so declared." --------
DISPOSITION
The order revoking probation and imposing a felony sentence on defendant's attempted second degree burglary conviction is affirmed.
The order granting defendant's section 1170.18 petition for recall of sentence and reducing the felony conviction of attempted second degree burglary to a misdemeanor conviction is reversed. The matter is remanded with directions to grant the petition, to impose a sentence for misdemeanor attempted shoplifting (§ 459.5), and to calculate and apply credits.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.