Opinion
F077749
05-08-2020
THE PEOPLE, Plaintiff and Respondent, v. HERMAN STAFFORD, JR., Defendant and Appellant.
Sonny Sandhu, Public Defender, and Benjamin Rosenstein, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren Indermill, Lewis A. Martinez, Louis M. Vasquez, and Cavan Cox, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. No. 4004841)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Thomas Zeff, Judge. Sonny Sandhu, Public Defender, and Benjamin Rosenstein, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren Indermill, Lewis A. Martinez, Louis M. Vasquez, and Cavan Cox, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Herman Stafford, Jr. was charged with felony arson and held in custody at the county jail. Shortly after the arraignment, the superior court found defendant was incompetent to stand trial. The court suspended criminal proceedings and committed defendant to the State Department of Hospital Services (DHS) for restoration of competency treatment. DHS found defendant was suitable for treatment pursuant to the jail-based competency treatment (JBCT) program in county jail. Defendant remained in county jail, received treatment, and was restored to competency. The criminal proceedings were reinstated, and defendant pleaded no contest to arson and was sentenced to the second strike term of six years in prison.
The court awarded defendant full credit for his actual presentence time served under Penal Code section 2900.5 for the entire time he was in county jail. However, the court denied defendant's motion for section 4019 conduct credits for the presentence period he was in the jail but was incompetent to stand trial and receiving restoration to competency treatment through the JBCT program.
All further statutory references are to the Penal Code unless otherwise indicated.
As we will discuss below, the California Supreme Court has held that a defendant who is found incompetent to stand trial is not eligible for section 4019 presentence conduct credits while receiving treatment at a state hospital. (People v. Waterman (1986) 42 Cal.3d 565, 568 (Waterman).)
On appeal, defendant argues Waterman does not apply to this case since he received treatment through the JBCT program, he remained in county jail, and he was not sent to a state hospital. Defendant further argues that subsequent amendments to section 4019 have effectively overruled any extension of Waterman to this case, and that he is entitled to conduct credits as a matter of due process and equal protection. Finally, defendant asserts that regardless of the statutory amendments, any custodial inmate who receives competency treatment while being held in a county jail was already entitled to conduct credits under existing law.
We affirm.
FACTS
Defendant entered a plea prior to the preliminary hearing, and the parties stipulated to the following factual basis for his plea.
On August 6, 2017, defendant went to Mellis Park in Modesto, where a fire captain saw that defendant started some trash can and trash fires. Defendant was dancing around the fire and told law enforcement that he used the silver lighter in his pocket to set that fire because spirits told him to do so. A fire investigator found the trash can and the area around it was destroyed by the fire.
PROCEDURAL HISTORY
On August 8, 2017, a felony complaint was filed in the Superior Court of Stanislaus County charging defendant with arson (§ 451, subd. (d)), with two prior strike convictions (§ 667, subd. (d)), and two prior serious felony enhancements (§ 667, subd. (a)).
On that same day, the court appointed counsel to represent defendant. Defendant pleaded not guilty and denied the allegations. Defendant was remanded into custody at the county jail. As will be explained, defendant remained in custody at the county jail for the duration of the proceedings. The court finds defendant is incompetent to stand trial
The appellate record for the competency proceedings is limited to the clerk's transcript and minute orders. The reporter's transcript prepared on appeal only addresses the hearings for defendant's plea, sentencing, and the court's ruling on conduct credits.
On August 14, 2017, defendant appeared with his attorney. The court suspended criminal proceedings and appointed an expert to evaluate defendant to determine if he was competent to stand trial pursuant to sections 1368 and 1369.
On September 26, 2017, the court reviewed the expert's report, found defendant was incompetent to stand trial, and ordered the criminal proceedings to remain suspended. According to the minute order, the court referred defendant to the Conditional Release Program (CONREP) for an examination and a report. Commitment order
On or about October 18, 2017, the Harper Medical Group, apparently on behalf of CONREP, determined that the DHS was more appropriate for defendant.
On October 24, 2017, the court reviewed the October 18, 2017, report from CONREP. The minute order states the court committed defendant and ordered his delivery to "Atascadero," referring to the state hospital, and the JBCT program.
On October 25, 2017, the court filed the order that committed defendant to the DHS for competency restoration treatment pursuant to section 1370. The order stated: "Pursuant to [section] 1370(a)(1)(B)(i), the Court ORDERS that defendant be placed in a DHS facility, as directed by DHS, within four weeks of this order." The superior court's order to show cause
On November 29, 2017, the superior court issued an order to show cause (OSC) to the DHS, alleging it was in contempt for failing to transport defendant within four weeks as ordered. The OSC stated that defendant was found incompetent on September 26, 2017, he committed to "the trial competency program" with the DHS on October 24, 2017, and he had "not yet been transported" for treatment.
On December 18, 2017, the DHS requested an extension of time to respond to the OSC. The DHS stated it did not receive a complete commitment package from Stanislaus County until December 15, 2017, and defendant was currently being assessed "for suitability in a jail-based competency treatment program ...."
This request was supported by declarations from the DHS staff about the limited availability of beds for treatment, and that defendant's evaluation should be completed no later than December 29, 2017. The declarations described various JBCT programs in other county jails, such as "the 16 male-bed" program at the Sacramento County Jail's program, and "a 30-bed JBCT program" at the San Diego County Jail. The DHS also provided "competency treatment in a JBCT program for patients committed for [incompetent to stand trial] treatment" for several counties, including Stanislaus County.
On December 29, 2017, the superior court "dropped" the OSC on its own motion based on the pleadings filed by the DHS. Status update
On February 2, 2018, the court was advised defendant was No. 38 on the DHS waiting list with an estimated admissions date of March 30, 2018. Defendant remained in county jail.
On March 1, 2018, the DHS filed a notice with the court stating that defendant was "number ten on the DHS-Atascadero" wait list and was expected to be admitted on or about March 23, 2018. The DHS's notice further stated: "Please keep in mind that DHS is currently operating at full capacity on [incompetent to stand trial] beds. Consequently, this date may change, as it is dependent on the rate of persons being discharged."
A minute order for March 2, 2018, states the court reviewed the DHS's status report and noted defendant's position on the wait list, and that his possible admission would be on March 23, 2018. Defendant remained in county jail "for delivery" to the DHS and the JBCT. Defendant's admission to the JBCT program
On March 7, 2018, the DHS filed another status update with the court, and again stated that DHS was currently operating at full capacity on incompetent to stand trial beds, defendant was still "number ten on the DHS-Atascadero, and he was expected to be admitted on or about March 23, 2018," based on the rate of persons being discharged.
On the same date, however, a "Certification of Program Admission" was filed with the superior court by the California Forensic Medical Group, on behalf of the Stanislaus County JBCT program. The certification stated:
"Pursuant to the Court recommendation of participation in the Stanislaus County Jail-Based Competency Training Program, [defendant] has undergone evaluation and assessment by a member of the JBCT Program clinical staff and it has been determined that he is suitable for treatment in our program. As such, the individual was admitted to the JBCT Program for treatment on March 7, 2018."
Defendant was thus formally admitted to the JBCT program on March 7, 2018. Reinstatement of criminal proceedings
According to a pleading filed by the People, on or about March 9, 2018, the JBCT program clinical staff evaluated defendant and determined that he was restored to competency.
On March 20, 2018, a "Recommendation of Competency to Stand Trial" was filed with the superior court by the California Forensic Medical Group on behalf of the Stanislaus County JBCT program. The recommendation stated:
"[Defendant] has undergone evaluation and assessment by the Stanislaus County JBCT Program team and it is our recommendation that the individual be returned to court as competent to stand trial. [I]n order to ensure continuity of care, we strongly recommend [defendant] continue to take the medication being prescribed at the time of discharge from the JBCT Program throughout his detention and trial. Given the nature of his mental illness, he is likely to decompensate from his current level of psychiatric functioning if he discontinues his medication regimen, and may become incompetent to stand trial as a result."
On March 22, 2018, the superior court reviewed the report and recommendation. The court found defendant was restored to competency and reinstated criminal proceedings. Defendant remained in county jail.
PLEA AND SENTENCE
On May 4, 2018, defendant pleaded no contest to the charged offense of felony arson, admitted a prior strike conviction for attempted murder in 1990, and waived his appellate rights, pursuant to a negotiated disposition. The court granted the People's motion to dismiss the remaining allegations. The court granted defendant's motion to be sentenced without a formal probation report, and defendant waived time for sentencing.
The court imposed the upper term of three years in prison, doubled to six years as the second strike term. Calculation of credits
After defendant was sentenced, the parties agreed defendant should receive credits for the actual time served pursuant to section 2900.5 for his entire presentence period, including when he received restoration of competency treatment from the JBCT program in jail. Defendant argued he should also receive conduct credits under section 4019 for the entirety of his presentence custody, including when he received treatment in the JBCT program, since he remained in jail for such treatment, and section 4019 expressly allowed conduct credits for presentence custody while a prisoner remained in jail prior to felony sentencing.
The People disagreed and argued he was not entitled to section 4019 conduct credits while criminal proceedings were suspended since he was receiving restoration to competency treatment, even though he remained in the county jail and was not sent to a state hospital.
The court granted the parties' motions to continue the matter, and the parties filed briefs about whether defendant was entitled to section 4019 conduct credits for the period he was in jail but receiving restoration of competency treatment in the JBCT program. Hearing on conduct credits
On June 15, 2018, the court held a hearing on the calculation of defendant's credits.
The court stated that according to the probation officer, defendant had actual credits of 313 days, and he "was in treatment for a period of 22 days." The court stated defendant would have been ineligible for conduct credits if he had been treated at a state hospital. The court asked the parties whether defendant he was still eligible for section 4019 conduct credits since he remained in county jail for treatment.
The prosecutor stated it was well settled that a defendant found incompetent to stand trial and committed to a state hospital could only receive actual credits and not section 4019 conduct credits for that period under Waterman. The prosecutor argued the JBCT program was equivalent to state hospital treatment since the program was created to ease the bed-space problem in state hospitals, "otherwise we would not be sending the same individuals for treatment to JBCT when we are, in fact, ordering them to a state hospital."
The prosecutor acknowledged that section 4019 had been amended to provide that a defendant committed to the JBCT program for treatment was eligible for conduct credits but stated that amendment was not effective until 2021 and it was not retroactive.
The court asked if the Legislature was "correcting a mistake" with the 2021 amendment to section 4019, or if the Legislature was "just making clear what the law is" or even "clarifying something that had been overlooked?" The prosecutor replied the amendments implied that the current version of section 4019 did not permit conduct credits to someone treated at a JBCT program.
Defense counsel argued that section 4019 expressly authorized conduct credits to someone confined in jail prior to sentencing, without limiting those credits if the defendant was receiving restoration of competency treatment while in jail.
The court asked the probation officer about inmates in the local JBCT program in jail, and "how often are they getting any type of treatment, counselling, whatever it is that they provide?" The probation officer believed JBCT inmates "are housed differently than regular inmates," the frequency of treatment for an inmate depended on the severity of their illness, and the treatment team made that decision. The court's ruling
The court stated it was going to "split the baby" and award defendant actual credits of 313 days under section 2900.5. The court awarded 290 days of section 4019 conduct credits "which would exclude 22 days that he was in the jail-based program." The court believed that was consistent with "the current position of the providing of credits to people in custody."
On June 28, 2018, defendant filed a notice of appeal.
The People state defendant's appeal is appropriate in this case because his waiver of appellate rights did not include the question of whether the superior court correctly calculated his conduct credits.
DISCUSSION
I. Defendant Was Not Entitled to Additional Conduct Credits
Defendant contends the superior court erroneously denied his motion for section 4019 conduct credits for the period that he was incompetent to stand trial and received restoration of competency treatment at the JBCT program. Defendant argues that section 4019 provides for presentence conduct credits for all time spent in a county jail, the statute does not prohibit conduct credits while receiving treatment when still in jail, and he should have received conduct credits for the entire presentence period since he remained in the Stanislaus County Jail for treatment and he was never sent to a state hospital.
We will review the different types of credits earned prior to sentencing, the prohibition of awarding conduct credits for inmates committed to state hospitals, and whether defendant's commitment to the JBCT program for restoration of competency treatment similarly left him ineligible for section 4019 conduct credits. We will find the legislative history and statutory interpretations support the court's finding that defendant could not receive section 4019 conduct credits when he was in the JBCT program at the relevant times in this case.
A. Presentence Credits
Section 2900.5 provides that "[p]ersons who remain in custody prior to sentencing receive credit against their prison terms for all of those days spent in custody prior to sentencing, so long as the presentence custody is attributable to the conduct that led to the conviction. [Citation.] This form of credit ordinarily is referred to as credit for time served." (People v. Duff (2010) 50 Cal.4th 787, 793; People v. Buckhalter (2001) 26 Cal.4th 20, 30.) "The calculation of actual credits is performed by simply adding together 'all days of custody' the defendant has served. [Citation.]" (People v. Arevalo (2018) 20 Cal.App.5th 821, 827.)
As a separate matter, section 4019 provides that "[a]dditional credit may be earned, based upon the defendant's work and good conduct during presentence incarceration. [Citations.] Such presentence credit is referred to as conduct credit. [Citation.] Conduct credit ordinarily is earned in the amount of two days for every four days the defendant is in actual presentence custody. [Citations.]" (People v. Duff, supra, 50 Cal.4th at p. 793.)
"Section 4019 provides that its formula for good behavior credit applies to persons detained, prior to felony sentencing, in specifically enumerated local facilities," (People v. Buckhalter, supra, 26 Cal.4th at p. 30, fn. 6) including when "a prisoner is confined in or committed to a county jail ... or a city jail." (§ 4019, subd. (a)(1).)
In issue 2, post, we will discuss the subsequent amendments to section 4019 and their possible impact on this case.
At the time a defendant is sentenced to state prison, "credit for time served, including conduct credit, is calculated by the court. The 'total number of days to be credited' is memorialized in the abstract of judgment [citation] and 'shall be credited upon [the defendant's] term of imprisonment ....' [Citation.] The credit 'in effect, becomes part of the sentence.' [Citation.]" (People v. Duff, supra, 50 Cal.4th at p. 793.)
"We independently review whether a trial court has correctly applied these statutes in awarding custody credits. [Citation.]" (People v. Arevalo, supra, 20 Cal.App.5th at p. 827.)
B. Credits for Someone Found Incompetent to Stand Trial
"If, prior to judgment in a criminal case, the court finds the defendant unable, because of mental disorder, to understand the proceedings or assist rationally in his defense, it must suspend the criminal process and commit him for treatment designed to restore his competence. [Citations.] The statute requires periodic progress reports and hearings. [Citation.] Whenever competence is restored, the criminal proceedings resume. [Citation.]" (Waterman, supra, 42 Cal.3d at p. 568; People v. Ary (2011) 51 Cal.4th 510, 517-518; People v. Smith (2003) 110 Cal.App.4th 492, 500; §§ 1367, 1368.)
A defendant who is found incompetent to stand trial, but recovers his competency and is subsequently convicted and sentenced to prison, is entitled to section 2900.5 credit for all actual days spent in presentence custody, even for the period the defendant was in a state hospital for restoration of competency treatment. (People v. Callahan (2006) 144 Cal.App.4th 678, 684.) In this case, the superior court properly awarded full credits to defendant for the actual time he was in custody prior to being sentenced, including the period he was incompetent to stand trial and received treatment through the JBCT program.
As noted above, however, the California Supreme Court has held that a defendant is not entitled to section 4019 presentence conduct credits when he or she has been found incompetent to stand trial and committed to a state hospital for restoration to competency treatment. (Waterman, supra, 42 Cal.3d at p. 571; People v. Callahan, supra, 144 Cal.App.4th at p. 686.)
The question in this case is whether conduct credits are similarly prohibited when a defendant is incompetent to stand trial, committed to the DHS, but receives restoration of competency treatment at a JBCT Program in a county jail instead of a state hospital.
C. Waterman's Restrictions on Section 4019 Conduct Credits
We turn to Waterman's discussion of this issue. In Waterman, the superior court found the defendant was incompetent to stand trial and committed him to Patton State Hospital. Thereafter, he was restored to competency and criminal proceedings were reinstated. He entered guilty pleas and was sentenced to state prison. The court awarded section 2900.5 credits for the actual time he was in presentence custody, including the period when he was in the state hospital for restoration of competency treatment. The court denied his motion for section 4019 conduct credits for the period he received treatment in the state hospital. On appeal, the defendant argued he should have also received the section 4019 conduct credits for that time. (Waterman, supra, 42 Cal.3d at p. 567-569.)
Waterman reviewed the statutory procedures in section 1367 et seq. for when the court finds a defendant is incompetent to stand trial and commits him to a state hospital. Waterman found "[t]he criminal-incompetence statute does not expressly allow such conduct credit" under section 4019. (Waterman, supra, 42 Cal.3d at p. 569.)
The defendant next argued he was entitled to section 4019 conduct credits under principles of equal protection, based on prior decisions that awarded conduct credits to offenders committed for narcotics addiction treatment at the California Rehabilitation Center (CRC). (Waterman, supra, 42 Cal.3d at p. 569.)
Waterman rejected the defendant's equal protection argument because "the purposes of the two programs, and the status of their participants," referring to CRC and a commitment for being incompetent to stand trial, "are entirely different." (Waterman, supra, 42 Cal.3d at p. 569.)
"CRC affords postconviction rehabilitative treatment related to a finding of criminal conduct. The incompetence program, on the other hand, is a special form of pretrial detention not at all concerned with criminal rehabilitation; its purpose is restoration of a specific mental state without which the criminal process cannot proceed. [¶] ... [¶] [U]nlike CRC committees, they have been found to harbor a 'mental disorder' or defect.
This condition precludes them from comprehending or assisting in the criminal proceedings. [Citation.] Unless restored to competence, they cannot be tried [citation], and the criminal justice system will be frustrated. As with other mentally disordered committees, the Legislature may decide that important therapeutic goals are not served by a conduct-credit system, even if nondisordered addict-offenders may earn such credits during their CRC confinement.
"The goal of treatment for incompetence seems particularly inconsistent with an incentive-credit system during therapy. The purpose of confinement is to restore the mental ability to stand trial. ... [T]hat goal would be hindered if mere institutional good behavior and participation automatically reduced the therapy period. [Citation.]" (Waterman, supra, 42 Cal.3d at pp. 569-570, some italics added, fns. omitted.)
Waterman further held that "[a]n incentive-credit system" that awards conduct credits is not compatible with the treatment of criminal incompetents because "persons so ill that they cannot understand or assist trial proceedings may often be so disoriented that they are incapable of responding to credit incentives." (Waterman, supra, 42 Cal.3d at p. 570, fn. 3.) Waterman concluded that "[t]he hospital confinement and the prison term involve different settings and purposes; the subsequent prison term does not alter the fact that the incompetence confinement was a pretrial detention for treatment." (Id. at p. 571, italics added.) "We therefore hold that persons confined for hospital treatment as incompetent to stand trial are not denied equal protection of the laws to the extent that they, unlike offenders committed to CRC for treatment of drug addiction, cannot earn conduct and participation credits against subsequent prison sentences," and principles of equal protection did not require the defendant to receive conduct credits while confined for treatment. (Ibid. & fn. 4.)
D. Defendant's Commitment to the DHS and the JBCT Program
Defendant asserts Waterman does not apply in this case because he was never sent to a state hospital, and instead received restoration of competency treatment through the JBCT program while remaining in county jail. Defendant asserts the provisions of section 4019 apply and he should receive conduct credits for the entire period he was in jail. However, the location for defendant's competency treatment is not determinative.
Instead, we must begin with the court's order that committed defendant to the DHS on October 25, 2017: "Pursuant to [section] 1370(a)(1)(B)(i), the Court ORDERS that defendant be placed in a DHS facility, as directed by DHS, within four weeks of this order."
The minute order for the commitment hearing states that the court ordered defendant's delivery to "Atascadero" and the "JBCT" program. On March 1, 2018, when the DHS filed a status update, it stated that defendant was "number ten on the DHS-Atascadero" wait list, and he was expected to be admitted on or about March 23, 2018. The DHS's notice further stated: "Please keep in mind that DHS is currently operating at full capacity on IST beds. Consequently, this date may change, as it is dependent on the rate of persons being discharged."
As the parties agree, defendant was committed to the jurisdiction of the DHS but not sent to a state hospital, and instead was accepted into and received treatment at the JBCT program in the Stanislaus County Jail on March 7, 2018.
The only evidence in the instant record about the nature of the JBCT program was contained in the staff declarations supporting the DHS's response to the court's OSC for contempt. The DHS explained that it operated JBCT Programs such as "the 16 male-bed" program at the Sacramento County Jail's program and "a 30-bed JBCT program" at the San Diego County Jail. DHS declared it also provided "competency treatment in a JBCT program for patients committed for IST [incompetent to stand trial] treatment" for several counties, including in Stanislaus County, where defendant was ultimately placed.
The determinative question is thus whether defendant was in custody in a county jail within the meaning of section 4019 so that he was eligible for presentence conduct credits, or he was within the jurisdiction of the DHS pursuant to section 1370 while receiving restoration of competency treatment through the JBCT program, even though he remained in the county jail so that the rationale of Waterman would prohibit conduct credits.
E. Section 1370
The superior court's commitment order was issued pursuant to section 1370, subdivision (a)(1)(B), which states that if the court finds the defendant is incompetent, "the trial shall be suspended until the person becomes mentally competent."
The court has the authority to commit defendant to the DHS pursuant to section 1370, subdivision (a)(1)(B)(i), as was done in this case. As of 2016, this subdivision stated in relevant part:
"[T]he court shall order that the mentally incompetent defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a county jail treatment facility or the community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600." (Stats. 2015, Ch. 260, section 1 (SB 453), effective January 1, 2016, italics added.)The 2016 version of subdivision (a)(1)(B)(i) thus expressly included "a county jail treatment facility" as one of the facilities within the jurisdiction of the DHS that a defendant could be committed to for restoration of competency treatment.
Effective June 27, 2017, subdivision (a)(1)(B)(i) of section 1370 was amended to delete the phrase "a county jail treatment facility," but that deletion did not eliminate DHS's jurisdiction over such a facility. As a result of the 2017 amendment, which was operative at the time defendant was committed and received treatment, subdivision (a)(1)(B)(i) stated:
"[T]he court shall order that the mentally incompetent defendant be delivered by the sheriff to a State Department of State Hospitals facility, as defined in Section 4100 of the Welfare and Institutions Code , for the care
and treatment of the mentally disordered, as directed by the State Department of State Hospitals, or to any other available public or private treatment facility, including a community-based residential treatment system established pursuant to Article 1 (commencing with Section 5670) of Chapter 2.5 of Part 2 of Division 5 of the Welfare and Institutions Code if the facility has a secured perimeter or a locked and controlled treatment facility, approved by the community program director that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status as specified in Section 1600." (Stats. 2017, ch. 17, § 30 effective June 27, 2017, italics added.)
The 2017 amendment thus defined the DHS's jurisdiction over facilities by reference to Welfare and Institutions Code section 4100.
Welfare and Institutions Code section 4100 states the DHS "has jurisdiction over the following facilities," and lists the five state hospitals in California. (Welf. & Inst. Code, § 4100, subds. (a)-(e).) Subdivision (g), added as part of the 2017 amendments (Stats. 2017, Ch. 17 (AB 103)), states that "[a] county jail treatment facility under contract with the State Department of State Hospitals to provide competency restoration services" is another facility within DHS's jurisdiction for a defendant to receive restoration of competency treatment. (Welf. & Inst. Code, § 4100, subd. (g).)
We further note that subdivision (a)(1)(B)(i) of section 1370 states that in addition to the DHS facilities identified in Welfare and Institutions Code section 4100, the court may commit a defendant found incompetent to stand trial to "any other available public or private treatment facility." (Italics added.) Section 1369.1, subdivision (a) defines this phrase:
"As used in this chapter, 'treatment facility' includes a county jail. Upon the concurrence of the county board of supervisors, the county mental health director, and the county sheriff, the jail may be designated to provide medically approved medication to defendants found to be mentally incompetent and unable to provide informed consent due to a mental disorder, pursuant to this chapter... The provisions of Sections 1370, 1370.01, and 1370.02 shall apply to antipsychotic medications provided in a county jail, provided, however, that the maximum period of time a defendant may be treated in a treatment facility pursuant to this section shall not exceed six months." (Italics added.)
The legislative history for the 2017 amendments to both section 1370, subdivision (a)(1)(B)(i), and Welfare and Institutions Code section 4100, as set forth above, explains the reasons for these changes:
"Existing law identifies the state hospitals over which the State Department of State Hospitals has jurisdiction, including, among others, Atascadero State Hospital and Coalinga State Hospital. [¶] This bill would provide the department with jurisdiction over the Admission, Evaluation, and Stabilization (AES) Center in the County of Kern, and other AES Centers as defined by regulation. The bill would also authorize the Director of State Hospitals to adopt emergency regulations to implement this provision and would declare that the adoption of emergency regulations under this provision is deemed to address an emergency, for purposes of the Administrative Procedure Act. The bill would provide the department with jurisdiction over any county jail treatment facility under contract with the State Department of State Hospitals to provide competency restoration services. The bill would also make other technical and conforming changes." (See Stats. 2017, ch. 17 (AB 103), Legislative Counsel's Digest, Paragraph 14 of initial recitals, italics added.)
The legislative history of the 2017 amendments thus shows these statutes were modified to expand the facilities within the jurisdiction of the DHS to include "[a] county jail treatment facility under contract with the State Department of State Hospitals to provide competency restoration services," as defined by Welfare and Institutions Code section 4100, subdivision (g), and also a "public or private treatment facility," defined to include a county jail (§ 1370, subd. (a)(1)(B)(i); § 1369.1, subd. (a)).
The 2018 amendments to section 1370 have not changed the operative language of subdivision (a)(1)(B)(i), as italicized above.
Therefore, based on the language of section 1370, subdivision (a)(1)(B)(i), section 1369.1, subdivision (a), and Welfare and Institutions Code section 4100, subdivision (g), when a court commits a defendant who is incompetent to stand trial to the DHS for treatment, the DHS has jurisdiction to place the defendant in a jail treatment facility for restoration of competency treatment, and that defendant is in jail subject to the jurisdiction of the DHS under section 1370.
F. Analysis
"The primary rule of statutory construction is to ascertain the legislative intent in order to effectuate the statute's purpose. [Citation.] When the words of the statute are clear, the court does not alter or amend them to accomplish a purpose that does not appear on the face of the statute; rather, the court gives effect to the plain meaning of the statute. [Citations.]" (Reidy v. City and County of San Francisco (2004) 123 Cal.App.4th 580, 591.)
"The purpose of [section 4019 presentence] conduct credits is to affect inmates' behavior by providing them with incentives to work and behave. [Citation.]" (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Waterman held that "[t]he criminal incompetence statute does not expressly allow" section 4019 conduct credits (Waterman, supra, 42 Cal.3d at p. 569), and "[t]he goal of treatment for incompetence seems particularly inconsistent with an incentive-credit system during therapy. The purpose of confinement is to restore the mental ability to stand trial. [T]hat goal would be hindered if mere institutional good behavior and participation automatically reduced the therapy period. [Citation.]" (Id. at p. 570, italics added, fn. omitted.) Waterman further held that "[a]n incentive-credit system" is not compatible with the treatment of criminal incompetents because "persons so ill that they cannot understand or assist trial proceedings may often be so disoriented that they are incapable of responding to credit incentives," and this prohibition does not violate equal protection. (Id. at p. 570, fn. 3.)
Waterman thus held that "a custodial defendant is not entitled to section 4019 presentence conduct credits for time spent in a state hospital while incompetent "because the period of confinement while the accused is hospitalized is not considered punitive." (People v. Bryant (2009) 174 Cal.App.4th 175, 177.) "[T]he therapeutic purpose of incompetency confinement in a state hospital has little if anything to do with the statutory conduct credit incentive available to a competent criminal defendant held in jail prior to trial. The therapy must not be artificially shortened by a factor unrelated to psychiatric concerns. [Citation.]" (People v. Callahan, supra, 144 Cal.App.4th at p. 687; People v. G.H. (2014) 230 Cal.App.4th 1548, 1558.)
We believe Waterman's rationale applies to this case. While defendant remained in the county jail during the period that he was incompetent to stand trial, he was subject to the jurisdiction of the DHS pursuant to the court's commitment order under section 1370, subdivision (a)(1)(B)(i). The DHS had the statutory authority and jurisdiction under section 1370 and Welfare and Institutions Code section 4100 to place defendant in a jail-based treatment program to receive restoration of competency treatment. As with a commitment to a state hospital, the therapeutic purpose of his confinement and treatment in the JBCT program, which the record indicates is separate from custody in the jail's general population, also "has little if anything to do with the statutory conduct credit incentive available to a competent criminal defendant held in jail prior to trial. The therapy must not be artificially shortened by a factor unrelated to psychiatric concerns. [Citation.]" (People v. Callahan, supra, 144 Cal.App.4th at p. 687; People v. G.H., supra, 230 Cal.App.4th at p. 1558.)
We conclude the superior court properly denied defendant's motion to receive section 4019 conduct credits for the period he received restoration to competency treatment while committed to the DHS's jurisdiction in the JBCT program.
II. The Subsequent Amendments to Section 1370
We have discussed above the version of section 4019 that addressed presentence conduct credits that was applicable at the time defendant was found incompetent to stand trial, received treatment, and then found competent.
Defendant contends that subsequent amendments to section 4019 have essentially overruled any extension of Waterman to this case, and that he is entitled to conduct credits as a matter of due process and equal protection.
We will review these amendments, the legislative intent, and whether they are retroactive to the period defendant was incompetent to stand trial.
A. The Amendments to Section 4019
Defendant's argument is based on the passage of Senate Bill No. 1187 (Stats. 2017-2018, Ch. 1008) (SB1187), which amended several relevant statutes regarding incompetency and conduct credits.
As applicable to defendant's argument, the bill first amended section 1375.5, contained within the chapter addressing whether a defendant is found incompetent to stand trial. Subdivision (a) was amended to state:
"Time spent by a person in a treatment facility or county jail as a result of proceedings under this chapter shall be credited against the sentence, if any, imposed in the underlying criminal case or revocation matter giving rise to the competency proceedings." (Stats. 2018, ch. 1008, § 4.)
Section 1375.5, subdivision (c) was also amended to state:
"A person subject to this chapter shall receive credits pursuant to Section 4019 for all time during which he or she is confined in a county jail and for which he or she is otherwise eligible." (Stats. 2018, ch. 1008, § 4.)
SB 1187 also amended section 4019 to add subdivision (a)(8), to define a new category of prisoners who shall receive presentence conduct credits:
"When a prisoner is confined in or committed to a county jail treatment facility, as defined in Section 1369 .1, in proceedings pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2." (Stats. 2018, ch. 1008, § 5, italics added (SB 1008).)
As explained above, section 4019 provides for presentence conduct credits while a defendant is held in a county jail, section 1370, subdivision (a)(1)(B)(i) states the court may commit a defendant found incompetent to stand trial to "any other available public or private treatment facility," and section 1369.1, subdivision (a) defines this phrase to include "a county jail."
SB 1187's amendments thus extend section 4019 presentence conduct credits to a defendant found incompetent to stand trial, committed to the DHS's jurisdiction, and placed in a county jail treatment program.
B. Retroactive Application of the Amendments
The next question is whether SB 1187's amendments are applicable to defendant's case. SB 1187 was signed by Governor Brown on September 30, 2018, and was effective January 1, 2019. However, defendant was found incompetent and committed to the DHS's jurisdiction in October 2017; found competent to stand trial in March 2018; entered his plea and was sentenced in May 2018; and the court denied his motion for conduct credits in June 2018.
More importantly, SB 1187's amendments were added to a version of section 4019 that already contained the following language in subdivision (j): "This section shall become operative on January 1, 2021." (Stats. 2018, ch. 1008, § 5.)
Defendant asserts that he is entitled to retroactive application of SB 1187's amendments to section 4019 based on principles of equal protection. In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court addressed whether a prior version of section 4019 should be given retroactive effect to permit prisoners who served time in local custody before that date to earn conduct credits at an increased rate.
"Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature's generally applicable declaration in section 3 provides the default rule: 'No part of [the Penal Code] is retroactive, unless expressly so declared.' We have described section 3, and its identical counterparts in other codes [citation], as codifying 'the time-honored principle ... that in 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 ... must have intended a retroactive application.' [Citations.] In applying this principle, we have been cautious not to infer retroactive intent from vague phrases and broad, general language in statutes. [Citations.] Consequently, ' "a statute that is ambiguous with respect to retroactive application is construed ... to be unambiguously prospective." ' [Citation.]" (Brown, supra, 54 Cal.4th at p. 319.)
Brown held that even though the Legislature included no statement of intent on when the amendment to section 4019 was applicable, the amendment applied prospectively only, meaning qualified prisoners in local custody first became eligible to earn conduct credit at the increased rate beginning on the amendment's operative date. (Brown, supra, 54 Cal.4th at pp. 318, 323.)
Brown also rejected the defendant's argument that the prospective application violated his equal protection rights. (Brown, supra, 54 Cal.4th at p. 328.) "The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, ' "[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." ' [Citation.] 'This initial inquiry is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." ' [Citation.]" (Ibid.)
"[T]he important correctional purposes of a statute authorizing incentives for good behavior [citation] are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response. That prisoners who served time before and after former section 4019 took effect are not similarly situated necessarily follows." (Id. at pp. 328-329, italics added.)
Brown thus held that a defendant who served time prior to the operative date of the statute was not entitled to enhanced conduct credits, and prospective application did not violate equal protection.
We believe Brown's rationale applies to the enactment of SB 1187 and similarly requires prospective application of the amended version of section 4019. Section 4019, subdivision (a)(8) was added by SB 1187 to specifically provide that inmates receiving competency treatment in state prison could receive conduct credits. However, the new subdivision (a)(8) was added to the version of section 4019 that already contained subdivision (j): "This section shall become operative on January 1, 2021." (Stats. 2018, ch. 1008, § 5.)
" ' "A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus, it is not proper to confine interpretation to the one section to be construed." ' [Citations.]" (People v. Rajanayagam, supra, 211 Cal.App.4th at p. 52.) "[W]e do presume the Legislature is aware of existing law when it amends a statute. Therefore, when the Legislature does not change a statute in a particular respect but does change it in other respects, we infer an intent to leave the statute as it stands in the aspects of the statute that were not amended. [Citation.]" (Reidy v. City and County of San Francisco, supra, 123 Cal.App.4th at p. 592.) Since SB 1187 did not amend section 4019, subdivision (j) to change the operative date of the entire statute, the legislative intent appears to be prospective.
Even under the most generous interpretation of SB 1187's amendments to both section 1375.1 and section 4019, subdivision (a)(8), the bill was signed into law and became effective on January 1, 2019 at the earliest. This is still after defendant was found incompetent to stand trial, placed in the JBCT program, restored to competency, entered his pleas, and was sentenced. Again, Brown is consistent with prospective application of the amendments.
C. Interpretation of SB 1187's Intent
Defendant raises an alternate argument - that we cannot presume that SB 1187's addition of section 4019, subdivision (a)(8), that expressly provides for conduct credits for inmates found incompetent to stand trial and receiving treatment in a jail-based program, means that such credits were not already available to such a prisoner. Defendant suggests that, even if SB 1187's amendments are prospective, those amendments simply clarify what is already provided for in the previous version of section 4019 - that any prisoner held in a county jail shall receive presentence conduct credits.
When the Legislature undertakes to amend a statute which has been the subject of judicial construction, " 'it is presumed that the Legislature was fully cognizant of such construction, and when substantial changes are made in the statutory language it is usually inferred that the lawmakers intended to alter the law in those particulars affected by such changes.' [Citation.]" (People v. Preston (1996) 43 Cal.App.4th 450, 459-460; People v. Harrison (1989) 48 Cal.3d 321, 329; People v. Superior Court (I.R.) (2019) 38 Cal.App.5th 383, 393, review granted Nov. 26, 2019, S257773.) "An amendment that makes a material change to a statute bespeaks a legislative intent to change the meaning of the statute. [Citation.]" (Reidy v. City and County of San Francisco, supra, 123 Cal.App.4th at p. 592.)
Defendant's arguments about the meaning of SB 1187's amendments are refuted by the bill's legislative history. The Legislative Counsel's digest to SB 1187 states:
"Existing law provides that a prisoner, who, for specified reasons, is confined in or committed to a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, shall, for each 4-day period of custody, have 2 days deducted from the prisoner's period of confinement, except as specified.
"This bill would apply those provisions to a person who is committed to a facility pending the return of mental competence, as specified." (Stats. 2018, Ch. 1008, Legislative Counsel's Digest, italics added.)
The Assembly Committee on Public Safety's analysis of SB 1187 (6/19/2018) provides further insight into the legislative intent for these amendments. It states SB 1187 "[s]pecifies that when a defendant has been found IST [incompetent to stand trial] and is held in a county jail treatment center while undergoing treatment for restoration for competency, that person is entitled to custody credits in the same manner as any other inmate confined to a county jail." (http://leginfo.legislature.ca.gov/, Assm. Public Safety Comm. Analysis, 6/18/2018, Summary at p. 1.) The committee's analysis specifically addressed the bill's provisions on conduct credits for an inmate found incompetent to stand trial prior to trial:
"When a defendant is confined in county jail, a defendant is entitled to earn additional credits against their sentence at a rate of 1 day of credit for every actual day served. For example, a person in county jail for six months can earn and receive six additional months of credits, which would equal a sentence of 12 months. (Pen. Code, § 4019.) However, a person that is [incompetent to stand trial] and is committed to a state hospital does not earn additional custody credits. An [incompetent to stand trial] that is transferred from a county jail to a state hospital earns day for day credit against for time spent in the state hospital. Thus, if they spent 6 months in the state hospital while they were restored to competency, they would be entitled to 6 months credit against any sentence they ultimately receive on the charge(s) for which they were declared [incompetent to stand trial]. A defendant committed to a state hospital is neither statutorily nor constitutionally entitled to conduct credits (Pen Code, § 4019) for preconviction custody. Thus, a defendant who was sentenced to a prison term was not entitled to good conduct credits for his preconviction commitment to a state hospital for treatment....
"SB 568 (Wiggins), Chapter 556, Statutes of 2007, allowed county jails or other county penal facilities to be used as 'county jail treatment facilities,' as specified, to restore a criminal defendant's mental competency. According to Senator Wiggins, the purpose of the bill was to serve as an interim measure until the defendant can gain entrance into a state hospital. (Assembly Public Safety Analysis, SB 568 (Wiggins), 2007.)
"This bill would ensure that an individual that has been found IST and continues to be held and treated in a county jail, earns credits in the same manner and at the same rate as an individual in a county jail that is not IST. This bill would not change the calculation of credit for individuals committed to the state hospital or other treatment facility." (http://leginfo.legislature.ca.gov/, Assm. Public Safety Comm. Analysis, 6/18/2018, at p. 5, italics added.)
A summary of the same legislative intent was contained in the review by the Assembly Appropriations Committee (8/13/2018), the Assembly Floor Analysis (8/23/2018), and the Senate Floor Analysis (8/28/2018): "This bill mandates equal credits-earning by committed incompetent persons who are detained in county jail facilities."
D. Conclusion
The enactment of SB 1187 does not change our conclusion that defendant is not entitled to section 4019 conduct credits for the period of time he was receiving restoration to competency treatment in this case. While SB 1187 was clearly intended to eliminate that prohibition, it is not effective until 2021 and its provisions are not retroactive. We thus reject defendant's argument that the enactment of SB 1187 was simply intended to clarify that an inmate in his situation was already entitled to receive section 4019 conduct credits.
DISPOSITION
The judgment, including the calculation of credit, is affirmed.
POOCHIGIAN, J. WE CONCUR: HILL, P.J. PEÑA, J.