PEOPLE v. BROWN

Respondent’s Reply Brief on the Merits

Cal.December 20, 2010

Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. 5181963 Vv. E BROW SUPREME COURTJAMES LEE BROWN, FILED Defendant and Appellant. DEC 2 0 2010 Appellate District Third, Case No. C0565 1 §'ederck K.Ohtrich Clerk Lassen County Superior Court, Case No: Deputy The Honorable Stephen Douglas Bradbury, Judge RESPONDENT’S REPLY BRIEF ON THE MERITS ' EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVEN T. OETTING Supervising Deputy Attorney General MEREDITH A. STRONG Deputy Attorney General State Bar No. 255840 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2297 Fax: (619) 645-2271 Email: Meredith.Strong@doj.ca.gov Attorneysfor Plaintiffand Respondent General Fund - Legal/Case Work Page Introduction oo... cece sseessseseesecesseseessessesessecssecssceuscsececessesssesssssseessanevasesceres 1 ATQUMEN00...eee cesecsceesssssesscessesecssecsessecseesaecsscsscnesseecsuscesesesenssssessavseeateas 2 . I. Penal code section 3 should not be ignored...cee 2 II. The omission of a saving clauseis not a clear indication that the Legislature intended the amendment to section 4019 be applied retroactively...eeeeeeeeee 5 IfI. Respondent’s construction of the amendmentto section 4019 is consistent with legislative intent.........0.0..... 9 IV. Even assuming the Legislature intended to makepre- sentence conductcredits consistent with prison credits, this intent has no bearing on the legislature’s intent with respect to retroactivity ......ccccecsccssesscessesscssesaeeeseeees 12 V. The Legislature is presumed to have considered the judicial decisions regarding the purpose behindsection 4019 credits, and to have amendedthestatutein light thereofoese eeeecesseecesesseesssessncsecsesseesesscessesscsessescaceseaneacaees 15 VI. Section 59 does not support appellant’s position that the statute is retroactive ......c.cccecescesssseecssesesessesscsevscesseseens 19 VII. The 2010 amendment does not provide any insight into the legislative intent on retroactivity for the 2009 amendmentandthis court should decline appellant’s invitation to consider an entirely new claim..........ccece 21. A. Changes made pursuant to SB 76.......cieccsseseeeeees 21 B. Thelegislative history of the 2010 amendment does not support retroactive application of the 2009 amendmentt............ccecceeseseseeeeeeers“Levteeeeseneeesees 22 C. This court need not consider appellant’s claim that the 2010 amendmentto section 4019 is applicable to this CaS€ .........ccesssceeesessesscsseesecnseetees 26 COMCIUSION 0.0. eeeeeccesesseseeseeseeresncsstenesvesssscssestsseseeneaneaseneneciessesessetseaneaneess 28 TABLE OF CONTENTS TABLE OF AUTHORITIES Page CASES City ofSacramento v. Public Employees’ Retirement System (1994) 22 Cal.App.4th 786 oo... eccssscesnersersecsecssessessssnessecseesseseeeesseseees 23 Eu v. Chacon . (1976) 16 Cal.3d 465 oo. ccccccccesectscnscnseneceeeteeeneeeseseessemesesseseseseessesenens22 Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 oo. cccecccecsceeeesneceseeereesenseseeerseseeesensesareresseesseasess 3,4 In re Estrada (1965) 63 Cal.2d 740 oo cceccecceeeeceneesneeeneereeeseaeeeeeoeseeesssseeseenseneenenspassim In re Jennings (2004) 34 Cal.4th254Jeeeeeuaeeaeecaeeeseccacecencenaaeteaeeusetsnsenesessnaroessensegs 24 In re Kapperman (1974) 11 Cal.3d 542 oecccscsscneeeeeserseeenereeetsesseeeneeseteneteeeees 6, 16, 12, 17 In re Marriage ofEben-King & King (2000) 80 Cal.App.4th 92 occeeecsccsesseceecreesnerseetsecssessessesssssessessereaecses 27 In re Pedro T. (1994) 8 Cal.4th 1041 oocesecsecseececeseneeeseeseseessecenensnseeseseaseaseneneegs 8 In re Stinnette (1979) 94 Cal.App.3d 800 o.oo. cccccceeceessecctereseeenseeneeesneenetssaevsnessneasenss 10, 19 K.J. v. Arcadia Unified School Dist. (2009) 172 CalApp.4th 1229 oo.eccccesseesseeseneeseeteteeeeseeesenesneessesseneente 26 Lynce v. Mathis (1997) 519 U.S. 433 [117 S.Ct. 891, 137 L.Ed.2d 63] oo.eee26 McGinnis v. Royster (1973) 410 U.S. 263 [35 L.Ed.2d 282, 93 S.Ct. 1055] ooo.eee17 Medical Bd. ofCalifornia v. Superior Court. (2003) 111 Cal-App.4th 163 eieeeeeeeeneesereeenereens veneeseceeeeseeneenareratess 14 il People v. Alford (2007) 42 Cal.4th 749 ooo cccccccesesssceessecsenseeeseeeees eessesceueseseavensesetecenes 14 People v. Buckhalter (2001) 26 Cal.4th 20 oo. cccccccscsscseeseeseeeessecceaeseeeeeeserseecseeecstsssseeseneeeas 12 People v. Clark (1990) 50 Cal.3d 583 ........seseesecaseveecsuesscesaeeseseeeenaceaessetaesaeesseseuecesaseaeeatesseenss ss 13 People v. Cruz (1996) 13 Cal.4th 764 oiiccsecscecesnessecsssesecsesessssssesessccscssseceevsnsavsvecsevacnars 13 People v. Doganiere (1978) 86 Cal.App.3d 237 oo. ccccccccscessescssesessesscscsessessessssscsecsrsssescnsnae 6, 7,8 People v. Escobar (1992) 3 Cal4th 740 occcccessscessesssesessscsesscseececsecsssesrsssssscsvevsseseseseeeenes 9 People v. Floyd (2003) 31 Cal.4th 179 oo ccceccessesssssssessscsssseeessescssseesscssssessssevsceceseneesesacs 4 People v. Garcia (2006) 39 Cal.4th 1070 oo. icccsssssssssesssecssseseeesesesscsssecsssessssescstevsssevecaearss 16 People v. Hunter (1977) 68 Cal.App.3d 389 oo. ceccccsesscsscsesesesecscesssesssecsusessvsssarsacacseesaevssesaes 6 People v. Nasalga (1996) 12 Cal.4th 784 occcescescsesecssesessssessssescsvessesssssssesscescsssrseseanes 8, 14 People v. Sage (1980) 26 Cal.3d 498 ooecccccsssecsecseesscsesessesssssssscstscsesarereseees 17, 18, 19 People v. Sandoval (1977) 70 Cal.App.3d 73 o.eccccccscsssesssecsesesesessescesscssscssessssscecseeavsrsteesvataeseess 6 People v. Smith (1979) 98 Cal.App.3d 793 o..cccccccsesesssesescsssssscscsvevsssessescevsseaseseseeseees 6, 7, 8 People v. Yartz (2005) 37 Cal.4th 529 oo cecccccesesssesseecsesesescsecscsussscscacscessiseevssecenevavatensees 16 Schifando v. City ofLos Angeles (2003) 31 Cal.4th 1074 oo ccccccccscsscsscscsscscsscssserscscesevseeseceesestssstsuesseaeesees 5 Sekt v. Justice’s Court (1945) 26 Cal.2d 297 ooo ciiccicecccssscsscessssccesscecsseessssscastescsauessssseesserecesesseresecs 8 ili Ward v. Taggart (1959) 51 Cal.2d 736 oieecesssenccnseseesseeseeseceeeneeseensessesesereneseenneseeeeagey 27 Weaver v. Graham (1981) 450 U.S. 24 [101 S.Ct. 960, 67 L.Ed.2d 17]... cccceeseessseeeeeerees 26 STATUTES Civil Code § Bessssesssevsssessevesssessesssescevsssssvnevessesaeseseusnssessvenssserinansseesssssseneasescenasee 3 Penal Code EEpassim § 2933... cececessccesscesscenscetesscesseseeeeneeseeeeeeceaesenecesecasesueseneaseneseesssseeenetes 2, 21, 26 § 2933.3 .occcccccccccsscsssessececcecescessecesecesceateneesseesesseeeesseesesenssusescsessesssesseseneneess 20 § 2933.05, SUD. (8).......eecccceeececeseecernecereeeersserssasesuueesiseesseserseeseseesseeeneeensaes 20 § 2933, SUD. (D) oo. ce eececceceeerseeneeeeerereteeeeeseenseesessessesesenssceseseeseesesenatengs 20 § 4019.eds uaneeeccuaeeceecsnseaeceseneesnaneeeeseeaneeeeessessedaeeesnsneeesesesnaesspassim COURT RULES California Rules of Court Rule 8.520, subd. (b)(3) ....ceeeececceeeceeeteesereenerenesseeeeeseneescensensseaseeserseenesenees 27 Rule 8.520, SUD. (€) ..cccccccccsecsesseseneneesesenersesessneessensesensneneneseeeeterererseneer 27 OTHER AUTHORITIES Assembly Bill No. 14... ececceeeceeeeceseeeseeneeeseesessiresseessesesssessesesseesersesseeneass 13 Senate Bill No. 18 vo... ccceecsscesesceeesenneeesescerseseesensaeeeenseneeessaressnteeenegspassim Senate Bill NO. 76 ....cceceseseseecescsceeeeessecseeeseessaeeeeseesesueessasseesssecsensseseesegespassim iv INTRODUCTION Beforethis Court is the issue of whether or not the 2009 amendment to Penal Codesection 4019!is to be applied prospectively or retroactively. In the opening brief, respondent argued for prospective application as such a construction wassupported by the presumption of prospective application as set forth in Penal Codestatutes, the legislative history, the statutory scheme as a whole, and principles of fairness and equity. Appellant argues for retroactive application. Respondent and appellant agree that the answerto this question is in the legislative intent. (Defendant’s Answer Brief on the Merits (DABM)4; Respondent’s Opening Brief (ROB) 4-5.) Thestarting point for any inquiry into legislative intentas to retroactivity of a Penal Code provision begins with section 3. Appellant argues section 3 is not the beginning point for the inquiry, but rather the end-point, or “tie-breaker.” This Court has squarely addressed andrejected this argument in another case. Contrary to appellant’s assertions, this Court should not ignore section 3. It stands for the long-followed principle that statutes are presumed to operate prospectively, and without someotherclear indication that retroactive application was intended, section 3 should be followed. Next, appellant argues that the omission of a saving clauseis a clear indication that the Legislature intended retroactive application. This Court has likewise rejected this argument and determinedthat the omission of a saving clause does not end the inquiry into legislative intent. Further, the cases on which appellant relies do not support his argument. Appellant also argues that this Court should ignorethe legislative purpose behind section 4019 credits. But, when enacting the amendmentto ' All future statutory references are to the Penal Code unless otherwise indicated. section 4019, the Legislature was presumably aware of the purpose,as numerouscourts had found section 4019 credits were aimed at encouraging good behavior and work performance. The Legislature amendedthestatute in light of this construction. Further, appellant relies on a 2010 amendmentto sections 4019 and 2933 to argue a legislative intent to apply the 2009 amendment retroactively. The 2010 amendmentprovides noinsight into the Legislature’s intent that the prior 2009 amendmentbe applied prospectively or retroactively. Separately, appellant argues that this 2010 amendmentprovidesa. . ‘distinct basis on which heis entitled to a new, more beneficial accrual rate for his pre-sentence conduct credits. Becausethis issue is being raised for the first time at this stage of the appellate process, respondent objectsto this argumentand respectfully requests that this Court not considerit. In sum, defendant has not rebutted the presumption of prospective application. His construction would amount to an undeserved windfall of conduct credits to inmates who could not have been encouraged bytheir existence to follow the rules and regulations or to work. Appellant’s interpretation of the amendment underminesprinciples of fairness that form the backboneof section 4019 credits. ARGUMENT I. PENAL CODE SECTION 3 SHOULD NOT BE IGNORED In its opening brief, respondent asserted that an inquiry regarding the Legislature’s intent to apply a statute retroactively or prospectively begins with Penal Code section 3. (ROB 4-5.) In his answer, appellant counters acethat Penal Code section 3 is not the “‘starting point’ of analysis. It is the ‘ending point.’ ‘It is to be applied only after, considering all pertinent factors,it is determinedthat it is impossible to ascertain the legislative intent.” (DABM) 7-9, quoting Jn re Estrada (1965) 63 Cal.2d 740, 746, italics are appellant’s.) Essentially, appellant asks this Court to ignore Penal Codesection 3. A similar argument was advanced in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208 (Evangelatos). Evangelatos involvedaninitiative measure whichrevised joint and severalliability in tort actions. The issue before this Court was whether or not the initiative measure was to be applied retroactively or prospectively. Obviously, Evangelatos did not | involve the Penal Code, or Penal Codeprovisions. But muchlike Penal Code section 3, California’s Civil Code has a prospectivity provision as well. Civil Code section 3 is identical to Penal Code section 3 and reads, “[nJo part of [this Code] is retroactive, unless expressly so declared.” The dissent in Evangelatos asserted the same argument appellant now urges. In responseto the dissent’s position, the majority concluded: The dissenting opinion-relying on passages in a few decisions of this court to the effect that the presumption of prospectivity is to be “subordinated ... to the transcendent canonofstatutory construction that the design of the Legislature be given effect... [and] is to be applied only after, consideringall pertinent factors, it is determinedthat it is impossibleto ascertain thelegislative intent” [citations] -apparently takes the position that the well- established legal principle ... is inapplicable in this state and that Civil Code section 3 and other similar statutory provisions have virtually no effect on a court’s determination of whether a statute applies prospectively or retroactively. The language in the decisions relied on by the dissent, however, generally has not been, and should not properly be, interpreted to mean that California has embraced a unique application of the general prospectivity principle, distinct from the approach followed in other jurisdictions (citation), so that the principle that statutes are presumedto operate prospectively ordinarily has no bearing on a court’s analysis of the retroactivity question and may properly be considered by a court only as a matteroflast resort ' and then onlyas a tie-breakingfactor. (Evangelatos, supra, 44 Cal.3d at pp. 1208 .) As the majority aptly putit, the general prospectivity principle codified in numerous codes applies in California as it applies in all jurisdictions. Such a principle, particularly whereit has been codified, is not to be relegated to a mere consideration of “last resort” or a simple “tie-breaker.” But this is exactly what appellant urges. Penal Codesection 3 is not to be ignored until it is determinedthat, after considering other factors, the legislative intent is ambiguous. It is, as asserted in Respondent’s openingbrief, the “starting point” for the analysis. The Evangelatos court went on to discuss the case law post-Estrada, and found that “both this court and the Courts of Appeal have generally commencedanalysis of the question of whether a statute applies retroactively with a restatement of the fundamental principle that ‘legislative enactments are generally presumedto operate prospectively and not retroactively unless the Legislature expresses a different intention.’” (Evangelatos, supra, 44 Cal.3d at p. 1208,italics added; see also People v. Floyd (2003) 31 Cal.4th 179, 184, italics added [finding that when ascertaining legislative intent, “[w]e begin with section 3 of the Penal Code.”].) In addition, this Court noted that the plethora of California cases which had approachedtheissue of retroactivity in this manner demonstrate[d] that California continues to adhereto the time- honoredprinciple, codified by the Legislature in Civil Code section 3 and similarprovisions, 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 or the voters must have intendeda retroactive application. The language in Estrada,[and other cases] should not be interpreted as modifying this well-established, legislatively mandated principle. (Evangelatos, supra, 44 Cal.3d at pp. 1208-1209,italics added.) | Asappellant points out, the Legislature is presumed to know ofthe | judicial decisions regarding statutes whenit acts to amend or change those statutes. (DABM 18-19.) But, the Legislature is also presumably aware of the provisions of the Penal Code in existence at the time of the amendment. (See Schifando v. City ofLosAngeles (2003) 31 Cal.4th 1074, 1096 [“[T]he Legislature is deemed to be aware ofstatutes andjudicial decisions already in existence whenit enacts and amendsstatutes...”]). Accordingly, the Legislature is presumed to know that where it is silent on retroactivity, or has not so clearly indicatedits intent that a statute be applied retroactively, the statute will be applied prospectively pursuant to the directive embodied in Penal Codesection 3. Hence, where the Legislature is silent on the issue of retroactivity, Penal Code section 3 dictates its intention. Short of some other compelling indication that the statute was intendedto be applied retroactively, Penal Codes section 3 ends the inquiry. II. ‘THE OMISSION OF A SAVING CLAUSEIS NOT A CLEAR INDICATION THAT THE LEGISLATURE INTENDED THE AMENDMENTTO SECTION 4019 BE APPLIED RETROACTIVELY Next, appellant argues that the failure of the Legislature to include a “saving clause” expressly declaring the amendmentto section 4019 prospective constitutes a clear and compelling implication that the Legislature intendedretroactive application. (DABM 11.) In large part, appellant’s argumentrests on previous changesto credit schemes, both actual credits and conductcredits. Essentially, he asserts that through the past changesto credit schemes and the mannerin which the judiciary has interpreted legislative intent on retroactivity, a new rule ofstatutory construction has been created: when a beneficial change is madeto a credit scheme, the omission of a saving clauseis a clear indication of the Legislature’s intent to apply the amendmentretroactively. (DAMB 14-20.) The case law belies this assertion and no suchruleofstatutory construction has ever been approved of by this Court or any other. Appellant argues that the prior cases involving beneficial changes to credit schemesgive rise to a new cannonofstatutory construction. He asserts that, with respect to beneficial changes to credit schemes, the Legislature omits a prospectivity clause to signal a clear intention that the statute be applied retroactively. (DABM 14.) Not only doesthis proposition directly conflict with section 3, it is not supported by the cases on which appellantrelies. First, appellant relies on People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) and People v. Sandoval (1977) 70 Cal.App.3d 73 (Sandoval). In both Hunter andSandoval, the Court of Appeal wasinterpreting a 1976 amendmentto section 2900.5. There,the legislative history clearly demonstrates that this amendment was in response to this Court’s holding in In re Kapperman (1974) 11 Cal.3d 542 (Kapperman). As discussed in respondent’s opening brief (ROB 22), this Court determined in Kapperman that the explicit prospective limitation of actual credits violated equal | protection principles. (/d. at p. 545.) In responseto the holding, the Legislature deleted the delivery clause from section 2900.5, as this was the provision the Court had determined was unconstitutional. That Hunter and Sandoval recognizedthis, does not give rise to a rule ofstatutory construction that anytime the Legislature omits an express prospectivity clause,it intends retroactive application. Hunter and Sandoval simply reiterate what this Court has already held: the presumption ofprospective application can be rebutted by a clear and unmistakable legislative intent that the amendmentbe applied retroactively. In Hunter and Sandoval, there wassuch an intent, based on the finding in Kapperman,that to do otherwise would be unconstitutional. Next, appellant relies on People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) and People v. Smith (1979) 98 Cal.App.3d 793 (Smith.) Both Doganiere and Smith found that a beneficial change in the accrual rate of conduct credits should be applied retroactively. In those cases,like here, therewas no saving clause and no explicit indication of legislative intent. Appellant argues that his interpretation continuesthe legislative tradition of omitting a prospective-only clause whereit intends a changein credits should be applied retroactively. Respondent disagrees. As explained in the opening brief, respondent believes Doganiere’ wasincorrectly decided and rests on reasoning that is unsound. (ROB 7-8.) That aside, appellant’s reliance on Doganiere and Smith as representative of a rule ofstatutory construction reaches too far. In both Doganiere and Smith, the Court of Appeal found the statute retroactive not because the amendmentomitted a saving clause, but because the courts determined that a beneficial changein the accrual rate of conduct credits was an “amendatory statute lessening punishment” within the meaning ofEstrada. (Doganiere, supra, 86 Cal.App.3d at p. 240; Smith, supra, 98 Cal.App.3d at pp. 798-799.) Accordingly, neither court purported to recognizethe rule of construction now advanced by appellant. Appellant argues that these judicial decisions “inferred an intent for retroactivity from the omission of prospectivity language in amendments to sections 2900.5 and 4019.” (DABM19,italics in original.) This misstates the reasoning behindall of the decisions on which appellantrelies. These courts did determine, for various reasons, that the amendments at issue were intendedto operate retroactively, but not a single court relied on the omission of a saving clause in so finding. Rather, each court determined that retroactive application wasthe legislative intent either because the * Although not mentioned in the opening brief, respondentasserts Smith is likewise incorrectly decided becauseits holding rests on the flawed reasoning in Doganiere. history clearly indicated such an intent or because the court determined the amendmentfit within the Estrada holding. | In addition, this Court has held that the omission of a saving clause does not end the inquiry for legislative intent. None of the cases cited by appellant indicates that this rule of construction has been changed wherethe amendmentat issue is a beneficial change to the accrual rate of conduct credits. - As appellant concedes (DABM 11), “the absence of an express saving clause, emphasized in Estrada (“If there is no saving clause he can and should be punished under the new law.” [Estrada, supra, 63 Cal.2d at p. 747, citing Sekt v. Justice's Court (1945) 26 Cal.2d 297, 305]), does not end ‘[the] quest for legislative intent.’ ‘Rather, what is required is that the Legislature demonstrateits intention with sufficientclarity that a reviewing court can discern and effectuate it.’” (People v. Nasalga (1996) 12 Cal.4th 784, 793 (Nasalga), citing In re Pedro T. (1994) 8 Cal.4th 1041, 1046, — italics omitted (Pedro T.).) This Court’s holdings in Nasalga and Pedro T. are applicable here. The absence of a saving clause does not end the inquiry into legislative intent, and despite appellant’s contentionsto the contrary, no such rule has been implicitly adopted by the Legislature by virtue ofthe historical pattern ofjudicial construction of legislative intent with respect to retroactivity of changes to credit accrualrates. In a slightly related argument, appellant asserts that the Legislature’s acquiescence to the Court of Appeal decisions in People v. Doganiere, supra, 86 Cal.App.3d 237 and People v. Smith, supra, 98 Cal.App.3d 793 constitutes an indication that the Legislature approved ofthe retroactive application of a change in conduct credits. (DABM 19-20.) But,“[t]he presumption oflegislative acquiescence in prior judicial decisionsis not conclusive in determining legislative intent.” (People v. Escobar (1992) 3 Cal.4th 740, 751.) In Escobar, this Court went on to note: Legislative silence after a court has construed statute givesrise at most to an arguable inference of acquiescence or passive approval.... But something more than meresilence is required before that acquiescenceis elevated into a species of implied legislation... [Citations.] In the area of statutory construction, an examination of what the Legislature has done (as opposed to whatit has left undone) is generally the more fruitful inquiry. ‘Legislative inaction is “a weak reed upon whichto lean.” ’ [Citation.]” Wbid., internal citations and quotation marks omitted.) In light of this, we are left with appellant’s argument regarding legislative intent, which weighs heavily on a cannonofstatutory construction this Court has deemed, “‘a weak reed upon which to lean” and respondent’s argument regarding a presumption of prospectivity (§ 3) that has been followed by this Court in numerouscasesandis codified as an accepted principle of statutory construction. Appellant’s argument should be rejected. . . III. RESPONDENT’S CONSTRUCTION OF THE AMENDMENTTO SECTION 4019 IS CONSISTENT WITH LEGISLATIVE INTENT In its opening brief, respondentclarified a portion ofthe prospective argument which had been misconstrued by the Court of Appeal. (See ROB 18.) According to the Third District below,“[a] prisoner sentenced shortly after the effective date of Senate Bill 18 would be granted the enhanced benefits notwithstanding the fact muchofhis or her presentence custody occurred before the effective date and therefore at a time when the additional incentives were notin place.” (Slip opn.at p. 31.) In its opening brief, respondent explained that this was not its view. (ROB 18.) Rather, a prisoner sentenced on or after January 25, 2010, would receive credits calculated under the old formula for time spent in custody before January 25, and under the new formula for time on and after January 25. Now,appellant claims such a construction is insupportable. (DABM 21-23.) Respondent disagrees. This construction and the use of a bifurcated calculation are supported by the language of section 2900.5 and are consistent with the legislative intent and purpose in awarding conduct credits. Respondentnotes, at the outset, that this particular issue is not directly before this Court as appellant served all of his local custody timeprior to the effective date of the statute. Thus, his credits were not bifurcated into those earnedpriorto the statute’s effective date and those earnedafter. However,to the extent that this Court is concerned with a statutory construction that does not run afoul ofconstitutional equal protection principles, the use of a bifurcated calculation in such casesis proper. As noted in respondent’s opening brief, numerous courts have recognized the legislative intent in awarding or increasing credit for good conduct, which is to encourage good behavior and work performance by inmates in custody. (ROB7.) Asthe Stinette court recognized, awarding such credit after the behavior has occurred defeats the purpose behind section 4019 and defies logic. The court noted the purpose behind awarding conductcredits “is the desirable and legitimate purpose of motivating good conduct among _prisoners so as to maintain discipline and minimize threats to prison security. Reason dictates thatit is impossible to influence behaviorafterit has occurred.” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.) Yet, that is precisely what appellant proposes. Allowing for inmates sentencedafter January 25 to receive the benefit of the new accrual rate (as opposed to the bifurcated calculation) would essentially benefit those inmates with a windfall of credits for behavior that could not have been influenced by the increased incentive contained in the amendment. Employing the two-tiered calculation is consistent with the legislative intent because it grants inmates 10 the credits earned pursuantto the incentives in place at the relevant times. This interpretation maintains the Legislature’s intent in awarding section 4019 credits to encourage good behavior. Section 2900.5, subdivision (a), does not dictate a different result. It states, “In all felony and misdemeanorconvictions . . , when the defendant _ has been in custody. . , all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited uponhis or her term of imprisonment,. . .” Subdivision (d) goes onto clarify that the sentencing court has the duty of calculating and determining what thesecredits are: “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total numberofdays to be credited pursuantto this section.” (Emphasis added.) Nothing in section 2900.5 supports appellant’s argumentthat this calculation must be performed exclusively pursuantto the version of the’ statute in place on the day of sentencing. Rather, the credits awarded must accurately reflect the credits earned according to the variouscredit statutes over the course of the inmate’s custody. This Court has explained: Personsdetainedin a specified city or county facility, or under equivalent circumstances elsewhere,“prior to the imposition of sentence” may also be eligible for good behavior credits of up to two additional days for every four of actual custody. (§ 4019, subds. (a)(4), (b), (c), (e), (f).) One such additional dayis awarded unless the detainee refused to satisfactorily perform assignedlabor, and a second such additional day is awarded unless the detainee failed to comply with reasonable rules and regulations. (/d., subds. (b), (c), (f).) “[T]he court imposing a sentence” has responsibility to calculate the exact number of days the defendanthas been in custody “prior to sentencing,” add applicable good behavior credits earnedpursuantto section 4019, and reflect the total in the abstract ofjudgment. (§ 2900.5, subd. (d); see also id., subd. (a).) 11 (People v. Buckhalter (2001) 26 Cal.4th 20, 30, italics added (Buckhalter).) While credits are calculated at the time of sentencing, they are not earned on the sentencing date. As the Buckhalter court noted, inmates earn conduct credits over the course of their custody time. This is demonstrated by section 4019, subdivision (f), which reads in part, “a term of four days will be deemedto have been served for every two days spent in actual custody.” After every two days in custody, an inmate has earned an additional two days, even if these days have not yet been awarded by the sentencing court. Contrary to appellant’s assertion (DABM 25), the fact that subdivision (f) was made explicitly retroactive when enacted has no bearing on this issue. An express declaration of an intent to make subdivision(f) retroactive when enacted in 1982, does not imply an expressintent that all future conduct credit changes will be retroactive as well. As predicted, respondent doesrely on subdivision (f) as well as subdivisions (b)(1) and (c)(1) of section 4019. All three subdivisions demonstrate that conduct credit is earned overthe course of an inmate’s custody time. It is not earned on the date of sentencing;rather, it is calculated on the sentencing date. Because the credit is earned over the course of the period of confinement,it is properfortrial courts to employthe different formulas for calculating credits pursuant to the different statutes in effect at the times these credits were being earned. In addition, appellant’s interpretation of the sentencing provisions could potentially give rise to equal protection violations. Prisoners sentenced on January 26, but having served the majority oftheir presentencetimeprior to the effective date would receive the benefit of the new calculation, whereas a prisoner sentenced on January 24, would receive only the old credits. This result is not only a possible violation of equal protection (See e.g. In re Kapperman (1974) 11Cal.3d 542, 544-545), 12 but it would reward inmates for delaying their court proceedings beyond the effective date of the statute. Frivolous or unnecessary delay would be rewarded with additional unearned credits. The Legislature could not have intended sucha result as such an outcomeis inconsistent with the canon of statutory construction which requires reviewing courts to attempt to avoid an interpretation which would lead to inequitable or unjustresults. (People v. Clark (1990) 50 Cal.3d 583, 605 [“In construing a statute we must avoid such arbitrary, unjust, and absurd results wheneverthe language of the statute is susceptible of a more reasonable meaning.”]; see also People v. Cruz (1996) 13 Cal.4th 764, 782 [holding that wheninterpretingstatutes, courts should give “consideration . . . to the consequencesthat will flow from a particular interpretation”].) Assuch respondent’s construction avoids an equal protection problem and best effectuates the legislative intent. IV. EVEN ASSUMING THE LEGISLATURE INTENDED TO MAKE PRE- SENTENCE CONDUCT CREDITS CONSISTENT WITH PRISON CREDITS, THIS INTENT HAS NO BEARING ON THE LEGISLATURE’S INTENT WITH RESPECT TO RETROACTIVITY Respondent arguedin the opening brief that the intent behind SB 18 wasto reduce prison populations in a mannerthat accountedfor the safety of society, and the rehabilitation of inmates. (ROB 12-13.) Appellant contends the purpose or motivation behind the amendmentwas to make pre-sentence conduct credits consistent with post-sentence or prison conductcredits. (DABM 27-29.) First, the legislative history on which appellantrelies is weak. Even if appellant is correct about the purpose behind the amendment,this purpose does notaid in the quest to reveal the legislative intent with respect to retroactivity. In support of this argument, appellantrelies on the legislative history for Assembly Bill 14 (“AB 14”). (DABM 27-28.) According to appellant, the changes madeto section 4019 via SB 18, were originally included in 13 AB 14. It is in the legislative history for AB 14 that appellant finds the indication that the purpose behind the proposed changesto section 4019 was to makepre-sentence and post-sentence conduct credits consistent. (See DABM 28.) But, as appellant concedes, AB 14 did not pass. Discerning legislative intent for the passage of a subsequentbill from the history of a prior unpassedbill is precarious: Prior unpassedbills generally have little value in showing legislative intent. (Lolley v. Campbell (2002) 28 Cal.4th 367, 378-379....) Where a predecessorbill is passed by both houses and contains provisions “virtually identical” to those enacted in the successorbill, the history of that predecessorbill may reliably indicate intent. (See City ofRichmond v. Commission on State Mandates (1998) 64 Cal.App.4th 1190, 1199....) (Medical Bd. ofCalifornia v. Superior Court (2003) 111 Cal.App.4th 163, 181-182.) This legislative intent may or may not have contributed to the defeat ofAB 14. Thefact that it appears nowherein thelegislative history of SB 18 makesit difficult to rely on it in determining that this purpose or motivation carried over to SB 18. This is hardly thetype of legislative history that can be deemed “a clear and compelling implication that the Legislature intended [retroactive application.]” (People v. Alford (2007) 42 Cal.4th 749, 754.) Even assuming appellant’s assertion is correct, and the Legislature did intend to make the credits consistent, the motivation behindthe legislation is not necessarily indicative of a legislative intent for or against retroactivity. (See People v. Nasalga, supra, 12 Cal.4th 784, 795 [increasing threshold amounts to address inflation only indicates consideration of decline of dollar and does not indicate intent for prospective application].) Indeed, here, the desire to makethe credits consistent says nothing of whether the Legislature sought to make them consistent going forward, or consistent retroactively. 14 Appellant further asserts that the Legislature’s desire to make the credits consistent with one anothercreates an inferencethat“the prior methodofcalculating conduct credits was too severe.” (DABM29-30.) Respondent disagrees. That the Legislature sought to makethe credits consistent with one another does notcreate an inferencethat the prior method wastoo severe; it merely creates the inference that the prior method wasinconsistent. The Legislature’s reason for making them consistentis unknown. It may have been because the Legislature found the prior methodtoo severe,or it could have been motivated by something as simple as a desire to simplify the calculation process—giving each credit calculator(i.e. probation departments, sentencing judges, and CDCR)the same formulato utilize. In truth, the quest for consistency could have been motivated by any number of reasons, andthe legislative history provides little insight into what those reasons may have been. Accordingly, the Legislature’s motivation to make the credits consistent does not act to bring the amendmentto section 4019 within the Estrada’ holding. Becausethere is no indication that the Legislature determinedthat inconsistent credits were too severe, Estrada is not controlling, evenif this Court determines that the more beneficial credit scheme operates to effectively lessen appellant’s punishment. To saythat all “amendatory statutes lessening punishment”are to operate retroactively casts the Estrada net too widely. In Estrada, this Court found the amendmentto the punishment for escape with force wasretroactive becauseit was proofof a legislative determination that the prior punishment wastoo severe. (Jn re Estrada, supra, 63 Cal.2d at p. 744-745.) The Estrada exceptionto the rule _ of prospectivity still rests on legislative intent. Here, nothing in the legislative history reveals the samelegislative intent, i.e. nothing suggests * In re Estrada, supra, 63 Cal.2d 740. 15 the Legislature determined the prior credit scheme wastoo severe. Accordingly, as argued in respondent’s opening brief (ROB 4-9), Estrada is inapplicable. V. THE LEGISLATURE IS PRESUMED TO HAVE CONSIDERED THE JUDICIAL DECISIONS REGARDING THE PURPOSE BEHIND SECTION 4019 CREDITS, AND TO HAVE AMENDED THE STATUTE IN LIGHT THEREOF . Next, appellant contends respondent’s reliance on section 4019’s underlying purpose of encouraging good behavior throughthe use of incentives is misplaced. (DABM 33.) Appellant asserts this is not a proper basis on whichto find the amendmentprospective because the legislative history does not indicate a reliance on this reasoning. (DABM 36-38.) But, like anything else, the Legislature here amendedsection 4019 with an understanding ofits original purpose and with the awarenessthat judicial decisions had interpreted the provision as one whichcreates incentives to induce good behaviorfrom jail inmates. Asnoted in the opening brief, numerous courts have interpreted section 4019 credits as incentives put in place to encourage good behavior and work performanceby jail inmates. (See ROB7.) Whenthe Legislature amended section 4019, it was presumably aware that this is the purpose behind conductcredits and it amendedthe statute in light thereof. (People v. Garcia (2006) 39 Cal.4th 1070, 1087- 1088 [“[W]hen, as here, the Legislature undertakes to amenda statute which has been the subject ofjudicial construction”“it is presumed that the Legislature was fully cognizant of such construction....”]; People v. Yartz (2005) 37 Cal.4th 529, 538 [“The Legislature, of course, is deemed to be awareof statutes and judicial decisions already in existence, and to have enacted or amendeda statute in light thereof. [Citation.]’’].) Thus,it is fair to assume that the Legislature was not only aware of the judicial construction, but that its increase in the award ofcredits was in 16 accord with those prior decisions. By increasing the award for good behavior and work performance, the Legislature necessarily soughtto further encourage inmates’ compliance with the rules and regulations and their participation in work programs. Such a conclusionis reasonably inferable from the Legislature’s awarenessofthe judicial decisions finding this to be the purposeof section 4019 credits. Related to his argument regarding the consideration of incentives, appellant next argues that the distinction between actual credits and conduct credits (i.e. conduct credits are incentives to encourage good behavior) is “allusory.” (DABM 35.) Butthis very distinction, between actual and conduct credits was recognized by this Court in Jn re Kapperman, supra,11 Cal.3d 542. There, in distinguishing McGinnis v. Royster (1973) 410 U.S. 263 [35 L.Ed.2d 282, 93 S.Ct. 1055], which dealt with New York’s equivalent of conductcredits, the Kapperman court explained Even ifMcGinnis had concerned a questionofretroactivity it still would not be controlling inasmuchasit dealt with a different kind of credit. McGinnis involved a potential 10 days a month “good-time” credit awarded as a bonus for good conduct and efficient performance of duty while in prison. It did not involve credit for time actually spentin jail... (Kapperman, supra, \1 Cal.3d at p. 548.) Appellant goes on to argue that actual credits also encourage good behavior. Heasserts that “[t]hey must be earned by the act of remaining in custody.” (DABM 35.) Therefusalto grant credits when an inmate has escaped custodyis not to encourage the inmate to stay in custody;it is instead simply a recognitionthat to award credit for the time spent in actual custody, the inmate must have been in actual custody. Giving inmates credits for days they were supposedto be in custody, but were not because they had escaped, simply makesnosense. Further, appellant argues that respondent has “implicitly ask{ed] this court to overrule the majority opinion in [People v. Sage (1980) 26 Cal.3d 17 498 (Sage)].” (DABM 38.) This argument misconstrues respondent’s reliance on a comment madein the dissenting opinion of Sage. Sage is not helpful to appellant’s position, and respondent has not implicitly asked this court to overrule Sage. Specifically, appellant relies on footnote 7 in the Sage opinion (DABM38), which reads, Inasmuchas the same equal protection concerns as those underlying this court’s decision in In re Kapperman, supra, \1 Cal.3d 542,i.e., the avoidance ofarbitrary classification of prisoners, are present in the award ofjail conduct credits, our holding that such credits must be awarded, if earned,forall precommitmentjail time is retroactive. (Sage, supra, 26 Cal.3d at p. 509.) However, the concern in Kapperman was with actual credits, and the Court determined that a prospective only awardofactual credits violated equal protection. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Sage similarly found that giving conduct credits to misdemeanants in local custody, but not giving them to felons in local custody (both pre-conviction and sentence) also gaverise to an equalprotection violation. (Sage, supra, 26 Cal.3d at pp. 506-508.) Footnote 7 simply indicates that to the extent that felons whoservedlocal time did not get these credits, and thus, their equal protection rights had been violated, the decision wasretroactive to correct the equal protection violation for those who had suffered it. Ina concurring and dissenting opinion, Justice Clark wrote (with Justices Richardson and Manuel concurring): I concur in the judgment and opinion of the courtexcept insofar ~ as the rule announcedtodayis given retroactive effect. The purpose of conductcredit is to foster good behavior and satisfactory work performance. (Citation.) That purpose will not be served by granting such credit retroactively. (Sage, supra, 26 Cal.3d at p. 10.) Justice Clark recognized that applying conductcredit retroactively defies logic, as it undermines the purpose of 18 conduct credit and grants a windfall of credits to inmates who could not have been encouragedbythe credits to behave well or to do work. However, short of that principle, which is consistent with respondent’s argument, the Sage opinion haslittle relevance to this case unless this Court determines that the Legislature intended prospective application of the amendment but such prospective application violates equal protection. (Contra, In re Stinette (1979) 94 Cal.App.3d 800, 806.) Notably, contrary to respondent’s predictionin its opening brief (ROB 20-23), appellant has not argued that prospective application of the amendmentto section 4019 would violate his equalprotection rights.’ Respondenthas urged that the amendmentto section 4019 applies prospectively only. This creates a distinction between prisoners who served timein local custody prior to January 25, and those whoserved time in local custody after January 25. This distinction exists to serve a legitimate andrational legislative intent, i.e. to further encourage good behavior, which can only be done prospectively. Sage stands for the proposition that once an equal protection violation has been established, the correction ofthat violation needsto be applied retroactively. Such is not the case here, as no equalprotection violation occurredin thefirst instance. Accordingly, Sage does not support appellant’s position, and respondent has not implicitly asked this court to overrule Sage. Forall of these reasons, the Legislature presumably considered the purpose behindsection 4019 credits when it amendedthe statute. Such consideration wasproper and bears onthe intent to implementthe amendmentprospectively. * Respondent would notethatthe equal protection argument has been raised via amicuscuriae brief submitted by the Sixth District Appellate Program and filed with this Court on December 10, 2010. 19 VI. SECTION 59 DOES NOT SUPPORT APPELLANT’S POSITION THAT THE STATUTEIS RETROACTIVE Appellant, like the Court ofAppeal below,argues that section 59 of . SB 18 demonstrates a legislative intent that the amendmentto section 4019 was intendedto apply retroactively. (DABM 42-47.) Section 59 states, in part: | The Department of Corrections and Rehabilitation shall implement the changes madebythis act regarding time credits in a reasonable time [and] [a]n inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisionsofthis act. (SB 18, § 59.) The Court of Appeal found this indicative of a legislative intent to apply section 4019 retroactively becauseit referenced “changes in the credit provisionsof this act.” (SeeSlip. opn.at p. 34.) Initially, respondent argued that because there were other changesto credit provisions made pursuant to SB 18, section 59 wasnot helpful in discerning legislative intent. (ROB 17.) Appellant contends that the “changes madebythis act regarding time credits” include a retroactive application of the section 4019 amendments to prisoners who weresentencedprior to the January 25, 2010 effective date of those amendments. (DABM 43.) But, appellant concedesthat there are at least three other provisions of SB 18 to which section 59 applies. (DABM 43, citing SB 18 § 38 [continuous incarceration credits pursuant to § 2933, subd. (b); SB 18 § 38 [one-for-one post-sentence conductcredits . for local custody]; and changes to § 2933.3 [firefighter credit].) Appellant’s argumentis actually helpful to respondent’s position. In recognizing the other provisions of SB 18 which changed credit provisions, appellant helps to clarify that section 59 appliesto at least the three other credit provisions mentioned by appellant. This confirms that section 59 20 offers no support for or against retroactivity of section 4019. It does not explicitly mention section 4019; it simply says “changes to credit provisions.” Because section 4019 credits are calculated at sentencing, by the sentencing court (see § 2900.5), no recalculation is necessary, and the Legislature did not need to grant a similar immunitytotrial courts to allow for the changes to section 4019. But, with the retroactive credit changes, and those credit changes which CDCRis already responsible for implementing, such calculation may require additional time. Section 59 is aimedat these provisions. In addition to the changes noted by appellant, the “credit reductions for inmates who successfully complete specific program performance objectives for approved rehabilitative programming” (§ 2933.05, subd. (a)) are “changes madebythis act regarding time credits” (Sen. No. 18, § 59.) Nothing in section 59 of SB 18 states or even implies that the amendments to section 4019 were intended to apply to persons who hadalready been sentenced underthe version of section 4019 in effect at the time oftheir sentencing. Section 59’s legislative commandthat the CDCR “implementthe changes made bythis act regarding time credits in a reasonable time” and that “La]n inmate shall have no cause ofaction or claim for damages because of any additional time spent in custody dueto reasonable delays in implementing the changesin the credit provisions ofthis act” (Stats.2009- 2010, 3rd Ex.Sess., ch. 28, § 59, p. 4432) is most reasonably understood as | referring to the CDCR’s new administrative responsibilities with regard to implementationofthe forthcoming mandated regulations. It reflects the Legislature’s intent to avoid state liability for administrative delaysin applying the new credit regulations and provisions. It does not reveal a clear and unmistakable intent to apply the changesto section 4019 retroactively. Accordingly, the argument shouldberejected. 21 VIL. THE 2010 AMENDMENTDOESNOT PROVIDE ANY INSIGHT INTO THE LEGISLATIVE INTENT ON RETROACTIVITY FOR THE 2009 AMENDMENTAND THIS COURT SHOULD DECLINE APPELLANT’S INVITATION TO CONSIDER AN ENTIRELY NEW CLAIM Appellant makes two arguments with respect to the 2010 amendment to sections 4019 and 2933 included in Senate Bill No. 76 (“SB 76”). He arguesfirst that the amendmentclarifies the legislative intent of the 2009 amendment. (DABM 29,at fn. 25; and see DABM 49.) Second, he argues that the 2010 amendment provides a separate and distinct basis upon which | he is entitled to the additional conduct credits. (DABM 47-50.) Asto appellant’s first claim, respondent disagrees andthe legislative history of the 2010 amendmentreveals an intent separate and distinct from that asserted by appellant. Asto appellant’s second claim, respondent respectfully requests this Court decline appellant’s invitation to find the 2010 amendmentdirectly applicable to this case because this issue is being raised for the first time in appellant’s answerbrief. A. Changes made pursuant to SB 76 SB 76 restores the old version of section 4019. Pursuant to the 2010 amendment, defendants serving pre-sentence custody timeare eligible for conduct credits at a rate of two days for every four days ofactual custody time. (§ 4019, subd. (f).) SB 76 also added subdivision (g), which makes the new decreased credits applicable only to defendants who committed crimes onorafter the statute’s effective date, September 28, 2010. (§ 4019, subd. (g).) SB 76 also added section 2933, subdivision (e)(1), which states: Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinementfor every day he or she served in a county jail, city jail, industrial farm, or road camp from the date ofarrest until state prison credits pursuantto this article are applicable to the prisoner. 22 Newsubdivision (e)(2) reincorporates the same behavioral standards from section 4019. Effectively, the Legislature granted the beneficial credit accrualrate to any defendants ultimately sentenced to prison. Defendants sentenced to local custody are now onlyeligible for the section 4019 credits, and cannot earn the more beneficial credits under section 2933, subdivision (e)(1). B. Thelegislative history of the 2010 amendmentdoesnot support retroactive application of the 2009 amendment Nothing in the 2010 bill supports a finding that the Legislature originally intended the 2009 amendmentbe appliedretroactively. First, as appellant notes (DABM 29,at fn. 25), “a legislative expression ofthe intent of an earlier act is not binding uponthe courts in their construction of the prior act,” although, “that expression may properly be considered together with other factors in arrivingat the true legislative intent existing when the prior act was passed.” (Eu v. Chacon (1976) 16 Cal.3d 465, 470.) In order to look to the 2010 amendmentfor guidance, this Court must first determine thatthe legislative intent on the issue ofretroactivity of the 2009 amendmentis unclear. “The recognition of subsequentassertions of legislative intent is derived from cases where the meaningofthe earlier enactmentis ‘unclear.’ (Citation.) It cannot rest upon the notion that the (subsequent) Legislature has authority to interpret the earlier statute for that is a judicial task. (Citation.)” (City ofSacramento v. Public Employees’ Retirement System (1994) 22 Cal.App.4th 786, 798.) Based on the reasoning above and in respondent’s opening brief, this . Court need notrely on the 2010 amendmentin discerninglegislative intent. Thelegislative intent to apply the amendmentto section 4019 was made clear through Penal Code section 3 and the. statutory scheme, as a whole. 23 In any event, the 2010 amendmentdoesnot provide any helpful insight into the Legislature’s intent with respectto the retroactivity or prospectivity of the 2009 amendment. Byall accounts, the 2010 amendmentwas aimedatrectifying an issue which developed with respect to the 2009 changes,just not the issue cited by appellant. Included in both the Senate floor analyses and the Assembly . floor analyses was the following comment from the author of SB 76: _ This bill restores the jail inmate credits that existed before the enactmentof the prison reform bill passedlast year. Incidental to one of the prison reforms in SBx3 18 from last year - credits for prison inmates - were changesto credits for jail inmates. For many years, county jail inmates could earn enough credits to reduce their jail sentence by up to one-third. SB 18x increased thesejail credits to make them consistent with the credit rules for state prison inmates. After SBx3 18 went into effect, we learned that its jail credit changes would have the unintended effect ofundercutting the community corrections effort launched bya bill I co-authored last year with our former colleague, Senator Benoit, SB 678. Part of that community corrections model involves judges using county jail time as an intermediate sanction short of prison. By reducing available jail time, judges could be faced with an inadequate custodial alternative to state prison. Thelast thing we wantto do is fast-track offenders out of community corrections into prison. This bill addresses this concern by restoring the credits available for jail inmates under the law prior to the enactment of SBx3 18. This bill does not affect the prison inmate credit reforms enacted by SBx3 18. (Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 76 (2009-2010 Reg. Sess.) August 25, 2010, p. 2-3; Assem. Floor Analyses, 2d reading analysis of Sen. Bill No. 76 (2009-2010 Reg. Sess.) August 20, 2010,p. 3.) This Court has relied on an author’s comments regarding the intent of a 24 piece of legislation where the comments were incorporatedinto the analysis of the bill, as they were here. (See Jn re Jennings (2004) 34 Cal.4th 254, 264.) It is clear that the Legislature was concerned with fixing an issue which hadarisen by virtue of the 2009 amendmentbut it did not speak to or offer any insight into its intent with respectto retroactivity or prospectivity of the 2009 amendment. Accordingly, the Court need not look to or rely on the 2010 amendmentto section 4019. Further, appellant argues that the Legislature omitted a declaration of express intent that the 2009 amendmentwasto be applied retroactively, “out of respect for the appellate courts that had concluded [the amendment wasprospective] earlierthis year.” (DABM 49.) Respondent could locate no authority, and appellant has cited none, which has found the Legislature’s omission of a clarification out of respectfor incorrectly decided judicial decisions. It seems highly unlikely that, in the wake of a judicial interpretation with which the Legislature patently disagrees,it would remain silent so as not to offend the judiciary responsible for the misconstruction. Instead, the Legislature would, and has, on numerous occasions, clarified its original intent and its disagreementwith the courts’ interpretation. Appellant cites the reincorporation of section 59 of SB 18.as further evidence of an intent that the 2009 amendment was intended to be applied retroactively. (DABM 49.) Section 3 of SB 16 states: The Legislature intends that nothing in this act shall affect Section 59 of Chapter 28 of the Third Extraordinary Session of the Statutes of 2009, and that this act be construed in a manner consistent with that section. Section 59, in the original bill, granted a reasonable time to CDCRto allow for changesto inmates’ credits. The argumentthat this included retroactive application of section 4019 wasbased,in part, on the fact that CDCR doesnottypically calculate section 4019 credits, sentencing courts 25 do. (§ 2900.5, subd. (d).) Accordingly, the argument advanced wasthat CDCR would not need immunity unless section 4019 credits needed to be recalculated because the change wasto be appliedretroactively. As explained above, this argumentfails because SB 18 included othercredit provisions for which CDCR wasresponsible for the calculations. (See section VI, ante.) Appellant now contends that because SB 76 only includes one credit change provision, i.e. the addition of section 2933, subdivision (e)(1), the reincorporation of section 59 of SB 18 signals an original intent that this credit change be retroactive. But appellant fails to consider the statutory scheme, as a whole. The addition of new credits pursuant to section 2933, subdivision (e)(1), is not included in the calculations for which sentencing courts are responsible undersection 2900.5, subdivision (d). Thus, under prospective application of the new credits in section 2933, subdivision (e)(1), CDCR is responsible for adding the requisite days of credit to the sentences of those defendants sent to state prison. Because the 2010 credit scheme change makes CDCRresponsible for the additional calculation, CDCR may presumably require some protection against any inmate who serves “dead time”as a result of a delay in CDCR’sability to calculate the changes quickly. Accordingly, section 3 of SB 76 offers no insight into the Legislature’s intent to apply SB 18 retroactively or prospectively. Finally, contrary to appellant’s assertion (DABM 49-50), the inclusion of section 4019, subdivision (g), does not embody a changein the law, butrather, is declaratory of existing law. (See e.g. K.J. v. Arcadia Unified School Dist. (2009) 172 Cal.App.4th 1229, 1234,at fn. 2.) Subdivision (g) was added by SB 76 andstates: The changes in this section as enacted by ... [SB 76] that added this subdivision shall apply to prisoners whoare confined to a county jail, city jail, industrial farm, or road campfor a crime committed on or after the effective date of that act. 26 | (§ 4019, subd. (g).) In its clarity, subdivision (g) helps to avoid a dispute overthe retroactivity of the 2010 amendmentto section 4019. Because the amendment decreases the amountof credits earned by inmates,retroactive application has the potential to raise ex postfacto concerns. (See e.g. Weaver v. Graham (1981) 450 U.S. 24, 36 [101 S.Ct. 960, 964, 67 L.Ed.2d 17]; and Lynce v. Mathis (1997) 519 U.S. 433 [117 S.Ct. 891, 137 L.Ed.2d. 63].) The Legislature’s inclusion of the prospective only clause in the 2010 amendmentto section 4019is simply declaratory of existing law, and a reiteration of its desire to avoid any constitutional concerns with respect to the decreasein available credits. Forall of these reasons, SB 76 andits changes to sections 4019 and 2933 offers nothing to help clarify the Legislature’s original intent with respect to SB 18 and whetherit should be applied prospectively or retroactively. C. This Court need not consider appellant’s claim that the 2010 amendmentto section 4019 is applicable to this case Respondent objects to appellant’s claim that heis entitled to new credits pursuant to the 2010 amendmentasit is being raised for the first time in appellant’s answer brief. Parties may notraise an issueforthefirst time on appeal. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) “It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party whofails to raise an issue in the trial court has therefore waivedthe right to do so on appeal. [Citations.]” (In re Marriage ofEben-King & King (2000) 80 Cal.App.4th 92, 117.) The California Rules of Court indicate that an answerbriefmust be limited to the issues containedin the Petition for Review or in any order of this Court, “and any issues fairly included in them.” (Cal. Rules of Court 8.520, subd. (b)(3).) 27 Appellant’s claim that the 2010 amendmentapplies to this case was neither includedin the Petition for Review, nor was it encompassed in this appeal via an order of this Court. Finally, given that it is an entirely new statute, with a new legislative history, requiring a distinct analysis on the retroactivity issue, it is not fairly included in the issues raised in the Petition for Review. Accordingly,it is not fairly presented. This issue would be more properly raised by a petition for writ of habeas corpus to the Superior Court in Lassen County, where appellant was initially sentenced. Onthat basis, respondent respectfully requests this Court decline appellant’s invitation to consider the 2010 amendmentto section 4019. In the event this Court grants appellant’s request to consider this amendment, respondent would respectfully request an opportunity to separately address the claim via supplemental briefing at the Court’s request. (See Cal. Rules of Court 8.520, subd. (e).) 28 CONCLUSION Atbest, the arguments urged by appellant reveal uncertainty regarding the legislative intent. Nothing has been advanced which depicts a clear and unmistakable intent to apply the amendmentretroactively. This is precisely why Penal Code section 3 exists. In such cases,the initial presumption of prospectivity made pursuantto section 3 has not been rebutted, and the amendment should be applied prospectively. Accordingly, respondent respectfully requests this Court overrule the opinion from the Court of Appeal, and find the 2009 amendmentto section 4019 was intended to be applied prospectively only. Dated: December 17, 2010 Respectfully submitted, EDMUNDG. BROWN JR.. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVEN T. OETTING Supervising Attorneysfor Plaintiffand Respondent General Fund - Legal/Case Work SA2007303568 70397808.doc 29 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLY BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 8,650 words. Dated: December 17, 2010 EDMUND G. BROWN JR. Attorney General of California MEREDITH A. STRONG Deputy Attorney General Attorneysfor Plaintiffand Respondent General Fund - Legal/Case Work DECLARATIONOF SERVICEBY U.S. MAIL Case Name: People v. Brown | No.: $181963 I declare: I am employed in the Office of the Attorney General, whichis the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is depositedwith the United States Postal Service that same dayin the ordinary course of business. On December17, 2010, I served the attached RESPONDENT’S REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressedas follows: MARK J SHUSTED ATTORNEY AT LAW |. CLERK OF THE COURT PO BOX 2825 FOR HON STEPHEND BRADBURY GRANITE BAY CA 95746-2825 LASSEN COUNTY SUPERIOR COURT Attorneyfor Defendant & Appellant 220 SLASSENST #6 (2 Copies) SUSANVILLE CA 96130-4390 THIRD APPELLATE DISTRICT CALIFORNIA COURT OF APPEAL 621 CAPITOL MALL 10TH FLR ROBERT M. BURNS . SACRAMENTO CA 95814 LASSEN CO DISTRICT ATTORNEY 220 SLASSENST STES8 SUSANVILLE CA 96130 CENTRAL CALIFORNIA APPELLATE PROGRAM 2407 JST STE 301 SACRAMENTO CA 95816 I declare under penalty of perjury under the laws of the State of California the foregoing is true © and correct and that this declaration was executed on December 17, 2010, at San Diego, California. STEPHEN MCGEE Declarant