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(Monterey County Super. Ct. No. SS082572)
After pleading guilty to possessing cocaine base in October 2008, defendant Rosie Nell Travis was placed on probation pursuant to Proposition 36 (Pen. Code, § 1210.1).In February 2011, the trial court revoked her probation though no petition requesting revocation had been filed. Subsequently, the court placed defendant on formal probation, and imposed conditions that included a $30 court facilities assessment (Gov. Code, § 70373) that took effect after her conviction and a higher court security fee (§ 1465.8) than the $20 fee that was in effect at the time of her conviction. Also, the court ordered defendant to pay $864 for the cost of preparing a probation report and $81 per month for probation supervision without evidence that she is able to pay these amounts.
Unspecified section references are to the Penal Code.
On appeal, the defendant asserts that the revocation of her probation and the other orders made by the court were in error. The Attorney General concedes that all these errors asserted by defendant require reversal of the judgment.
Defendant also asserts that, due to a 2009 amendment of section 4019, she is entitled to more than the 22 days of conduct credits she was awarded for the 45 actual days she spent in custody. For the reasons stated below, we will reject this contention.
2. THE PROCEEDINGS
After defendant was arrested on October 9, 2008, on two outstanding warrants, she was found to be in possession of .3 grams of rock cocaine and a crack pipe. She was charged by complaint with transporting (count 1; Health & Saf. Code, § 11352, subd. (a)) and possessing (count 2; Health & Saf. Code, § 11350, subd. (a)) cocaine base and the misdemeanor of possessing a device for smoking a controlled substance (count 3; Health & Saf. Code, § 11364, subd. (a)).
On October 20, 2008, she pleaded guilty to count 1 pursuant to a negotiated agreement that other counts would be dismissed and she would be sentenced under Proposition 36. On the same date, she was placed on probation under Proposition 36 for 18 months subject to a number of conditions. She was also ordered to pay a court security fee of $20 pursuant to section 1465.8, subdivision (a)(1).
Defendant appeared for scheduled court review hearings on November 20, 2008 and January 22, 2009. However, she failed to appear at a hearing scheduled for March 19, 2009, so probation was summarily revoked and a bench warrant was issued.
Defendant next appeared in court on February 17, 2011. The court acknowledged that no petition requesting revocation of probation was in its file. Defendant asked to remain on Proposition 36. The court stated, "I don't think so in light of the length of time. She has made herself unavailable." "Prop. 36 would be terminated."
A supplemental probation report was ordered and prepared. According to defendant, she successfully graduated from a four month outpatient drug program, but then had a one month relapse into using cocaine, which is why she missed her review hearing. She stopped using cocaine, but avoided reporting to probation due to fear of the consequences. For the past two years defendant had earned wages as her father's primary caretaker. The report stated that defendant was in Monterey County Jail for nine days after October 9, 2008 and for 36 days after February 15, 2011.
The probation report actually states that defendant spent 36 days in custody from "02/15/2010" to "3/22/2011." It also states that she "was arrested on her outstanding bench warrant" on "February 15, 2011." We conclude that the original date of February 15, 2010 was a typographical error.
Defendant filed a motion asking for 45 days of conduct credit pursuant to an amendment of section 4019. At a hearing on March 22, 2011, the trial court suspended imposition of sentence and placed defendant on three years of formal probation subject to a number of conditions, including 180 days in jail with credit for 67 days, 45 actual and 22 "good time work." The court also orally ordered defendant to pay a $30 court facilities assessment pursuant to Government Code section 70373 and $864 for the cost of preparing the probation report "based on your ability to pay." The court rejected defendant's request for extra credit under section 4019.
The written minute order signed by the judge on March 24, 2011, supplemented the court's oral order as follows. The court imposed a $40 court security fee, and ordered payment of $864 for the cost of preparing the probation report and $81 per month as the cost of supervised probation "in accordance with his/her ability to pay." The written order also ordered defendant to provide the probation officer with financial information to evaluate "his/her ability to pay" and then "to pay the amount Probation determines he/she can afford."
3. TERMINATION OF PROBATION WITHOUT NOTICE AND A HEARING
In this case the trial court ordered defendant's Proposition 36 probation terminated in the absence of a petition to revoke probation or a hearing regarding any charged probation violation. On appeal defendant correctly points out that this termination did not meet either statutory or constitutional requirements.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, mandates suspending imposition of sentence and granting probation to anyone "convicted of a nonviolent drug possession offense" (§ 1210.1, subd. (a)) if the person is not subject to exclusion under section 1210.1, subdivision (b). "As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." (§ 1210.1, subd. (a).)
The statute contemplates revocation of probation for some violations of probation, but it requires the court to determine whether the probation violation is drug-related or not. Section 1210.1, subdivision (f) "sets forth the procedure for revocation of probation under the Act via 'a detailed system of escalating sanctions for drug-related violations of probation by defendants.' [Citation.] . . . [T]he first time the state moves for revocation and it is established an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless the offender poses a danger to others. (§ 1210.1, subd. [(f)](3)(A).) The second time the state moves for revocation and it is established an offender has violated a drug-related condition of probation for a second time, he is again entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. [(f)](3)(B).) Only when the states moves for a third time for revocation and it is established the offender has violated a drug-related condition of probation a third time, 'does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. (§ 1210.1, subd. [(f)](3)[(C)].)' [Citation.]" (People v. Tanner (2005) 129 Cal.App.4th 223, 235-236 (Tanner); People v. Hazle (2007) 157 Cal.App.4th 567, 572-573 (Hazle).)These graduated steps are premised on the recognition "that drug abusers often initially falter in their recovery." (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.)
Section 1210.1 states: "(g) The term 'drug-related condition of probation' shall include a probationer's specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." Attending regular drug court review hearings has been found to be a drug-related probation condition. (People v. Davis (2003) 104 Cal.App.4th 1443, 1447.) However, depending on the circumstances of the case, reporting to the probation officer may not be a drug-related probation condition. (People v. Johnson (2003) 114 Cal.App.4th 284, 300.)
The court's authority to revoke probation is not so limited if probation is violated "either by committing an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation." (§ 1210.1, subd. (f)(2).) The first time a probationer violates a non-drug-related condition of probation, " 'the court has discretion to incarcerate the person.' " (People v. Johnson, supra, 114 Cal.App.4th 284, 296, quoting In re Taylor, supra, 105 Cal.App.4th 1394, 1396.)
However, "[a] recurring requirement" (Hazle, supra, 157 Cal.App.4th 567, 574) in each of the quoted subdivisions is that the court does not consider revocation until "the state moves to revoke probation." (§ 1210.1, subds. (f)(2), (3)(A), (3)(B), (3)(C).) " 'The term "motion" generally means an application made to a court or judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant.' [Citation.] Although the statute speaks in terms of the People moving to revoke probation, generally, a motion is ineffectual absent notice. '[N]otices must be given of any application where the rights of an adverse party are affected, even though no statute, as here, specifically requires it.' [Citations.] Probation cannot be formally revoked absent notice. Indeed, one reason given to explain why trial courts retain the power to summarily revoke probation is because it ensures the probationer will be returned to court and given notice of the alleged grounds. (People v. Tapia (2001) 91 Cal.App.4th 738, 741; People v. Hawkins (1975) 44 Cal.App.3d 958, 966; see People v. Vickers (1972) 8 Cal.3d 451, 461 ['summary termination . . . in the case of an absconding probationer comports with due process requirements if he is accorded a hearing . . . after being taken into custody'].)"(Hazle, supra, 157 Cal.App.4th at pp. 574-575.)
Even without a probation violation, "the probation department may move to revoke probation" and "the court may revoke probation" if it is alleged and "proved that the defendant is unamenable to all drug treatment programs." (§ 1210.1, subd. (d)(2).)
Apart from these statutory requirements, due process requires notice and a hearing prior to formal revocation of probation. "As a matter of due process, a defendant facing a formal traditional probation revocation hearing is entitled to written notice of the claimed violations, disclosure of the evidence against him, opportunity to be heard and to present evidence, the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation), a neutral and detached fact finder and a written statement of the evidence relied on and the reasons for revoking probation. (People v. Vickers (1972) 8 Cal.3d 451, 457-459.)" (Tanner, supra, 129 Cal.App.4th 223, 234.) These constitutional requirements are equally applicable to revoking Proposition 36 probation. (Ibid.)
The Attorney General properly concedes that it was a violation of due process for the trial court to permanently revoke defendant's probation under section 1210.1 without written notice of any charges allegedly justifying revocation of probation or a hearing affording defendant an opportunity to explain why she missed a court hearing. The termination of probation must be reversed.
For the guidance of further proceedings, we will address defendant's remaining contentions.
4. FEES, ASSESSMENTS, AND PROBATION COSTS
A. Court Facilities Assessment
Government Code section 70373 was enacted effective January 1, 2009 to require imposition of a $30 court facilities assessment "on every conviction for a criminal offense." (§ 70373, subd. (a).) This assessment is not regarded as a punitive fine subject to ex post facto restrictions. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413; People v. Fleury (2010) 182 Cal.App.4th 1486, 1494; People v. Lopez (2010) 188 Cal.App.4th 474, 479-480.) However, the assessment only applies to convictions occurring after the effective date of the statute. (People v. Davis (2010) 185 Cal.App.4th 998, 1001 (Davis).)
Defendant was convicted of transporting cocaine base by her guilty plea in October 2008. The Attorney General properly concedes that because defendant was convicted by her plea prior to the January 2009 effective date of Government Code section 70373, the trial court erred in imposing the $30 assessment.
B. Court Security Fee
Section 1465.8, requiring imposition of a $20 court security fee "on every conviction for a criminal offense" (§ 1465.8, subd. (a)), was enacted effective August 17, 2003.(People v. Alford (2007) 42 Cal.4th 749, 753.) The California Supreme Court has determined that this fee is not a punitive fine subject to ex post facto restrictions. (Id. at p. 759.) The fee amount was increased to $30 by urgency legislation effective July 28, 2009 (Stats. 2009, 4th Ex. Sess., ch. 22, § 29, p. 5346) and to $40 by urgency legislation effective October 19, 2010 (Stats. 2010, ch. 720, § 33, p. 4918.)
The Attorney General properly concedes under the reasoning of Davis that, because the fee was $20 when defendant was convicted by her guilty plea in October 2008, the trial court erred by imposing a $40 fee in March 2011 upon reimposition of probation. The fee should be $20.
C. Costs of Probation Services
On appeal defendant contends that there is no evidence that she is able to pay either $864 for the preparation of the probation report or $81 for monthly probation supervision.
Section 1203.1b provides in part, "The court shall order the defendant to pay the reasonable costs [of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies] if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative." (§ 1203.1b, subd. (b).)
The statute states: "(e) The term 'ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the
presentence investigation, preparing the preplea or presentence report, processing a jurisdictional transfer pursuant to Section 1203.9, processing requests for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, and probation supervision or conditional sentence, and shall include, but shall not be limited to, the defendant's:
"(1) Present financial position;
"(2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position.
"(3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing;
"(4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e).)
The statute describes an elaborate procedure for making such an order. The court shall first order the defendant to appear before the probation officer so that the officer may "make an inquiry into the ability of the defendant to pay all or a portion of these costs" and then "determine the amount of payment and the manner in which the payments shall be made to the county." (§ 1203.1b, subd. (a).) "The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (Ibid.)A defendant whose rights are not waived is entitled to a court hearing on his or her ability to pay these costs. (§ 1203.1b, subd. (b).)
The procedures in this case did not comply with the statute. The statute contemplates that the court initially refers the probationer to the probation officer to perform a preliminary evaluation of how much, if anything, the probationer is able to pay for probation services, and to inform the probationer of the probationer's right to contest the officer's evaluation at a court hearing. What appears to have occurred here is that the court made a preliminary evaluation of the maximum amounts the probationer may be required to pay by the probation officer after the officer conducts a final evaluation of the probationer's ability to pay.
Apart from the questionable procedure employed here, the Attorney General concedes that, as in this court's decision in People v. Pacheco (2010) 187 Cal.App.4th 1392, there is no evidence that the court determined that defendant was able to pay these amounts or that she waived her right to a judicial determination. In that case, we determined that a defendant may raise for the first time on appeal the insufficiency of the evidence to support an implied determination of ability to pay probation supervision fees. (Id. at p. 1397.) On the merits, we found "no evidence in the record that anyone, whether the probationer officer or the court, made a determination of Pacheco's ability to pay the $64 per month probation supervision fee." (Id. at p. 1401.) We remanded for the trial court to comply with the statutory requirements for determining the defendant's ability to pay before imposing fees for probation services. (Id. at p. 1404.) The Attorney General properly concedes that the imposition of fees for probation services should be reversed for an inquiry into defendant's ability to pay.
5. CONDUCT CREDITS
The trial court awarded defendant 22 days of conduct credits pursuant to section 4019 for serving 9 days of actual custody beginning on October 9, 2008 and 36 more days of actual custody beginning on February 15, 2011, when she was returned to custody. Defendant asserts that pursuant to a 2009 amendment of section 4019 (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50, pp.4427-4428) she is entitled to additional conduct credits because the amendment is retroactive.
This issue is currently pending review in the California Supreme Court. A number of appellate courts have concluded that the amendment is retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354 [3rd Dist.], review granted June 9, 2010, S181963; People v. House (2010) 183 Cal.App.4th 1049 [2nd Dist., Div. 1], review granted June 23, 2010, S182813; People v. Landon (2010) 183 Cal.App.4th 1096 [1st Dist., Div. 2], review granted June 23, 2010 S182808; People v. Norton (2010) 184 Cal.App.4th 408 [1st Dist., Div. 3], review granted Aug. 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5], review granted July 21, 2010, S183552; People v. Keating (2010) 185 Cal.App.4th 364 [2nd Dist., Div. 7], review granted Sept. 22, 2010, S183354); People v. Bacon (2010) 186 Cal.App.4th 333 [2nd Dist., Div. 8], review granted Oct. 13, 2010, S184782; People v. Jones (2010) 188 Cal.App.4th 165 [3rd Dist.], review granted December 15, 2010, S187135; People v. Kemp (2011) 192 Cal.App.4th 252 [3rd Dist.], review granted Apr. 13, 2011, S191112.)
Yet other courts, including this one, have concluded that the amendment is not retroactive. (People v. Rodriguez(2010) 182 Cal.App.4th 535 (republished at 183 Cal.App.3d 1) [5th Dist.], review granted June 9, 2010, S181808; People v. Otubuah(2010) 184 Cal.App.4th 422 [4th Dist., Div. 2], review granted July 21, 2010, S184314; People v. Hopkins(2010) 184 Cal.App.4th 615 [6th Dist.], review granted July 28, 2010, S183724; People v. Eusebio(2010) 185 Cal.App.4th 990 [2nd Dist., Div. 3], review granted Sept. 22, 2010, S184957.)
A majority of the Fourth District, Division One, concluded that defendants sentenced after the effective date of the first amendment are entitled to an award of double credits, even for custody served prior to the effective date of the amendment. (People v. Zarate(2011) 192 Cal.App.4th 939 (review granted May 18, 2011, S191676). The majority did not perceive this as a retroactive application of the amendment, while the dissent did. The California Supreme Court has granted review in all of these cases.
A. The statutory scheme
Section 4019 is one of several "separate and independent credit schemes for presentence and postsentence custody" related to felony sentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) "The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Id. at p. 36; People v. Brown (2004) 33 Cal.4th 382, 405; People v. Dieck (2009) 46 Cal.4th 934, 939.)
Before the 2009 amendment, section 4019 allowed prisoners to earn a total of two days of conduct credit for every four days of actual presentence incarceration. (E.g., People v. Dieck, supra, 46 Cal.4th 934, 939.) The 2009 amendment allowed eligible prisoners to earn conduct credits at a greater rate, such that two days of conduct credits could be earned for every two days of actual presentence custody.
The amending legislation was signed by the Governor on October 10, 2009; because it was enacted during a special session of the Legislature, it took effect on January 25, 2010, 91 days after the special session adjourned. (Cal. Const., art. IV, § 8, subd. (c)(1).) For convenience, we refer to this as "the 2009 amendment" or simply "the amendment."
Ineligible for the extra credits was any prisoner who "is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5." (Former § 4019, subds. (b)(2), (c)(2).)
In pertinent parts, the amendment provided: "(b)(1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] . . . [¶]
"(c)(1) Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] . . . [¶]
"(f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c)." (Former § 4019, subds. (b)(1), (c)(1), (f).)
A later amendment of section 4019 (Stats. 2010, ch. 426, § 2, p. 2088), effective on September 28, 2010, eliminated these extra credit provisions and returned section 4019 verbatim to the way it was amended in 1982. (Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) The only difference is new subdivision (g), which provides: "The changes in this section as enacted by the act that added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act." (§ 4019, subd. (e).) In other words, this amendment was intended to apply prospectively.
B. Legislative Intent of the 2009 Amendment of Section 4019
On appeal defendant asserts that retroactive application best effects the legislative intent of the 2009 amendment of section 4019.
Our analysis begins with section 3 of the Penal Code, which states that "[n]o part of it is retroactive, unless expressly so declared." This statute has been interpreted as a rule of construction that applies when the legislative intent cannot otherwise be ascertained. (In re Estrada (1965) 63 Cal.2d 740, 746.) It embodies a presumption that a new statute operates prospectively absent either an express declaration of retroactivity or a clear and compelling implicit indication that the Legislature intended retroactive application. (People v. Hayes (1989) 49 Cal.3d 1260, 1274; People v. Alford, supra, 42 Cal.4th 749, 753-754.)
Examining the text of the amendment and its legislative history, we see no express declaration of retroactivity in section 4019 or the legislation that amended it, and defendant does not identify one. We do see an express declaration of retroactivity in another statute amended by the same legislation. Credit provisions in section 2933.3, which took effect on January 25, 2010, were made retroactively applicable to inmate firefighters "who are eligible after July 1, 2009." (§ 2933.3, subd. (d); Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 41, p. 4422.) This shows that the Legislature can make itself clear when it provides for retroactive application of credit statutes. Because no such provision was included in the 2009 amendment of section 4019, we must search for some other compelling indication of legislative intent.
The legislation added subdivisions (b), (c), and (d) to section 2933.3, providing: "(b) Notwithstanding any other law, any inmate who has completed training for assignment to a conservation camp or to a correctional institution as an inmate firefighter or who is assigned to a correctional institution as an inmate firefighter and who is eligible to earn one day of credit for every one day of incarceration pursuant to Section 2933 shall instead earn two days of credit for every one day served in that assignment or after completing that training.
"(c) In addition to credits granted pursuant to subdivision (a) or (b), inmates who have successfully completed training for firefighter assignments shall receive a credit reduction from his or her term of confinement pursuant to regulations adopted by the secretary.
"(d) The credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009." (§ 2933.3, subds. (b)-(c).)
Defendant invokes an uncodified section of the legislation that amended section 4019. Section 59 stated: "The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An 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 provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable." (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 59, p. 4432.) Defendant argues that there would have been no legislative concern for delays in calculating additional time credits unless the calculations were meant to be retroactive.
The Attorney General points out that the Legislature did intend some retroactive calculations under the concurrent amendment of section 2933.3. Also, the same legislation made other statutory changes likely to delay the calculation of custody credits. The legislation eliminated from section 2933, subdivision (a) the provisions for prison "worktime" credits and replaced them with what appear to be custody credits. (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 38, pp. 4420-4421.) At the same time, the same legislation also enacted section 2933.05 (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 39, p. 4421) which authorizes the Department to promulgate regulations under which "program credit reductions" may be earned for completing "approved rehabilitative programming." (§ 2933.05, subd. (a).) Implementation of these new credit schemes under section 2933.05 and 2933.3 would necessarily involve delay in calculations, even if the extra credits under section 4019 are prospective.
"For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months . . . pursuant to regulations adopted by the" Department of Corrections and Rehabilitation. (§ 2933, subd. (b).)
These program credits are limited to no more than six weeks during any 12 months of continuous confinement. (§ 2933.05, subd. (a).) " '[A]pproved rehabilitation programming' [sic]shall include, but is not limited to, academic programs, vocational programs, vocational training, and core programs such as anger management and social life skills, and substance abuse programs." (§ 2933.05, subd. (c).)
We see nothing in section 59 suggesting that the "additional time credits to be granted against inmate sentences resulting from changes in the law pursuant to this act" were intended to apply retroactively to increase conduct credits already earned and awarded under section 4019 prior to the effective date of the 2009 amendment. The fact that implementing the other changes we have described would take some administrative time does not suggest that the Legislature intended to increase the administrative burden by making the credit changes (other than section 2933.3) retroactive.
Defendant also points out that the legislation was a partial response to the Governor's declaration of a fiscal emergency (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 62, p. 4432) and argues that a prospective application would not address the fiscal emergency. We disagree. As the Attorney General points out, shortening prison terms and releasing prisoners sooner after the effective date of the statute will save the state the cost of housing those prisoners, though admittedly a retroactive application would create a greater savings. We find no discussion in the legislative history of any particular cost savings projected for a prospective or retroactive application of the amendments of section 4019. This speculation about a possible cost savings falls far short of a clear and compelling indication that the Legislature intended the 2009 amendment of section 4019 to be applied retroactively.
As the Attorney General argues, the legislation reflects a manifold purpose. While reducing the cost of incarceration was one objective, the Legislature made earlier release available only to those eligible prisoners who earned the extra credits. "Credit is a privilege, not a right. Credit must be earned." (§ 2933, subd. (c).) We consider this statement equally true of section 4019 credit.
Section 4019 was designed at least in part to facilitate management of prisoners by motivating compliant behavior while in local custody. This objective cannot be served by a retroactive application of the amendment of section 4019, as "it is impossible to influence behavior after it has occurred." (In re Stinnette (1979) 94 Cal.App.3d 800, 806 (Stinnette)[upholding expressly prospective application of section 2931 authorizing post-sentence good conduct credit for behavior in prison].) Giving compliant prisoners extra credit for their past behavior would confer an unexpected windfall and unearned bonus on those who have already behaved believing that they were earning two days of conduct credit for every four days of good behavior in custody. We will not ascribe this incongruous intent to the Legislature. Finding no compelling indication of retroactive application, we conclude that the presumption of prospective application of the 2009 amendment of section 4019 has not been rebutted.
C. Impact of Equal Protection Clause on Statutory Amendments
Defendant also argues that, as the extra credit authorized by the 2009 amendment of section 4019 was available to prisoners in local custody after the amendment's effective date, January 25, 2010, it would violate equal protection not to extend that credit to those whose time in local custody ended before January 25, 2010.
We perceive no equal protection problem in giving the amendment a prospective application. " '[A] reduction of sentences only prospectively from the date a new sentencing statute takes effect is not a denial of equal protection.' " (People v. Floyd (2003) 31 Cal.4th 179, 189 [finding no equal protection violation in the expressly prospective application of Proposition 36 (§ 1210.1) providing for mandatory probation for some convicted of nonviolent drug possession offenses].) " '[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' " (Id. at p. 191, quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.) " 'In the context of equal protection, "[a] refusal to apply a statute retroactively does not violate the Fourteenth Amendment." ' " (Stinnette, supra, 94 Cal.App.3d 800, 806.)
In re Kapperman (1974) 11 Cal.3d 542 (Kapperman),on which defendant relies, does not alter our conclusion. In that case, the court reviewed "the constitutionality of Penal Code section 2900.5 which gives credit to persons convicted of felony offenses for time served in custody prior to the commencement of their prison sentence. Subdivision (c) of section 2900.5 makes the credit prospective only, limiting the application of the section to those persons who are delivered into the custody of the Director of Corrections on or after March 4, 1972, the effective date of the section." (Id. at pp. 544-545, fn. omitted.) The Supreme Court was unable to find that this legislative classification was "reasonably related to a legitimate public purpose." (Id. at p. 545.) The court rejected arguments that extending the scope of custody credits would interfere with the effective operation of the then-prevailing Indeterminate Sentence Law (id. at pp. 546-548) and it would create an insurmountable administrative burden (id. at pp. 549-550.)
Within the reasoning of Kapperman is a ground to distinguish it. Kapperman pronounced its "holding is consistent with the rationale of the recent decision of the United States Supreme Court in McGinnis v. Royster [(1973)] 410 U.S. 263." (Kapperman, supra, 11 Cal.3d at p. 548.) It noted that McGinnis had rejected an equal protection challenge to the application of a good-time credit statute in New York by "holding that the provision and its different treatment of jail and prison commitment could be justified as having a rational basis founded in the significant differences between county jails and state prisons with regard to rehabilitation facilities and programs." (Ibid.). Kapperman distinguished McGinnis on two grounds. The credit provided by section 2900.5 depended solely on when the Director of Corrections took custody of the prisoner and not on whether the prisoner was incarcerated in jail or prison. (Ibid.)."Even if McGinnis had concerned a question of retroactivity it still would not be controlling inasmuch as it 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 actual custody. (Ibid.)
Thus, the holding of Kapperman was not intended to apply to changes in what it called "good time" credits and what we call "conduct" credits. Moreover, the rational distinction found lacking in Kapperman is present here. As indicated in the previous section, there is a rational basis for prospective application of an increase in the ability to earn conduct credits, namely, the statutory objective of motivating compliant behavior cannot be achieved by awarding an unearned windfall.
Defendant also cites People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere)as holding "that the equal protection clause commands retroactive application of an amendment increasing credits."
Defendant has misread Doganiere.The issue in the case was indeed whether a 1978 amendment to section 2900.5 authorizing "good time/work time credits" under section 4019 should be applied retroactively. (Doganiere, supra, 86 Cal.App.3d at p. 239.) However, the appellate court did not perform an equal protection analysis to reach its conclusion. Instead the court sought to apply the teaching of In re Estrada, supra, 63 Cal.2d 740 "that laws granting amelioration in punishment should be held to be retroactive as to nonfinal judgments because it would be presumed the amelioration of the punishment was based on the legislative finding that the former punishment was too severe." (Doganiere, supra, 86 Cal.App.3d 237, 239.) That is a separate argument for retroactivity that we do not understand defendant to make here.
People v. Sage (1980) 26 Cal.3d 498 (Sage), on which defendant relies, is also distinguishable. In that case, the Supreme Court considered a former version of section 4019 that authorized presentence conduct credit, but only for those ultimately sentenced to jail time, not prison time. (Id. at p. 504.) The court concluded that there was no "rational basis for, much less a compelling state interest in" maintaining this distinction. (Id. at pp. 507-508.)
Section 4019 was amended to codify the Sage holding. (Stats. 1982, ch. 1234, § 7, p. 4553.)
The statute in Sage restricted conduct credit based on where a prisoner was ultimately housed. It did not distinguish between prisoners based on the time of its enactment or its effective date.
Neither Kapperman nor Sage discussed the principle later applied in People v. Floyd, supra, 31 Cal.4th 179 that the equal protection clause does not preclude statutes and their amendments from having an effective date. This kind of temporal distinction is inevitable and constitutional. (Id. at pp. 189-191.) The classes of people who served time in local custody before and after January 25, 2010, are different because those who served time after the 2009 amendment of section 4019 took effect were entitled to earn even more credit than those who served time before that date. (Cf. In re Strick (1983) 148 Cal.App.3d 906, 913 ["inmates were only similarly situated with respect to the purpose of section 2933 on January 1, 1983, when they were all aware that it was in effect and could choose to modify their behavior accordingly"].) We conclude that equal protection does not require retroactive application of the 2009 amendment of section 4019.
D. Applying the Law
In analyzing legislative intent and constitutional principles, both sides seem to have lost track of the fact that defendant spent nine days in custody beginning October 9, 2008, long before the 2009 amendment of section 4019, and another 36 days in custody beginning February 15, 2011, after the September 28, 2010 revision of section 4019.
We do not understand defendant to be asserting that the 2009 amendment should be retroactively applied to the 36 days in custody she served after February 15, 2011. Her argument for retroactive application must be limited to the nine days she served before the effective date of that amendment. For the reasons stated above, we conclude that the amendment does not apply retroactively to those nine days of custody.
As to her 36 days of custody after February 15, 2011, the extra credit scheme of section 4019 was no longer in effect, having been deleted by an amendment effective prospectively on September 28, 2010. That amendment returned the conduct credit scheme for those is local custody to its pre-January 25, 2010 language, allowing prisoners to earn a total of two days of conduct credit for every four days of actual presentence incarceration. As this is what the trial court awarded, defendant has not established an error in the custody credit award.
An amendment of section 2933 concurrent with the September 2010 revision of section 4019 does authorize one for one conduct credits, but only for a prisoner "sentenced to the state prison." (§ 2933, subd. (e)(1); Stats. 2010, ch. 426, § 1, p. 2087.) Perhaps because this amendment does not apply to defendant, she has not mentioned it.
Having reached the merits of all of defendant's appellate arguments, we do not consider her claim that trial counsel was ineffective to the extent arguments were forfeited.
The judgment is reversed.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
ELIA, ACTING P.J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.