IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 8, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TONY LEE HART, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Harry A. Staley, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. (Super.Ct.No. RIF152266)
The opinion of the court was delivered by: Ramirez P. J.
P. v. Hart
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant and appellant Tony Lee Hart pled no contest to receiving a stolen vehicle (Pen. Code, § 496d)*fn1 and admitted two prison priors (§ 667.5, subd. (b)). He was alleged to have two strike priors. (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) Defendant admitted one of the strike allegations, a 1975 conviction for armed robbery (§ 211), and the other strike allegation was dismissed at the request of the People because they no longer believed the underlying offense constituted a strike. At the sentencing hearing, the trial court struck "for purposes of punishment" one of the two prison priors and the remaining strike prior; the reasons were stated on the record and included in the minutes. (§ 1385.) Defendant was sentenced to a total term of three years in state prison: the midterm of two years for his conviction, enhanced by a consecutive one-year term for the remaining prison prior. Defendant received credit for 144 days based on 96 actual days in custody and 48 days for good conduct pursuant to former section 4019. Defendant's sole contention on appeal is that he is entitled to additional conduct credits due to the amendment of section 4019.*fn2 We affirm.
Section 4019 permits defendants to earn credit for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to actual credits for time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) Under the version of section 4019 in effect at the time of defendant's sentencing, he had accrued conduct credit of "two days for every four days [he was] in actual presentence custody." (Duff, at p. 793.) During the pendency of this appeal, section 4019 was amended to provide for the accrual of two days of conduct credit for every two days of presentence custody. (§ 4019, subd. (f).) However, the increased rate of accrual does not apply "[i]f the prisoner is required to register as a sex offender . . . was committed for a serious felony . . . 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." (§ 4019, subd. (b)(2).)
Defendant contends that the amendment should be interpreted to be retroactive so as to entitle him to additional conduct credits, and that the lack of retroactivity would violate his right to equal protection.*fn4 The People disagree. We agree with the People.
The amendment of section 4019 occurred in section 50 of Senate Bill No. 18 (2009-2010 3d Ex. Sess.). That bill ended with section 62, which stated that the "act addresses the fiscal emergency declared by the Governor. . . ." (Stats. 2009, ch. 28, § 62.) The bill did not contain a saving clause regarding section 4019, i.e., a clause stating that the amendment shall have prospective application only.
The impact of the amendment of section 4019 has split our sister
Courts of Appeal and is pending review in our Supreme Court.*fn5
As that court will have the last word on the subject, we
discuss the issue only summarily.
As an amendment to the Penal Code, the amendment of section 4019 " 'is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753; see also § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"]; In re E.J. (2010) 47 Cal.4th 1258, 1272 [" '[S]section 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted "unless express language or clear and unavoidable implication negatives the presumption." [Citation.]' [Citation.] '[I]n 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 intended a retroactive application' "].) Neither the bill that amended section 4019 nor the legislative history contains any such clear and unavoidable implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that, for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b) & (c), added by stats. 2009-2010, 3d Ex. Sess., ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are prospective only.
We recognize that, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (In re Estrada (1965) 63 Cal.2d 740, 748.) However, presentence conduct credits are not a mitigation of punishment. They are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405.)
B. Equal Protection
Defendant relies on People v. Sage (1980) 26 Cal.3d 498 in support of his contention that equal protection mandates that the statute be applied retroactively. However, Sage is not applicable here. In Sage, our Supreme Court considered a prior version of section 4019 that denied presentence conduct credit to detainees eventually sentenced to prison, although credit was given to detainees sentenced to jail and to felons who served no presentence time. (Sage, at p. 507.) The Supreme Court found no rational basis, and no compelling state interest, justifying the distinction. (Id. at p. 508.) However, the distinction being made in the amendment to section 4019 at bar is temporal, and is not based on the presentence status of defendants. Section 4019's primary purpose is to motivate good conduct. (Brown, supra, 33 Cal.4th at p. 405.) Defendants who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. Because a defendant's conduct cannot be influenced retroactively, a rational basis exists for the Legislature's implicit intent that the amendment apply prospectively. Accordingly, not granting defendant increased conduct credits does not violate his right to equal protection.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: HOLLENHORST J. McKINSTER J.