IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 9, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MUSTAFIA RABB WALL, DEFENDANT AND APPELLANT.
(Santa Clara County Super.Ct.No. CC808396; CC828307)
The opinion of the court was delivered by: Duffy, J.
P. v. Wall
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mustafia Rabb Wall pleaded no contest in one case (Case No. CC808396) to transportation of a controlled substance, a felony, and being under the influence of a controlled substance, a misdemeanor. He also admitted that he had two prior drug convictions. In a second case (Case No. CC828307), defendant pleaded no contest to two felony counts of resisting a peace officer and admitted that he had suffered one prior felony for which he had been committed to state prison. On October 22, 2009, defendant was sentenced to prison for a total term of six years, four months.
Defendant asserts that he should receive additional presentence conduct credits in accordance with an amendment to section 4019 of the Penal Code, effective January 25, 2010, that he contends should be applied retroactively to his circumstances.*fn1 We conclude that this amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted and sentenced prior to the effective date of the amendment, but the judgment did not become final until after such effective date. We will therefore affirm the judgment.
I. Case Number CC808396
On June 10, 2008, at approximately 8:00 p.m., San Jose Police Officer Michael Ruybal conducted a traffic stop of a car with three occupants driving on Story Road in San Jose. As Officer Ruybal spoke with the driver, he noticed that defendant, in the front passenger seat, was crumpling a plastic baggie in his hand. The officer determined that defendant was on parole; after he got out of the car, defendant no longer had the baggie. Officer Ruybal discovered an empty baggie on the front passenger seat and a white crystalline substance piled up on the floorboard between the front passenger seat and the door. The officer collected a portion (5.63 grams) of the substance (a considerable amount was stuck in the carpet), which was later determined from testing to be methamphetamine. Based upon the quantity involved and the fact that a digital gram scale was in the front passenger seat, Officer Ruybal concluded that the methamphetamine was being possessed for the purpose of being sold. It was later determined from chemical testing that defendant had been under the influence of methamphetamine.
II. Case Number CC828307
On December 10, 2008, San Jose Police Officers Wendell Martin and Jim Lisius made a traffic stop on Snell Avenue in San Jose. Defendant was the front seat passenger. After speaking with defendant for several minutes--and after noticing defendant's nervousness, dry mouth, constricted pupils, rapid speech, and rapid pulse--Officer Martin concluded that he was under the influence of a stimulant. Defendant gave a false name (Devin Campbell) in response to the officer's inquiry about his identity.
As Officer Lisius attempted to remove him from the car, defendant attempted to crawl past the driver's area and through the open door. After Officer Lisius pulled defendant back, he began fighting with both officers. His shoulder struck Officer Lisius in the face, causing his glasses to fall off, and then he punched the officer in the face. In the struggle, Officer Martin fell onto the ground. Both officers wrestled with defendant on the ground in an effort to subdue him. After defendant and Officer Lisius regained their footing, Officer Lisius attempted to tase defendant, but he took the taser away from the officer. Officer Lisius then pulled his gun and threatened to shoot him; defendant pulled the trigger on the taser, but "nothing happened." Defendant and Officer Lisius continued to struggle near the driver's door of the patrol car, but defendant broke free. While he was running away, defendant tripped in a grassy area. As both officers attempted to subdue him, and after warning defendant that he would be tased unless he stopped fighting, Officer Martin applied his taser upon defendant in two bursts. They were then able to handcuff defendant. Methamphetamine and a pipe used for smoking it were found on defendant's person.
In Case Number CC808396, defendant was charged by information with possession for sale of a controlled substance, methamphetamine, a felony (Health & Saf. Code, § 11378; count 1); transportation of a controlled substance, methamphetamine, a felony (Health & Saf. Code, § 11379, subd. (a); count 2); and being under the influence of a controlled substance, methamphetamine, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 3). The information contained special allegations that defendant, pursuant to section 1203.07, subdivision (a)(11), had two prior convictions of possession of a controlled substance for sale (Health & Saf. Code, § 11378); had three prior convictions of being under the influence of a controlled substance (Health & Saf. Code, § 11550); was previously convicted of a felony for which he had served a prison term within the meaning of section 667.5, subdivision (b); and, within the meaning of Health and Safety Code section 11370.2, subdivision (c), had sustained two prior convictions of possession of a controlled substance for sale (Health & Saf. Code, § 11378).
In Case Number CC828307, defendant was charged by information with two counts of resisting or deterring a peace officer, a felony (§ 69; counts 1 and 2); removing or taking a peace officer's weapon other than a firearm, a felony (§ 148, subd. (b); count 3); battery on a peace officer, a felony (§§ 242-243, subd. (c)(2); count 4); giving a false name to a peace officer, a misdemeanor (§ 148.9; count 5); possession of a controlled substance, methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a); count 6); and being under the influence of a controlled substance, methamphetamine, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 7). The information contained special allegations that defendant had two prior convictions of being under the influence of a controlled substance (Health & Saf. Code, § 11550); was at the time of the commission of the offenses charged in Counts 1 through 4 and 6, defendant was on bail and his own recognizance (§ 12022.1); and was previously convicted of a felony for which he had served a prison term within the meaning of section 667.5, subdivision (b).
Pursuant to a negotiated disposition, defendant pleaded no contest to certain counts and admitted certain allegations in the two cases. In Case Number CC808396, defendant pleaded no contest to the misdemeanor charges of transportation of a controlled substance (count 2), and of being under the influence of a controlled substance (count 3), and defendant admitted that he had two prior convictions of possession for sale of a controlled substance (Health & Saf. Code, § 11378) within the meaning of Health and Safety Code section 11370.2, subdivision (c), and that he had three prior convictions of being under the influence of a controlled substance. In Case Number CC828307, defendant pleaded no contest to two counts of resisting or deterring a peace officer (counts 1 and 2), and he admitted the allegations that he had previously been convicted of a felony (possession for sale of a controlled substance) for which he served a prison term within the meaning of section 667.5, subdivision (b). The prosecution agreed to dismiss the remaining counts and allegations contained in the informations with the understanding that defendant would be sentenced to a prison term of 16 months for the convictions in Case Number CC828307, consecutive to five years for the convictions in Case Number CC808396. Before accepting the plea, defendant was apprised fully of the rights he was giving up as a result of his no contest plea and concerning the consequences of that plea. Counsel stipulated that there was a factual basis for the plea, and the court found the existence of such a factual basis.
In October 2009, and in accordance with the negotiated disposition, the court sentenced defendant to two years for the count 2 conviction in Case Number CC808396, together with a three-year consecutive sentence for the drug enhancement (Health & Saf. Code, § 11370.2, subd. (c)), for a total term of five years. The court also sentenced defendant to a 180-day concurrent sentence for the count 3 conviction. In Case Number CC828307, the court sentenced defendant on counts 1 and 2 to individual eight-month consecutive sentences, the total 16-month sentence to run consecutive to the five-year sentence imposed in Case Number CC808396. Defendant received a credit of 564 days (376 actual, together with 188 local conduct credits). The court dismissed the remaining counts and enhancements in the two cases pursuant to the negotiated plea. Defendant filed a timely appeal based upon the sentence or other matters occurring after the plea and upon the denial of a motion to suppress.*fn3
I. Retroactivity of Amendment to Section 4019
A. Issue Presented
Section 4019 permits a criminal defendant to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior during detention (§ 4019, subd. (c)(1)). Such credits are collectively referred to as "conduct credits." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Section 4019's scheme for presentencing credit " ' "focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed . . . ." ' [Citations.]" (Dieck, at p. 939.)
Senate Bill No. 18 (2009-2010 3d Ex. Sess.), enacted in October 2009, amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50, p. 4427.) The formula in place for calculating credits under section 4019 at the time defendant was sentenced (in October 2009) was that a defendant could accrue conduct credit of two days for every four days of actual presentence custody (former § 4019, subds. (b), (c)); under the new formula provided in Senate Bill No. 18, a qualifying defendant*fn4 may accrue conduct credit of four days for every four days of presentence custody (§ 4019, subds. (b)(1), (c)(1)).
Defendant contends that he is entitled to 188 days of additional presentence conduct credits under the amendment to section 4019. He argues that, because his conviction was not final when the amendment to section 4019 became effective, he is entitled to additional conduct credits in accordance with the formula provided in the amendment (i.e., credit at a rate of four days for every four days of presentence custody). Defendant asserts that this conclusion is compelled by decisional authority, statutory construction, and application of the equal protection clause of the California Constitution. The Attorney General contends that the amendment to section 4019 should be applied prospectively to persons sentenced on or after the amendment's effective date of January 25, 2010.
The question of retroactive application of a statutory amendment is governed by the independent standard of review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) Appellate courts are divided concerning whether the amendment to section 4019 should be given retroactive application.*fn5 The issue posed here is one that is now pending before our high court for resolution. (See People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
B. Whether Amendment to Section 4019 is Retroactive
Section 3 states that no part of the Penal Code is "retroactive, unless expressly so declared." Our high court has held that section 3 "mean[s] '[a] new statute 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 (Alford).) Therefore, absent "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." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
The amendment to section 4019 contains no " 'express declaration of retroactivity' " (Alford, supra, 42 Cal.4th at p. 753.) Accordingly, we must evaluate whether there is " 'a clear and compelling implication' " that the Legislature intended retroactivity. (Ibid.)
Defendant posits that the Legislature intended that its amendment of section 4019 increasing conduct credits would apply retroactively because the amendment was intended to address California's fiscal emergency by reducing the prison population. But both a prospective, as well as a retroactive, application of the amendment, would effect savings through a reduction in prisoners' terms, thereby addressing the state's fiscal emergency. The fact that retroactive application of the amendment would result in greater savings does not result in the clear implication that the Legislature intended for Senate Bill No. 18 to apply retroactively.
Defendant also argues that it may be inferred from section 59 of Senate Bill No. 18 that the Legislature intended the amendment to section 4019 be retroactive.*fn6 Defendant argues that if the amendment had been intended to be prospective, the Legislature would not have been concerned with "delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act." (Senate Bill No. 18, section 59.) This argument is not persuasive. Senate Bill No. 18 amended other credit statutes besides section 4019; at least one of those statutes, section 2933.3, specifies retroactive credit. Accordingly, the language in section 59 of Senate Bill No. 18 regarding the calculation of additional credits applies to section 2933.3, and such language would not be surplusage were we to find that the amendment to section 4019 applies prospectively.
Defendant relies on In re Estrada (1965) 63 Cal.2d 740 (Estrada) in support of his retroactivity argument. In Estrada, the high court held 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." (Id. at p. 748.) Defendant contends that the effect of section 4019's amendment is to lessen the punishment for a crime, and thus the rule in Estrada should apply. We disagree.
The rule in Estrada does not apply, because the amendment to section 4019 does not necessarily result in a reduction of a defendant's punishment. Rather, it provides for additional conduct credit--a credit that a defendant must earn--as contrasted with additional custody credit that a defendant may receive solely as a result of being in presentence custody. Since the state cannot influence the behavior of defendants who have been in presentence custody where that custody (and hence the behavior) has already occurred, section 4019's purpose of rewarding good behavior would not be served by retroactive application of the amendment. In In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette), the court considered whether prospective application of the conduct credit statutes of the Determinate Sentencing Act violated the petitioner's equal protection rights. The court in Stinnette rejected the equal protection challenge, reasoning that the purpose of the statute was "motivating good conduct among prisoners so as to maintain discipline and minimize threats to prison security. Reason dictates that it is impossible to influence behavior after it has occurred." (Id. at p. 806; see also People v. Guzman (1995) 40 Cal.App.4th 691, 695: "The purpose of [§] 4019 is to encourage good behavior by incarcerated defendants prior to sentencing.")
Defendant's reliance on People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) is also misplaced. There, the defendant argued that a 1976 amendment to former section 2900.5--concerning credit for " 'back time,' " that is, "periods of incarceration in county jail awaiting trial and judgment," against a sentence imposed as a condition of probation (Hunter, at p. 391)--should be applied retroactively. The court, following Estrada, supra, 63 Cal.2d 740, held that the amendment applied retroactively because it involved the lessening of the punishment imposed on a defendant. (Hunter, at p. 393.) Here, as noted, we are concerned with conduct credit, rather than the custody credit involved in Hunter, and we disagree that the amendment to section 4019 constitutes a lessening of punishment as that concept was described in Estrada.
Defendant further cites People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) in support of his retroactivity argument. In Doganiere, the court addressed the issue of whether the potential retroactivity of an amendment to section 2900.5, under which a defendant could receive section 4019 conduct credit against a prison term for time spent in custody pursuant to a probation order. (Doganiere, at pp. 238-239.) The court held that custody credit is indistinguishable from conduct credit, rejecting the argument that they are different because conduct credit is "designed to control future prison inmate behavior, encourage future cooperation in prison programs, and foster future inmate self-improvement." (Id. at p. 239.) Doganiere concluded that "[u]nder Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe." (Id. at p. 240.) We decline to follow Doganiere's reasoning here in order to find the amendment of section 4019 retroactive. The Legislature's enactment of a law authorizing conduct credit was not an attempt to lessen punishment. Instead, "conduct credits are designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility." (People v. Silva (2003) 114 Cal.App.4th 122, 128.)
Additionally, defendant here relies on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), and People v. Sage (1980) 26 Cal.3d 498 (Sage), in support of his claim that "the equal protection clauses of the California and federal constitutions require that the new law be applied to all defendants who are presently serving a sentence, on parole, or on probation." (Fn. omitted.) Neither case applies here.
In Kapperman, the court held that an express prospective limitation upon a statute creating presentence custody credits violated equal protection because no legitimate purpose was served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman does not apply, because it addressed actual custody credits, not conduct credits. Conduct credits must be earned, while custody credits are awarded automatically on the basis of time served.
Sage, supra, 26 Cal.3d 498, is similarly inapposite. That case concerned a prior version of section 4019 under which presentence conduct credits were available to misdemeanants, but not to felons. (Sage, at p. 508.) Our high court held that there was neither "a rational basis for, [nor] a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid., fn. omitted.) Here, the purported equal protection violation defendant asserts is one that is temporal, and is not based on the defendant's status as misdemeanant or felon. As we have noted, one of the primary purposes of section 4019 was to motivate good conduct. Defendant and others like him who were sentenced prior to the effective date of the amendment cannot be incentivized further to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment only apply prospectively. We therefore reject defendant's claim that the equal protection clause compels that the amendment to section 4019 be applied retroactively.
Because there is neither "an express declaration of retroactivity" (Alford, supra, 42 Cal.4th at p. 753), nor is there anything in Senate Bill No. 18 which provides the necessary " 'clear and unavoidable implication negat[ing] the presumption' " provided in section 3 (Evangelatos, supra, 44 Cal.3d at p. 1208), we conclude that the amendment to section 4019 operates prospectively. Defendant is therefore not entitled to the benefit of additional conduct credits under the new formula.
The judgment is affirmed.
I CONCUR: Mihara, Acting P.J. McAdams, J., Dissenting.
I dissent on the issue of the application of amended Penal Code section 4019. I agree with the reasoning of the numerous cases that have held the amendments apply retroactively.*fn7 In my view, such a conclusion follows from California Supreme Court precedent. As the Court reiterated in People v. Nasalga (1996) 12 Cal.4th 784, "provisions of a statute that have an ameliorative effect must be given retroactive effect, even where other provisions of the same statute clearly do not have such an effect." (Id. at p. 796, following In re Estrada (1965) 63 Cal.2d 740.) I would therefore find the amendments to Penal Code section 4019 at issue here apply retroactively.