IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 9, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LUIS VALDEZ, DEFENDANT AND APPELLANT.
(Monterey County Super.Ct.No. SS082275)
The opinion of the court was delivered by: Duffy, J.
P. v. Valdez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Luis Valdez pleaded guilty to receiving stolen property. In April 2009, pursuant to the terms of defendant's plea agreement, he was granted three-year probation. The court, after a contested hearing, found that defendant had violated probation. On January 12, 2010, he was found to be an unsuitable candidate for probation and was sentenced to two years in prison.
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. Underlying Offense
On the afternoon of September 3, 2008, a Salinas Police Officer was on patrol and encountered defendant and another male, Rene Rubio, standing next to a car in a parking lot. The officer, after speaking with the individuals, concluded that defendant was under the influence of a controlled substance. During a search incident to his arrest, the officer found two black gloves in defendant's rear pants pocket; based upon the officer's training and experience, persons often wear such gloves when they break into vehicles or residences. Rubio denied consent to a search of his car. There was a speaker box and two stereos in plain view in the car. Rubio denied that the stereo equipment had been stolen but refused the officer's request to inspect the serial numbers on the equipment to confirm Rubio's claim. The officer then placed Rubio under arrest and conducted a search of the car based upon both the arrest and because of Rubio's status as a probationer. The search yielded a number of items that were later determined to have been stolen, including a number of tools, stereo equipment, and cameras.
II. Probation Violation
On August 25, 2009, Deputy Probation Officer Kathy Longoria met with defendant. She reviewed his probation conditions and told defendant that he could wear nothing that was red or blue, including sports memorabilia, such as 49ers or Raiders apparel, and that he could not have anything in his house that could be regarded as gang-related. (She had been made aware of a prior incident in which defendant had worn red clothing.) Officer Longoria asked defendant why he wore red clothing; he responded that he wanted "to get close to Nortenos." She told defendant that he needed to make sure that his home was "cleared of anything that could be considered gang related."
The next day, Deputy Probation Officer Derek Rager and a partner responded to a call in which they made contact with defendant. He was wearing a San Francisco 49ers cap that was black with an "SF" emblem that was red. A gang expert testified that the cap had gang significance because the emblem was red and was thus associated with Nortenos. The "SF" emblem has also been associated with Northern California Surenos, referring to "Salinas finest or Sureno forever." Officer Rager called Officer Longoria to inform her that one of her probationers was wearing clothing that he believed to be gang-related.
On August 27, 2009, defendant reported to the Office of Probation and was taken to his home by Officer Longoria and two other officers. A probation search was conducted. There were a number of gang-related items found in defendant's bedroom, including multiple sweatshirts and a jacket, a CD with gang-related songs, and letters involving gang members or concerning gang activity.
A gang expert also testified that he observed defendant during the hearing and that he had a tattoo, "VGS," on the back of his head. The initials stand for Vagos which is a Sureno gang.
Defendant was charged by information with receiving or concealing stolen property, a felony (§ 496, subd. (a); count 1); and being under the influence of a controlled substance, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 2).
In March 2009, defendant pleaded guilty to count 1 on the condition that he would receive felony probation. In April 2009, and in accordance with the negotiated disposition, the court suspended imposition of the sentence and placed defendant on felony probation for a term of three years subject to a series of conditions. The probation conditions included that defendant not associate with known gang members or wear or display gang paraphernalia.
On August 20, 2009, defendant's probation was revoked and reinstated; the probation violation consisted of wearing gang clothing and associating with known or suspected gang members. Eight days later, a petition to revoke probation was filed, based upon defendant's having worn and possessed gang-related paraphernalia and clothing. After a contested hearing, the court found that defendant had violated the terms of his probation. On January 12, 2010, the court found defendant to be an unsuitable candidate for probation and imposed a midterm sentence of two years in prison. Defendant received a credit of 207 days (139 actual, together with 68 local conduct credits). Defendant filed a timely appeal based upon a claimed sentencing error.
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 (i.e., January 12, 2010) 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*fn3 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 71 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.*fn4 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.)
The amendment to section 4019 was intended to address California's fiscal emergency by reducing the prison population. This fact, however, does not suggest that there was an implied intent that the amendment be applied retroactively. 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.
Section 59 of Senate Bill No. 18 contemplated that there would be "delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act."*fn5 This also does not suggest a clear implication that the Legislature intended the amendment to be retroactive. Were Senate Bill 18 to have only impacted section 4019, an implication of retroactivity might have some vitality. But 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 "equal protection principles require the retroactive application of the new statute to all defendants who are (1) presently serving a sentence, presently on parole, or presently on probation." 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.*fn6 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.