IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KENNETH MURRAY, DEFENDANT AND APPELLANT.
Monterey County Super. Ct. No. SS080904
The opinion of the court was delivered by: Mihara, J.
P. v. Murray 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kenneth Murray pleaded guilty to forgery (Pen. Code, § 470, subd. (d))*fn1 and passing an insufficient funds check (§ 476a, subd. (a)), and was placed on probation. Following revocation of his probation, the trial court ordered execution of the previously suspended prison sentence of three years and eight months. Defendant's appointed appellate counsel originally filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that raised no issues. We requested and received supplemental briefing from the parties addressing whether defendant was entitled to additional credits pursuant to the amendments to section 4019.*fn2 We conclude that defendant is not entitled to additional credits and affirm.
I. Statement of the Case*fn3
Pursuant to a plea agreement, defendant pleaded guilty to one count of forgery and one count of passing an insufficient funds check in July 2008. A month later, the trial court sentenced defendant to three years and eight months in prison, suspended execution of sentence, placed defendant on probation, and ordered him to serve 365 days in jail, most of which was served on home confinement. In September 2009, defendant's probation was revoked for repeatedly failing to report to the supervised home confinement officer as required. The trial court sentenced defendant to prison for three years and eight months. Defendant received credit for 325 days based on 53 days served in jail, 26 days of conduct credit, and the remainder having been served in supervised home confinement.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody, including days served as a condition of probation, prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c).*fn4 " 'Conduct credit' collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c)). [Citation.]" (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Under the former version of section 4019, a defendant earned two days of conduct credit for every four actual days served in local custody. (Former § 4019, subds. (b), (c).) However, in October 2009, Senate Bill No. 18 was enacted. Among other things, amended section 4019 increased conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) These defendants are now eligible to earn two days of conduct credits for every two days of actual custody. (§ 4019, subds. (b)(1), (c)(1).)
Here, the trial court awarded presentence credits under former section 4019. Since defendant has no current or prior convictions for serious or violent felonies and he is not required to register as a sex offender, he contends that he is entitled to additional conduct credits pursuant to amended section 4019.*fn5
Section 3 states that no part of the Penal Code is "retroactive, unless expressly so declared." The California Supreme Court has interpreted section 3 "to mean '[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.]' " (People v. Alford (2007) 42 Cal.4th 749, 753 (Alford).) "[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." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)
In the present case, the Legislature did not expressly state which version of section 4019 should apply to cases not yet final as of its effective date. Thus, we must determine whether the Legislature's intent is "very clear from extrinsic sources." (Evangelatos, supra, 44 Cal.3d at p. 1209.)
Defendant relies on an exception to the general rule of prospective application. "[A]bsent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. [Citations.]" (People v. Babylon (1985) 39 Cal.3d 719, 725.) This rule was first articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In that case, the California Supreme Court reasoned that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.)
At issue then is whether a statute that increases presentence credits lessens punishment. People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) addressed this issue in connection with custody credits. In 1976, the Legislature amended section 2900.5 to provide that a defendant was entitled to custody credits against a county jail sentence imposed as a condition of probation. (Hunter, at p. 392.) Applying Estrada, Hunter held that the amendment to section 2900.5 "must be construed as one lessening punishment," and thus applied the amended statute retroactively. (Hunter, at p. 393.)
People v. Doganiere (1978) 86 Cal.App.3d 237 (Doganiere) considered whether amended section 2900.5 that entitled a defendant to conduct credits while in custody pursuant to a probation order applied retroactively. (Doganiere, at pp. 238-239.) The court rejected the People's argument that custody credits were distinguishable from conduct credits because conduct credits are "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 disagree with the reasoning in Doganiere. In enacting legislation to authorize conduct credits, the Legislature is not seeking to lessen punishment. Rather, "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.)
In In re Stinnette (1979) 94 Cal.App.3d 800, the court considered whether prospective application of the conduct credit statutes of the recently enacted Determinate Sentencing Act violated petitioner's equal protection rights. Stinnette rejected the equal protection challenge, reasoning that the purpose of the statutes 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." (In re Stinnette, at p. 806; People v. Guzman (1995) 40 Cal.App.4th 691, 695 ["The purpose of Penal Code section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing."].) Similarly, here, prospective application of amended section 4019 could have no affect on a defendant's past behavior.
Defendant contends, however, that section 59 of Senate Bill No. 18 demonstrates a legislative intent that amended section 4019 applies retroactively to all judgments.
Section 59 of Senate Bill No. 18 provides: "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 is applicable."
Defendant argues that if amended section 4019 was prospective only, section 59 of Senate Bill No. 18 would be surplusage. He points out that the only credit calculations the California Department of Corrections and Rehabilitation (CDCR) would need to make as a result of amended section 4019 would be for prisoners who were already in its custody, and it would need to recalculate these credits for a prisoner only if amended 4019 operated retroactively.
We disagree with defendant's position. Senate Bill No. 18 also amended other credit statutes. For example, section 41 of Senate Bill No. 18 amended section 2933.3 to provide increased credit for certain inmates who completed training for inmate firefighter assignments. (§ 2933.3, subds. (b) & (c).) Thus, even if amended section 4019 was found to apply prospectively, section 59 of Senate Bill No. 18 would immunize the CDCR from suit for reasonable delays in the calculation of credits earned pursuant to section 2933.3, subdivisions (b) and (c). Accordingly, section 59 of Senate Bill No. 18 would not be surplusage.*fn6
Since there is no " 'compelling implication that the Legislature intended otherwise' " (Alford, supra, 42 Cal.4th at p. 753), we conclude that amended section 4019 should be applied prospectively.
Defendant next contends that prospective application of amended section 4019 violates his equal protection rights.
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) " ' "The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." ' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments to section 4019 do not involve a " ' " 'suspect classification' " ' " or a " ' " 'fundamental interest,' " ' " courts apply the rational basis test to determine whether the "distinction drawn by the challenged statute bears some rational relationship to a conceivable legitimate state purpose." (In re Stinnette, supra, 94 Cal.App.3d at p. 805.) Here, as previously stated, the state has a legitimate purpose in encouraging good behavior by inmates. Since "it is impossible to influence behavior after it has occurred" (id. at p. 806), awarding conduct credits as of the effective date of the statute was rationally related to a legitimate state interest. Accordingly, the amendment to section 4019 does not violate defendant's equal protection rights.
The judgment is affirmed.
Bamattre-Manoukian, Acting P. J.