IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
May 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEAN MARIE EDWARDS, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. (Super.Ct.Nos. FWV900326 & FWV901833)
The opinion of the court was delivered by: McKinster Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part; reversed in part with directions.
Defendant Jean Marie Edwards appeals the sentence imposed following her plea of no contest in two cases. She contends that the trial court erred in imposing sentence enhancements more than once. She also contends that an amendment to Penal Code section 4019, which would result in additional credit for time served before sentencing, should apply retroactively.
We conclude that the trial court erred with respect to the imposition of sentence enhancements pursuant to Health and Safety Code section 11370.2 and Penal Code section 667.5. We will remand both cases for resentencing, but will otherwise affirm the judgments.*fn2
1. CASE NO. FWV900326
In a second amended information filed on September 1, 2009, defendant was charged with evading a police officer (Veh. Code, § 2800.2, subd. (a), count 1); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), count 2); possession for sale of methamphetamine (Health & Saf. Code, § 11378, count 3); transportation of heroin (Health & Saf. Code, § 11352, subd. (a), count 4); and transportation of cocaine (Health & Saf. Code, § 11352, subd. (a), count 5). The information also alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) As to counts 2 and 3, it alleged that defendant had three prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (c). As to counts 4 and 5, it alleged that defendant had three prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a).
On September 1, 2009, in an open plea agreement, defendant entered a plea of no contest to all counts and allegations. The court advised her that her maximum exposure was 47 years eight months to life.
On November 20, 2009, defendant was sentenced to a total prison term of 17 years eight months. The court selected count 4, transportation of heroin, as the principal count, and imposed the upper term of five years, plus nine years for the three prior drug conviction enhancements alleged with respect to count 4. The court imposed a consecutive term of eight months on count 1. On counts 2, 3, and 5, the court imposed concurrent terms plus nine years for the prior drug conviction enhancements on each count but stayed the entire term on each of those counts pursuant to Penal Code section 654. Finally, the court imposed three years for the three prior prison term enhancements.*fn4
2. CASE NO. FWV901833
On July 17, 2009, defendant was charged by felony complaint with possession of methamphetamine in a jail facility. (Pen. Code, § 4573.6.) The complaint also alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).)
On July 23, 2009, defendant pleaded not guilty. On August 28, 2009, she waived her right to a preliminary hearing, and the case was set to trail case No. FWV900326.
On September 1, 2009, defendant changed her plea to no contest and was advised that her maximum exposure was seven years.
On November 20, 2009, defendant was sentenced to one year (one-third the midterm of three years) for the offense, to run consecutive to the sentence imposed in case No. FWV900326, and to a consecutive term of one year for each of the three prior prison term enhancements.
On December 7, 2009, defendant filed a notice of appeal in both cases, requesting a certificate of probable cause. The certificate of probable cause was issued on December 10, 2009.*fn5
1. SENTENCING ERRORS MANDATE REVERSAL AND REMAND FOR RESENTENCING
In case No. FWV900326, the information alleged the same three drug-related prior convictions as enhancements to counts 2 and 3 pursuant to Health and Safety Code section 11370.2, subdivision (c) and as enhancements to counts 4 and 5 pursuant to Health and Safety Code section 11370.2, subdivision (a).*fn6 The court imposed three enhancements each as to counts 2, 3, 4 and 5, staying the enhancements on all but count 4, which was the principal count. Defendant contends that the section 11370.2 enhancements are "status" enhancements which can be imposed only once, on the aggregate sentence. Consequently, she contends, the court was required to strike the enhancements which were alleged in connection with counts 2, 3 and 5 rather than imposing and staying them.
The Attorney General initially agreed. However, noting that the parties did not discuss whether there was any significance to the fact that enhancements were pleaded pursuant to both subdivision (a) and subdivision (c) of section 11370.2, we asked the parties to brief the following question:
"[C]ounts 4 and 5 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), while counts 2 and 3 are subject to enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c). Both subdivisions provide for a mandatory consecutive three-year term upon conviction of a qualifying offense. Was the trial court therefore required to impose unstayed enhancements pursuant to both subdivisions?"
In her supplemental brief, defendant maintained that even though the particular charged offenses mandated alleging the prior drug conviction enhancements under both subdivisions (a) and (c) of Health and Safety Code section 11370.2, an enhancement for each prior conviction could be imposed only once. The Attorney General contended that the Health and Safety Code section 11370.2 enhancements are not pure status enhancements which apply only once to the aggregate term, but rather are a hybrid form of enhancement which, although based on the defendant's status as a recidivist, apply on a count-by-count basis. Consequently, he contends, the trial court was required to impose unstayed enhancements under both subdivisions (a) and (c). He did not, however, discuss whether the court had the authority pursuant to Penal Code section 654 to stay the enhancements imposed as to counts 2, 3 and 5, or whether the enhancements would run concurrently with the principal term, along with the base terms imposed on counts 2, 3 and 5.
As we discuss, we conclude that the section 11370.2 enhancements are status enhancements, which can be imposed only once, as part of the aggregate sentence. However, because of the structure of section 11370.2, we conclude that the Legislature intended that multiple enhancements can be imposed for the same prior convictions, if there are current multiple counts of conviction as to which different subdivisions of section 11370.2 apply.
B. Section 11370.2 Provides for Multiple Enhancements
Sentence enhancements are generally of two types: those which go to the nature or status of the offender, and those which go to the nature or circumstances of the offense. (People v. Coronado (1995) 12 Cal.4th 145, 156.) An enhancement which is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, is imposed on the count to which it applies. (Id. at p. 157.) Enhancements based on prior convictions are status enhancements. Because they are related to the status of the offender, rather than the manner of commission of a crime, they are applied only once, in arriving at an aggregate sentence. (Ibid.; People v. Williams (2004) 34 Cal.4th 397, 402; Pen. Code, § 1170.1.*fn7
The enhancements provided for in section 11370.2 are status enhancements, in that they pertain to defendant's status as a drug conviction recidivist. (People v. Tillotson (2007) 157 Cal.App.4th 517, 542.) Section 11370.2 provides, in pertinent part:
"(a) Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.
"(b) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378.5, 11379.5, 11379.6, 11380.5, or 11383 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.
"(c) Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment."
Although the prior felonies listed in all three subdivisions are the same, each subdivision applies to different current offenses: sections 11351, 11351.5 and 11352 (subdivision (a)); sections 11378.5, 11379, 11379.5, 11379.6, 11380.5 and 11383 (subdivision (b)); section 11378 and 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of section 11055 (subdivision (c)).*fn8 And, each subdivision mandates imposition of the enhancement upon conviction of a qualifying offense, without limitation. The language of a statute is the most reliable indicator of legislative intent. (People v. Brookfield (2009) 47 Cal.4th 583, 592.) If the language is unambiguous, we must apply it without resort to extrinsic sources to determine the Legislature's intent. (People v. Traylor (2009) 46 Cal.4th 1205, 1212.) In this respect, the language of section 11370.2 is unambiguous. Consequently, we conclude that the Legislature intended each subdivision to apply independently of the others, meaning that if a defendant is convicted of a violation of a qualifying offense under subdivision (a) and is also convicted of a qualifying offense under either subdivision (b) or subdivision (c), his or her sentence is to be enhanced under both subdivisions. Accordingly, in this case, where two of defendant's current convictions are for offenses specified in subdivision (a) and two are for offenses specified in subdivision (c) of section 11370.2, the court was required to impose on the aggregate term three three-year enhancements per prior conviction pursuant to each subdivision.
Health and Safety Code section 11370.2 is arguably ambiguous in one respect, however: By providing for three different sets of qualifying offenses in three separate subdivisions and providing that a conviction of any of the qualifying offenses mandates imposition of an enhancement, the statute at least arguably provides for imposition of the enhancements on each count in which the defendant is convicted of a qualifying felony, as the Attorney General contends in his supplemental brief. However, the same is true of Penal Code section 667, subdivision (a). That section, which mandates imposition of a five-year enhancement for each prior serious felony conviction when the defendant is convicted of a serious felony, should arguably apply to each new serious felony count of conviction. However, in People v. Williams, supra, 34 Cal.4th 397, the Supreme Court held that, pursuant to Penal Code section 1170.1, subdivision (a), the enhancement applies only once, even if the defendant is convicted of multiple serious felonies. (People v. Williams, supra, at pp. 401-402.) Consequently, in the absence of any express intention to create an exception to the rule that status enhancements apply only once, regardless of the number of counts of conviction, we must presume that the Legislature did not intend that Health and Safety Code section 11370.2 enhancements attach to each qualifying count.*fn9
C. The Prior Prison Term Enhancements Apply Only to the Aggregate Sentence
The charging documents in both cases alleged the same three prior prison terms as enhancements under Penal Code section 667.5, subdivision (b). Defendant contends that because the sentence in case No. FWV901833 was made consecutive to the sentence in case No. FWV900326, each prior prison term enhancement could be applied only once, to the total sentence. The Attorney General agrees, and so do we.
Prior prison term enhancements are status enhancements which can be imposed only once, on the aggregate sentence. (People v. Williams, supra, 34 Cal.4th at p. 402.) Here, the sentence in case No. FWV901833 was made consecutive to the sentence in case No. FWV900326, creating a single aggregate term. (Cal. Rules of Court, rule 4.452.)*fn10
Consequently, the prior prison term enhancements could not be imposed in both cases.
D. The Proper Remedy Is to Reverse and Remand Both Matters for Resentencing
If correction of a sentencing error may affect the trial court's discretionary decisions in determining an appropriate sentence, the remedy is to reverse and remand for resentencing. (People v. Rodriguez (2009) 47 Cal.4th 501, 509, 510.) Here, because our decision significantly affects the sentences in both cases, it is appropriate to remand for resentencing.
2. PENAL CODE SECTION 4019, AS AMENDED EFFECTIVE JANUARY 25, 2010, DOES NOT APPLY
Defendant was sentenced on November 20, 2009, under the version of Penal Code section 4019 (hereafter section 4019) then in effect, which allowed a prisoner in local custody to obtain one day of conduct credits and one day of work credits for every four days served, if the prisoner served a minimum of six days in local custody. (Former § 4019, subds. (b), (c), (e).) She now contends that she is entitled to the additional credits provided for in the amended version of section 4019 which became effective on January 25, 2010. Under the amended statute, a defendant may earn up to two days of conduct credits for every two days served in local custody before sentencing. (§ 4019, subds. (b)(1), (c)(1), (f).)*fn11 The Attorney General contends that the amendment to section 4019 applies prospectively only and that it consequently does not apply to a case in which sentence was imposed before January 25, 2010, even if the case was pending on appeal when the amendment went into effect.
The appellate courts are divided on the question of the
retroactivity of the amendment to section 4019. The issue is
currently under review before the California Supreme Court in a number
of cases, including one case emanating from this court.*fn12
In that case, People v. Otubuah, supra, 184 Cal.App.4th
422, we concluded that the amendment applies prospectively only.
Until the issue is decided by the California Supreme Court, we
continue to take that view, for the following reasons.
Penal Code section 3 provides that the Penal Code shall not have
retroactive effect unless expressly so declared. "Thus, '"[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. Landon, supra, 183 Cal.App.4th at p. 1106,
quoting People v. Alford (2007) 42 Cal.4th 749, 753.)*fn13
The Supreme Court in In re Estrada (1965) 63 Cal.2d 740,
744-745 (Estrada), created an exception to the Penal Code section 3
presumption of prospective application. In Estrada, the court
considered whether a statute mitigating punishment for escape should
be applied retroactively to a defendant who escaped before the
effective date of the mitigating statute. The statute was silent as
to retroactive application. (Estrada, at p. 744.) According to
Estrada, a statutory amendment reducing punishment for a crime or
changing procedure in favor of a defendant should be given retroactive
effect as to cases that have not reached final judgment.*fn14
(Estrada, at pp. 744-745.)
In reaching its holding, the Estrada court explained: "When 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Estrada, supra, 63 Cal.2d at p. 745.) Thus, "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.)
Relying on Estrada, in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two), we held that amendments to Penal Code section 2900.5, which provided that section 4019 conduct credits are to be applied to the sentence ultimately imposed, were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to Pen. Code, § 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. (See People v. House, supra, 183 Cal.App.4th at p. 1057; People v. Hunter, supra, at p. 393.) But despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding good behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Sage (1980) 26 Cal.3d 498, 510 (conc. & dis. opn. of Clark, J.); People v. Saffell (1979) 25 Cal.3d 223, 233.)
Furthermore, because conduct credits are intended to motivate good behavior, the section 4019 amendment, which increases the credit accrual rate, does not represent a determination that a prior punishment is too severe. (See People v. Rodriguez, supra, 183 Cal.App.4th at p. 9 ["it cannot be said that the punishment-reducing amendment at issue here 'obviously' evinces a legislative determination that sentences for some felons are too severe, or that the Legislature intended a reduction in sentence for some felons should be extended to all to whom it lawfully can be extended"].) We thus conclude that the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546; see also People v. Otubuah, supra, 184 Cal.App.4th at p. 436.)
We conclude, as we did in People v. Otubuah, supra, 184 Cal.App.4th at page 436, that, "[h]aving searched for a legislative intent regarding prospective or retroactive application, we agree with the Fifth District that 'there is no "'clear and compelling implication'" [citation] that the Legislature intended the amendatory statute at issue to apply retroactively. Accordingly, the [Penal Code] section 3 presumption is not rebutted.' ([People v.] Rodriguez, supra, [183 Cal.App.4th 1, 13]; see also In re E.J., supra, 47 Cal.4th at p. 1272 ['"[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."'].)"
As the court in People v. Hopkins, supra, 184 Cal.App.4th 615, recently explained in support of its holding that the section 4019 amendment applies prospectively only: "Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 18), the legislation which amended section 4019, was enacted in order to address the state's fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) By increasing the amount of credits available to certain inmates, qualifying inmates' terms will be shortened and prison populations reduced, resulting in reduced costs to the state. Obviously, if the amendment to section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however, that applying the amendment prospectively is inconsistent with the Legislature's goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature's intent to reduce prison expenditures is particularly instructive on the issue of retroactivity. It certainly cannot be conflated into a determination, as in Estrada, that the original punishment for a particular crime was too severe and that a lesser punishment was more appropriate. 'Rather, because the express purpose of Senate Bill [No.] 18 was to address the state's fiscal emergency, it is also plausible the Legislature determined the following: The persons whose sentences will be reduced under the section 4019 amendment are just as culpable and deserving of punishment as they were before the amendment; after all, there has been no legislative determination that the offenses for which those persons were sentenced should be punished less severely.' [Citation.]" (People v. Hopkins, supra, at p. 625, quoting in part People v. Rodriguez, supra, 183 Cal.App.4th at p. 9.) The court in Hopkins thus concluded the rule laid out in Estrada was not applicable "because the amendment to section 4019 does not necessarily lessen a defendant's punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody. Applying the amendment to section 4019 retroactively would not advance the statute's purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred." (People v. Hopkins, supra, 184 Cal.App.4th at p. 625, fn. omitted, citing People v. Rodriguez, supra, 183 Cal.App.4th 1.)
Accordingly, we conclude that the amendment to section 4019 applies prospectively and that defendant is not entitled to an increase in her custody credits.
The judgments in case Nos. FWV900326 and FWV901833 are reversed as to the sentences only, and are otherwise affirmed. The causes are remanded to the superior court for resentencing in accordance with the views expressed in this opinion.
CERTIFIED FOR PARTIAL PUBLICATION
We concur: /s/ Richli J. /s/ Miller J.