IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
September 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
WALTER LEWIS SCHMIDT, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F3550)
The opinion of the court was delivered by: Robie , J.
P. v. Schmidt
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In May 2010, defendant Walter Lewis Schmidt pled no contest to second degree burglary and admitted two prior prison terms. In exchange for his plea, the remaining charges and enhancements were dismissed and it was stipulated that defendant would be sentenced to state prison for a term of five years, to run concurrently with time he was serving on a parole violation. Defendant was sentenced forthwith in accordance with this agreement. Defendant appealed.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief in which he claims that one of his prior prison terms was for a conviction in Oregon on which he did not serve a year in prison, a requirement under Penal Code*fn1 section 667.5, subdivision (f), when the prior felony conviction occurred in another jurisdiction. (People v. Gamble (1996) 48 Cal.App.4th 576.) However, as the record on appeal does not contain any information regarding defendant's prior conviction in Oregon other than the allegation in the complaint, defendant's claim is not cognizable in this proceeding. Furthermore, defendant did not seek or obtain a certificate of probable cause at the time he filed his notice of appeal, a requirement when appealing from a conviction based on a plea of guilty or no contest, unless the grounds arose after entry of the plea and do not affect the plea's validity. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) Accordingly, we conclude defendant is not entitled to relief on this issue.
Following our independent review of the record in this matter, we directed the parties to submit supplemental briefing on the issue of whether defendant is entitled to additional presentence custody credits under recent amendments to sections 2933 and 4019. (§§ 4019, former subds. (b) & (c) [as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50], 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Effective January 25, 2010, section 4019 was amended to revise the accrual rate for conduct credits by giving qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Prior to the effective date of the amendment, presentence credit was limited to approximately one day for every two days served in presentence confinement. (Stats. 1982, ch. 1234, § 7, pp. 4553, 4454; § 4019, former subds. (b), (c) & (f).) On September 28, 2010, the Legislature, in effect, undid the revision to section 4019 and amended section 2933 to provide day-for-day presentence conduct credits, but only for qualifying defendants sentenced to state prison. (§ 2933, subd. (e).) The amendment also eliminated the loss of one day of presentence conduct credit under the rate specified in former section 4019 when a defendant serves an odd number of days in presentence custody.
The People concede defendant is entitled to additional custody credits under these statutory amendments. However, based on non-retroactivity and equal protection arguments, the People maintain defendant is entitled to such credits only from the effective date of the first statutory amendment -- January 25, 2010. We disagree.
In In re Estrada (1965) 63 Cal.2d 740, 745, the California Supreme Court created an exception to the rule that Penal Code statutes are not to be applied retroactively unless expressly stated (§ 3) for statutes that lower the punishment for an offense. Subsequently, Estrada was applied to a statutory amendment providing for presentence custody credits (People v. Hunter (1977) 68 Cal.App.3d 389, 393) and another statutory amendment allowing prisoners to earn conduct credits (People v. Doganiere (1978) 86 Cal.App.3d 237, 240).
Neither of the amendments in question, here, states that it is to be applied prospectively (with the exception of a provision in the current version of section 4019 for prospective application of the reduction in conduct credits for prisoners not sentenced to state prison). (§ 4019, subd. (g).) Thus, we conclude that the provisions increasing the rate for earning presentence conduct credit under section 2933 and former section 4019 apply retroactively to all appeals pending as of those effective dates.*fn2
The People argue that giving retroactive treatment to the statutory amendments at issue "would potentially give rise to equal protection violations" for prisoners sentenced before the effective date of the statute. In light of the purpose of the amendments, which was to address "a fiscal emergency" (Stats. 2009, 3d Ex. Sess., ch. 28, § 62), we agree there is no rational basis for disparate treatment of prisoners sentenced before and after the effective date of the amendment. However, the conclusion we draw from this is that both groups are entitled to have their conduct credits calculated in accordance with the statutory amendments.
Defendant had served 379 days in custody on the current matter when he was sentenced to serve a term in state prison. Under the version of section 4019 in effect at the time of his sentencing, he was entitled to 378 days of conduct credits, rather than 188 days as declared by the trial court. Pursuant to the formula for calculating time credits set forth in the current version of section 2933, defendant is entitled to an additional day of conduct credit, for a total of 379 days' conduct credits.
However, as an additional argument, the People contend section 2933 is inapplicable here because the statute "has consistently been interpreted as applicable to credits earned after a prison sentence has been executed." While this may have been true prior to the 2010 amendment to section 2933, subdivision (e) of that section now indisputably governs conduct credits for time spent in custody prior to a state prison commitment. To the extent section 2900.5 appears to require the trial court to determine presentence custody credits only "pursuant to Section 4019," we conclude this to be the result of an oversight by the Legislature when it amended section 2933 to include a provision for presentence custody credits. (§ 2900.5, subds. (a) & (d).) It simply makes no sense to require the trial court to calculate presentence conduct credits under an incorrect formula (i.e., the formula set forth in section 4019). Nor does it make sense to delegate the obligation of determining presentence custody credits to state prison personnel, who do not have access to the information necessary to calculate a defendant's entitlement to presentence custody credits.
Defendant is entitled to a total of 379 days of conduct credits. We will modify the judgment accordingly. We find no further error that would result in a disposition more favorable to defendant.
The judgment is modified to reflect an award of 379 days' conduct credit for a total of 758 days' presentence credit pursuant to sections 2933 and 4019. The trial court is directed to modify the abstract of judgment accordingly and forward a certified copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.