(Super. Ct. Nos. 08F1524, 08F4503, 08F8085, 08F8938)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On December 5, 2008, the trial court sentenced defendant Brian Charles Sullivan to an aggregate state prison term of seven years, based upon his no contest pleas to possession of a controlled substance, forgery, four counts of commercial burglary, and receiving stolen property, charges that were the subject of four separate criminal cases.*fn1 The court granted him 74 days of custody credit and 36 days of conduct credit under the formula in existence at the time of sentencing.*fn2
Counsel was appointed to represent defendant on appeal. Appointed counsel filed a Wende brief (People v. Wende (1979) 25 Cal.3d 436), declaring that he had found no arguable issues. We agreed with counsel's concession and affirmed the judgment on August 10, 2009. Our remittitur issued on October 15, 2009.
Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18, (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50), which amended Penal Code section 4019*fn3 (the new amendment) to provide two days of conduct credit for every two days actually served in presentence custody to a class of prisoners (eligible prisoners) deemed safe for early release from prison. This class consists of prisoners who were neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies.
Defendant, an eligible prisoner under the new amendment, filed a motion in superior court to modify his sentence and award him additional conduct credits, claiming that retroactive application of the new amendment was required under equal protection principles.*fn4 The trial court denied relief, concluding the new amendment did not apply to judgments that became final prior to January 25, 2010.
Defendant appeals the denial of this motion (§ 1237, subd. (b)), renewing his argument. The People respond that (1) defendant has not rebutted the presumption that statutes are not accorded retroactive application; (2) equal protection was not violated because a rational basis exists for treating classes of prisoners differently; and (3) retroactive application of the new amendment to final judgments would violate the separation of powers doctrine.
Resolution of the issue is currently pending before the California Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; In re Kemp (2011) 192 Cal.App.4th 252, review granted Apr. 13, 2011, S191112.)
While we await further guidance from the Supreme Court we shall conclude, contrary to the People's arguments, that the new amendment is retroactive to all eligible prisoners irrespective of the date their judgments became final. We shall therefore order correction of defendant's sentence.
I. Presumption Against Retroactivity
Relying on section 3, which states that no part of the Penal Code is retroactive "unless expressly so declared," the People assert that, absent a contrary expression of legislative ...