Ct.App. 3 C056510 Lassen County Super. Ct. No. CR024002 Judge: Stephen Douglas Bradbury
The opinion of the court was delivered by: Werdegar, J.
Since 1976, Penal Code section 4019*fn1 has offered prisoners in local custody the opportunity to earn "conduct credit" against their sentences for good behavior. Conduct credits encourage prisoners to conform to prison regulations, to refrain from criminal and assaultive conduct, and to participate in work and other rehabilitative activities. (People v. Austin (1981) 30 Cal.3d 155, 163.) For eight months during 2010, a now-superseded version of section 4019*fn2 that was enacted during a state fiscal emergency temporarily increased the rate at which local prisoners could earn conduct credits. We granted review to decide whether this former statute (hereafter former section 4019) retroactively benefits prisoners who served time in local custody before January 25, 2010, the date on which it became operative.*fn3 We hold that former section 4019 applied prospectively, meaning that qualified prisoners in local custody first became eligible to earn credit for good behavior at the increased rate beginning on the statute's operative date. We also hold that the equal protection clauses of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) do not require retroactive application.
Defendant James Lee Brown III was convicted of selling methamphetamine, a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and sentenced to three years in state prison. The court awarded defendant a total of 92 days of credits, representing 62 days of credits for actual time spent in local custody awaiting trial and sentencing (§ 2900.5, subd. (a)) and 30 days of conduct credits for good behavior (§ 4019). The version of section 4019 in effect during defendant's local custody, and also on the date he was sentenced, entitled him to two days of conduct credit for every four days spent in local custody.*fn4 Defendant was sentenced and committed to state prison on July 24, 2007.
On October 11, 2009, the Governor signed the bill enacting former section 4019, operative January 25, 2010, increasing the rate at which prisoners in local custody could earn conduct credits for good behavior. Under the new formula, eligible prisoners could earn two days of conduct credit for every two days spent in local custody.*fn5 The Court of Appeal affirmed defendant's conviction on January 13, 2010. On January 29, 2010, four days after former section 4019 took effect, defendant filed a petition for rehearing claiming additional conduct credits under the statute. The Court of Appeal granted the petition, vacated its earlier decision, and issued a new decision on March 16, 2010, awarding defendant additional conduct credits, retroactively covering the entire 62 days he had spent in local custody some two and one-half years earlier (from May 23, 2007 to July 24, 2007) before being committed to state prison.
We granted respondent's petition for review challenging the Court of Appeal's decision to apply former section 4019 retroactively. In his answer, defendant raised an additional issue (see Cal. Rules of Court, rule 8.504(c), arguing that equal protection also requires retroactive application. Respondent, who agrees we should decide the additional issue, argues to the contrary. We address that issue as well. (Id., rule 8.516 (b)(1).)
A. Statutory Construction 1. Section 3 and the Presumption that Statutes Operate Prospectively.
Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear with respect to a particular statute, the Legislature's generally applicable declaration in section 3 provides the default rule: "No part of [the Penal Code] is retroactive, unless expressly so declared." We have described section 3, and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying "the time-honored principle . . . that in 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 . . . must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209 (Evangelatos); see also id., at p. 1208 [requiring " 'express language or [a] clear and unavoidable implication [to] negative the presumption' "].) In applying this principle, we have been cautious not to infer retroactive intent from vague phrases and broad, general language in statutes. (Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 229-230; see Evangelatos, at p. 1209, fn. 13.) Consequently, " 'a statute that is ambiguous with respect to retroactive application is construed . . . to be unambiguously prospective.' " (Myers v. Phillip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841, quoting I.N.S. v. St. Cyr (2001) 533 U.S. 289, 320-321, fn. 45.)
These principles require us to reject defendant's argument that former section 4019 applies retroactively as a matter of statutory construction. The statute contains no express declaration that increased conduct credits are to be awarded retroactively, and no clear and unavoidable implication to that effect arises from the relevant extrinsic sources, i.e., the legislative history. Before addressing these points in detail, we briefly review that history.
On December 19, 2008, the Governor exercised his constitutional powers to declare a fiscal emergency and to call the Legislature into special session to address the emergency. (Governor's Exec. Order No. S-16-08 (Dec. 19, 2008); see Cal. Const., art. IV, § 10, subd. (f)(1).) The bill that would become former section 4019 (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.)) was introduced and passed in special session for that purpose. Much of the lengthy bill was directed to measures that would save the state money by reducing jail and prison populations. Increasing the rate at which prisoners in local custody could earn conduct credits was one such measure.*fn6 As mentioned, however, the Legislature did not expressly declare whether former section 4019 was to operate prospectively or retroactively. We thus proceed to consider whether it is "very clear from extrinsic sources" (Evangelatos, supra, 44 Cal.3d 1188, 1209), or whether such sources support the " 'clear and unavoidable implication' " (id., at p. 1208), that the Legislature intended the amendment to operate retroactively. We find no such indicia of legislative intent.
Defendant argues we can infer the Legislature's intent to apply former section 4019 retroactively from the same act's uncodified section 59. Section 59 directs "[t]he Department of Corrections and Rehabilitation [to] implement the changes made by this act regarding time credits in a reasonable time," but also recognizes and addresses the possibility that "there will be some delays in determining the amount of additional time credits . . . resulting from changes in law pursuant to this act."*fn7 This language, defendant contends, shows the Legislature intended that presentence conduct credits under former section 4019 would apply retroactively and accepted the likelihood that retroactive application would entail administrative delay. Defendant's argument might be plausible if the term "time credits" in section 59 referred to presentence conduct credits, but this cannot be what the Legislature meant. The California Department of Corrections and Rehabilitation (CDCR) does not determine and award presentence credits; the sentencing court does.*fn8 Accordingly, the Legislature's reference in section 59 to "time credits" must have been to credits determined and awarded by the CDCR, namely post-sentence credits earned in state prison, such as the credits mandated by the same act retroactive to January 1, 2003, for inmates trained as firefighters. (§ 2933.3, subds. (a), (d), as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 41.)
Defendant also argues the Legislature's intent to apply former section 4019 retroactively may be inferred from the circumstance that a state fiscal emergency prompted the legislation,*fn9 because awarding credits retroactively would decrease the state's incarceration costs more than would awarding them prospectively. Certainly, as we have explained, the legislation that included former section 4019 was most immediately intended as a response to the state's fiscal crisis. But the method by which the Legislature chose to respond was not to grant early release or credits regardless of conduct, even though this would have offered the greatest economic benefit to the state, but rather to increase the existing incentives for good conduct by offering well behaved prisoners the prospect of even earlier release from custody.*fn10 Defendant suggests the Legislature might have intended former section 4019 to offer bonuses for past good behavior as well as incentives for future good behavior. Such an interpretation of the statute, however, finds no clear support in the statute's language or legislative history. To resolve such ambiguities in favor of prospective operation is precisely the function of section 3 and the default rule it embodies.
To apply former section 4019 prospectively necessarily means that prisoners whose custody overlapped the statute's operative date (Jan. 25, 2010) earned credit at two different rates. Defendant contends such a result is impermissible because a court may apply only the version of section 4019 in effect at the time sentence is imposed (or modified on appeal). Defendant bases this argument on section 2900.5, which requires the sentencing court to determine and include in the abstract of judgment the presentence credits to which a defendant is entitled (id., subd. (d)), including days "credited to the period of confinement pursuant to Section 4019" (§ 2900.5, subd. (a), italics added). Defendant thus reads the italicized reference to section 4019 as meaning "the version of section 4019 currently in effect." Defendant's reading would violate section 3 by causing any legislative change in the credit-accrual rate to operate retroactively without an express declaration of retroactive intent. Furthermore, nothing in the legislative history of section 2900.5, the relevant language of which has remained unchanged since 1991 (see Stats. 1991, ch. 437, § 10, p. 2218), suggests the Legislature intended the statute to have such an effect. Credits are determined and added to the abstract of judgment at the time of sentencing, but they are earned day by day over the course of a defendant's confinement ...