APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. (Super. Ct. Nos. BF135285A & BF137801A)
The opinion of the court was delivered by: Detjen, J.
CERTIFIED FOR PUBLICATION
In this opinion, we hold the amendment to Penal Code section 4019 that became operative October 1, 2011 (hereafter the October 1, 2011, amendment) applies only to eligible prisoners whose crimes were committed on or after that date. Such prospective-only application does not run afoul of rules of statutory construction or violate principles of equal protection.
In Kern County Superior Court case No. BF135285A, defendant Thomas Bryant Ellis was charged with offenses committed on January 16, 2011.*fn1 In case No. BF137801A, he was charged with offenses committed on July 26 and 27, 2011.
On September 9, 2011, defendant entered into a plea agreement that
disposed of both cases. In return for an indicated aggregate sentence
of four years, defendant pled no contest, in case No. BF135285A, to
second degree burglary, and admitted having served two prior prison
terms. (Pen. Code, §§ 460, subd. (b), 667.5, subd. (b).)*fn2
In case No. BF137801A, he pled no contest to unlawfully
taking a vehicle (Veh. Code, § 10851, subd. (a)) and resisting an
executive officer (§ 69).
On October 13, 2011, defendant was sentenced in both cases to jail,
pursuant to section 1170, subdivision (h), for the indicated aggregate
term. In case No. BF135285A, the trial court awarded 91 days of
actual custody credits plus 44 days of conduct credits.*fn3
The court merely noted defendant's objection, made on
equal protection grounds, to the failure to award him enhanced conduct
Defendant now contends he is entitled to an additional 46 days of conduct credits under the version of section 4019 that was in effect at the time he was sentenced, i.e., the October 1, 2011, amendment. Failure to award the additional days, he says, violates his right to equal protection. We disagree.
Section 4019, which specifies the rate at which conduct credit can be earned by those in local custody, has undergone numerous amendments in the past few years. Insofar as we are concerned, the version in effect when defendant committed his crimes provided for deductions for every six days of confinement, such that if all possible days were earned, six days were deemed served for every four days of actual custody. (§ 4019, subd. (g); id., former subds. (b), (c) & (f); Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.)
In conjunction with the "2011 Realignment Legislation addressing public safety" (Stats. 2011, ch. 15, § 1; see § 1170, subd. (h)), section 4019 was amended to provide for deductions for every four days of confinement, so that if all possible days are earned, four days will now be deemed served for every two days of actual confinement. (§ 4019, subds. (b), (c) & (f).) Originally, this change was to apply to those confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011.) By further amendment made before the realignment legislation became operative, this date was changed to October 1, 2011. (Stats. 2011, ch. 39, § 53, eff. June 30, 2011.) Pursuant to the October 1, 2011, amendment (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011), subdivision (h) of section 4019 presently states: "The changes to this section ... shall apply prospectively and shall apply to prisoners who are confined to a county jail ... for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law."
Defendant contends the October 1, 2011, amendment created two identically situated classes of prisoners: those who earn conduct credits at the enhanced rate because their crimes occurred on or after October 1, 2011, and those (like defendant) who do not earn conduct credits at the enhanced rate because their crimes occurred before that date. Defendant says he is entitled to enhanced credits, calculated retroactively, unless a compelling state interest supports the disparate treatment of the two classes. In his view, no such interest can be shown.
Recently, the California Supreme Court addressed whether the amendment to section 4019 that became operative on January 25, 2010 (hereafter the January 25, 2010, amendment), should be given retroactive effect so as to permit prisoners who served time in local custody before that date to earn conduct credits at the increased rate provided for by that amendment due to a state fiscal emergency. Despite the fact the Legislature included no statement of intent in that regard in the amendment (see Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010), the state high court held the amendment applied prospectively only, meaning qualified prisoners in local ...