Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC944693.
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After entering into a plea agreement, defendant Harold Lewis Smith pleaded no contest to possessing a firearm as a felon (Pen. Code, § 12021, subd. (a)(1)) and violating a protective order (§ 273.6, subd. (a)). The trial court sentenced defendant to 16 months in the state prison and gave him a total of 110 days of presentence credits, including 74 days of credit for actual time served and 36 days of presentence conduct credits pursuant to section 4019.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel filed an opening brief that stated the case and facts but raised no issue. (People v. Wende (1979) 25 Cal.3d 436, 441-442.) Counsel then submitted a supplemental letter brief requesting that we vacate submission and consider the issue of whether the recent amendment to section 4019 applies retroactively, and therefore defendant is entitled to additional presentence conduct credits. After considering the issue, for the reasons stated below we find that the amendment to section 4019 applies prospectively and we will affirm the judgment.
II. FACTUAL BACKGROUND
Our summary of the facts is taken from the May 26, 2009 San Jose Police Department report. In the early morning hours of May 26, 2009, San Jose Police Officers Bartholomew and Soper responded to a suspicious persons call from Tracy Smith, defendant’s ex-wife. Tracy had called to report that a suspicious person, whom she suspected to be defendant, was knocking on the windows of her residence. The officers parked their patrol car directly in front of defendant’s vehicle, and illuminated it with the patrol car’s spotlights and floodlights. The officers were able to see that the vehicle had one male occupant, who was later identified as defendant.
This court granted defendant’s motion to augment the record on appeal with the May 26, 2009 police report.
After being ordered to do so, defendant placed both hands outside the driver’s side window. The officers then instructed defendant to get out of the vehicle, at which point he was detained. Defendant spontaneously stated there was a gun in his vehicle and that he “did not want to go to jail and wanted to kill himself.” Defendant also indicated that he was aware that he had violated his domestic violence orders by attempting to contact his ex-wife. Upon inspection of defendant’s vehicle, Officer Bartholomew found a loaded Savage Arms.22 caliber pump action rifle.
A records check on defendant revealed that he had prior felony convictions for domestic violence (§ 273.5) and resisting an executive officer (§ 69) and a misdemeanor conviction for criminal threats (§ 422). Officer Bartholomew then went to defendant’s residence to conduct a probation search for additional firearms. Frank Smith, defendant’s brother, provided Officer Bartholomew with access to defendant’s room, which was located in the back of Frank’s house. Frank told Officer Bartholomew that the rifle was kept in a separate locked warehouse on his property and that defendant must have “borrowed it without permission” after Frank went to sleep.
During his investigation, Officer Soper spoke with Tracy Smith. She said defendant had contacted her by phone at approximately 1:30 a.m. and told her that he would kill himself by driving off a cliff if she did not meet with him. Tracy then phoned the police to request a welfare check on defendant. Shortly thereafter, she awoke to a banging noise on her bedroom window and defendant yelling, “ ‘I need you to talk to me now.’ ” Tracy stated that she felt in fear of her life because in the past defendant had held a shotgun to her head and threatened to kill her.
III. PROCEDURAL BACKGROUND
Defendant was charged by complaint filed on May 28, 2009, with possession of a firearm by a felon (§ 12021, subd. (a)(1)) and violation of a protective order (§ 273.6, subd. (a)). After entering into a plea agreement, on July 10, 2009, defendant pleaded no contest to both counts in exchange for a sentence no less than 16 months in prison. Before accepting the plea, the trial court advised defendant of the rights that he was giving up as a result of his no contest plea, and counsel stipulated that there was a factual basis for the plea.
Sentencing took place on August 7, 2009. On count 1 (§ 12021, subd. (a)(1)), defendant was sentenced to 16 months in state prison. On count 2 (§ 273.6, subd. (a)), probation was denied and the trial court imposed a 110-day jail term concurrent to the 16-month term. The court stated that defendant was entitled to 74 days of credit for actual time served plus 36 days of presentence conduct credits pursuant to section 4019. Additionally, the court imposed various fines and fees, and issued a temporary stay of its order directing the destruction of defendant’s firearm.
IV. DISCUSSION
In his supplemental letter brief submitted on January 27, 2010, defendant argues that he is entitled to an additional 38 days of presentence conduct credits pursuant to the recent amendment to section 4019.
“ ‘ “The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (People v. Dieck (2009) 46 Cal.4th 934, 939 (Dieck).) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (§ 4019, subd. (c)(1) (B)). Both types of presentence credit are collectively referred to as “conduct credits.” (Dieck, supra, 46 Cal.4th at p. 939, fn.3.)
At the time defendant was sentenced in 2009, former section 4019 provided that a defendant could accrue presentence conduct credit at a rate of two days of conduct credit for every four-day period of actual presentence custody. (Former § 4019, subds. (b) & (c); Dieck, supra, 46 Cal.4th at p. 939.) Senate Bill No. 18 (Stats. 2009, 3d Ex. Sess, 2009-2010, ch. 28, § 50), effective January 25, 2010, amended section 4019 to increase the number of presentence conduct credits for certain offenders. As amended, section 4019 provides that an eligible defendant may accrue conduct credit at rate of four days for every four days of presentence custody. (§ 4019, subds. (b)(1), (c)(1).)
Defendant contends that the amendment to section 4019 should be applied retroactively, thereby entitling him to additional presentence conduct credits because his conviction was not yet final when the amendment became effective. The issue of whether a statutory amendment applies retroactively is determined under the independent standard of review. (In re Chavez 2004) 114 Cal.App.4th 989, 993.) We note that the issue of whether the amendment to section 4019 applies retroactively has divided the appellate courts and is presently pending before the California Supreme Court.
The First, Second, and Third District Courts of Appeal have held that the amendment to section 4019 applies retroactively. (People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As we will discuss, we agree with the reasoning of this court, and that of the Fourth and Fifth Districts, which have held that the amendment applies prospectively. (People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
For several reasons, we determine that section 4019 applies prospectively. First, section 3 provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. “ ‘It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]’ [Citations] ‘We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]’ [Citation.] Nonetheless, ‘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 or the voters must have intended a retroactive application.’ [Citations.]” (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794.)
Second, we are not convinced by the argument that the amendment to section 4019 should be applied retroactively because the Legislature enacted Senate Bill No. 18 during California’s fiscal emergency with the intention of reducing the prison population. Although retroactive application of the amendment to section 4019 might result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced, prospective application of the amendment would also result in savings.
Third, we find no merit in defendant’s contention that the decision in In Re Kapperman (1974) 11 Cal.3d 542 (Kapperman) supports the retroactive application of the amendment to section 4019. Kapperman is not applicable because the issue raised in that case involved actual custody credits, not conduct credits. (Id. at pp. 544-545.) The two types of credit are distinguishable because custody credits are awarded automatically on the basis of time served (§ 2900.5), while conduct credits must be earned by a defendant (§ 4019).
Moreover, the primary purpose of the presentence credit scheme set forth in section 4019 is the encouragement of “minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.” (People v. Brown (2004) 33 Cal.4th 382, 405.) Since a defendant who was sentenced prior to the effective date of the amendment to section 4019 cannot be retroactively encouraged to behave well during presentence custody, we find that Legislature implicitly intended that the amendment to section 4019 to apply prospectively in furtherance of section 4019’s primary purpose.
Defendant’s reliance on People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter), is also misplaced. The defendant in Hunter sought retroactive application of the 1976 amendment to former section 2900.5, which allowed a credit for “ ‘back time, ’ ” meaning “periods of incarceration in county jail awaiting trial and judgment.” (Hunter, supra, 68 Cal.App.3d at p. 391.) The court determined that the amendment “must be construed as one lessening punishment, as that term is used in [In re Estrada (1965) 63 Cal.2d 740 (Estrada)].” (Hunter, supra, 69 Cal.App.3d at p. 393.) Following Estrada, the Hunter court ruled that the amendment to former section 2900.5 must be applied retroactively. (Ibid.)
In Estrada, the California Supreme Court stated, “where the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Estrada, supra, 63 Cal.2d at p. 748.) However, the rule in Estrada is not applicable in the present case because the amendment to section 4019 does not necessarily lessen a defendant’s punishment. As we have discussed, section 4019 allows a defendant to earn additional conduct credit, while section 2900.5 provides that a defendant is entitled to additional custody credit for the sole reason that he or she is in presentence custody.
Defendant also relies on People v. Babylon (1985) 39 Cal.3d 719 (Babylon), where the California Supreme Court stated “the general principle that, absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal. [Citation.]” (Id. at p. 722.) In Babylon, the Legislature amended the statute under which the defendants were charged during the pendency of their appeals. (Ibid.) Under the amended statute, the defendants’ activities were not proscribed. (Ibid.) Because the amendments did not include a savings clause, the court concluded that the defendants were entitled to the benefit of the amended statute, and reversed the convictions. (Id. at pp. 727-728.) Babylon is obviously distinguishable from the present case because the statutory amendment addressed in Babylon decriminalized the acts for which the defendants had been convicted, while the amendment to section 4019 provides only that a defendant may earn additional presentence conduct credit.
Since we have found no merit in defendant’s arguments in support of the retroactive application of the amendment to section 4019, we conclude that the amendment to section 4019 operates prospectively and that defendant is not entitled to additional presentence conduct credits.
Having determined that the issue raised in defendant’s supplemental briefing lacks merit, and having reviewed the entire record, we find there are no other arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)
V. DISPOSITION
The judgment is affirmed.
I CONCUR: MIHARA, J.
McAdams, J., Dissenting.
I agree with the reasoning of the numerous cases that have held the amendments apply retroactively, including, most recently, People v. Keating (2010) 185 Cal.App.4th 364. In my view, such a conclusion follows from California Supreme Court precedent. As the Court reiterated in People v. Nasalga (1996) 12 Cal.4th 784, “provisions of a statute that have an ameliorative effect must be given retroactive effect, even where other provisions of the same statute clearly do not have such an effect.” (Id., at p. 796, following People v. Estrada (1965) 63 Cal.2d 740.) I would therefore find the amendments to Penal Code section 4019 at issue here apply retroactively.
The California Supreme Court has recently granted review in several cases involving this issue, including those which have found the statute applies retroactively (People v. Brown, S181963; People v. House, S182813; People v. Landon, S182808) and those which found it applies prospectively only. (People v. Rodriguez, S181808; People v. Hopkins, S183724.) Several more petitions for review are pending.