P. v. Castor
Filed 1/23/13 P. v. Castor CA6
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opinion has not been certified for publication or ordered published for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
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHELLE DIANE CASTOR,
Defendant and
Appellant.
H037867
(Monterey
County
Super. Ct.
Nos. SS042324A,
MS042618A, SS072270A)
Defendant
Michelle Castor appeals after pleading guilty and no contest to
subd. (e)
possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)), and
subd. (a)). She was sentenced to a
three-year jail term pursuant to section 1170, subdivision (h).
On appeal,
defendant claims that she is entitled to additional presentence conduct credit
pursuant to section 4019, and that the trial court improperly limited the rate
at which she could earn postsentence conduct credit. We agree that the orders concerning
defendant’s presentence and postsentence conduct credits require modification.
Background
On August 25, 2004, defendant was
charged by complaint in case No. SS042324A with financial elder abuse (count 1;
§ 368, subd. (e)), theft by misrepresentation of access card information
(counts 2 & 3; § 484g, subd. (b)), and elder or dependent adult abuse
resulting in death (count 4; § 368, subd. (b)(1)).
On September 28, 2004, defendant was
charged by complaint in case No. MS042618A with possession of a controlled
substance (count 1; Health & Saf. Code, § 11377, subd. (a)) and
possession of controlled substance paraphernalia (count 2; former Health &
Saf. Code, § 11364).
On February 18, 2005, defendant pleaded
no contest to financial elder abuse (count 1) in case No. SS042324A. On March
29, 2005, the trial court suspended imposition of sentence and
placed defendant on probation for five years.
Defendant was ordered to serve 365 days in county jail as a condition of
probation.
Also on February 18, 2005, defendant pleaded
guilty to possession of a controlled substance (count 1) in case No.
MS042618A. On November 8, 2005, the trial court granted her
deferred entry of judgment. Criminal
proceedings were reinstated on October 24,
2006.
On February 7, 2007, a probation
violation petition was filed in case No. SS042324A. The petition stated that defendant’s
whereabouts were unknown. Her probation
was revoked on February 20, 2007.
On July 27, 2007, defendant was charged
by first amended complaint in case No. SS072270A with receiving a stolen
vehicle (count 1; § 496d, subd. (a)) and possession of controlled substance
paraphernalia (count 2; Health & Saf. Code, § 11364, subd. (a)).
Defendant
did not appear in any of the above matters until October 4, 2011, following her arrest on September 30, 2011. On November
2, 2011, defendant pleaded no contest to receiving a stolen vehicle
(count 1) in case No. SS072270A and was found in violation of probation in
case No. SS042324A.
At
sentencing on December 9, 2011,
the trial court imposed the three-year midterm for financial elder abuse (count
1 in case No. SS042324A) with concurrent terms for receiving a stolen vehicle
(count 1 in case No. SS072270A) and possession of a controlled substance (count
1 in case No. MS042618A). Defendant was
ordered to serve her term in county jail pursuant to section 1170, subdivision
(h).
Defendant
was given credit for 284 days of actual custody in case No. SS042324A,
plus 142 days of conduct credit, for a total of 426 days. In case No. MS042618A, she was awarded
three days of actual custody credits and no conduct credits. In case No. SS072270A, she was awarded 71
days of actual custody credit and 34 days of conduct credit, for a total of 105
days.
During the
sentencing hearing, the trial court ordered that defendant would be eligible to
earn postsentence conduct credits “at 33 percent.†The minute order states: “The defendant’s good/work credits shall be
calculated at a 33% accrual rate.â€
On January 20, 2012, defendant brought a
motion to recalculate her custody credits.
She argued that the trial court should have awarded her “one for oneâ€
presentence and postsentence conduct credits “based on the Equal Protection, ex
post facto, and the laws that were in effect at the time.†The prosecutor objected “based on the
underlying offense dates in this case,†and the trial court declined to
recalculate the conduct credits.
Discussion
I. Conduct Credit Statutes
Section
4019 specifies the rate at which a prisoner can earn conduct credit while in
local custody.
title="">[2] Section 2933 specifies the rate at which a
prisoner can earn conduct credit while in state prison. Both statutes have undergone numerous
amendments in the past few years.
When
defendant committed her crimes, section 4019 allowed prisoners to earn two days
of presentence conduct credit for every four days of actual local custody: a two-for-four rate. (Former
§ 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7; see
318 (Brown).) Section 2933 allowed prisoners to earn
postsentence conduct at a half-time rate:
for every six months of custody, a prisoner could earn six months of
conduct credits. (Former § 2933, subd.
(a), as amended by Stats. 1996, ch. 598, § 2.) A prisoner could also earn a “lesser amount
of credit based on this ratio … for any lesser period of continuous
performance.†(Ibid.)
Effective
January 25, 2010, section 4019 was amended to allow certain eligible prisoners
to earn two days of conduct credit for every two days of actual local
custody: a two-for-two rate. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, §
50; see Brown, supra, 54 Cal.4th
at p. 318.) The January 25, 2010
amendment to section 4019 operated prospectively, to presentence custody time
served after its operative date. (
54 Cal.4th at p. 318.) The
January 25, 2010 amendment also made changes to section 2933, but it
maintained the half-time rate for postentence conduct credit. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, §
38.)
Effective
September 28, 2010, sections 4019 and 2933 were amended again. (Stats. 2010, ch. 426, § 1 & § 2; see Brown,
supra, 54 Cal.4th at p. 322, fn. 11.) In section 4019, the Legislature
restored the less favorable two-for-four presentence conduct credit rate for
prisoners who committed crimes after September 28, 2010. (Stats. 2010, ch. 426, § 2.) However, under a simultaneous amendment to
section 2933, certain eligible prisoners who were ultimately sentenced to state
prison could earn one day of presentence conduct credit for each day of actual
local custody. (Stats. 2010, ch. 426,
§ 1.)
Operative
October 1, 2011, sections 4019 and 2933 were amended yet again. The amendments were enacted via three
separate pieces of legislation.
First, on
April 4, 2011, the governor signed Assembly Bill 109, an act titled “the 2011
Realignment Legislation addressing public safety.†(Stats. 2011, ch. 15, § 1.) Under the Realignment Legislation, certain
felons would serve their terms in county jail.
(§ 1170, subd. (h); Stats. 2011, ch. 15, § 450.) Assembly Bill 109 also
reinstituted the more favorable two-for-two conduct credit rate in section
4019. (See § 4019, subds. (b), (c)
& (f), as amended by Stats. 2011, ch. 15 § 482.) However, the changes to
section 4019 were to operate prospectively and apply only to prisoners
confined to local custody for a crime committed on or after July 1, 2011. (§ 4019, subd. (h), as amended by Stats. 2011,
ch. 15 § 482.) Assembly Bill 109 did not
enact any changes to section 2933.
Before
Assembly Bill 109’s changes to section 4019 became operative, Assembly Bill 117
was signed by the governor, on June 30, 2011.
Assembly Bill 117 did not change the two-for-two conduct credit rate
enacted by Assembly Bill 109, but it specified that the changes to section 4019
would apply only to prisoners confined to local custody for a crime committed
on or after October 1, 2011. (§ 4019,
subd. (h), as amended by Stats. 2011-2012, ch. 39, § 53.) Assembly Bill 117 did not enact any changes
to section 2933.
On
September 20, 2011, before Assembly Bill 117’s changes became operative, the
governor signed a third bill, which amended section 4019 and section 2933. Assembly Bill 17 added a provision specifying
that section 4019’s conduct credit provisions applied to jail sentences imposed
pursuant to section 1170, subdivision (h).
(§ 4019, subd. (a)(6); Stats. 2011, 1st Ex. Sess. 2011-2012, ch.
12, § 35 (A.B. 1X 17).) Assembly
Bill 17 also amended section 2933 to delete the presentence conduct credit
provision. (Stats. 2011, 1st Ex. Sess.
2011-2012, ch. 12, § 16 (A.B. 1X 17).)
Thus,
current section 4019 contains the more favorable two-for-two conduct credit
rate. It currently provides that if all
possible days of conduct credit are earned, four days will now be deemed served
for every two days of actual local confinement.
(§ 4019, subds. (b), (c) & (f).)
Subdivision (h) of section 4019 presently states: “The changes to this section enacted by the
act that added this subdivision 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.†Section 2933 continues
to provide that prisoners sentenced to state prison will receive half-time
conduct credits. (§ 2933,
subd. (b).)
II. Issues
Defendant’s
crimes were committed between 2004 and 2007.
Had she been sentenced at that time, she would have been eligible for
presentence conduct credit at the two-for-four rate of former section 4019, and
she would have been eligible for postsentence conduct credit at the half-time
rate of former section 2933.
Defendant
served some of her presentence custody before any of the recent amendments to
sections 4019 and 2933. She was also in
local custody between September 30, 2011 and December 9, 2011. The trial court calculated all of her
presentence conduct credits at a two-for-four rate and ordered that she serve
her three-year jail term at the same rate.
In her
opening brief, which was filed before the California Supreme Court decision in
argued that the January 25, 2010 amendments to section 4019 were fully
retroactive. She claimed she was
entitled to two days of conduct credit for every two days she spent in actual
presentence local custody.
name="_ftnref3" title="">[3] She also claimed she was entitled to earn
postsentence conduct credits at a halftime rate under principles of statutory
interpretation and because of the constitutional prohibition against ex post
facto laws.
In her
reply brief, defendant acknowledged that Brown
had rejected her arguments
concerning the retroactivity of the January 25, 2010 amendments to section
4019. Thus, defendant conceded that we
must affirm the trial court’s calculation of conduct credits for the time she
spent in local custody prior to January 25, 2010.
Although
pre-January 25, 2010 presentence custody, we must determine the rate at which
defendant accrued presentence conduct credit during the 71 days she served in
local custody from September 30, 2011 to December 9, 2011. We must also determine the rate at which she
is eligible to earn postsentence conduct credits.
III. Presentence Custody Credits
In
January 25, 2010 amendment to section 4019, so he was awarded presentence
conduct credits under the two-for-four formula.
(Brown, supra, 54 Cal.4th at p. 318.)
On appeal, the defendant argued that he was entitled to the more
favorable two-for-two formula, on equal protection and other grounds. (Ibid.) The California Supreme Court rejected these
arguments. First, the court found that
the Legislature did not intend the January 25, 2010 amendment to apply
retroactively, since the amendment’s effect was to “increase the existing
incentives for good conduct by offering well behaved prisoners the prospect of
even earlier release from custody.†(
served presentence custody before and after the amendment’s effective date were
not similarly situated, pointing out that “the important correctional purposes
of a statute authorizing incentives for good behavior [citation] are not served
by rewarding prisoners who served time before the incentives took effect and
thus could not have modified their behavior in response.†(Id.
at pp. 328-329.)
The Brown court made two observations that are particularly relevant to
this case. First, the court noted that
“[t]o apply [the January 25, 2010 amendment to] section 4019 prospectively
necessarily means that prisoners whose custody overlapped the statute’s
operative date (Jan. 25, 2010) earned credit at two different rates.†(Brown,
supra, 54 Cal.4th at p. 322.)
Second, the Brown court held
that the January 25, 2010 amendment to section 4019 did not lessen the penalty
for particular crime, but “addresse[d] future
conduct in a custodial setting by providing increased incentives for good
behavior.†(Id. at p. 325.)
Despite Brown, the Attorney General contends that the trial court correctly
applied the less favorable pre-January 25, 2010 version of section 4019 to the
presentence custody that defendant served between September 30, 2011 and
December 9, 2011.
title="">[5] The Attorney General argues that
defendant is not entitled to the benefits of the January 25, 2010 amendment to
section 4019 because her crimes were committed several years earlier and she
apparently absconded for some of that time.
The
Attorney General’s argument is foreclosed by Brown. As pointed out above,
Brown directly addressed the situation
where a defendant served presentence custody both before and after January 25, 2010, finding that such
defendants will “earn[] credit at two different rates.†(Brown,
supra, 54 Cal.4th at p. 322.)
offense is not relevant for purposes of determining whether to apply the
January 25, 2010 amendment to section 4019, since it did not lessen the penalty
for particular crime, but “addresse[d] future
conduct in a custodial setting by providing increased incentives for good
behavior.†(Id. at p. 325.)
In sum, since defendant served 71
days of presentence custody after the January 25, 2010 amendment to
section 4019, her conduct credits for that time period should have been
calculated at a two-for-two rate.
IV. Postsentence Custody Credits
The final
question is whether the trial court properly ordered that defendant
would be eligible to earn postsentence conduct credits at a two-for-four
rate (i.e., “at 33 percentâ€).
At the time
defendant committed her crimes, a felon would have been sentenced to state
prison, not county jail. Thus, her
postsentence conduct credit would have been governed by section 2933, which
provided (as it does now) half-time credit.
(§ 2933, subd. (b); see former § 2933, subd. (a); Stats. 1996, ch. 598,
§ 2.)
Defendant
was not sentenced to prison, however.
She was sentenced to a county jail term pursuant to the Realignment
Legislation. Thus, section 2933 does not
apply to her. Instead, her postsentence
conduct credits are governed by section 4019, which specifies that its
provisions shall apply “[w]hen a prisoner is confined in a county jail … as a
result of a sentence imposed pursuant to subdivision (h) of Section 1170.†(§ 4019, subd. (a)(6).)
Defendant
contends that if section 4019 is interpreted so as to limit her ability to earn
postsentence credits at less than a half-time rate, it would violate the
constitutional prohibition against ex post facto laws.
In Weaver
v. Graham (1981) 450 U.S. 24 (Weaver),
the United States Supreme Court examined a Florida statutory amendment that
changed the amount of “gain-time†credits an inmate could earn. (Id. at p. 26.) Before the amendment, inmates could earn five
days per month for the first and second years of the sentence, 10 days for the
third and fourth years, and 15 days for the fifth and subsequent years. (Ibid.) Under the amendment, inmates could only earn
three days per month for the first and second years, six days for the third and
fourth years, and nine days for the fifth and subsequent years. (Ibid.) Florida applied the amendment to all inmates,
including Weaver, whose offense took place before the enactment of the
amendment. (Id. at pp. 27, 31.)
In
that, for inmates who committed crimes before the amendment’s enactment, the
change in the statute “substantially alter[ed] the consequences attached to a
crime already completed, and therefore change[d] ‘the quantum of punishment.’ â€
(Weaver, supra, 450 U.S. at p. 33.)
Because the amendment “constrict[ed] the inmate’s opportunity to earn
early release, and thereby [made] more onerous the punishment for crimes
committed before its enactment,†it violated the ex post facto clause. (Id. at pp. 35-36.)
Thus, we
agree with defendant that she is entitled to earn postsentence conduct credits
at a half-time rate. Before the
Realignment Legislation, defendant would have been sentenced to prison and
would have been eligible for half-time postsentence conduct credits under section
2933. If the recent amendments to
section 4019, combined with the Realignment Legislation, reduced the rate at
which defendant could earn postsentence conduct credits, those amendments would
effectively alter the consequences of the crimes she committed prior to the
change in the law. (Weaver, supra, 450 U.S. at pp. 33-36.)
DISPOSITION
title="">
The judgment is modified to award
defendant custody credits as follows:
Case No. SS042324A: 284 days of actual custody credit plus 176
days of conduct credit for a total of 460 days of credit.
Case No. SS072270A: 71 days of actual custody credit plus 70 days
of conduct credit for a total of 141 days of credit.
Case No. MS042618A: 3 days of actual custody credit plus 0 days
of conduct credit for a total of 3 days of credit.
In addition, the superior court is
ordered to amend the minute orders of December 9, 2011 in each of the
three cases to delete the provision stating that her “good/work credits shall
be calculated at a 33% accrual rate†and issue an order that defendant’s
good/work credits shall be calculated at a half-time rate.
In all other respects, the judgment
is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
Conduct credits include credit for performing assigned labor and for complying
with applicable rules and regulations.
(See § 4019, subds. (b), (c); People
v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3.)
