P. v. Garner







Filed 11/9/10 P. v. Garner CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RICHARD EUGENE GARNER, JR., Defendant and Appellant.

F059851 (Super. Ct. No. 1403628) OPINION

THE COURT^*
APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy W. Salter, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

STATEMENT OF THE CASE
On June 16, 2009, appellant, Richard Eugene Garner, Jr., was charged in a criminal complaint with felony evasion of a peace officer (Veh. Code, § 2800.2, subd. (a), count one) and driving with a suspended license (Veh. Code, § 14601.1, subd. (a), count two). The complaint alleged six prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b).^[1]
On January 22, 2010, appellant entered into a plea agreement in which he would admit count one, with a prison term of two years, and five prior prison term enhancements for a total prison term of seven years. The court explained and appellant waived his constitutional rights pursuant to Boykin/Tahl.^[2] The court advised appellant of the consequences of his plea.^[3] The parties stipulated to a factual basis of the plea. Appellant pled no contest to count one and admitted five prior prison term enhancements.
Appellant waived his rights to a probation report and a 20-day delay in sentencing. The court sentenced appellant to prison for two years on count one and to five consecutive one-year terms for the prior prison term enhancements for a total prison sentence of seven years. Appellant filed a timely notice of appeal but failed to obtain a certificate of probable cause.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on June 8, 2010, we invited appellant to submit additional briefing. To date, he has not done so.
ADDITIONAL CUSTODY CREDITS
Pursuant to a standing order of our court, we separately reviewed the applicability of the recently amended version of section 4019. Although appellant has a lengthy criminal record, from the probation officer’s accounting of appellant’s past convictions, he does not have a conviction for a serious or violent felony as defined in section 1192.7, subdivision (c) and section 667.5, subdivision (c). Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced on January 22, 2010, the court calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody. We conclude the amendment applies prospectively only.^[4]
Under section 3, it is presumed that a statute operates prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.^[5]
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We further conclude that prospective-only application of the amendment does not violate appellant’s equal protection rights. One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Appellant and those like him who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.




Publication Courtesy of California attorney directory.
Analysis and review provided by Oceanside Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---