target="G046064_files/props0002.xml">
P. v. Gonzalez
Filed 6/29/12 P. v. Gonzalez CA4/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ALFONSO
GONZALEZ,
Defendant and Appellant.
G046064
(Super. Ct. No. 11HF2124)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Stephanie George, Judge.
Affirmed.
Patrick
J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jose Alfonso
Gonzalez contends the court should have granted him additional conduct credits
under the current version of Penal Code section 4019,
2011.†(Id., subd. (h).) But he
committed his crimes before then, and the statute is not retroactive. We affirm.
FACTS
In
November 2011, defendant pleaded guilty to three counts arising from his
driving under the influence of alcohol in August 2011. Under his plea, defendant received probation
conditioned on serving 365 days in county jail.
The court awarded him 14 days of actual custody credit and six days of
conduct credit.
DISCUSSION
Defendant
contends the current version of section 4019 must be applied retroactively to
award him conduct credit at a one-to-one ratio.
The statute applies to him, he claims, because he was sentenced after
the version became effective, and because equal protection requires
retroactivity. We disagree.
Section
4019 governs conduct credit. When the
statute was originally enacted in 1976, it offered prisoners the opportunity to
earn conduct credit for their good behavior at a one-to-two ratio. (Stats. 1976, ch. 286, § 4, p. 595.) Under this version of the statute, prisoners
were considered to have served six days for every four days they were
incarcerated. (See, e.g. People v. Fares (1993) 16 Cal.App.4th 954.) The statute was amended effective January 25,
2010. (Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28X § 50.) During
this time, the Legislature increased the ability to earn conduct credits at a
one-to-one ratio, meaning that prisoners were considered to have served four
days for every two days they were incarcerated.
(Stats. 2010, ch. 426, § 2, p. 2088.)
But effective September 28, 2010, the Legislature amended the statute to
return it to the original one-to-two ratio.
(Ibid.) The current version of section 4019 now
provides for a one-to-one ratio. (§
4019, subd. (h).) The statute further
provides: “The changes to
this section enacted by the act that
added this subdivision shall apply prospectively and shall apply to prisoners
who are confined . . . 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.†(Ibid, Italics
added.)
Therefore, only those
people who committed crimes within the January through September 2010 window or
after October 1, 2011 accrue credits
at the increased, one-to-one ratio.
August 2011, after the January through September 2010 window closed but before
the October 2011 effective date for the current version. The current version simply does not apply to
him.
Defendant
relies on In re Estrada (1965) 63
Cal.2d 740, in asserting the current version of section 4019 should be applied
as of the date of sentencing – not the date of the offense. Estrada
states: “The key date is the date of
final judgment. If the amendatory
statute lessening punishment becomes effective prior to the date the judgment
of conviction becomes final then, in our opinion, it, and not the old statute
in effect when the prohibited act was committed, applies.†(Estrada,
at p. 744).
However,
the California Supreme Court very recently held that Estrada’s retroactivity analysis does not apply to section
4019. (People v. Brown (June 18,
2012, S181963) __ Cal.4th __ [2012 Cal. Lexis 5263] (Brown).) Brown held the January through September 2010 amendment did not
apply retroactively to persons who committed their offense before the
amendment’s effective date, but were sentenced after it became effective. (Id. at
p.__ [2012 Cal. Lexis 5263 at p. *2].)
The court distinguished Estrada
as applying only when the Legislature mitigates “‘“the penalty
Legislature simply increases the amount of conduct credit which can be
earned. (Id. at p. __ [2012 Cal. Lexis 5263 at p. *20].) The court explained: “The holding in Estrada was founded on the premise that ‘“[a] legislative
mitigation of the penalty for a
particular crime represents a legislative judgment that the lesser penalty
or the different treatment is sufficient to meet the legitimate ends of the
criminal lawâ€â€™ [Citation.] . . . In
contrast, a statute increasing the rate at which prisoners may earn credits for
good behavior does not represent a judgment about the needs of the criminal law
with respect to a particular criminal offense, and thus does not support an
analogous inference of retroactive intent.â€
(Id. a p. __ [2012 Cal. Lexis
5263 at pp. *20-*21].) The court
specifically declined to read a broad interpretation into Estrada which would incorporate both contexts. (Id. at
p. __ [2012 Cal. Lexis 5263 at pp. *21-*22].)
“Estrada is today properly
understood, not as weakening or modifying the default rule of prospective
operation, . . . but rather as informing
the rule’s application in a specific context by articulating the reasonable
presumption that a legislative act mitigating the punishment for a particular
all nonfinal judgments.†(
pp. *19-*20].)
claim. Even though Brown considered the 2010 amendment rather than the current version
of section 4019, its rationale applies equally here. It is the same situation transposed a year
into the future. The current version still just “increase[es] the rate at which
prisoners may earn credits for good behavior . . . .†(Brown,
supra, __Cal.4th at p. __ [2012 Cal. Lexis 5263 at p. *20].) Its plain language
provides for prospective application.
Section 4019 is not a “legislative act mitigating the punishment for a
particular offense,†and falls outside the “specific context†addressed in
(Ibid.)
an equal protection claim like defendant makes.
“‘“[T]he first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups
in an unequal manner.â€â€™â€ (
Cal. Lexis 5263 at p. *29].)
crimes “before and after the new law took effect†are not similarly
situated. (Id. at p. __ [2012 Cal. Lexis 5263 at p. *26].) It stated:
“‘The obvious purpose of the new section’ . . . ‘is to
affect the behavior of inmates by providing them with incentives to engage in
productive work and maintain good conduct while they are in prison.’
[Citation.] ‘[T]his incentive purpose
has no meaning if an inmate is unaware of it.
The very concept demands prospective application.’†(Id.
at p. __ [2012 Cal. Lexis 5263 at p. *30].)
Since we are not dealing with people who are similarly situated, there
is no equal protection violation.
DISPOSITION
The judgment is
affirmed.
IKOLA,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.
further statutory references are to the Penal Code.
does not invoke an intervening amendment to section 4019. In April 2011, the Legislature amended the
statute to return to the one-to-one ratio for “crime[s] committed on or after
July 1, 2011.†(Stats. 2011, ch. 15, §
482, p. 498.) But that amendment became
effective “only upon creation of a community corrections grant program . . .
and upon an appropriation to fund the grant program.†(Stats. 2011, ch. 15, § 636, p.
622.) The record is silent on whether
the required program was created and funded, and defendant does not assert it
was. We will not apply the April 2011
amendment.
