P. v. Hass
Filed 2/27/12 P. v. Hass CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DONALD WAYNE HASS,
Defendant
and Appellant.
E052362
(Super.Ct.No.
FVI801782)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. John
M. Tomberlin, Judge. Affirmed
Donna
L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith
S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Donald Wayne Hass contends that he is entitled
to 76 additional conduct credits under the January 25, 2010 amendment of Penal
Code
title="">[1] section 4019 (Sen. Bill No. 3X 18 (2009-2010
3d Ex. Sess.), Stats. 2009, ch. 28, § 50),
section 2933 (Sen. Bill 76, Stats. 2010, ch. 426, § 1, eff. Sept. 28,
2010).
title="">[3] He also contends that equal protection requires
that he receive the additional presentence custody credits. We affirm.
PROCEDURAL
BACKGROUND
title="">[4]
A
jury found defendant guilty of driving under the influence of alcohol with four
prior convictions within the meaning of Vehicle Code sections 23550 and
23550.5 (Veh. Code, § 23152,
subd. (a), count 1); driving while having a 0.08 percent or higher
blood-alcohol content with four prior convictions within the meaning of Vehicle
Code sections 23550 and 23550.5 (Veh. Code, § 23152, subd. (b), count
2); and driving when his license had been suspended for a prior driving under
the influence (DUI) conviction (Veh. Code, § 14601.2, subd. (a),
count 3). The trial court found true the
allegations that defendant had four prior DUI convictions, and that he had
served one prior prison term within the meaning of Penal Code section 667.5,
subdivision (b). On December 4, 2008, the court sentenced
him to a total of four years in state prison.
Defendant
was subsequently charged in case No. FVI802108.
Pursuant to a plea agreement, he pled guilty to a violation of Vehicle
Code section 23152, subdivision (a), and admitted he committed that offense
while he was out on bail in the first case.
On January 21, 2009, pursuant to the terms of the agreement, the court
vacated the original sentence in the first case and imposed a three-year
term. It then imposed a term of two
years eight months in the second case and ran it consecutive to the sentence in
the first case, for a total term of five years eight months. The court awarded defendant 204 presentence
custody credits (136 actual and 68 conduct).
The court later granted appellate counsel’s request to amend the
abstract of judgment and ordered the credit award to be 224 custody credits
(150 actual and 74 conduct).
Defendant
appealed, and this court affirmed the judgment.
(People v. Hass (Nov. 23,
2009, E047475) [nonpub. opn].)
On
June 9, 2010, defendant, acting in propria
persona, filed an ex parte
application and request for additional custody credits, based on the January
25, 2010 amendment to section 4019.
name="_ftnref5" title="">[5] Defendant filed the same motion on September
1, 2010. The court denied the motion on
September 9, 2010. Defendant filed a
timely notice of appeal.
DISCUSSION
Defendant
is Not Entitled to Additional Conduct Credits
A. The
Amendment to Section 4019 Does Not Apply Retroactively
Defendant
contends that the amendments to sections 4019 and 2933 apply retroactively to
increase his presentence custody credits by 76 days. We disagree.
When defendant committed the
crime in the instant case, as well as when he was sentenced, section 4019
provided that a defendant was entitled to two days of conduct credit for every
four days of presentence custody.
(Former § 4019, Stats.1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended to provide that a
defendant was entitled to two days of conduct credit for every two days of
presentence custody. (Stats. 2009-2010,
3d Ex. Sess., ch. 28, § 50.) We
note that, effective September 28, 2010, the statute was again amended to
restore the former formula. (Stats.
2010, ch. 426, § 2.) By its terms,
however, that amendment applies
only to offenses committed after its adoption.
The question of whether a
defendant sentenced before January 25, 2010, is entitled to the benefit of the
2010 amendment to section 4019 is currently before the California Supreme
Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9,
2010, S181963; People v. Rodriguez
(2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) Because the California Supreme Court will
ultimately resolve the conflict on the issue among the various Courts of
Appeal, we discuss the issue only briefly.
Under section 3, “‘[a] new
statute is generally presumed to operate prospectively absent an express
declaration of retroactivity or a clear and compelling implication that the
Legislature intended otherwise.
[Citation.]’ [Citation.]” (People
v. Alford (2007) 42 Cal.4th 749, 753 (Alford).) Neither the bill that amended section 4019
nor the legislative history contains any such clear and compelling implication. Therefore, the amendment applies
prospectively only. We recognize that,
under In re Estrada (1965) 63 Cal.2d
740, “where the amendatory statute mitigates punishment and there is no saving
clause, the rule is that the amendment will operate retroactively so that the
lighter punishment is imposed.” (
a mitigation of punishment. Rather, they
are a means of encouraging and rewarding behavior. (People
v. Brown (2004) 33 Cal.4th 382, 405.) Accordingly, the section 3 presumption of
prospective application is not rebutted.
Defendant
argues that the Legislature’s sole intention in enacting the bill that amended
section 4019 and provided the increased conduct credits was to save the state
money by granting early release to certain prisoners. However, section 4019 was designed at least
in part to facilitate management of prisoners by motivating compliant behavior
while in local custody. (See § 4019,
subd. (c)(1).) This objective cannot be
served by a retroactive
application of the amendment of
section 4019, as “it is
impossible to influence behavior after it has occurred.” (In re Stinnette (1979) 94 Cal.App.3d
800, 806 (Stinnette).)
We
conclude that the January 25, 2010 amendment of section 4019 is not
retroactive.
B. The
Amendment to Section 2933 Does Not Apply Retroactively
Defendant
further argues that the amendment to section 2933, which became effective on
September 28, 2010, “should similarly be found to operate retroactively.”
Former
section 2933, subdivision (e), provided credit for time spent in local custody
after the date a defendant was sentenced to prison. Effective September 28, 2010, the Legislature
amended section 2933 to give
eligible prisoners for whom a state prison sentence was executed one day of
conduct credit for each day actually served in presentence custody. (§ 2933, subd. (e)(1)-(3), added by Stats.
2010, ch. 426, § 1.) In other
words, for defendants sentenced to state prison who do not have any past or
present convictions for serious or violent felonies, and who are not subject to
registration as a sex offender, amended section
2933 now governs their entitlement to presentence conduct credits. (§ 2933, subd. (e)(1).) Those disqualified by their status are
limited to the section 4019 scheme of two days of conduct credit for four days
in custody. (§§ 2933, subd. (e)(3),
4019.)
Defendant
points out that the September 28, 2010 amendments to both sections 4019 and
2933 were enacted through the passage of Senate Bill No. 76, and that the
amendment to section 4019 specifically provides that it applies to crimes
committed on or after the effective date of the amendment. (§ 4019, subd. (g).) He then speculates that the Legislature’s
inclusion of a provision for prospective application of the changes to section
4019, and not to section 2933, is “strong evidence that the Legislature
deliberately omitted a provision for prospective application from section
2933.” He concludes that amended section
2933 should thus apply retroactively.
However, as explained ante,
section 3 clearly provides: “No part of
[the Penal Code] is retroactive, unless expressly so declared.” We presume the amendment “‘operate[s]
prospectively absent an express declaration of retroactivity or a clear and
compelling implication that the Legislature intended otherwise. [Citation.]’
[Citation.]” (
There is no express declaration of retroactivity or any “clear and
compelling implication” that the Legislature intended the amendment to section
2933 to operate retroactively.
Consequently, for the same reasons we concluded that the January 25,
2010 amendment to section 4019 does not apply retroactively, we conclude that
the September 28, 2010 amendment to section 2933 does not apply retroactively.
C. Defendant
Is Not Entitled to Enhanced Credits Under Equal Protection Principles
Finally,
defendant argues that
he is entitled to the 76 additional days of custody credits under sections 4019
and 2933 because equal protection
requires that the amendments be applied retroactively. We disagree.
Defendant
contends that he is similarly situated to, but receiving a credit award that is
disparate from, prisoners whose judgments of conviction became final after the
amendments to sections 4019 and 2933 became operative. However, the purported equal protection
violation here is temporal, and “‘[t]he 14th Amendment does not forbid statutes
and statutory changes to have a beginning, and thus to discriminate between the
rights of an earlier and later time.’
[Citation.]” (
191 (Floyd).) Furthermore, “‘[i]n the context of equal
protection, “[a] refusal to apply a statute retroactively does not violate the
Fourteenth Amendment.” [Citation.] Equal protection is not denied where an
amendatory statute reducing a penalty is not applied to persons whose convictions
were final before the effective date of the ameliorative amendment. [Citation.]’”
(Stinnette,
p. 806.) The only requirement is
that the classification between those sentenced before and after the amendment
be reasonably related to a legitimate public purpose. (Ibid.) Here, the Legislature had the legitimate
purpose of motivating good conduct. As
the Stinnette court noted, “[r]eason
dictates that it is impossible to influence behavior after it has
occurred.” (Ibid.) Thus, affording
increased conduct credits as of the effective date of the amendment was
reasonably related to a legitimate purpose, and there was no equal protection
violation. (See Ibid.)
Defendant
relies on In re Kapperman (1974) 11
Cal.3d 542, which is not applicable here.
Kapperman held that an express
prospective limitation upon the statute creating presentence custody credits
was a violation of equal protection because there was no legitimate purpose to
be served by excluding those already sentenced.
(Id. at
pp. 544-545.) Kapperman is distinguishable because it addressed actual custody
credits, not conduct credits. Conduct
credits must be earned by a defendant, whereas custody credits are
constitutionally required and awarded automatically on the basis of time
served.
In
sum, defendant is not entitled to additional conduct credits under the
amendments to section 4019 or section 2933, as his right to equal protection
has not been violated.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting
P. J.
We concur:
McKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
name="_ftn2" title=""> [2] We note that section 4019 has been amended twice since January 2010, but those
amendments only apply to crimes committed after certain dates. The discussion in this opinion concerns the
amended version of section 4019
that became effective on January 25, 2010.
Thus, any reference to section 4019
concerns the January 25, 2010 version of section 4019. Any reference to
“former” section 4019 concerns
the version of section 4019 that
was in effect prior to January 25, 2010.
