P. v. Vallez










Filed 11/9/10 P. v. Vallez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MATTHEW HENRY VALLEZ, Defendant and Appellant.

F058280 (Super. Ct. No. F08601822) OPINION

THE COURT^*
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Mathew Henry Vallez (Vallez), on one count of possession for sale of methamphetamine (count 1/Health & Saf. Code, § 11378) and transportation of methamphetamine (count 2/Health & Saf. Code, § 11379, subd. (a)), and providing false information to a police officer (Pen. Code, § 148.9, subd. (a)).^[1]
On August 10, 2009, the court sentenced Vallez to a three-year term on count 1, a stayed three-year term on count 2, and a 45-day term on count 6 with credit for time served. The court also awarded Vallez 45 days of presentence custody credit consisting of 31 days of presentence actual custody credit and 14 days of presentence conduct credit.
On appeal, Vallez contends: 1) the court imposed an unauthorized sentence; and 2) he is entitled to additional conduct credit pursuant to the recent amendment of section 4019. We will find merit to Vallez’s first contention and remand the matter to the trial court for resentencing. In all other respects, we will affirm.
FACTS
On June 3, 2008, Sanger police officers stopped a car in which Vallez was a passenger. Vallez initially gave a false name to the officers. During an ensuing consent search of the car, the officers found 1.7 ounces of methamphetamine under the front seat where Vallez was seated and more than $12,000 in currency.
On August 10, 2009, at Vallez’s sentencing hearing the court addressed the parties as follows with respect to the proper sentencing:
“While the Court recalls this was an interesting case based on the evidence given, the significant amount of value of the drugs under Mr. Vallez’s seat and according to the evidence uncontroverted that he was holding the scale as well as something else, and there was currency, change -- it was currency in his possession as well as currency, frankly, throughout the car. I guess the -- well, I guess the issue would be whether or not this is an aggravated case or whether this is a mid-term case. I’d ask the DA for any comments that he would have.”
After hearing comments from the attorneys, the court sentenced Vallez to a three-year term as follows:
“Given that, and if there’s no further comments, the Court would order that as to Matthew Henry Vallez probation is denied. You should be committed to the California Department of Corrections for the mid-term of three years in Count One. The pursuing Count Two, likewise, mid-term, three years, stayed, pursuant to [section] 654. The total commitment is for three years. The total time credits, 45 days, 31 actual, 14 good time/work time.”^[2]
DISCUSSION
Vallez’s Sentence
Vallez contends the court committed a clerical error when it imposed a three-year term on his possession for sale conviction because it stated that it intended to impose the middle term for that offense and the middle term for possession for sale of methamphetamine is only two years.^[3] Thus, according to Vallez this court should either correct the clerical error in his judgment so it shows the court imposed a middle term of two years on his possession for sale conviction or remand the matter to the trial court for resentencing. Respondent agrees the court imposed the wrong middle term on count 1 but contends that the error should be corrected by directing that Vallez’s abstract of judgment be amended to show a three-year sentence on count 2, the middle term for transportation of methamphetamine,^[4] and a stayed two-year term on count 1. Alternatively, respondent contends that the matter should be remanded to the trial court for resentencing. We will remand the matter to the trial court for resentencing.
“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Generally, when the record shows that the trial court misunderstood its sentencing discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. (Cf. People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
Here, the court sought to impose a three-year term on count 1 which it described as the “middle term.” It is unclear whether the court intended to impose the middle term, which it mistakenly believed was three years, or intended to impose a term of three years and mistakenly characterized it as the middle term. (Health & Saf. Code, § 11378.) Accordingly, we will remand the matter to the trial court for resentencing.^[5]
Section 4019
Pursuant to this court’s “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (supplemental briefing order) we deem to be raised the contention that Vallez is entitled to additional conduct credit under a recent amendment to section 4019. We will conclude that Vallez is not entitled to additional conduct credit.
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.)
The court sentenced Vallez in August 2009, and calculated his 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.^[6]
This court, in its supplemental briefing order, ordered that in pending appeals in which the defendant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here. As we explain below, they are without merit.
Under section 3, it is presumed that a statute does not operate retroactively “‘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 to operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
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 Vallez’s equal protection rights. People v. Sage (1980) 26 Cal.3d 498 is inapposite because it involved a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons. (Id. at pp. 507-508.) In Sage, the California Supreme Court found that there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Id. at p. 508.) The purported equal protection violation at issue here is temporal, rather than based on defendant’s status as misdemeanant or felon.
One of section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Vallez 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].)^[7]
DISPOSITION
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
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