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Filed 3/9/11 P. v. Duncan CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A127972 v. (San Francisco County Super. Ct. No. 211216) ROSCOE DUNCAN, Defendant and Appellant. Defendant argues that he was erroneously denied the benefit of 2009 amendments to Penal Code section 4019, which increased the amount of good conduct and work credits a defendant may receive for periods of presentence custody. We agree and order the trial court to modify the abstract of judgment to reflect an increase in presentence custody credits. I. BACKGROUND On December 30, 2009, pursuant to a negotiated disposition, Roscoe Duncan pled guilty to possession of heroin for sale. (Health & Saf. Code, § 11351.) On January 11, 2010, he was sentenced to two years in prison. Pursuant to Penal Code section 4019, he was granted presentence custody credits for 193 days of actual custody and 96 days of conduct credit for a total of 289 days.1 1 At the sentencing hearing, the court orally granted Duncan 289 days of presentence credit for 193 days of actual custody and 96 days of conduct credit. The abstract of judgment erroneously states that the court awarded Duncan 288 days of presentence custody credit (192 actual custody days and 96 days of conduct credit). The 1 II. DISCUSSION Duncan argues that he was entitled to retroactive application of 2009 amendments to section 4019, which took effect on January 25, 2010. Those amendments increased the amount of presentence custody credits a prisoner can earn for good conduct and satisfactory work performance.2 We agree that the amendments should be retroactively applied. Under the version of section 4019 in effect at the time that Duncan was sentenced, a defendant earned two days of credit for every four days of custody unless he failed to perform assigned work or abide by the facility s reasonable rules and regulations. (Former § 4019, subds. (a)(4), (b), (c), (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) The amendments to section 4019 which are at issue, with certain exceptions not applicable here,3 increase the good conduct credits a defendant can receive for People draw the court s attention to the discrepancy and concede that the court s oral pronouncement should govern over the abstract of judgment. (People v. Smith (1983) 33 Cal.3d 596, 599; see also People v. Thompson (2009) 180 Cal.App.4th 974, 978.) Defendant concurs. Because we order the abstract of judgment modified to reflect even greater credits because of the retroactive effect of the 2009 amendments to section 4019, we need not order the trial court to modify this particular error. 2 Duncan also argues that, if we deem his section 4019 claim forfeited on the ground that his trial counsel did not raise the claim at sentencing, the attorney s forfeiture of the claim amounted to ineffective assistance of counsel. The People expressly waive any claim of forfeiture. Therefore, we need not address the ineffective assistance claim. 3 One of the exceptions applied to a prisoner who had a prior conviction for a serious felony, as defined in Section 1192.7. (Former § 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009 2010, 3d Ex. Sess. 2009, ch. 28, § 50.) Section 1192.7 defines a serious felony to include selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code . . . . (Pen. Code, § 1192.7, subd. (c)(24), as amended by Stats. 2006, ch. 337, § 37.) The felony complaint against Duncan alleged (as to counts of the complaint that were ultimately dismissed) that he had four prior convictions for selling unspecified controlled substances in violation of Health and Safety Code sections 11351 or 11352, 2 presentence custody. Effective January 25, 2010, section 4019 provided for up to two days of credit for every two days of custody under the same conditions. (Former § 4019, subds. (a)(4), (b)(1), (c)(1), (f), as amended by Stats. 2009 2010, 3d Ex. Sess. 2009, ch. 28, § 50.)4 Numerous, and conflicting, decisions have been published addressing the retroactive application of the amendments to section 4019. The People have argued here and in other cases that the amendments do not apply retroactively. Several courts have agreed. (See, e.g., People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) In People v. Pelayo (2010) 184 Cal.App.4th 481 (Pelayo), review granted July 21, 2010, S183552, we joined several other courts of appeal in holding that the amendments to section 4019 apply retroactively because punishment is mitigated. (See also People v. Jones (2010) 188 Cal.App.4th 165, 183, review granted Dec. 15, 2010, S187135; People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As subdivision (a). The People do not argue that Duncan fell within the aforementioned exception by virtue of these prior convictions. 4 Sections 4019 and 2933 have been further amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426, § 2.) The September 2010 amendments do not affect this case and do not change our analysis in this matter. Unless otherwise noted, all subsequent references to section 4019 or its amendments refer to section 4019, as amended by Statutes 2009 2010, 3rd Extraordinary Session 2009, chapter 28, section 50. 3 indicated, our Supreme Court has granted hearing in these cases and will ultimately decide the issue. Pending direction from the Supreme Court, we adopt and incorporate our discussion and reasoning in Pelayo, as set forth hereafter, and again hold that the statute must be given retroactive effect. A. Retroactivity of Penal Statutes in General The Penal Code provides that [n]o part of it is retroactive, unless expressly so declared. (§ 3.) That section simply embodies the general rule of construction . . . that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) The rule, however, is not a straitjacket and should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent even if the Legislature has not expressly stated that a statute should apply retroactively. (Ibid.) In Estrada, the Supreme Court considered the particular circumstance of a penal statute that lessens the punishment for a crime but does not include an express statement that the statute was to apply retroactively. (Id. at pp. 743 744.) In that situation, the court concluded, the inevitable inference is that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. . . . This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology, which instruct that punishment is directed toward deterrence, incapacitation, and rehabilitation, but not punishment for its own sake. (Id. at pp. 744 745.) Accordingly, where the amendatory statute mitigates punishment and there is no saving clause [requiring only prospective effect], the rule is that the amendment will 4 operate retroactively so that the lighter punishment is imposed. (Id. at p. 748.) That is, it will apply to all judgments of conviction that are not yet final on direct review. (Id. at p. 744.) In 1996, the Supreme Court expressly reaffirmed the Estrada rule. (People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 (Nasalga).) In a prior case, the court had suggested that the rationale of Estrada had been undermined by further developments in penology in this state. (In re Pedro T. (1994) 8 Cal.4th 1041, 1045, fn. 1, citing § 1170, subd. (a)(1) [ Legislature finds and declares that the purpose of imprisonment for crime is punishment ].) In Nasalga, however, the court rejected an invitation to reconsider Estrada in light of this change in penological theory. In the 31 years since this court decided Estrada, . . . the Legislature has taken no action, as it easily could have done, to abrogate Estrada. 5 (Nasalga, at p. 792, fn. 7.) In short, in Nasalga the court reaffirmed the Estrada rule on the ground of legislative acquiescence, regardless of the continuing persuasiveness of the Estrada rationale. (Cf. People v. Meloney (2003) 30 Cal.4th 1145, 1161 (Meloney) [ [when] a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it ].) After Nasalga, it is no longer open to debate whether the fact that the Legislature enacted a statute that mitigates punishment supports an inference that the Legislature intended the statute to apply retroactively. (Nasalga, at p. 792, fn. 7.) B. Retroactivity of Statutes Increasing Custody Credits In at least four prior decisions long predating the current amendments, courts of appeal have held that the Estrada rule applied to amendments increasing the credits a defendant could receive for presentence custody. (People v. Hunter (1977) 5 Notably, during that 31-year period the Supreme Court had repeatedly followed and applied Estrada. (See, e.g., People v. Francis (1969) 71 Cal.2d 66, 75 76; People v. Rossi (1976) 18 Cal.3d 295, 298 300; People v. Chapman (1978) 21 Cal.3d 124, 126 127; People v. Babylon (1985) 39 Cal.3d 719, 721 722; Tapia v. Superior Court (1991) 53 Cal.3d 282, 300 301.) 5 68 Cal.App.3d 389, 391 393 (Hunter); People v. Sandoval (1977) 70 Cal.App.3d 73, 87 88 (Sandoval); People v. Doganiere (1978) 86 Cal.App.3d 237, 238 240 (Doganiere); People v. Smith (1979) 98 Cal.App.3d 793, 798 799 (Smith).) As far as we are aware, no published decisions have held to the contrary. In Hunter, the issue was whether amendments to section 2900.5, which allowed credit for actual time spent in presentence custody against sentences imposed as a condition of probation, applied retroactively to probationary sentences imposed prior to the effective date of the amendments. (Hunter, at p. 391.) Following Estrada, the court held the amendments applied retroactively to judgments that were not yet final on the effective date of the new law. (Ibid.) Sandoval agreed with and followed Hunter on the same issue. (Sandoval, at pp. 87 88.) In Doganiere, the issue was the retroactivity of amendments to section 2900.5 that authorized conduct credit (pursuant to § 4019) for time that had been served in jail as a condition of probation against a sentence later imposed after a violation of probation. (Doganiere, supra, 86 Cal.App.3d at pp. 238 239.) Following Estrada and Hunter, the court held the amendments were retroactive. (Id. at pp. 239 240.) In Smith, the court followed Estrada and Doganiere and held that 1979 amendments to section 4019 applied retroactively. (Smith, supra, 98 Cal.App.3d at p. 799.) In Doganiere, the court specifically rejected an argument that the amendments should not apply retroactively because conduct credits were an incentive for future inmate behavior, a goal that could only be accomplished through prospective application. (Doganiere, at pp. 239 240.) It appears to us that in applying the principles of Estrada, as indeed we must, the Legislature simply intended to give credit for good behavior and in so doing, dangled a carrot over those who are serving time. It would appear to be fair, just and reasonable to give prisoner A, who has been a model prisoner and by reason thereof served only five months of his six-month sentence, credit for the full six months if we are going to give credit for the full six months to prisoner B, who is recalcitrant, hard-nosed, and spent his entire time violating the rules of the local jail. (Ibid.) We note that Estrada itself implicitly rejected a similar argument made by the dissent in that case, that retroactive application of a lessened criminal penalty undermines the deterrent effect of penal 6 statutes. (See Estrada, supra, 63 Cal.2d at p. 753 (dis. opn. of Burke, J.).) Doganiere concluded, Under Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe. (Doganiere, at p. 240.) Again, under Nasalga, the legitimacy of that inference is no longer open to debate. (Nasalga, supra, 12 Cal.4th at p. 792, fn. 7.) The People contended in Pelayo that the reasoning of Doganiere is unsound, since the public purpose of good conduct statutes is to provide effective incentives for good behavior, and that this purpose can only be furthered by prospective application of additional credits. Reason dictates that it is impossible to influence behavior after it has occurred. (In re Stinnette (1979) 94 Cal.App.3d 800, 806 (Stinnette).) Stinnette considered an amendment to section 2931 under the Determinate Sentencing Act, which allowed prisoners to earn conduct credits but restricted application of the amendment to time served after the effective date. (Stinnette, at pp. 803 804.) The issue was whether the express prospective application of the statute violated equal protection. (Id. at p. 804.) The court concluded that it did not because there was a rational basis for treating those who had already begun serving their sentences differently from those who began serving their sentences after the effective date. (Id. at pp. 805 806.) Unlike Stinnette, the amendments to section 4019 at issue here do not specify the Legislature s intent regarding retroactive or prospective application. We find that Stinnette is not helpful in determining the Legislature s intent when amending section 4019. The Legislature, which is presumed to have been aware of the Hunter/Doganiere case law, has taken no action, as it easily could have done, to abrogate these decisions in the more than 31 years since the last of them was decided. (Cf. Nasalga, supra, 12 Cal.4th at p. 792, fn. 7.) Moreover, the Legislature twice amended section 4019, in 1982 and 2009, without expressly providing that the amendments would apply prospectively only. (Stats. 1982, ch. 1234, § 7, p. 4553; Stats. 2009 2010, 3d Ex. Sess. 2009, ch. 28, § 50.) On these facts, we may infer that the Legislature has acquiesced in Doganiere. (See Meloney, supra, 30 Cal.4th at p. 1161.) 7 C. Legislative Intent in 2009 Amendments of Section 4019 As the People acknowledged in Pelayo, the Legislature, in enacting the amendments to section 4019, did not expressly declare its intent in doing so. The appellant in Pelayo asserted that an intent to retroactively apply the amendments can be discerned from the statement that Senate Bill 18 was enacted to address[] the fiscal emergency declared by the Governor (Sen. Bill 18, § 62) and that earlier release of prisoners would foster that purpose. However, the legislative intent at issue is not the motivation for the legislation but rather the Legislature s intent concerning whether the [enactment] should apply prospectively only. (Nasalga, supra, 12 Cal.4th at p. 795). The statute s purpose of saving state funds by reducing prison population while at the same time minimizing security risk is at least as consistent with retroactive as with prospective application of the amendments to section 4019. The appellant in Pelayo also contended that the express use of a saving clause in other statutes amended by the same legislation (Sen. Bill 18, § 416; § 2933.3, subd. (d) [providing additional custody credits for prison inmate firefighting training or service only for those eligible after July 1, 2009]) compels a conclusion that the Legislature intended retroactivity for amended section 4019. The Legislature s inclusion of a saving clause in the amendment to section 2933.3, but not in the amendments to section 4019, supports an inference that the Legislature had a different intent with respect to the retroactive or prospective application of the two provisions. (Cf. Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 62 [ use of differing language in otherwise parallel provisions supports an inference that a difference in meaning was intended ].) The People urged that we could divine a contrary legislative purpose for only prospective application from the fact that the amendment to section 2933.3, subdivision (d) was expressly made partially retroactive, and the Legislature failed to do so here. We think that the Legislature s use of the phrase shall only apply in amending section 2933.3 6 The credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009. (Stats. 2009 2010, 3d Ex. Sess. 2009, ch. 28, § 41.) 8 (italics added), however, suggests an intent to limit the provision s retroactive application, rather than extend the provision s otherwise prospective application retroactively. The appellant in Pelayo further argued that we could look to the Legislature s explicit recognition of inevitable delays in implementation of new custody credit calculations by the Department of Corrections and Rehabilitation (Sen. Bill 18, § 59) as evidence that the Legislature contemplated retroactive application of such credits. Section 59, an uncodified provision of Senate Bill 18, provides: The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from the changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable. (Stats. 2009 2010, 3d Ex. Sess. 2009, ch. 28, § 59.) While ambiguous, this section does tend to support an inference that the Legislature intended the provisions affecting custody credits to have retroactive effect. Ultimately, however, we concluded that, in the absence of clear affirmative indications that the Legislature intended the amendments to section 4019 to have prospective application only, we must apply the Estrada and Doganiere presumption that the amendments are retroactive as to all sentences not yet final on direct appeal at the time the amendments went into effect. We found no clear expression of such an intent and thus held that the amendments must be applied retroactively. D. Conclusion Accordingly, we hold that Duncan is entitled to the benefits of the 2009 amendments to section 4019. As noted above, at the time of sentencing, Duncan 9 received credit for 193 days served in jail, plus 96 days under the then-operative version of section 4019, for a total of 289 days. Duncan is entitled to an additional 96 days under the amendments to section 4019, for a total of 385 days. III. DISPOSITION The trial court is ordered to modify the abstract of judgment to reflect 385 days of presentence credit and to send a copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. _________________________ Bruiniers, J. We concur: _________________________ Jones, P. J. _________________________ Simons, J. 10

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