THE PEOPLE v. JOHN WAYNE TURNER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONSTATEMENT OF THE CASE

On July 17, 2009, appellant, John Wayne Turner, waived his constitutional rights and pled no contest in case No. VCF224038 to misdemeanor possession of a destructive device (Pen.Code, § 12303.2, count one) ¹ and felony domestic violence (§ 273.5, subd. (a), count two).   On August 20, 2009, appellant waived his constitutional rights and pled no contest in case No. VCF225504 to one count of felony domestic violence (§ 273.5, subd. (a), count one) and one count of misdemeanor battery (§ 242, count three).

On January 13, 2010, the trial court sentenced appellant in case No. VCF225504 to three years in prison on count one.   In case No. VCF224038, the court sentenced appellant to a concur ²

rent prison term of three years for count two.   Appellant received custody credits of 508 days.   Appellant contends he is entitled to extra custody credits under the recently amended provisions of section 4019.²  We disagree and will affirm the judgment.

ADDITIONAL CUSTODY CREDITS

Appellant contends he is entitled to additional custody credits from 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 13, 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.³

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.

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].)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Because the only issue on appeal concerns appellant's custody credits, we do not recount the underlying facts of appellant's offenses.   We note that although the probation report indicates that appellant has a lengthy criminal history of misdemeanor offenses, felony drug offenses, and a felony conviction for receiving stolen property, appellant does not apparently have a serious or violent felony conviction that would disqualify him from the provisions of section 4019, if it is found to apply retroactively..  FN2. Because the only issue on appeal concerns appellant's custody credits, we do not recount the underlying facts of appellant's offenses.   We note that although the probation report indicates that appellant has a lengthy criminal history of misdemeanor offenses, felony drug offenses, and a felony conviction for receiving stolen property, appellant does not apparently have a serious or violent felony conviction that would disqualify him from the provisions of section 4019, if it is found to apply retroactively.

FN3. We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963..  FN3. We decide this case according to our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which is currently before the California Supreme Court, along with its companion case, People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

THE COURT * FN*.  Before Wiseman, Acting P.J., Dawson, J., and Hill, J.