THE PEOPLE v. MANUEL REYES GARCIA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MANUEL REYES GARCIA, Defendant and Appellant.

B218927

Decided: November 24, 2010

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Manuel Reyes Garcia appeals from the judgment entered following his guilty plea to one count of involuntary manslaughter.  (Pen.Code, § 192, subd. (b).)  The sole issue appellant raises on appeal is that he is entitled to additional presentence custody credit based on the amendment to Penal Code section 4019, effective January 25, 2010, which he contends applies retroactively.   We disagree and therefore affirm.

FACTUAL AND PROCEDURAL SUMMARY

The parties stipulated to a factual basis for the plea based on the preliminary hearing transcript and the police reports.   We do not set forth the facts because they are not pertinent to the only issue raised on appeal.

In December 2003, appellant was charged by information with one count of murder.  (Pen.Code, § 187.)   Appellant entered a not guilty plea.

On June 29, 2009, the parties agreed upon a disposition pursuant to which the prosecution amended the information by adding a second count, involuntary manslaughter (Pen.Code, § 192, subd. (b)), and moved to dismiss the murder count.   After being advised of his rights, appellant agreed to waive his rights and enter a guilty plea to the involuntary manslaughter charge.   The trial court accepted appellant's plea and found that the plea was knowing, voluntary, and intelligent.   The trial court sentenced appellant to the upper term of four years.   Appellant received credit for 671 days of actual custody and 334 days of good time/work time, for a total of 1,005 days.

After the abstract of judgment was filed, appellant filed a motion to withdraw his plea, asserting that he did not authorize the plea agreement and raising other contentions regarding a claim of ineffective assistance of counsel.   The trial court denied the motion, explaining that it did not have authority to allow appellant to withdraw the plea because he had already been sentenced and judgment had been entered.  (See Pen.Code, § 1018.)

Appellant filed a notice of appeal.   Appellant sought and obtained a certificate of probable cause.   In his statement requesting the certificate, appellant repeated the assertions raised in his motion to withdraw his plea.

On January 26, 2010, appellant filed an ex parte application for additional presentence custody credits, pursuant to the amendment to Penal Code section 4019.  (See Pen.Code, § 4019, subds. (b) & (c), as amended by Stats.2009, 3d Ex.Sess.2009-2010, ch. 28, § 50.)   The trial court denied the application on the basis that the amendment does not apply retroactively.1

DISCUSSION

“[T]wo types of issues may be raised on appeal following a guilty or nolo plea without the need for a certificate:  issues relating to the validity of a search and seizure ․ and issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.  [Citations.]”  (People v. Buttram (2003) 30 Cal.4th 773, 780.)   Although appellant obtained a certificate of probable cause, he did not need one to challenge the award of custody credits because this issue concerns the penalty imposed.  “[A] certificate of probable cause only perfects an appeal;  it does not expand or limit the cognizable issues.  [Citation.]”  (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311.)   We reject appellant's contention that the amendment to Penal Code section 4019 applies retroactively.

Penal Code section 4019, subdivisions (b) and (c), provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution's rules and regulations.   In 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, amended subdivisions (b) and (c) of section 4019 to provide for the accrual of presentence credit at twice the previous rate, with certain exceptions.  (See Pen.Code, § 4019, subds. (b) & (c), as amended by Stats.2009, 3d Ex.Sess.2009-2010, ch. 28, § 50.)   Appellant contends that he is entitled to additional conduct credits because the amendment to Penal Code section 4019 should apply retroactively.   California courts are divided on whether the amendment applies retroactively or prospectively.2  We conclude that it does not apply retroactively and that appellant is not entitled to additional custody credits based on the amendment.

Section 3 of the Penal Code provides:  “No part [of the Penal Code] is retroactive, unless expressly so declared.”   Thus, “ ‘[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.)  “To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration․”  (People v. Nasalga (1996) 12 Cal.4th 784, 792.)

Where, as here, there is no express statement of legislative intent, we look to other factors to determine legislative intent.  (In re Estrada (1965) 63 Cal.2d 740, 744.)  In re Estrada addressed an amendment reducing the penalty for escape.   The court held that the amendment applied retroactively, reasoning that “[w]hen 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.”  (Id. at p. 745.)   We believe, however, that increasing the rate at which credits are accrued does not represent a legislative determination that a prior punishment was too severe.

We note that, elsewhere in Senate Bill No. 3X 18, the Legislature expressly provided for limited retroactive application of enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009.  (See Pen.Code, § 2933.3, as amended by Stats.2009, 3d Ex.Sess.2009-2010, ch. 28, § 41.)   The Legislature thus demonstrated that it could, if it wished, provide for the amendment to section 4019 to have retroactive effect.   Its failure to do so gives rise to the inference that it did not so intend.   Finding no clear and compelling implication that the Legislature intended the amendment to apply retroactively, we conclude that the amendment applies prospectively and reject appellant's claim.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Although appellant raised other issues in his certificate of probable cause, the only issue briefed on appeal is the retroactivity of Penal Code section 4019..  FN1. Although appellant raised other issues in his certificate of probable cause, the only issue briefed on appeal is the retroactivity of Penal Code section 4019.

FN2. The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div.Four), review granted September 22, 2010, S184957.  (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096, (1st Dist., Div.Two), review granted June 23, 2010, S182808;  People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div.One), review granted June 23, 2010, S182813;  People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Rodriguez (2010) 182Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.).  FN2. The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div.Four), review granted September 22, 2010, S184957.  (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096, (1st Dist., Div.Two), review granted June 23, 2010, S182808;  People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div.One), review granted June 23, 2010, S182813;  People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Rodriguez (2010) 182Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.)

WILLHITE, Acting P .J. SUZUKAWA, J.