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Court of Appeal, Second District, Division 5, California.

Michael John FRIZE, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Civ. 56286.

Decided: August 17, 1979

Michael John Frize, in pro. per. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Cynthia Sonns Waldman, Deputy Attys. Gen., for real party in interest.

This is a proceeding in mandamus in which petitioner seeks credit pursuant to Penal Code section 2900.5 for so-called “good time” credits, as defined by Penal Code section 4019, for time spent in custody as a condition of probation.1

The amendment to Penal Code section 2900.5 which provides for good time credits became effective June 28, 1978. (Stats. 1978, ch. 304.) Petitioner's probation was revoked and he was sentenced to state prison on March 1, 1978. He did not appeal and so the judgment became final before the effective date of the 1978 amendment. The issue before us is whether In re Kapperman, (1974) 11 Cal.3d 542, 114 Cal.Rptr. 97, 522 P.2d 657, requires that the 1978 amendment, where otherwise applicable, be made fully retroactive to all inmates still in custody.

Kapperman dealt with the initial enactment of Penal Code section 2900.5 in which the Legislature provided for credit for presentence detention, but specified that the law was to have prospective application only. (In re Kapperman, supra, at pp. 544-545, 114 Cal.Rptr. 97, 522 P.2d 657; Stats. 1971, ch. 1732.) The Supreme Court held that by creating a classification of prisoners (those who had been delivered to the Director of Corrections prior to March 4, 1972) and depriving them of a benefit (back time credit) accorded to those prisoners delivered to the director on or after that date, the Legislature had violated the equal protection clauses of the state and federal constitutions. (Cal.Const., art. I, s 7; art. 4, s 16, 14th Amendment, U.S.Const.)

In 1976 the Legislature amended section 2900.5 to include time spent in custody as a condition of probation within the category of back time to be credited on a subsequent prison sentence. (Stats. 1976, ch. 1045, s 2.) The 1976 amendment was silent as to its prospective or retroactive application. In People v. Hunter (1974) 68 Cal.App.3d 389, 137 Cal.Rptr. 299, the 1976 amendment was held to be retroactive as to all prisoners whose judgments were not final on January 1, 1977, the effective date of the amendment.

In People v. Doganiere, (1978) 86 Cal.App.3d 237, 150 Cal.Rptr. 61, the 1978 amendment to section 2900.5, under consideration in the within proceeding, was similarly held to apply retroactively to all judgments not yet final on its effective date. Petitioner contends that Doganiere compels that he too be awarded good time credits. The People correctly point out that petitioner's situation differs from that in Doganiere in that his judgment had become final before the 1978 amendment became effective. To the extent that the People would go further, however, and interpret Doganiere to prohibit retroactive application of the 1978 amendment beyond its effective date, they read too much into that decision.

Any court can, of course, decide only the issue before it. Since the judgments in Doganiere and Hunter had not become final on the effective dates of the amendments there under consideration, the courts in those cases merely dealt with issues of statutory interpretation involved in the question of limited retroactivity. In this analysis they relied heavily on In re Estrada, (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948. They were not, however, required to consider the constitutional issues involved if full retroactivity were denied.

We, on the other hand, are faced squarely with an issue in which Kapperman, rather than Estrada controls. As in Kapperman the People point to no rational and legitimate state interest which justifies restricting retroactive application of the statute. This is not, for instance, a situation in which the Legislature has chosen to distinguish between credits earned while in a state facility and those earned while in county custody. (Cf., McGinnis v. Royster, (1973) 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282.) The People argue that the purpose of good time credit is to influence future behavior and thus such credits should not be awarded for past behavior; but this argument was raised and rejected in Doganiere. (86 Cal.App.3d at p. 239, 150 Cal.Rptr. 61.) If the argument has no merit in a limited retroactivity situation, it does not improve when the issue is full retroactivity.

The People do not argue that making the amendment fully retroactive will present any undue administrative burden. In fact, by according uniform treatment to all current inmates the retroactive application of the amendment should not only ease the administrative burden of the Department of Corrections, but also sharply curtail the flood of petitions for good time credit which continues to inundate both the superior courts and the Courts of Appeal. Finally, the uniformity to be achieved by full retroactivity is in keeping with the spirit of the Determinate Sentencing Act. (Pen. Code s 1170.)

By contrast, denying full retroactivity to the amendment would result in defendants being granted or denied good time credits based upon whether or not they had had the foresight, in advance of the passage of the amendment, to appeal an otherwise valid judgment and on whether or not a decision on such an appeal became final before or after June 28, 1978. Such a scheme would be far more vague and much more arbitrary than that rejected by Kapperman. We conclude that equal protection requires that the 1978 amendment to section 2900.5 providing for good time credits applies retroactively to all inmates now in custody.

Let a peremptory writ of mandate issue directing the Los Angeles County Superior Court to: (a) compute the amount of good time credits petitioner earned while in custody as a condition of probation in that matter entitled People of the State of California v. Michael John Frize, Los Angeles Superior Court Number A-437669; (b) prepare an amended abstract of judgment reflecting such credits; and (c) forward a copy of said amended abstract of judgment to the Department of Corrections.


1.  Petitions for such credit, which reach this court in great number, have been treated both as petitions for writs of mandate and as petitions for writs of habeas corpus, depending on the form selected by the petitioner. We have provided both forms of relief when meritorious grounds were shown. We express no opinion as to which form is preferable.

KAUS, Presiding Justice.


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