THE PEOPLE v. JUSTIN WELLS MILDENBERGER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

A jury found appellant Justin W. Mildenberger guilty of felony possession for sale of marijuana (Health & Saf.Code, § 11359).   The trial court found he had a prior felony narcotics offense within the meaning of Health and Safety Code section 11370, subdivisions (a) and (c).

On August 19, 2009, the court denied probation and sentenced appellant to state prison for three years.   The court awarded appellant 44 days of presentence credit, consisting of 30 days of actual time credit and 14 days of conduct credit.   On appeal, appellant contends he is entitled to additional presentence conduct credit under the amendment to Penal Code section 4019.¹  Appellant also raises the issue that prospective-only application of the amendment violates equal protection principles.   We will affirm.

DISCUSSION

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 in August 2009, 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.   Applying this amendment retroactively, appellant argues he is entitled to 16 additional days of conduct credit.   We disagree and conclude the amendment applies prospectively only.²

Under Penal Code 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 otherwise.  [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 in that case based its conclusion that the section 3 presumption was rebutted 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.   Appellant cites People v. Sage (1980) 26 Cal.3d 498 (Sage ) in support of his equal protection argument.  Sage is inapposite, because it involved a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons.  (Id. at p. 508.)   The California Supreme Court found there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.”  (Ibid.) The purported equal protection violation at issue here is temporal, rather than based on defendant's status as a misdemeanant or felon.

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 a suspect class or a fundamental right does not violate the guarantee of equal protection if it bears a rational relationship to a legitimate public purpose].)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. 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, as is the case of People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963..  FN2. 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, as is the case of People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.