THE PEOPLE v. LUZON CAPIENDO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Before defendant and appellant Luzon V. Capiendo pleaded no contest to assault by means likely to produce bodily injury, he moved to withdraw his not guilty plea and to enter a new plea of not guilty by reason of insanity.   The trial court took the motion under submission, but before the court could rule on it, Capiendo entered into a plea agreement and was sentenced to six years in prison.   On appeal, he contends that the trial court abused its discretion by denying the motion.   He makes the additional contention that he is entitled to additional custody credits under Penal Code section 4019.¹  We agree that Capiendo is entitled to two more days of custody credits, but we disagree that any error occurred in connection with his request to enter a plea of not guilty by reason of insanity.   We therefore modify the judgment and affirm it as modified.

FACTS AND PROCEDURAL BACKGROUND2

I. Factual background.

On the morning of September 5, 2008, Cynthia Morales went to work, leaving Capiendo alone with their seven-month-old daughter.   When Morales's mother called her at work, Morales went home and found bruises and red marks on the baby's face.   Capiendo told an officer that he put his daughter in a closet and a ladder fell on her.   When she cried, he hit her with the palm of his hand, which he believed caused the injuries to her face.

II. Procedural background.

An information charged Capiendo with count 1, inflicting severe corporal punishment on a child (§ 273d, subd. (a)), and with count 2, assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)).   The information also alleged two prior strikes under the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).   On July 23, 2009, Capiendo pleaded no contest to count 2, assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)).   He also admitted a prior strike.   On September 3, 2009, the trial court sentenced Capiendo to the midterm of three years, doubled to six years.   He was awarded 544 days of custody credits (363 actual + 181 goodtime/work time).

DISCUSSION

I. Capiendo's request to enter a plea of not guilty by reason of insanity.

Capiendo contends that the trial court abused its discretion by refusing to allow him to amend his plea to add a plea of not guilty by reason of insanity.   We disagree.

The problem with Capiendo's contention is there was no “refusal” to allow the plea.   At a pretrial hearing on May 29, 2009, Capiendo, who was representing himself, asked the trial court to issue an order moving him to the medical unit in jail because he was starting to have “a lot of suicide issues.”   He told the court that he'd previously been on medication and had been to Patton and Norwalk State hospitals.   The prosecutor added that Capiendo had been sent to the hospital, but was found competent and sent back, although he cried and was mute when he returned.   The court issued an order for an examination, and Capiendo asked to be put in the “suicide tank.”

At the next hearing on July 23, 2009, Capiendo asked to withdraw his plea of not guilty and to enter a new plea of not guilty by reason of insanity.   The trial court initially denied the request, but when Capiendo reminded the court of his “extensive” history of mental health problems and of his time spent in state hospitals, the court then said it would take the issue under submission and discuss it at the next hearing.³  The court added that it didn't know if the motion was timely and that allowing the plea would necessitate a continuance, warning that if Capiendo was seeking to change his plea to get a continuance, the court would find the motion to be untimely.   The subject then changed to the People's plea offer of six years.   Capiendo agreed to plead to count 2 and to admit a prior strike, and he was later sentenced to the midterm of three years doubled, based on a strike.

Based on these facts, there was no “refusal” to allow Capiendo to plead not guilty by reason of insanity.   The further implication in the opening brief that the court refused to consider psychological reports before ruling on the motion is also inaccurate.   The trial court never ruled on the issue, instead taking it under submission.   But before the court could rule on it, Capiendo entered into the plea agreement.  “[W]here a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal.”   (People v. Brewer (2000) 81 Cal.App.4th 442, 461;  accord People v. Vargas (2001) 91 Cal.App.4th 506, 534, citing People v. Roberts (1992) 2 Cal.4th 271, 297 [“Because defendant failed to obtain a pretrial ruling on the issue and did not pursue his objection at trial, we will not address his contention, for it is procedurally barred”].)   By failing to seek a ruling on his motion to enter a plea of not guilty by reason of insanity before entering into the plea agreement, Capiendo waived or abandoned the issue.

Capiendo's response (contained in his reply brief) to his abandonment of the issue is that his request for a certificate of probable cause under section 1237.5 “was a request for a final ruling on the motion and the trial court's decision to grant the Certificate was, therefore, a final ruling denying the request as well as certifying it as an issue for appeal.”   A certificate of probable cause is required for an appeal that challenges the validity of a plea. (§ 1237.5.) ⁴ A certificate of probable cause cannot be used to circumvent the procedural requirement that a defendant obtain a ruling on a motion before the defendant can appeal from it.   The purpose of section 1237.5 is “ ‘to create a mechanism for trial court determination of whether an appeal raises any nonfrivolous cognizable issue, i.e., any nonfrivolous issue going to the legality of the proceedings․'  “ (People v. Brown (2010) 181 Cal.App.4th 356, 359, italics omitted.)   Its purpose is not to infer on appeal a ruling on a matter that was abandoned by a defendant in the trial court.

II. Custody credits.

Capiendo was arrested on September 5, 2008 and sentenced on September 3, 2009.   The trial court awarded 363 days of actual credit and 181 days of presentence conduct credit, for a total of 544 days.   He contends, first, that he is entitled to have his custody credits recalculated in accordance with the new version of section 4019.   Second, even if he isn't entitled to additional credits under that revised section, he is entitled to at least two additional days of credit.   We agree with the second contention.

A. The amendment to section 4019 is not retroactive.

Section 4019 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.  (People v. Dieck (2009) 46 Cal.4th 934, 939.)   A prisoner's good conduct time is deducted from his or her period of confinement. (§ 4019, subds.(b)(1) & (c)(1).)   In October 2009, the Legislature passed Senate Bill No. 18, which amended section 4019 to increase the number of presentence conduct credits available to eligible defendants.   The amended version of the law took effect on January 25, 2010.

Prior to the amendments, section 4019 allowed for six days of credit for every four days of custody.  (Former § 4019, subds. (b) & (c).)  Under the amended version of the law, an inmate earns credits at twice the previous rate, that is, one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment.⁵ (§ 4019, subds. (b)(1), (c)(1) & (f).⁶ )

Whether the amendment applies retroactively has been addressed in a number of published opinions and has divided the appellate courts.   One line of cases holds that the amendment to section 4019 has retroactive effect, and another line of authority holds that the amendment must be applied prospectively only.   The question is currently on review before our Supreme Court.⁷  We conclude that section 4019 does not operate retroactively, and accordingly Capiendo is not entitled to recalculation of his custody credits.

“To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration[.]”  (People v. Nasalga (1996) 12 Cal.4th 784, 792.)   The Legislature did not specify whether it intended the amendment to section 4019 to have retroactive application, and therefore, we consider other factors to determine legislative intent.  (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada ).)   Several factors inform our conclusion.  Section 3 of the Penal Code provides that “ ‘[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.’  “ (People v. Grant (1999) 20 Cal.4th 150, 156-157;  see also People v. Alford (2007) 42 Cal.4th 749, 753.)  Section 3 embodies a general rule of construction that “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent.”  (Estrada, at p. 746.)  Section 3 applies where, after considering all the pertinent factors, it is not possible to ascertain the legislative intent.  (Ibid.)

The leading case addressing the retroactive application of amendments to criminal statutes is Estrada.  Estrada held that when an amendatory statute lessens punishment and contains no savings clause, it operates retroactively in cases in which judgment was not final on the amendment's effective date.  (Estrada, supra, 63 Cal.2d at p. 748.)  Estrada concluded that an amendment reducing the penalty for the offense of escape should have retroactive effect.   The court reasoned:  “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.”  (Estrada, at p. 745.)   In other words, “ ‘[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law.’  “ (Ibid.) When a lesser penalty has been deemed sufficient to satisfy the public interest, the Legislature obviously intends that no prisoner remain subject to the original, greater penalty.  (Ibid.) “In such a situation[,] the rule of construction that statutes are normally to be interpreted to operate prospectively and not retroactively ․ has been rebutted.”  (Id. at p. 747.)

Estrada 's rationale does not readily fit the amendment to section 4019.   Unlike the law at issue in Estrada, the amendment to section 4019 does not lessen the penalty for a particular substantive crime, and consequently does not easily allow the inference of a legislative judgment that the “former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.”  (Estrada, supra, 63 Cal.2d at p. 745.)   The “primary purposes of conduct credits for prison inmates are to encourage conformity to prison regulations, to provide incentives to refrain from criminal, particularly assaultive, conduct, and to encourage participation in ‘rehabilitative’ activities.  [Citations.]”  (People v. Austin (1981) 30 Cal.3d 155, 163;  see also People v. Brown (2004) 33 Cal.4th 382, 405 [“section 4019[ ] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody”];  People v. Silva (2003) 114 Cal.App.4th 122, 128.)   Applying the amendment retroactively would not further the statutory objective of rewarding good behavior, in that it is not possible to influence behavior after it has occurred.   An increase in conduct credits is not, in our view, equivalent to a mitigation in punishment.

Further, the Legislature knew how to provide for retroactivity in the applicable legislation, where it so intended.   Senate Bill No. 18, the legislation that amended section 4019, expressly provided for retroactive application of another portion of the law, that is, enhanced conduct credits for prison inmates who complete training as firefighters after July 1, 2009. (§ 2933.3, subd. (d), as amended by § 41 of Sen. Bill No. 18.) By

expressly providing for limited retroactivity in section 2933.3, subdivision (d), it may reasonably be inferred that the Legislature intended that other changes to the presentence custody scheme would not operate retroactively.

In sum, pending resolution of the issue by our Supreme Court, we adopt the reasoning of the authorities that have concluded the amendments to section 4019 are not retroactive.

A. Capiendo is entitled to two more days of custody credits.

Under the version of section 4019 in effect when Capiendo was sentenced, the “proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder.   That whole-number quotient is then multiplied by two to arrive at the number of good/work credits.   Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits.”  (People v. Culp (2002) 100 Cal.App.4th 1278, 1283;  see also People v. Philpot (2004) 122 Cal.App.4th 893, 908.)

Capiendo was arrested on September 5, 2008 and sentenced on September 3, 2009.   He therefore had 364 days of actual custody.   Under the above formula, he was entitled to 182 days of additional credits, for a total of 546 days of custody credits (364 + 182).

DISPOSITION

Capiendo is entitled to a total of 546 days of custody credits.   The clerk of the superior court is directed to modify the abstract of judgment and to forward the amended abstract to the Department of Corrections.   The judgment is otherwise affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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

FN2. Because the factual background is not pertinent to the issue, we briefly state the facts, which are from the preliminary hearing.   Capiendo, as part of his plea bargain, also stipulated to the preplea report..  FN2. Because the factual background is not pertinent to the issue, we briefly state the facts, which are from the preliminary hearing.   Capiendo, as part of his plea bargain, also stipulated to the preplea report.

FN3. In his opening brief, Capiendo's appellate counsel states only that the trial court “disallowed” the plea of guilty by reason of insanity, neglecting to add that the court then said it would take the matter under submission.   The opening brief also incorrectly states that Capiendo's in propria persona status had been revoked at the time he entered the plea.   The reporter's transcript, however, shows that he was still representing himself..  FN3. In his opening brief, Capiendo's appellate counsel states only that the trial court “disallowed” the plea of guilty by reason of insanity, neglecting to add that the court then said it would take the matter under submission.   The opening brief also incorrectly states that Capiendo's in propria persona status had been revoked at the time he entered the plea.   The reporter's transcript, however, shows that he was still representing himself.

FN4. “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:  [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”.  FN4. “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met:  [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”

FN5. Prisoners who are required to register as sex offenders, who were committed for a serious or violent felony, or who have prior convictions for serious or violent felonies, are not eligible for increased credits under the amended version of the statute. (§ 4019, subds.(b)(2), (c)(2) & (f).).  FN5. Prisoners who are required to register as sex offenders, who were committed for a serious or violent felony, or who have prior convictions for serious or violent felonies, are not eligible for increased credits under the amended version of the statute. (§ 4019, subds.(b)(2), (c)(2) & (f).)

FN6. The amended version of section 4019, subdivision (b)(1) provides, in pertinent part:  “Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff․”The amended version of subdivision (c)(1) provides, in relevant part:  “Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff․”The amended version of subdivision (f) provides:  “It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody․”.  FN6. The amended version of section 4019, subdivision (b)(1) provides, in pertinent part:  “Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff․”The amended version of subdivision (c)(1) provides, in relevant part:  “Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff․”The amended version of subdivision (f) provides:  “It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody․”

FN7. The California Supreme Court has granted review in the following cases relating to the issue:  People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808;  People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963;  People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813;  People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808;  People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724;  People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260;  People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010;  People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010;  People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010..  FN7. The California Supreme Court has granted review in the following cases relating to the issue:  People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808;  People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963;  People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813;  People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808;  People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724;  People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260;  People v. Keating (2010) 185 Cal.App.4th 364, review granted September 22, 2010;  People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010;  People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010.

CROSKEY, Acting P. J. KITCHING, J.