THE PEOPLE v. CARLOS MARTIN DeGUZMAN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Carlos Martin DeGuzman appeals from an order denying his motion to correct presentence credits.¹  We affirm the order.

FACTUAL and PROCEDURAL SUMMARY

Appellant appealed from the judgments in case Nos. NA075340 and YA069722, and, in DeGuzman I, we dismissed his appeal (see fn. 1, ante ).   On June 1, 2010, appellant filed in the trial court a “motion to correct presentence credits.”  (Capitalization omitted.)   In the written motion, appellant argued he was entitled to additional Penal Code section 4019 credit because the section, amended effective January 25, 2010, was retroactive and a failure to apply the amended section to his offenses would violate his rights to equal protection.   On June 1, 2010, the trial court denied appellant's motion without prejudice.

ISSUE

Appellant claims he is entitled to additional precommitment credit under Penal Code section 4019, as amended.

DISCUSSION

Appellant Is Not Entitled to Additional Precommitment Credit.

Appellant claims that, effective January 25, 2010, Penal Code section 4019 was amended (Stats.2009, 3d Ex.Sess.2009–2010, ch.   28X, § 50) to increase conduct credits for prisoners who (1) have not been required to register as a sex offender, (2) have not been committed for a serious felony, and (3) have not suffered a prior serious or violent felony conviction, with the result that, according to appellant, he is entitled to 525 days of custody credit and 525 days of conduct credit because the amendment applies retroactively to his offenses.

Our appellate courts have divided on the issue of whether the amended version of Penal Code section 4019 applies retroactively.   The issue is pending before our Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

We note that (1) the statute at issue amending Penal Code section 4019, pertaining to county jail inmates, also amended the law pertaining to prison credits with the result that county jail inmates, and state prison inmates, would receive enhanced conduct credit (on a one-to-one ratio), and (2) nothing in those provisions indicated the enhanced prison conduct credit applied retroactively, except for a single provision (Pen.Code, § 2933.3, subd. (d)) which expressly provided for limited retroactive application for a certain class of prisoners.

We conclude the Legislature thus knew how to signal an intent that enhanced conduct credit apply retroactively, and the Legislature's failure to include retroactive language regarding the enhanced conduct credit applicable to county jail inmates permits the inference the Legislature did not intend the amendment to Penal Code section 4019 to have retroactive effect as to those inmates.   Accordingly, we hold Penal Code section 4019 as amended effective in January 2010 does not apply retroactively to appellant's offenses;  therefore, he is not entitled to additional conduct credit.⁵  It follows the trial court did not err by denying appellant's motion to correct his presentence credits.

DISPOSITION

The order denying appellant's motion to correct his presentence credits is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. This is appellant's second appeal.   His first resulted in our order in People v. Carlos M. Guzman (Apr. 22, 2010, B215342) (DeGuzman I ), discussed post, in which we dismissed the appeal because his claims (unrelated to those in this appeal) attacked the validity of his pleas and he had failed to comply with Penal Code section 1237.5 and had failed to file a certificate of probable cause..  FN1. This is appellant's second appeal.   His first resulted in our order in People v. Carlos M. Guzman (Apr. 22, 2010, B215342) (DeGuzman I ), discussed post, in which we dismissed the appeal because his claims (unrelated to those in this appeal) attacked the validity of his pleas and he had failed to comply with Penal Code section 1237.5 and had failed to file a certificate of probable cause.

FN2. The offenses in case No. NA075340 were:  count 1 – second degree commercial burglary (Pen.Code, § 459), 16 counts of forgery (Pen.Code, § 470, subd. (d);  counts 2, 8, 11, 14, 17, 20, 23, 26, 29, 32, 34, 37, 40, 43, 46, & 49), 18 counts of forgery (Pen.Code, § 476;  counts 3–5, 7, 10, 13, 16, 19, 22, 25, 28, 31, 33, 36, 39, 42, 45, & 48), two counts of possession of methamphetamine (Health & Saf.Code, § 11377;  counts 6 & 66), 14 counts of grand theft of personal property (Pen.Code, § 487, subd. (a);  counts 9, 12, 15, 18, 21, 24, 27, 30, 35, 38, 41, 44, 47, & 50), 15 counts of identity theft (Pen.Code, § 530.5, subd. (a);  counts 51–65), three counts of grand theft (Pen.Code, § 484g, subd. (a);  counts 67–69), and count 70 – identifying information with a prior conviction (Pen.Code, § 530.5, subd. (c)(2)).   The record in case No. YA069722 reflects that in 2007, appellant possessed methamphetamine.   Unless otherwise indicated, subsequent factual references are to case No. NA075340..  FN2. The offenses in case No. NA075340 were:  count 1 – second degree commercial burglary (Pen.Code, § 459), 16 counts of forgery (Pen.Code, § 470, subd. (d);  counts 2, 8, 11, 14, 17, 20, 23, 26, 29, 32, 34, 37, 40, 43, 46, & 49), 18 counts of forgery (Pen.Code, § 476;  counts 3–5, 7, 10, 13, 16, 19, 22, 25, 28, 31, 33, 36, 39, 42, 45, & 48), two counts of possession of methamphetamine (Health & Saf.Code, § 11377;  counts 6 & 66), 14 counts of grand theft of personal property (Pen.Code, § 487, subd. (a);  counts 9, 12, 15, 18, 21, 24, 27, 30, 35, 38, 41, 44, 47, & 50), 15 counts of identity theft (Pen.Code, § 530.5, subd. (a);  counts 51–65), three counts of grand theft (Pen.Code, § 484g, subd. (a);  counts 67–69), and count 70 – identifying information with a prior conviction (Pen.Code, § 530.5, subd. (c)(2)).   The record in case No. YA069722 reflects that in 2007, appellant possessed methamphetamine.   Unless otherwise indicated, subsequent factual references are to case No. NA075340.

FN3. Appellant also pled guilty in case No. YA069722..  FN3. Appellant also pled guilty in case No. YA069722.

FN4. The court later sentenced appellant in case No. YA069722 to a concurrent two-year prison term..  FN4. The court later sentenced appellant in case No. YA069722 to a concurrent two-year prison term.

FN5. Nor did a solely prospective application of the amendment violate equal protection principles.  (Cf. In re Strick (1983) 148 Cal.App.3d 906, 909, 912–914;  In re Stinnette (1979) 94 Cal.App.3d 800, 804–806.).  FN5. Nor did a solely prospective application of the amendment violate equal protection principles.  (Cf. In re Strick (1983) 148 Cal.App.3d 906, 909, 912–914;  In re Stinnette (1979) 94 Cal.App.3d 800, 804–806.)

CROSKEY, Acting P. J. ALDRICH, J.