People v. Brown , 182 Cal. App. 4th 1354 ( 2010 )

182 Cal. App. 4th 1354 (2010)

THE PEOPLE, Plaintiff and Respondent,
v.
JAMES LEE BROWN III, Defendant and Appellant.

No. C056510.

Court of Appeals of California, Third District.

March 16, 2010. CERTIFIED FOR PARTIAL PUBLICATION^[*]

Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HULL, J.—

Defendant James Lee Brown III appeals from his conviction for selling methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In the published portion of this opinion, we conclude defendant is entitled to the retroactive benefit of an amendment to Penal Code section 4019 that went into effect after he was sentenced but before his conviction became final. (Further undesignated section references are to the Penal Code.) That amendment provides for enhanced presentence conduct credits for certain classes of offenders. In the unpublished portion of the opinion, we agree with defendant the abstract of judgment must be corrected to delineate the specific fines and fees imposed, but reject defendant's other contentions of judicial misconduct, prosecutorial misconduct, and sentencing error. We therefore affirm the judgment but remand with directions to provide a detailed recitation of the fines and fees imposed and to correct the abstract of judgment.

FACTS AND PROCEEDINGS

Between May and August 2006, at the invitation of the tribe, a law enforcement task force conducted an ongoing undercover drug buy program at a tribal casino near Susanville. Agent Lucy Villones was part of the task force. In her role, Villones would go to the casino and pose as a patron. She would generally sit next to other casino patrons and engage them in small talk. Sometimes she was directed by Marvin Clark, a local officer experienced in recognizing local drug dealers, to target specific people. Eventually she would ask the target if he or she knew where she could "get a little something." Consistent with the approach of drug users and dealers, Villones avoided naming a specific drug in these conversations.

Villones was working at the casino on August 11, 2006, and August 12, 2006. She was wearing hidden video and audio monitoring equipment. Parole agent Clark was monitoring the interactions on the casino video surveillance system. About 2:00 a.m., Villones started talking with Lisa Nunes, a target. Villones had known Nunes for about one month and had previously purchased narcotics from her. Villones asked Nunes if she could "get me something today?" Nunes replied she knew where to get something. Villones followed her, and Nunes made a phone call. Nunes reported, "My friend's got company, so we can't do anything now." Villones told Nunes she would be around if Nunes could find something for her, and Nunes walked away.

A few minutes later, Nunes returned to Villones with defendant. Villones had met defendant earlier in the buy program and had been directed to speak with him by Clark. On those earlier occasions, she had asked him if he knew where she could get something to party with and he said "No." He appeared unapproachable. This time, defendant asked Villones what she wanted and she answered, "Whatever you can get," "maybe a gram." He asked her to go to an apartment and she told him she could not leave the casino. Defendant explained he needed to leave the casino, because he did not want to do anything on the reservation and possibly lose his gambling privileges. Defendant walked away, made a cell phone call and motioned for Nunes to join him. Nunes joined defendant and, in a few minutes, Nunes returned to Villones and told her the cost would be $80. Nunes also assured Villones the quality of defendant's drugs would be superior to the other drug dealer's. Nunes told Villones they had to walk to the store at the gas station to get the drugs and Villones reiterated she would not leave the casino. Nunes agreed to handle the transaction for Villones, for a payment of $1.00. Villones gave Nunes the money and Nunes and defendant left the casino together.

Defendant and Nunes went to a minimart near the gas station. A red car drove up and defendant went up to the car and spoke with the passenger, James Mayberry. Defendant and Mayberry went into the store together. Shortly thereafter, Mayberry left the store alone, got back in the car, and left the gas station. Defendant and Nunes left the store and walked back to the casino. On the way, defendant handed Nunes something, which she put in her pocket.

About 15 minutes after they left the casino, Nunes and defendant returned. Defendant walked past Villones and Nunes delivered 0.5 grams of methamphetamine to Villones.

Defendant was later arrested and interviewed by Officer Martin. Officer Martin asked defendant if he remembered participating in a drug sale with Nunes. Defendant replied, "I know she come up to—[Nunes] come up saying, `Could you hook, could you hook a friend up?'" Martin then asked defendant if, when he and Nunes went to the minimart, a red car had pulled in, "offloaded the dope" to him which he then handed to Nunes to make the deal with Villones. Defendant answered, "I think that's the way, I guess. I just give it to—what's her name? . . . She asked me and I gave it to her. I don't remember the rest of it. I don't know if I went back into the casino at that point."

Defendant and Mayberry testified that defendant wanted Mayberry to meet a girl. Mayberry's roommate, Jeremy Hughes, agreed to drive Mayberry to the casino in his red car. On his way to meet the girl, Mayberry stopped at the convenience store to buy cigarettes. They ran into defendant at the store and defendant told Mayberry the girl was in the store. They went in the store together and Mayberry bought cigarettes. Mayberry did not meet the girl because she was in the bathroom, but told defendant to give her his phone number. He wrote the number down and handed it to defendant. Defendant handed that number to Nunes on their walk back to the casino. Defendant believed Nunes had drugs on her, but denied that he had received any drugs or given Nunes any drugs. He remembered speaking with Villones and her referencing $80, but he walked away, not knowing what she was talking about.

Nunes had previously gotten drugs from defendant. That night, she asked defendant if he could procure $50 worth of methamphetamine and he said he could. The two went to the gas station; defendant met with someone, got methamphetamine, and gave it to her. He did not try to introduce her to a man.

Defendant was charged with, and a jury found him guilty of, one count of selling methamphetamine. He was sentenced to the midterm of three years in state prison.

Defendant appealed, contending the trial court improperly coerced the jury into reaching a verdict, the prosecutor engaged in misconduct during closing argument, the trial court abused its discretion in imposing a midterm sentence and punishing defendant for having gone to trial, and the abstract of judgment must be corrected to delineate the specific fines and fees imposed. In an opinion filed on January 13, 2010, we agreed with defendant on the latter point but otherwise affirmed the judgment. (People v. Brown (Jan. 13, 2010, C056510) [nonpub. opn.].)

On January 29, 2010, defendant filed a petition for rehearing, arguing he is entitled to the benefit of an amendment to section 4019 that went into effect on January 25, 2010, and provides for enhanced presentence conduct credits. We granted the petition and vacated our January 13, 2010, decision.

DISCUSSION

I-IV^[*]

V

Section 4019

(1) A defendant sentenced to state prison following a criminal conviction is entitled to credit against the sentence imposed for all days spent in custody prior to sentencing, including days served as a condition of probation. (§ 2900.5, subd. (a).) In addition, the defendant may be entitled to conduct credits pursuant to section 4019.

(2) Prior to January 25, 2010, subdivisions (b) and (c) of section 4019 provided that "for each six-day period in which a prisoner is confined in or committed to" a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) of section 4019 provided that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.)

(3) In October 2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18) which, among other things, amended section 4019. Senate Bill 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate for all prisoners except those "required to register as a sex offender," "committed for a serious felony, as defined in Section 1192.7" or who have a prior conviction for a serious or violent felony. (§ 4019, subd. (b)(2); see also id., subd. (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) New subdivisions (b)(1) and (c)(1) of section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), "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 . . . ." (§ 4019, subd. (f); see also Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Senate Bill 18 went into effect on January 25, 2010.

Defendant here served a total of 62 days in presentence confinement. In addition to these 62 days, defendant was awarded conduct credits under former section 4019 of 30 days. Defendant contends he is entitled to the enhanced credits provided under Senate Bill 18. He has no prior convictions, is not required to register as a sex offender, and the current offense is not a serious felony under section 1192.7. Under revised section 4019, defendant would be entitled to two days of conduct credit for every two days of actual custody. Defendant argues he is entitled to the benefit of a statutory amendment that reduces punishment or increases credits unless the legislation contains a savings clause making it applicable prospectively only. He argues Senate Bill 18 contains no such savings clause.

(4) The People respond that Penal Code amendments are presumed to operate prospectively unless the Legislature specifies otherwise and that presumption has not been rebutted here. Section 3 states that no part of the Penal Code is retroactive "unless expressly so declared." The People acknowledge that in In re Estrada (1965) 63 Cal. 2d 740 [48 Cal. Rptr. 172, 408 P.2d 948] (Estrada), the California Supreme Court created an exception to section 3 for statutory amendments that reduce punishment for a particular crime. According to the high court: "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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (63 Cal.2d at p. 745.)

The People contend "it is not clear that a change in the accrual rate of conduct credits constitutes an `amendatory statute lessening punishment'" subject to the presumption of retroactivity recognized in Estrada. They argue an amendment increasing conduct credits is not intended to reduce punishment but to increase the incentive for good behavior. Therefore, the rationale of Estrada—that the Legislature has determined the former punishment was too severe—does not apply. They argue the purpose of encouraging good behavior is not served by awarding additional credits for conduct that has already occurred.

(5) The question before us is one of legislative intent. (People v. Floyd (2003) 31 Cal. 4th 179, 184 [1 Cal. Rptr. 3d 885, 72 P.3d 820]; Estrada, supra, 63 Cal.2d at p. 744.) Where the Legislature expressly states its intent that an enactment be applied retroactively or prospectively, we need look no further. The question then becomes whether the stated intent otherwise violates a provision of the state or federal Constitution.

Senate Bill 18 contains no express statement of intent. We must therefore look elsewhere. We begin with the two alternate presumptions discussed above. If the amendment is a reduction in punishment, Estrada requires that we presume retroactive application, at least as to cases not yet final on the effective date. (See In re Moreno (1976) 58 Cal. App. 3d 740, 742 [130 Cal. Rptr. 78].) For all other amendments, section 3 requires that we presume prospective application. However, in either case, the presumption may be rebutted by evidence demonstrating a contrary intent.

In People v. Hunter (1977) 68 Cal. App. 3d 389 [137 Cal. Rptr. 299] (Hunter), the Court of Appeal considered an amendment to section 2900.5 allowing for an award of presentence custody credits. The legislation contained no express statement of retroactive or prospective application. (68 Cal.App.3d at p. 392.) The court concluded the amendment "must be construed as one lessening punishment" within the meaning of Estrada. (Id. at p. 393.) According to the court: "True, Estrada deals with a statute which lessens the maximum sentence for a particular crime while the amendment to section 2900.5 concerns credit against a lesser sentence imposed as a condition of probation. But in the circumstances which we here consider, the distinction is without legal significance." (Ibid.)

The People argue Hunter is distinguishable, because it dealt with actual custody credits rather than conduct credits. According to the People, this distinction is significant, because the purpose of awarding actual credits is to reduce the remaining punishment imposed, whereas the purpose of awarding conduct credits is to create an incentive for good behavior. According to the People, that purpose is not served by awarding credits for past conduct. Hence, so the argument goes, the reasoning of Estrada does not apply.

However, in People v. Doganiere (1978) 86 Cal. App. 3d 237 [150 Cal. Rptr. 61] (Doganiere), the Court of Appeal applied Estrada to an amendment involving conduct credits. In that case, the People raised the same argument asserted here—that Estrada does not apply because an amendment extending the opportunity to earn conduct credits is designed to control future behavior. (Id. at p. 239.) Although the court found the argument interesting, it was not persuaded. (Ibid.) The court explained: "Under Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe." (Id. at p. 240.)

The People assert that the reasoning of Doganiere is unsound. They argue "[t]he awarding of conduct credit was not a legislative determination that sentences were too severe, rather, it was a legislative determination that motivating and incentivizing good behavior would help to maintain discipline and minimize threats to prison and jail security."

According to the People, the opposite result was reached in In re Stinnette (1979) 94 Cal. App. 3d 800 [155 Cal. Rptr. 912] (Stinnette). In Stinnette, the Court of Appeal considered an amendment to section 2931 under the Determinate Sentencing Act (DSA) allowing for prisoners to earn conduct credits but restricting application of the amendment to time served after the effective date. However, the Stinnette court did not address the question whether it must be presumed the Legislature intended retroactive application. The DSA expressly provided for prospective application. The issue in Stinnette was whether this prospective application violated equal protection. The court concluded it did not, because there was a rational basis for treating those who had already begun serving their sentences differently from those who began serving their sentences after the effective date. (94 Cal.App.3d at pp. 805-806.)

The People further argue that, even if we presume retroactive application, such presumption is rebutted by the underlying purpose of Senate Bill 18. They argue that purpose is twofold: to address budgetary concerns by reducing prison populations, and to create further incentives for good behavior. The People argue the first purpose is served by either retroactive or prospective application, but the second purpose is served only by prospective application. According to the People, if the Legislature's only concern was budgetary, it could have served that purpose more directly by granting additional credits to all prisoners, regardless of conduct.

According to the People, their interpretation is supported by other provisions of Senate Bill 18. Section 39 of the act amends Penal Code section 2933.05 to allow for up to six weeks of credit for participation in certain rehabilitation programs. (Stats. 2009, 3d Ex. Sess., ch. 28, § 39.) Section 41 of the act amends Penal Code section 2933.3 to allow for additional credits for participation in a firefighting or conservation camp program. (Stats. 2009, 3d Ex. Sess., ch. 28, § 41.) Senate Bill 18 also contains provisions requiring counties to develop and implement programs to reduce recidivism. (Stats. 2009, 3d Ex. Sess., ch. 28, § 36.) According to the People, these provisions demonstrate the Legislature sought to reduce prison populations while at the same time minimizing security risks by allowing early release only of "those prisoners who have demonstrated an ability to safely re-enter society, i.e., those with consistently good behavior, and those who have dedicated themselves to vocational pursuits."

However, the People's argument cuts both ways. If the intent of the Legislature was to reduce prison populations, but to do so responsibly by providing early release only for less serious offenders who have demonstrated good behavior, that purpose can also be served by retroactive application of revised section 4019. Rather than simply granting additional credits to all prisoners, as the People suggest might have been done if the Legislature's only concern was budgetary, Senate Bill 18 increased credits only for those prisoners who earned them. In other words, only those prisoners who have demonstrated good behavior, both in the past and going forward, would be entitled to the enhanced credits.

Furthermore, the People's argument overlooks the fact that amended section 4019, if applied prospectively, would provide additional credits for past behavior. A prisoner sentenced shortly after the effective date of Senate Bill 18 would be granted the enhanced benefits notwithstanding the fact much of his or her presentence custody occurred before the effective date and therefore at a time when the additional incentives were not in place.

(6) In our view, the present matter is governed by Estrada. Whatever the ultimate purpose or purposes of the amendment to section 4019, the effect of the amendment is to reduce the overall time of imprisonment, and, thus, the punishment, for those less serious offenders who have demonstrated good behavior while in custody. A prisoner released from prison one day sooner has been punished one day less in prison than he would have been had there not been a change in the law. This conclusion is consistent with other provisions of the legislation intended to provide additional means of reducing prison population and with the overall intent of the Legislature to address the state's fiscal emergency. (See Stats. 2009, 3d Ex. Sess., ch. 28, § 62.)

We recognize that, in Estrada, the Legislature's stated purpose in passing the law there at issue was to lessen the punishment for certain crimes. The Legislature has not been as direct in making its purposes known here. Even so, it appears to us that the Legislature plainly did intend with this legislation to ease budgetary concerns by reducing the prison population. To accomplish this, the Legislature reduced the total term of imprisonment by increasing conduct credits which necessarily reduces the punishment for certain crimes. The holding in Estrada logically applies here.

However, even without the presumption of retroactivity, a legislative intent that revised Penal Code section 4019 be applied retroactively might reasonably be inferred from section 59 of Senate Bill 18. It reads: "The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable." (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.) Arguably, if the Legislature did not intend retroactive application, it would not have been concerned with "delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act." (Ibid., italics added.)

The People contend the foregoing provision refers to a different portion of Senate Bill 18. In section 41 of Senate Bill 18, the Legislature amended Penal Code section 2933.3 to allow for enhanced credits for those inmates who have completed training for assignment to a conservation camp or as an inmate firefighter or who have been actually assigned as inmate firefighters. (Stats. 2009, 3d Ex. Sess., ch. 28, § 41.) Subdivision (d) of revised section 2933.3 reads: "The credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009." (Pen. Code, § 2933.3; see also Stats. 2009, 3d Ex. Sess., ch. 28, § 41.) The People argue the foregoing subdivision (d) is an express indication of retroactivity to which section 59 of Senate Bill 18 was intended to apply.

However, while the People are clearly correct that section 59 of Senate Bill 18 applies to any recalculations required by the amendment to Penal Code section 2933.3, this does not preclude application of the provision to the amendment of Penal Code section 4019, or other amendments in Senate Bill 18, as well. Arguably, if the Legislature had intended section 59 to apply only to one amended provision in Senate Bill 18, it is reasonable to assume it would have placed that section with the single amendment, rather than at the end of the overall enactment. At any rate, while section 59 of Senate Bill 18 is certainly not an ironclad statement of legislative intent, it does provide some insight into what the Legislature sought to accomplish.

(7) Senate Bill 18 "addresses the fiscal emergency declared by the Governor by proclamation on December 19, 2008." (Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Its provisions provide various means by which prison populations may be reduced, thereby easing prison overcrowding and lowering cost. Prior to the effective date of Senate Bill 18, section 4019 provided incentive for good behavior. Although the amendment to section 4019 effected by Senate Bill 18 provides further incentive, it is obvious the true intent of the legislation was to reduce the time in prison for eligible defendants. As such, it must be presumed the legislation was intended to be applied retroactively (Estrada, supra, 63 Cal.2d at p. 748), unless a contrary intent is indicated. Rather than demonstrating a contrary intent, section 59 of Senate Bill 18, along with the overall purpose of the legislation, suggests the Legislature intended that the amendment to Penal Code section 4019 be applied retroactively, at least as to those eligible defendants whose convictions were not final on the effective date. Therefore, we conclude defendant is entitled to the additional conduct credits provided by amended section 4019. Because defendant served 62 days of presentence custody, he is entitled to 62 days of conduct credits.

DISPOSITION

The judgment of conviction is affirmed. However, the matter is remanded to the Lassen County Superior Court with instructions to provide a detailed recitation of all fees, fines and penalties on the record and to amend the abstract of judgment to reflect these fees, fines and penalties as well as an increase in presentence conduct credits to 62. A certified copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.

Sims, Acting P. J., and Butz, J., concurred.

NOTES

[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I through IV of the Discussion.

[*] See footnote, ante, page 1354.