Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA078623. Charles D. Sheldon, Judge.
Linda Alcado, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J
Joseff James Wright appeals from the judgment entered upon his convictions of one count of grand theft (Pen. Code, § 487, subd. (a), count 1), 21 counts of commercial burglary (§ 459, counts 2-6, 9-24) and two counts of forgery (§ 475, subds. (b) & (c), counts 7 & 8) upon his no contest plea. As to count 1, appellant admitted the special allegation that the amount of the property taken was over $50,000 (former § 12022.6. subd. (a)(1)), and, as to all counts, that he had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate state prison term of nine years, with 290 actual days of credit plus 144 days of conduct credit. Appellant contends that (1) imposition of the two prior prison term enhancements is unlawful, and those enhancements must be stricken, and (2) in light of the January 2010 amendment to section 4019, his presentence credits must be increased by 146 days. Appellant also requests that we correct the abstract of judgment to delete the section 12022.1 two-year enhancement because the trial court did not impose it.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 12022.6, subdivision (a)(1) was amended in 2007, effective January 1, 2008, to increase the $50,000 value of property taken to $65,000.
In appellant’s opening brief, he contends only that the prior prison term resulting from case No. SCD 183212 is unlawful. In a first supplemental brief, he adds that the prior prison term resulting from case No. SCD 183661 is also unlawful.
Appellant filed a second supplemental opening brief, raising the presentence credit issue.
We modify appellant’s presentence credits, remand for resentencing and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We only briefly allude to the facts pertaining to the charged offenses as they are not germane to the issues presented.
Facts
Between 2006 and 2008, appellant engaged in numerous fraudulent banking transactions, including opening various certificate of deposit accounts at banking institutions, with checks in amounts under $5,000 drawn on closed accounts, and then withdrawing the newly-deposited funds a day or two later at different branches of those banks.
No contest plea
On February 6, 2009, in return for a reduced maximum possible sentence of 10 years, appellant entered an open plea of no contest to 21 counts of commercial burglary (counts 2-6 and 9-24), one count of grand theft (count 1) and two counts of forgery (counts 7 & 8). Appellant also agreed to admit all of the alleged special allegations, including the allegations that he (1) had taken property worth in excess of $50,000 (§ 12022.6), (2) had suffered two prior prison terms (§ 667.5, subd. (b)); one a 2004 burglary conviction in case No. SCD 183212 and one a 2005 conviction for making, drawing or passing a worthless check (§ 476) in case No. SCD 183661, and (3) was on parole or bail at the time he committed the charged offenses within the meaning of section 12022.1. However, as discussed in part III, post, appellant inadvertently failed to admit the section 12022.1 allegation, which went unnoticed by the parties and the trial court. A prior strike allegation was stricken on the People’s motion.
Sentencing
At the sentencing hearing on February 26, 2009, the prosecution argued for the maximum of 10 years under the lid because there were numerous aggravating circumstances, including that appellant had an “extensive criminal history” and no circumstances in mitigation. Appellant advised the court that he did not suffer a prior prison term in case Nos. SCD 183212 and SCD 183661. He claimed that he was initially sentenced to prison in those matters but that the sentence was reversed on appeal, and on remand he was placed on probation. He stated: “The only thing is, that prison conviction is still on my record because that was the original sentence. So technically, I don’t have a prison prior anymore, because that sentence was recalled.”
After the argument was concluded, the trial court stated: “I have a maximum that I can give, and I am going to sentence you, minus-you take away whatever credits you earn.” It continued, “And I’m going to add up and see how I can get to this. The total of nine years in the Department of Corrections minus your credits. I have a maximum of ten. I’m giving nine minus your credits.” (Italics added.)
The trial court initially miscalculated the nine years by sentencing appellant to the high term of three years on count 2, one-third the midterm, or eight months, on each of counts 3 through 5, plus two years for the section 12022.1 allegation, and one year for one of the two prior prison terms. At the suggestion of the prosecutor, the trial court added the second prior prison term. It stayed sentence on count 1 pursuant to section 654 and sentenced appellant to concurrent terms of two years on each of the remaining convictions.
DISCUSSION
I. Propriety of prior prison term enhancements
A. Contentions
Appellant contends that the prior prison term enhancements resulting from his convictions in case Nos. SCD 183212 and SCD 183661 were unlawfully imposed. He argues that the prison sentences he received in those matters were overturned on appeal, and on remand, the trial court placed him on probation. Thus, proof of the element of the prior prison term enhancements that he serve a prison term is lacking.
The People contend that (1) appellant is precluded from asserting this claim because he failed to obtain a certificate of probable cause, and (2) his admission of the prior prison terms pursuant to the plea agreement waives the claim.
We conclude that appellant was required to obtain a certificate of probable cause and having failed to do so, this contention must be dismissed.
B. Certificate of probable cause
Section 1237.5 states the general rule that a defendant can appeal from a judgment of conviction upon a plea of guilty or nolo contendere only if the defendant files a statement under oath showing reasonable grounds going to the legality of the proceedings, and the trial court executes and files a certificate of probable cause for the appeal. (People v. Lloyd (1998) 17 Cal.4th 658, 663.) The purpose of this rule is to promote judicial economy by discouraging and weeding out frivolous and vexatious appeals that challenge convictions following guilty and no contest pleas. (People v. Buttram (2003) 30 Cal.4th 773, 781 (Buttram).)
Section 1237.5 states: “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.”
The only issues which may be raised on appeal from a conviction based on a guilty or no contest plea without obtaining a certificate of probable cause are claims relating to the validity of a search or seizure and issues relating to the court’s postplea determination of degree of crime and punishment to be imposed. (People v. Hoffard (1995)10 Cal.4th1170, 1178, fn. 6.) A postplea question not challenging the validity of a guilty plea is a noncertificate issue. (See People v. Mendez (1999) 19 Cal.4th 1084, 1100.) Issues going to the validity of the plea require compliance with section 1237.5. (Buttram, supra, 30 Cal.4th at p. 781.) We need not address a certificate issue raised by a defendant on appeal from a judgment of conviction based on a guilty plea when a certificate of probable cause has not been obtained. (See People v. Mendez, supra, at p. 1100.)
We must determine whether appellant’s challenge to the prior prison term enhancement is in substance a challenge to the validity of the plea, thereby requiring that he first obtain a certificate of probable cause. We are guided by the analysis in Buttram, in which our Supreme Court was presented with an appeal by the defendant from his convictions of two drug possession offenses on a negotiated guilty plea, in exchange for a promise that his sentence would not exceed six years. (Buttram, supra, 30 Cal.4th at p. 777.) The trial court sentenced him to the six-year maximum, after his request to initiate civil commitment proceedings to the California Rehabilitation Center was denied. The defendant appealed without obtaining a certificate of probable cause. (Id. atp. 779.)
The Supreme Court concluded that, “Unless it specifies otherwise, a plea agreement providing for a maximum sentence inherently reserves the parties’ right to a sentencing proceeding in which (1) as occurred here, they may litigate the appropriate individualized sentence choice within the constraints of the bargain and the court’s lawful discretion, and (2) appellate challenges otherwise available against the court’s exercise of that discretion are retained. An appellate challenge to the exercise of the discretion reserved under the bargain is therefore a postplea sentencing matter extraneous to the plea agreement.” (Buttram, supra, 30 Cal.4th at p. 777.) “[B]y negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit. Unless the agreement itself specifies otherwise, appellate issues relating to this reserved discretion are therefore outside the plea bargain and cannot constitute an attack upon its validity.” (Id. at p. 789.) “‘In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5 .’” (Id. at p. 781; italics added.)
We conclude that the logic of Buttram, under the unique facts presented here, mandates a result different than the result reached in that case: appellant’s challenge to the imposition of the prior prison term enhancements is tantamount to an attack on the plea agreement itself, thereby requiring a certificate of probable cause. In Buttram, the defendant raised a question on appeal regarding the propriety of the denial of his request for civil narcotic addiction proceedings. That request raised a matter not contemplated by the plea agreement or even considered in connection with it. Here, on the other hand, appellant challenges one of the underpinnings of the plea agreement which provided that appellant would plead no contest to all of the charges and admit all of the special allegations in return for capping his maximum sentence at 10 years, roughly 15 years less than the maximum to which he was subject. He now claims that there is insufficient evidence to support the enhancements he had agreed to admit.
Appellant received the benefit of his bargain by having had his term capped at the maximum of 10 years. Further, despite a lengthy criminal history and multiple incidents forming the basis of the 24 counts with which he is charged in this matter, he only received nine years. To now challenge the method chosen to reach the predetermined discretionary sentence of nine years is to “‘trifle with the courts by attempting to better the bargain through the appellate process.’” (Buttram, supra, 30 Cal.4th at p. 783.)
Because appellant’s challenge to the prior prison term enhancements is tantamount to a challenge to one of the underpinnings of the plea arrangement, appellant was required to obtain a certificate of probable cause in order to present this claim on appeal. Having failed to do so, his challenge to the prior prison term enhancement is dismissed.
Without regard to section 1237.5, after a guilty or no contest plea, issues going to guilt or innocence are not cognizable on appeal. (People v. Hoffard, supra, 10 Cal.4th at p. 1178.) Appellant’s challenge to the prior prison term enhancements amounts to a claim that there is insufficient evidence to support them. This is analogous to a challenge based upon guilt or innocence and is therefore not cognizable on this appeal. (See People v. Lobaugh (1987) 188 Cal.App.3d 780, 785.)
II. Additional work credits
A. Background
The offenses charged in this matter were committed between 2006 and 2008. Appellant was convicted by a no contest plea on February 6, 2009, and sentenced on February 26, 2009, to an aggregate state prison term of nine years and awarded 290 days of custody credit and 144 days of conduct credit. On January 25, 2010, while this matter was pending on appeal, section 4019 was amended to increase the presentence conduct credits to which a defendant is entitled. The amended statute contains no express statement making it retroactive nor does it contain a saving clause.
B. Contention
Appellant contends that he is entitled to the additional conduct credits provided in amended section 4019. (Stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50.) He argues that the amendment applies retroactively to all cases not yet final as of January 25, 2010, when the new statute became effective. Absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal. We agree.
C. Analysis
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 presentence credit are collectively called “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced, former section 4019 provided that he could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) Effective January 25, 2010, while this matter was pending on appeal, Senate Bill No. 3X 18 became effective, allowing a qualifying defendant to accrue conduct credits at a rate of four days for every four days served. (§ 4019, subd. (f).)
The question of whether amended section 4019 is to be applied retroactively to cases pending at the time it became effective has occupied the attention of several appellate courts, with no clear consensus on the answer. The cases holding that retroactive application of the amendment is proper include decision of the First Appellate District in People v. Norton (2010) 184 Cal.App.4th 408, and of Divisions Seven and Eight, Second Appellate District, in People v. Keating (2010) 185 Cal.App.4th 364 and People v. Bacon (2010) 186 Cal.App.4th 333, respectively. Cases holding that the amendment is only to be applied prospectively include the decisions of Division Four, Second Appellate District, in People v. Eusebio (2010) 185 Cal.App.4th 990 and of the Sixth Appellate District decision in People v. Hopkins (2010) 184 Cal.App.4th 615. We join the growing chorus of appellate decisions finding that the amendment is to be applied retroactively.
Recently, the California Supreme Court granted a hearing in two cases raising this issue, one which concluded that the amendment is to be applied retroactively and one which concluded otherwise. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) The Court has also begun granting petitions for hearing in other cases raising this issue and holding them for determination of the lead case. (People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183582; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808.)
When there is nothing to indicate a contrary legislative intent, the general rule regarding retroactivity is set forth in section 3. It provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Absent a contrary legislative intent, statutes are presumed to be prospective, not retroactive. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208.) “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Id. at p. 1209.)
But section 3 “‘is not a straightjacket’” and “‘should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent’ even if the Legislature has not expressly stated that a statute should apply retroactively.” (People v. Pelayo, supra, 184 Cal.App.4th at p. 486; In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Estrada created an exception to the general rule of prospective operation. “[W]here the amendatory statute mitigates punishment and there is no saving clause [requiring only prospective effect], the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Estrada, supra, at p. 748.) That is, it will apply to all judgments of conviction that are not yet final on direct review. (Id. at p. 744.) “When the Legislature amends a statute so as to lessen the punishment [without a declaration of prospective operation] 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.” (Id. at p. 745.) Where the amendatory statute mitigates punishment and there is no savings clause the rule is that the amended statute will apply retroactively. (Id. at p. 748; People v. Babylon (1985) 39 Cal.3d 719, 722 [“[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal”].)
The People claim that “it is not clear that a change in the accrual rate of conduct credits constitutes an ‘amendatory statute lessening punishment.’” It asserts that the legislative intent behind conduct credits is to incentivize good behavior. It was not a legislative determination that sentences were too severe, and therefore subject to the presumption of retroactivity set forth in Estrada. While the amendment in Estrada reduced the penalty for an offense, the People argue that the purpose of the increase in credits for good conduct is to incentivize good behavior. In our view, section 4019, as amended, is a statute lessening punishment, as it effectively operates to reduce the sentence of qualifying prisoners.
Two appellate decisions, long predating the current amendments to section 4019, have held that the Estrada exception applies to amendments awarding greater custody and conduct credits for presentence custody. (People v. Doganiere (1978) 86 Cal.App.3d 237, 239 [applying amendment liberalizing conduct credits and rejecting argument that Estrada does not apply because an amendment extending the opportunity to earn conduct credits is designed to control future behavior]; People v. Hunter (1977) 68 Cal.App.3d 389, 392 [construed amendment to section 2900.5 extending right to presentence custody credits as one lessening punishment].)
It is clear that the primary purpose of the amendment to section 4019 goes beyond incentivizing good behavior. Senate Bill No. 3X 18 explicitly states “[t]hat this act addresses the fiscal emergency declared by the Governor...” (stats. 2009, 3rd Ex. Sess. 2009-2010, ch. 28, § 50), indicating that the primary purpose of the amendment is to reduce the inmate population, and with it, the costs of prison operation. Applying it prospectively does not address the fiscal emergency declared by the Governor. As to the purpose of dealing with the fiscal emergency, applying the amendment retroactively will allow inmates to more quickly earn their release and therefore lower the prison costs.
It is also noteworthy that the Legislature included a saving clause in section 2933.3, subdivision (d), [providing additional custody credits for prison inmate firefighting training or service only for those eligible after July 1, 2009] amended by the same legislation. The inclusion of a savings clause in that section but not in the amendment to section 4019 supports an inference that the Legislature had a different intent with respect to the retroactive application of the two provisions.
III. Correction of abstract of judgment
Appellant requests that we correct the abstract of judgment to delete the entry of the two-year enhancement pursuant to section 12022.1. He argues that that enhancement was never imposed by the trial court. We disagree that the trial court did not impose that enhancement. However, a review of appellant’s plea hearing reveals that he never admitted the section 12022.1 enhancement, requiring that this matter be remanded for resentencing.
At the hearing on February 6, 2009, pursuant to a plea agreement in which appellant would face a maximum sentence of 10 years and would plead to all of the charges and allegations, he pled no contest to all of the charges. He initially also admitted all of the prior convictions for purposes of section 1203, subdivision (e)(4) and 667.5 subdivision (b). The trial court then began discussing a date for sentencing when defense counsel pointed out that the sections 12022.1 and 12022.6 allegations “got lost in the shuffle” and were not admitted by appellant. The prosecutor proceeded to take appellant’s admission of the section 12022.6 allegation, again, apparently inadvertently, failing to take his admission of the section 12022.1 allegation.
At the sentencing hearing, in attempting to achieve the nine-year sentence, which the trial court said was appropriate, it initially imposed the high term of three years on count 2, one-third the midterm, or eight months each on counts 3 through 5, plus two years for the section 12022.1 enhancement, and one year for one of the prior prison term enhancements totaling only eight years. The miscalculation apparently occurred because the trial court incorrectly stated that the high term on count 2 and one-third the midterm on counts 3 through 5, totaled six years, instead of the five years it actually totaled.
Later in the hearing, the prosecutor stated, “Your Honor, just to make the record clear, other than the 667.5(b), we do need the PC 12022.6(a)(1) to get to the nine years, as well.” The trial court stated, “I have to impose a sentence to go with the 12022.” The trial court did not specify whether it was referring to section 12022.6 or section 12022.1. The prosecution suggested that instead of the original calculation which used only one prior prison term enhancement, the trial court should use both prison term enhancements, thereby adding a second one-year prior prison term enhancement.
Because the record is unclear as to precisely how the sentence was calculated and it appears to be based on imposition of the section 12022.1 enhancement which was never admitted by appellant, this matter must be remanded to the trial court for resentencing.
DISPOSITION
The appeal as to appellant’s challenge to the imposition of the one-year prior prison term enhancements is dismissed. The presentence conduct credits are modified to award appellant 290 days of conduct credit, in lieu of the previously awarded conduct credit of 144 days. Additionally, custody credit must be awarded for the days between the date of the initial sentencing and his resentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 40.) The matter is remanded for resentencing, and the judgment is otherwise affirmed. On remand, the trial court is directed to prepare a corrected abstract of judgment to reflect these changes.
We concur DOI TODD Acting P. J., J.CHAVEZ