P. v. Soto
Filed 7/12/13 P. v. Soto CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MALIA SOTO,
Defendant and
Appellant.
H038355
(Monterey
County
Super. Ct.
No. SS112299A)
In this
appeal, Malia Soto (appellant) contends that a statutory amendment to Penal
Code section 4019, which provides for earning presentence conduct credits at
the rate of one day for every actual day served, must be applied to her, even
though she committed her crimes before the operative date of the
amendment. In addition, appellant contends
that the lower court erred in imposing a probation revocation fine (§ 1202.44)
that exceeded the restitution fine (§ 1202.4, subd. (b)) the court had
imposed. For reasons that follow, we
agree that the probation revocation fine must be reduced, but disagree that
appellant is entitled to the increased custody credits she seeks.
Facts and Proceedings Below
On February 17, 2012, the Monterey
County District Attorney filed an amended information in which appellant was
charged with pimping a minor over the age of 16 (§ 226h, subd. (b)(1),
count one), battery (§ 242, count two), conspiracy to commit the crime of
possessing or disseminating obscene material depicting a minor (§§ 182, subd.
(a)(1), 311.2 subd. (b), count three) and battery on a spouse or cohabitant (§
243, subd. (e), count four). All the
crimes were alleged to have occurred on or about September 1, 2011, through September 29, 2011.
Subsequently,
on March 22, 2012, in open court, the prosecutor moved to amend the charging
document to add one count of abusing or endangering the health of a child (§
273a, subd. (a), count five) and one count of possessing or controlling
materials depicting a minor engaging in sexual conduct or simulated sexual
conduct (§ 311.11, subd. (a), count six).
Appellant moved to withdraw her plea of not guilty. She entered into a plea agreement under the
terms of which she agreed to plead no contest to counts five and six in
exchange for a promised disposition of felony probation, with a four-year
eight-month prison term imposed, but with execution suspended, and the
dismissal of all the remaining charges.
constitutional rights and the consequences of her plea, appellant entered no
contest pleas to counts five and six.
On May 1,
2012, pursuant to the terms of the plea agreement, the court imposed but
suspended execution of the four-year eight-month prison term and placed
appellant on probation; the court ordered appellant to serve a 300-day county
jail sentence, awarded her 225 days of presentence credits consisting of 113
actual days and 112 days of conduct credits pursuant to section 4019. The court ordered that appellant pay a $240
restitution fine pursuant to section 1202.4, subdivision (b), and imposed but
suspended a probation revocation fine of $480 pursuant to section 1202.44. Subsequently, however, on May 10, 2012, over
appellant's objection, the court reduced appellant's custody credits to 181
days consisting of 121 actual days (as of the date of this hearing) and 60 days
of conduct credits pursuant to section 4019.
Appellant
filed a timely notice of appeal and sought and was granted a certificate of
probable cause.
Discussion
Custody Credits
Appellant
argues the trial court erred in restricting presentence conduct credits to 33
percent (one for two credits) because the October 2011 amendment to section
4019, which awards one for one credits applies to all the time she spent in
custody after the amendment's operative date.
appellant was arrested on January 26, 2012.
Certainly,
a criminal defendant is entitled to accrue both actual presentence custody
credits under section 2900.5 and conduct credits under section 4019 for a
period of incarceration prior to sentencing.
Conduct credits may be earned under 4019 by performing additional labor
(§ 4019, subd. (b)) and by an inmate's good behavior. (§ 4019, subd. (c).) In both instances, the section 4019 credits
are collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th
934, 939, fn. 3.) The court is charged
with awarding such credits at sentencing.
(§ 2900.5, subd. (a).)
Before
January 25, 2010, conduct credits under section 4019 could be accrued at the
rate of two days for every four days of actual time served in pre-sentence custody.
(Stats.1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f) ].) Effective January 25, 2010, the Legislature
amended Penal Code section 4019 in an extraordinary session to address the
state's ongoing fiscal crisis. Among
other things, Senate Bill No. 3X 18 amended section 4019 such that defendants
could accrue custody credits at the rate of two days for every two days
actually served, twice the rate as before except for those defendants required
to register as a sex offender, those committed for a serious felony (as defined
in § 1192.7), or those who had a prior conviction for a violent or serious
felony. (Stats.2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [former § 4019, subds.
(b), (c), & (f) ].)
Effective
September 28, 2010, Penal Code section 4019 was amended again to restore the
presentence conduct credit calculation that had been in effect prior to the
January 2010 amendments, eliminating one-for-one credits (hereafter the
September 2010 amendment, Stats. 2010, ch. 426, § 2). By its express terms, the newly created
section 4019, subdivision (g), declared these September 28, 2010 amendments
applicable only to inmates confined for a crime committed on or after that
date, expressing legislative intention that they have prospective application
only. (Stats. 2010, ch. 426, § 2.) This was the statute in place when appellant
committed her crimes on or between September 1, 2011, and September 29,
2011.
The current
version of section 4019 (hereafter October 1 amendment) was in effect and
operative beginning October 1, 2011, and at the time of sentencing in this case
on May 1, 2012. (Stats. 2011-2012, 1st
Ex. Sess., ch. 12, § 35, pp. 5976-5977, eff. Sept. 21, 2011, operative
Oct. 1, 2011.)
title="">[4] That section states in pertinent part
"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 § 4019, subds. (b)-(e).) This
award of custody credits is sometimes referred to as one-for-one credits. Nevertheless, subdivision (h) of section 4019
provides: "The changes to this
section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined to a county jail,
city jail, industrial farm, or road camp for a crime committed on or after
October 1, 2011. [Hereafter the first
sentence] Any days earned by a prisoner
prior to October 1, 2011, shall be calculated at the rate required by the prior
law." (Hereafter the second
sentence)
Appellant
argues that although the first sentence of subdivision (h) of section 4019
indicates that the October 1 amendment is to apply only to crimes committed
after October 1, 2011, the second sentence is inconsistent with this
construction. Appellant contends that in
order to give meaning to both sentences of this statute and to harmonize the
seemingly conflicting language, this court should hold that even where the
crime was committed prior to October 1, 2011, conduct credits for any time
spent in custody on or after October 1, 2011 should be calculated based on the
enhanced one-for-one credits. We are not
persuaded so to do.
"[I]n
reviewing the text of a statute, [courts] must follow the fundamental rule of
statutory construction that requires every part of a statute be presumed to
have some effect and not be treated as meaningless unless absolutely
necessary. 'Significance should be
given, if possible, to every word of an act.
[Citation.] Conversely, a
construction that renders a word surplusage should be avoided. [Citations.]'
[Citations.]" (
180.) In addition, "[w]hen a
statute is capable of more than one construction, ' "[w]e must
. . . give the provision a reasonable and commonsense interpretation
consistent with the apparent purpose and intention of the lawmakers, practical
rather than technical in nature, which upon application will result in wise
policy rather than mischief or absurdity." ' [Citations.]" (In re
Reeves (2005) 35 Cal.4th 765, 771, fn. 9.)
Finally, "under the traditional 'rule of lenity,' language in a
penal statute that truly is susceptible of more than one reasonable
construction in meaning or application ordinarily is construed in the manner
that is more favorable to the defendant.
[Citation.]" (
1277.)
"When
construing a statute, our primary task is to ascertain the Legislature's
intent. [Citation.] We begin our task by determining whether the
language of the statute is ambiguous.
[Citation.] A statutory provision
is ambiguous if it is susceptible of two reasonable interpretations. [Citation.]
' "If there is no ambiguity in the language, we presume the
Legislature meant what it said and the plain meaning of the
[Citation.]' [Citation.]" (People
v. Dieck, supra,
46 Cal.4th at pp. 939-940.)
Appellant
contends that had "the Legislature intended the law to apply exclusively
to crimes committed after its operative date, regardless of the time frame of
custody, it would have either left out the second sentence, or altered it to
make such an interpretation clear."
In
1546 (review den. Oct. 31, 2012), with respect to subdivision (h) of section
4019, the Fifth District Court of Appeal concluded: "[T]he Legislature's
clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits. So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant's crime is
committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced."
title="">[5] (Id.
at pp. 1553-1554.)
Appellant
submits that this court should reject the Ellis
court's reading of section 4019, since it ignores fundamental principles of
statutory construction, is self-contradictory, and is at odds with the
California Supreme Court's decisions in People
v. Brown (2012) 54 Cal.4th 314 (Brown)
and People v. Lara (2012) 54 Cal.4th
896.
The Court
of Appeal, Fourth District, Division 3, agrees with Ellis. In
Cal.App.4th 42 (Rajanayagam) (review
denied Feb. 13, 2013), the court rejected an argument that the second sentence
of section 4019, subdivision (h), "implies any days earned by a defendant
after October 1, 2011, shall be calculated at the rate required by the current
law, regardless of when the offense was
committed." (
interpretation would render meaningless the language in the first sentence (
to the accrual of presentence conduct credit "shall apply prospectively
and shall apply to prisoners who are confined to a county jail . . .
for a crime committed on or after October 1, 2011." (§ 4019, subd. (h).) Accordingly, the court concluded that
adopting the defendant's interpretation would violate an elementary rule
requiring courts, if possible, ascribe meaning to every word, phrase, and
sentence of a statute and to avoid interpretations that render some words
superfluous. (Rajanayagam, supra, 211
Cal.App.4th at p. 51.)
The
reflects the Legislature intended the enhanced conduct credit provision to
apply only to those defendants who committed their crimes on or after October
1, 2011. Subdivision (h)'s second
sentence does not extend the enhanced conduct credit provision to any other
group, namely those defendants who committed offenses before October 1, 2011,
but are in local custody on or after October 1, 2011. Instead, subdivision (h)'s second sentence
attempts to clarify that those defendants who committed an offense before
October 1, 2011, are to earn credit under the prior law. However inartful the language of subdivision
(h), we read the second sentence as reaffirming that defendants who committed
their crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law.
[Citation.] To imply the enhanced
conduct credit provision applies to defendants who committed their crimes
before the effective date but served time in local custody after the effective
date reads too much into the statute and ignores the Legislature's clear intent
in subdivision (h)'s first sentence."
(Id. at p. 52, fn. omitted.)
"It is
a settled principle of statutory construction, that courts should 'strive to
give meaning to every word in a statute and to avoid constructions that render
words, phrases, or clauses superfluous.'
[Citations.] We harmonize
statutory provisions, if possible, giving each provision full effect. [Citation.]" (In re
C.H. (2011) 53 Cal.4th 94, 103.)
As
confirmed by the Supreme Court in Brown,
supra, 54 Cal.4th 314, 322, footnote
11, the first sentence means just what it says, but the necessary corollary of
that sentence is that it does not apply to crimes committed prior to October 1,
2011; and the necessary implication is that for crimes committed prior to October
1, 2011, the statutory scheme that was displaced by the new terms of Penal Code
section 4019 continues to apply. It is
axiomatic that since the new credit scheme applies prospectively (per the first
sentence), everyone in jail prior to October 1, 2011, is there for a crime
committed prior to that date, and subject to whatever credit scheme was
operating at the time. However, to hold
that appellant is entitled to the benefit of the October 1 amendment for days
spent in custody after October 1, 2011, would require that we write an entire
sentence into section 4019. That is,
after the first sentence, we would have to add:
However, if a defendant has not been sentenced by October 1, 2011, for a
crime he or she committed before October 1, 2011, he or she is entitled to
one-for-one credits for any time spent in custody after that date up to and
including the date of sentencing.
Appellate courts may not
"rewrite the clear language of [a] statute to
broaden the statute's application." (In re David (2012) 202 Cal.App.4th
675, 682; See People v. Statum (2002) 28 Cal.4th 682, 692 [a court may
not rewrite a statute to conform to
a presumed intent that is not expressed].)
As confirmed by the Supreme Court in Brown,
the critical date in the statute is the date of the offense, and not the date
when the presentence custody is served.
(Id. at p. 322, fn. 11.)
A number of
courts have concluded that, as to crimes committed before October 1, 2011, the
current version of section 4019 is not applicable and former law governs
calculation of conduct credit. (
182, 186-187; Rajanayagam,
991, 993; People v. Ellis,
also People v. Kennedy (2012) 209
Cal.App.4th 385, 400.) We reach the same
conclusion. In so doing, we reject
appellant's claim that she is entitled to the enhanced one-for-one credits for
the time she spent in custody after October 1, 2011, up to and including the
day she was sentenced.
Probation Revocation
Fine
As noted, at sentencing, the
court imposed a restitution fund fine of $240, which is what the probation
officer's report had recommended.
name="_ftnref6" title="">[6] However, the court imposed but suspended a
probation revocation fine in the amount of $480; again, this was the amount
that was recommended by the probation officer.
Appellant
argues that the probation revocation fine must be reduced to $240. Respondent concedes the issue. We accept that concession.
Section
1202.44 provides, "In every case in which a person is convicted of a crime
and a conditional sentence or a sentence that includes a period of probation is
imposed, the court shall, at the time of imposing the restitution fine pursuant
to subdivision (b) of Section 1202.4, assess an addition probation revocation
restitution fine in the same amount as that imposed pursuant to subdivision (b)
of Section 1202.4."
As can be
seen, the statute requires a probation revocation fine in the "same
amount" as the restitution fine imposed pursuant to section 1202.4,
subdivision (b). Since the lower court
imposed a restitution fine of $240, the probation revocation fine must be
reduced to that amount.
The judgment (order of probation) is modified to reflect
the imposition of a $240 probation revocation fine. As so modified the judgment is affirmed.
______________________________
ELIA,
J.
WE CONCUR:
______________________________
RUSHING, P. J.
______________________________
PREMO, J.
name="_ftn1" title="">[1] All unspecified statutory references
are to the Penal Code.
name="_ftn2" title="">[2] Appellant was advised that she would
have to register as a sex offender.
