People v. Brown

Filed 6/18/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S181963

v. )

) Ct.App. 3 C056510

JAMES LEE BROWN III, )

) Lassen County

Defendant and Appellant. ) Super. Ct. No. CR024002

____________________________________)

Since 1976, Penal Code section 40191 has offered prisoners in local custody

the opportunity to earn “conduct credit” against their sentences for good behavior.

Conduct credits encourage prisoners to conform to prison regulations, to refrain

from criminal and assaultive conduct, and to participate in work and other

rehabilitative activities. (People v. Austin (1981) 30 Cal.3d 155, 163.) For eight

months during 2010, a now-superseded version of section 40192 that was enacted

during a state fiscal emergency temporarily increased the rate at which local

prisoners could earn conduct credits. We granted review to decide whether this

former statute (hereafter former section 4019) retroactively benefits prisoners who

1 (Stats. 1976, ch. 286, § 4; all further citations to statutes are to the Penal

Code, except as noted.)

2 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50, subsequently amended by Stats.

2010, ch. 426, § 2, Stats. 2011, ch. 15, § 482, Stats. 2011, ch. 39, § 53, and Stats.

2011, 1st Ex. Sess., ch. 12, § 35.)

1

served time in local custody before January 25, 2010, the date on which it became

operative.3 We hold that former section 4019 applied prospectively, meaning that

qualified prisoners in local custody first became eligible to earn credit for good

behavior at the increased rate beginning on the statute‟s operative date. We also

hold that the equal protection clauses of the federal and state Constitutions (U.S.

Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) do not require retroactive

application.

I. BACKGROUND

Defendant James Lee Brown III was convicted of selling methamphetamine,

a controlled substance (Health & Saf. Code, § 11379, subd. (a)), and sentenced to

three years in state prison. The court awarded defendant a total of 92 days of

credits, representing 62 days of credits for actual time spent in local custody

awaiting trial and sentencing (§ 2900.5, subd. (a)) and 30 days of conduct credits

for good behavior (§ 4019). The version of section 4019 in effect during

defendant‟s local custody, and also on the date he was sentenced, entitled him to

two days of conduct credit for every four days spent in local custody.4 Defendant

was sentenced and committed to state prison on July 24, 2007.

3 Former section 4019 remained in effect only until September 28, 2010,

when the Legislature further amended the statute to restore the original, lower

credit-earning rate. (Stats. 2010, ch. 426, § 2.) Thereafter, the Legislature

amended the statute yet again to raise the rate. (Stats. 2011, ch. 15, § 482,

eff. April 4, 2011.)

4 The relevant language of the version of section 4019 in effect during 2007

provided: “It is the intent of the Legislature 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.” (§ 4019, subd. (f), as amended by Stats. 1982, ch. 1234,

§ 7, p. 4554, italics added [subsequently amended as noted ante, at p. 1, fn. 2].)

2

On October 11, 2009, the Governor signed the bill enacting former section

4019, operative January 25, 2010, increasing the rate at which prisoners in local

custody could earn conduct credits for good behavior. Under the new formula,

eligible prisoners could earn two days of conduct credit for every two days spent

in local custody.5 The Court of Appeal affirmed defendant‟s conviction on

January 13, 2010. On January 29, 2010, four days after former section 4019 took

effect, defendant filed a petition for rehearing claiming additional conduct credits

under the statute. The Court of Appeal granted the petition, vacated its earlier

decision, and issued a new decision on March 16, 2010, awarding defendant

additional conduct credits, retroactively covering the entire 62 days he had spent

in local custody some two and one-half years earlier (from May 23, 2007 to July

24, 2007) before being committed to state prison.

We granted respondent‟s petition for review challenging the Court of

Appeal‟s decision to apply former section 4019 retroactively. In his answer,

defendant raised an additional issue (see Cal. Rules of Court, rule 8.504(c),

arguing that equal protection also requires retroactive application. Respondent,

who agrees we should decide the additional issue, argues to the contrary. We

address that issue as well. (Id., rule 8.516 (b)(1).)

5 The relevant language of former section 4019 provided: “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

. . . .” (Former § 4019, italics added.)

Prisoners who were required to register as sex offenders, had been

committed for serious felonies, or had prior convictions for serious or violent

felonies, were not eligible for credit at the increased rate. (Former § 4019,

subds. (b)(2), (c)(2).) The Legislature deleted these restrictions in 2010. (See

Stats. 2010, ch. 426, § 2.)

3

II. DISCUSSION

A. Statutory Construction

1. Section 3 and the Presumption that Statutes Operate Prospectively.

Whether a statute operates prospectively or retroactively is, at least in the

first instance, a matter of legislative intent. When the Legislature has not made its

intent on the matter clear with respect to a particular statute, the Legislature‟s

generally applicable declaration in section 3 provides the default rule: “No part of

[the Penal Code] is retroactive, unless expressly so declared.” We have described

section 3, and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code

Civ. Proc., § 3), as codifying “the time-honored principle . . . that in 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 . . . must have intended a

retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188,

1208-1209 (Evangelatos); see also id., at p. 1208 [requiring “ „express language or

[a] clear and unavoidable implication [to] negative[] the presumption‟ ”].) In

applying this principle, we have been cautious not to infer retroactive intent from

vague phrases and broad, general language in statutes. (Californians for Disability

Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 229-230; see Evangelatos, at

p. 1209, fn. 13.) Consequently, “ „a statute that is ambiguous with respect to

retroactive application is construed . . . to be unambiguously prospective.‟ ”

(Myers v. Phillip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841, quoting

I.N.S. v. St. Cyr (2001) 533 U.S. 289, 320-321, fn. 45.)

These principles require us to reject defendant‟s argument that former section

4019 applies retroactively as a matter of statutory construction. The statute

contains no express declaration that increased conduct credits are to be awarded

retroactively, and no clear and unavoidable implication to that effect arises from

4

the relevant extrinsic sources, i.e., the legislative history. Before addressing these

points in detail, we briefly review that history.

On December 19, 2008, the Governor exercised his constitutional powers to

declare a fiscal emergency and to call the Legislature into special session to

address the emergency. (Governor‟s Exec. Order No. S-16-08 (Dec. 19, 2008);

see Cal. Const., art. IV, § 10, subd. (f)(1).) The bill that would become former

section 4019 (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.)) was introduced and

passed in special session for that purpose. Much of the lengthy bill was directed to

measures that would save the state money by reducing jail and prison populations.

Increasing the rate at which prisoners in local custody could earn conduct credits

was one such measure.6 As mentioned, however, the Legislature did not expressly

declare whether former section 4019 was to operate prospectively or retroactively.

We thus proceed to consider whether it is “very clear from extrinsic sources”

(Evangelatos, supra, 44 Cal.3d 1188, 1209), or whether such sources support the

“ „clear and unavoidable implication‟ ” (id., at p. 1208), that the Legislature

intended the amendment to operate retroactively. We find no such indicia of

legislative intent.

Defendant argues we can infer the Legislature‟s intent to apply former

section 4019 retroactively from the same act‟s uncodified section 59. Section 59

directs “[t]he Department of Corrections and Rehabilitation [to] implement the

changes made by this act regarding time credits in a reasonable time,” but also

6 Former 4019 had the additional purpose of equalizing the rate at which

prisoners in local and state custody could earn conduct credits. (See, e.g., Assem.

Com. on Budget, Analysis of Sen. Bill No. 18 (2009-2010, 3d Ex. Sess.), as

amended Aug. 31, 2009, p. 1 [bill would “[e]stablish[] consistent day-for-day

credit earning status for offenders currently eligible for earning day-for-day credit

in both jail and prison”].)

5

recognizes and addresses the possibility that “there will be some delays in

determining the amount of additional time credits . . . resulting from changes in

law pursuant to this act.”7 This language, defendant contends, shows the

Legislature intended that presentence conduct credits under former section 4019

would apply retroactively and accepted the likelihood that retroactive application

would entail administrative delay. Defendant‟s argument might be plausible if the

term “time credits” in section 59 referred to presentence conduct credits, but this

cannot be what the Legislature meant. The California Department of Corrections

and Rehabilitation (CDCR) does not determine and award presentence credits; the

sentencing court does.8 Accordingly, the Legislature‟s reference in section 59 to

7 In full, section 59 provides: “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.)

8 While the CDCR does not determine and award presentence credits, the

CDCR does determine and award credits earned in local custody, if any, after

sentencing and before delivery to state prison. (See § 2900.5, subd. (e).) But

these credits cannot have been the antecedent of section 59‟s reference to “time

credits,” because section 59 expressly affected only “the changes made by this act

regarding time credits” (Stats. 2009, 3d Ex. Sess., ch. 28, § 59, italics added),

namely, the 2009 act that also added former section 4019. The 2009 act did not

affect credits under section 2900.5, subdivision (e), which have existed unchanged

since 1991. (See Stats. 1991, ch. 437, § 9, p. 2217.)

For a one-year period following the repeal of former section 4019, the

CDCR did determine and award local conduct credits for persons eventually

sentenced to state prison. (See former § 2933, subd. (e)(1), added by Stats. 2010,

(Footnote continued on next page.)

6

“time credits” must have been to credits determined and awarded by the CDCR,

namely post-sentence credits earned in state prison, such as the credits mandated

by the same act retroactive to January 1, 2003, for inmates trained as firefighters.

(§ 2933.3, subds. (a), (d), as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 41.)

Defendant also argues the Legislature‟s intent to apply former section 4019

retroactively may be inferred from the circumstance that a state fiscal emergency

prompted the legislation,9 because awarding credits retroactively would decrease

the state‟s incarceration costs more than would awarding them prospectively.

Certainly, as we have explained, the legislation that included former section 4019

was most immediately intended as a response to the state‟s fiscal crisis. But the

method by which the Legislature chose to respond was not to grant early release or

credits regardless of conduct, even though this would have offered the greatest

economic benefit to the state, but rather to increase the existing incentives for

good conduct by offering well behaved prisoners the prospect of even earlier

release from custody. 10 Defendant suggests the Legislature might have intended

(Footnote continued from previous page.)

ch. 426, § 1, eff. Sept. 28, 2010, and repealed by Stats. 2011, 1st Ex. Sess., ch. 12,

§ 16, eff. Sept. 21, 2011.) The now-repealed provision giving the CDCR that

responsibility did not exist at the time the Legislature enacted section 59 and thus

could not have informed the meaning of that provision.

9 See the uncodified section 62: “This act addresses the fiscal emergency

declared by the Governor by proclamation on December 19, 2008, pursuant to

subdivision (f) of Section 10 of Article IV of the California Constitution.” (Stats.

2009, 3d Ex. Sess., ch. 28, § 62.)

10 Prisoners earn such credits by not “refus[ing] to satisfactorily perform labor

as assigned by the sheriff, chief of police, or superintendent of an industrial farm

or road camp” (§ 4019, subd. (b)) and by “satisfactorily comply[ing] with the

reasonable rules and regulations established by [the same authorities]” (id., subd.

(c)).

7

former section 4019 to offer bonuses for past good behavior as well as incentives

for future good behavior. Such an interpretation of the statute, however, finds no

clear support in the statute‟s language or legislative history. To resolve such

ambiguities in favor of prospective operation is precisely the function of section 3

and the default rule it embodies.

To apply former section 4019 prospectively necessarily means that prisoners

whose custody overlapped the statute‟s operative date (Jan. 25, 2010) earned

credit at two different rates. Defendant contends such a result is impermissible

because a court may apply only the version of section 4019 in effect at the time

sentence is imposed (or modified on appeal). Defendant bases this argument on

section 2900.5, which requires the sentencing court to determine and include in the

abstract of judgment the presentence credits to which a defendant is entitled (id.,

subd. (d)), including days “credited to the period of confinement pursuant to

Section 4019” (§ 2900.5, subd. (a), italics added). Defendant thus reads the

italicized reference to section 4019 as meaning “the version of section 4019

currently in effect.” Defendant‟s reading would violate section 3 by causing any

legislative change in the credit-accrual rate to operate retroactively without an

express declaration of retroactive intent. Furthermore, nothing in the legislative

history of section 2900.5, the relevant language of which has remained unchanged

since 1991 (see Stats. 1991, ch. 437, § 10, p. 2218), suggests the Legislature

intended the statute to have such an effect. Credits are determined and added to

the abstract of judgment at the time of sentencing, but they are earned day by day

over the course of a defendant‟s confinement as a predefined, expected reward for

specified good behavior. Having been earned, credits obtain a kind of

permanency, as they may not be lost except for misconduct. (See generally

People v. Deusler (1988) 203 Cal.App.3d 273, 275-277; Cal. Rules of Court, rule

8

4.310; cf. § 2932.) Defendant‟s reading of section 2900.5 ignores these

considerations.11

For all of these reasons, we conclude former section 4019 is properly

interpreted as operating prospectively.

2. The Estrada12 rule.

This court‟s decision in Estrada, supra, 63 Cal.2d 740, supports an

important, contextually specific qualification to the ordinary presumption that

statutes operate prospectively: When the Legislature has amended a statute to

reduce the punishment for a particular criminal offense, we will assume, absent

11 In his answer brief, defendant advanced the new claim that a short-lived

2010 amendment to section 2933 entitles him to additional conduct credits for his

time in local custody, even if former section 4019 does not. Former section 2933,

subdivision (e)(1) (added by Stats. 2010, ch. 426, § 1, eff. Sep. 28, 2010, and

repealed by Stats. 2011, 1st Ex. Sess., ch. 12, § 16, eff. Sept. 21, 2011), directed

the CDCR, “[n]otwithstanding section 4019,” to deduct one day from the sentence

of a state prisoner “for every day he or she served in a county jail [or other local

facility] from the date of arrest until state prison credits . . . are applicable . . . .”

This new claim is not properly before us, and we do not address it. Instead of

identifying an error in the judgment on review, defendant asserts the CDCR

violated former section 2933 by failing to award additional local conduct credits at

the time the former section took effect. Such a claim must logically be brought in

a petition for habeas corpus against the official empowered to award such credits,

namely the Director of the CDCR.

In a supplemental brief, defendant contended he is entitled to retroactive

presentence conduct credits under an amendment to section 4019 enacted in the

2011 Realignment Legislation addressing public safety. (See Stats. 2011, ch. 15,

§ 482.) This legislation does not assist defendant because its changes to

presentence credits expressly “apply prospectively . . . to prisoners who are

confined to a county jail [or other local facility] for a crime committed or after

October 1, 2011.” (§ 4019, subd. (h), added by Stats. 2011, ch. 15, § 482, and

amended by 2011, ch. 39, § 53.) Defendant committed his offense in 2006.

12 People v. Estrada (1965) 63 Cal.2d 740 (Estrada).

9

evidence to the contrary,13 that the Legislature intended the amended statute to

apply to all defendants whose judgments are not yet final on the statute‟s operative

date. (Id., at pp. 742-748.) We based this conclusion on the premise that “ „[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.” (Id., at p. 745, italics added.) “ „Nothing is

to be gained,‟ ” we reasoned, “ „by imposing the more severe penalty after such a

pronouncement . . . other than to satisfy a desire for vengeance‟ ” (ibid.) — a

motive we were unwilling to attribute to the Legislature. On this basis we

concluded the inference was “inevitable . . . 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.”

(Ibid.)

Defendant contends the special rule of Estrada, supra, 63 Cal.2d 740,

requires us to apply former section 4019 retroactively, even though the statute

offers incentives for future good behavior in prison rather than “ „mitigat[ing] the

penalty for a particular crime‟ ” (Estrada, at p. 745). We conclude defendant is

incorrect: Estrada does not apply. Before examining defendant‟s contention in

detail, however, we note the limited role Estrada properly plays in our

jurisprudence of prospective versus retrospective operation.

As mentioned, the language of section 3 erects a strong presumption of

prospective operation, codifying the principle that, “in the absence of an express

13 (E.g., In re Pedro T. (1994) 8 Cal.4th 1041, 1045-1046 [holding Estrada,

supra, 63 Cal.2d 740 inapplicable to statute automatically reducing the penalty for

an offense after three years (a “sunset provision”), given evidence the Legislature

wished to experiment with an increased penalty during the interim].)

10

retroactivity provision, a statute will not be applied retroactively unless it is very

clear from extrinsic sources that the Legislature . . . must have intended a

retroactive application.” (Evangelatos, supra, 44 Cal.3d 1188, 1209; see Myers v.

Phillip Morris Companies, Inc., supra, 28 Cal.4th 828, 841.) Accordingly, “ „a

statute that is ambiguous with respect to retroactive application is construed . . . to

be unambiguously prospective.‟ ” (Myers v. Phillip Morris Companies, Inc.,

supra, at p. 841.) Sharply departing from the language of section 3, the court in

Estrada, supra, 63 Cal.2d 740, wrote that the “rule of construction [codified

therein] . . . is not a straitjacket. Where the Legislature has not set forth in so

many words what it intended, the rule of construction should not be followed

blindly in complete disregard of factors that may give a clue to the legislative

intent. It is to be applied only after, considering all pertinent factors, it is

determined that it is impossible to ascertain the legislative intent.” (Estrada, at

p. 746.)

One immediately sees that the quoted language from Estrada, supra, 63

Cal.2d 740, purports (a) to justify retroactive operation on evidence of less dignity

and reliability than the express legislative declaration, or clear implication from

extrinsic evidence, that we now require under section 3 (see Evangelatos, supra,

44 Cal.3d 1188, 1208, 1209), and (b) to reduce section 3‟s strong presumption of

prospectivity to a tie-breaking principle of last resort. Applied broadly and

literally, Estrada‟s remarks about section 3 would thus endanger the default rule

of prospective operation. Recognizing this in Evangelatos, we declined to follow

Estrada‟s remarks about section 3 and held that “language in Estrada . . . should

not be interpreted as modifying this well-established, legislatively-mandated

principle” (Evangelatos, at p. 1209). (Evangelatos, at p. 1209; see generally ibid.,

at pp. 1207-1209 & fn. 11.) Accordingly, Estrada is today properly understood,

not as weakening or modifying the default rule of prospective operation codified

11

in section 3, but rather as informing the rule‟s application in a specific context by

articulating the reasonable presumption that a legislative act mitigating the

punishment for a particular criminal offense is intended to apply to all nonfinal

judgments. (Cf. People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 [declining

request to reconsider Estrada].)

This brings us to the question whether the rule of Estrada, supra, 63 Cal.2d

740, requires us to apply retroactively a statute increasing the rate at which

prisoners may earn credit for good behavior. The question can properly be

answered only in the negative. The holding in Estrada was founded on the

premise that “ „[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‟ ” (Estrada, at p. 745,

italics added) and the corollary inference that the Legislature intended the lesser

penalty to apply to crimes already committed.14 In contrast, a statute increasing

the rate at which prisoners may earn credits for good behavior does not represent a

judgment about the needs of the criminal law with respect to a particular criminal

offense, and thus does not support an analogous inference of retroactive intent.

Former section 4019 does not alter the penalty for any crime; a prisoner who earns

no conduct credits serves the full sentence originally imposed. Instead of

addressing punishment for past criminal conduct, the statute addresses future

conduct in a custodial setting by providing increased incentives for good behavior.

Defendant contends the rule of Estrada, supra, 63 Cal.2d 740, should be

understood to apply more broadly to any statute that reduces punishment in any

14 The statute at issue in Estrada, supra, 63 Cal.2d 740, reduced the minimum

term for the crime of escape without force or violence. (See id., at pp. 743-744.)

12

manner, and that to increase credits is to reduce punishment. Defendant‟s

argument fails for two reasons: First, the argument would expand the Estrada

rule‟s scope of operation in precisely the manner we forbade in Evangelatos,

supra, 44 Cal.3d 1188, 1209. Second, the argument does not in any event

represent a logical extension of Estrada‟s reasoning. We do not take issue with

the proposition that a convicted prisoner who is released a day early is punished a

day less. But, as we have explained, the rule and logic of Estrada is specifically

directed to a statute that represents “ „a legislative mitigation of the penalty for a

particular crime‟ ” (Estrada, at p. 745, italics added) because such a law supports

the inference that the Legislature would prefer to impose the new, shorter penalty

rather than to “ „satisfy a desire for vengeance‟ ” (ibid.). The same logic does not

inform our understanding of a law that rewards good behavior in prison.15

Various older decisions address claims that statutes affecting credits should

be applied retroactively. In none do we find a sufficient justification for applying

the rule of Estrada, supra, 63 Cal.2d 740, to former section 4019.

Cases involving custody credit — credit for time served (In re Kapperman

(1974) 11 Cal.3d 542, People v. Sandoval (1977) 70 Cal.App.3d 73, and People v.

Hunter (1977) 68 Cal.App.3d 389) — may properly be distinguished as

15 Defendant suggests the Legislature‟s desire to reduce punishment through

former section 4019 can be inferred from its intent to equalize the credit-earning

ability of state and local prisoners. (See ante, at p. 5, fn. 6.) As noted above, we

do not take issue with the proposition that to increase credits reduces punishment.

The question is whether such a law falls within the rule of Estrada, supra, 63

Cal.2d 740. It does not, as we have explained. Furthermore, to recognize the

Legislature wished to equalize credits does not, by itself, provide a logical basis

for inferring the Legislature wished to do so retroactively.

13

irrelevant.16 Credit for time served is given without regard to behavior, and thus

does not implicate the distinction between statutes that provide behavioral

incentives (e.g., conduct credits) and statutes that “mitigat[e] . . . the penalty for a

particular crime” (Estrada, supra, 63 Cal.2d 740, 745).

Of the prior cases involving conduct credits, the two most closely on point

conflict. Defendant relies on People v. Doganiere (1978) 86 Cal.App.3d 237

(Doganiere), which cited Estrada, supra, 63 Cal.2d 740, as authority for applying

a statute authorizing conduct credits retroactively. The defendant in Doganiere,

who was serving a sentence in state prison, had previously served time in county

jail as a condition of probation, earning local conduct credits under section 4019

and thus release from jail a month before the end of his probationary term. He

subsequently violated the terms of his probation and was committed to state

prison. Applying the version of section 2900.5 then in effect (§ 2900.5, as

amended by Stats. 1976, ch. 1045, § 2, p. 4465), the court gave defendant credit

against his prison sentence for the time he had actually served in jail but not for

the conduct credits he had there earned. While the appeal was pending, the

Legislature amended section 2900.5 to require the deduction of local conduct

credits under section 4019. (See former § 2900.5, as amended by Stats. 1978,

16 California law did not always give, to all persons serving sentences in state

prison, credit for time served in local custody before sentencing. Effective 1972,

in a statute that was expressly prospective, the Legislature extended such credits to

persons convicted of felonies. (Former § 2900.5, as added by Stats. 1971,

ch. 1732, § 2, p. 3686.) In In re Kapperman, supra, 11 Cal.3d 542, this court held

the statute‟s prospectivity provision violated equal protection and applied the

statute retroactively. The court distinguished Estrada, supra, 63 Cal.2d 740, as

irrelevant, reading that opinion, as do we, to affect only “the application to

previously convicted offenders of statutes lessening the punishment for a

particular offense.” (In re Kapperman, supra, at p. 546, italics added.)

14

ch. 304, § 1, p. 632.) In deciding to apply Estrada, the Court of Appeal

perfunctorily rejected the argument that the rule of that case does not apply to a

statute “designed to control future prison inmate behavior” (Doganiere, at p. 239),

as opposed to a statute reducing the punishment for a specific offense. We find

Doganiere unpersuasive because it offers no authority for its conclusion other than

an irrelevant decision involving custody credits. (See Hunter, supra, 68

Cal.App.3d 389, cited in Doganiere, at p. 239; but see Kapperman, supra, 11

Cal.3d 542, 546; ante, at p. 13 & fn. 16.) A subsequent decision that merely

accepted Doganiere‟s holding without examination (People v. Smith (1979) 98

Cal.App.3d 793, 799) adds no force to defendant‟s position.

More persuasive is In re Strick (1983) 148 Cal.App.3d 906 (Strick), a case

that, while ultimately decided under the equal protection clause, necessarily

examined the legislative purpose underlying conduct credits and concluded that

statutes authorizing such credits must logically apply prospectively.

The petitioner in Strick, supra, 148 Cal.App.3d 906, who had served two and

one-half years of a six-year sentence, had earned conduct credits under a former

statute permitting the Director of the former Department of Corrections to reduce a

prisoner‟s sentence by one-third for good behavior. (See former § 2931, subd. (a),

as amended by Stats. 1979, ch. 319, § 1, p. 1141.) During defendant‟s prison

term, the Legislature adopted a new statute offering conduct credits at a higher

rate. (See former § 2933, subd. (a), as added by Stats. 1982, ch. 1234, § 4,

p. 4551.) The director, exercising his statutory authority to make rules governing

the transition of inmates from the old to the new credit systems, determined that

credit at the new, higher rate would be granted prospectively but not retroactively.

The Court of Appeal rejected the petitioner‟s claim that the Director‟s decision

violated equal protection. Prisoners whose incarcerations began before and after

the new law took effect, the court reasoned, were not similarly situated with

15

respect to the purpose of the law: “The obvious purpose of the new section,” the

court explained, “is to affect the behavior of inmates by providing them with

incentives to engage in productive work and maintain good conduct while they are

in prison. . . . [¶] It is fair to observe that this incentive purpose has no meaning if

an inmate is unaware of it. The very concept demands prospective application.

„Reason dictates that it is impossible to influence behavior after it has occurred.‟ ”

(Id., at p. 913, quoting In re Stinnette (1979) 94 Cal.App.3d 800, 806.)17

Arguing his point a bit differently, defendant suggests the Legislature has

acquiesced in prior judicial decisions retroactively applying statutes increasing

credits and, as a result, generally intends that such statutes apply retroactively

unless the legislation expressly requires prospective operation. The argument is

unpersuasive for several reasons. First, we have recognized that the doctrine of

legislative acquiescence is not properly invoked to show the Legislature has

acquiesced in judicial decisions applying judicial doctrines, such as the rule of

Estrada, supra, 63 Cal.2d 740. When a precedent is challenged as incorrectly

extending such a doctrine, “it is primarily up to the courts to reconsider its

correctness.” (People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 21.)

Second, the “proverbial „weak reed‟ ” of legislative acquiescence (In re

Dannenberg (2005) 34 Cal.4th 1061, 1107) cannot reasonably be stretched so far

as to abrogate another statute, such as section 3 and the default rule of prospective

17 In re Stinnette, supra, 94 Cal.App.3d 800, the decision quoted in Strick,

supra, 148 Cal.App.3d 906, held that equal protection did not require the

retroactive application of a provision (former § 2931, subd. (a), as amended by

Stats. 1977, ch. 165, § 38, p. 661) of the newly enacted Determinate Sentencing

Act (Stats. 1976, ch. 1139) authorizing the award of conduct credits for good

behavior to persons sentenced under that act but not to persons committed under

the prior Indeterminate Sentence Law (Stats. 1917, ch. 527, § 1, p. 665).

16

operation the statute embodies, in an entire category of cases. Third, the only

cases that might conceivably support defendant‟s argument, as applied to conduct

credits, are Doganiere, supra, 86 Cal.App.3d 237, and People v. Smith, supra, 98

Cal.App.3d 793. But one might with equal validity argue the Legislature has

acquiesced in the more recent conclusion in Strick, supra, 148 Cal.App.3d 906,

913, that the “[t]he very concept [of conduct credits] requires prospective

application.”

In conclusion, we see in the relevant prior decisions no justification for

applying the rule of Estrada, supra, 63 Cal.2d 740, to former section 4019. We

therefore turn to defendant‟s argument that equal protection principles require

retroactive application regardless of legislative intent and statutory construction.

B. Equal Protection

Defendant contends that to apply former section 4019 prospectively violates

the equal protection clauses of the state and federal Constitutions. (U.S. Const.,

14th Amend.; Cal. Const., art. I, § 7, subd. (a).) The argument lacks merit.

The concept of equal protection recognizes that persons who are similarly

situated with respect to a law‟s legitimate purposes must be treated equally.

(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Accordingly, “ „[t]he first

prerequisite to a meritorious claim under the equal protection clause is a showing

that the state has adopted a classification that affects two or more similarly

situated groups in an unequal manner.‟ ” (Ibid.) “This initial inquiry is not

whether persons are similarly situated for all purposes, but „whether they are

similarly situated for purposes of the law challenged.‟ ” (Ibid.)

As we have already explained, the important correctional purposes of a

statute authorizing incentives for good behavior (see People v. Austin, supra, 30

Cal.3d 155, 163) are not served by rewarding prisoners who served time before the

17

incentives took effect and thus could not have modified their behavior in response.

That prisoners who served time before and after former section 4019 took effect

are not similarly situated necessarily follows. On this point we find the decision in

Strick, supra, 148 Cal.App.3d 906, persuasive. In that case, as noted (ante, at

p. 15 et seq.), the Court of Appeal rejected the claim that an expressly prospective

law increasing conduct credits violated equal protection unless applied

retroactively to prisoners who had previously earned conduct credits at a lower

rate. “The obvious purpose of the new section,” the court reasoned, “is to affect

the behavior of inmates by providing them with incentives to engage in productive

work and maintain good conduct while they are in prison.” (Strick, at p. 913.)

“[T]his incentive purpose has no meaning if an inmate is unaware of it. The very

concept demands prospective application.” (Ibid.) “Thus, inmates were only

similarly situated with respect to the purpose of the [new law] on [its effective

date], when they were all aware that it was in effect and could choose to modify

their behavior accordingly.” (Ibid.)

Defendant and amicus curiae contend this court‟s decision in People v. Sage

(1980) 26 Cal.3d 498 (Sage), implicitly rejected the conclusion the Court of

Appeal would later reach in Strick, supra, 148 Cal.App.3d 906, that prisoners

serving time before and after a conduct credit statute takes effect are not similarly

situated. We disagree.

The defendant in Sage, supra, 26 Cal.3d 498, a case decided three years

before Strick, supra, 148 Cal.App.3d 906, had been committed to the state hospital

under the mentally disordered sex offender law (former Welf. & Inst. Code,

§ 6316 et seq., repealed by Stats. 1981, ch. 928, § 2, p. 3485) and, after being

found not amenable to treatment, sentenced to state prison for a felony. The

question before the court was whether the defendant was entitled to conduct credit

for the time he had spent in county jail before being sentenced. The version of

18

section 4019 then in effect (§ 4019, as amended by Stats. 1978, ch. 1218, § 1,

p. 3941) authorized presentence conduct credit for misdemeanants who later

served their sentences in county jail but not for felons who were eventually

sentenced to state prison. Finding no “rational basis for, much less a compelling

state interest in, denying presentence conduct credit to detainee/felons” (Sage, at

p. 508, fn. omitted), the court held the statute‟s unequal treatment of felons and

misdemeanants for this purpose violated equal protection. (Ibid.)

To be sure, one practical effect of Sage, supra, 26 Cal.3d 498, was to extend

presentence conduct credits retroactively to detainees who did not expect to

receive them, and whose good behavior therefore could not have been motivated

by the prospect of receiving them. But amicus curiae reads too much into Sage by

suggesting the opinion thereby implicitly foreclosed the Court of Appeal‟s later

conclusion in Strick, supra, 148 Cal.App.3d 906, that prisoners serving time

before and after incentives are announced are not similarly situated. The unsigned

lead opinion “by the Court” in Sage does not mention the argument that conduct

credits, by their nature, must apply prospectively to motivate good behavior. A

brief allusion to that argument in a concurring and dissenting opinion (see Sage,

supra, at p. 510 (conc. & dis. opn. of Clark, J.)) went unacknowledged and

unanswered in the lead opinion. As cases are not authority for propositions not

considered (e.g., People v. Avila (2006) 38 Cal.4th 491, 566), we decline to read

Sage for more than it expressly holds.

Defendant and amicus curiae also contend the present case is controlled by In

re Kapperman, supra, 11 Cal.3d 542, in which this court concluded that equal

protection required the retroactive application of an expressly prospective statute

granting credit to felons for time served in local custody before sentencing and

commitment to state prison. We disagree. Credit for time served is given without

regard to behavior, and thus does not entail the paradoxical consequences of

19

applying retroactively a statute intended to create incentives for good behavior.

Kapperman does not hold or suggest that prisoners serving time before and after

the effective date of a statute authorizing conduct credits are similarly situated.

For these reasons, we conclude that equal protection does not require former

section 4019 to be applied retroactively.

III. DISPOSITION

The Court of Appeal‟s judgment is reversed and the case remanded to that

court for further proceedings in accordance with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

20

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v Brown

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 182 Cal.App.4th 1354

Rehearing Granted

__________________________________________________________________________________

Opinion No. S181963

Date Filed: June 18, 2012

__________________________________________________________________________________

Court: Superior

County: Lassen

Judge: Stephen Douglas Bradbury

__________________________________________________________________________________

Counsel:

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

Dallas Sacher for Sixth District Appellate Program as Amicus Curiae on behalf of Defendant and

Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Michael P. Farrell and Gary W. Schons, Assistant Attorneys General, Carlos A.

Martinez, Marcia A. Fay, Steven T. Oetting and Meredith S. White, Deputy Attorneys General, for Plaintiff

and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark J. Shusted

P.O. Box 1076

Roseville, CA 95678

(916) 804-5106

Meredith S. White

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2297