Update Apr. 23, 2010
FDAP now has available a sample brief addressing the application of the January 2010 amendment to section 4019 to cases pending on appeal when the amendment went into effect. This new sample addresses recent cases, including People v. House (No. B212057, Apr. 9, 2010) and People v. Landon (No. A123779, Apr. 13, 2010).
Download a PDF copy of the brief here. (It is not available in MS Word or WordPerfect.)
January 29, 2010
The Legislature has amended section 4019 of the Penal Code to increase presentence credits for many defendants in California. This is a very fluid situation at this time, and below is some suggested guidance on how panel attorneys might deal with the amendment, including some sample pleadings. There are a number of possible approaches, and we recommend that panel attorneys consider the range of possibilities. We will continue to post new information on our web site as we begin to get court rulings and feedback on this issue. We also recommend that you review web site postings of the other projects.
Prior to the amendment, subdivisions (b), (c) and (f) of section 4019 provided that a defendant convicted of a non-violent offense could earn up to two days of work and conduct credit for each six days of actual presentence custody, such that a defendant serving 100 actual days would receive 50 conduct/work credits. Under the amendment, some defendants will now receive day-for-day presentence credits. (Pen. Code § 4019(b), (c) & (f).) For example, if a defendant serves 100 actual days, he will get 100 presentence conduct/work credits under the new law. If the actual days served are an odd number, the conduct/work credits will be equal to the actual days served minus one (e.g. 101 actual days - 1 = 100 conduct/work credits). This change does not apply to those ordered to register as a sex offender, anyone convicted of a serious felony, and anyone with prior serious or violent convictions. (Pen. Code § 4019(b)(2) and (c)(2).) And the section 2933.1 limit of 15% still applies to current violent felonies.
Case Not Yet Final
The new law became effective January 25, 2010. Because the bill contains no savings clause, it should apply, at least, to all defendants whose convictions are not yet final on appeal as of that January 25 effective date. (In re Estrada (1965) 63 Cal.2d 740.) This principle applies equally to increases in custody credits. (People v. Hunter (1977) 68 Cal.App.3d 389.)
For cases on appeal, determination of the date of finality depends on whether a petition for review was filed.
Finality Where Petition for Review Has Been Filed
In a case in which a petition for review was filed and denied, and no petition for certiorari was filed, the case is final when the 90-day period in which to file a certiorari petition has run. (People v. Vieira (2005) 35 Cal.4th 264, 306.) If a certiorari petition has been filed, the case becomes final upon the denial of certiorari. Accordingly, among cases in which a petition for review was filed and denied, the amendment would apply under Estrada to cases in which, as of January 25, either the 90-day period in which to seek certiorari has not yet run or, if a certiorari petition was filed, the U.S. Supreme Court has not yet denied certiorari.
Finality Where No Petition for Review Was Filed.
If no petition for review has been filed, the case becomes final when the time for the California Supreme Court to grant review on its own motion runs, i.e. 60 days after the issuance of the Court of Appeal opinion. (See Cal.R.Ct. 8.512(c)(1) (supreme court may order review within 30 days after decision is final in court of appeal); 8.366(b)(1) (decision of court of appeal on direct criminal appeal ordinarily final 30 days after filing).) Accordingly, among cases in which a petition for review was not filed, the amendment would apply under Estrada to cases in which, as of January 25, the 60 day period in which the California Supreme Court may grant review on its own motion has not yet run.
Possible Approaches to Seeking Correction of Credits
How to proceed depends heavily on two critical factors: (1) whether the defendant is already, or soon will be, serving the illegal portion of his or her sentence (i.e. would be released if granted the new credits) and (2) the stage of the appeal. Generally, where the defendant is already, or soon will be, serving the portion of the sentence made illegal by the amendment, it would be better to proceed by way of a motion filed in the superior court. Otherwise, it may be possible to raise this issue either in a Superior Court motion or in the Court of Appeal directly if the appeal is in an early enough stage. We do not have a recommendation as to which approach (Superior Court or Court of Appeal) is preferable, except as noted for time-sensitive cases. There may be more than one reasonable way to approach the situation for a client.
In whatever manner relief is sought, counsel is urged to make use of sample arguments where available, taking care to check the sample for currency and to tailor the argument to the circumstances of the case. Samples are being posted on FDAP's website and likely will soon be posted on other projects' website.
Seeking Relief in the Superior Court
As noted, there will be short sentence cases in which it is best to to seek relief in the superior court because of the speed with which that court can act on the request. In those situations or any other in which you are considering proceeding by way of motion in the superior court, consider whether trial counsel is available to pursue the matter. (If necessary, appellate counsel can assist with the preparation of the pleading.) If trial counsel is unavailable or if, for some other reason, it is inappropriate to turn the matter over to trial counsel, the panel attorney may file a motion for correction of credits, as contemplated by section 1237.1 of the Penal Code. If the matter goes to a hearing in the superior court, it would be hoped that trial counsel could appear for that hearing.
If a favorable Court of Appeal opinion is issued confirming the applicability of the amendment to all convictions not yet final on January 25, 2010, a People v. Fares (1993) 16 Cal.App.4th 954 letter to the superior court may suffice. But until then, a properly noticed motion is recommended. (See Pen. Code § 1237.1 (error in calculation of presentence credits not cognizable on appeal unless "the defendant first makes a motion for correction of the record in the trial court."; People v. Clavel (2002) 103 Cal.App.4th 516.)
If the superior court denies relief, the matter could be reviewed in the court of appeal in the already pending appeal. But it is best to file a notice of appeal from that order denying relief. In addition, if the matters remains urgent, counsel could consider filing a habeas corpus petition in the Court of Appeal. Generally, a petitioner is barred from using a habeas petition to pursue an issue that is cognizable on appeal. But there is an exception to that rule where meaningful relief cannot be obtained on appeal because of the timing. (In re Newbern (1960) 53 Cal.2d 786, 789-790.)
In cases in which time is not of the essence and in which the Court of Appeal has not yet issued its opinion, counsel may be able to raise the issue in either the opening brief or a supplemental opening brief. (A new issue cannot be raised in the reply brief.)
As with all supplemental opening briefs, the brief should be accompanied by a motion for leave to file the supplemental brief. And, if the case is post-argument, the request to file the supplemental brief should also include a request to vacate submission.
Because the issue turns on the applicability of a new law to revise a previously-correct presentence custody award, as opposed to a mere calculation correction, it would not appear that a motion in the superior court would be required. (See Pen. Code § 1237.1 (regarding error in calculation of presentence credits).) It might be best to explain in your pleading that the requirement in Penal Code section 1237.1 of proceeding first in Superior Court is not required here for two reasons: (1) As just noted, the issue is basically a legal one, not a calculation problem or a claim that the original presentence credits were miscalculated, in that it is a matter of first impression law concerning the applicability of the Penal Code section 4019 amendment to the appellant; and (2), in any event, section 1237.1 does not require a motion in the superior court before raising the issue on appeal if the credits issue is not the only issue raised on appeal. (People v. Acosta (1996) 48 Cal.App.4th 411, 427.)
Cases Post-Opinion/Pre-Petition For Review
If the Court has issued the opinion but the time to seek rehearing has not run, counsel could raise the issue for the first time in a petition for rehearing. Particularly where the application of the amended statute to the case is straightforward, the Court of Appeal may be willing to consider the issue for the first time in a petition for rehearing. (See e.g., People v. Overby (2004) 124 Cal.App.4th 1237, 1240 ("The petition for rehearing was granted in this case to consider the impact, if any, of ... Blakely ....").)
Generally, rehearing petitions are due within 15 days after the filing of the decision, a publication order restarting the finality period, or a modification of the opinion changing the judgment. (Cal. R. Ct. rules 8.268(b)(1) (rehearing) and 8.366(a) (rules 8.52-8.272 apply to criminal appeals).) However, "[b]efore the decision is final and for good cause, the presiding justice may relieve a party from a failure to file a timely petition or answer." (Cal. R. Ct. 8.268(b)(4).)
Cases Final as to the Court of Appeal
Because a change in law is involved, raising the issue for the first time in a petition for review may be possible. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145, fn. 2 (reviewing issue not addressed by court of appeal or raised in petition for rehearing).) However, in cases in which the issue was not raised in the Court of Appeal it would appear to be more practical and administratively easier to pursue the matter in the superior court with a motion to correct the credits, such as is described above in connection with time-sensitive cases. This would apply to cases in which the time to seek review has not run yet, as well as cases in which review has already been denied.
Use of sample arguments is strongly encouraged, with the caveat that counsel has the obligations to make sure the law is current and to tailor the argument to the case. The below sample argument is drafted for raising the section 4019 argument on appeal. It can be easily adapted to a motion to correct sentence in the superior court. (It was adapted from one originally written by panel attorney Kate Novoa.)
Sample Argument on Appeal for Increasing Presentence Custody Credits Under Amended Penal Code Section 4019
Please note that the bill contains a provision requiring CDCR to recalculate credits for inmates. (Stats.2009-2010, 3rd Ex.Sess., c. 28 (S.B.18), § 59.) CDCR has informed FDAP, however, that it takes the view that this only applies to post-sentence credits. (The same bill made changes to post-sentence credits, adding a provision for award of prisoner program credit reductions for successful completion of certain rehabilitative programs. (Id. at § 39.))