Filed 2/27/14 P. v. Shields CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C070929

                   Plaintiff and Respondent,                                     (Super. Ct. No. 09F00482)

         v.

PAUL ANDREW SHIELDS,

                   Defendant and Appellant.




         Defendant, Paul Andrew Shields, stands convicted by a jury of unlawful sexual
intercourse with a minor more than three years younger than the defendant, in violation
of section 261.5, subdivision (c) of the Penal Code (unless otherwise specified, all
statutory references that follow are to the Penal Code). He admitted three prior
convictions that brought him within the provisions of sections 667, subdivisions (b) to (i)
and 1170.12, specifically a conviction for assault with a deadly weapon in violation of
section 245, subdivision (a)(1) in 1991, a conviction for involuntary manslaughter with



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personal use of a handgun in violation of section 192, subdivision (b) and section 12022,
subdivision (b) in 1996, and a conviction for assault with a deadly weapon in violation of
section 245, subdivision (a)(1) in 2000. Sentenced to 25 years to life in prison, he
appeals.
       On appeal, defendant contends: (1) he was prejudiced at trial by the court’s failure
to correctly instruct the jury on the defense of unconsciousness; (2) the sex offender
registration order entered pursuant to section 290 was unauthorized; (3) a sexual battery
fine was unauthorized; (4) a “no-visitation” order entered pursuant to section 1202.05
was unauthorized; (5) defendant is entitled to an award of presentence local conduct
credits; and, (6) defendant is entitled to a retroactive application of Proposition 36.
       We hold that (1) the trial court did not err in instructing the jury on the defense of
unconsciousness to defendant’s prejudice; (2) the sex offender registration order entered
pursuant to section 290 must be reconsidered by the trial court on remand; (3) the sexual
battery fine cannot stand because defendant was not convicted of a violation of section
243.4; (4) the “no-visitation” order entered pursuant to section 1202.05 was
unauthorized; (5) defendant is entitled to an award of presentence local conduct credits;
and (6) the defendant is not entitled to a retroactive application of the amendatory
provisions of Proposition 36.

                                FACTS AND PROCEEDINGS

       The victim, K.C., testified that she met the defendant in approximately mid-
November 2008 when she was visiting her father who, along with defendant, was
incarcerated at San Quentin prison. At the time, K.C. was living with her mother and her
siblings in Rancho Cordova.
       Defendant was released from prison in the fall of 2008. Her mother had agreed to
help defendant when he was released from prison and, initially upon his release, K.C. and
her mother took defendant to a homeless shelter in the Bay Area.


                                              2
       At some point thereafter, K.C.’s mother took a job requiring her to work weekends
in Oakland and it was arranged that defendant would watch K.C. and her siblings in their
home in Rancho Cordova while their mother was away at work.
       Defendant was at K.C.’s home on the weekend of December 13-14, 2008. On the
evening of December 13, defendant and K.C. were watching movies on the television in
the living room. K.C. was laying on her back on the floor with a pillow and a blanket
wearing pajama bottoms and a T-shirt, but no panties. At some point, she fell asleep on
the floor, but was awakened when she felt her pajama bottoms being removed and
defendant licking her vaginal area. Because she was afraid, she pretended to be asleep.
       When defendant was done licking K.C.’s vagina, he placed a pillow under her
hips, put his penis in her vagina and began moving back and forth so that his penis was
“going in and out” of her vagina. As far as she could tell, he was not wearing a condom.
When defendant began having sexual intercourse with her, K.C. “got really scared” and
“froze.”
       After defendant “was done,” he left the living room and returned, handing her a
washcloth or rag with no conversation between them. While he was out of the room K.C.
pulled her pajama bottoms back up and, when he left after handing her the washcloth, she
went straight into the bathroom. At that point she noticed that there was “clear fluid”
coming from her vagina. After leaving the bathroom, defendant came up behind her and
asked her whether she “like[d] it” after which K.C. went upstairs to her mom’s room and
went to bed.
       During the night, defendant twice came into the room where K.C. was sleeping
saying that he was sorry. K.C. made no response to his apology.
       The weekend before this incident, when defendant was staying at K.C.’s home, he
found her birth control pills in her bedroom. After she told him what they were he asked
her whether she had ever given or received oral sex. She replied that she had not and
ended the conversation.

                                             3
       The parties stipulated that defendant was 56 years old in December 2008.
       Because he was representing himself, defendant testified on his own behalf
through a narrative statement to the jury.
       Defendant admitted he had sexual intercourse with K.C. on December 3, 2008.
       Defendant is a diabetic and during the month or two before he was released from
prison he was taking the medicine Glucophage and insulin injections, one injection in the
morning and one in the evening. He was not given a glucose meter at the time he was
released from prison and did not have one on December 13, 2008.
       After describing some errands that he and K.C.’s family completed on
December 13 during the day, defendant testified that they returned home. Defendant
testified to the events that took place thereafter that evening as follows:
       “ . . . [K.C.] went into the living room and started decorating the [Christmas] tree,
and I went into the den and was watching football.
       “I stayed in there about an hour or an hour and a half, and then I went to the living
room where [K.C.] was. She was finishing up decorating the tree, and she started
explaining to me how she had hung our stockings according to our ages.
       “And I brought up the subject to her about what she wanted to get her mother for
Christmas. And she said that her mother had some Tiffany jewelry stolen from her, and
then out of the clear blue she said this to me: She would have sex with me in exchange
for getting that Tiffany jewelry. And I told her that that wasn’t necessary. All you got to
do is find a -- call the stores, get a price, and then I can see if I could get it. Then I told
her that I had daughters her age, and then I explained to her and asked her did she
remember that I told her that -- that I had just finished doing nine years for assaulting a
man for saying that he would do the same thing to my six-year-old daughter. Also, I told
her not to never disrespect me like that again. I would never stoop that low to disrespect
your parents, you know. You know, I explained all that to her. And so I thought that was
all over with. I thought she had got that notion out of her head.

                                                4
         “So she went upstairs, and she called a few stores. She came back downstairs, and
she said she found a store. She found it in San Jose where I lived so I could get it without
her mother knowing it. And I said okay. Then she went back upstairs, and then she came
back down with a pillow and a blanket and asked me was I ready to watch the movies. I
told her yes, I was ready, because we had bought movies when we were shopping.
         “While we was watching movies -- I mean, before we started watching movies, I
went upstairs and got me a pillow and some blankets, too, because there was no way I
was going to share pillows and blankets with [K.C.]. And while I was upstairs, I asked
her siblings why wasn’t they downstairs watching movies with us. And [K.C.’s sister,
S.], the oldest that was upstairs, said that [K.C.] had told them to stay upstairs. And I
asked her why, and she said because they was making too much noise. I said -- I thought
that was strange because they wasn’t making as much noise as they usually make. And
so I went on back downstairs and started watching TV, and we watched a movie. Like
[K.C.] testified to, the first movie that we watched was What Love Has to Do with It
[sic].
         “And after that movie, [S.] came downstairs. [S.] came downstairs, and she got
something out of the refrigerator. Then she came around the counter and told me that I
still had some black walnut ice cream in the freezer. And I like black walnut ice cream,
so I told her okay. But before I got the black walnut ice cream I wanted to go outside to
smoke before the next movie started. So I went outside and smoked, and when I came
back in [K.C.] had already started the movie, so I started watching the movie instead of
getting the ice cream.
         “But I did make the mistake of going upstairs, getting the syringe out of my
backpack and coming back down with the intentions of eating the ice cream. So I got the
syringe; came back downstairs; got my insulin out the refrigerator; and drew up 20 units
of NPH. That’s long-lasting insulin. And I drew up five units of regular. That’s fast-
acting insulin.

                                              5
       “The reason I took the regular is because I had ate a chocolate bar that day, earlier
that day, but that was a mistake that I made. So after I took the insulin, I laid back down
and still didn’t get the ice cream. I didn’t get nothing to eat. So going back through the
movies, the other movie, watching some of the other movie, [K.C.] started dozing off.
And I called her name once; I woke her up; and I told her to go to bed, go upstairs to bed.
She refused. I did it twice; told her to go upstairs and go to bed. She refused. And I did
it a third time. The third time she did get up.
       “She got up; went upstairs; and I thought she had finally went to bed, but she
didn’t. She went upstairs and came back down shortly afterwards. I think she just went
to see if her siblings were asleep.”
       Defendant’s testimony continued as follows:
       “[K.C.] came behind me and jumped on my back. When she jumped on my back,
I kind of felt uncomfortable because I could feel her breasts on me. So I told her to move
and get off me. So when she moved, she moved around to my left side. And when she
moved around to my left side, she tried to pull me on top of her. When she tried to pull
me on top of her, I put down my left hand to brace myself. And then after I tried to brace
myself, she scooted up on my hand and I could feel her vagina. When I felt her vagina, I
moved my hand, and she jumped up on her knees and grabbed me. She grabbed my
private part, and that’s when I got mad and shoved her. I didn’t mean to shove her, but I
shoved her and started screaming at her, and that’s the only time she left and went back
and laid down.
       “Once she did that, I went back outside and smoked another cigarette. When I
came back in -- oh, while I was outside smoking that cigarette, I felt -- I felt shaky,
confused, and fatigued. So I came back inside and laid down again. I laid down, and I
started to shaking worse, and I knew that I was on the verge of having a hypoglycemia
[sic] attack, and I knew I had to get [K.C.] to get my glucose out of my backpack. Once I
tried to get to [K.C.], I crawled over to [K.C.] -- or towards [K.C,]. I don’t remember

                                              6
nothing else after that, but when -- when I did focus again, I was on top of [K.C.] and --
and that was the -- the act was over with.
       “And after that I got up, still in a daze, still not comfortable feeling the way I was
supposed to be feeling. So I did get up, and I know I apologized to [K.C.], and I went
into the kitchen and made a sandwich to try to get my blood sugar up. One of the reasons
I suffered that hypoglycemia [sic] attack was remember when I said that they came to
pick me up after work, well, when I couldn’t cash my check, I didn’t have an opportunity
to ask Robin to stop somewhere where I could buy something to eat because I knew they
had already eaten dinner. So I had to go all night without eating. One of my biggest
problems when I was spending the night with Robin was I didn’t like taking food out
those kids’ mouths because she was struggling as it was to take care of four kids. So I
was hesitant to eat at her house. So I made a lot of mistakes concerning my diabetes, you
know, but it wasn’t intentionally.
       “I thought I was doing the right thing by trying to not take food from they [sic]
mouths. I had no intentions of ever doing anything to hurt that family because, like I
said, I have four daughters of my own. And I’ve never been charged with this kind of
crime. I had -- did a lot of time in my life, but nothing like this.”
       On cross-examination, defendant said that after he returned to the house the
second time after going out to smoke a cigarette, he entered into a “semiconscious” or
“semi-unconscious” state. The next thing he remembers was being on top of K.C. with
his penis in her vagina at which time he looked down and saw her hand on his hip and
then got up off of her. Without making a remark one way or the other, he went into the
bathroom to clean himself up and then returned to the living room and apologized to K.C.
       Defendant explained that when he described himself as “semiconscious” he meant
that he was unaware of his actions and he was unaware of K.C.’s actions. He was
incapable of responding as a “respectable adult.” He was “semiconscious” to the extent



                                               7
that he remembers asking K.C. to go upstairs to get him his glucose. After that, he does
not remember what happened.

                                        DISCUSSION

                                                I

                The Instructions Regarding the Defense of Unconsciousness

       Defendant contends that the trial court erred in three particulars in instructing the
jury on the defense of unconsciousness. First, he argues that the trial court’s failure to
instruct the jury that unconsciousness does not require that a person be incapable of
movement was error; second, that the trial court’s instruction on the “presumption of
consciousness” was error; and, third, that the trial court erred in failing to instruct on
involuntary intoxication as a basis for unconsciousness.
       We address those arguments in order.

       A.      The Instruction Regarding the Ability to Move While Unconscious

       At the instruction conference, without objection from the defendant, the court
stated it would instruct the jury on the defense of unconsciousness in the language of
CALCRIM No. 3425 [2008 version; hereinafter former CALCRIM No. 3425] which, in
part, tells the jury that the law is that someone can be considered legally unconscious
even though he is able to move physically. For reasons not explained in the record, the
trial court did not so instruct, either orally or in the written instructions given to the jury.
       Defendant argues, without a citation to authority, that the “common understanding
of the word, ‘unconscious’ means a state of sleep, stupor or coma where the person lies
still and unresponsive, incapable of locomotion or manual action.” He argues that the
court’s failure to dispel this “common understanding” in the minds of the jurors was
prejudicial error.




                                                8
       We reject defendant’s argument for a number of reasons, not the least of which is
that defendant’s first premise, that it is commonly understood that a person is
unconscious only when he cannot move physically, fails.
       In common understanding, it is not uncommon to recognize or experience
unconscious physical actions. Biting one’s fingernails or tapping one’s foot without
realizing one is doing so come to mind. Indeed, the standard dictionary definitions of
“unconscious” specifically refer to unconscious “actions.” Thus, the Oxford English
Dictionary includes in its definitions of the word “not conscious or knowing within
oneself; unaware” and “not attended by, or present to, consciousness; performed,
employed, etc., without conscious action.” (Oxford English Dict.
<http://www.oxfordreference.com> [as of Feb. 27, 2014].) And, the Merriam-Webster
on-line dictionary defines the word to include “not knowing or perceiving,” “not aware,”
“not marked by conscious thought, sensation, or feeling.” (Merriam-Webster’s Dict.
<http://www.merriam-webster.com/dictionary/unconscious> [as of Feb. 27, 2014.) Thus,
in common parlance, it is known that someone can be in a state of unconsciousness while
retaining the ability to move physically.
       In this matter, there was no suggestion to the jury that the legal defense of
unconsciousness was not available to defendant if he could move physically. While it is
true that the jury received the standard instruction telling them that certain instructions
may or may not apply depending on their findings on the facts, they could reasonably
conclude that the defense of unconsciousness might apply under the facts of this case by
virtue of the court instructing them on the defense and, thus, might apply even though the
defendant was physically moving while unconscious under his version of the events of
the evening.
       On this point, the California Supreme Court’s opinion in People v. Hughes (2002)
27 Cal.4th 287 (Hughes) is instructive. In Hughes, the defendant argued, as defendant
argued here, that the trial court erred in failing to instruct the jury that unconsciousness

                                              9
under the law does not require that a person be incapable of movement. The court
concluded that “[b]ased upon the state of the evidence before the jury when it heard [the
instruction on unconsciousness], it is not reasonably likely that the jury was misled into
believing that it was precluded from finding unconsciousness merely because there was
evidence that defendant moved about and engaged in various affirmative activity.” (Id. at
p. 344.)
       So too here. The jury heard the evidence relating to defendant’s claim that he was
legally unconscious during the time he moved physically to engage in an act of sexual
intercourse with K.C. and was then instructed, as noted above, that it could consider a
defense of unconsciousness under the facts of the case given the evidence before them.
Nothing during the course of the trial even suggested that the defense was unavailable
because the defendant was capable of physical movement.
       Defendant argues that the People suggested in closing arguments that the defense
was not available because the defendant was not motionless during the acts leading up to
and including sexual intercourse with the victim. We do not read the deputy district
attorney’s remarks that way. During his closing argument, he did nothing more than
point out that defendant’s defense was unlikely in the extreme because the jury would
have to accept the facts that, as and after he passed into unconsciousness, K.C. removed
or lowered defendant’s pants and removed her own clothing and positioned defendant on
top of her and, further, that in his unconscious state, he was able to achieve an erection
and engage in sexual intercourse to the point of ejaculation, shortly after which he
regained consciousness and realized what he was doing. There was nothing in counsel’s
argument that suggested that defendant’s claim of unconsciousness had to be rejected
solely because he was able to move physically while unconscious.
       There was no instructional error in failing to make explicit the point that the jury
must have necessarily inferred.



                                             10
         B.      The “Presumption of Conscious”

         Noting this court’s opinion in People v. Mathson (2012) 210 Cal.App.4th 1297,
1301, 1323 (Mathson) criticizing the third paragraph of former CALCRIM No. 3425 and
finding it “flawed” and “problematic” under the facts of that case, defendant argues that
the instruction violated his right to due process of law because, in its ambiguity, it
“creat[ed] a mandatory, conclusive presumption of consciousness.”
         The third paragraph of former CALCRIM No. 3425 as given to the jury in this
matter, reads:
         “The People must prove beyond a reasonable doubt that the defendant was
conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the
defendant acted as if (he/she) were conscious, you should conclude that (he/she) was
conscious. If, however, based on all the evidence, you have a reasonable doubt that
(he/she) was conscious, you must find (him/her) not guilty.” (Former CALCRIM No.
3425.)
         We note, first of all, that Mathson did not hold, or necessarily suggest, that the
language of former CALCRIM No. 3425 creates a mandatory, conclusive presumption of
consciousness and, second, that the Mathson case dealt with a question relating to
unconsciousness caused by alcohol intoxication which explains the court’s criticism of
the last sentence of the paragraph as applied to that case.
         In any event, we do not find that the language of the last paragraph of the
instruction, quoted above, creates a mandatory, conclusive presumption. It simply
advises the jury that, if a defendant acts as if he is conscious, then he should be found to
have been conscious. If, on the other hand, there is evidence that raises a reasonable
doubt that he was conscious, he must be found not guilty. The instruction, read as a
whole, does not require the jury to find that a defendant is conscious based on the mere
fact that he is able physically to move during the course of his crime. The instruction



                                               11
tells the jury that it should presume defendant was conscious if he acted as if he were
conscious unless the jury, based on all the evidence including his physical movements or
lack thereof, has a reasonable doubt that he was conscious of his criminal acts at the time
he undertook them in which case he should be found not guilty, that is, that any
presumption of conscious is rebuttable and not conclusive.
       There being no mandatory, conclusive presumption in the instructions that the
defendant was conscious of his acts, there was no lessening of the People’s burden of
proof and no violation of the defendant’s right to due process of law.

       C.     An Instruction on Involuntary Intoxication

       Defendant argues that defendant’s request for an “accident” instruction in the form
of CALCRIM No. 3404, should have alerted the trial court of a need to give, sua sponte
an instruction on unconsciousness resulting from involuntary intoxication.
       The People counter, in part, by arguing that defendant has forfeited this argument
on appeal due to his failure to specifically ask for an instruction on involuntary
intoxication. Defendant replies that the defendant in fact did do enough to alert the court
to the need for such an instruction when defendant asked for an instruction on the defense
of “accident[].” We need not decide this point because we hold that the instructions were
a correct statement of the law and were adequate to advise the jury as to the defense of
unconsciousness under the facts and circumstances of this case.
       The second paragraph of former CALCRIM No. 3425 reads as follows:
       “Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/
[or] involuntary intoxication[,]/ [or] sleepwalking[,]/ or                     <insert a
similar condition>).”
       Because the evidence did not suggest that defendant’s lack of consciousness at the
time of the act of sexual intercourse was caused by a blackout, an epileptic seizure,




                                             12
involuntary alcohol intoxication, or sleepwalking, the trial court chose to describe the
condition that caused the asserted lack of consciousness as a “medical condition.”
       Although, for purposes of this appeal, we may accept the defendant’s argument
that involuntary intoxication can be caused by the voluntary ingestion of prescription
medication (see Mathson, supra, (2012) 210 Cal.App.4th at p. 1313), we fail to see,
under these circumstances, what such an instruction would have added to the defense that
defendant relied on before the jury. The trial court told the jury that a legal state of
unconsciousness, and, thus, a full defense to the charges they were to consider, could be
caused by a “medical condition.” The evidence at trial was uncontradicted that
defendant, suffering from diabetes, injected insulin which in turn rendered him
hypoglycemic and, according to him, legally unconscious. The jury was told, in effect,
that a medical condition, presumably given the evidence before the jury, diabetes, could,
in some circumstances, cause a lack of legal consciousness. The trial court’s instruction
supported defendant’s theory of the case. To have told the jury that defendant’s
voluntary injection of insulin could have led to involuntary intoxication and a lack of
legal consciousness would have added nothing and would have been potentially
confusing.
       Moreover, the trial court’s willingness to instruct on the defense of
unconsciousness was generous under the circumstances given that, other than the
defendant’s say-so, there was no evidence presented to the jury, expert or otherwise, that
the injection of insulin in the amount defendant injected, medically could lead to a
hypoglycemic state of unconsciousness that would allow the unconscious diabetic to
engage in an act of sexual intercourse without being aware of his actions.
       The jury was instructed in a manner that was consistent with the defense here
presented and no more was required. There was no error.




                                              13
                                              II

                            The Section 290 Registration Order

       Defendant points out that his conviction for a violation of section 261.5 is not a
conviction that requires sex offender registration under section 290 and that there is no
indication in the record that the trial court exercised its discretion to so order pursuant to
section 290.006. The People agree. We accept the concession.
       In this matter, it appears the trial court ordered defendant to register as a sex
offender pursuant to section 290 based upon the probation report’s erroneous statement
that the offense of which defendant stood convicted was one which came within the
mandatory registration requirement set forth in that statute. Given that portion of the
probation report, the court did not undertake to exercise its discretionary authority to
order defendant to register as a sex offender under section 290.006. Under the
circumstances, we will remand the matter to the trial court for its determination whether
defendant should be ordered to register as a sex offender pursuant to the provisions of
section 290.006. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1208-1209; People v.
Thompson (2009) 177 Cal.App.4th 1424, 1431.)

                                              III

                                  The Sexual Battery Fine

       Defendant next argues the court erred in assessing a $600 fine for sexual battery
pursuant to section 243.4 since defendant was not convicted of that offense. The People
concede that, defendant not having been convicted of a violation of section 243.4, the
court erred in assessing a fine pursuant to that section. But the People argue, first, that
defendant forfeited this assignment of error by not making an objection in the trial court
and, second, that, since the court had the authority to assess what the People describe as a
“civil fine” of up to $10,000 pursuant to section 261.5, subdivision (e)(1)(C), the $600
fine was somehow “authorized.” We disagree with both of the People’s arguments.

                                              14
       Regarding forfeiture, the People rely on People v. Scott (1994) 9 Cal.4th 331
(Scott). In Scott our Supreme Court held that the forfeiture doctrine “should apply to
claims involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices” (Id. at p. 353.) The court added that forfeited claims, “[i]n essence,
. . . involve sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Id. at p. 354.)
       The court in Scott also addressed “unauthorized sentence[s]” (defendant’s claim
here), which are not forfeited by failure to object in the trial court and can be raised for
the first time on appeal. The court explained that “[a]lthough the cases are varied, a
sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case. Appellate courts are willing to intervene in the first
instance because such error is ‘clear and correctable’ independent of any factual issues
presented by the record at sentencing.” (Scott, supra, 9 Cal.4th at p. 354.)
       It does not require us to turn to a citation of authority to conclude that the
sentencing error complained of here amounted to an unauthorized sentence. Put simply,
a trial court could not have lawfully imposed a $600 fine under a statute describing a
crime the defendant did not commit. The error was not forfeited.
       We also reject the People’s second argument. Section 261.5 provides in part that
an adult who violates that section may be liable for a civil penalty (inaccurately
denominated a civil “fine” by the People) up to, in defendant’s case, $10,000. (§ 261.5,
subd. (e)(1)(C).) This provision does not call for a “fine,” but is, instead, a potential civil
monetary penalty that may be assessed after the district attorney brings an action to
recover the penalty pursuant to section 261.5 subdivision (e)(2). The money recovered is
used to offset the costs of pursuing the action and is placed with the treasurer of the
county in which the judgment is entered, any overage to be deposited in the Underage
Pregnancy Prevention Fund. (Ibid.) The statute thus provides for a civil action against a
defendant who commits the crime set forth therein. The provision for a “fine” for a

                                              15
violation is set forth in section 261.5, subdivision (e)(3). To the extent the People’s
argument is essentially that, since defendant could have been (or could be) subject to a
civil penalty of up to $10,000, a $600 fine amounts to no harm, no foul, we reject that
reasoning as well.
       We will strike the $600 fine imposed under the authority of section 243.4.

                                             IV

                                  The No-Visitation Order

       At sentencing, the trial court ordered that the defendant would have no visitation
privileges with K.C., an order entered pursuant to section 1202.05. Defendant contends
the order is unauthorized because (1) a violation of section 261.5 is not one of the
offenses enumerated in section 1202.05 and (2) K.C. had reached the age of majority at
the time of defendant’s sentencing and section 1202.05 is intended only to prohibit prison
visitation between adult offenders and their minor victims, citing People v. Scott (2012)
203 Cal.App.4th 1303. The People agree the order was unauthorized. We agree, too, and
we will strike the order.

                                             V

                               Presentence Conduct Credits

       The trial court did not award presentence conduct credit under the mistaken
impression that it was precluded from doing so because the court was sentencing
defendant to an indeterminate sentence in prison. Citing a number of cases that hold to
the contrary, defendant argues that he is entitled to 568 days of presentence conduct
credits. Once again, the People concede the error but, relying on People v. Saldivar
(1984) 154 Cal.App.3d 111 (Saldivar), argue that the matter should be remanded to the
trial court for that court’s determination of the defendant’s conduct while in local
custody.



                                             16
       We agree the trial court erred in refusing to order presentence conduct credits, but
we do not agree that the matter should be remanded to the trial court. Unlike Saldivar
where the record reflected reasonably substantial evidence that the juvenile in that matter
had, in fact, been highly aggressive, had threatened the case worker, had been placed in a
security room where he was found with a piece of metal shaped into a weapon (Saldivar,
supra, 154 Cal.App. 3d at p. 115), in other words substantial evidence that the juvenile
did not have a right to presentence custody credits, there is no evidence on this record of
defendant’s having misbehaved while in local custody pending trial. And we think there
would have been had misbehavior occurred. We note that the probation report prepared
prior to sentencing, under the heading “Jail Behavior,” reported only that defendant
attempted suicide and precautions were taken to keep the defendant safe and to keep him
from harming himself. We note also that the court in Saldivar undertook an assessment
of conduct credits and determined the matter itself without remanding to the juvenile
court for its further consideration.
       Under these circumstances, it is appropriate to order that defendant shall be
awarded 568 days of local conduct credit.

                                            VI

                                       Proposition 36

       Finally, defendant argues that, by way of a retroactive application of Proposition
36, he is entitled to a remand for resentencing under the provisions of section 1170.12,
subdivision (c). Defendant asks us to follow the Fourth District Court of Appeal decision
in People v. Lewis (2013) 216 Cal.App.4th 468, review granted, Aug. 14, 2013, S211494
(Lewis) which held that Proposition 36 should have retroactive effect. Before Lewis, the
Fifth District Court of Appeal decided section 1170.12 did not have retroactive effect in
People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood). After Yearwood, but
before Lewis, this court decided People v. Conley (2013) 215 Cal.App.4th 1482 review


                                             17
granted, Aug. 14, 2013, S211275 which, among other things, held that Proposition 36
applied only to those persons not yet convicted or not yet sentenced.
       It is safe to say that the law in this area is unsettled although Yearwood, at present
at least, remains good law.
       Defendant argues section 1170.12, applies to him because his third-strike sentence
is not yet final on appeal thus requiring a remand of his case to the trial court for
resentencing. Central to his argument is the case of In re Estrada (1965) 63 Cal.2d 740
(Estrada). In Estrada the Supreme Court held that “where the amendatory statute
mitigates punishment and there is no saving clause, . . . the amendment will operate
retroactively so that the lighter punishment is imposed” in all cases in which the
judgment was not yet final when the amendment took effect. (Id. at p. 748.)
       Section 1170.12 does not have an express saving clause. But even in the absence
of an express saving clause, the rule in Estrada does not apply if the Legislature by other
language “clearly signals its intent to make the amendment prospective.” (People v.
Nasalga (1996) 12 Cal.4th 784, 793.) “ ‘[W]hat is required is that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court can discern and
effectuate it.’ [Citation.]” (Ibid.)
       Statutes enacted into law through the initiative process are construed in the same
manner, and are subject to the same principles as, statutes enacted by the Legislature.
(People v. Elliot (2005) 37 Cal.4th 453, 478.) One of the most important principles is
that statutes dealing with the same subject matter—commonly referred to as statutes “in
pari materia”—should be construed together. (People v. Honig (1996) 48 Cal.App.4th
289, 327.) Application of this rule is especially appropriate in cases where statutes
relating to the same subject matter were passed at the same time. (Stickel v. Harris
(1987) 196 Cal.App.3d 575, 590.) Section 1170.126, a related statute added by
Proposition 36, defeats the presumption of retroactivity set forth in Estrada. It authorizes



                                              18
limited application to prisoners serving three strikes sentences when the measure was
enacted and establishes a specific procedure for defendant to follow in this case.
       In particular, section 1170.126 provides for the resentencing of “persons presently
serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision
(e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence
under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd.
(a).) A person serving a three strikes sentence for a current conviction that is not a
serious or violent felony “may file a petition for a recall of sentence, within two years
after the effective date of the act that added this section or at a later date upon a showing
of good cause, before the trial court that entered the judgment of conviction in his or her
case, to request resentencing in accordance with” Proposition 36. (§ 1170.126, subd.
(b).) An inmate is eligible for resentencing unless he has prior convictions for certain
specified offenses. (§ 1170.126, subd. (e).) If the prisoner is eligible, then the trial court
will resentence the defendant “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).) The factors governing the exercise of the trial court’s
discretion—the prisoner’s criminal history, record in prison, and any other relevant
evidence—are set forth in section 1170.126, subdivision (g).
       In light of this scheme, which provides for limited application of Proposition 36 to
prisoners serving three-strikes sentences at the time of its enactment, the presumption in
Estrada does not apply as to them; it applies only to those people not yet convicted or not
yet sentenced. Those already sentenced and serving an indeterminate term of
imprisonment must petition the trial court for a recall of sentence regardless of whether or
not their judgment is final. Nothing in section 1170.126 states that its reference to
“persons presently serving an indeterminate term of imprisonment . . . whose sentence
under this act would not have been an indeterminate life sentence” is meant to apply only
to those serving a term of imprisonment under a final judgment. (§ 1170.126, subd. (a).)

                                              19
We may not insert such words into the statute. (Code Civ. Proc., § 1858; Adoption of
Kelsey S. (1992) 1 Cal.4th 816, 826-827.)
       Our conclusion that section 1170.12 does not apply retroactively is supported by
Yearwood. Yearwood buttressed its conclusion by referencing the voters’ intent in
approving the Act and by ballot arguments. According to Yearwood, enhancing public
safety was a key purpose of the Act. A prospective-only application of the Act supports
the Act’s public safety purpose by reducing the likelihood that prisoners who are
currently dangerous will be released from prison due to the Act. If the Act were given
retroactive application, prisoners in defendant’s position would be entitled to automatic
resentencing without any judicial review to ensure they do not currently pose an
unreasonable risk of danger to public safety. The time period between sentencing and
finality of judgment can span years, and prisoners can increase in dangerousness during
this interval. Such a “loophole,” the court reasoned, would be inconsistent with the
public safety purpose of the Act. (Yearwood, supra, 213 Cal.App.4th at p. 176.)
       Although not raised specifically here, we note in passing that Yearwood also
rejected the argument that failing to apply the mandatory ameliorative benefits of
Proposition 36 retroactively would violate the equal protection clause of the federal
Constitution, noting that the rational relationship test is the appropriate test, and
concluding: “Prospective application of amended sections 667 and 1170.12 furthers
legitimate interests and does not unfairly discriminate against appellant. A prisoner who
was sentenced to an indeterminate life term before the Act’s effective date may file a
section 1170.126 petition upon finality of the judgment. If qualified, the prisoner will
ordinarily receive the same sentencing reduction that would have been obtained if he or
she had been resentenced under amended sections 667 and 1170.12. The discretionary
public safety exception to second strike sentencing that is present in section 1170.126,
but not in amended sections 667 and 1170.12, is rationally related to a legitimate state
interest. It increases the likelihood that prisoners whose sentences are reduced or who are

                                              20
released due to the Act will not pose an unreasonable risk of danger to the public.”
(Yearwood, supra, 213 Cal.App.4th at pp. 178-179.)
       In any event, we agree with Yearwood and for that reason reject defendant’s
argument to the same effect.

                                      DISPOSITION

       The judgment is modified to strike the $600 fine imposed pursuant to Penal Code
section 243.4, to strike the no-visitation order imposed pursuant to Penal Code section
1202, and to order the award of 568 days presentence conduct credit. The matter is
remanded to the trial court for its consideration of whether defendant should be ordered
to register as a sex offender pursuant to Penal Code section 290.006. In all other
respects, the judgment is affirmed. The trial court shall prepare an amended abstract of
judgment consistent with this disposition and send a certified copy to the Department of
Corrections and Rehabilitation.




                                                       HULL                  , J.



We concur:



      NICHOLSON             , Acting P. J.



      HOCH                  , J.




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