Filed 12/18/13 P. v. Ruiz CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064711
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. F11905339 &
                   v.                                                                F11904566)

GERALD RUIZ,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
         Donna J. Hooper, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Kane, J. and Oakley, J.†
†
        Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
       Defendant Gerald Ruiz contends the trial court erred by not sentencing him to
county jail rather than prison pursuant to the Realignment Act (Stats. 2011, ch. 15, § 1).
We will affirm.
                             PROCEDURAL SUMMARY
       Defendant was charged in two different cases on August 8, 2011, and
September 16, 2011.
       On January 6, 2012, he pled no contest to various offenses, including felony
possession of a concealed dirk or dagger (former Pen. Code, § 12020, subd. (a)(4), now
§ 21310).1
       On February 7, 2012, the trial court sentenced him pursuant to former
section 1170, subdivision (h) of the Realignment Act to a total term of 28 months, half to
be served in jail and half on mandatory supervision.
       On March 16, 2012, however, the trial court issued an order prohibiting
defendant’s release because he should not have been sentenced under section 1170,
subdivision (h), due to his conviction for possession of a concealed dirk or dagger. The
court resentenced defendant to a total term of 28 months in prison.2
                                      DISCUSSION
       On April 4, 2011, the Governor approved the “2011 Realignment Legislation
addressing public safety” (Stats. 2011, ch. 15, § 1), which, together with subsequent
related legislation, significantly changed the sentencing and supervision of persons




1      All statutory references are to the Penal Code unless otherwise noted.
2     Even though defendant’s other offenses were eligible for Realignment Act
sentencing, every offense must be eligible for a defendant to be sentenced under the
Realignment Act. (§ 1170.1, subd. (a).)



                                             2.
convicted of felony offenses.3 With certain exceptions, a felon sentenced under the
Realignment Act is committed to county jail instead of state prison (§ 1170, subd. (h)(1),
(2)), may have a concluding portion of his sentence suspended in lieu of probation
(§ 1170, subd. (h)(5)), and is not subject to parole (§ 3000 et seq.). Felony possession of
a concealed dirk or dagger (former § 12020, subd. (a)(4)) was not initially subject to
sentencing under the Realignment Act. Operative January 1, 2012, section 12020,
subdivision (a)(4), was repealed and renumbered as section 21310, as part of a
reorganization without substantive change, but it was still not made subject to
Realignment Act sentencing. (Former § 21310; Stats. 2010, ch. 711, § 6.) Then, a few
months after defendant was sentenced to prison, and before his judgment was final, the
Legislature amended section 21310 to make it subject to Realignment Act sentencing,
with an operative date of June 27, 2012. (§ 21310; Stats. 2012, ch. 43 (Sen. Bill
No. 1023), § 94.)
       Defendant contends the amended version of section 21310, allowing for a county
jail commitment pursuant to section 1170, subdivision (h), of the Realignment Act,
should have been applied retroactively to him under the rule of In re Estrada (1965) 63
Cal.2d 740 (Estrada), which states that an amendatory statute that mitigates punishment
and has no saving clause will operate retroactively so that the lighter punishment is
imposed (id. at p. 748).4
       Estrada explained: “There is one consideration of paramount importance. It leads
inevitably to the conclusion that the Legislature must have intended, and by necessary
implication provided, that the amendatory statute should prevail. When the Legislature

3       Our reference to the Realignment Act includes the initial enactment and
subsequent legislation collectively. The Realignment Act applies to persons sentenced on
or after October 1, 2011. (§ 1170, subd. (h)(6).)
4     A saving clause expressly states when the statute applies. (See People v. Cruz
(2012) 207 Cal.App.4th 664, 672.)



                                             3.
amends a statute so as to lessen the punishment it has obviously expressly determined
that its former penalty was too severe and that a lighter punishment is proper as
punishment for the commission of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the judgment convicting
the defendant of the act is not final. This intent seems obvious, because to hold otherwise
would be to conclude that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63
Cal.2d at pp. 744-745, italics added.)
       Our conclusion here is that the amended version of section 21310 does not
mitigate punishment within the meaning of Estrada and therefore is not retroactive. We
come to this conclusion despite the possibility that sentencing under the Realignment Act
may effectively lessen punishment by allowing a hybrid sentence of jail and probation
and by not requiring parole.
       We find the recent case of People v. Brown (2012) 54 Cal.4th 314 (Brown)
instructive. There, the defendant contended the rule of Estrada required that former
section 4019 apply retroactively. (Brown, supra, at pp. 323-324.) The Brown court
disagreed and concluded that Estrada did not apply. (Id. at p. 324.) The court stressed
“the limited role Estrada properly plays in our jurisprudence of prospective versus
retrospective operation. [¶] [T]he language of section 3[5] erects a strong presumption of
prospective operation, codifying the principle that, ‘in the absence of an express
retroactivity provision, a statute will not be applied retroactively unless it is very clear

5      Section 3 states that “[n]o part of [the Penal Code] is retroactive, unless expressly
so declared.”



                                               4.
from extrinsic sources that the Legislature … must have intended a retroactive
application.’ [Citations.] Accordingly, ‘“a statute that is ambiguous with respect to
retroactive application is construed … to be unambiguously prospective.”’ [Citation.]
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.’ [Citation.]
[¶] One immediately sees that the quoted language from Estrada … 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 [citation], 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 …, 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[.]’ [Citations.] Accordingly, Estrada is
today properly understood, not as weakening or modifying the default rule of prospective
operation codified 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. [Citation.]” (Brown, supra, at p. 324.)
       The Brown court then turned to the question of whether the rule of Estrada
required retroactive application of section 4019, a statute that increased the rate at which
prisoners could earn credit for good behavior. The court stated: “The question can
properly be answered only in the negative. The holding in Estrada was founded on the

                                               5.
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”’ [citation] and the corollary inference that the
Legislature intended the lesser penalty to apply to crimes already committed. [The court
noted that the statute at issue in Estrada reduced the minimum term for the crime of
escape without force or violence.] 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.” (Brown, supra, 54 Cal.4th at p. 325, fn. omitted.)
       The Brown court also rejected the defendant’s argument that Estrada “should be
understood to apply more broadly to any statute that reduces punishment in any manner,
and that to increase credits is to reduce punishment.” (Brown, supra, 54 Cal.4th at
p. 325.) The court explained: “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”’ [citation] 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”’ [citation]. The same logic does
not inform our understanding of a law that rewards good behavior in prison.” (Ibid., fn.
omitted.)
       As in Brown, we conclude that Estrada does not apply in this case because the
Realignment Act does not constitute “‘“[a] legislative mitigation of the penalty for a
particular crime [that] represents a legislative judgment that the lesser penalty or the

                                              6.
different treatment is sufficient to meet the legitimate ends of the criminal law”’” (Brown,
supra, 54 Cal.4th at p. 325). The Realignment Act does not alter the sentences for the
felonies it embraces, including possession of a concealed dirk or dagger. Furthermore,
the Legislature’s stated intent in passing the Realignment Act did not include mitigation
of punishment. Instead, the Legislature “reaffirm[ed] its commitment to reducing
recidivism among criminal offenders” (§ 17.5, subd. (a)(1), italics added), and declared
that “[r]ealigning low-level felony offenders who do not have prior convictions for
serious, violent, or sex offenses to locally run community-based corrections programs,
which are strengthened through community-based punishment, evidence-based practices,
improved supervision strategies, and enhanced secured capacity, will improve public
safety outcomes among adult felons and facilitate their reintegration back into society”
(id., subd. (a)(5), italics added). The Legislature also declared its budgetary interest,
stating that “[f]iscal policy and correctional practices should align to promote a justice
reinvestment strategy that fits each county. ‘Justice reinvestment’ is a data-driven
approach to reduce corrections and related criminal justice spending and reinvest
savings in strategies designed to increase public safety. The purpose of justice
reinvestment is to manage and allocate criminal justice populations more cost-
effectively, generating savings that can be reinvested in evidence-based strategies that
increase public safety while holding offenders accountable.” (Id., subd. (a)(7), italics
added.) And the Legislature noted that “‘[e]vidence-based practices’ refers to
supervision policies, procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals under probation, parole, or post release
supervision.” (Id., subd. (a)(9), italics added.)
       In light of the explicit language of section 3 and the lack of any express
Legislative intent that the Realignment Act reduce punishment, we conclude that the
Realignment Act does not represent a “legislative mitigation of the penalty for a
particular crime” (Estrada, supra, 63 Cal.2d at p. 745), even though it has potential to

                                              7.
favorably affect a felony sentence. Accordingly, section 21310 should not be applied
retroactively.
                                    DISPOSITION
       The judgment is affirmed.




                                           8.
