People v. Cruz

• Citation: 2012 Daily Journal D.A.R. 9306,143 Cal.Rptr.3d 742,207 Cal.App.4th 664,12 Cal. Daily Op. Serv. 7662
• Decision Date: 03 July 2012
• Docket Number: No. F062189.,F062189.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuel Miramontes CRUZ, Jr., Defendant and Appellant.

207 Cal.App.4th 664

143 Cal.Rptr.3d 742

12 Cal. Daily Op. Serv. 7662

2012 Daily Journal D.A.R. 9306

The PEOPLE, Plaintiff and Respondent,

v.Manuel Miramontes CRUZ, Jr., Defendant and Appellant.

No. F062189.

Court of Appeal, Fifth District, California.

July 3, 2012.

Paul Stubb, Jr., Tustin, 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, Rachelle A. Newcomb and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

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 convicted of felony offenses.¹ The sentencing changes made by the Act apply, by its express terms, “prospectively to any person sentenced on or after October 1, 2011.” ( Pen.Code, § 1170, subd. (h)(6).²) The question raised on appeal is whether a defendant, who was sentenced before October 1, 2011, but whose conviction is not yet final on appeal, is entitled to be resentenced under the Act's provisions, specifically subdivision (h) of section 1170. We conclude the answer is no. The sentencing changes made by the Act apply only to persons sentenced on or after October 1, 2011, and such prospective-only application does not violate equal protection.³

PROCEDURAL HISTORY

On March 25, 2011, a jury convicted defendant Manuel Miramontes Cruz, Jr., of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a); count 1), and possessing methamphetamine for sale ( id., § 11378; count 2).⁴ Two prior narcotic conviction allegations ( Health & Saf.Code, § 11370.2, subd. (c)) were stricken upon the prosecutor's motion, in return for defendant's agreement to immediate sentencing. Defendant was sentenced to state prison for a total unstayed term of four years and ordered to pay a restitution fine. A parole revocation restitution fine ( § 1202.45) was stayed pending successful completion of parole.

DISCUSSION

The Act added section 17.5 to the Penal Code. (Stats.2011, ch. 15, § 229.) That statute provides:

“(a) The Legislature finds and declares all of the following:

“(1) The Legislature reaffirms its commitment to reducing recidivism among criminal offenders.

“(2) Despite the dramatic increase in corrections spending over the past two decades, national reincarceration rates for people released from prison remain unchanged or have worsened. National data show that about 40 percent of released individuals are reincarcerated within three years. In California, the recidivism rate for persons who have served time in prison is even greater than the national average.

“(3) Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety.

“(4) California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety returns on this state's substantial investment in its criminal justice system.

“(5) Realigning 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.

“(6) Community-based corrections programs require a partnership between local public safety entities and the county to provide and expand the use of community-based punishment for low-level offender populations. Each county's Local Community Corrections Partnership, as established in paragraph (2) of subdivision (b) of Section 1230, should play a critical role in developing programs and ensuring appropriate outcomes for low-level offenders.

“(7) Fiscal 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.

“(8) ‘Community-based punishment’ means correctional sanctions and programming encompassing a range of custodial and noncustodial responses to criminal or noncompliant offender activity. Community-based punishment may be provided by local public safety entities directly or through community-based public or private correctional service providers, and include, but are not limited to, the following:

“(A) Short-term flash incarceration in jail for a period of not more than 10 days.

“(B) Intensive community supervision.

“(C) Home detention with electronic monitoring or GPS monitoring.

“(D) Mandatory community service.

“(E) Restorative justice programs such as mandatory victim restitution and victim-offender reconciliation.

“(F) Work, training, or education in a furlough program pursuant to Section 1208.

“(G) Work, in lieu of confinement, in a work release program pursuant to Section 4024.2.

“(H) Day reporting.

“(I) Mandatory residential or nonresidential substance abuse treatment programs.

“(J) Mandatory random drug testing.

“(K) Mother-infant care programs.

“(L) Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions.

“(9) ‘Evidence-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.

“(b) The provisions of this act are not intended to alleviate state prison overcrowding.”

The Act shifted responsibility for housing and supervising certain felons from the state to the individual counties. Thus, insofar as is germane to this appeal, the Act provides that, once probation has been denied, felons who are eligible to be sentenced under realignment will serve their terms of imprisonment in local custody rather than state prison.⁵ If the penal statute specifies the defendant shall be punished by imprisonment pursuant to section 1170, subdivision (h), without specifying a particular term of punishment, the crime is “punishable by a term of imprisonment in a county jail for 16 months, or two or three years.” ( Id., subd. (h)(1).) If the penal statute calls for punishment pursuant to section 1170, subdivision (h), and specifies a term, the offense is “punishable by imprisonment in a county jail for the term described in the underlying offense” ( id., subd. (h)(2)), even when the sentence exceeds the 16 month, two year, or three year triad. The Act does not change the length of term or sentencing triad for any offense.

In sentencing a defendant to county jail under section 1170, subdivision (h)(1) or (2), the trial court has an alternative to a straight commitment to jail for the term specified by statute ( id., subd. (h)(5)(A)). It can impose a hybrid sentence in which it suspends execution “of a concluding portion of the term” and sets terms and conditions for mandatory supervision by the county probation officer. ( Id., subd. (h)(5)(B).) Additionally, a defendant sentenced under section 1170, subdivision (h)—whether to a straight jail term or to a hybrid term—is not subject to a state parole period after his or her sentence is completed. (§ 3000, subd. (a)(1) [parole included in sentence resulting in imprisonment in the state prison].) ⁶ A defendant sentenced to state prison is subject to a mandatory period of supervision following release, either parole supervision by the state ( § 3000 et seq.), or postrelease community supervision by a county probation department ( § 3450 et seq.).

The offenses of which defendant was convicted and for which he was sentenced to prison now require, if probation is denied, imposition of a county jail sentence. (Health & Saf.Code, § 11378, as amended by Stats.2011, ch. 15, § 172, eff. Apr. 4, 2011, operative Oct. 1, 2011; Health & Saf.Code, § 11379, subd. (a), as amended by Stats.2011, ch. 15, § 174, eff. Apr. 4, 2011, operative Oct. 1, 2011.)

In In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948( Estrada ), the California Supreme Court examined two amended statutes that mitigated punishment (former §§ 3044 & 4530) and found they applied retroactively to an act committed prior to the effective date of the amendments when the effective date of the amendments occurred before the date of final judgment in the case.⁷( Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) “[D]id the Legislature intend the old or new statute to apply? Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.” ( Ibid.) The state high court then examined section 3, Government Code section 9608, and common law, to determine the Legislative intent for the date of application. ( Estrada, supra, 63 Cal.2d at pp. 744–748, 48 Cal.Rptr. 172, 408 P.2d 948.)

Contrary to the statutes examined in Estrada, the amended statute in this case (§ 1170(h)) contains an express statement (a saving clause) by the Legislature as to...