Amended Penal Code Section 4019 - Update
On March 1, 2010, the Fifth District held that the amended version of Penal Code section 4019 does not apply retroactively. (People v. Rodriguez, F057533.) In light of this holding, we were recommending making all claims concerning the statute in the Court of Appeal. On March 16, 2010, the Third District held the statute does apply retroactively. (People v. Brown, C056510.) Because there is a conflict of authority, the superior court has the discretion to choose which case it finds more persuasive. If you have a case where a ruling is needed quickly in order to provide the client meaningful relief, you should first file a motion in the superior court. The California Supreme Court granted review in the two cases and in other cases concerning the issue.
The issue should also be raised on appeal. If you have already filed an opening brief, it will be necessary to seek leave to file a supplemental opening brief. If you have never filed a supplemental opening brief in the Sixth District, please contact your assisting SDAP attorney for guidance regarding the protocol. If the Court of Appeal has already filed an opinion and you are within the 15-day period for filing a petition for rehearing, you should do so. If you are past the 15-day period, please note that the Court of Appeal retains jurisdiction over the case for the 30 days after it issues its decision. Thus, you can file a petition for rehearing in conjunction with a request for relief from default from the untimely filing of the petition for rehearing. Finally, if the Court of Appeal has lost jurisdiction, you should raise the issue in a petition for review and ask that the section 4019 issue be remanded to the Court of Appeal. (California Rules of Court, rule 8.528(d).)
We suggest that three separate arguments should be advanced in support of a claim for additional section 4019 credits: (1) Section 59 of Senate Bill 18 evinces the Legislature's intent that the new statute was intended to be fully retroactive to all judgments, even those final; (2) under the general rules of statutory interpretation, an ameliorative statute, such as section 4019, must be applied retroactively as to those judgments not yet final; and (3) the statute must be retroactively applied to all judgments, even those final, under equal protection principles. Note that not all three arguments were included in the sample supplemental brief and the sample rehearing petition.
In our judgment, the equal protection point is particularly meritorious. In rejecting the equal protection claim, the Rodriguez court relied on In re Stinnette (1979) 94 Cal.App.3d 800. There are two fundamental problems with this conclusion. First, subsequent to Stinnette, the Supreme Court awarded retroactive section 4019 credits on an equal protection theory. (People v. Sage (1980) 26 Cal.3d 498, 509, fn. 7.) Under the rule of stare decisis, Sage controls over Stinnette. Second, the rationale of Stinnette is that it is "impossible to influence behavior after it has occurred." (Stinnette, supra, 94 Cal.App.3d at p. 806.) However, this rationale has no application to the present situation since our clients have already been awarded conduct credits. In other words, our clients have already demonstrated the factual basis for an award of the additional credits (i.e. they have behaved). Viewed from this perspective, the identical equal protection problem is presented as occurred in In re Kapperman (1974) 11 Cal.3d 542: There are two classes of state prisoners (those who get the extra credits after January 24, 2010 and those who do not). Since both classes are identically situated (i.e. they behaved identically in the county jail), they cannot be treated differently.
The sample motion and briefing provided below are older and do not track the recent publication and depublication of cases. As always, if you should have any questions, please do not hesitate to contact your assisting attorney.
Sample motion - pdf
Sample motion - Word
Sample motion - Wordperfect
Sample brief - pdf Sample brief - Word
Sample brief - Wordperfect
Sample supplemental brief - pdf
Sample supplemental brief - Word
Sample supplemental brief - Wordperfect
Sample rehearing petition - pdf
Sample rehearing petition - Word
Sample rehearing petition - Wordperfect
(March 2, 2010; updated March 19, 2010)
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