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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. GERALD RUIZ, Defendant and Appellant. F064711 (Super. Ct. Nos. F11905339 & F11904566)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Fresno County. D. Tyler Tharpe, Judge. Donna J. Hooper, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys Gene ral, 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.2. Defendant Gerald Ruiz contends the tr ial court erred by not sentencing him to county jail rather than prison pursuant to the Realignment Ac t (Stats. 2011, ch. 15, § 1).
We will affirm. PROCEDURAL SUMMARY Defendant was charged in two diff erent cases on August 8, 2011, and September 16, 2011. On January 6, 2012, he pled no cont est to various offenses, including felony possession of a concealed dirk or dagger (fo rmer Pen. Code, § 12020, subd. (a)(4), now § 21310). 1 On February 7, 2012, the trial cour t 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 tria l court issued an order prohibiting
defendant’s release because he should not have been se ntenced under section 1170, subdivision (h), due to his co nviction for possession of a conc ealed dirk or dagger. The
court resentenced defendant to a to tal term of 28 months in prison. 2
DISCUSSION On April 4, 2011, the Governor appr oved the “2011 Realignment Legislation addressing public safety” (Sta ts. 2011, ch. 15, § 1), which, together with subsequent related legislation, significantly changed the sentencing and supe rvision of persons

1 All statutory references are to the Penal Code unless otherwise noted.
2 Even though defendant’s other offens es 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).)3. convicted of felony offenses. 3 With certain exceptions, a felon sentenced under the Realignment Act is committed to county jail instead of stat e prison (§ 1170, subd. (h)(1), (2)), may have a concl uding portion of his sentence su spended in lieu of probation (§ 1170, subd. (h)(5)), and is not subject to pa role (§ 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. Op erative January 1, 2012, section 12020, subdivision (a)(4), was repealed and renumbe red 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 pris on, and before his judgment was final, the Legislature amended section 21310 to make it subject to Realignment Act sentencing, with an operative date of J une 27, 2012. (§ 21310; Stats. 2012, ch. 43 (Sen. Bill No. 1023), § 94.)
Defendant contends the ame nded version of section 21 310, allowing for a county jail commitment pursuant to section 1170, subdivision (h), of the Realignment Act, should have been applied retro actively 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 ope rate retroactively so that the lighter punishment is imposed ( id. at p. 748). 4
Estrada explained: “There is one considera tion of paramount importance. It leads inevitably to the conclusion th at the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prev ail. When the Legislature

3 Our reference to the Realignment Act includes the initial enactment and subsequent legislation collectiv ely. The Realignment Act app lies 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.)4. 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 ac t. It is an inevita ble inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to ev ery case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committe d before its passage provid ed 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 ame nded version of section 21310 does not mitigate punishment within the meaning of Estrada and therefore is not retroactive. We come to this conclusion desp ite the possibility that sentenci ng 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 defe ndant 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 jurisp rudence of prospective versus retrospective operation. [¶] [T]he language of section 3 [5] erects a strong presumption of prospective operation, codifying the princi ple 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.”5. from extrinsic sources that the Legislat ure ... must have intended a retroactive application.’ [Citations.] Accordingly, ‘“a statute that is ambiguous with respect to retroactive application is cons trued ... to be unambiguously pr ospective.”’ [Citation.] Sharply departing from the languag e of section 3, the court in Estrada , supra , 63 Cal 2d 740, wrote that the ‘rule of construction [codif ied 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 th at the quoted language from Estrada ... purports (a) to justify retroactive operation on evidence of less dignity and reliab ility than the express legislative declaration, or clear implication from extrinsic evidence, that we now require under section 3 [citation], and (b) to re duce 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 e ndanger 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 wellestablished, legislatively-mandated prin ciple[.]’ [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 reas onable presumption that a le gislative act mitigating the punishment for a particular criminal offe nse is intended to apply to all nonfinal judgments. [Citation.]” ( Brown, supra, at p. 324.)
The Brown court then turned to the ques tion of whether the rule of Estrada required retroactive application of section 4019, a statute that increased the rate at which prisoners could earn credit fo r good behavior. The court stated: “The question can properly be answered only in the negative. The holding in Estrada was founded on the6. premise that ‘“[a] legislative mitigation of the penalty for a particular crime represents a legislative judgment that the le sser penalty or the different tr eatment is sufficient to meet the legitimate ends of the criminal law”’ [cit ation] and the corollary inference that the Legislature intended the lesser penalty to appl y to crimes already committed. [The court
noted that the statute at issue in Estrada reduced the minimum te rm for the crime of escape without force or violence.] In contra st, a statute increasing the rate at which prisoners may earn credits for good behavi or does not represent a judgment about the needs of the criminal law with respect to a pa rticular criminal offense, and thus does not support an analogous in ference of retroactive intent. Fo rmer 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 addre ssing 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 broa dly 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 Legislat ure would prefer to impose the new, shorter penalty rather than to ‘“satis fy a desire for vengeance”’ [cita tion]. 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 th is case because the Realignment Act does not constitute “‘“[a] legislative mitigation of the penalty for a particular crime [that] represents a legislative judgm ent that the lesser penalty or the7. different treatment is sufficient to meet th e 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 da gger. Furthermore, the Legislature’s stated intent in passing th e Realignment Act did not include mitigation of punishment. Instead, the Legislat ure “reaffirm[ed] its commitment to reducing
recidivism among criminal offenders” (§ 17.5, su bd. (a)(1), italics added), and declared that “[r]ealigning low-level felony offender s who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community-bas ed punishment, eviden ce-based practices, improved supervision stra tegies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilita te their reintegratio n back into society ” ( id. , subd. (a)(5), italics added). The Legislature also declar ed its budgetary interest, stating that “[f]iscal policy and corr ectional practices should align to promote a justice reinvestment strategy that fits each county. ‘Justic e reinvestment’ is a data-driven approach to reduce corrections and related crimi nal 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 costeffectively , generating savings that ca n be reinvested in eviden ce-based strategies that increase public safety while holding offenders accountable. ” ( Id. , subd. (a)(7), italics added.) And the Legislature noted that “‘[e]vidence-based pr actices’ refers to supervision policies, procedures, programs, and practices demonstrated by scientific
research to reduce recidivism among individuals unde r 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 Ac t reduce punishment, we conclude that the Realignment Act does not represent a “leg islative mitigation of the penalty for a particular crime” ( Estrada, supra, 63 Cal.2d at p. 745), even though it has potential to8. favorably affect a felony sentence. Accordin gly, section 21310 s hould not be applied retroactively. DISPOSITION The judgment is affirmed.