1 Filed 2/27/14 P. v. Shields CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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

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THE PEOPLE, Plaintiff and Respondent,

v. PAUL ANDREW SHIELDS, Defendant and Appellant. C070929 (Super. Ct. No. 09F00482)

Defendant, Paul Andrew Shields, stands convicted by a jury of unlawful sexual intercourse with a minor more than three ye ars younger than the defendant, in violation of section 261.5, subdivision (c) of the Pe nal 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 conv iction for assault with a dead ly weapon in violation of section 245, subdivision (a)(1) in 1991, a conviction for involuntary manslaughter with2 personal use of a handgun in violation of section 192, subdi vision (b) and section 12022, subdivision (b) in 1996, and a conviction for assault with a de adly weapon in violation of section 245, subdivision (a)(1) in 2000. Se ntenced to 25 years to life in prison, he appeals. On appeal, defendant contends: (1) he wa s prejudiced at trial by the court’s failure to correctly instruct the ju ry on the defense of unconsciousness; (2) the sex offender registration order entered pursuant to secti on 290 was unauthorized; (3) a sexual battery fine was unauthorized; (4) a “no-visitation” order entered pursuant to section 1202.05 was unauthorized; (5) defendan t 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 e rr in instructing the ju ry 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 becau se defendant was not convicted of a violation of section 243.4; (4) the “no-visitation” order en tered pursuant to section 1202.05 was unauthorized; (5) defendant is entitled to an award of presen tence local conduct credits; and (6) the defendant is not entitled to a re troactive application of the amendatory provisions of Proposition 36.

FACTS AND PROCEEDINGS The victim, K.C., testified that she met the defendant in approximately midNovember 2008 when she was visiting her father who, along with defendant, was incarcerated at San Quentin prison. At the tim e, 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 pr ison and, initially upon his release, K.C. and her mother took defend ant to a homeless shelte r in the Bay Area.3 At some point thereafter, K. C.’s mother took a job requ iring her to work weekends in Oakland and it was arranged th at defendant would watch K.C. and her siblings in their home in Rancho Cordova while thei r mother was away at work. Defendant was at K.C.’s home on the week end of December 13-14, 2008. On the evening of December 13, defend ant and K.C. were watching movies on the television in the living room. K.C. was la ying on her back on the floor with a pillow and a blanket wearing pajama bottoms and a T-shirt, but no panties. At some po int, 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 whic h 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 or al sex. She replied that she had not and ended the conversation.4 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 stat ement to the jury. Defendant admitted he had se xual intercourse with K.C. on December 3, 2008. Defendant is a diabetic and during the m onth or two before he was released from prison he was taking the medicine Glucophage and insulin inj ections, 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 thathe and K.C.’s family completed on December 13 during the day, de fendant testified that they returned home. Defendant testified to the events that took pl ace 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 finishin g 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 subj ect to her about what she wa nted 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 ha ve 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 th en 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 thi ng 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 kno w, I explained all that to her. And so I thought that was all over with. I thought she had go t that notion out of her head.5 “So she went upstairs, and she called a fe w stores. She came back downstairs, and she said she found a store. She found it in Sa n 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 wa s 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 watc hing 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 wa tching 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 downst airs. [S.] came do wnstairs, and she got something out of the refrigerato r. 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 wa nted 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; a nd drew up 20 units of NPH. That’s long-lasting insulin. And I drew up five units of regular. That’s fastacting insulin.6 “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 insu lin, 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, watchi ng some of the other movie, [K.C.] started dozing off. And I called her name once; I woke her up; and I to ld her to go to bed, go upstairs to bed. She refused. I did it twice; to ld 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 ha nd 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 sh oved her. I didn’t mean to shove her, but I shoved her and started screami ng 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 smoki ng 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 remember7 nothing else after that, but wh en -- 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, an d I know I apologized to [K.C.], and I went into the kitchen and made a sand wich to try to get my blood sugar up. One of the reasons I suffered that hypoglycemia [ sic ] attack was rememb er when I said th at 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 coul d buy something to eat because I knew they had already eaten dinner. So I had to go a ll night without eating. One of my biggest problems when I was spending the night w ith 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. A nd I’ve never been charge d with this kind of crime. I had -- did a lot of time in my life, but nothing like this.” On cross-examination, defendant said th at after he returned to the house the second time after going out to smoke a cigare tte, 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. Withou t 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 desc ribed 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 ad ult.” He was “semiconscious” to the extent8 that he remembers asking K.C. to go upstairs to get him his gl ucose. After that, he does not remember what happened.

DISCUSSION

I The Instructions Regarding th e Defense of Unconsciousness
Defendant contends that the trial court erred in three particulars in instructing the jury on the defense of unconscio usness. First, he argues that the trial court’s failure to instruct the jury that uncons ciousness 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, withou t 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; hereinafte r former CALCRIM No . 3425] which, in part, tells the jury that the law is that someone can be co nsidered 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 instructio ns 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 locomoti on or manual action.” He argues that the court’s failure to dispel this “common under standing” in the minds of the jurors was prejudicial error.9 We reject defendant’s argument for a numbe r 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 canno t 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. I ndeed, the standard dic tionary definitions of “unconscious” specifically refer to unconsciou s “actions.” Thus, the Oxford English Dictionary includes in its de finitions 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, sensati on, 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 inst ruction telling them that certain instructions may or may not apply depending on their findi ngs 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 de fense and, thus, might apply even though the defendant was physically moving while uncons cious 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 cour t erred in failing to instruct the jury that unconsciousness10 under the law does not require that a pers on be incapable of movement. The court concluded that “[b]ased upon the state of the evidence before the ju ry 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 enga ged in various affirmative activity.” ( Id . at p. 344.) So too here. The jury hear d the evidence relating to de fendant’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 abov e, that it could consider a defense of unconsciousness under the facts of th e case given the evidence before them. Nothing during the course of the trial even suggested that the defense was unavailable because the defendant was capab le of physical movement. Defendant argues that the People suggeste d 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 vic tim. 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 de fense was unlikely in the extr eme 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 he r own clothing and pos itioned defendant on top of her and, further, that in his unconsciou s state, he was able to achieve an erection and engage in sexual intercourse to the poin t 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 cl aim of unconsciousness had to be rejected solely because he was able to mo ve physically while unconscious. There was no instructional error in failing to make explicit the point that the jury must have necessarily inferred.11 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 co nsciousness.” The third paragraph of former CALCRIM No. 3425 as given to the jury in this matter, reads: “The People must prove beyond a r easonable 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 consciou s, you should conclude that (he/she) was conscious. If, however, based on all the ev idence, 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 necessa rily suggest, that the language of former CALCRIM No. 3425 create s 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 paragr aph 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 mandato ry, 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 th e other hand, there is evidence that raises a reasonable doubt that he was conscious, he must be fo und not guilty. The instruction, read as a whole, does not require the jury to find th at a defendant is conscious based on the mere fact that he is able physically to move duri ng the course of his crime. The instruction12 tells the jury that it should presume defendant was consci ous 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 wa s conscious of his crim inal acts at the time he undertook them in which case he should be fou nd not guilty, that is, that any presumption of conscious is rebuttable and not conclusive. There being no mandatory, conclusive pr esumption in the instructions that the defendant was conscious of hi s acts, there was no lessening of the People’s burden of proof and no violation of the defenda nt’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 resu lting from involuntary intoxication. The People counter, in part, by arguing th at defendant has forfeited this argument on appeal due to his failure to specifically ask for an instruc tion on involuntary intoxication. Defendant replies that the defenda nt in fact did do enough to alert the court to the need for su ch an instruction when defendant asked for an in struction on the defense of “accident[].” We need not decide this pointbecause we hold that the instructions were a correct statement of the law an d were adequate to advise th e jury as to the defense of unconsciousness under the facts and circumstances of this case. The second paragraph of former CA LCRIM No. 3425 re ads as follows: “Unconsciousness may be caused by (a bl ackout[,]/ [or] an ep ileptic seizure[,]/ [or] involuntary intoxication[,]/ [o r] sleepwalking[,]/ or < insert a similar condition >).” Because the evidence did not suggest that defendant’s la ck of consciousness at the time of the act of sexual intercourse was cau sed by a blackout, an epileptic seizure,13 involuntary alcohol intoxication, or sleepwal king, the trial court chose to describe the condition that caused the assert ed 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 instru ction would have added to the defense that defendant relied on before the jury. The trial court told the jury th at a legal state of unconsciousness, and, thus, a full defense to th e charges they were to consider, could be caused by a “medical condition.” The ev idence at trial was uncontradicted that defendant, suffering from diab etes, injected insulin wh ich in turn rendered him hypoglycemic and, according to him, legally unconscious. The jury was told, in effect, that a medical condition, presum ably given the eviden ce 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 ju ry that defendant’s voluntary injection of insulin could have le d to involuntary intoxication and a lack of legal consciousness would have added noth ing and would have been potentially confusing. Moreover, the trial court’s willingness to instruct on the defense of unconsciousness was generous under the ci rcumstances 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 defe ndant injected, medically could lead to a hypoglycemic state of unconsciousness that would allow the uncons cious 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 re quired. There was no error.14 II The Section 290 Registration Order Defendant points out that his conviction fo r a violation of sec tion 261.5 is not a conviction that requires sex offender registra tion under section 290 and that there is no indication in the record that the trial court ex ercised its discretion to so order pursuant to section 290.006. The People agree. We accept the concession. In this matter, it appears the trial cour t 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 offe nder 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.Ap p.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 convict ed of a violation of section 243.4, the court erred in assessing a fine pursuant to thatsection. 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 auth ority 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.15 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 th at forfeited claims, “[i]n essence, . . . involve sentences which, though othe rwise permitted by law, were imposed in a procedurally or factually flawed manner.” ( Id. at p. 354.) The court in Scott also addressed “unauthorized se ntence[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 explai ned 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 e rror is ‘clear and correctable’ i ndependent 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 c itation of authority to conclude that the sentencing error complained of here amounted to an unauthorized se ntence. 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 defendan t’s case, $10,000. (§ 261.5, subd. (e)(1)(C).) This provision does not call fo r 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 th erein. The provision for a “fine” for a16 violation is set forth in section 261.5, su bdivision (e)(3). To the extent the People’s argument is essentially that, si nce 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 th at the defendant woul d have no visitation privileges with K.C., an order entered pursuan t to section 1202.05. Defendant contends the order is unauthorized because (1) a viol ation of section 261.5 is not one of the offenses enumerated in secti on 1202.05 and (2) K.C. had reached the age of majority at the time of defendant’s sentencing and sec tion 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 or der was unauthorized. We agree, too, and we will strike the order.

V

Presentence Conduct Credits The trial court did not award presente nce conduct credit under the mistaken impression that it was precluded from doi ng 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 en titled to 568 days of presentence conduct credits. Once again, the People co ncede 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.17 We agree the trial court erred in refusi ng 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 reas onably substantial evidence that the juvenile in that matter had, in fact, been highly aggressive, had thre atened 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. 1 15), in other words substantia l evidence that the juvenile did not have a right to presente nce 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 misbehav ior occurred. We note that the probation report prepared prior to sentencing, under the heading “Ja il Behavior,” reported only that defendant attempted suicide and precautions were taken to keep the defendant sa fe and to keep him from harming himself. We not e also that the court in Saldivar undertook an assessment of conduct credits and determined the matte r itself without remanding to the juvenile court for its further consideration. Under these circumstances, it is appropri ate to order that defendant shall be awarded 568 days of local conduct credit.

VI Proposition 36 Finally, defendant argues that, by way of a retroactiv e 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 shoul d have retroactive effect. Before Lewis , the Fifth District Court of Appeal decided section 1170. 12 did not have retr oactive 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 review18 granted, Aug. 14, 2013, S211275 which, am ong other things, held that Proposition 36 applied only to those persons not ye t 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 savi ng clause, . . . the amendment will operate retroactively so that the lighter punishme nt 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 ha ve 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 cl arity that a reviewing court can discern and effectuate it.’ [Citation.]” ( Ibid .) Statutes enacted into law through the in itiative 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 subjec t 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 esp ecially appropriate in cases where statutes relating to the same subject matter we re passed at th e same time. ( Stickel v. Harris (1987) 196 Cal.App.3d 575, 590.) Section 1170.126, a related statute added by Proposition 36, defeats the presumptio n of retroactivity set forth in Estrada . It authorizes19 limited application to prisoners serving thre e strikes sentences when the measure was enacted and establishes a spec ific procedure for defendan t to follow in this case. In particular, section 1170.126 provides for the resentencing of “persons presently serving an indeterminate term of imprisonmen t pursuant to paragraph (2) of subdivision (e) of Section 667 or paragra ph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indete rminate life sentence.” (§ 1170.126, subd. (a).) A person serving a three strikes senten ce for a current conviction that is not a serious or violent felony “may file a petiti on for a recall of sentence, within two years after the effective date of the act that added th is section or at a later date upon a showing of good cause, before the trial court that ente red the judgment of c onviction in his or her case, to request resentencing in accordan ce 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 prisoneris eligible, then the trial court will resentence the defendant “unless the cour t, in its discretion, determines that resentencing the petitioner would pose an unreas onable risk of danger to public safety.” (§ 1170.126, subd. (f).) The factors govern ing the exercise of the trial court’s discretion—the prisoner’s criminal history, record in prison, an d any other relevant evidence—are set forth in sec tion 1170.126, su bdivision (g). In light of this scheme, which provides for limited app lication of Proposition 36 to prisoners serving three-strikes sentences at th e 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 se ction 1170.126 states that its reference to “persons presently serving an indeterminat e term of imprisonment . . . whose sentence under this act would not have been an indete rminate life sentence” is meant to apply only to those serving a term of imprisonment under a final judgment. (§ 1170.126, subd. (a).)20 We may not insert such words into th e statute. (Code Civ. Proc., § 1858; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826-827.) Our conclusion that secti on 1170.12 does not apply retr oactively is supported by Yearwood

. Yearwood buttressed its conclusion by refe rencing 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 pros pective-only application of the Act supports the Act’s public safety purpose by reducing the likelihood that prisoners who are currently dangerous will be re leased from prison due to the Act. If the Act were given retroactive application, prisoners in defe ndant’s position would be entitled to automatic resentencing without any judicial review to ensure they do no t currently pose an unreasonable risk of danger to public safe ty. The time period between sentencing and finality of judgment can span years, and pr isoners can increase in dangerousness during this interval. Such a “loophole,” the cour t reasoned, would be inconsistent with the public safety purpose of the Act. ( Yearwood , supra , 213 Cal.App.4t h at p. 176.) Although not raised specifically here, we note in passing that Yearwood also rejected the argument that failing to appl y the mandatory ameliorative benefits of Proposition 36 retroactively would violate th e equal protection clause of the federal Constitution, noting that the rational relati onship test is the appropriate test, and concluding: “Prospective application of am ended sections 667 and 1170.12 furthers legitimate interests and does not unfairly disc riminate against appe llant. 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 th e judgment. If qualified, the prisoner will ordinarily receive the same sentencing reducti on that would have been obtained if he or she had been resentenced under amended sec tions 667 and 1170.12. The discretionary public safety exception to s econd strike sentencing that is present in section 1170.126, but not in amended sections 6 67 and 1170.12, is rationally related to a legitimate state interest. It increases the likelihood that pr isoners whose sentences are reduced or who are21 released due to the Act will not pose an unrea sonable risk of dangerto 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 or der imposed pursuant to Penal Code section 1202, and to order the award of 568 days presentence cond uct credit. The matter is remanded to the trial court for its considera tion 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 affirm ed. 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.