People v. Acosta (48 Cal. App. 4th 411, 1996)

Opinion

TURNER, P. J.

Defendant, Idar A. Acosta, appeals from a judgment entered following a trial in which: the jury returned a verdict of guilty of sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)); he admitted two prior serious felony convictions allegations (Pen. Code, § 667.5, subd. (b)); and he admitted a single prior controlled substance conviction allegation. (Health & Saf. Code, § 11370.2, subd. (a).) In the published portion of the opinion, we address the question of whether defendant can present for the first time on appeal his contention that the trial court miscalculated the award of presentence credits.

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Defendant contends he is entitled to additional presentence custody and conduct credits. (§§ 2900.5, 4019.) We agree. However, before calculating the amount of presentence credits, we address an issue the parties have been given an opportunity to brief—the effect of section 1237.1 on defendant’s right to raise the question of the correctness of the award of custody and conduct credits. In 1995, the Legislature amended section 1237, subdivision (a), the statute that provides for a right to appeal, to state in pertinent part: “An appeal may be taken by the defendant: [cm (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5.” Also, the Legislature adopted section 1237.1, which provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.” In the present case, defendant did not file a motion in the trial court seeking to correct award of presentence credits. Section 1237.1 was not adopted as urgency legislation and became effective January 1, 1996. (Stats. 1995, ch. 18, § 2; Cal. Const., art. IV, § 8, subd. (c)(1).) Defendant argues that section 1237.1 does not apply to the present case because his notice of appeal was filed May 5, 1995, prior to the January 1, 1996, effective date of section 1237.1. Based upon our Supreme Court’s approval in Tapia v. Superior Court (1991) 53 Cal.3d 282, 289 [279 Cal.Rptr. 592, 807 P.2d 434] (hereafter Tapia) of the holding of Andrus v. Municipal Court (1983) 143 Cal.App.3d 1041, 1046-1047 [192 Cal.Rptr. 341] (hereafter Andrus), disapproved on another point in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207, footnote 11 [246 Cal.Rptr. 629, 753 P.2d 585], we conclude section 1237.1 should apply even though the notice of appeal was filed prior to the effective date of section 1237.1.

Section 3 states: “Not Retroactive. No part of it is retroactive, unless expressly so declared.” As a general rule, criminal statutes are therefore applied prospectively only, in the absence of a legislative intent to the contrary. (People v. Teron (1979) 23 Cal.3d 103, 116-117 [151 Cal.Rptr. 633, 588 P.2d 773], disapproved on other grounds in People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7 [170 Cal.Rptr. 798, 621 P.2d 837]; Sekt v. Justice’s Court (1945) 26 Cal.2d 297, 299-310 [159 P.2d 17, 167 A.L.R. 833]; 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 37, p. 46.) The problem that arises is what is being retroactively applied. In Tapia, supra, 53 Cal.3d at page 288, our Supreme Court described a dichotomy in terms of retroactive application of a statute in the criminal context as follows: “There remains the question of what the terms ‘prospective’ and ‘retrospective’ mean. Tapia argues that a law is being applied retrospectively if it is applied to the prosecution of a crime committed before the law’s effective date. For some types of laws, the test which Tapia proposes is clearly appropriate. Certainly a law is retrospective if it defines past conduct as a crime, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on such conduct. Such a law, as applied to a past crime, ‘change[s] the legal consequences of an act completed before [the law’s] effective date,’ namely the defendant’s criminal behavior. [Citations.] Application of such a law to past crimes would also violate the constitutional rule against ex post facto legislation. [Citations.] [ffl Tapia’s proposed test is not appropriate, however, for laws which address the conduct of trials which have yet to take place, rather than criminal behavior which has already taken place. Even though applied to the prosecution of a crime committed before the law’s effective date, a law addressing the conduct of trials still addresses conduct in the future. This is a principle that courts in this state have consistently recognized. Such a statute ‘ “is not made retroactive merely because it draws upon facts existing prior to its enactment.... [Instead,] [t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.’ [Citations.] For this reason, we have said that ‘it is a misnomer to designate [such statutes] as having retrospective effect.’ [Citation.]”

In Tapia, supra, 53 Cal.3d at pages 288-289, our Supreme Court further described the retroactive effect of statutes to future trials and appeals as follows: “We previously addressed this issue in Estate of Patterson (1909) 155 Cal. 626 .... The case involved the proof of a will that was destroyed in the great San Francisco fire of 1906. The testatrix died later that year, unaware that her will was gone. In 1907, the Legislature amended the Civil Code to permit proof of a will ‘ “shown to have been ... by public calamity destroyed in the lifetime of the testator, without his knowledge . . . ’ [Citation.] Holding the new statute applicable, we stated that ‘[i]t is a mistake to characterize the amendment of section 1339 as a retrospective law. It relates wholly to what shall be done upon the trial of the application for probate, the proof that must be furnished and the facts which must be established. It applies only to trials which take place after its enactment. It can have no effect whatever on previous trials or enactments. It is prospective only in its nature.’ [Citation.]”

Thereupon, our Supreme Court illustrated the point as follows, which as will be noted includes a specific reference to Andrus: “Courts came to the same conclusion in subsequent decisions. In Strauch v. Superior Court [(1980)] 107 Cal.App.3d 45 [165 Cal.Rptr. 552], the court held to be prospective a statute which imposed on plaintiffs in malpractice suits the requirement of filing a certificate of merit, even as applied to causes of action that accrued before the statute’s effective date. The new statute operated prospectively because it did not ‘create a new cause of action or deprive a malpractice defendant of any defense on the merits or affect vested rights.’ [Citation.] Similarly, in Andrus v. Municipal Court[,] [supra,] 143 Cal.App.3d 1041 . . . , the court immediately applied a new statute eliminating the right to appeal from certain orders of the superior court denying extraordinary relief. Noting that ‘[retroactive is not an apt word, of course,’ the court found it ‘absurd’ to ‘subscribe to the notion that the Legislature desired to postpone the demise of a procedural loophole . . . .’ (Andrus v. Municipal Court, supra, [143 Cal.App.3d] at p. 1047.)” (Tapia, supra, 53 Cal.3d at p. 289.)

In Andrus, the authority cited with approval in Tapia, the municipal court denied a criminal defendant’s motion for a court reporter. The defendant filed a petition for writ of mandate in the superior court, seeking to set aside the order denying the motion for a court reporter. The superior court denied his petition. On June 22, 1982, the defendant filed his notice of appeal as permitted under then existing law. (Andrus, supra, 143 Cal.App.3d at p. 1044.) Effective January 1,1983, Code of Civil Procedure section 904.1 was amended to prohibit appeals from the denial of a criminal defendant’s mandate petition which was denied in the superior court. The Court of Appeal noted that when the notice of appeal was filed, the defendant was “unquestionably entitled to appeal as a matter of statutory right.” (143 Cal.App.3d at p. 1045.) Nonetheless, the Court of Appeal held that section 3 did not act to permit the appeal to proceed. The court held: “To deny retroactive application to the amendment of section 904.1 is to subscribe to the notion that the Legislature desired to postpone the demise of a procedural loophole which was inequitable to defendants accused of more serious offenses, placed unnecessary and redundant burdens on the appellate courts, and provided for concurrent and possibly inconsistent appellate review of the same issue. We find that proposition absurd. The Legislature must be presumed to act in light of existing judicial decisions. [Citation.] There could be no good reason to differentiate between cases where the superior court ruled on a petition for extraordinary relief before rather than after January 1, 1983, so long as pending appeals are treated as writ petitions pursuant to the statutory change. [H The district attorney argues, persuasively in our view, where a statutory procedural right or remedy is repealed, the repealer is effective on the date it is enacted in the absence of a savings clause. Since the pretrial writ/appeal procedure was a purely statutory creature, we hold it expired, like most parasites, with the demise of its host. [Citations.]” (Andrus, supra, 143 Cal.App.3d at pp. 1047-1048, fn. omitted.)

The foregoing analysis in Andrus, the decision cited with approval in Tapia, is consistent with well established California law. The black letter statement of our state’s law concerning the repeal of a statutory remedy while a case is on appeal is contained in Governing Board v. Mann (1977) 18 Cal.3d 819, 829 [135 Cal.Rptr. 526, 558 P.2d 1], where the California Supreme Court held: “A long well-established line of California decisions conclusively refutes plaintiff’s contention. Although the courts normally construe statutes to operate prospectively, the courts correlatively hold under the common law that when a pending action rests solely on a statutory basis, and when no rights have vested under the statute, ‘a repeal of [the] statute without a saving clause will terminate all pending actions based thereon.’ (Southern Service Co., Ltd. v. Los Angeles [(1940)] 15 Cal.2d 1, 11-12 [97 P.2d 963].) [¶] As explained nearly 50 years ago in Callet v. Alioto (1930) 210 Cal. 65, 67-68 . . . : ‘It is too well settled to require citation of authority, that. . . every statute will be construed to operate prospectively and will not be given a retrospective effect, unless the intention that it should have that effect is clearly expressed. . . . It is also a general rule, subject to certain limitations not necessary to discuss here, that a cause of action or remedy dependent on a statute falls with a repeal of the statute, even after the action thereon is pending, in the absence of a saving clause in the repealing statute. [Citations.] The justification for this rule is that all statutory remedies are pursued with full realization that the [Legislature may abolish the right to recover at any time.’ (See generally la Sutherland, Statutory Construction (4th ed. 1972) § 23.33, pp. 279-281.)” (Accord, Younger v. Superior Court (1978) 21 Cal.3d 102, 109 [145 Cal.Rptr. 674, 577 P.2d 1014]; Stacy & Witbeck, Inc. v. City and County of San Francisco (1995) 36 Cal.App.4th 1074, 1085-1086 [42 Cal.Rptr.2d 805]; Baker v. Sudo (1987) 194 Cal.App.3d 936, 944-945 [240 Cal.Rptr. 38]; South Coast Regional Com. v. Gordon (1978) 84 Cal.App.3d 612, 615 [148 Cal.Rptr. 775]; Estes v. City of Grover City (1978) 82 Cal.App.3d 509, 515-516 [147 Cal.Rptr. 131].) When there is a repeal of a statute affecting the right to appeal, the appellate court decides the case under the law in effect at the time of the decision. As the Supreme Court held in Southern Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 12 [97 P.2d 963]: “ ‘The unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when its decision is rendered.' " (Italics added; accord, Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489 [6 Cal.Rptr.2d 60]; Chapman v. Farr (1982) 132 Cal.App.3d 1021, 1024 [183 Cal.Rptr. 606]; Department of Social Welfare v. Wingo (1946) 77 Cal.App.2d 316, 320 [175 P.2d 262].)

The foregoing state of the law is directly applicable to the present case. Prior to the adoption of section 1237.1, some courts required motions to correct a grant of presentence credits be made in the trial court before the issue could be raised on appeal. (People v. Salazar (1994) 29 Cal.App.4th 1550, 1557 [35 Cal.Rptr.2d 221]; People v. Culpepper (1994) 24 Cal.App.4th 1134, 1138 [29 Cal.Rptr.2d 719]; People v. Fares (1993) 16 Cal.App.4th 954, 958 [20 Cal.Rptr.2d 314].) However, because our Supreme Court has held that miscalculation of presentence credits is a jurisdictional error which can be raised on appeal even though the issue was never presented to the trial judge, in most districts and divisions, defendants were free to raise issues concerning presentence credits on appeal as a jurisdictional error even though no correction motion was ever raised in the trial court. (People v. Karaman (1992) 4 Cal.4th 335, 349-350 [14 Cal.Rptr.2d 801, 842 P.2d 100] [presentence credits issue involves a legally unauthorized sentence]; Wilson v. Superior Court (1980) 108 Cal.App.3d 816, 818-819 [166 Cal.Rptr. 795] [a legally unauthorized sentence is subject to judicial correction whenever discovered].) However, section 1237.1 has changed the state of the law concerning a defendant raising an issue of presentence credits. The right to appeal is solely statutory. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 33-35 [164 Cal.Rptr. 1, 609 P.2d 468] [“a judgment or order is not appealable unless expressly made so by statute”]; Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78 [65 Cal.Rptr. 65, 435 P.2d 825] [“a party possesses no right of appeal except as provided by statute”]; People v. Keener (1961) 55 Cal.2d 714, 720 [12 Cal.Rptr. 859, 361 P.2d 587], disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844 [52 Cal.Rptr. 4, 415 P.2d 819] [“an order is not appealable unless declared to be so by the Constitution or by statute”]; People v. Valenti (1957) 49 Cal.2d 199, 204 [316 P.2d 633], disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647 [25 Cal.Rptr. 697, 375 P.2d 641] [“the right of appeal is statutory and a judgment... is not appealable unless it is expressly made so by statute”]; Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728 [192 P.2d 916] [“the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable”]; Trede v. Superior Court (1943) 21 Cal.2d 630, 634 [134 P.2d 745] [there being no constitutional right of appeal; “the appellate procedure is entirely statutory and subject to complete legislative control”]; Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386 [264 P. 488] [“right of appeal is statutory and may be granted or withheld”].) Therefore, since there has been a statutory modification of the right to appeal issues concerning miscalculation of presentence credits by a defendant, given the aforementioned body of law, that question cannot be raised until defendant makes a motion to correct the award of presentence credits in the trial court even though he filed his notice appeal prior to the effective date of section 1237.1. Solely on that ground, we will not consider defendant’s contention he is entitled to an additional award of presentence credits.

However, the parties raise an additional consideration which leads us to conclude that section 1237.1 only applies when the sole issue raised on appeal involves a criminal defendant’s contention that there was a miscalculation of presentence credits. In other words, section 1237.1 does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal. Whether section 1237.1 is limited to cases where the sole issue on appeal relates to presentence credits is an issue of statutory interpretation. In construing statues, we apply the following standard of review described by our Supreme Court: “When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826 [25 Cal.Rptr.2d 148, 863 P.2d 218]; People v. Jones (1993) 5 Cal.4th 1142, 1146 [22 Cal.Rptr.2d 753, 857 P.2d 1163].) Further, our Supreme Court has noted: “‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) ....’” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753,789 P.2d 934].) However, the literal meaning of a statute must be in accord with its purpose as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659 [25 Cal.Rptr.2d 109, 863 P.2d 179] as follows: “We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute] . . . .’ ” In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299], our Supreme Court added: “The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation] . . . .” One of the factors we consider in determining the legislative intent is the “ ‘object in view’ ” and the problem the Legislature was addressing. (See Walters v. Weed (1988) 45 Cal.3d 1, 10 [246 Cal.Rptr. 5, 752 P.2d 443]; Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733 [114 Cal.Rptr. 460, 523 P.2d 260].)

We begin by reviewing the language of section 1237.1. Section 1237.1 provides “[n]o appeal” shall be taken “on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing” or at a later time if the mistake is discovered “after sentencing.” The statutory language is ambiguous. The statute can be read to prohibit the filing of the notice of appeal if the sole issue is the propriety of the calculation of presentence credits. On the other hand, the statutory provision can be read to prohibit a defendant from ever presenting a presentence credit issue on appeal without first raising the question in the trial court, even after judgment. If section 1237.1 merely applies when the sole issue on appeal involves presentence credits, then defendant can raise the issue in this case because he has presented various other contentions which we have resolved adversely to him in the unpublished portion of this opinion. In order to resolve the ambiguity in the statute, we turn to the legislative history of section 1237.1.

Section 1237.1 was part of Assembly Bill No. 354. (Stats. 1995, ch. 18, § 2.) Assembly Bill No. 354 amended sections 1237 and 1237.1. Section 1 of Assembly Bill No. 354 amended section 1237 to state: “An appeal may be taken by the defendant: [^Q (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial. (b) From any order made after judgment, affecting the substantial rights of the party.” (Stats. 1995, ch. 18, § 1.) Section 2 of Assembly Bill No. 354 enacted section 1237.1. Assembly Bill No. 354 was introduced on February 10, 1995. When the legislation was first brought before the Assembly Committee on Public Safety, one of the stated purposes was as follows, “This bill would codify developing case law requiring defendants to seek correction of clerical or mathematical error in calculation of presentence custody credits in the trial court to prevent misuse of appellate process for ministerial purpose.” (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 354 (1995-1996 Reg. Sess.) Apr. 25,1995.) The developing “case law” was identified later in the same committee report as follows: “Case Law. Recently, the Court of Appeal have expressed dismay that defendants have utilized the formal appeal process solely to correct an error in the calculation of presentence custody credits. [