Error and/or relief
It was error for the court to decline to award conduct credit on two of the counts, because their offenses were not ineligible for conduct credit at the time they were committed. Further, it was error to issue a no-visitation order on behalf of a person who is no longer a minor.
First Holding:
As a result of amendments to the One Strike Law in 2006 (section 667.61) persons serving an indeterminate sentence under that section are not entitled to credit for time served beyond the actual days they were in custody. There is no reduction for good behavior or performing work.
Although section 667.61 as amended makes no mention of conduct credit, the amendment deleted a previous reference that limited the conduct credit to 15% of the sentence imposed. The legislative history does make it abundantly clear that the intent was to eliminate conduct credit for such persons.
Authority:
Penal Code section 667.61
People v. Dearborne (2019) 34 Cal.App.5th 250, 267-268
People v. Adams (2018) 28 Cal.App.5th 170, 182
Second Holding:
The amendment cannot be applied retroactively. Both the federal and the California Constitutions prohibit ex post facto laws. The federal and California ex post facto clauses do not just bar retroactively increased prison terms. They also prohibit any law that retroactively disadvantages the offender by increasing the punishment for crimes committed before the law’s enactment.
Consequently, the ex post facto clauses prohibit any law that constricts the inmate’s opportunity to earn early release and thereby makes more onerous the punishment for crimes committed before its enactment. As it is unclear whether the offenses described in two of the counts were committed before or after the amendment’s effective z People (September 20, 2006, as urgency legislation), conduct credit cannot be denied on those counts.
Authority:
U.S. Const., art. I, sec. 10, cl. 1
Cal. Const., art. I, sec. 9
People v. Rojas (2015) 237 Cal.App.4th 1298, 1306
Weaver v. Graham (1981) 450 U.S. 24, 35-36
People v. Flores (2009) 176 Cal.App.4th 1171, 1182 [agreeing that a change in law ending the defendant’s ability to earn good conduct credit violated the proscription against ex post facto laws]
Third Holding:
It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. Consequently, when the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes.
Authority:
People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261 [Verdicts cannot be deemed sufficient to establish the z People of the offenses unless the evidence leaves no reasonable doubt that the underlying charges pertained to events occurred on or after the z People of the punishment’s enactment]
Fourth Holding:
Under section 1202.5, if a defendant is sentenced to prison for committing a lewd act under section 288, and the victim is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.
As this section authorizes prohibitions against visitation with a child victim, it has been interpreted to apply only to victims who are under the age of 18 at the time of the contemplated visitation. Here, the victim was in her 20s at the time of sentencing, and the court therefore lacked authority to include her in the no-visitation order.
Authority:
PEN 1202.05
People v. Scott (2012) 203 Cal.App.4th 1303, 1323