P. v. Evans
Filed 11/5/13 P. v. Evans CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RONALD
EUGENE EVANS,
Defendant and Appellant.
A133916
(Del Norte County
Super. Ct.
No. CRF-119465)
On August 22, 2011, defendant Ronald
Evans was arrested following numerous alleged instances of
then girlfriend. He was acquitted of the
domestic violence charges but convicted of possession
of a firearm by a felon. On November
17, the trial court sentenced him to five years in state prison, awarding him
105 days credit for time served, comprised of 88 actual days in custody and 17
conduct credits.
On appeal, Evans
challenges the trial court’s calculation of his credits on two separate
grounds. First, he contends that the
trial court erroneously limited his conduct credits to 20 percent of his actual
days in custody, a limitation, he claims, applicable only to postsentence
conduct credits. Second, he argues that
the trial court should have applied a “hybrid†calculation to his time in
custody, applying one formula for the period ending September 30, and a
different formula for the period commencing October 1. This was so, he reasons, because the statute
governing conduct credits was amended effective October 1, 2011, becoming more favorable to defendants on
that date.
We agree with
Evans’s first argument and reject his second.
We order the abstract of judgment amended to reflect 44 days of conduct
credits, for a total of 132 credits. In
all other regards, we affirm.
Because Evans only
challenges the calculation of his custody credits, the circumstances
surrounding his arrest and conviction are largely irrelevant to the issues
before us. We therefore set them forth
with brevity.
Evans and Brandi
Lee Nored were involved in what Evans himself describes as a “brief but
volatile†relationship, one that lasted just three months, with four or five
breakups during that short time.
Sometime between
June 15 and July 15, 2011,
Evans and Nored were involved in an argument.
The trial testimony was contradictory as to who was the aggressor. Nored testified that during the argument,
Evans poured gasoline on her head and told her he was going to light her on
fire. William Lemmon—a friend of
Evans’s—testified that Nored was in fact the one who had the jar of gasoline
and that she got angry at Evans and started “going off†on him. When Evans and Lemmon went to leave, Nored
threatened that she was going to pour the gasoline out and ignite it so she and
Evans would both burn up. Evans
corroborated Lemmon’s version of the incident.
There followed
another incident and, again, the testimony was contradictory as to who was the
aggressor. According to Nored, during
another argument, Evans pulled a pocketknife from his pocket and poked her with
it, stating, “[P]ick a spot where you want to be stabbed because you’re going
to get stabbed. You’re going to
die.†Lemmon again refuted Nored’s
version of the incident, testifying that Nored, upset that he and Evans were
going out, grabbed a knife, and threatened Evans that he was “not going
anywhere.†Lemmon opened the door and
stepped between Evans and Nored so Evans could get out of the house.
In yet a third
incident, Nored’s son, Blake, testified that in the midst of another argument,
his mother punched Evans, and Evans punched her back and hit her with the butt
of a shotgun. He then shot at the ground
between and in front of Nored’s feet. A
neighbor also testified that she saw Evans hit Nored with a gun in her temple
and shoot it. Nored’s testimony was
similar.
Evans testified
that Nored had the shotgun and pointed it at him. He claimed that when he took it from her, he
might have accidentally hit her in the head, discharging the gun.
On another
occasion, Evans picked up Blake and took him to go target shooting. According to Blake, he was shooting a
20-gauge shotgun, while Evans was shooting a 12-gauge shotgun. Nored testified that the 12-gauge shotgun
belonged to Evans and was at her house.
According to Evans, however, he hated guns and had broken the shotgun
into pieces, also denying that he was around when people were target shooting.
Evans was arrested
on August 22, 2011 and
remained in custody until trial. He was
charged with assault with a firearm (counts 1 and 2); making a criminal threat
(counts 3, 6, and 9); possession of a firearm by a felon (count 4); assault
with a deadly weapon (count 5); false imprisonment by violence (count 7); and
assault with a knife (count 8). As to
count 3, it was specially alleged that Evans used a firearm in the commission
or attempted commission of a felony. As
to count 9, it was specially alleged that he had a conviction for a serious
felony, had served a prior prison term, and had a prior strike conviction.
Trial commenced on
October 17, 2011, and
concluded two days later. The jury found
Evans guilty of possession of a firearm by a felon, and acquitted him of all
remaining charges. Evans waived his
right to a jury trial on the special allegations, and the court found them to
be true.
On November 15, 2011, the probation
department submitted its presentence investigation report. As pertinent here, the report represented
that Evans had served 88 days in actual custody and had “credit in the
amount of 17 days for a total of 105 days custodial credit. (Credits calculated at 20 percent pursuant to
1170.12(a)(b)(5) PC.)â€
On November 17, 2011, Evans was sentenced to five
years in state prison. As recommended in
the probation report, the court awarded credit for 88 days of actual custody,
plus 17 conduct credits, for a total of 105 days custodial credit.
This timely appeal
followed.
The
Trial Court Erred In Awarding Evans Only 17 Days of Conduct Credit
At the time of
Evans’s offense, Penal Code section 4019
provided that a defendant was entitled to one day of work participation plus
one day of good behavior for every six days of custody. (§ 4019, former subds. (b), (c), & (f);
Stats. 2010, ch. 426, § 2, eff. Sept.
28, 2010.) He served 88 days
in custody between his arrest on August
22, 2011 and sentencing on November
17, 2011. He was thus
entitled to 44 days of conduct credit, calculated as follows: 88 divided by 4 equals 22 multiplied by 2 equals
44. (See In re Marquez (2003) 30 Cal.4th 14, 26 [describing the
formula for calculating conduct credits]; People v. Bravo (1990) 219 Cal.App.3d 729, 732-735
[same]; People v. Smith (1989)
211 Cal.App.3d 523, 527 [same].) Adding
the 44 days of conduct credit to the 88 days of actual custody, Evans was entitled
to 132 days of credit, rather than the 105 awarded by the court.
As noted, the
court derived its incorrect numbers from the probation report, which advised
that, pursuant to section 1170.12, subdivision (a)(b)(5), Evans’s conduct
credits were limited to 20 percent, a limitation applicable to defendants
serving their sentences under the Three Strikes law. As the People concede here, that limitation
does not apply to presentence conduct credit.
(People v. Buckhalter (2001)
26 Cal.4th 20, 32 [“We recently held that restrictions on the rights of
Three Strikes prisoners to earn term‑shortening credits do not apply to
confinement in a local facility prior to sentencing.â€]; People v. Thomas (1999) 21 Cal.4th 1122, 1125-1126 [“By its terms,
section 1170(a)(5) does not address presentence conduct credits for those
defendants sentenced under the three strikes law.â€].)
The Trial Court
Correctly Applied the Version of Section 4019 In Effect on the Date of Evans’s Offense
to His Entire Custodial Time
Evans committed his offense
in May or June 2011 and was arrested on August
22, 2011. At that time the
Penal Code provided for two days of credit for every six days served. (§ 4019, former subds. (b), (c), & (f); Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) Effective October 1, 2011, section 4019 was amended to provide for
two days of credit for every four days served.
2011, ch. 15, § 482, eff. Apr. 4,
2011, operative Oct. 1, 2011.) Evans argues that the old formulation should
have applied to the time he was in custody from August 22 to September 30, and
the amended, more generous formulation should have applied to from October 1 to
November 17, when he was sentenced.
Evans claims this “hybrid†calculation is supported by the language of
amended section 4019 and the Equal Protection clause.
Turning first to
his statutory construction argument, Evans concedes that this argument has previously
been considered—and squarely rejected—in People
v. Ellis (2012) 207 Cal.App.4th 1546.
There, defendant Ellis entered into a plea agreement on September 9 and
was sentenced on October 13, 2011. He was awarded 91 days of actual custody
credits plus 44 days of conduct credit.
(Id. at p. 1549.) On appeal, Ellis contended that the conduct
credits should have been calculated based on the version of section 4019 that
was operative at the time of his sentencing.
(Ibid.) The Fifth District disagreed. It examined the statutory language, particularly
section 4019, subdivision (h), which provides:
“The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners who are
confined to a county jail, city jail, industrial farm, or road camp for a crime
committed on or after October 1, 2011.
Any days earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.†The
court held that, given this language, “the Legislature’s clear intent was to
have the enhanced rate apply only to
those defendants who committed their crimes on or after October 1, 2011.
[Citation.] The second sentence
does not extend the enhanced rate to any other group, but merely specifies the
rate at which all others are to earn conduct credits. So read, the sentence is not meaningless,
especially in light of the fact the October 1, 2011, amendment to section 4019,
although part of the so-called realignment legislation, applies based on the
date a defendant’s crime is committed, whereas section 1170, subdivision (h),
which sets out the basic sentencing scheme under realignment, applies based on
the date a defendant is sentenced.†(
at p. 1553.)
At least two other
cases have also reached the same conclusion.
In Rajanayagam, supra, 211
Cal.App.4th at pp. 51–52, the Fourth District provided this well-reasoned
analysis
“Subdivision (h)’s
first sentence states: ‘The changes to
this section enacted by the act that added this subdivision shall apply
prospectively and shall apply to prisoners who are confined to a county jail,
city jail, industrial farm, or road camp for a crime committed on or after
October 1, 2011.’ (Italics added.) After declaring itself to operate
‘prospectively,’ the first sentence explicitly states the conduct credit
amendment applies only to defendants whose crimes were committed ‘on or after October 1, 2011.’ (Subd. (h).) By the first sentence’s plain language,
section 4019 would not apply to Rajanayagam because he committed his crime
prior to October 1, 2011. Thus, the first sentence leads unmistakably
to the conclusion Rajanayagam is not entitled to conduct credit at the enhanced
rate. Subdivision (h)’s second sentence,
however, confuses matters. But the application
of well-settled principles of statutory construction confirms our conclusion
Rajanayagam is not entitled to enhanced conduct credits for time served on or
after October 1, 2011,
because he committed his crime before the effective date.
“Subdivision (h)’s
second sentence provides: ‘Any days
earned by a prisoner prior to October
1, 2011, shall be calculated at the rate required by the prior
law.’ (Subd. (h).) Arguably the statement ‘[a]ny days earned by
a prisoner prior to October 1, 2011, shall be calculated at the rate required
by the prior law’ implies any days earned by a defendant after October 1, 2011, shall be calculated at the rate required by
the current law, regardless of when the
offense was committed. But to read
the second sentence in this manner renders meaningless the first sentence. This we cannot do.
“ ‘ “ ‘It
is an elementary rule of construction that effect must be given, if possible,
to every word, clause and sentence of a statute.’ A statute should be construed so that effect
is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant, and so that one section will not destroy
another unless the provision is the result of obvious mistake or error.†’ [Citations.]
Therefore, we cannot read the second sentence to imply any days earned
by a defendant after October 1, 2011, shall be calculated at the enhanced
conduct credit rate for an offense committed before October 1, 2011, because
that would render the first sentence superfluous.
“Instead, another
well-established rule of statutory construction supports our interpretation of
subdivision (h). ‘ “A statute is
passed as a whole and not in parts or sections and is animated by one general
purpose and intent. Consequently, each
part or section should be construed in connection with every other part or
section so as to produce a harmonious whole.
Thus, it is not proper to confine interpretation to the one section to
be construed.†’ [Citations.]
“As we explain
above, subdivision (h)’s first sentence reflects the Legislature intended the
enhanced conduct credit provision to apply only to those defendants who
committed their crimes on or after October
1, 2011. Subdivision (h)’s
second sentence does not extend the enhanced conduct credit provision to any
other group, namely those defendants who committed offenses before October 1,
2011, but are in local custody on or after October 1, 2011. Instead, subdivision (h)’s second sentence
attempts to clarify that those defendants who committed an offense before October 1, 2011, are to earn credit
under the prior law. However inartful
the language of subdivision (h), we read the second sentence as reaffirming
that defendants who committed their crimes before October 1, 2011, still have
the opportunity to earn conduct credits, just under prior law. (People
v. Ellis (2012) 207 Cal.App.4th 1546, 1553.) To imply the enhanced conduct credit
provision applies to defendants who committed their crimes before the effective
date but served time in local custody after the effective date reads too much
into the statute and ignores the Legislature’s clear intent in subdivision
(h)’s first sentence.â€
And, similarly, in
People v. Kennedy (2012) 209
Cal.App.4th 385, 400, the Sixth District rejected the argument that a defendant
was statutorily entitled to increased presentence conduct credits for the
time in custody after October 1, 2011, reiterating that the language of section
4019, subdivision (h) is clear that the amendment to section 4019 applies only
to “crimes committed on or after October 1, 2011.â€
We
find the holdings of Ellis,
of section 4019, the enhanced credits provided for by the October 1, 2011
amendment apply only to defendants who committed their crimes on or after
October 1, 2011.
As
to Evans’s equal protection argument, that, too, has been rejected, this time
by the California Supreme Court. In
328–329, the court considered the amendment to section 4019 that became
operative on January 25, 2010, holding that the prospective application of a
beneficial change in conduct credits does not violate equal protection
principles . More recently, the court in
Rajanayagam, supra, 211 Cal.App.4th
at pp. 53–56 rejected an equal protection challenge to prospective application
of the October 1, 2011 amendment of section 4019. We see no reason these holdings do not govern
here.
The
abstract of judgment shall be amended to reflect 44 days of conduct credit in
addition to 88 days of custodial time, for a total of 132 credits. In all other regards the judgment is
affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline,
P.J.
_________________________
Haerle, J.
name="_ftn1" title="">[1]
All subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2]
Section 4019 has been the subject of numerous amendments, a summary of which
can be found in People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48–49 (Rajanayagam).
