P. v. Allison

 

 

 

 

 

 

Filed 6/12/13  P. v. Allison CA6

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
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THE PEOPLE,   Plaintiff and Respondent,       v.   DENNIS MALCOLM ALLISON,   Defendant and Appellant.

H037840      (Santa Clara County       Super. Ct. No. C1100439)

 

            Defendant
Dennis Malcolm Allison pled no contest to a charge of failing to register as a
sex offender.  On appeal, he contends
that he is entitled to additional credit for presentence confinement by virtue
of amendments to the governing statute which took effect on October 1, 2011, 30 days before
defendant was sentenced.  He contends
that despite the statute’s declaration that it applies to crimes occurring
after its effective date, it must be construed to apply to all confinement
occurring after that date, whenever the underlying crime occurred.  Respondent, on the other hand, contends that
the trial court overstated defendant’s credits by including time during which
defendant was at large on his own recognizance. 
We reject both contentions and affirm the judgment.

Background

            Evidence at
the preliminary hearing indicated that
defendant had previously sustained a conviction for a felony violation of Penal
Code section 314 (lewd conduct), as a result of which he was required to
register as a sex offender.  (See Pen.
Code, § 290, subd. (c).)  He was released
from state prison on January 22, 2011, triggering a duty
to register within five working days. 
(See Pen. Code, §§ 290.015, subd. (a), 290, subd. (b).)  On February
6, 2011, he was stopped by a deputy sheriff for riding his bicycle
on a sidewalk.  The deputy took him into
custody on a warrant based on an alleged parole violation.  At the preliminary hearing on June 29, 2011, a witness testified
from a printout of a state database that defendant had never, as of that date,
registered as a sex offender.

            On July 7, 2011, an information was filed
charging defendant with failure to register under Penal Code section 290.015,
subdivision (a).  It was further alleged
under Penal Code section 667.5, subdivision (b), that defendant had a prior
felony conviction for failure to register as a sex offender.

            Defendant
successfully moved to represent himself. 
On August 24, 2011,
he entered a plea of nolo contendere to the charged offense and admitted the
allegation of a prior conviction.  The
plea was entered on the understanding that he would receive 355 days custody
credit as of the hearing date, consisting of 200 days actually served, 100 days
for conduct, plus 55 days that, the court said, “the D.A. has agreed to
include.”  (See pt. II, >post.) 
In admonishing defendant concerning the consequences of the plea, the
court secured his acknowledgment of the further understanding that “[t]his
matter will result in a grant of probation, and that will include the
agreed-upon county jail term of one year.” 
The court also indicated that defendant was not waiving time for
sentencing, and would thus have to be sentenced on or before August 31,
“because that’s when [defendant] credits out.”href="#_ftn1" name="_ftnref1" title="">>[1]  The court recognized, however, that the
probation department might be unable to prepare a report in that time; it was
therefore understood that “if I’m not ready to sentence him because of victim
notification or other reasons, I would release him on his O.R. since he will
have done the time.”

            The court’s
concerns proved prophetic.  On August 31, 2011, the probation
officer successfully sought a continuance on the ground that there had been
insufficient time to prepare a report. 
Defendant was released on his own recognizance, signing a written
promise to appear for sentencing on September
26, 2011.href="#_ftn2"
name="_ftnref2" title="">[2]  He failed to appear, and a bench warrant
issued.  He was arrested on October 12, 2011.

            Sentencing
took place on October 31, 2011.  The court announced that it was placing
defendant on probation for three years. 
Defendant interjected, “Excuse me. 
You mentioned that you were going to annul the probation. That was part
of the agreement.”href="#_ftn3" name="_ftnref3"
title="">[3]  The prosecutor objected that he did not
recall any such agreement and “would have been unhappy with that, considering
that I didn’t think this was a probation case. 
It should be CDC.”  The court
reiterated its intention to impose three years’ probation, whereupon defendant
said, “I won’t accept that, so I take my plea away.”  The court said, “All right.  Probation is refused.  I would have granted the defendant probation,
should he choose to accept it.  He has
declined it in open court.  I will order
that he be sentenced on Count 1 to 16 months in the state prison.”  The court struck the charged enhancement
pursuant to Penal Code section 385.  The
court imposed a prison sentence of one year and four months, with credit for
presentence confinement of 399 days, consisting of 267 days “actual local” and
132 days “local conduct.”

            On November 7, 2011, defendant wrote to
the court complaining of a “major sentencing error in credits,” in that he had
only been allowed “33% credit on prison time,” when “[c]urrent law requires I
receive 50%.”  He sought an award of “56
additional days.”  On January 12, the
court solicited a response from the district attorney to this claim.  No written response appears in the present
record.  However, at a hearing on February 16, 2012, the court denied
what it construed as defendant’s motion to modify the judgment.

            Meanwhile,
on December 29, 2011,
defendant filed a notice of appeal “based on the sentence or other matters
occurring after the plea that do not affect the validity of the plea.”

Discussion

I.          >Defendant’s
Argument

            From September 28, 2010, through September 30, 2011, Penal Code
section 4019, subdivision (f), allowed two days conduct credit for every four
days actually served in county jail prior to sentencing.  (Stats. 2010, ch. 426, § 2.)  As to most prisoners, however, that formula
was superseded by a more liberal formula provided by 2010 amendments to Penal
Code section 2933, subdivision (e)(1). 
(Stats. 2010, ch. 426, § 1.) 
Prisoners subject to that formula earned one day of conduct credit for
every day they were actually confined. 
The enacting statute declared, however, that this formula was inapplicable,
and the two-for-four formula set forth in section 4019 would continue to
govern, as to certain classes of prisoners. 
(Former Pen. Code, § 2933, subd. (e)(3); Stats. 2010, ch.  426, § 1.) 
Among the excluded classes were prisoners required, as like defendant
was, who were required to register as sex offenders.  (Ibid.)

            Effective
October 1, 2011, section 4019 was amended to provide a formula of two days’
conduct credit for every two days served. 
(Pen. Code, § 4019, subd. (f), as enacted by Stats. 2011, 1st Ex.
Sess., ch. 12, § 35.)  At the same
time, Penal Code section 2933 was amended to omit any reference to presentence
confinement credits.  (Stats. 2011, 1st Ex.
Sess., ch. 12, § 16.)  The net
effect was to prescribe a single formula for all prisoners.  If applicable to defendant, this formula
would double his conduct credits, and increase his total credit for presentence
confinement by about one-third.

            Defendant’s
sole contention is that this formula should have been used to determine his conduct
credit for time he spent in confinement between October 1, 2011—the effective
date of the statute—and October 31 of that year, when he was sentenced.  It appears that he was out of custody from
September 1 through October 11, 2011, but was back in custody from October 12
through October 31.href="#_ftn4" name="_ftnref4"
title="">[4]  It thus appears that he spent 20 days in
presentence confinement after the effective date of the amendments at
issue.  (See People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48 [“Calculation
of custody credit begins on the day of arrest and continues through the day of
sentencing.”].)  Under the older formula
this entitled him to 10 days conduct credit; under the current formula it would
yield 20.

            Defendant
predicates his argument solely on the language of the statute.  But the statute contains express declarations
that are at least in tension with, if not strictly contradictory to,
defendant’s proposed reading:  “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.” 
(Pen. Code, § 4019, subd. (h); italics added.)  Defendant contends that notwithstanding the
terms we have italicized, the quoted language must be understood to allow
credit for time served after its effective date, regardless of when the crime
was committed.  This follows, he says,
because if the new formula applies only to persons committing crimes after its
effective date, the second sentence is logically superfluous.  Defendant cites the principle that statutes
should be read in a manner that avoids “rendering portions of the language mere
surplusage.”  (People v. Knight (2004) 121 Cal.App.4th 1568, 1575-1576.) 

            In an
opinion since rendered non-citable by grant of review, this court issued a
dictum favoring defendant’s reading of the statute.href="#_ftn5" name="_ftnref5" title="">>[5]  Since then, however, in light of further
reflection and intervening authority,
we have concluded that we are no longer at liberty to adopt such a
reading.  As defendant acknowledges, our
previous approach was explicitly rejected in People v. Ellis (2012) 207 Cal.App.4th 1546, 1553, review den. Oct.
31, 2012.  We ourselves rejected an
argument resting on the language of the statute in People v. Kennedy (2012) 209 Cal.App.4th 385, on the ground that
the amendment was intended to “appl[y] only
to crimes that were ‘committed’ on or after October 1, 2011’ ” (>id. at p. 399, quoting Pen. Code, §
4019, subd. (h)) and “to have prospective application only.”  (Id.
at p. 396, italics added.) 

            While the
appeal to the constructional principle against superfluity retains some force,
we no longer find it sufficiently convincing to warrant the reading urged by
defendant.  It appears that no
construction can save the statute from criticism as something less than a model
of legislative drafting.  The declaration
that it “shall apply prospectively” is itself logically superfluous if read
strictly literally.  Virtually all
statutes apply prospectively; declaring that a statute does so is rather like
declaring that the sun emits light.  The
declaration adds nothing to the operation of the statute unless it is
understood to mean that it applies only
prospectively.  The ease with which the
Legislature could have simply said this by inserting the italicized word may
provide a ground to question such a gloss, but is not enough—we now think—to
justify its rejection.

            The
drafters’ apparent aversion to the term “only” is similarly reflected in the
declaration that the statute “shall apply to prisoners who are confined
. . . for a crime committed on or after October 1, 2011.”  Again the stated effect seems staggeringly
obvious unless the clause is taken to mean that the new formula applies >only to such prisoners.  It is true that such a reading renders the
second sentence logically unnecessary, because any confinement for a crime
committed after a given date will necessarily be served after that date.  But as we have noted, any reading will render some of the statutory language
“surplusage.”  This is not a warrant to
adopt whatever construction we find most pleasing.  Rather we remain constrained to attempt to
ascertain and give effect to the Legislature’s true intentions.  The two clauses just discussed suggest an
intention to withhold the statute’s benefits from prisoners whose offenses were
committed prior to the effective date of the amendments.  Since defendant falls in that class, he
cannot obtain the benefit of the statute without showing that enforcement
according to its terms would offend some constitutional principle.  Since he makes no such contention—which has
in any case been rejected in at least three published decisions—he has failed
to establish error in the trial court’s calculation of credits.href="#_ftn6" name="_ftnref6" title="">[6]

II.        Respondent’s Argument

            Respondent
contends that the trial court overstated defendant’s credits by including time
during which defendant was released from custody.  This is incorrect.  Some of respondent’s confusion is probably
attributable to inclusion in the credit calculation of some 56 days based upon
time defendant spent on a prior sentence due to an administrative error on the
part of correctional authorities.  It was
a term of defendant’s plea agreement that he receive credit for this time; at
least, that is how we understand the court’s recital at the change-of-plea
hearing that “the D.A. has agreed to include” an additional 55 days credit as a
term of defendant’s plea agreement.  We
must assume the court included that time in its calculation; had it not done
so, it would have been obliged to offer defendant an opportunity to withdraw
his plea.  Respondent identifies no other
flaw in the court’s calculations.href="#_ftn7"
name="_ftnref7" title="">[7]





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Disposition

            The
judgment is affirmed.

 

 

                                                                        ______________________________________

                                                                                                RUSHING, P.J.

 

 

 

 

 

 

WE CONCUR:

 

 

 

 

 

 

____________________________________

PREMO, J.

 

 

 

 

 

 

____________________________________

ELIA
J.