P. v. Bahr

 

 

 

 

 

 

 

 








src="https://www.fearnotlaw.com/wsnkb/G047146_files/image001.gif">Filed 6/25/13  P. v. Bahr CA4/3

 

 

 

 

 NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   GREGORY LEE BAHR,         Defendant and Appellant.

G047146            (Super. Ct. No. 11NF1086)            O P I N I O N

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Patrick Donahue, Judge.  Affirmed.

                        Patrick J. Hennessey,
Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Alana Butler, Deputy
Attorneys General, for Plaintiff and Respondent.

*               
*                *

Gregory Lee
Bahr pleaded guilty to domestic violence
with corporal injury (Pen. Code, § 273.5, subd. (a)), use of a deadly
weapon within the meaning of Penal Code section 12022, subdivision (b)(1), and
two prison priors within the meaning of Penal Code section 667.5, subdivision
(b).href="#_ftn1" name="_ftnref1" title="">[1]  As part of a href="http://www.fearnotlaw.com/">plea agreement, Bahr agreed to a
three-year prison term, and the trial court awarded Bahr presentence custody
and conduct credits totaling 393 days.

Bahr
subsequently filed a motion contending that under the amended version of Penal
Code section 4019 (hereinafter “amended section 4019”) he was entitled to
additional presentence conduct credits. 
The trial court denied the motion and Bahr now appeals. He argues that
amended section 4019 should be interpreted to apply to days he was in custody
after the statute’s effective date of October
1, 2011 (§ 4019, subd. (h)) even though he committed his offense
before that date (April 4, 2011).  Bahr also contends that failure to interpret
the statute in this way violates equal protection.  We disagree and conclude amended section 4019
does not apply to crimes committed before the effective date of October 1, 2011, and the distinction
does not constitute an equal protection
violation.  We therefore affirm the
trial court’s denial of the motion.

I

FACTUAL AND PROCEDURAL BACKGROUND

In April 2011, Bahr was
living with his girlfriend, Adela U., and they quarreled when she returned home
from a doctor’s appointment.  Bahr
violently assaulted Adela when she attempted to leave the residence.href="#_ftn2" name="_ftnref2" title="">^[2]
 In December 2011, Bahr pleaded
guilty as described above in exchange for a three-year prison term, and the
court awarded Bahr presentence credit for the 262 days he was in custody, plus
131 days of conduct credit, for a total of 393 presentence credit days.  On April 5, 2012, Bahr filed a motion
requesting additional conduct credits for the time he was in custody after
October 1, 2011.  The trial court denied
the motion.

II

DISCUSSION

Bahr asserts he is entitled
to an additional 42 days of conduct credit for presentence custody he served
with good conduct after October 1, 2011. 
Specifically, he interprets amended section 4019 to require a bifurcated
calculation for conduct credits earned before and after October 1, 2011, if the
crime was committed before that date. 
(See People v. Brown (2012) 54
Cal.4th 314, 322 (Brown).)  Bahr bases his appeal on his interpretation
of amended section 4019, subdivision (h), as well as on equal protection
grounds.  As we explain, Bahr’s
contentions are without merit, and we therefore affirm his sentence without the
additional credit.

A.  Background: Section 4019
credits

A defendant sentenced to
prison is entitled to have all presentencing days spent in custody credited
against the term of imprisonment.  (§
2900.5, subd. (a).)  The defendant
also may be awarded additional presentence conduct credits for satisfactorily
performing labor assignments (§ 4019, subd. (b)), and for complying with
“reasonable rules and regulations.”  (§
4019, subd. (c).) 

Section 4019 has been
amended several times in recent years.href="#_ftn3" name="_ftnref3" title="">[3]  Most recently, as part of the Realignment
Act, the Legislature in Assembly Bill No. 109 (2011-2012 Reg. Sess.)
established a policy of day-for-day conduct credits.  Thus, when added to custody credits, “a term
of four days will be deemed to have been served for every two days spent in
actual custody” if the defendant has met the requirements discussed above.  (§ 4019, subd. (f), as amended by Stats.
2011, ch. 15, § 482, eff. April 4, 2011, op. Oct. 1, 2011.)  Amended Section 4019, subdivision (h)
(hereinafter referred to as subdivision (h)) reads, “The changes to this
section . . . 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 ambiguity created by the second sentence
of subdivision (h) is the basis of Bahr’s appeal.

B.  Amended
Section 4019 Does Not Apply to Crimes Committed Before October 1, 2011

                        The California Supreme
Court has explained that a statute should not be applied retroactively “‘unless
it is very clear from extrinsic sources that the Legislature . . .
must have intended retroactive application.’” 
(Brown, supra, 54 Cal.4th at
p. 319.)  Subdivision (h) clearly
expresses the Legislature’s intent that the amendment be applied prospectively
beginning October 1, 2011, and Bahr does not contend otherwise.  Rather, Bahr relies on Brown  in asserting
subdivision (h) creates a bifurcated calculation for crimes committed before
October 1, 2011, in which conduct credits earned before and after the effective
date are calculated at different rates (Brown,
supra, 54 Cal.4th at p. 322 [“To apply former section 4019
prospectively necessarily means that prisoners whose custody overlapped the
statute’s operative date (Jan. 25, 2010) earned credit at two different
rates”]). 

                        Bahr’s reliance on >Brown is misplaced.  Brown
interpreted a previous amendment to section 4019 (see Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50,
eff. Jan. 25, 2010)
that made no mention of the offense date. 
Conversely, the most recent amendment (Stats. 2011-2012, 1st Ex. Sess.,
ch. 12, §  35; Assem. Bill No. 109
(2011-2012 Reg Sess.)) expressly states the Legislature’s intent that the
revised credit calculation applies to crimes “committed on or after October 1,
2011.”  (§ 4019, subd. (h).)  Thus, as the Attorney General correctly
notes, Brown does not require a
bifurcated calculation with respect to the 2011 amendment.

                        Bahr also relies on the
second sentence of subdivision (h):  “Any
days earned by a prisoner prior to October 1, 2011, shall be calculated at the
rate required by the prior law.” (§ 4019, subd. (h).)  Bahr argues this shows the Legislature
intended to have conduct credits calculated at the day-for-day rate for time in
custody after October 1, 2011, rather than the less favorable rate under
the previous version of section 4019. 
While the exact meaning of subdivision (h)’s second sentence is unclear,
the first sentence is unambiguous: “The changes to this section . . . 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.”  (>Ibid., italics added.)  Bahr’s reading of the second sentence and his
interpretation of the amendment as a whole would require us to completely disregard
the first sentence.

                         In People
v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam), we were presented with the same question.  In rejecting the defendant’s contention that
the second sentence created a bifurcated calculation for crimes committed
before October 1, 2011, we observed, “to read the second sentence in this
manner renders meaningless the first sentence. 
This we cannot do.”  (>Id. at p. 51). We further noted,
“‘“‘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.”’”  (Ibid,
quoting Rodriguez v. Superior Court
(1993) 14 Cal.App.4th 1260, 1269; see also 2A Sutherland, Statutory
Construction (7th ed. 2007) § 46.6, pp. 230–244, fns. omitted.)  Accordingly, we refused to read the second
sentence of subdivision (h) as requiring a separate calculation for conduct
credits earned by a defendant after October 1, 2011, if the offense was
committed before October 1, 2011.  We
reasoned that such a reading “would render the first sentence superfluous.” (>Rajanayagam, supra, 211 Cal.App.4th at p. 51.)

                        Moreover,
“‘“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.”’”  (Rajanayagam,
supra, 211 Cal.App.4th at p. 52.) 
To accept Bahr’s reading of the second sentence would violate this
principle by focusing on one sentence to the exclusion of the amendment’s
overall purpose.

                        Our interpretation is not unique.  In People
v. Ellis (2012) 207 Cal.App.4th 1546, 1553, the court held:  “In our view, 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.” 
(Original italics.).

                        Thus, we again conclude, as we did in Rajanayagam, “[S]ubdivision (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 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.”  (Rajanayagam,
supra, 211 Cal.App.4th at p. 52.)  Because Bahr committed the crimes before
October 1, 2011, amended section 4019’s enhanced calculation does not apply,
and therefore the trial court properly calculated Bahr’s conduct credits under
the prior law.

C.  Amended
Section 4019’s Prospective Application Does Not Violate Equal Protection

                        Bahr further asserts
that our reading of amended section 4019 violates his constitutional right to
equal protection.  The first inquiry in
an equal protection claim is whether the state has adopted a classification
that applies different treatment to two or more groups that are similarly
situated for purposes of the challenged law. 
(People v. Hofsheier (2006) 37
Cal.4th 1185, 1199.)  We agree such a
classification exists in amended section 4019. 
“Defendants
who committed offenses and earned conduct credit before the operative date of
the statute are treated more harshly than those who committed the same crimes
and earned conduct credit on or after October 1, 2011.  The two groups are similarly situated in the
sense that they committed the same offenses but are treated differently in
terms of earning conduct credit based solely on the dates their crimes were
committed.  For purposes of receiving
conduct credit, nothing distinguishes the status of a prisoner whose crime was
committed after October 1, 2011, from one whose crime was committed before that
date.”  (People v. Verba (2012)
210 Cal.App.4th 991, 995-996 [concluding amended Section 4019 does not
violate equal protection because there is a rational basis for the
classification].)  Thus, we agree with
Bahr that the two groups are similarly situated with respect to the statute and
are treated differently.

                        Though unequal
treatment exists, Bahr must also show no rational basis exists for applying
amended section 4019 only to those crimes committed after the effective
date.  The Legislature’s stated purpose
for passing the Realignment Act was “to reduce recidivism and improve public
safety, while at the same time reducing corrections and related criminal
justice spending.”  (People v. Cruz (2012) 207 Cal.App.4th 664, 679; §17.5.)  We conclude that the classification regarding
good conduct credits is rationally related to the Legislature’s stated goal of
cost savings. As we stated in Rajanayagam,
“The effective date was a legislative determination that its stated goal of
reducing corrections costs was best served by granting enhanced conduct credits
to those defendants who committed their offenses on or after October 1,
2011.”  (Rajanayagam, supra, 211 Cal.App.4th at p. 55.)  While the same goal could have been met by
awarding additional conduct credits to defendants in Bahr’s position, the
Legislature is entitled to establish an effective date for statutory amendments
and “to discriminate between rights of an earlier and later time.” (>Id. at p. 55.)

                        “Under
the very deferential rational relationship test, we will not second guess the
Legislature and conclude its stated purpose is better served by increasing the
group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding
enhanced conduct credit to only those defendants who committed their offenses
on or after October 1, 2011.” (Rajanayagam,
supra, 211 Cal.App.4th at p. 55.)  We agree with the decisions in >Rajanayagam and Ellis that the enhanced conduct credits established in amended
section 4019 do not apply to crimes committed before October 1, 2011, and
that this classification is not a violation of equal protection.  Consequently, Bahr is not entitled to
additional presentence conduct credits.

III

DISPOSITION

The judgment is affirmed.href="#_ftn4" name="_ftnref4" title="">[4]

 

 

 

                                                                                   

                                                                                    ARONSON,
J.

 

WE CONCUR:

 

 

 

MOORE, ACTING P. J.

 

 

 

FYBEL, J.