P. v. Blaylock
Filed 6/28/12 P. v. Blaylock CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
DANNY RAY BLAYLOCK,
Defendant and
Appellant.
H037280
(Monterey
County
Super. Ct.
Nos. SS101645 &
SS102694)
Defendant
Danny Ray Blaylock was convicted by no contest plea in one case (SS101645) of
one count of discharge of a firearm with gross
negligence in violation of Penal Code section 246.3, subdivision (a).
convicted by no contest plea in a second case (SS12694) of one count of second
degree burglary in violation of section 459, with an admitted prior strike
within the meaning of section 1170.12, subdivision (c)(1), his conviction in
the first case. In addition, the court
found him in violation of probation.
Sentence was suspended and he was again placed on probation. Blaylock later admitted yet again violating
probation based on a new charge of reckless driving in violation of Vehicle
Code section 23103, subdivision (a), a misdemeanor. Probation was revoked and the court sentenced
Blayock in both felony cases to a total of four years in prison, consisting of
four years in the second case and two years, concurrent, in the first
case. The court imposed various fines
and fees and it awarded pre-sentence conduct credits under section 4019 in both
cases.
On appeal,
Blaylock contends on equal protection grounds that he is entitled to additional
conduct credit in both cases based on legislative changes to section 4019,
which are expressly operative to crimes committed on or after October 1, 2011, a date subsequent to
his crimes. We reject this contention
and affirm the judgments.
STATEMENT
OF THE CASE
I.
A. Case
No. SS102694, the Second Case
name="_ftnref2" title="">[2]
On December 1, 2010, Christopher
Rutledge, the owner of Rutledge Moving Systems, reported a possible credit card
theft to the
County Sheriff’s Department. He told
the sheriff’s deputy that he had his moving trucks serviced by Fleet Services,
and that he had provided the owner of Fleet Services, Chris Dorto, his credit
card to pay for work completed on his trucks.
The card was left overnight on the desk at Fleet Services on or about October 14, 2010. On October
15, 2010, Dorto returned the credit card to Rutledge after
completing the billing.
In October
2010, Blaylock, who was then on probation, worked for Fleet Services. He had been having financial problems, was
facing repossession of his truck by the secured lender, and owed child support
payments to his wife, from whom he was then separated. Blaylock saw Rutledge’s credit card on the
desk at work and no one else was around.
He wrote down the card number, along with the security code on the back,
and returned the card to the desk. In
mid-October, Blaylock provided the credit card number over the phone to the
lender to whom he owed car payments and charged $1,210.95, $1,130.95, and
$866.48 against Rutledge’s card to cover what he owed.
On October 15, 2010, Blaylock went into
Castroville Auto Stereo to purchase stereo equipment for his truck and have it
installed using Rutledge’s stolen credit card number. He ordered the items he wanted and then later
called in to provide the credit card information in two transactions. The equipment was sold to Blaylock and
installed in his truck. He paid part of
the price in cash but charged the rest to Rutledge’s credit card.
Blaylock
also called Rimco, a business that sells tires and rims. He special ordered tires and “flashy” rims
for his truck, using Rutledge’s credit card over the phone to make a down
payment. The tires and rims were ordered
and Blaylock went into the store to arrange monthly payments on a payment plan
for the balance owed for the purchase and installation of the gear, which was
put onto his truck. Blaylock never made
any subsequent monthly payments.
Blaylock
also went into Prunedale Motors and made an agreement with the owner for the
purchase of a car, which Blaylock said was for his wife. Blaylock told the owner that his wife would
be making monthly payments but that he would make the down payment of $1,500,
which was charged to Rutledge’s credit card.
Blaylock’s wife never made any of the monthly payments.
Rutledge
discovered the unauthorized charges on his credit card. He contacted the vendors to explain that the
charges had been fraudulently incurred.
They all told him that they had done business with someone named Danny
Blaylock and that all charges fraudulently made on Rutledge’s card were done
over the phone. Rutledge recognized
Blaylock’s name as someone who worked for Chris Dorto at Fleet Services. Rutledge informed Dorto that Blaylock had
been fraudulently using his credit card that had been provided to Dorto to
charge for services performed on Rutledge’s moving trucks. Dorto knew that Blaylock had purchased
expensive items for his truck, which confirmed for Dorto that Blaylock had used
Rutledge’s credit card, and Dorto consequently fired Blaylock on November 30,
2010.
As noted,
Rutledge also contacted the Sheriff’s Department. A deputy investigated and impounded
Blaylock’s truck. The deputy also
contacted Blaylock, who ultimately admitted having used Rutledge’s credit card
to purchase the various items. Blaylock
was then arrested.
II. Procedural
Background
In the
first case (SS101645), Blaylock was charged by complaint filed
July 6, 2010, with discharge of a firearm with
246.3, subdivision (a) (count 1); receiving or concealing stolen property in
violation of section 496, subdivision (a) (count 2); battery on a spouse,
cohabitant or former spouse in violation of section 243, subdivision (e), a misdemeanor
(count 3); vandalism in violation of section 594, subdivision (b)(1), a
misdemeanor (count 4); hit and run resulting in property damage in violation of
Vehicle Code section 20002, subdivision (a), a misdemeanor (count 5);
resisting, obstructing, or delaying a peace officer in violation of section
148, subdivision (a)(1), a misdemeanor (count 6); and trespass in violation of
section 602, subdivision (m), a misdemeanor (count 7).
On July 14, 2010, Blaylock conditionally
pleaded no contest to count 1, discharge of a firearm with gross negligence on
July 3, 2010, a felony, with the understanding that the charge could be reduced
to a misdemeanor after one year of felony probation or completion of a minimum
of 90 days in a residential alcohol treatment program. The court suspended imposition of sentence
and placed defendant on probation for three years, with conditions including
that he either serve 180 days in county jail or complete a residential
treatment program for between 90 days and six months, and that he obey all
laws. All the remaining charges were
dismissed.
In the
second case (SS102694), which concerned the unauthorized charges on Rutledge’s
credit card, Blaylock was charged by complaint on December 9, 2010 with three
counts of commercial burglary in violation of section 459 (counts 1, 3, &
5); three counts of theft in violation of section 484e, subdivision (d) (counts
2, 4, & 6); and one count of receiving or concealing stolen property in
violation of section 496, subdivision (a) (count 7). The crimes pleaded in the first six counts
were alleged to have been committed between October 15-20, 2010, and the last
count on December 2, 2010. The complaint
was later amended to allege an enhancement that Blaylock’s conviction in the
first case constituted a prior strike within the meaning of section 1170.12,
subdivision (c)(1). These new charges
were also the subject of a petition and notice concerning Blaylock’s alleged
violation of the terms of his probation.
On December
21, 2010, in a negotiated disposition, Blaylock pleaded no contest to
commercial burglary as alleged in count 1 and he admitted the prior strike and
the probation violation. It was agreed
that any sentence imposed would run concurrently with the sentence in the first
case.
On January
11, 2011, a second notice of probation violation was filed, alleging that
Blaylock had violated Vehicle Code section 23013, subdivision (a), reckless
driving, a misdemeanor charge (alleged in the third case, MS292624) to which he
pleaded no contest on January 13, 2011.
That day he was sentenced to 10 days in county jail with credit for time
served. Blaylock was also found that day
to have violated probation as a result of the conviction.
On March 1,
2011, Blaylock moved to withdraw his plea in the second case (SS102694). The court held an evidentiary hearing and
denied that motion.
On April
14, 2011, probation was revoked and terminated.
Blaylock was sentenced in the second case on count 1, second degree
burglary, to four years in prison, consisting of the middle term of two years,
doubled for the prior strike. He was
awarded pre-sentence credits under section 4019 in the amount of 129 actual
days, plus 64 days conduct credit, for a total of 193 days. All remaining charges were dismissed. In the first case (SS101645), Blaylock was
sentenced on count 1, negligent discharge of a firearm, to the middle term of
two years, concurrent to the sentence in the second case, for a total term in
both cases of four years. He was awarded
pre-sentence credit of 199 days, consisting of 133 actual days plus 66
days of conduct credit.
Blaylock
appealed from the judgment of conviction,
challenging the sentence or matters occurring after the plea but not affecting
its validity.
title="">[3] (Cal. Rules of Court, rule 8.304(b).)
DISCUSSION
I. Defendant
is Not Entitled to Additional Conduct Credits
Blaylock
contends that principles of equal protection entitle him to additional conduct
credits in both cases. His contention is
that the statutory changes to section 4019 and section 2933, expressly
operative October 1, 2011, apply retroactively, in effect, so as to entitle him
to one-for-one conduct credits under the current version of section 4019 rather
than the one-for-two he was awarded in each case.
A criminal
defendant is entitled to accrue both actual pre-sentence custody credits under
section 2900.5 and conduct credits under section 4019 for the period of
incarceration prior to sentencing.
Additional conduct credits may be earned under section 4019 by
performing additional labor (§ 4019, subd. (b)) and by a prisoner’s good
behavior. (§ 4019, subd. (c).) In both instances, the section 4019 credits
are collectively referred to as conduct credits. (People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with awarding such
credits at sentencing. (§ 2900.5, subd.
(a).)
Before
January 25, 2010, conduct credits under section 4019 could be accrued at the
rate of two days for every four days of actual time served in pre-sentence
custody. (Stats. 1982, ch. 1234, § 7, p.
4553 [former § 4019, subd. (f)].)
Effective January 25, 2010, the Legislature amended section
4019 in an extraordinary session to address the state’s ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18
amended section 4019 such that defendants could accrue custody credits at the
rate of two days for every two days actually served, twice the rate as before
required to register as a sex offender; those committed for a serious felony
(as defined in § 1192.7); and those, like Blaylock, with respect to the second
case with a prior conviction for a violent or serious felony.
50, 62 [former § 4019, subds. (b), (c), & (f)].) For these persons, conduct credit under
section 4019 accrued at the same rate as before despite the January 25, 2010
amendments. (Former § 4019, subds.
(b)(2) & (c)(2).) These amendments
to section 4019 effective January 25, 2010, did not state whether they were to
have retroactive application.
California
courts subsequently divided on the retroactive application of the amendments to
section 4019, effective January 2010, and the issue was just decided by the
California Supreme Court, which held that these amendments do not apply
retroactively. (People v. Brown (June 18, 2012) __ Cal.4th __ [2012 Cal. Lexis
5263].)
Then,
effective September 28, 2010, section 4019 was amended again to restore the
less generous pre-sentence conduct credit calculation that had been in effect
prior to the January 2010 amendments, eliminating one-for-one credits. (Stats. 2010, ch. 426, § 2.) The express provisions treating differently
those defendants who are subject to sex-offender registration requirements, and
those committed for a serious felony or, like Blaylock, with a prior conviction
for a violent or serious felony, were also eliminated. (Ibid.) At the same time, and by the same legislative
action, section 2933, previously applicable only to worktime credits earned
while in state prison, was amended to encompass pre-sentence conduct credits
for those defendants ultimately sentenced to state prison (Stats. 2010, ch. 426, § 1 [former § 2933,
subd. (e).) In other words, as of September
28, 2010, section 2933 instead of section 4019 applied to the calculation of
pre-sentence conduct credits for those defendants sentenced to a prison term,
with an exception. This amendment to
section 2933 provided for one-for-one pre-sentence conduct credits, more
generous than those simultaneously provided under section 4019, but excluded
those inmates required to register as sex offenders and those committed for a
serious felony or those, like Blaylock, with a prior serious or violent felony
conviction. Under this version of
section 2933, subdivisions (e)(1) and (e)(3), these prisoners remained subject
to an award of pre-sentence conduct credits under section 4019, accruing at the
less generous one-for-two rate. (
By its express terms, the newly created section 4019, subdivision (g),
declared these September 28, 2010 amendments applicable only to prisoners
confined for a crime committed on or after that date, expressing legislative
intention that they have prospective application only. (Stats. 2010, ch. 426, § 2.)
This brings
us to legislative changes made to sections 4019 and 2933 in 2011, as relevant
to Blaylock’s equal protection challenge.
These statutory changes, among other things, effectively made section
4019 again applicable to all prisoners for purposes of the calculation of
pre-sentence conduct credits, eliminating this element of section 2933 that was
in place from September 28, 2010 to September 27, 2011 only, and reinstituted
one-for-one pre-sentence conduct credits for all prisoners. (§§ 2933 & 4019, subds. (b)(c)
& (f).) These changes to
section 4019 were made expressly applicable to crimes committed on or after
October 1, 2011, the operative date of the amendments, again expressing, in
this respect, legislative intent for prospective application only.
As noted,
Blaylock committed the crime in the first case (SS101645) on
July 3, 2010, was convicted on July 14, 2010, and was sentenced to
prison on April 14, 2011. Under the law
in effect on any of these dates, he was properly awarded conduct credits on a
one-for-two basis (133 days actual credit and 66 days conduct credit).
committed the crime on October 15, 2010, was convicted on December 21, 2010,
and was sentenced on April 14, 2011.
Similarly, under the law in effect on any of these dates, he was
properly awarded conduct credits on a one-for-two basis (129 days actual credit
and 64 days conduct credit).
name="_ftnref7" title="">[7]
Notwithstanding
the express legislative intent that
the changes to section 4019, operative October 1, 2011, are to have prospective
application only, Blaylock contends, on equal protection grounds, that he is
entitled to the reinstituted one-for-one conduct credits implemented by those
changes. He argues that
544-545 (Kapperman) compels this
result, contending that it held that a new statute that provides for
pre-sentence credits for prison inmates is fully retroactive to all prisoners
by virtue of the equal protection clause.
He also cites People v. Sage
(1980) 26 Cal.3d 498, 507-508 (Sage),
and urges that it held that felons were similarly situated to all other jail
inmates, implicitly overruling In re Stinette
(1979) 94 Cal.App.3d 800 (Stinette),
and that the then current version of section 4019 was violative of equal
protection because it denied conduct credit to felons who were sentenced to
prison while making such credits available to other jail inmates.
Preliminarily,
to succeed on an equal protection claim,
a defendant must first show that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner. In considering whether state legislation is
violative of equal protection, we apply different levels of scrutiny to
different types of classifications. (
821, 836-837.) Where, as here, the
statutory distinction at issue neither “touch[es] upon fundamental interests”
nor is based on gender, there is no equal protection violation “if the
challenged classification bears a rational relationship to a legitimate state
purpose. [Citations.]” (People
v. Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier); see also People
v. Ward (2008) 167 Cal.App.4th 252, 258 [rational basis review applicable
to equal protection challenges based on sentencing disparities].) Under the rational relationship test, “ ‘ “
‘a statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification. [Citations.]
Where there are “plausible reasons” for [the classification], “our
inquiry is at an end.” ’ ” ’ ” (
italics omitted.)
In
provision (then-new § 2900.5) that made actual custody credits prospective,
applying only to persons delivered to the Department of Corrections after the
effective date of the legislation. (
544-545.) The court concluded that this
limitation violated equal protection because there was no legitimate purpose to
be served by excluding those already sentenced, and extended the benefits
retroactively to those improperly excluded by the Legislature. (Id.
at p. 545.) But Kapperman is distinguishable from the instant case because it
addressed actual custody credits, not
conduct credits. Conduct credits must be earned by a
defendant, whereas custody credits are constitutionally required and awarded
automatically on the basis of time served.
(See, e.g., People v. Olague
(2012) 205 Cal.App.4th 1126, 1132-1143 (Olague).) A further significant distinction may be
drawn between Kapperman and this
case, in that the liberalization of credit at issue in Kapperman applied to prisoners regardless of the offense for which
they were imprisoned, whereas the change here affects three well defined
sub-classes of offenders: those required
to register as sex offenders; those committed for a serious felony, as defined
as defined in section 1192.7; or those with a prior serious felony, as defined
in section 1192.7, or a prior violent felony, as defined in section 667.5. (Olague,
supra, at p. 1135.)
involved a prior version of section 4019 that allowed pre-sentence conduct
credits to misdemeanants, but not felons.
(Sage, supra, 26 Cal.3d at p.
508.) The high court found that there
was neither a “rational basis for, much less a compelling state interest in,
denying presentence conduct credit to detainee/felons.” (Ibid,
fn. omitted.) But here, assuming without
deciding that defendant is similarly situated with those receiving the benefit
of the legislative changes, the purported equal protection violation is
temporal, rather than based on defendant’s status as a misdemeanant or felon. (People
v. Floyd (2003) 31 Cal.4th 179, 189-191 [“ ‘punishment lessening
statutes given prospective application’ ” on a certain date “ ‘do not violate
equal protection’ ”].) The question in
this case, which is not answered by Sage
given its holding, is whether there is a rational basis for the different
treatment vis a vis conduct credits.
One of
section 4019’s principal purposes is to motivate or reward good behavior while
in pre-sentence custody, and it is impossible to influence behavior after it
has occurred. The fact that a
defendant’s conduct cannot be retroactively influenced provides a rational
basis for the Legislature’s express intent that the October 2011 amendments to
section 4019 apply prospectively. (
[prospective only application of provisions of Determinate Sentencing Act (§
1170 et seq.) upheld over equal protection challenge]; In re Strick (1983) 148 Cal.App.3d 906, 912-913 [prospective only
application of statutory changes designed to incentivize productive work and
good conduct of prison inmates upheld over equal protection challenge].) This is so even if an inmate has already
earned the maximum amount of good conduct credits available under the applicable
former version of the statute and is only claiming entitlement to
good behavior that earned him those conduct credits in the first place. What illustrates this point is that
unquantifiable and unidentifiable group of inmates who did not earn good conduct
credits in the same period of time as defendant, but who might have behaved
better given enhanced incentives.
We
acknowledge that the specific purpose of the amendments to section 4019 that
became operative October 1, 2011, was to address the “state’s fiscal emergency
by effectuating an earlier release of a defined class of prisoners, thereby
relieving the state of the cost of their continued incarceration and
alleviating overcrowding in county jail facilities. [Citations.]”
(People v. Borg (2012) 204
Cal.App.4th 1528, 1537-1539 [amendments do treat similarly situated classes of
persons disparately but the legislation nevertheless bears a rational
relationship to a legitimate state purpose].)
But we agree with our colleagues in Division One of the First Appellate
District that “[r]educing prison populations by granting a prospective-only
increase in conduct credits strikes a proper, rational balance between the
state’s fiscal concerns and its public safety interests.” (Id.
at p. 1539; Olague, supra, 205
Cal.App.4th at p. 1136.)
We
accordingly reject Blaylock’s contention that he is entitled to additional
conduct credits based on amendments to section 4019, operative October 1, 2011.
DISPOSITION
The
judgments are affirmed.
Duffy,
J.
WE
CONCUR:
Rushing, P.J.
Premo, J.
People
v. Blaylock
No.
H037280
name="_ftn1" title=""> [1] Further unspecified statutory references are
to the Penal Code.
name="_ftn2" title=""> [2] The convictions here resulted from pleas and
as to the first case, number SS101645, there are no facts of the crime in the
record. As to the second case, number
SS102694, we take the facts of the crime from the probation report.
