P. v. Borg
Filed 4/2/12 P. v. Borg CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAMES BORG,
Defendant
and Appellant.
A129258
(San Francisco
County
Super. Ct. No. 209487)
Defendant
was convicted following a jury trial of stalking
(Pen. Code, § 646.9, subd. (a)),
name="_ftnref1" title="">[1]
with a prior conviction of stalking and making a
§ 422). He was sentenced to five
years in state prison, with a total of 455 days of presentence credit. In this appeal he claims that the trial court
erred by denying his motion for
substitution of counsel (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden),
and improperly imposed a one-year concurrent term for a prior prison term. He also challenges the trial court’s award of
conduct credits. We conclude that the
trial court did not conduct a deficient Marsden
inquiry or erroneously deny the motion for substitution of counsel. We find that the judgment must be modified by
striking the sentence for a prior prison term that was not found true by the
jury, and increasing defendant’s presentence credits by 14 days served in Napa
State Hospital
after he was found competent to stand
trial. In all other respects we
affirm the judgment.
STATEMENT OF
FACTS AND PROCEDURAL HISTORY
name="_ftnref2" title="">[2]
The
convictions stem from a series of events that commenced at the victim’s place
of work and occurred on two consecutive days.
On July 13, 2009,
defendant came into the Buffalo Exchange store on Haight
Street, where the victim Samantha Fuller was
working at the cash register. According
to Fuller’s testimony, defendant wrote her a note that said “F me,” and bore
her first name as stated on her store identification tag. When Fuller told defendant the note was
“inappropriate” and asked him to leave the store, he informed her that he
wanted to “marry” her. Defendant looked
directly at Fuller, often stared at her, and seemed “serious.”
Defendant
eventually left the store, but Fuller encountered him again later that night,
after the store was closed and she was walking to a bus stop with a
coworker. Defendant approached her,
gazed at her eyes earnestly, and repeatedly said to her directly and clearly,
“I want to cunnilingus your pussy.”
Fuller was “terrified,” and asked defendant to leave, as did her
coworker. Defendant quickly returned
with a “6-pack of beer in his hand,” however, and continued to leer at Fuller,
mumbling inaudibly. Fuller felt that
defendant was “really intimidating.”
Fuller’s friend stayed with her until the bus came and she went
home.
The
next evening, defendant reappeared in the Buffalo Exchange store. He began staring at Fuller and again
repeating, “I want to cunnilingus your pussy.”
Fuller and her coworkers directed defendant to “leave the store right
now.” Fuller also warned defendant that
she would call the police if he returned.
Before defendant left the store he looked Fuller “straight in the eyes”
and said, “Well, if I ever see you on the street I’m going to take your
pussy.” Fuller testified that defendant
was “very serious.” She interpreted
defendant’s statement as a threat of rape.
Defendant then stood in front of the store and “proceeded to grab his
penis over his clothes,” and began “shaking it up and down” as he laughed
derisively.
About
10 or 15 minutes later a police officer arrived at the store in response to
Fuller’s call. Fuller told the officer
“what had happened,” and gave a description of the suspect. Later that night, the officer provided Fuller
with a photo-lineup, and she “instantly recognized” defendant.
Defendant
was arrested the following morning in front of the Buffalo Exchange store. In response to subsequent questioning,
defendant admitted that he wrote the victim an “obscene note,” approached her
later that evening on Haight Street,
and “had told the victim that he was going to take her pussy.” He also stated to the officer that he loved
Fuller and wanted to marry her.
Defendant
testified at trial that he interacted with Fuller “good-naturedly and kindly,”
hoping for a “positive, harmless date,” and did not intend to frighten
her. In response, Fuller became
embarrassed, angry and vindictive, then “exaggerated and lied” in her
testimony. Defendant apologized to
Fuller for “having naively and innocently asked for lovemaking.”
On
August 5, 2009, defendant
was charged with stalking (§ 646.9, subd. (a)), making a criminal threat (§
422), and second degree burglary
(§ 459), with an enhancement allegation of a prior conviction and prison
term within the meaning of section 646.9, subdivision (c)(2). In September of 2009, criminal proceedings
were suspended pursuant to section 1368, following a finding that defendant was
not competent to stand trial. Defendant
was treated at Napa State
Hospital, and found mentally
competent to stand trial on January 7, 2010. He was returned to county jail on February 5, 2010, and proceedings were
reinstated. A first amended information
was filed on April 22, 2010,
to correct the date of the alleged prior conviction and add an allegation of a
prior prison term (§ 667.5, subd. (b)).
Defendant
made the first of his three motions for substitution of counsel pursuant to
a hearing on in limine motions.
Defendant complained that his attorney failed to meet with him as
promised or provide him with copies of documents, and failed to file a motion
for a continuance of the trial. The
motion was denied, without prejudice to renewal after defendant obtained his
“notes” and met with counsel.
A
second or revisited Marsden motion
was made by defendant on April 26,
2010, again before trial commenced.
Defendant repeated his grievances that counsel failed to obtain a
continuance in the case, “missed crucial meetings,” did not adequately consult
with him. Defendant added that he
neither trusted nor was “comfortable at all working with this lawyer.” He particularly mentioned that counsel was
“unjust” and in need of doing “a lot of repenting.” Defendant further expressed his fear that
evidence of prior convictions would be admitted in the present case. The court again denied the motion, and urged
defendant to consult with counsel.
After
guilty verdicts had been returned by the jury on counts 1 and 2, at a hearing
to order a presentence report on May
14, 2010, defendant reiterated his lack of trust in his appointed
counsel, and expressed a desire to work with other lawyers. Defendant protested that his attorney
mistakenly believed he “was guilty in this present case” and deserved to be
punished, and as a result resisted defendant’s “explanations of truth.” The court pointed out that defendant was
entitled to retain new counsel if he acted quickly, and asked if he was pursing
a third Marsden motion.
Another
Marsden hearing ensued. Defendant professed his innocence and
asserted that he did not want counsel “involved in anything further” in the
case. The court advised defendant that
if he wanted to proceed with any motion for a new trial, he needed to cooperate
with counsel. Defendant stated that counsel
did “not have the heart” to assist him “to point out the truth,” as needed to
obtain “reversal of the decision” of the jury.
He also protested that counsel “worked against” him, resisted his
efforts to establish innocence, and called him “a liar” to his “face quite a
few times.” Defense counsel pointed out
to the court that “another lawyer” was necessary to review any new trial motion
based on ineffective assistance of counsel, as he had not “seen any issues for
a new trial.” The court denied the
The Denial of Defendant’s Motion for Substitution of Counsel.
Defendant
argues that the trial court erred by failing to conduct an adequate inquiry
into the grounds for his request for substitution of counsel after trial.
assertion of Marsden error: first, he
was not afforded the opportunity to fully state his reasons for dissatisfaction
with counsel before denial of the Marsden
motion; and second, when counsel subsequently expressed to the trial
court that a motion for new trial would
require him to “claim ineffective assistance of counsel,” the court erred by
failing to conduct a further hearing.
Defendant maintains that the court’s failure to conduct an inquiry makes
“meaningful appellate review impossible and results in denial of a fair
trial.” He asks that we reverse the
judgment and remand the case to the trial court to conduct the requisite
inquiry into the “allegations concerning counsel’s performance.”
We
will separately review defendant’s two claims of Marsden error in accordance with the “ ‘ “contours of the
rule set forth in Marsden, supra, 2
Cal.3d 118,” ’ ” that are “ ‘ “well settled. ‘ “When a defendant seeks to discharge
his appointed counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to explain the basis
of his contention and to relate specific instances of the attorney’s inadequate
performance. [Citation.] A defendant is entitled to relief if the
record clearly shows that the first appointed attorney is not providing
adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.” ’
[Citation.]” ’ ” (
878.) “Marsden imposes four requirements” on the trial court: “First, if
‘defendant complains about the adequacy of appointed counsel,’ the trial court
has the duty to ‘permit [him or her] to articulate his [or her] causes of
dissatisfaction and, if any of them suggest
ineffective assistance, to conduct an
inquiry sufficient to ascertain whether counsel is in fact rendering
effective assistance.’
[Citations.]” (
1362, 1367.)
“[W]hen
a defendant requests substitute counsel, ‘the standard expressed in
preconviction and postconviction.’ ” (
88, quoting from People v. Smith
(1993) 6 Cal.4th 684, 694.) At
“ ‘any stage of the trial’ ” a criminal defendant “ ‘must be
given the opportunity to state reasons for a request for new counsel.’ [Citation.]”
(People v. Lopez (2008) 168
Cal.App.4th 801, 814.) A defendant is
entitled to bring a posttrial Marsden motion
either for the purpose of sentencing or to bring a new trial motion. (People
v. Miller (2007) 153 Cal.App.4th 1015, 1024; People v. Winbush (1988) 205 Cal.App.3d 987, 991.) In ruling on a postconviction
apply the same standard it would apply in ruling on a preconviction
‘in the exercise of its discretion, the court finds that the defendant has
shown that a failure to replace the appointed attorney would substantially
impair the right to assistance of counsel [citation], or, stated slightly
differently, if the record shows that the first appointed attorney is not
providing adequate representation or that the defendant and the attorney have
become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citation].’ ” (People
v. Johnson (2009) 47 Cal.4th 668, 673, fn. 2, quoting from
“After
hearing from the defendant, a trial court is within its discretion in denying
the motion unless the defendant establishes substantial impairment of his right
to counsel. [Citation.] On appeal we review the denial for an abuse
of discretion.” (People v. Vera (2004) 122 Cal.App.4th 970, 979.)
The Inquiry into Defendant’s Motion for Substitution of Counsel After Trial.
Defendant
acknowledges that the court “conducted a Marsden
hearing” when he voiced his dissatisfaction with counsel and enumerated the
“evidence he felt should have been challenged . . . at trial,” but
argues that the inquiry undertaken by the court was deficient. He claims the court erred by encouraging
defendant to “work with” his attorney on “a new trial motion,” and failed to
properly grant him the opportunity to articulate “all of the reasons” in support
of his request for a “new attorney.”
The
California Supreme Court has “pointed out that a trial court cannot discharge
its duty without hearing the reasons for the defendant’s belief that his or her
attorney has not afforded adequate representation.” (People
v. Martinez (2009) 47 Cal.4th 399, 417.)
Marsden “requires that a trial
court ‘listen[ ] to [a defendant’s] reasons for requesting a change of
attorneys. [Citation.]’ ” (People
v. Gutierrez (2009) 45 Cal.4th 789, 804.)
“Accordingly, ‘When a defendant moves for substitution of appointed
counsel, the court must consider any specific examples of counsel’s inadequate
representation that the defendant wishes to enumerate.” (People
v. Smith, supra, 6 Cal.4th 684, 690.)
“A trial court errs under Marsden
by not affording a criminal defendant the opportunity to state all his reasons
for dissatisfaction with his appointed attorney. [Citations.]
On the other hand, a defendant is not entitled to keep repeating and
renewing complaints that the court has already heard.” (People
v. Vera, supra, 122 Cal.App.4th 970, 980; see also People v. Hidalgo (1978) 22 Cal.3d 826, 827, fn. 1;
1654, 1666.)
Here,
defendant voiced his posttrial dissatisfaction with his attorney by complaining
that counsel believed in his guilt and failed to accept his explanations of
innocence. The court allowed defendant
to elaborate on the reasons for his displeasure with counsel. Defendant criticized counsel for failing to
offer specific evidence at trial: the testimony of a “handwriting expert” to
prove that he did not write the entire note to Fuller; and the testimony of the
Buffalo Exchange store manager, who was present and “didn’t see anything” when
Fuller asserted that defendant “was masturbating” outside the premises.
counsel to present any potentially exculpatory evidence in the context of a
motion for new trial. Defendant again
protested that his attorney believed he “was guilty” and “resisted” his efforts
to prove his innocence. The court denied
the motion without comment.
We find that the
trial court conducted a Marsden inquiry
appropriate to the nature of the postconviction motion made by defendant. In contrast to People v. Reed (2010) 183 Cal.App.4th 1137, 1144, relied on by defendant,
this is not a case in which the court failed “to conduct any inquiry at all
into the basis for his motion after he expressed his desire to move for a new
trial on the basis of ineffective assistance of counsel.” (See also People
v. Mejia (2008) 159 Cal.App.4th 1081, 1086.) The court afforded defendant an opportunity
to state his grounds for dissatisfaction with the current appointed attorney,
which included lack of trust in counsel and an interest in presenting evidence
to challenge the verdict and support a new trial motion. Defendant was not prevented from stating all
of his reasons to support his assertion of inadequate representation or an
irreconcilable conflict. (
1772, 1787–1788.)
The
court also properly determined that defendant’s complaints with counsel’s
previous performance at trial were subject to evaluation in a new trial motion,
and substitution of counsel was not required.
Where, as here, the Marsden
motion is made after trial, “the inquiry is forward-looking in the sense that
counsel would be substituted in order to provide effective assistance in the
But the decision must always be based on what has happened in the
(People v. Smith, supra, 6
Cal.4th 684, 695.) “ ‘If the claim
is based upon acts or omissions that occurred at trial or the effect of which
may be evaluated by what occurred at trial the court may rule on the motion for
new trial without substituting new counsel.’
[Citation.] The same standard of
proof applies to a motion for substitute counsel made in the trial court
whether it is made before or after conviction.”
(People v. Sharp, supra, 29
Cal.App.4th 1772, 1787.)
Defendant
did not demonstrate that either ineffective assistance of counsel or prejudice
occurred at trial. “ ‘New counsel
must be appointed when the defendant presents a colorable claim that he was
ineffectively represented at trial; that is, if he credibly establishes to the
satisfaction of the court the possibility that trial counsel failed to perform
with reasonable diligence and that, as a result, a determination more favorable
to the defendant might have resulted in the absence of counsel’s
failings.’ [Citation.]” (People
v. Reed, supra, 183 Cal.App.4th 1137, 1144–1145, fn. omitted.) Because the Marsden motion was made after trial, “the only basis for the motion
could be that counsel performed ineffectively during trial or could not
adequately represent the defendant at sentencing.” (People
v. Reed, supra, at p. 1148, citing People
v. Washington (1994) 27 Cal.App.4th 940, 944.) Defendant’s complaints with
counsel’s failure to present evidence did not credibly establish that
appointment of a different attorney would have produced a more favorable
verdict, gained defendant a new trial, or could have had any effect on the
sentence imposed. (People v. Washington, supra, at p. 944.) Defense counsel may have legitimately
determined that producing at trial the evidence mentioned by defendant would
have been more harmful than helpful to his client’s cause. (People
v. Sharp, supra, 29 Cal.App.4th 1772, 1788.) “We do not find Marsden error where complaints of counsel’s inadequacy involve
tactical disagreements.” (
922.) The conflict between defendant and
counsel over the presentation of evidence at trial was a tactical disagreement,
in the absence of evidence that indicates otherwise, and did not require
substitution of counsel. (
The facts that support a guilty finding often cannot be trumped by even
the most skilled of defense counsel.
Nor
did defendant’s statement of grievances reveal such an irreconcilable conflict
that ineffective representation was likely to result. “The mere ‘ “lack of trust in, or
inability to get along with,” ’ counsel is not sufficient grounds for
substitution. [Citation.]” (People
v. Taylor (2010) 48 Cal.4th 574, 600.)
Without a showing in the record of irreconcilable conflict or
substantial impairment of defendant’s right to counsel, the
denied.
Substitution of Counsel Associated with a Motion for New Trial.
The
second facet of defendant’s claim of Marsden
error focuses on his attorney’s pronouncement, following denial of the
“any issues for a new trial motion,” and would be forced to “claim ineffective
assistance of counsel.”
name="_ftnref5" title="">[5] We are not persuaded that counsel’s
recognition and pronouncement of a potential
conflict if a new trial motion was filed based on a claim of ineffective representation
merited an additional Marsden inquiry
under the circumstances. From the prior
inquiry, the court was aware of defendant’s specified causes of dissatisfaction
with his attorney, sufficient to ascertain whether counsel was in fact
rendering effective assistance. Being
alerted to a speculative future conflict of interest in the event a new trial
motion was filed did not provide the trial court with a reason to immediately
engage in another postconviction Marsden inquiry. Thereafter, defendant did not file a motion
for new trial or renew his request for substitution of counsel. No Marsden
error occurred.
The Imposition of the One-year Term for the Prior Prison Term.
Defendant
challenges the trial court’s imposition of a one-year sentence for a prior term
of imprisonment pursuant to section 667.5, subdivision (b). Although the jury found the prior prison term
allegation “Not True,” the clerk’s
minutes stated incorrectly that the “667.5(b) allegation was found to be
(Italics added.) The trial court
subsequently imposed and stayed a one-year enhancement under section 667.5,
subdivision (b).
The
Attorney General agrees that the sentence imposed on the section 667.5,
subdivision (b) enhancement cannot stand.
The clerk’s minutes does not accurately reflect the jury’s finding. The abstract of judgment must be corrected to
conform to the not true finding of the jury.
(People v. Zackery (2007) 147
Cal.App.4th 380, 386.) The unauthorized
one-year sentence on the prior prison term enhancement must be stricken on
appeal. (People v. Flores (2005) 129 Cal.App.4th 174, 187;
565, 571; People v. Breazell (2002)
104 Cal.App.4th 298, 305; People v.
Bradley (1998) 64 Cal.App.4th 386, 390–391.)
The Award of Conduct Credit After Defendant Was Found Competent.
Defendant
also claims that he is entitled to an additional award of conduct credits under
section 4019 for time served in Napa State Hospital between January 7, 2010,
“when he was found competent to stand trial,” and February 3, 2010, when he was
certified as competent and finally returned to county jail two days later. The trial court awarded defendant a total of
455 days of conduct credit that did not include the time he was waiting for
issuance of the section 1372, subdivision (a)(1) certification of
competence. Defendant contends that
equal protection principles demand an award to him of an additional 14 days of
conduct credit for his time served after a finding of competence but before the
certification was issued to return him to county jail.
Defendant
is correct, as the Attorney General concedes.
In People v. Bryant (2009) 174
Cal.App.4th 175, 182 (Bryant), the
court concluded that while “an accused awaiting trial is not statutorily entitled
to conduct credits for time spent in a state hospital while subject to a
finding of incompetency,” the doctrine of “equal protection requires
application of section 4019 credits to presentence confinement in a state
facility if the circumstances of the confinement are essentially penal.” In light of the express mandatory directive
in section 1372, subdivision (a)(1) that once the accused has regained
competency, the medical director of the state hospital or a designee must
immediately certify that fact by filing a certificate of restoration with the
committing court, the court declared: “[E]qual protection principles warrant
defendant be given conduct credits that would have been earned had he been
returned to the county jail if a timely restoration certificate had been
issued.” (Bryant, supra, at p. 184.)
Thus, “when the uncontradicted evidence demonstrates the accused’s
competency was unquestionably regained as of a date certain, as occurred here
on May 21, 2007, the defendant is entitled to section 4019 conduct credits even
though the section 1372, subdivision (a)(1) certification has not been mailed
to the trial court.” (
Here,
as in Bryant, nothing in the record
suggests that the finding of competence was disputed. Defendant is entitled to 14 additional days
of conduct credit for the time spent in Napa State Hospital awaiting issuance
of the certificate of restoration of competence.
Additional
Conduct Credits Under the Amended Version of Section 4019.
In
a supplemental brief defendant presents another equal protection argument. He argues that he is entitled to an award of
additional presentence conduct credits under the most recent amended version of
section 4019. In 2011 section 4019 was
amended to grant presentence conduct credits in accordance with a more
favorable formula to enumerated classes of prisoners who were previously denied
those credits under prior versions of the statute. Defendant contends that the 2011 amendments
to the statute should be applied to the entire period of his presentence
custody, entitling him to additional conduct credits for the time served prior
to October 1, 2011. Defendant requests
that we order the trial court to amend the abstract of judgment to reflect “281
days” of conduct credit, “for a total of 610 presentence credit days.”
A
defendant “sentenced to prison for criminal
conduct is entitled to credit against his [or her] term for all actual days
of [presentence] confinement solely attributable to the same conduct.” (People
v. Buckhalter (2001) 26 Cal.4th 20, 30.)
That confinement or custody includes days spent in jail before
sentencing. (§ 2900.5, subd. (a).) Pursuant to section 4019, a defendant may
also earn credit for “good behavior” and satisfactory performance of any labor
assigned him or her during presentence custody.
(§ 4019, subds. (b), (c); People
v. Dieck (2009) 46 Cal.4th 934, 939.)
A defendant’s good conduct time is deducted from his or her period of
confinement. (§ 4019, subds. (b) &
(c).) Before January 25, 2010, section
4019 provided that if a defendant earned all available presentence conduct
credits, six days would be deemed to have been served for every four days spent
in actual custody. (Former § 4019, subd.
(f); Stats. 1982, ch. 1234, § 7, pp. 4553–4554.)
Effective
January 25, 2010, the Legislature amended section 4019 to increase the number
of presentence conduct credits available to eligible defendants. (Stats. 2009 (2009–2010 3d Ex. Sess.) ch. 28,
§ 50.) Under the amended version of the
law, a defendant earned credits at twice the previous rate, that is, four days
of presentence credit for every two days of custody. (Former § 4019, subd. (f); Stats. 2009, ch.
28, § 50.) However, defendants who were
required to register as sex offenders, who were incarcerated for commission of
a serious felony, or who had suffered a prior conviction for a serious or
violent felony, as defined in sections 667.5 and 1192.7, were ineligible for
the enhanced credits and continued to accrue credits at the previously
applicable rate. (Former § 4019, subds.
(b)(2) & (c)(2).)
The
Legislature again amended section 4019 in 2010 and 2011. (See Stats. 2010, ch. 426, § 2; Stats. 2011,
ch. 15, § 482; Stats. 2011–2012 (1st Ex. Sess.) ch. 12, § 35.) The most recent 2011 amendments of section
4019, as operative October 1, 2011, to add subdivision (a)(6), provide that the
formula of four days of presentence credit for every two days of custody
applies, “When a prisoner is confined in a county jail, industrial farm, or
road camp, or a city jail, industrial farm, or road camp as a result of a
sentence imposed pursuant to subdivision (h) of Section 1170.” Thus was removed the previous exclusion of
classes of prisoners, including defendant, who must register as sex offenders,
were committed for commission of a serious felony, or who had suffered a prior
conviction for a serious or violent felony, as defined in sections 667.5 and
1192.7, from the benefits of the increase in the formula for awarding presentence
conduct credits.
According
to subdivision (h) of the most current version of section 4019, however, 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.” Defendant
committed the current offenses well before the operative date of the amended
statute, but argues that “equal protection compels an award of additional
presentence credits in the present case.”
“ ‘Guarantees
of equal protection embodied in the Fourteenth
Amendment of the United States Constitution and article I, section 7 of the
California Constitution prohibit the state from arbitrarily discriminating
among persons subject to its jurisdiction. . . .’ [Citation.]”
(People v. Chavez (2004) 116 Cal.App.4th 1, 4.) “The constitutional guarantee of equal
protection of the laws has been defined to mean that all persons under similar
circumstances are given ‘ “equal protection and security in the enjoyment
of personal and civil rights . . . and the prevention and redress of
wrongs. . . .” ’
[Citation.] The concept
‘ “ ‘compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like
treatment.’ ” ’ [Citation.]” (Pederson v. Superior Court (2003) 105
Cal.App.4th 931, 939.) “ ‘Under the
equal protection clause, “[a] classification ‘must be reasonable, not
arbitrary, and must rest upon some grounds of difference having a fair and
substantial relation to the object of the legislation, so that all persons
similarly circumstanced shall be treated alike.’ ” ’ [Citations.]”
(People v. Wilder (1995) 33 Cal.App.4th 90, 104.)
“ ‘The
equality guaranteed by the equal protection clauses of the federal and state
Constitutions is equality under the same conditions, and among persons
similarly situated. The Legislature may
make reasonable classifications of persons and other activities, provided the
classifications are based upon some legitimate object to be accomplished.’ [Citation.]”
(People v. Spears (1995) 40 Cal.App.4th 1683, 1687.) “ ‘The first prerequisite to a
meritorious claim under the equal protection clause is a showing that the state
has adopted a classification that affects two or more similarly situated groups in an unequal manner.” [Citations.]
. . .
[Citation.]’ ” (People v.
Dial (2004) 123 Cal.App.4th 1116, 1120; see also People v. Calhoun
(2004) 118 Cal.App.4th 519, 529.) “The
‘similarly situated’ prerequisite simply means that an equal protection claim
cannot succeed, and does not require further analysis, unless there is some
showing that the two groups are sufficiently similar with respect to the
purpose of the law in question that some level of scrutiny is required in order
to determine whether the distinction is justified.” (People v. Nguyen (1997) 54
Cal.App.4th 705, 714.) “Persons who are
similarly situated must be treated alike.
[Citation.] There is, however, no
requirement that persons in different circumstances must be treated as if their
situations were similar.” (People v.
McCain (1995) 36 Cal.App.4th 817, 819.)
“The analysis will not proceed beyond this stage if the groups at issue
are not ‘ “similarly situated with respect to the legitimate purpose of
the law,” ’ or if they are similarly situated, but receive ‘ “like
treatment.” ’ Identical treatment
is not required. [Citations.]” (In re Jose Z. (2004) 116 Cal.App.4th
953, 960.)
The
distinction created by the amended version of section 4019 at issue here is a
straightforward one: those defendants who committed the same offenses or earned
conduct credits before the operative date of the statute are treated more
harshly than those who committed the same crimes or earned their credits on or
after October 1, 2011. Abstractly speaking,
the two groups are similarly
situated in the sense that they committed the same offenses, but are treated
differently in terms of earning conduct credits based entirely on the dates
their crimes were committed and their credits were earned. In terms of receiving additional 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. This satisfied the first prerequisite
for a meritorious claim under the equal protection clause, a classification
that affects two similarly situated groups in an unequal manner. (Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.)
We
proceed to judicial scrutiny of the classification. (People
v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) Legislation that creates sentencing disparity
or alters the treatment of custody credits for inmates does not affect a
fundamental right, and thus satisfies the requirements of equal protection “if
it bears a rational relationship to a legitimate state purpose.” (People
v. Richter (2005) 128 Cal.App.4th 575, 584; see also People v. Wilkinson (2004) 33 Cal.4th
821, 840; People v. Silva (1994) 27 Cal.App.4th 1160, 1168–1169.) “ ‘ “ ‘[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.]”
(People v. Hofsheier (2006) 37
Cal.4th 1185, 1200–1201; see also People v. Gonzales (2001) 87
Cal.App.4th 1, 12–13.)
We
look to the purposes of the 2011 amendments to section 4019 to evaluate the
rational basis for the legislative classification. The presentence custody credit scheme of
section 4019 is generally focused on encouraging “ ‘minimal cooperation
and good behavior by persons temporarily detained in local custody before they
are convicted, sentenced, and committed on felony charges. . . .’ [Citation.]”
(People v. Brown (2004) 33
Cal.4th 382, 405.) The 2011 amendments
to section 4019 were enacted for a decidedly different purpose: as part of
legislation 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. (See Assem. Bill No.
17X (2011–2012 1st Ex. Sess.) Stats. 2011–2012, 1st Ex. Sess. 2011, ch. 12X, § 35;
p. 76; Legis. Counsel’s Dig., Assem. Bill No. 109 (2011 Reg. Sess.) ___ Stats.
2011, Summary Dig., p. 17; Legis Counsel Dig., Assem. Bill No. 109 (2011 Reg.
Sess.) ___ Stats. 2011, Summary Dig., p. 19.)
While defendant proposes that “there is no rational basis” for
precluding a retroactive application of the more generous formula of conduct
credits to some prisoners, based only on the dates their crimes were committed
or credits were earned, we perceive a legitimate reason for limiting the
extension of credits. The Legislature
may have decided that the nature and scope of the fiscal emergency required
granting additional credits to the specified classes of prisoners previously
denied them – those who must register as sex offenders, or committed serious
felonies, or had suffered a prior conviction for a serious or violent felony –
only after the effective date of the amendments. That basis for the legislation is
substantiated by the explicit articulation in subdivision (h) of section 4019
of a prospective application of the statutory amendments. Reducing 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.
“ ‘The
decision of how long a particular term of punishment should be is left properly
to the Legislature. The Legislature is
responsible for determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others. As long as the Legislature acts rationally,
such determinations should not be disturbed.’
[Citation.]” (People v.
Wilkinson, supra, 33 Cal.4th 821, 840, quoting from People v. Flores
(1986) 178 Cal.App.3d 74, 88.)
“ ‘ “Where . . . there are plausible reasons for [the
Legislature’s] action, our inquiry is at an end.” [Citation.]’
[Citation.]” (People v.
Malfavon (2002) 102 Cal.App.4th 727, 739.)
The California Supreme Court declared in People v. Floyd (2003) 31 Cal.4th 179, 188: “Defendant has not
cited a single case, in this state or any other, that recognizes an equal
protection violation arising from the timing of the effective date of a statute
lessening the punishment for a particular offense. Numerous courts, however, have rejected such
a claim—including this court. (
663, 668 [200 Cal.Rptr. 293, 677 P.2d 219] [‘ “A refusal to apply a
statute retroactively does not violate the Fourteenth Amendment” ’],
quoting People v. Aranda (1965) 63
Cal.2d 518, 532 [47 Cal.Rptr. 353, 407 P.2d 265].) ‘The Legislature properly may specify that
such statutes are prospective only, to assure that penal laws will maintain
their desired deterrent effect by carrying out the original prescribed punishment
as written.’ [Citations.]”
We
conclude that a rational basis exists for the timing and prospective
application of the effective date of the 2011 amendments to section 4019, which
lessened punishment by expanding the class of prisoners who receive increased
conduct credits. The prospective
application of the statute does not violate equal protection principles.
DISPOSITION
The
judgment is amended to strike the one-year sentence for the prior prison term
and award defendant an additional 14 days of presentence credits under section
4019. As so amended the judgment is
affirmed. The trial court is directed to
prepare and forward an amended abstract of judgment reflecting the
modifications to the Department of
Corrections and Rehabilitation.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Marchiano,
P. J.
__________________________________
Margulies,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal
Code, unless otherwise indicated.
name="_ftn2" title="">[2] In light of the issues presented on appeal, which do
not deal with the evidence presented at trial, our recitation of the facts that
comprise the underlying offenses will be in somewhat summary form. We will focus on presentation of the facts pertinent
to the issues raised by defendant, particularly the denials of his sequence of
motions for substitution of counsel.
