P. v. Checchin
Filed 10/11/12 P. v. Checchin CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
EVARSITO NAVA CHECCHIN,
Defendant and Appellant.
H037567
(Santa
Cruz County
Super. Ct.
Nos. F20313 & F21353)
Defendant
Avaristo Nava Checchin appeals a judgment by the trial court denying his
request for additional conduct credit under the October 2011 version of Penal
Code section 4019.
retroactive application of the statute to crimes committed before the statute’s
operative date of October 1, 2011. (Stats. 2011, ch. 15, § 482; Stats. 2011, ch.
39, § 53)
On
January 19, 2011, defendant
was charged with possession of cocaine
(Health & Saf. Code, § 11350, subd. (a)) and
(§ 148.9) in case number F20313. The
district attorney also alleged defendant suffered five prior convictions. (§ 667.5, subd. (b).) In February 2011, defendant pled guilty to
possession of cocaine and was granted probation. His remaining charges and enhancements were
subsequently dismissed. Defendant
admitted a probation violation on July
25, 2011, and the trial court revoked and reinstated probation.
On
August 22, 2011, defendant
was charged with possession of methamphetamine (Health & Saf. Code, §
11377, subd. (a)) in case number F21353.
The district attorney also alleged that defendant suffered five prior convictions. (§ 667.5, subd. (b). Defendant pled guilty to possession of
methamphetamine. The trial court struck
his prior convictions and granted probation.
During the same proceeding, defendant admitted a probation violation for
his earlier cocaine possession charge, and the trial court reinstated
probation.
October 5, 2011, defendant admitted
probation violations in both cases F20313 and F21353. The trial court revoked and reinstated
probation in both cases, and ordered defendant to serve two consecutive 120-day
sentences in county jail. The trial
court granted defendant 52 days credit in case number F21353 and no days credit
in case number F20313. Defendant’s trial
counsel filed a motion on October 7,
2011, arguing that defendant was entitled to the conduct credit
calculation provided by the October 2011 version of section 4019 and 2933
under equal protection principles. The
trial court denied the motion on October
25, 2011, and this timely appeal followed.
Defendant
asserts that the October 2011 version of section 4019 should be applied
retroactively under equal protection principles. On appeal, defendant seeks an additional 80
days credit, consisting of 40 days actual custody
credit and 40 days conduct credit.
Credit and Section 4019
Section 4019
provides defendants the ability to earn presentence credit consisting of
worktime and good behavior. (§ 4019,
subds. (b) & (c).) Collectively,
these presentence credits are called “[c]onduct credit.†(People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Defendants can earn conduct credit prior to
the imposition of a sentence and may also earn conduct credit when a jail
sentence is a term or condition of probation.
(People v. Daniels (2003) 106
Cal.App.4th 736, 740.)
The September
2010 version of section 4019 was in effect at the time defendant committed his
probation violations and initial offenses.
The September 2010 version of section 4019 allowed defendants to earn
conduct credit at a rate of two days for every four days of actual
custody. (Stats. 2010, ch. 426, §§ 2,
5.) At the same time they amended
section 4019, the Legislature amended section 2933. (Stats. 2010, ch. 426, § 1 [former
§ 2933, subd. (e)].) The amendment
to section 2933 allowed defendants who were sentenced to prison and for whom
the sentence was executed to earn presentence conduct credit the rate of one
day for every day of actual custody.
(Stats. 2010, ch. 426, § 1 [former § 2933, subd. (e)(1)].) Defendants with a prior serious felony
conviction were excluded from former section 2933, and instead earned conduct
credit under section 4019. (Stats. 2010,
ch. 426, § 1 [former § 2933, subd. (e)(3)].)
The September 2010 version of section 4019 expressly applied only to
defendants who committed their crime on or after the effective date of
September 28, 2010. (Stats. 2010, ch.
426, § 2.) Defendant committed his
offenses after the effective date of the statute and has prior serious felony
convictions. Therefore, the September
2010 version of section 4019 governs the amount of conduct credit he may earn.
The
current version of section 4019, operative October 1, 2011, allows defendants
to earn conduct credit at a rate of four days for every four days of actual custody. (§ 4019, subds. (b), (c), & (f);
Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53.) The October 2011 version of section 4019
applies only to those who are confined for a crime committed on or after
October 1, 2011. (§ 4019, subd.
(h).) The statute expressly states that
any conduct credit earned by a defendant prior to the operative date will be
calculated according to “the rate required by the prior law.†(§ 4019, subd. (h).) Operative October 1, 2011, section 2933 was
also amended and no longer provides for presentence conduct credit. (Stats.
12, § 16.)
Protection Principles
Defendant argues
that the October 2011 version of section 4019 should be retroactively applied
in accordance with the principles of equal protection. However, we find that the prospective
application of the October 2011 version of section 4019 does not violate equal
protection principles. Defendant is therefore
not entitled to the additional conduct credit he seeks on appeal.
A
defendant needs to demonstrate that there are two similarly situated groups
that are unequally treated in order to prevail on an equal protection
claim. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (
afforded to different types of classifications.
(People v. Wilkinson (2004) 33
Cal.4th 821, 836-837.) In cases where
the disparate statutory treatment does not touch upon “fundamental interests,â€
and is not rooted in gender, the analysis must be whether or not the
classification “bears a rational relationship to a legitimate state
purpose.†(Hofsheier, at p. 1200.) If
there are any “ ‘plausible reasons’ †for the classification at issue, then
there is no equal protection violation.
(Id. at pp. 1200-1201.)
Our Legislature amended the October 2011 version of section 4019 and
expressly included a provision that states the current statute only applies to
inmates who committed offenses on or after October 1, 2011. (§ 4019, subd. (h).) Defendant now contends that the October 2011
version of section 4019 creates two similarly situated groups who are treated
unequally: (1) a group that will receive
reduced conduct credit because they committed an offense before October 1,
2011, and (2) a group that will receive additional conduct credit because they
committed an offense after October 1, 2011.
However, defendant’s contention has no merit as our Supreme Court
recently decided in People v. Brown
(2012) 54 Cal.4th 314 (Brown) that
the prospective-only application of the January 2010 version of section 4019 is
not violative of equal protection principles on the basis that the January 2010
amendments did not create two similarly situated groups.
The Brown court noted the “important correctional purposes of a statute
authorizing incentives for good behavior [citation] are not served by rewarding
prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response.â€
(Brown, supra, 54 Cal.4th 314, pp. 328-329.) In short, our high court concluded that
“prisoners who served time before and after former section 4019 took effect are
not similarly situated necessarily follows.â€
(Id. at p. 329.) Though the Brown decision concerned the January 2010 version of section 4019,
we recently held in People v. Kennedy
(Sept. 14, 2012, H037668) ___ Cal.App.4th ___ [2012 LEXIS 982, *17-26] (
reasoning and holding in Brown cannot
be extended to the October 1, 2011 amendment to section 4019.
Defendant contends that the
California Supreme Court decision in People
v. Sage (1980) 26 Cal.3d 498 implicitly held that felons are similarly
situated to other inmates “regardless of their lack of awareness of the right
to earn conduct credits.†Defendant also
cites to In re Strick (1983) 148
Cal.App.3d 906 (Strick), and contends
that the appellate court’s decision was wrongly decided. The Strick
court struck down the defendant’s equal protection claim over the prospective
application of a statute that gave additional custody credit to those
participating in a work program. (
of the additional credit were not similarly situated to those granted the
additional credit. (Ibid.) Nonetheless, this
argument fails as the Brown court
actually rejected a similar argument and found
Strick to be “persuasive.†(Brown,
supra, 54 Cal.4th at p.
329.) The Brown court noted that the Strick
court that that prospective application of a statute effecting conduct credit
was appropriate as the “ ‘obvious purpose of the new section’ †was to “
‘affect the behavior of inmates by providing them with incentives to engage in
productive work and maintain good conduct while they are in prison.’ †(Brown,
supra, 54 Cal.4th at p. 329.)
Defendant also
refutes the existence of a rational reason for the classification in his
appeal, and claims that the California Supreme Court’s decision in
is binding. The Kapperman court held that a statute that awarded custody credit
only to those inmates delivered to the Director of Corrections by the statute’s
effective date did not bear a rational relationship to a legitimate state
purpose, and was thus unconstitutional.
(Id. at p. 545.) In its decision, the court ordered the
statute applied retroactively to all felons that were incarcerated or on
parole, including those excluded from the original statute. (Id.
at p. 550.)
Neither of these arguments have
merit, as both Kapperman and
the Supreme Court in Brown. (Brown,
supra, 54 Cal.4th at pp.
328-330.) First, the
custody credit, not conduct credit, in contrast to section 4019. “Credit for time served is given without
regard to behavior, and thus does not entail the paradoxical consequences of
applying retroactively a statute intended to create incentives for good
behavior. Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing
situated.†(Brown, supra, 54 Cal.4th
at p. 330, emphasis in original.)
The Brown court further distinguished Sage, finding that Sage did
not address the issue of retroactivity.
(Brown, supra, 54 Cal.4th at pp. 329-330.)
In Sage, the Supreme Court
held that a provision that allowed presentence conduct credit to those
convicted of misdemeanors but not felonies violated principles of equal
protection, finding that there was no rational reason for the varying
treatment. (Sage, supra,
court reasoned that “[t]he unsigned lead opinion ‘by the Court’ in
conduct credits, by their nature, must apply prospectively to motivate good
behavior. A brief allusion to that
argument in a concurring and dissenting opinion [citation] went unacknowledged
and unanswered in the lead opinion. As
cases are not authority for propositions not considered [citation], we decline
to read Sage for more than it
expressly holds.†(Brown, supra, 54 Cal.4th
at p. 330.)
Lastly, in a supplemental brief,
defendant additionally argues that under this court’s decision in
1126 (Olague), he is entitled to
increased presentence conduct credits for the time in custody after
September 30, 2011. However, the
Supreme Court granted review in Olague
(review granted Aug. 8, 2012, S203298), meaning it is no longer published (Cal.
Rules of Court, rule 8.1105(e)(1)) and may not be relied on or cited (Cal.
Rules of Court, rule 8.1115(a)).
Defendant’s
argument that the prospective application of the October 2011 version of
section 4019 violates equal protection is unavailing. Defendant is not entitled to additional
conduct credit.
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
unspecified statutory references are to the Penal Code.
facts of this case are not relevant to the issues on appeal.
