P. v. Cobray
Filed 1/15/13 P.
v. Cobray CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
ADRIAN DEVON CORBRAY,
Defendant and Appellant.
H037666
(Santa Cruz County
Super. Ct. No. F21115)
Defendant
Adrian Devon Corbray was convicted and sentenced to four years in prison on
five counts of pimping and pandering. On appeal he contends that he should receive
additional conduct credit for presentence confinement pursuant to the
October 2011 amendments to Penal Code section 4019 (§ 4019), which took
effect after his offenses were committed but before judgment was entered
against him. He acknowledges that the
amendments included a declaration that they would operate only prospectively,
but he seeks to invalidate that declaration on the ground that it violates his
right to equal protection of the laws.
The Supreme Court has recently held that a defendant seeking the benefit
of a previous similar amendment could not satisfy the first requirement of an
to credit earned before the effective date of the amending statute, because he
was not situated similarly to those who earned credit after the effective date
of the liberalizing amendment. (
328-329 (Brown).) This decision clearly disposed of defendant’s
argument insofar as it concerns credit earned prior to the effective date of
the 2011 amendments. Having asked the
parties to brief the narrower question whether the decision also disposed of
his claim as it concerned time in confinement between the effective date and
sentencing, we have concluded that we are constrained by existing authority,
including our own decision in People v.
Kennedy (2012) 209 Cal.App.4th 385 (Kennedy),
to reject defendant’s claim in its entirety.
We will therefore affirm the judgment.
Background
Defendant
was charged on July 28, 2011, with (1) pimping
a minor over the age of 16 (Pen. Code, § 266h, subd. (b)(1)), (2)
pandering a minor over the age of 16 (Pen. Code, § 266i, subd. (b)(1)), (3)
simple pimping (Pen. Code, § 266h, subd. (a)), (4) simple pandering (Pen. Code,
§ 266i, subd. (a)(1)), and (5) conspiracy to commit pimping and pandering (Pen.
Code, § 182, subd. (a)(1). The offenses
were alleged to have occurred between April 1 and June 30, 2011. On September 11, 2011, defendant entered a plea of no contest to all charges. On October 21, 2011,
he was sentenced to the middle term of four years on count 1, with other counts
running concurrently or stayed under Penal Code section 654. The offenses of pimping a minor and pandering
a minor also triggered a requirement, and the court duly ordered, that he
register as a sex offender. (Pen. Code,
§ 290, subd. (c), citing Pen. Code, §§ 266h, subd. (b), and 266i, subd.
(b).) The court allowed presentence
confinement credit of 178 days actual times served, plus 88 days conduct credit
under section 4019.
Defendant
filed this timely appeal.
I.
The
court calculated defendant’s credits for presentence confinement using the
formula in effect from September 28, 2010, through September 30, 2011. At that time 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.)
This meant that a person in defendant’s position would receive six days
of total credit against his sentence (i.e., six days’ reduction in the time
remaining to be served) for every four days of pre-sentence confinement. 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).
Prisoners subject to that formula earned one day of conduct credit for
every day they were actually confined—a straight two-to-one ratio. The enacting statute declared, however, that
this formula was inapplicable, and the six-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.) The excluded
classes including prisoners required, as defendant was, to register as sex
offenders. (Ibid.)
Effective
October 1, 2011, section 4019 was amended to provide a formula of two days’
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, 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, albeit one slightly less liberal
than was found in the prior version of section 2933.
applicable to him, by allowing credit under a two-for-two rather than
two-for-four formula, roughly doubling his custody credits and increasing his
total credit for presentence confinement by about one-third. The Legislature, however, expressly declared
the 2011 amendment to be prospective in operation: “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.†(§ 4019,
subd. (h); italics added.)
Defendant’s
original claim before this court was that he was entitled to the benefit of the
October 2011 formula for the entire period of his presentence confinement,
i.e., 178 days’ credit for time actually served, plus 178 days’ conduct credit,
for a total of 356 days. He
contended that for purposes of the relevant statutes he was situated similarly
to prisoners who committed their offenses after the 2011 amendments took
effect. The clause declaring the statute
prospective-only in operation, he contended, denied his
and was void. In a supplemental opening
brief he contended that the disparity in treatment failed both the “rational
basis†standard of judicial review and the more searching “strict scrutinyâ€
standard, to which he contended it was subject because the effect of the
statute was to impair his interest in personal liberty by lengthening his time
of incarceration relative to others similarly situated.
These
arguments were largely disposed of in Brown,
supra, 54 Cal.4th 314, where a
defendant sentenced in 2007 sought additional conduct credit based on
amendments that took effect in January 2010.
As most pertinent here, the Supreme Court rejected the defendant’s equal
protection on the ground that, having already completed his presentence
confinement when the liberalizing statute took effect, the defendant was not
similarly situated to those who spent time in presentence confinement after
that date. The threshold requirement for
an equal protection claim, wrote the court, “ ‘ “is a showing that
the state has adopted a classification that affects two or more
manner.†’ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.†’ [Citation.]â€
(Id. at p. 328, quoting
Cal.4th 228, 253.) Adopting language
from In re Strick (1983) 148 Cal.App.3d
906, 913, the court wrote, “ ‘The obvious purpose of the new section
. . . is 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. . . .
Thus, inmates were only similarly situated with respect to the purpose
of [the new law] on [its effective date], when they were all aware that it was
in effect and could choose to modify their behavior accordingly.’ †(Brown,
supra, at p. 329.)
name="_ftnref3" title="">[3]
Defendant’s
challenge is clearly foreclosed by Brown
insofar as he seeks additional credit for time in custody prior to the
effective date of the amending statute.
Here as there, the central statutory objective of providing an incentive
for good behavior cannot be served with respect to confinement that had already
occurred when the statute took effect.
It follows that under Brown,
defendant is not situated similarly to persons earning conduct credits after
the effective date of the 2011 amendments to section 4019.
II. Custody
After Effective Date
We
asked the parties to brief the effect of Brown,
as well as a footnote in People v. Lara
(2012) 54 Cal.4th 896, 906, footnote 9 (Lara),
as they might bear on time defendant spent in jail—21 days, to be
precise—between the effective date of the 2011 amendments and his
sentencing. Specifically we asked the
parties (1) whether Brown applies to
“disparities in treatment for confinement occurring after that date,†i.e.,
October 1, 2011; (2) if not, whether those disparities violate equal
protection; and (3) whether the cited footnote in Lara “constitute[s] binding authority that disparate treatment for
confinement after October 1, 2011, is mandated by the October 1, 2011,
amendment and that such treatment does not violate equal protection.â€
We
find it unnecessary to consider the first question because we believe the
dictum in Lara, together with other
authority issued since this matter first became before us, preclude our
adopting defendant’s equal protection argument even with respect to the time he
spent in presentence custody after the effective date of the 2011
amendments. First, we observe that this
court has recently rejected such a challenge in Kennedy, supra, 209
Cal.App.4th 385. Another court, while
rejecting what it perceived as one of the holdings in that case, also refused
to find a denial of equal protection. (
Cal.App.4th 42, 53-54.) And the Supreme
Court’s comments in Lara, while
perhaps not binding on us as a strict matter of stare decisis (see 9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 509, pp. 572-574 [binding precedential
effect is limited to ratio decidendi,
the actual rule of decision]), certainly furnish an indication of that court’s
views with which we are disinclined to take issue, particularly in view of our
own holding in Kennedy,
In
Lara the Supreme Court reviewed a
decision of this court in which the issue, as framed by the high court, was
whether a sentencing court had the power to disregard a prior conviction that
would otherwise disqualify the defendant from receiving increased presentence
conduct credits under section 4019. (See
Lara, supra, 54 Cal.4th at pp. 899,
900.) That question in turn depended on
whether the facts triggering the disqualification had to be “charged and
alleged.†(Id. at p. 901.) The court
concluded that they did not. (
power to disregard them in calculating the defendant’s credits under section
4019, and our judgment, directing the trial court to consider exercising such
power, was reversed. (
We
took note of Lara in the present
context because the court commented in a footnote on the effect of the 2011
amendments to the precustody credit formula:
“Today local prisoners may earn day-for-day credit without regard to
their prior convictions. (See § 4019,
subds. (b), (c) & (f), as amended by Stats. 2011, ch. 15, § 482.) This
favorable change in the law does not benefit defendant because it expressly
applies only to prisoners who are confined to a local custodial facility ‘
2011.’ (§ 4019, subd. (h), italics
added.).†(Lara, supra, 54 Cal.4th
at p. 906, fn. 9.) The court went
on to reject an equal protection challenge to this limitation on the grounds
that it was foreclosed by the decision in Brown. (Ibid.) This treatment obliquely repudiated an
earlier suggestion by this court, in yet another case, that the 2011 amendments
might be construed to differentiate only on the basis of the time when the
custody occurred and not the date of the offense—another decision of which the
Supreme Court granted review, but which remains pending there. (People
v. Olague (2012) 250 Cal.App.4th, review granted Aug. 8, 2012,
S203298.) That case may provide a
suitable vehicle if the court wishes to revisit the effect of the 2011
amendments on persons in defendant’s position.
Pending such further guidance, and given the weight of authority adverse
to defendant’s position, we must conclude that the trial court did not err by
calculating his custody credits at the
earlier rate for the entire time of his presentence confinement.
Disposition
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
name="_ftn1" title=""> [1] Courts have adopted a variety of shorthand
designations to refer to the varying formulae for calculating confinement
credits. In our view, the least
ambiguous and most mathematically sound approach is to describe each formula as
a ratio of total credit allowed to actual days served. Under this approach, defendant’s credits were
calculated under a six-for-four formula, while he contends that they should
have been determined under a two-for-one formula. Of course it is tempting to further reduce
the 6:4 ratio to 3:2, but this would yield inaccurate results because the
statute only allows conduct credit based on four-day units of time actually
served. Thus a prisoner in jail for 10
days would receive only 14 days total credit, including four days conduct
credit based on two four-day units actually served. Under a three-to-two ratio, the same prisoner
would receive 15 days credit, including five days for conduct.
name="_ftn2" title=""> [2] The 2011 formula is less liberal the 2010
formula in that it does not grant conduct credit for odd days in custody. Under the 2011 version of section 4019, a
defendant spending five days in jail will receive four days conduct credit,
whereas under the 2010 version of section 2933 he would have received five.
