P. v. Collado





























Filed 6/18/13 P. v. Collado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. JOHN COLLADO, Defendant and Appellant.

H038202 (Monterey County Super. Ct. No. SS110116)

Defendant
John Collado was convicted by guilty plea of href="http://www.fearnotlaw.com/">battery with serious bodily injury (Pen.
Code, § 243, subd. (d)) and sentenced to three years in state prison. His sole contention
on appeal is that he was entitled to conduct credit calculated under the
October 2011 version of Penal Code section 4019href="#_ftn1" name="_ftnref1" title="">[1]
rather than the conduct credit statutes in effect at the time of his January
2011 offense. He claims that even if the
statutory language of the October 2011 version of section 4019 does not apply
to him, it would violate equal protection to deny him the benefit of its
provisions. We reject his contention and
affirm the judgment.





>I.
Background

Defendant was charged by felony complaint with a single
count of battery with serious bodily injury (§ 243, subd. (d)) committed on January 11, 2011. In March 2011, defendant pleaded guilty to
this count pursuant to an agreement that he would be placed on felony
probation. In April 2011, the court
suspended imposition of sentence and placed defendant on probation. His probation was formally conditioned on a
123-day jail sentence, for which he was given credit for time served, and he
waived credits for that term. He had
been in jail from January 16, 2011
to April 8, 2011. The reason for the credit waiver was that
defendant was actually not entitled to any credit on this case as he had
received credit for his jail time on other cases and was not entitled to dual
credit. Defendant expressly agreed on
the record that his credit in this case was “zero.”

In January
2012, the prosecution filed a notice of violation of probation alleging that
defendant had violated his probation on January
20, 2012. In February 2012,
the court found that defendant had violated his probation and revoked his
probation. In April 2012, the court
imposed a three-year prison term. The
defense argued that “credits should be calculated at 50 percent based on equal
protection as well as ex post-facto.”
The trial court disagreed. “I’m
not going to do that. I’m going to give
him the 33 [percent]. I’m going to treat
him like everybody else that’s getting treated from that time frame, so that we
can protect everybody the same way.”
Defendant was given credit for 76 actual days and 38 days of conduct
credit calculated under the September 2010 version of section 4019. Defendant had been in jail from January 19, 2012 to the date of
sentencing. He received no credit for
his prior jail time because he had waived credits. Defendant timely filed a notice of appeal.



II. Analysis

Defendant
claims that the court should have granted him additional conduct credit under
the October 2011 version of section 4019, which provides for enhanced conduct
credit.href="#_ftn2" name="_ftnref2" title="">[2] (§ 4019, subd. (f).) The first sentence of section 4019,
subdivision (h) states that the statute’s enhanced conduct credit provisions
“shall apply prospectively and shall apply to prisoners who are confined to a
county jail . . . for a crime committed on or after October 1, 2011.” (§ 4019, subd. (h).) Since defendant was not confined for a crime
committed after October 1, 2011,
he is excluded from the prospective application of the October 1, 2011 version of section 4019.

Defendant
relies on the second sentence in section 4019, subdivision (h), which he
contends suggests that the enhanced conduct credit provisions were intended to
apply to “days earned” by a prisoner after October 1, 2011, even if the
prisoner’s crime occurred earlier. That
sentence states: “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).) He implies from this language that
the inverse is true, that is, that days earned by a prisoner after October 1,
2011 must be calculated under the October 1, 2011 version of section 4019. The implication he draws is untenable. It would make the two sentences conflict, the
first one limiting the new version’s application to those whose crimes occurred
on or after October 1, 2011, and the second one implying that it was not so
limited. Since the second sentence does
not actually conflict with the first sentence, it would be illogical to
conclude that the Legislature intended, solely by implication, to set up a
conflict between these two sentences. We
disagree with defendant’s claim that the second sentence “only has meaning” if
we give it the interpretation he suggests.
It is true that the second sentence merely points out the obvious
conclusion that must be drawn from the first sentence, but that does not
support his claim that the second sentence lacks meaning. The Legislature may well have wanted to make
doubly sure that the new legislation was clearly prospective only (particularly
after the controversy that arose over the prospectivity of a prior version of
section 4019) by pointing out every possible way in which it would >not apply, even if some of these were
subsumed in others.

Defendant
argues that, even if the statutory language of the October 2011 version of
section 4019 does not apply to him, principles of equal protection demand that
he receive the benefit of its provisions because there is no legitimate basis
for distinguishing between him and those to whom the href="http://www.mcmillanlaw.com/">statutory provisions do apply.

“[A]n 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.)
The two groups in this case are those who served time in jail after
October 1, 2011 for crimes
committed on or after October 1, 2011, and those who served time in jail
after October 1, 2011 for crimes
committed before October 1, 2011.
While these two groups are similarly situated in many respects, they are
not similarly situated with respect to “the purpose of the law in question . .
. .” (Ibid.)

The
California Supreme Court’s recent decision in People v. Brown (2012) 54 Cal.4th 314 (Brown) supports the conclusion that these two groups are not
similarly situated with respect to “the purpose of the law in question . . .
.” (Nguyen,
supra, 54 Cal.App.4th at p. 714; see
also People v. Kennedy (2012) 209
Cal.App.4th 385, 396-399 [relying on Brown
in rejecting a contention similar to that of defendant].) Brown
concerned a previous version of section 4019 that, unlike the October 2011
version, did not expressly state that it was to be applied prospectively. The court held in Brown that the statute was to be applied prospectively to time
served after its effective date and further held that prospective only
application of the new version of the statute did not violate equal protection
because the purpose of the statute was to create an incentive for good
behavior, which could not be done retroactively. (Brown,
at pp. 328-330.) “[T]he 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. That prisoners who served time
before and after former section 4019 took effect are not similarly situated
necessarily follows.” (>Brown, at pp. 328-329.)

While here,
unlike the situation in Brown, the
distinguishing characteristic is not the time of incarceration but the time of
the commission of the crime, Brown’s
analysis is equally applicable and leads us to the same conclusion. Since the October 2011 version of section
4019 plainly stated that it did not apply to a person whose crime occurred
before October 1, 2011, the “important correctional purposes” of the enhanced
“incentives for good behavior” that the October 2011 version of section 4019
offered would “not [be] served by rewarding prisoners” plainly excluded from
the scope of the statute and who “thus could not have modified their behavior
in response.” (Brown, supra, 54 Cal.4th
at pp. 328-329.) Because defendant’s
crime occurred in January 2011, the provisions of the October 2011 version of
section 4019 plainly did not apply to him, and thus the incentive offered by
that statute to other prisoners could not have influenced his behavior in
jail. Hence, as defendant was not
similarly situated to those to whom the statute applied with respect to the
“purpose of the law,” his right to equal protection was not violated by the
statutory distinction.

The fact
that the Legislature expressly stated that the October 2011 version of section
4019 was intended to address the state’s fiscal crisis does not mean that the
purpose of the law was limited to reducing state costs. “[T]he validity of a legislative act does not
depend on the subjective motivation of its draftsmen but rests instead on the
objective effect of the legislative terms.”
(County of Los Angeles v. Superior
Court (1975) 13 Cal.3d 721, 727; accord Warden
v. State Bar (1999) 21 Cal.4th 628, 650.)
The “objective effect” of the terms of the October 2011 version of
section 4019 is to provide an incentive to induce good behavior by those
prisoners who are eligible for the enhanced conduct credit under its
provisions. Since defendant is not
within the eligible group, the enhanced conduct credit provided him with no
additional incentive to modify his behavior in jail.



III. Disposition

The
judgment is affirmed.











_______________________________

Mihara,
J.







WE CONCUR:













_____________________________

Premo,
Acting P. J.













_____________________________

Grover,
J.