P. v. Hicks
Filed 6/18/13 P. v. Hicks 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opinion has not been certified for publication or ordered published for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.
MORGAN HICKS,
Defendant and
Appellant.
H038024
(Monterey
County
Super. Ct.
No. SS092034)
Defendant
Morgan Hicks pleaded guilty to numerous counts of
property, identity theft, and grand theft in exchange for a 22‑year
prison term. On appeal, he claims that
he was entitled to additional conduct credit under the October 2011 version of
Penal Code section 4019,
name="_ftnref1" title="">
and he seeks correction of errors on the abstract of judgment. The Attorney General concedes that the
abstract must be corrected, and we will so order. We reject defendant’s claim for additional
conduct credit.
Background
In January 2010, defendant was charged by information
with a total of 60 counts of receiving stolen property (§ 496, subd. (a)),
residential burglary (§ 459), commercial burglary (§ 459), driving or taking a
vehicle (Veh. Code, § 10851, subd. (a)), grand theft (§ 487, subd. (d)), and
identity theft (§ 530.5, subd. (a)). It
was specially alleged that defendant had committed one of the residential
burglary counts while a non-accomplice was present in the residence, thereby
making that count a violent felony (§ 667.5, subd. (c)(21)), and that
defendant had served a prison term for a prior felony conviction (§ 667.5,
subd. (b)). All of the crimes were
alleged to have occurred in 2007.
In January
2012, defendant entered into a plea
agreement under which he would plead guilty to four counts of residential
burglary, 15 counts of receiving stolen property, one count of grand theft, and
two counts of identity theft, the remaining counts and allegations would be
dismissed, and he would receive a specified term of 22 years in state
prison. He also agreed to waive his
appellate rights. He entered these
pleas. The agreed term was imposed, and
the remaining counts and allegations dismissed.
Defendant
was awarded 793 days of actual custody
credit and 396 days of conduct credit.
He had been in jail from October
14, 2009 to May 15, 2010,
and from June 28, 2010
to January 27, 2012. The abstract of judgment had an “X†in the
box for “consecutive 1/3 violent†next to each of three of the four residential
burglary counts. Defendant timely filed
a notice of appeal.
II. Discussion
A. Conduct Credit
Because
defendant’s current offenses included serious felony convictions, he was not eligible
for any enhanced conduct credit under former section 2933, subdivision (e) or
former section 4019. The October 2011
version of section 4019 authorizes enhanced conduct credit for even those
convicted of serious felony offenses.
However, the October 2011 version of section 4019 provides that it
“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’s crimes occurred in 2007, he
is excluded from the prospective application of the October 2011 version of
section 4019.
Defendant
contends that it would violate equal protection to deny him the benefit of the
enhanced conduct credit that he would have been eligible for under the October
2011 version of section 4019 if it were not prospective only. He claims there is no legitimate basis for
distinguishing between him and those to whom the 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 (Nguyen).) Here, the October
2011 version of section 4019 reserves its benefits for the group of prisoners
who committed their crimes on or after
October 1, 2011, and excludes from its benefits the group of prisoners who
committed their crimes before October 1,
2011.
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 . . . .â€
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 like 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
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
crimes occurred in 2007, 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.
In a
supplemental opening brief, defendant, citing dicta in an opinion of this court
that is no longer published, asserts that he is entitled to additional conduct
credit under the October 2011 version of section 4019 for the actual days that
he served on and after October 1, 2011.
Defendant does not provide any analysis whatsoever to support this
claim. In the absence of any substantive
argument, we deem his claim forfeited. (
1244 fn. 3, overruled on another point in People
v. Edwards (1991) 54 Cal.3d 787,
835.)
B. Abstract
None of
defendant’s convictions is for a violent felony. On the abstract, there is an “X†in the
“consecutive 1/3 violent†box corresponding to each of three of the four
residential burglary counts. Because
these crimes were not violent felonies, these are errors. The “X†corresponding to each of these three
counts should be in the “consecutive 1/3 nonviolent†box. We will order the trial court to correct this
clerical error.
III. Disposition
The
judgment is affirmed. The trial court is
ordered to prepare an amended abstract of judgment that corrects the
misidentification of three of the offenses as violent felonies and instead
correctly identifies them as nonviolent felonies. The trial court shall transmit a certified
copy of the amended abstract to the Department
of Corrections and Rehabilitation.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Grover, J.
name="_ftn1" title="">[1]
Subsequent statutory references
are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2]
Defendant’s opening brief was
submitted prior to the California Supreme Court’s decision in
The Attorney General’s brief relied on Brown, and defendant filed no reply brief.
