P. v. Hughes
Filed 1/15/13 P.
v. Hughes 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
GREGORY
HUGHES,
Defendant and Appellant.
H037665
(Santa Clara County
Super. Ct. No.
C1093108)
Defendant Gregory Hughes brings this
appeal from a judgment convicting him of criminal
offenses. He asserts that the trial
court erred in its determination of custody credits for presentence confinement
and in its calculation of a restitution fine.
We reject the first contention in conformity with a California Supreme
Court decision issued while this appeal was pending. Respondent concedes error on the second
point. We will therefore modify the
judgment and affirm as modified.
Background
Defendant was charged with
and aggravated assault (id., § 245,
subd. (a)(1)) based on an altercation with his ex-wife. It was also alleged that he had sustained a
prior conviction of residential burglary, constituting a serious felony under
Penal Code sections 667.5 and 1192.7, subdivision (c), as well as a strike
prior under Penal Code section 667, subdivision (a), and 1192.7.
On March 9, 2011, defendant entered
pleas of no contest to both counts in exchange for a dismissal of the “Prop 8
prior,†while reserving for determination the “legal issue o[f] whether or not
the strike is a strike.†The court ruled
that it was, but eventually struck the strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On September 9, 2011, the court imposed a sentence of
three years in prison. The court also
imposed a restitution fine of $1,600 “under the formula permitted by Penal Code
section 1202.4(B),†together with a like fine, suspended, under Penal Code
section 1202.45. The court allowed
credit for presentence confinement, under Penal Code section 4019, of “282
actual plus 140 . . . for a total of 422.†Defendant took this timely appeal.
Discussion
I.
As in effect from September
28, 2010,
through November 30, 2011, 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. Penal Code
section 2933 provided a more liberal formula, allowing one days’ credit for
each day served; however, that provision was declared inapplicable to certain
classes of prisoners, including those who, like defendant, had previously been
convicted of a serious felony. (Former
Pen. Code, § 2933, subd. (e); Stats. 2010, ch.
426, § 1.)
Effective October 1, 2011, Penal
Code section 2933 was amended to eliminate any reference to a credit formula,
and Penal Code section 4019 was amended to provide two days of conduct credit
for every two days served, in effect providing a slightly less liberal formula
than Penal Code section 2933 had, but extending it to all prisoners.
1st Ex. Sess., ch. 12, §§ 16, 35.)
The September 2010 formula was in
effect both when the offense here was committed and when the court sentenced
defendant to prison. Not surprisingly,
the trial court relied on that formula in granting defendant 140 days conduct
credit for 282 days in actual custody.
Defendant contends that he should instead have received credit under the
2011 formula, which would have granted 282 days conduct credit, 142 more than
the trial court allowed.
There is no question that the result
sought by defendant is contrary to the express language of the 2011 amendment,
which declares that it “shall apply prospectively and . . . to
prisoners who are confined . . . 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.†(Pen. Code, § 4019,
subd. (h), italics added.) Defendant
contends, however, that this limitation “violates his constitutional right to
equal protection both facially and as applied,†and is therefore “void,â€
entitling him to the more liberal formula.
Defendant challenges the statute’s
disparate effect on persons who committed offenses before its effective date as
contrasted with those who did so afterwards.
But this classification is overbroad as applied to defendant. He not only committed his offense before October 1, 2011, but also
before that date. The 2011 amendment
distinguishes on both of these axes, first declaring itself applicable to
“prisoners confined . . . for a crime
committed on or after October 1, 2011,†but also declaring that “
1, 2011†are to be credited “at the rate required by the prior law.†(Pen. Code, § 4019, subd. (h), italics
added.) Even a successful challenge to
disparate treatment based on the date of the offense would not invalidate
disparate treatment based on the date when the underlying confinement occurs. To that
extent his argument misses its mark. To
invalidate the statute as applicable to
him, he would have to demonstrate that it discriminates unlawfully between
those who spent time in presentence confinement before its effective date—as
defendant did—and those who underwent such confinement after that date—as he
did not.
In People v. Brown (2012) 54 Cal.4th 314, 328-329 (
persons already sentenced when an earlier amendment took effect were not denied
equal protection by failure to apply the amendment to them. 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 similarly situated groups in an unequal 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.]†(Id.
at p. 328, quoting Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253.)
“ ‘The obvious purpose of the new section,’ †wrote the court,
“ ‘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, quoting
913.) This echoed a fuller discussion of
the point earlier in the opinion, where the court observed that the purpose of
the amendment before it 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 . . . . [¶] It
is fair to observe that this incentive purpose has no meaning if an inmate is
unaware of it. The very concept demands
prospective application. “Reason
dictates that it is impossible to influence behavior after it has
occurred.†’ ([Strick, supra,] at p.
913, quoting In re Stinnette (1979)
94 Cal.App.3d 800, 806 [155 Cal. Rptr. 912].)â€
(Brown, supra, at p. 327.)
In short, the defendant was not
situated similarly to those to whom he compared himself; therefore the
disparity challenged by him was not subject to equal protection review, and no
relief could be granted on that ground.
We see no reason to conclude that
the reasoning in Brown is not equally
applicable here. The court issued that
decision after defendant had filed his opening brief here. In his reply brief he offers no sound reason
not to follow it. He seeks to avoid its
effect by noting that the Supreme Court did not consider “the question of
standard of review,†i.e., whether the challenged disparity in treatment must
survive “strict scrutiny†or need only possess a “rational basis.†(See People
v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.) But the court had no occasion to address that
question, and neither do we, until the challenger is found to be situated
similarly to those to whom he compares himself.
Defendant challenges as “backwardsâ€
the reasoning by which the Supreme Court resolved the “similarly situatedâ€
question. Even if we found his critique
sound we would not be freed thereby to diverge from a square holding of the
Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) But his critique is unsound. He complains that “[r]ather than looking at
whether the classes are similarly situated before looking at the whether they
are treated differently, Brown’s
analysis flips it around and finds that the groups are dissimilar
the court said the relevant comparison is between a prisoner who, knowing the
new formula has taken effect, is prospectively motivated thereby to behave in a
manner that will earn credits; and one who, having
already served his presentence confinement, seeks additional credit
inquiry is whether the two compared classes are “ ‘ “similarly
situated for purposes of the law
challenged.†’ [Citation.]†(Brown,
supra, 54 Cal.4th at p. 328, quoting Cooley
v. Superior Court, supra, 29 Cal.4th 228, 253.) The central purpose of the “law challengedâ€
is to reward good behavior during presentence confinement. People who have already undergone such
confinement simply do not occupy the same position, with respect to the purpose
of the law, as people who have not. We
see nothing backwards about such reasoning.
Defendant takes issue with this
analysis by focusing on the purpose of the 2011 amendments rather than of Penal Code section 4019 as a whole. He notes that the amendments were part of the
Realignment Act of 2011, as it appears to be generally known. (See Stats. 2011, ch. 15, § 1 [“This act is
titled and may be cited as the 2011 Realignment Legislation addressing public
safety.â€].) He asserts that the purpose
of the Act “was ‘to manage and allocate criminal justice populations more cost
effectively, generating savings that can be reinvested in evidence based
strategies that increase public safety while holding offenders
accountable.’ (Pen. Code, §17.5, subd.
(a)(7).)†This slightly mischaracterizes
the cited paragraph, which declares not the purpose of the Act as a whole but
the purpose of “Justice reinvestment,†defined in the preceding sentence as “a
data-driven approach to reduce corrections and related criminal justice
spending and reinvest savings in strategies designed to increase public
safety.†(Pen. Code, § 17.5, subd.
(a)(7).) In any event it may be conceded
that a purpose of the amendments was to save money. It does not follow that this the sole purpose
by which the equal protection analysis may be informed. In liberalizing the formula for presentence
credits the Legislature was obviously not abandoning the underlying purpose of
such credits, which is to encourage good behavior. It sought, rather, to strike a new balance
among the competing considerations of adequate incentive, adequate punishment,
and adequate savings. For purposes of
striking that balance, persons who had already completed their presentence
confinement were not situated similarly to those who had not, because the
“incentive†element of the balance was entirely lacking.
Given this conclusion, we need not
determine whether the challenged disparity must satisfy a compelling state
interest or need only be rationally related to a legitimate state goal. Since defendant is not similarly situated to
those to whom he compares himself, his equal protection challenge must fail.
II.
At sentencing the trial court
expressed an intention to impose a fine “under the formula permitted by Penal
Code section 1202.4(b ).†The only
“formula†set forth in that subdivision, as in effect at all times relevant to
this matter, was “two hundred dollars ($200) multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.†(Former Pen. Code, § 1202.4, subd. (b)(2), as
adopted by Stats.2010, ch. 351, §â€‚9 [effective Sept. 27, 2010, through
Jun. 30, 2011]; see Stats. 2011, ch. 45, §â€‚1 [effective Jul, 1, 2011, to
December 31, 2011].)
Here this formula would yield a fine
of $1,200, i.e., $200 times two counts times three years. However the trial court, following a
recommendation in the probation report, imposed a fine of $1,600. The court had discretion to impose a fine up
to $10,000 (see Pen. Code, § 1202.4, subd. (b)(1)), but here it expressed an
intention instead to follow the statutory formula. Respondent concedes that under these
circumstances, the amount should be amended to conform to the formula.
The judgment is modified by striking
the restitution fine of $1,600 under Penal Code section 1202.4 and entering a
fine of $1,200 in its place, and by striking the parole revocation fine of
$1,600 under Penal Code section 1202.45 and entering a fine of $1,200 in its
place. As so modified, the judgment is
affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
name="_ftn1" title=""> [1] The current formula is less liberal than the
one set forth in the 2011 version of Penal Code section 2933 in that prisoners
do not receive conduct credit for odd days in custody; someone serving five
days actual time receives four days conduct credit instead of five.
name="_ftn2" title=""> [2] As defendant correctly notes, “ ‘[t]he
interpretation of a statute and the determination of its constitutionality are
questions of law,†with respect to which “appellate courts apply a de novo
standard of review.’ [Citations.]†(
(2005) 132 Cal.App.4th 1113, 1120.)
