P. v. Johnson

 

 

 

 

 

 

 

Filed 6/4/13  P. v. Johnson CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Butte)

----

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ROBERT CHARLES JOHNSON,                           Defendant and Appellant.

C070920   (Super. Ct. No. CM034377)

 

            In August
2011 defendant Robert Charles Johnson pleaded no contest to href="http://www.fearnotlaw.com/">possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a)) and admitted he had served four prior
prison terms (Pen. Code, § 667.5, subd. (b)).  A strike allegation (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12) was stricken on the prosecutor’s motion.href="#_ftn1" name="_ftnref1" title="">[1]

            In
September 2011 defendant was sentenced to state
prison for seven years.  Execution of
sentence was suspended and defendant was placed on probation for three years on
the following conditions, among others: 
that he serve a period of incarceration and complete a one-year href="http://www.fearnotlaw.com/">residential treatment program.

            In December
2011 a petition was filed alleging defendant violated his probation by
committing a robbery.  (§ 211.)  In February 2012 he pleaded no contest to
misdemeanor battery (§ 242), and the trial court found him in violation of
his probation.  Probation was revoked and
execution of the prison sentence was ordered. 
Defendant was awarded 174 days’ custody credit and 87 days’ conduct
credit.  Defendant objected
unsuccessfully that recent legislation and principles of href="http://www.mcmillanlaw.com/">equal protection entitled him to an
additional 87 days’ conduct credit.

            On appeal,
defendant claims recently amended section 4019, operative October 1, 2011,
entitles him to a “bifurcated” award of conduct credit, and equal protection
requires that current section 4019 be applied retroactively to this case.  We affirm.

FACTS

            The facts
of defendant’s offense and probation violation are not at issue and need not be
recounted in this opinion.

            Defendant
committed his offense on April 7, 2011. 
He was in custody on a parole hold unrelated to this case from April 7,
2011, through August 4, 2011. 
Thereafter, he was in custody on this case from August 5, 2011, until
September 7, 2011, when he was released on probation (34 days).  After he violated probation, he returned to
custody on November 9, 2011, and remained there until he was sentenced to state
prison on March 28, 2012 (141 days). 
As noted, he was awarded 174 days’ custody credit and 87 days’
conduct credit.  In part II at page 8, >post, we address an arithmetic error in
the credit computation.

DISCUSSION

I

Presentence Conduct
Credit

            Defendant
contends he is entitled to additional presentence conduct credit under recently
amended section 4019, which became operative October 1, 2011.  Unlike his objection in the trial court,
which sought additional conduct credit for his entire period of presentence
custody in this case, defendant now seeks additional conduct credit only for
his custody following October 1, 2011,
i.e., from his return to custody in November 2011 until his sentencing in March
2012.

            Defendant
acknowledges the express terms of current section 4019, enacted as part of the
Criminal Justice Realignment Act of 2011, indicate it applies only to
defendants whose crimes were “committed on or after October 1, 2011,” and his
crime occurred prior to that date. 
(§ 4019, subd. (h); see Stats. 2011, ch. 15, § 482; Stats.
2011, ch. 39, § 53; Stats. 2011, 1st Ex. Sess. 2011, ch. 12, §§ 16,
35 (Assem. Bill No. 17).)href="#_ftn2"
name="_ftnref2" title="">[2]  However, because the bulk of his presentence
custody occurred after October 1, 2011, defendant argues he is entitled to
additional “bifurcated” conduct credit under present section 4019, which
provides two-for-two credit for defendants who serve presentence time in
jail.  (§ 4019, subd. (f).)  In addition, defendant asserts present
section 4019 should apply to him retroactively based on equal protection
principles.  Neither point has merit.

Bifurcated Calculation of Credit

            In October
2009, when it enacted the former version of section 4019 (Senate Bill
No. 18) that was at issue in People
v. Brown (2012) 54 Cal.4th 314 (Brown),
“the Legislature did not expressly
declare whether former section 4019 was to operate prospectively or
retroactively.”  (Brown, at p. 320; see Stats. 2009, 3d Ex. Sess.
2009,  ch. 28, § 50.)  Particularly relevant for present purposes,
the Legislature never purported to bar the Senate Bill No. 18 version of section
4019 from applying to crimes that
occurred prior to its operative date. 
Thus, persons who committed crimes prior to the operative date of Senate
Bill No. 18 but served presentence custody both prior to and following that
effective date earned “bifurcated” credit at two different rates.  In concluding the statute applied
prospectively only, the Brown court
noted:  “To apply former section 4019
prospectively necessarily means that prisoners whose custody overlapped the
statute’s operative date (Jan. 25, 2010) earned credit at two different
rates.”  (Brown, at p. 322.)

            In
contrast, when it enacted the present version of section 4019, the Legislature
expressly barred the statute from applying to crimes committed prior to its
operative date, October 1, 2011.  (§
4019, subd. (h); see fn. 2, ante.)  Because the present credit scheme, by its
terms, does not give enhanced credit for crimes committed prior to October 1,
2011, the scheme does not allow prisoners whose custody overlapped the
statute’s operative date to earn credit at two different rates.

            Rather,
defendant’s entitlement to conduct credit is governed by section 4019,
subdivision (g), which states:  “The changes in this section as
enacted by the act that added this subdivision 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 the effective date of that act.”

            The “act
that added” section 4019, subdivision (g) was Senate Bill No. 76, effective
September 28, 2010.  (Stats. 2010, ch.
426, § 2.)  Section 4019, subdivision (g)
thus provides that the credit formula of Senate Bill No. 76 applies to persons,
like defendant, who are “confined . . . for a crime committed on or
after” September 28, 2010.  (See >People v. Hul (2013) 213 Cal.App.4th
182, 186-187.)  Because defendant
committed his crime on April 7, 2011, his conduct credit must be calculated
pursuant to the formula of Senate Bill No. 76.

            Senate Bill
No. 76 did not entitle defendant to day-for-day conduct credit because he has a
prior conviction of a serious felony. 
(§§ 459, 460, subd. (a), 1192.7, subd. (c)(18).)  The prosecutor dismissed an allegation that
this prior conviction constitutes a “strike,” but the dismissal does not affect
defendant’s entitlement to presentence conduct credit under section 4019.  Senate Bill No. 76 entitles defendant to two
days’ conduct credit for every six-day period of confinement.  (Stats. 2010, ch. 426, § 2; § 4019, former
subds. (b) & (c).)

            Defendant’s
claim that he is entitled to credit at two different rates, because a different
bifurcated credit scheme had been approved in Brown, ignores the significant differences in the two versions of
section 4019.

            Defendant
nevertheless contends he is entitled to bifurcated credit based on >People v. Olague (2012)
205 Cal.App.4th 1126, which considered the language of section 4019,
subdivision (h).  (See >ante, fn. 2.)  However, the Supreme Court granted review in >Olague and then dismissed review and
remanded the matter to the Sixth Appellate District in light of >Brown. 
(Olague, supra, 205 Cal.App.4th 1125, review dismissed Mar. 20, 2013,
S203298.)  As defendant acknowledges, the
court in People v. Ellis (2012)
207 Cal.App.4th 1546 (Ellis)
examined the same language considered in Olague
and concluded:  “In our view, the
Legislature’s clear intent was to have the enhanced rate apply only to
those defendants who committed their crimes on or after October 1, 2011.  [Citation.] 
The second sentence [of section 4019, subdivision (h)] does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits.  So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant’s crime is
committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced.”  (Ellis, at p. 1553.)  We
agree with Ellis.

            Defendant
cites Payton v. Superior Court (2011)
202 Cal.App.4th 1187 for the proposition that “the ‘legislative intent in
awarding or increasing credit for good conduct is to encourage good behavior
and work performance by inmates in custody. 
Such good behavior and work performance helps to maintain the security
and safety of local custody facilities. 
[¶]  For these reasons, inmates
are entitled to the conduct credits which are in effect at the time their
custody is served.’ ”  (>Id. at p. 1191.)  But as we have seen, two-for-two credits were
not “in effect” at the time defendant served his custody for persons such as him whose offenses predated October 1,
2011.  Thus, his reliance on >Payton is misplaced.

            We thus conclude,
as a matter of statutory construction, that defendant is not entitled to
additional “bifurcated” conduct credit under the present version of
section 4019.

Equal Protection

            After
determining that principles of statutory construction and legislative intent
required the Senate Bill No. 18 version of section 4019 to be applied
prospectively only, the court in Brown
concluded such application did not violate principles of equal protection.  (Brown,> supra, 54 Cal.4th at
pp. 322-323, 328-330.)  In >People v. Lara (2012) 54 Cal.4th
896, the court more recently concluded the Legislature did not violate equal
protection by making its 2011 amendment of section 4019 expressly
prospective.  (Lara, at p. 906, fn. 9; § 4019, subd. (h).)

            Defendant
acknowledges that under these authorities, equal protection is not violated
where a prisoner whose entire
presentence custody occurred prior to October 1, 2011, earns a lesser rate of
conduct credit than a prisoner whose entire
presentence custody occurred after that date. 
But he claims equal protection is
violated where, as here, prisoners in presentence custody after October 1, 2011, earn different rates of conduct credit
depending on whether their offense
occurred prior to that date.  We
disagree.

            “ ‘The
obvious purpose of the new section [4019] . . . 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.’  [Citation.] 
‘[T]his incentive purpose has no meaning if an inmate is unaware of it.’
”  (Brown,
supra, 54 Cal.4th at
p. 329, quoting In re Strick
(1983) 148 Cal.App.3d 906, 913.)

            As we have
seen, the present version of section 4019 does not, by its terms, give enhanced
credit for crimes committed prior to October 1, 2011.  Nor did decisional authority extend the
statute’s reach beyond its textual bounds before defendant was sentenced on
March 28, 2012.  Thus, having committed
his crime prior to October 1, 2011, defendant could not have >been aware, or even reasonably suspected,
based on anything more than speculation, he would be entitled to enhanced
credit during any portion of his
presentence incarceration, even the part occurring after October 1, 2011.  Section 4019 could not have encouraged
defendant, who was unaware of any such incentive, to engage in productive work
or maintain good conduct.  (>Brown, supra, 54 Cal.4th at p. 329.)  This is so even though the statute >gave such an incentive to >other simultaneously incarcerated
inmates who committed their crimes after
October 1, 2011.

            Following >Brown, we conclude the “important
correctional purposes of a statute authorizing incentives for good behavior
[citation] are not served by rewarding prisoners who . . . could not
have modified their behavior in response.” 
(Brown, supra, 54 Cal.4th at pp. 328-329.)  “That prisoners who [commit crimes] before
and after [present] section 4019 took effect are not similarly situated
necessarily follows.”  (>Brown, at p. 329; see >Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.)  Because the groups are not similarly
situated, it is not necessary to consider defendant’s arguments that the proper
standard of review is strict scrutiny and that there is no compelling state
interest, or rational basis, for the disparity in treatment.  Defendant’s equal protection claim has no
merit.

II

Computation of Custody Credit

            Defendant
notes that he is entitled to one additional day of custody credit.  The period from November 9, 2011,
through March 28, 2012, is 141 days, not the 140 days computed by the probation
department and awarded by the trial court.href="#_ftn3" name="_ftnref3" title="">[3]  Combined with the 34 days’ custody credit
from August 5, 2011, through September 7, 2011, defendant is entitled to a
total of 175 days’ custody credit.

            Under the
applicable version of section 4019, these 175 days’ custody credit entitle
defendant to 86 days’ conduct credit, not the 87 days’ credit computed by the
probation department and awarded by the court. 
We shall modify the judgment accordingly.

DISPOSITION

            The
judgment is modified to award defendant 175 days’ custody credit and
86 days’ conduct credit.  As so
modified, the judgment is affirmed.  The
trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy thereof to the Department
of Corrections and Rehabilitation.

 

 

                                                                                                    RAYE                     , P. J.

 

We concur:

 

 

              MURRAY                , J.

 

 

              HOCH                      , J.