Filed
6/25/13 P. v. Johnson
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opinion has not been certified for publication or ordered published for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.
KENNETH RAY JOHNSON,
Defendant and
Appellant.
H037644
(Monterey County
Super. Ct. No. SS102019)
Defendant Kenneth Ray Johnson
pleaded no contest to being a felon on the grounds of a custodial facility, a
felony, and to possession of not more than 28.5 grams of marijuana, a
misdemeanor. In April 2011, the court
placed him on felony probation under various terms and conditions, including
the condition that he serve 365 days in county jail. A petition to revoke defendant’s probation
was later sustained in November 2011, and the court imposed an upper term
sentence of three years in prison. In
doing so, the court awarded defendant a total of 123 days of presentence
credits (83 days of custody credits and 40 days of conduct credits).
Defendant argues that in imposing
the sentence, the court improperly considered defendant’s conduct occurring
after probation was granted. He claims
that the failure of his attorney to object to this error below constituted
ineffective assistance of counsel that was prejudicial. Secondly, he contends that he is entitled to
24 days of additional conduct credits under the latest amendment to Penal Code
section 4019, which expressly provides that it applies to defendants whose
crimes were committed on or after October 1, 2011.
interpretation, the latest amendment to section 4019 must be applied
retroactively. He contends further that
prospective application of the amendment to section 4019 would violate his
constitutional right to equal protection of the law.
We conclude that defendant’s
ineffective assistance of counsel claim has no merit because the trial court
did not improperly consider defendant’s post-probation conduct in its
imposition of the sentence. Furthermore,
even if counsel’s performance was deficient, any error was harmless. We also reject defendant’s claim of
entitlement to additional conduct credits under the October 2011 amendment to
section 4019. Last year, in
(Kennedy), we rejected statutory
interpretation and equal protection
arguments identical to those raised by defendant here. We therefore will affirm the judgment.
FACTS
On August 21, 2010, defendant visited with a woman
incarcerated in county jail. A deputy
recognized him as a former inmate and it was determined that he was then on
active parole status. Deputies made contact
with defendant, who admitted that he was on parole. He was then arrested. During a search of his car, a quantity of
approximately .08 grams of marijuana was found underneath the driver’s
seat.
PROCEDURAL BACKGROUND
Defendant was charged in a
complaint with being a felon on the grounds of a custodial facility, a felony
(§ 4571), and possession of not more than 28.5 grams of marijuana, a
misdemeanor (Health & Saf. Code, § 11357, subd. (b)). It was also alleged as an enhancement that
defendant had suffered a prior violent or serious felony (i.e., a strike)
within the meaning of section 1170.12, subdivision (c)(1), namely, voluntary
manslaughter with a gang enhancement (§§ 192, subd. (a), 186.22, subd.
(a)). Defendant thereafter waived a
stipulated that the matter be certified to superior court. On March
9, 2011, defendant pleaded no contest to both counts and admitted
the enhancement with the understanding that he would be filing a motion to
strike the enhancement under People v. Superior Court (Romero) (1996) 13
Cal.4th 497. On April 20, 2011, the court granted defendant’s Romero
motion, suspended imposition of sentence, and granted defendant probation
for three years on various terms and conditions, including the condition that
he serve 365 days in the county jail.
A petition to revoke defendant’s
probation was filed one month later.
After a formal hearing, the court found defendant to have violated the
terms of his probation. On November 18, 2011, the court revoked
and terminated probation, and imposed an upper term sentence of three years in
prison. In doing so, the court awarded
defendant 83 days of custody credits and 40 days of conduct credits for a total
of 123 presentence credits. Defendant
filed a timely notice of appeal of the sentence.
After entry of judgment and in July
2012, defendant filed a motion for an award of additional conduct credits
pursuant to section 4019, claiming an entitlement to additional conduct credits
under the October 2011 amendment to section 4019; he sought a total of 137 days
of presentence credits (i.e., 81 days of custody credits and 57 days of conduct
credits). The court dropped the motion
from calendar, indicating that “[t]he original sentence remains.†Defendant filed a separate notice of
appeal. An appeal from such a
postjudgment order affecting defendant’s substantial rights is proper. (§ 1237, subd. (b); People v. Hyde (1975) 49 Cal.App.3d 97, 103.)
DISCUSSION
I. Claim of Improper Factors Used in Imposing Sentence
A. Background
and Contentions
At the sentencing hearing on November
18, 2011, the prosecution requested that defendant’s probation be
revoked and that he receive an upper term prison sentence. Defense counsel indicated that his client did
not want to continue with probation.
Accordingly, counsel argued that defendant should receive a lower term
sentence because the crime was a nonviolent one, the strike offense was over 10
years old, and his history was one of decreasing criminality.
The court indicated that it had reviewed both the probation report of
April 2011 and the supplemental November 2011 probation report. It also noted that it had reviewed a number
of letters submitted on behalf of the defense.
The court, after hearing argument of counsel, indicated: “I’m going to impose the upper term. And I’ll tell you why I’m going to do
it. [¶] First of all, the factors in
aggravation outweigh any type of mitigation.
[¶] I agree with you, [defense counsel], based on decreasing seriousness
but defendant started out pretty high,[
so it would be rather difficult to have anything but decreasing
seriousness. [¶] I do appreciate he has
limited his criminal conduct and behavior, and it is decreasing. However, I do think that he has served two
prior prison terms. He was on parole when
this [current offense] was committed. He
has not been successful on a grant of probation or parole, and I do think it
outweighs.†After indicating these
reasons, the court continued with the following remarks, which are the basis
for defendant’s claim of error: “The
other issue is he was ordered to serve 365 days back in April of this year and
he failed to do so, so he really owes the Court 365 days. [¶] So the appropriate issue is what is the
appropriate sentence for failing to do what the Court ordered him to do? And there has to be a consequence for
that. [¶] So probation is denied. I am going to commit you to the California
Department of Corrections and Rehabilitation for the upper term of three
years.â€
After the court imposed its sentence, defendant addressed the
court. The court responded that it had
read a letter submitted by defendant’s wife and found it “very moving.†The court then indicated: “I spent some time on this case yesterday,
and the factors, your criminal history, I’m looking at this kind of stuff. And I do appreciate you have made
strides. But I think the problem for the
Court is the failure to report, the failure to surrender and your behavior and
attitude and things that weigh [sic]
of probation was concerning to the Court.
So I am obligated to have some intellectual consistency to follow the
factors in aggravation and mitigation, and I just feel in good faith, you got a
break by having your strike stricken.
[¶] You had an opportunity to be on probation. I am not holding it against you, but you wish
to decline probation. I actually am very
okay with that and I don’t take that as a consideration. But once probation is off the table, the
Court is obligated to go through the factors in mitigation and aggravation, and
there’s no way this is a lower term case.
[¶] The factors in aggravation clearly outweigh the factors in
mitigation, and I think the appropriate sentence is three years.â€
Defendant contends that the court erred in its imposition of the upper
term sentence. He argues that the court
relied on a legally impermissible reason—defendant’s failure to surrender to
serve his jail term that was a condition of the initial grant of probation—in
reaching the conclusion that an upper term sentence was proper. He concedes that counsel below failed to
object and that the claim is therefore forfeited. But he argues, nonetheless, that we should
consider the claim of error because his trial attorney’s failure to object
constituted prejudicially ineffective assistance of counsel.
The Attorney General responds that the trial court did not consider
improper factors (i.e., defendant’s post-probation conduct) in imposing an
upper term sentence, and therefore defense counsel’s failure to object did not
constitute ineffective assistance. She
argues that the trial court’s remarks concerning defendant’s post-probation
conduct, including his failure to surrender to serve his jail term, concerned
the court’s justification for revoking probation, and were not related to the
imposition of the upper term sentence.
The Attorney General asserts further that, even if counsel’s performance
was deficient in failing to object, it was not prejudicial because it is not
reasonably probable that the court would have imposed a more favorable sentence
in the absence of any assumed error.
B. Analysis
of Ineffective Assistance Claim
1. Applicable
Law
In evaluating defendant’s
ineffective assistance claim here, we first identify familiar applicable
assistance of counsel. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 15.) This
constitutional right to counsel entitles a defendant not simply to “bare
assistance,†but rather to effective assistance. (People
v. Jones (1991) 53 Cal.3d 1115, 1134.)
This constitutionally adequate assistance requires that the attorney
diligently and actively participate in the complete preparation of the client’s
case, and investigate all defenses of law and fact. (People
v. Pope (1979) 23 Cal.3d 412, 425 (Pope),
overruled on another ground, People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Ineffective assistance claims may be asserted
in connection with trial counsel’s allegedly deficient performance in connection
with sentencing matters as well as alleged failings occurring during
trial. (See People v. Roberts (2011) 195 Cal.App.4th 1106, 1128-1130.)
An ineffective assistance claim
requires a showing that “counsel’s action was, objectively considered, both
deficient under prevailing professional norms and prejudicial.†(People
v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (
trial counsel failed to act in the manner to be expected of reasonably
competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence
of counsel’s failings.†(
288; see also People v. Weaver (2001)
26 Cal.4th 876, 961.) This means
that the defendant “must show both that his counsel’s performance was deficient
when measured against the standard of a reasonably competent attorney and that
counsel’s deficient performance resulted in prejudice to [the] defendant in the
sense that it ‘so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.’ [Citations.]â€
(People v.
quoting Strickland,
“[T]here is a ‘strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ [Citation.]†(People
v. Lucas (1995) 12 Cal.4th 415, 437 (Lucas), quoting Strickland,
supra, 466 U.S. at p. 689; see also
Cal.4th 830, 876.) The failure of
counsel to object to certain evidence is rarely a successful basis for reversal
of a conviction on ineffective assistance grounds. (People
v. Boyette (2002) 29 Cal.4th 381, 424.) The Supreme Court has noted that if “the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged,†we must reject the claim on appeal “unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.†(
The “prejudice†element requires a
showing that “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result would have been more favorable to defendant,
i.e., a probability sufficient to undermine confidence in the outcome.†(In re
Ross (1995) 10 Cal.4th 184, 201.)
Prejudice requires a showing of “a ‘ “demonstrable reality,â€
not simply speculation.’
[Citations.]†(
1223, 1241.)
The defendant bears the burden of
establishing an ineffective assistance claim.
(Lucas, supra, 12 Cal.4th at p. 436; Pope, supra, 23 Cal.3d at p. 425.) “Surmounting Strickland’s high bar is never an easy task. [Citations.]â€
(Padilla v. Kentucky (2010)
559 U.S. 356 [130 S.Ct. 1473, 1485].)
2. Defendant’s
Ineffective Assistance Claim Lacks Merit
We begin by acknowledging
defendant’s concession that trial counsel’s failure to object to any sentencing
error resulted in its forfeiture on appeal.
It is indeed true that under these circumstances, trial counsel’s
failure to object constituted a forfeiture of the appellate claim. (People
v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture “doctrine should apply
to claims involving the trial court’s failure to properly make or articulate
its discretionary sentencing choicesâ€]; see also In re Sheena K. (2007) 40 Cal.4th 875, 881.) We will therefore review defendant’s claim in
the context of the two-prong Strickland
standard for a claim of ineffective assistance of counsel.
a.
Deficient Performance
In evaluating whether there was
deficient performance by trial counsel, we must first determine whether the
court, as claimed by defendant, erred by allegedly improperly considering his
post-probation conduct in imposing the upper term sentence. We disagree with defendant that such error
occurred.
Defendant correctly asserts that
upon the revocation or termination of probation, the court may not consider
events occurring after the original grant of probation in selecting the base
term for sentencing. (Cal. Rules of
Court, rule 4.435(b)(1); see also In re
Rodriguez (1975) 14 Cal.3d 639, 652 [“the primary term must reflect
the circumstances existing at the time of the offense.â€].)
sentence based upon the defendant’s conduct following the grant of
probation. (People v. Colley (1980) 113 Cal.App.3d 870, 873 (
We disagree with defendant,
however, that the record demonstrates that the court erred by considering his
post-probation conduct in imposing an upper term sentence. The prosecution argued that an upper term
sentence was proper because factors in aggravation substantially outweighed any
mitigating factors. It emphasized
defendant’s prior imprisonment for voluntary manslaughter with a gang
enhancement and his continued contacts with gang members. The prosecution made no reference to
defendant’s post-probation conduct in its argument for imposing an upper term
sentence. Further, the April 2011 report
of the probation officer, which the court indicated it had reviewed, listed
namely, (1) the charged crime was carried out with planning, sophistication or
professionalism; (2) defendant’s prior convictions were numerous or of
increasing seriousness; (3) defendant had served two prior prison terms; (4)
defendant was on parole when he committed the charged crime; and (5)
defendant’s prior performance on probation or parole was unsatisfactory. (See Cal. Rules of Court, rule 4.421.)
In imposing an upper term sentence,
the court noted three times its belief that the factors in aggravation
outweighed those in mitigation, and it identified four of the five factors in
aggravation mentioned in the probation officer’s report. In exercising its discretion in imposing a
lower, middle, or upper term sentence, “a trial court is free to base an upper
term sentence upon any aggravating circumstance that the court deems
significant, subject to specific prohibitions.
[Citations.]†(
Cal.4th 825, 848.) And a single
factor in aggravation may justify a trial court’s exercise of its sentencing
discretion in imposing the upper term. (
Cal.4th 622, 730; see also People v.
Black (2007) 41 Cal.4th 799, 813.)
Here, there were four such factors in aggravation supporting the trial’s
court’s decision to impose an upper term sentence.
An appellate court, “[a]s an aspect
of the presumption that judicial duty is properly performed, . . . presumes . .
. that the [trial] court knows and applies the correct statutory and case
law.†(People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other
grounds by Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.)
This general principle applies to a trial court’s sentencing
determinations. (See, e.g.,
[decision to decline to commit adult to the youth authority];
159-160 [decision to impose death penalty]; People
v. Hooton (1959) 53 Cal.2d 85, 88 [determination to impose life
sentence].) And “[i]solated or ambiguous
remarks by the trial court do not overcome that presumption. The party attacking the judgment must clearly
and affirmatively demonstrate that the trial court relied on improper
considerations. [Citation.]†(People
v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835.)
Here, the trial court clearly based
its sentencing decision on proper factors.
Its reference to defendant’s post-probation conduct—after it explained
that an upper term sentence was proper based upon the factor of aggravation
outweighing any mitigating factors—cannot be conclusively read to support
defendant’s contention that the court relied on such conduct in imposing an
upper term sentence. While we cannot
agree with the Attorney General that the court’s comments regarding defendant’s
post-probation conduct were unquestionably an explanation of its reasons for
denying probation, we likewise do not agree with defendant that such comments
reflected improper reliance on such conduct in imposing the upper term. Both positions are speculative as to the
meaning of the “[i]solated or ambiguous remarks by the trial court,†and
defendant has failed to overcome the presumption that the court knew and
properly applied the law in making its sentencing determination. (People
v. Superior Court (Du), supra, 5
Cal.App.4th at p. 835.)
Defendant relies on
court relied on an improper sentencing factor.
In Colley, the defendant was
initially granted probation after pleading guilty to first degree burglary; he
violated probation shortly afterward.
Thereafter, the court initially sentenced him to a middle, three-year
prison term, but later recalled the sentence and reinstated probation. (Id.
at pp. 871-872.) After a second
probation violation (resulting from a petty theft conviction), the court
revoked probation and imposed an upper term sentence. (Id.
at p. 872.) In doing so, the court
unambiguously indicated that the basis for imposing an upper term sentence was
the defendant’s poor performance on probation.
(Ibid.: “I think he’s been asking for the high base
term. The court has given him every
conceivable break. . . [¶] . . . The court’s tried every possible
rehabilitative tool available to it and they have all failed. Perhaps long term custody will succeed where
leniency and efforts of the court at rehabilitation have failed.â€])
Colley
is distinguishable. Unlike in
statements by the court that the reason it imposed an upper term sentence was
defendant’s poor performance on probation.
Here, unlike in Colley, the
court relied on appropriate factors in aggravation based upon matters existing
at the time the crime was committed. And
also unlike in Colley, the court had
not imposed and then recalled a prison sentence less severe than the upper term
sentence it ultimately imposed after probation was revoked and terminated.
Defendant also contends that
Cal.App.3d 910 (Scott) supports
his claim. There, the defendant was
convicted of robbery and car theft, which included a guilty plea on the former
charge, based upon the understanding that he would receive a maximum three-year
prison sentence for both counts; the court imposed a three-year sentence,
suspended it and referred the defendant to California Rehabilitation Center
(CRC), and indicated that if he failed at CRC, the court would have the option
of sentencing him to a prison sentence of up to five years and eight
months. (Id. at pp. 912-913.)
The defendant was later returned from CRC because of his violent
behavior, and the court imposed a five-year prison sentence. (Id.
at p. 914.) The appellate court
held that the imposition of the greater sentence was improper because “[once a
legal sentence has been pronounced . . . the trial court simply does not have
jurisdiction to impose another, higher sentence at a later time. [Citation.]â€
(Id. at p. 918.) The Scott
court also held that the trial court, in imposing the later, more severe
sentence, improperly relied on the defendant’s postconviction behavior at
CRC. (Id. at p. 919.)
Scott
presents a very different set of facts and offers no support for defendant’s
position. Here, the court did not impose
an initial sentence, suspend it, and then purport to later impose a more severe
sentence. And while in
improper consideration of the defendant’s postconviction conduct, the record
does not show that the court did so here
Accordingly, since defendant has
not demonstrated that the court in fact committed sentencing error, he has
failed to make the concomitant showing that his trial counsel was ineffective
in failing to object below.
b.
Prejudice
Even were defendant to have shown in
this appeal that his trial counsel’s performance was deficient because he did
not object at the sentencing hearing—which showing we have found defendant has
not made—he is required to show prejudice in order to prevail on his
ineffective assistance claim. (
This second Strickland element
requires a showing that “it is reasonably probable that a more favorable
determination would have resulted in the absence of counsel’s failings.†(People
v. Lewis, supra, 50 Cal.3d at
p. 288.)
As noted, the probation officer
identified five factors in aggravation and none in mitigation, and the court
specifically identified four factors in aggravation and specifically found that
they “clearly outweigh[ed]†any mitigating factors. The court stated further, in rejecting the
position of defendant’s trial counsel, that “there’s no way this is a lower
term case.†And it expressly
acknowledged factors that defendant claimed in mitigation. Those included defense counsel’s argument
that his client’s more recent crimes were of “decreasing seriousness[,]
but defendant started out pretty high, so it would be rather difficult to have
anything but decreasing seriousness.â€
The court also “appreciate[d that defendant] ha[d] limited his criminal
conduct and behavior, and it [was] decreasing.â€
From this record, even assuming
counsel’s performance was deficient, it is not reasonably probable that
defendant would have received a more favorable sentence had trial counsel
asserted an objection below. Having
failed to show prejudice, defendant’s ineffective assistance claim fails.
II. Claim
of Additional Conduct Credits Under Section 4019
A. Background
Concerning Section 4019
Section 4019 permits a criminal defendant to earn
additional credit prior to being sentenced by performing assigned labor
(§ 4019, subd. (b)(1)) or by his or her good behavior during detention
(§ 4019, subd. (c)(1)). Such
credits are collectively referred to as “conduct credits.†(People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) “The very purpose of conduct credits is to
foster constructive behavior in prison by reducing punishment.†(People
v. Lara (2012) 54 Cal.4th 896, 906 (Lara).) Section 4019 has
undergone a series of revisions since 2009.
(See generally People v. Garcia (2012)
209 Cal.App.4th 530, 535-540.)
Senate Bill No. 18 (2009-2010 3d Ex. Sess.),
enacted in October 2009, amended section 4019, effective January 25, 2010, to
enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28,
§ 50, p. 4427; the January 2010 amendment.) Under the pre-January 2010 formula for
calculating credits under section 4019, a defendant could accrue conduct credit
of two days for every four days of actual presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554
[former § 4019, subd. (f).) Under
the January 2010 amendment, a qualifying defendant—persons other than those
required to register as sex offenders, or those being committed to prison for,
or who had suffered prior convictions of, serious felonies as defined in
section 1192.7 or violent felonies as defined in section 667.5—could accrue
conduct credit of two days for every two days of presentence custody, twice the
previous rate. (Stats. 2009-2010, 3d Ex.
Sess., ch. 28, §§ 50, 62 [Pen.Code, former § 4019, subds. (b), (c), &
(f) ].)
The statute was again amended by Senate Bill 76,
effective September 28, 2010, to restore the two-for-four conduct credit
calculation less favorable to defendants that had been in effect prior to
January 25, 2010 (Stats. 2010, ch. 426, § 2).
This amendment applied to persons in local custody for crimes committed
on or after September 28, 2010, i.e., a date one month after defendant here committed the charged crimes. (Former § 4019, subd. (g), as amended by
Senate Bill 76.)
And then, as part of the Realignment Act, the
Legislature amended section 4019 a third time in Assembly Bill 109 (2011-2012
Reg. Sess.; Assembly Bill 109). Assembly
Bill No. 109, which amended section 4019 effective July 1, 2011, authorized
conduct credit for all local prisoners at the rate of two days for every two
days spent in local presentence custody.
(§ 4019, subds. (b) & (c), as amended by Stats. 2011, ch. 15, § 482.) Like the previous amendment to section 4019,
the amendment in Assembly Bill 109 was to have prospective application
only. (Ibid.) Before July 1,
2011—the operative date of Assembly Bill No. 109—Governor Brown signed Assembly
Bill No. 117 (2011-2012 Reg. Sess.), which retained the enhanced conduct credit
formula but changed the effective date to October 1, 2011. (Former § 4019, subd. (h), as amended by
Stats. 2011-2012, ch. 39, § 53.)
On September 20, 2011, Governor Brown signed
Assembly Bill No. 1X 17 (2011-2012 1st Ex. Sess.), the current version of
section 4019 (hereafter, the October 2011 amendment), which retains the
enhanced conduct credit provision—four days is deemed to have been served for
every two days spent in actual custody.
(Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35; § 4019, subd.
(f).) The statute expressly states that
it is to apply prospectively.
(§ 4019, subd. (h).)
name="_ftnref8" title="">[8]
Defendant contends that he is entitled to
additional conduct credits under section 4019.
He asserts that he should be awarded a total of 145 days of presentence
credits (i.e., 81 days of custody credits plus 64 days of conduct
credits). He acknowledges that under
former versions of section 4019, his admission that he had suffered a prior
strike would otherwise compel calculating presentence conduct credit in his
case on a “one-for-two†basis. But he
argues that “on both statutory and constitutional grounds,†he is entitled to
the increased level of conduct credits provided under the October 2011
amendment for all days he spent in custody after October 1, 2011. We address these two contentions below.
B. Statutory
Construction Claim
Defendant claims that as a matter of statutory interpretation, he is
entitled to the benefit of one-for-one conduct credits under the October 2011
amendment to section 4019 for all days spent in custody after October 1,
2011. He claims that an ambiguity in
subdivision (h) of section 4019 compels this conclusion.
“[S]ection 4019 does contain language declaring that it will operate
prospectively when it states that it applies ‘to prisoners who are confined . .
. for a crime committed on or after October 1, 2011.’ (§ 4019, subd. (h).) If the statute did not contain any contradictory
language, then the prospective language would control. However, in the very next sentence of the
statute, the Legislature declared, ‘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).) This language creates an ambiguity that
requires the construction advanced by appellant because a defendant could not
possibly earn days in presentence confinement on an offense which had not yet
been committed. As a result, this latter
sentence becomes meaningless surplusage unless the more generous credit scheme
applies to crimes committed before the stated date.â€
We rejected this argument in Kennedy, supra, 209
Cal.App.4th at pages 399 to 400.
“We reiterate that according to the explicit language of the statute,
the [October] 2011 amendment to Penal Code section 4019 applies only to crimes
that were ‘committed on or after October 1, 2011.’ (Pen.Code, § 4019, subd. (h).)†(Id.
at p. 399.) Similarly, the court in
People v. Rajanayagam (2012) 211
Cal.App.4th 42, 51 (Rajanayagam)
rejected an argument that the second sentence of section 4019, subdivision (h),
“implies any days earned by a defendant after October 1, 2011, shall be
calculated at the rate required by the current law, regardless of when the
offense was committed.†It concluded
that such an interpretation would render meaningless the language in the first
sentence (ibid.), which provides that
the changes to the accrual of presentence conduct credit “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).) The court in Rajanayagam concluded that adopting the defendant’s interpretation
would violate an elementary rule requiring courts, if possible, to ascribe
meaning to every word, phrase, and sentence of a statute and to avoid
interpretations that render some words superfluous. (Rajanayagam,
at p. 51.)
We conclude that defendant is not entitled to the
enhanced presentence conduct credits provided in the October 2011 amendment for
the time that he was in custody after October 1, 2011 because of any perceived
ambiguity in subdivision (h) of section 4019.
(Accord, People v. Ellis (2012)
207 Cal.App.4th 1546, 1552-1553.)
C. Equal
Protection Challenge
Defendant contends that the failure to give retroactive
application to the October 2011 amendment constitutes a violation of the equal
protection clauses of the federal and state Constitutions (U.S. Const., 6th
Amend.; Cal. Const., Art. I, § 7).
He claims that he, as a defendant who committed crimes before October 1,
2011, but who was incarcerated after that date, is similarly situated to an
inmate who is in custody for committing a crime after October 1, 2011, and that
there is no rational basis to justify the alleged disparate treatment between these
two groups. Therefore, he argues, in
order to avoid a violation of equal protection, the October 2011 amendment
should be given retroactive application in his case.
The first prerequisite for a successful equal
protection argument is “ ‘a showing that the state has adopted a classification
that affects two or more similarly
situated groups in an unequal manner.’
[Citations.]†(
1185, 1199 (Hofsheier), quoting
530.) This inquiry by the court “is not
whether persons are similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ [Citation.]â€
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) The second
requirement is that the challenger establish that there is no rational
relationship to a legitimate state purpose for the state’s having made a
distinction between the two similarly situated groups. (Hofsheier,
at pp. 1200-1201.)
name="_ftnref10" title="">[10]
Last year, our Supreme Court decided in People v. Brown (2012) 54 Cal.4th 314 (Brown) that prospective application of the January 2010 amendment
of section 4019 did not violate equal protection principles, concluding that
amendment did not create two similarly situated groups. The Supreme Court noted that the “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, supra, 54 Cal.4th
at pp. 328-329.)
title="">[11]
In Kennedy,
addressed the identical equal protection challenge to the October 2011
amendment to section 4019 raised by defendant here. While we acknowledged that
4019 (Kennedy, at p. 396), we
rejected the defendant’s contention that he (Kennedy)—who committed his crime
on March 11, 2011 (id. at p. 388)—was
similarly situated with persons in jail who had committed crimes on or after
the October 1, 2011 operative date of the challenged amendment to section
4019: “[T]he reasoning of
prospective-only application of the current version of section 4019.†(Id.
at p. 397; but see Rajanayagam,
[distinguishing Brown by finding two
groups were similarly situated with respect to equal protection challenge to
October 2011 amendment]; People v. Verba (2012)
210 Cal.App.4th 991, 995-996 (Verba)
[same].)
title="">[12]
Furthermore, the California Supreme Court, one month after deciding
defendant’s argument that the October 2011 amendment should apply
retroactively. Although addressed only
in a footnote, the high court rejected the defendant’s contention that the
prospective application of the October 2011 amendment violated equal
protection: “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 ‘for a crime committed on or
after October 1, 2011.’ (§ 4019, subd. (h), italics added.) [¶] Defendant argues the Legislature denied
equal protection [citations] by making this change in the law expressly
prospective. We recently rejected a
similar argument in People v. Brown
(2012) 54 Cal.4th 314, 328-330.) . . . Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose. (Brown, at pp. 328-329.)†(
challenge because he cannot establish that he was similarly situated with
persons who commit crimes on or after October 1, 2011.
Even were we to conclude that defendant is similarly situated with
persons in jail who had committed crimes on or after the October 1, 2011
operative date of the challenged amendment to section 4019, his equal
protection challenge fails. As noted, no
equal protection violation will be found “if the challenged classification
bears a rational relationship to a legitimate state purpose. [Citation.]â€
(Hofsheier, 37 Cal.4th at
p. 1200.) The court’s inquiry is
completed “[w]here there are ‘plausible reasons’ for [the
classification].†(Id. at p. 1201.) As we
held in Kennedy, supra, 209
Cal.App.4th at page 397, there is a plausible reason for the statutory
classification challenged here.
As we explained in Kennedy: “[O]ur Supreme Court has acknowledged [that]
‘statutes lessening the punishment for a particular offense’ may be made
prospective only without offending equal
protection principles. (
Proposition 36 barring retroactive application of its provisions for diversion
of nonviolent drug offenders. (
preserve the penalties for existing offenses while ameliorating punishment for
future offenders in order to ‘ “assure that penal laws will maintain their
desired deterrent effect by carrying out the original prescribed punishment as
written.†’ (Id. at p. 190.) The statute
before the court came within this rationale because it ‘lessen[ed] punishment
for particular offenses.’ (
As the Floyd court noted, ‘
“[t]he 14th Amendment does not forbid statutes and statutory changes to have a
beginning, and thus to discriminate between the rights of an earlier and later
time.†[Citation.]’ (Id.
at p. 191.) [¶] ‘The very purpose
of conduct credits is to foster constructive behavior in prison by reducing
punishment.’ (People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme Court accepted in
punishment.’ (Id. at p. 325, fn. 15.) [¶]
We gather that the rule acknowledged in Kapperman
and Floyd is that a statute
ameliorating punishment for particular offenses may be made prospective only
without offending equal protection, because the Legislature will be supposed to
have acted in order to optimize the deterrent effect of criminal penalties by
deflecting any assumption by offenders that future acts of lenity will
necessarily benefit them. [¶] . . . [¶]
Although the statute at issue here does not ameliorate punishment for a
particular offense, it does, in effect, ameliorate punishment for all offenses
committed after a particular date. By
parity of reasoning to the rule acknowledged by both the Kapperman and Floyd
courts, the Legislature could rationally have believed that by making the 2011 amendment
to section 4019 have application determined by the date of the offense, they
were preserving the deterrent effect of the criminal law as to those crimes
committed before that date. . . . We see
nothing irrational or implausible in a legislative conclusion that individuals
should be punished in accordance with the sanctions and given the rewards
(conduct credits) in effect at the time an offense was committed.†(Kennedy,
supra, 209 Cal.App.4th at pp. 398-399, fn. omitted.)
Therefore, even had defendant satisfied the “similarly situatedâ€
requirement for an equal protection claim, his challenge to the October 2011
amendment nonetheless fails because the classification between persons—those
committing an offense prior to October 1, 2011, and those committing an offense
on or after that date—bears a rational relationship to a legitimate state
purpose. (Kennedy, supra, 209 Cal.App.4th at pp. 397-399; accord,
Cal.App.4th at pp. 996-997.)
name="_ftnref13" title="">[13]
DISPOSITION
The judgment is affirmed.
Márquez,
J.
WE CONCUR:
Elia,
Acting P.J.
Bammatre-Manoukian,
J.
Further statutory references are to the Penal Code unless otherwise
stated.
name="_ftn2" title="">[2]
The facts underlying the conviction are derived from the report of the
probation officer.
