P. v. Jones







Filed 10/3/11 P. v. Jones CA2/3





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. EUGENE JONES, Defendant and Appellant.

B227167 (Los Angeles County Super. Ct. No. BA370044)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.


____________________________________

Eugene Jones appeals the judgment entered following his plea of guilty to possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). Jones admitted a prior conviction within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subd.(b)-(i), 1170.12 subd.(a)-(d).)[1] However, the trial court struck the prior conviction pursuant to section 1385 and sentenced Jones to 16 months in state prison.
Jones contends the order striking his prior conviction for purposes of the Three Strikes law rendered him eligible for one-for-one conduct credits under former section 4019. Alternatively, he contends former section 4019 violated equal protection to the extent it precluded him from obtaining one-for-one conduct credits. We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
On April 8, 2010, at approximately 3:00 a.m., Los Angeles Police Officer Daniel Rodriguez received a report of an assault with a deadly weapon and was directed by an airship to Adams and Crenshaw Boulevards where he encountered Jones, who was detained and patted for weapons. Lee felt a hard object in one of Jones’s pockets and found a glass pipe containing .04 grams of cocaine base.[2]
An amended information charged Jones with possession of a controlled substance and alleged a prior serious or violent felony conviction within the meaning of the Three Strikes law and four prior prison terms within the meaning of section 667.5, subdivision (b).
On July 8, 2010, Jones plead guilty to possession of a controlled substance and admitted the prior conviction alleged under the Three Strikes law after the trial court indicated it would strike the prior conviction and sentence Jones to 16 months in state prison on the current offense and impose a concurrent term of 16 months for violation of probation in another matter. Before Jones entered the guilty plea, defense counsel inquired whether Jones would be eligible for “one-to-one” conduct credits. The trial court responded Jones was not eligible for these credits because he had a prior serious or violent felony conviction. Defense counsel noted the conviction was going to be stricken and thus the prior conviction had not been pleaded or proved. The trial court responded the prior conviction need not be alleged or proven for the purpose of computing conduct credit, analogizing to eligibility for probation and drug treatment under Proposition 36. (See In re Varnell (2003) 30 Cal.4th 1132.)
Jones thereafter pleaded guilty as charged and admitted a prior conviction of attempted robbery in 1995. The trial court accepted the plea and continued the matter for sentencing to August 17, 2010.
On that date, the trial court sentenced Jones to 16 months in state prison, noting it previously had stricken the allegation of a prior serious or violent felony conviction. However, the prior conviction disqualified Jones from receiving conduct credit under “the new calculation.” Defense counsel indicated she understood “that if he has a strike in his past, the new law will not [permit] one hundred percent credit.” The trial court awarded 198 days of presentence custody credit, consisting of 132 days of actual custody and 66 days conduct credit.
CONTENTIONS
Jones contends that, in striking the prior conviction for the purpose of the Three Strikes law, the trial court also necessarily struck the conviction for purposes of former section 4019. Alternatively, he contends former section 4019 violates equal protection to the extent it limits his presentence conduct credits.
DISCUSSION
1. Jones is not entitled to one-for-one conduct credits and the trial court lacked authority to strike the prior conviction that rendered him ineligible.
A criminal defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Under the version of section 4019 in effect before January 25, 2010, a defendant earned two days of conduct credit for every four days served in local custody. (Former § 4019, subds. (b), (c).) In October 2009, the Legislature enacted Senate Bill No. 18 which, among other things, amended section 4019, effective January 25, 2010, to permit defendants who have no current or prior serious or violent felony convictions and who are not required to register as sex offenders to earn two days of conduct credit for every two days in custody. (Former § 4019, subds.(b)(1), (c)(1).)[3]
Jones contends that, because the trial court struck the prior conviction, he no longer had a prior serious or violent felony conviction and therefore was eligible for the more favorable conduct credits of former section 4019. Jones requests recalculation of his conduct credit without remand to the trial court.
We do not find this argument persuasive.
The fact the trial court struck the prior conviction for the purposes of the Three Strikes law did not “ ‘wipe[] out’ th[e] conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant’s personal history . . . .” (People v. Garcia (1999) 20 Cal.4th 490, 499.) Thus, the order striking the prior conviction for the purpose of Three Strikes law did not eliminate it for the purpose of calculating conduct credit under former section 4019.
The issue presented to this court is whether the trial court had authority to strike the prior conviction for the purpose of computing conduct credit under former section 4019. This question turns on whether the prior conviction had to be pleaded and proved in order to render Jones ineligible for the more generous accrual rate which, in turn, depends on whether a reduction in conduct credits is considered an increase in punishment. (See People v. Lo Cicero (1969) 71 Cal.2d 1186 [prior conviction which rendered defendant ineligible for probation under former Health and Safety Code section 11715.6 (repealed by Stats. 1972, ch. 1407, § 2) must be pleaded and proved because prohibition of probation is equivalent to an increase in penalty].) If the reduction in conduct credit is not considered punishment, there was no need to plead and prove the prior conviction and, consequently, the trial court had nothing to strike to render Jones eligible for the more generous conduct credits.
The trial court concluded the latter situation obtained and, pending further direction from the Supreme Court, we believe the trial court reached the correct result.[4] Indeed, it appears this conclusion is required under the reasoning of In re Varnell, supra, 30 Cal.4th 1132, referenced by the trial court at the time of the plea bargain in this case.
In Varnell, the petitioner plead no contest to a charge of drug possession and admitted the truth of a prior serious felony conviction allegation. (Id. at p. 1135.) The trial court struck the prior conviction so as to avoid the provisions of the Three Strikes law. (Ibid.) However, the trial court ruled the prior conviction and the prison term served in connection with it rendered the petitioner ineligible for probation and drug treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), which mandates probation and drug treatment for certain nonviolent drug offenders but excludes from the program offenders who previously have committed serious or violent felonies and have not remained free of prison custody for five years. (Ibid.) Varnell affirmed the trial court’s order, holding a trial court may not strike a prior serious felony conviction to make a defendant eligible for probation and drug treatment under Proposition 36 because there is no pleading and proof requirement for the prior conviction. (Ibid.) It stated, “trial courts may not use section 1385 to disregard ‘sentencing factors’ that are not themselves required to be a charge or allegation in an indictment or information.” (Ibid.)
Similarly, Jones’s prior conviction was a sentencing factor that rendered him ineligible for increased conduct credits under former section 4019. (See In re Pacheco (2007) 155 Cal.App.4th 1439, 1445 [limitation on presentence conduct credits under 2933.1 does not operate to increase the maximum punishment for a crime]; People v. Garcia (2004) 121 Cal.App.4th 271, 277 [former section 4019’s exclusion of defendants with prior strike convictions from more favorable credit calculation is not an increase in penalty].)
We therefore conclude the trial court properly denied Jones one-for-one conduct credits in this case.
2. Denial of one-for-one credits under former section 4019 did not violate equal protection.
Jones notes Senate Bill 18, which amended section 4019, also amended section 2933, the in-prison work credit system, to provide that state prisoners automatically earn one-for-one worktime credits. While prison conduct credit remains “a privilege, not a right” and “must be earned” (§ 2933, subd. (c)), credits cannot be denied to prisoners who do not work because they lack an opportunity to do so (§ 2933, subd. (b)). Further, section 2933, subdivision (e), provides the same one-for-one credits shall be awarded to defendants in county jail awaiting delivery to state prison.
Jones notes conduct credit under section 4019 similarly is awarded automatically unless the defendant has not complied with the regulations of the facility. (Former § 4019, subd. (c)(1).) Thus, all otherwise eligible defendants earn conduct credit at the same one-for-one rate, whether they are in jail awaiting sentencing, in jail awaiting delivery to state prison or in state prison unless the defendant has a prior conviction that has not been stricken (former § 4019, subds. (b)(1), (c)(1)) or a current conviction of a violent felony (§ 2933.1, subd. (a)). According to Jones, this denial of one-for-one conduct credit denies equal protection because individuals with prior convictions that have not been stricken who are unable to post bail will serve longer terms than similarly situated individuals who do not serve pre-sentence confinement in jail.
Jones claims this case therefore is controlled by People v. Sage (1980) 26 Cal.3d 498, 507-508, in which the Supreme Court held there was no rational basis for section 4019 to award presentence conduct credits to defendants ultimately convicted of misdemeanors, and yet deny them to defendants convicted of felonies. After Sage, the Legislature amended the conduct credit scheme to permit state prisoners to reduce their sentence by one-half by participating in work programs. However, prisoners in county jail could achieve only one-third reduction. The argument this scheme violated equal protection based on a comparison of the term served by a defendant who could not post bail as opposed to a defendant who posted bail was rejected in People v. DeVore (1990) 218 Cal.App.3d 1316, 1319, People v. Poole (1985) 168 Cal.App.3d 516, 524-526, People v. Ross (1985) 165 Cal.App.3d 368, 377, and other cases, based on the rationale that state prisoners received credit only for work performed and thus the credits were earned. (See People v. DeVore, supra, at p. 1320.) However, this rationale no longer obtains, given that conduct credits are now automatic and cannot be denied prisoners who do not work because of the lack of an opportunity to do so.
Jones concludes he is in a small class of prisoners who will serve longer terms of confinement solely because they could not make bail, the classic Sage situation.
Assuming Jones correctly has summarized the applicable statutory provisions, no violation of equal protection appears. To prevail on such a claim, Jones must show the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) In considering such claims, “ ‘we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny.’ ” (Ibid.) “[P]ersonal liberty is an interest which is entitled to the same protection as other fundamental interests . . . .” (People v. Olivas (1976) 17 Cal.3d 236, 251.) “A defendant, however, ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ ” (People v. Wilkinson, supra, at p. 838.) Thus, “the rational basis test applies to equal protection challenges based on sentencing disparities. [Citations.]” (People v. Ward (2008) 167 Cal.App.4th 252, 258.) “ ‘The only requirement is that “classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose.” [Citations.]’ ” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.)
Here, Jones was ineligible for the more generous conduct credit because he had a prior serious felony conviction. Thus, Jones was treated differently than other presentence detainees based on his recidivism. He therefore was not situated similarly to other presentence detainees who did not have a prior serious felony conviction. Because a legitimate public purpose exists for treating detainees with prior serious felony convictions differently than detainees who do not have such convictions, Jones cannot show a violation of equal protection.
Moreover, the cases finding no equal protection violation in this context relied not only on the fact postsentence conduct credits must be earned, but also on the rationale that “the state’s interest in rehabilitation and the difficulty in establishing prison-style work programs in county jails justify the disparate application of presentence and postsentence work credits.” (People v. DeVore, supra, 218 Cal.App.3d at p. 1320, citing People v. Waterman (1986) 42 Cal.3d 565, 570; see also People v. Buckhalter (2001) 26 Cal.4th 20, 36 [“the pre- and postsentence credit systems serve disparate goals and target persons who are not similarly situated”].) Because this consideration remains valid, Jones is unable to distinguish these cases from the situation presented.
In sum, we reject Jones’s claim the denial of one-for-one conduct credits violates equal protection principles.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




KLEIN, P.J.


We concur:



CROSKEY, J.




KITCHING, J.


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