P. v. Lee
Filed 4/10/13 P. v. Lee CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDRE SHAMONE LEE,
Defendant and Appellant.
D062096
(Super. Ct.
No. SCS251030)
APPEAL from
a judgment of the Superior Court
of
County, Stephanie Sontag, Judge. Affirmed with directions.
I.
INTRODUCTION
On April 3, 2012, Andre Shamone Lee pled guilty to one count
of domestic violence with corporal injury
(Pen. Code, § 273.5, subd. (a))
name="_ftnref1" title="">[1] (count 1), and admitted having suffered a
prior strike conviction within the meaning of section 667, subdivisions (b)
through (i), and section 668. That same
day, the trial court sentenced Lee to a stipulated sentence of six years in
days of custody credits, including 209 days of actual custody credits, and 104
days of conduct credits. The trial court
also imposed a restitution fine in the amount of $240, and imposed and stayed a
parole revocation restitution fine in
the same amount.
On appeal,
Lee contends that the trial court violated the ex post facto clauses of the
state and federal constitutions in imposing the restitution and parole
revocation restitution fines. Lee also
claims that he is entitled to additional conduct credits for jail time served
after October 1, 2011,
pursuant to an amendment to section 4019.
We reject Lee's claims and affirm the judgment.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
Lee pled guilty to one count of
willfully and unlawfully inflicting corporal injury upon his live-in girlfriend
(§ 273.5) (count 1). The offense
occurred on or about August 23, 2011.
At
sentencing, the trial court imposed a stipulated six-year sentence, as follows:
"On count 1 you will be sentenced to the mid-term
of three years in state prison, which is double[d] because of the strike to six
years."
The court also awarded custody
credits, and imposed a restitution fine and a parole revocation restitution
fine, as follows:
"Your credits . . . are 209 actual, 104 [section]
2933 [, subdivision] (e)(3) credits for total credits of 313 days. [¶] There [is] a restitution fine of $240,
[and] an additional restitution fine of $240 stayed pending successful
completion of parole . . . ."
III.
DISCUSSION
A. The trial court did not
violate the ex post facto clause of either the state or federal
constitution by
imposing a $240 restitution fee and imposing and staying a parole
revocation restitution
fine in the same amount
Lee claims
that the trial court violated the ex post facto clauses of the state and
federal constitutions by imposing a $240 restitution fee and imposing and
staying a $240 parole revocation restitution fine in the same amount.
1.
Governing law
a.
Ex post facto principles
The United States Constitution bars
the passage of ex post facto laws by state governments (U.S. Const., art. I, §
10, cl. 1). The California Constitution,
article I, section 9 also bars the Legislature from enacting ex post facto
laws. The ex post facto analysis is the
same under both Constitutions. (See
274.)
"A statute violates the ex
post facto clause[s] when, on its face or as applied, it retroactively '
"increase[s] the punishment for criminal acts." ' Thus[,] the prohibition on ex post facto laws
prevents the government from changing the punishment for a criminal act after
the act has been performed." (People
v. Callejas (2000) 85 Cal.App.4th 667, 670 (Callejas), fns. omitted.) In
Callejas, the Court of Appeal noted,
"[C]ourts have consistently held restitution fines qualify as 'punishment' for
purposes of the ex post
b. The
applicable fines at the time of the offense
At the time
of Lee's commission of the August 23,
2011 offense, former section 1202.4 provided:
"(b) In every case where a person is convicted of a
crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
"(1) The restitution fine shall be set at the
discretion of the court and commensurate with the seriousness of the offense,
but shall not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a
felony . . . ."
(Stats. 2011, ch. 45, § 1.)
At
the time of the offense, former section 1202.45 provided:
"In every case where a person is convicted of a
crime and whose sentence includes a period of parole, the court shall at the
time of imposing the restitution fine pursuant to subdivision (b) of Section
1202.4, assess an additional parole revocation restitution fine in the same
amount as that imposed pursuant to subdivision (b) of Section 1202.4. . .
." (Stats. 2007, ch. 302, § 15.)
Prior to
the time of Lee's sentencing, the Legislature amended section 1202.4,
subdivision (b)(1) to provide in relevant part, "The restitution fine
shall be set at the discretion of the court and commensurate with the
seriousness of the offense, [but] shall not be less than two hundred forty dollars ($240) starting on January 1, 2012 . . .
." (Stats. 2011, ch. 358, § 1,
italics added.) Section 1202.45 remained
the same in all material respects.
2. Application
We assume
for purposes of this decision that the ex
post facto clauses of the state and federal constitutions prohibit a trial
court from imposing fines pursuant to sections 1202.4 or 1202.45 that are
greater than those authorized pursuant to the applicable statute at the time of
the defendant's commission of the offense as to which the fine is imposed.
and a $240 parole revocation restitution fine, the trial court imposed fines
that are well within the range of fines authorized at the time of the Lee's
commission of the August 23, 2011 offense.
(See former § 1202.4, subd. (b)(1) [authorizing a fine of "not
less than two hundred dollars ($200), and not more than ten thousand dollars
($10,000)"]; former § 1202.45 [authorizing the imposition of a parole
revocation fine in the "same amount" as the fine imposed pursuant to
section 1202.4, subd. (b)(1)].)
Although
Lee is correct that the trial court imposed a $240 restitution fine—an amount
equal to the new minimum fine under the amended version of section 1202.4,
subdivision (b)(1), there is nothing in the record to support Lee's contention
that the trial court imposed the $240 restitution fine "pursuant to the
most recent version of Penal Code section 1202.4." The trial court merely imposed a $240
restitution fine, without comment.
Because the $240 restitution fine was authorized by the statute that was
in effect at the time of Lee's commission of the offense (former § 1202.4,
subd. (b)(1)), and there is nothing in the record indicating that the trial
court imposed the fine pursuant to the amended version of the statute, Lee's ex
post facto claim fails.
B. Lee is not entitled to
additional conduct credits for jail time served after
October 1, 2011
Lee claims that he is entitled to
additional conduct credits for jail time served after October 1, 2011, pursuant
to an amendment to section 4019.
1.
Relevant factual and procedural background
Lee committed the offense on or
about August 23, 2011. Prior to
sentencing, Lee served 209 days in local custody. On April 3, 2012, Lee pled guilty to count 1
and admitted to having suffered a prior strike.
That same day, the trial court sentenced Lee to state prison.
2.
Relevant law
a. The
statutory scheme applicable at the time of Lee's commission
the offense
At the time of Lee's commission of
the offense, former section 4019 provided for various presentence conduct credits
that a prisoner could earn while awaiting sentencing. The statute provided in relevant part:
"(f) It is the intent of the Legislature that if
all days are earned under this section, a term of six days will be deemed to have been served for every
custody." (Italics added.) (Stats. 2010, ch. 426, § 2.)
b. The
amended statutory scheme
Operative October 1, 2011, the
Legislature amended section 4019 to increase the rate at which conduct credits
could be earned. The amended statute
provides in relevant part:
"(f) It is the intent of the Legislature that if
all days are earned under this section, a term of four days will be deemed to have been served for every
"[¶] . . . . [¶]
"(h) The changes to this section enacted by the act
[Stats. 2011, ch. 15] that
added this subdivision shall apply prospectively and 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 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. (Stats. 2011-2012, 1st Ex.
Sess., ch. 12, § 35.)
3.
Lee is not entitled to additional conduct credits pursuant to the text
of section
4019
Lee contends that he is entitled to
conduct credits at the enhanced rate under the amended version of section 4019,
for all of the days he served in custody after October 1, 2011. Lee suggests that the second sentence of
section 4019, subdivision (h) implies that credits earned by
to be calculated at the enhanced rate.
We are not persuaded.
Under the version of
his offenses (Aug. 23, 2011), a prisoner confined in a county jail prior to
sentencing who earned all possible conduct credits was entitled to credit for
(Former § 4019, subd. (f).) By amendments that became operative October
1, 2011, the amount of credit for such prisoners was increased to
(Ibid.) However, the amended statutes provide that
the enhanced credits "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),
italics added.) Thus, "[t]his
favorable change in the law does not benefit [Lee] 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.' [Citation.]" (People v. Lara (2012) 54 Cal.4th 896,
906, fn. 9.)
Recent decisions of the Court of
Appeal confirm that defendants like Lee, who committed their crimes before
October 1, 2011 but were in presentence custody after that date, are not
entitled to receive credits at the increased rate prescribed by the current
version of section 4019.
The Fifth District court held that in enacting subdivision (h) of
section 4019, "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 does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits."
(People v. Ellis (2012) 207 Cal.App.4th 1546, 1553 (
Following Ellis, and contrary to Lee's interpretation of the
statute, Division Three of this court "read the second sentence [of section
4019, subdivision (h)] as reaffirming that defendants who committed their
crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law." (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 52 (Rajanayagam).)
We agree with these holdings and
reject Lee's claim that he is entitled to conduct credits at the increased rate
contained in the amended version of section 4019 for the time he spent in
county jail after October 1, 2011.
4.
The equal protection clauses of the state and federal constitutions
do not
require that Lee receive additional conduct credits pursuant to
section
4019
Lee also argues that failing to
apply the current version of section 4019 for days served
after October 1, 2011, violates his right to "the equal protection of the
laws." (U.S. Const., 14th Amend., §
1; Cal. Const., art. I, § 7, subd. (a).)
The United States Supreme Court has
held that the Fourteenth 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." (Sperry
& Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505.) The California Supreme Court similarly has
held that applying a statutory change prospectively only does not violate equal
protection guaranties. (See, e.g., People
v. Floyd (2003) 31 Cal.4th 179, 188–191 [rejecting equal protection
challenge to prospective-only application of proposition that lessened
punishment for offense].)
Relying in part on this line of cases,
California appellate courts have held that awarding conduct credits at
different rates to defendants in presentence custody on or after October 1,
2011, based on whether they committed their offenses before that date or on or
after that date, does not violate their equal protection rights. (Rajanayagam, supra, 211 Cal.App.4th
at p. 55; People v. Kennedy (2012) 209 Cal.App.4th 385, 398 (Kennedy).) The Rajanayagam court reasoned in part:
"[T]he Legislature took a measured approach and
balanced the goal of cost savings against public safety. The effective date was a legislative
determination that its stated goal of reducing corrections costs was best
served by granting enhanced conduct credits to those defendants who committed
their offenses on or after October 1, 2011.
To be sure, awarding enhanced conduct credits to everyone in local
confinement would have certainly resulted in greater cost savings than awarding
enhanced conduct credits to only those defendants who commit an offense on or
after the amendment's effective date.
But that is not the approach the Legislature chose in balancing public
safety against cost savings.
[Citation.] Under the very
deferential rational relationship test,[
we will not second-guess the Legislature and conclude its stated purpose is
better served by increasing the group of defendants who are entitled to
enhanced conduct credits when the Legislature has determined the fiscal crisis
is best ameliorated by awarding enhanced conduct credit to only those
defendants who committed their offenses on or after October 1, 2011." (Rajanayagam, supra, at pp. 55-56.)
We agree with the Rajanayagam
court that applying the current version of section 4019 only to defendants who
committed offenses on or after October 1, 2011, "bear[s] a rational
relationship to cost savings." (Rajanayagam,
supra, 211 Cal.App.4th at p. 55.) We
also agree with the Kennedy court's observation that there is
"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 p. 399.) We therefore
reject Lee's equal protection challenge to the prospective-only application of
the most recent amendments to section 4019.
C. The abstract of judgment
shall be amended to properly state the trial court's
sentence on count 1
The trial
court sentenced Lee to a stipulated term of six years on count 1, consisting of
the mid-term of three years, doubled on account of Lee's prior strike
conviction. Lee notes that the abstract
of judgment does not reflect the court's imposition of the mid-term sentence
and requests that an amended abstract be prepared. The People have no objection to Lee's
request.
Accordingly, the abstract of
judgment should be amended to reflect the imposition of a mid-term sentence on
count 1, doubled due to the strike prior.
IV.
DISPOSITION
The
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment as described in part
III.C., ante, and to forward the
amended abstract of judgment to the Department of Corrections and
Rehabilitation.
AARON, J.
WE CONCUR:
McDONALD,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] Unless
otherwise specified, all subsequent statutory references are to the Penal Code.
name="_ftn2" title="">[2] The
People do not contend otherwise in their brief.
