P. v. Lopez
Filed 5/9/13 P. v. Lopez 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opinion has not been certified for publication or ordered published for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.
ENRIQUE ARGUETA LOPEZ,
Defendant and
Appellant.
H037735 & H038136
(Monterey
County
Super. Ct.
No. SS101249)
Defendant
Enrique Argueta Lopez appeals a
conviction following his plea of guilty to two counts of
12020, subd. (a)(1)),
name="_ftnref1" title="">[1]
and admission that one of those counts was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)).
Defendant was awarded 385 days of
total custody credit, consisting of
257 days of actual credit, and 128 days of conduct credit. On appeal he asserts he is entitled to an
additional 128 conduct credits pursuant to the October 1, 2011 amendments to section 4019.
Statement of the Case
In May
2010, defendant was charged with four counts of possession of stolen rifles (§
12020, subd. (a)(1)), six counts of receiving or concealing stolen property (§
496, subd. (a)), and one count of making a false police report (§ 148.3). The information also contained an allegation
that defendant committed one count of possession of stolen rifles and one count
of receiving or concealing stolen property for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)).
In June
2010, defendant pleaded guilty to two counts of possession of stolen rifles (§
12020, subd. (a)(1)), and admitted one of the gang allegations, in exchange for
an agreement that he would be granted probation, and would be ordered to serve
180 days in jail. The remaining charges
and the gang allegation were dismissed pursuant to the plea agreement.
During the
period between August 2010, and August 2011, the district attorney brought four
separate petitions alleging defendant violated his probation. Defendant admitted all the violations.
On November 1, 2011, defendant was
sentenced to five years in state prison. The court awarded defendant 385 days of total
custody credit, consisting of 257 days of actual credit, and 128 days of
conduct credit.
In December
2011, defendant filed a notice of appeal.
On March 20, 2012, defendant brought a
motion in the trial court requesting an additional 128 custody credits pursuant
to a retroactive application of the October 2011 amendments to section
4019. The court denied the motion, and
defendant filed a notice of appeal.
On May 3, 2012, defendant moved to
consolidate H037735 and H038126 for appeal.
This court denied the motion, but ordered the cases would be considered
together for briefing, oral argument, and disposition.
Discussion
Defendant
raises two arguments on appeal to support his contention that he is entitled to
additional conduct credits under the amendments to section 4019. First, he asserts “a harmonized construction
of the conflicting language in the October
1, 2011 amendment†to section 4019 requires a one-for-one
calculation of conduct credits.
Defendant’s actual custody credit in this case was 257 days, 225 days
served before October 1, 2011,
and 32 days served after October 1,
2011. Defendant argues that pursuant to dicta in this court’s
opinion in People v. Olague (2012)
205 Cal.App.4th 1126 (Olague) (review
granted Aug. 8, 2012, S203298), he is statutorily entitled to the increased
credits provided in the 2011 amendment for the 32 days he spent in custody on
and after October 1, 2011.
We reject
this argument as we did in People v.
Kennedy (2012) 209 Cal.App.4th 385, 395-396 (Kennedy). “The Supreme Court
has granted review in Olague (review
granted Aug. 8, 2012,
S203298). An opinion is no longer considered published if the Supreme Court
grants review (Cal. Rules of Court, rule 8.1105(e)(1)) and may not be relied on
or cited. (Cal. Rules of Court, rule
8.1115(a).)†(Id. at p. 400.)
Defendant’s second argument on
appeal is that federal and state equal protection principles require that the
more favorable conduct credit scheme set forth in the amendment to section 4019
effective October 1, 2011, be applied to him notwithstanding that he committed
the crimes prior to October 1, 2011.
The current
version of section 4019 generally provides that a defendant may earn conduct
credit at a rate of two days for every two-day period of actual custody. (§ 4019, subds. (b), (c) & (f).) However, as defendant acknowledges, the
current version of section 4019 states that the conduct credit rate “shall
apply prospectively and shall apply to prisoners who are confined to a county
jail [or other local facility] 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.†(§ 4019, subd. h).)
In this case, defendant committed
his crimes in April 2010, prior to the amendment that went into effect on October 1, 2011. Defendant was sentenced on November 1, 2011. Thus the October 2011 version of section
4019, which provides for prospective application, does not apply to
defendant. (§ 4019, subd. (h);
209 Cal.App.4th at pp. 395-396.)
In Kennedy, we were faced with an equal protection challenge to the
prospective application of the 2011 amendment similar to the one raised by
defendant in this case. Relying on Brown,
supra, 54 Cal.4th 314, we concluded that applying the 2011 amendment to
section 4019 (with its one-for-one conduct credit formula) prospectively to
persons who committed crimes on or after October 1, 2011, did not violate
principles of equal protection. We
explained that “to succeed on an equal protection claim, a defendant must first
show that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.
[Citation.]†(
396.) We concluded that defendants who
committed crimes before October 1,
2011, and defendants who committed crimes on or after October 1, 2011, are not similarly
situated for purposes of earning presentence conduct credits. (Id. at pp. 396-397; accord,
1546, 1551-1552 ( review den. Oct.
31, 2012, S205334.)
We noted in
Court in Brown was concerned with the
January 2010 amendment to section 4019 (Brown,
supra, 54 Cal.4th at p. 318), the reasoning of Brown applies with equal force to the prospective-only application
of the current [October 1, 2011] version of section 4019.†(Kennedy,
supra, 209 Cal.App.4th at pp. 396-397.)
And we then explained that “[i]n rejecting the defendant’s argument that
the January 2010 amendments to section 4019 should apply retroactively, the
California Supreme Court explained ‘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.’
[Citation.]†(
defendants who committed crimes before October
1, 2011, and defendants who committed crimes on or after October 1, 2011, are not similarly
situated for purposes of earning presentence conduct credits.
Defendant’s reliance on
is misplaced. As we held in
reasoning in Brown, supra, 54 Cal.4th
at page 326: “In Kapperman, the Supreme Court reviewed a provision (then new Penal
Code § 2900.5) that made actual custody credits prospective, applying only to
persons delivered to the Department of
Corrections after the effective date of the legislation. [Citation] The
court concluded that this limitation violated equal protection because there
was no legitimate purpose to be served by excluding those already sentenced,
and extended the benefits retroactively to those improperly excluded by the
Legislature. [Citation].†(Kennedy,
supra, 209 Cal.App.4th at p. 396.)
Accordingly, “Kapperman is
distinguishable from the instant case because it addressed actual custody credits, not conduct
credits. Conduct credits must be earned by a defendant, whereas custody credits
are constitutionally required and awarded automatically on the basis of time
served.†(Ibid.)
We reject defendant’s equal
protection challenge to the prospective application of the October 1, 2011
amendment to section 4019. Defendant,
who pleaded guilty to crimes he committed was convicted of a burglary committed
in April 2010, is not entitled to one-for-one presentence conduct credit under
the 2011 amendment, because that amendment is expressly applicable only to
defendants who commit crimes on or after October 1, 2011.
In H037735, the judgment is
affirmed.
In H038126, the order appealed from
is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA
J.
Code.
are not relevant to the issues on appeal.
