Filed 6/21/13 P. v. Lowe CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TRENELL ANTHONY LOWE,
Defendant and
Appellant.
F062767
(Super.
Ct. No. F10902709)
APPEAL from
a judgment of the Superior Court
of
Emry J.
Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
A jury
convicted defendant Trenell Anthony Lowe of
strike conviction and had served two prior prison terms. The trial court sentenced him to two years
eight months in state prison.
On appeal,
Lowe contends that the trial court erred by denying his motion to suppress
because his detention and search by the police were illegal. In addition, he argues: (1) In admitting the enhancement
allegations, he did not affirmatively waive his right to confront witnesses and
his privilege against self-incrimination; (2) the trial court improperly
offered a 28-month sentence in exchange for a guilty plea and therefore his
sentence after jury trial should be no more than 28 months; (3) he is
entitled to additional presentence conduct credits; and (4) the abstract
of judgment must be corrected. The People
concede that the abstract of judgment should be corrected but otherwise
disagree with Lowe.
We conclude
that the detention and search were legal.
We agree with the parties that the abstract of judgment must be
corrected. In all other respects, we affirm
the judgment.
FACTUAL AND
PROCEDURAL HISTORIES
On the
morning of April 29, 2010,
Fresno police detectives working in
the street-level narcotics enforcement team conducted a search of an apartment
on North Peach Avenue
pursuant to a search warrant. Inside the apartment, the police found
marijuana packaged in individual plastic baggies in a manner that appeared to
be prepared for $5 sales. There were
also two people in the apartment; both were initially detained and one was
arrested.
After the
search was completed, detectives Tomas Cantu and Brannon Kirkland waited in the
apartment for a police wagon to transport the arrestee. As the detectives waited, they observed
people walk up to the apartment in an apparent attempt to purchase
narcotics. Cantu locked the security
screen door to the apartment, while the wooden front door remained open. Lowe approached the apartment and tried to
open the screen door. Cantu opened the
door; he was wearing a bulletproof vest with a police badge and a thigh holster
holding his duty weapon. Upon seeing
Cantu, Lowe turned around and placed his hands behind his back. Lowe had a $10 bill in his right hand.
Kirkland
noticed a bulge in Lowe’s right sock. Kirkland
asked about the bulge and Lowe responded that it was nothing. Cantu patted Lowe down for weapons and
removed an item from Lowe’s sock which turned out to be about two feet of
toilet paper wrapped around a plastic baggie containing an off-white
substance. Cantu suspected that the
off-white substance was cocaine base. At
that point, Cantu arrested Lowe and Kirkland read him his Miranda
title="">[1] rights.
Lowe was handcuffed and placed on the floor against the living room
wall. About five minutes after being
arrested, Lowe sighed and said he was only there “to buy a nickel to roll a
cabbie.†Cantu explained that a “nickelâ€
refers to an amount of something (in this case, marijuana) that is sold for $5,
and a “cabbie†is a marijuana cigarette that is laced with cocaine. Later testing showed that the off-white
substance found in Lowe’s sock was .14 gram of methamphetamine, a usable
amount.
The Fresno
County District Attorney filed an information alleging a single count of
possession of a controlled substance in violation of Health and Safety Code
section 11377, subdivision (a).
The information also alleged that Lowe had a prior serious or violent
felony (strike) conviction (Pen. Code,
subds. (a)-(d)) and had served two prior prison terms (§ 667.5).
Lowe filed
a motion to suppress “all evidence and observations obtained without an arrest
or search warrant.†In his motion
papers, Lowe argued that his detention was outside the scope of the search
warrant for the apartment on North Peach Avenue, and the detectives did not
have sufficient reasonable suspicion to detain and search him. Therefore, he argued, the detention and
search were illegal and the fruits of the illegal search—the drugs found in his
sock and his postarrest statements—must be suppressed.
At the
hearing on Lowe’s suppression motion, Cantu and Kirkland testified. Cantu explained that, prior to the search,
the apartment on North Peach Avenue had been under surveillance and, on two
occasions, a confidential informant purchased narcotics at the apartment. At least eight police officers participated
in the search. After the search was
completed and Cantu and Kirkland were waiting for the police wagon, Cantu
noticed “people were coming up to the door, what appeared to be attempting to
purchase narcotics.†Cantu locked the
security screen door “for officer safety reasons, [so] people don’t walk in and
find us in there.â€
According
to Cantu, Lowe “kind of half jogged up†to the apartment and “seemed to be in a
hurry.†Lowe tried to open the
door. Cantu stated that Lowe did not knock on the door, “he went directly for
the doorknob.†Kirkland, however,
believed that Lowe knocked and at the same time tried to open the door. Cantu opened the door, and
Lowe—without any instruction from Cantu—“immediately turned around and placed
his hands behind his back.†According to
Kirkland, Cantu asked Lowe, “what do you need?†or “what do you want?†or words
to that effect. At the suppression hearing, Cantu could not recall what he said to Lowe
when he opened the front door, but it could have been something like, “what’s
going on†or “what are you looking for.â€
Cantu
testified that he then took custody of Lowe because he did not know whether
Lowe was a resident of the apartment. Cantu
saw that Lowe had a $10 bill in his hand and a bulge in one of his socks. Cantu searched Lowe because he “didn’t know
if he was a resident†of the apartment subject to the search warrant and also
“just for officer safety reasons†since Lowe could have been armed. Cantu testified, “It’s always possible to
have a weapon, that’s why when he turned around … [and] put his hands like
if he’s going to be arrested, I merely went down and grabbed him and patted him
down for weapons.†During the pat-down,
Cantu removed the item causing a bulge in Lowe’s sock. Cantu described it as “being a ball,†“about
a ball size, tangerine size.†Kirkland
testified that the bulge was probably the diameter of a 50-cent piece or
slightly larger. Lowe’s attorney elicited testimony that Kirkland had described the
bulge as the size of a nickel at the preliminary hearing.
After the
witnesses were excused, the court heard argument from counsel. Lowe’s attorney argued that a person who
knocks on the door of a house that is being searched is not automatically
subject to search. Further, when a
police officer conducts a pat-down search for weapons, if the officer feels
something, it must be reasonable to suspect that it is a weapon. Lowe’s attorney argued, “[I]n this case, a small
bulge of soft tissue in a sock would not be reasonable for a person to believe
that that’s a weapon, therefore, [an officer] cannot place their hands within
that sock to remove [it] .… [This]
is now a search, an actual complete search, not just a pat-down anymore.â€
The deputy
district attorney argued that the detectives had sufficient reason to detain
and search Lowe. She cited the facts
that the apartment was a known “drug house†selling $5 bags of marijuana, Lowe
went to the door “prepared†with $10 in his hand, and he reached for the
doorknob “to enter as if he had been there before .…†These circumstances gave Cantu reason to
detain Lowe. The deputy district attorney
continued: “And then based upon the
totality of everything, I believe he had the reasonable suspicion to actually
search the Defendant based upon the knowledge of the house, the money in his
hand, and this … was called … a noticeable bulge on the Defendant’s
sock, that based upon all of that, the officers had their own reason to believe
the Defendant was attempting to engage in criminal activity, and based upon
that, had their own authority, then, to search the Defendant above and beyond
the warrant.†Lowe’s attorney responded
that the circumstances of Lowe approaching the apartment with money in his hand
might raise a suspicion that he wanted to buy
drugs but not that he had drugs.
After
hearing the parties’ arguments, the court denied Lowe’s motion to
suppress. The court explained:
“The Court is mindful of the directives of the
California Supreme Court in the 1995 case of [People v. Glaser (1995) 11 Cal.4th 354]. Defense counsel does recognize, rightfully
so, that under the circumstances presented in this case, Officer Cantu, Officer
Kirkland, and any other officer on the premises did have the absolute right to
detain Mr. Lowe for questioning. In
addition, they had the absolute right to conduct at least a minimal search for
their own protection.
“There
was no sufficient evidence presented that Mr. Lowe was an occupant of the
premises. That being said, Glaser stands
for the proposition that if the person detained—in this case, Mr. Lowe—is not
an occupant, further detention is proper only if justified by other specific
articulable facts connecting him to the criminal activity suspected to be
occurring on the premises or establishing a danger to the officers if the
person is released.
“The
Court finds that there was, in fact, specific … articulable facts
connecting Mr. Lowe to the premises being searched. His prolonged detention, the subsequent
search, and the arrest without a warrant were all reasonable under the
circumstances given the totality of the circumstances, and the Court denies the
motion.â€
The case
went to trial, and a jury found Lowe guilty of the single charge of possession
of a controlled substance. In a
bifurcated proceeding, Lowe admitted that he had been convicted of a prior
serious felony and had served prior prison terms.
The trial
court imposed a mitigated term of 16 months, doubled to 32 months because of
the prior serious felony conviction.
(§§ 667, subd. (d)(1), 1170.12.) Exercising its discretion, the court struck
the two enhancements for prior prison terms “in the interest of justice.†Lowe received two days’ credit for time spent
in custody and no additional conduct credit.
DISCUSSION
I. Motion to suppress
“On appeal
from the denial of a motion to suppress, we defer to the trial court’s factual
findings, express or implied, where supported by substantial evidence and
exercise our independent judgment in
determining whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment.†(
Cal.App.4th 1110, 1114; see also People
v. Glaser, supra, 11 Cal.4th at p. 362 (Glaser).) We will affirm if
the ruling is correct on any theory of law applicable to the case, even if
different from the reasons given by the trial court. (People
v. Evans (2011) 200 Cal.App.4th 735, 742; People v. McDonald (2006) 137 Cal.App.4th 521, 529.)
Lowe
contends the circumstances of this case did not permit the detectives to detain
him in the apartment. We disagree.
In
making its ruling, a team of six police officers, including an investigator
assigned to a narcotics task force, executed a search warrant at a house. (Glaser,
supra, 11 Cal.4th at
p. 362.) When the officers arrived
at the house, the defendant’s pickup truck was parked in the driveway. The defendant had just arrived; he had gotten
out of his truck and walked to a gate to the backyard of the house, and he was
about to open that gate. (
something at him, but he did not understand.
Eventually, he understood that officers were ordering him to lie face
down on the gravel driveway at gunpoint.
An officer handcuffed the defendant and led him into the house. (Id.
at p. 361.)
The
defendant argued that the police did not have a reason to detain him as a mere
visitor at a house being searched, but our Supreme Court disagreed. (Glaser,
supra, 11 Cal.4th at
pp. 363-365.) The court concluded
that the “brief detention of defendant was justified by the need to determine
what connection defendant, who appeared to be more than a stranger or casual
visitor, had to the premises, and by the related need to ensure officer safety
and security at the site of a search for narcotics.†(Id.
at p. 365.) The court outlined the
following general rule:
“When,
in the course of initiating a search under warrant of a private residence for
illegal drugs or related items, police officers encounter on the premises a
person whose identity and connection to the premises are unknown and cannot
immediately be determined without detaining the person, the officers may
constitutionally detain him or her for the period of time required and in the
manner necessary to make those determinations and to protect the safety of all
present during the detention.… If the
person is determined not to be an occupant, further detention is proper only if
justified by other specific, articulable facts connecting him or her to the
criminal activity suspected to be occurring on the premises or establishing a
danger to the officers if the person is released.†(Glaser,
supra, 11 Cal.4th at
p. 374.)
Here, Lowe
approached an apartment where marijuana was being sold. He appeared to be in a hurry, he had $10 in
his hand, and he grabbed the doorknob of the screen door, suggesting
familiarity with the location. When Lowe
saw the police detective, he turned around and put his hands behind his back,
which, under the circumstances, could reasonably be interpreted as showing
consciousness of guilt. We conclude
these were sufficient facts to justify Lowe’s initial detention.
This case
is distinguishable from People v. Gallant
(1990) 225 Cal.App.3d 200, relied upon by Lowe.
In Gallant, police officers
executed a search warrant that authorized the search of a woman and the
single-family residence where she lived.
While the officers were at the residence, they saw the defendant, a man,
park in front of the residence, walk up to the front of the house, and knock on
the door. (Id. at p. 203.) “[T]he
police did not observe any weapons or anything else about defendant which suggested
criminality,†and “[t]here was nothing in the manner of defendant’s approach to
the door which made the police suspect him of any criminal conduct.†(Ibid.) An officer opened the door with his gun drawn
and detained the defendant. (
court concluded there were no facts connecting defendant to the house being
searched or to the criminal activity suspected at the house, and his detention
was unlawful. (Id. at pp. 208, 210-211.)
In contrast, specific facts in this case—including Lowe’s familiarity
with the apartment, the $10 in his hand, and his reaction to seeing the
police—connected Lowe to the apartment and the suspected criminal
activity. Despite his claim that he was
an “innocent bystander,†Lowe also recognizes that the facts suggest he went to
the apartment to buy marijuana, but he argues that this affirmatively
demonstrates he was not involved in the sale of marijuana. Even so, the circumstances indicate a
connection to the criminal activity occurring at the apartment, and Cantu and
Kirkland were justified in detaining Lowe to investigate.
As part of
the initial detention, the detectives were also permitted to check Lowe for
weapons. (See Terry v. Ohio (1968) 392 U.S. 1, 27; Glaser, supra, 11 Cal.4th
at pp. 363-364.) Lowe concedes
that, assuming the initial detention was warranted, a “Terry search†was also permitted.
Cantu testified that he checked Lowe for weapons and removed the item
causing a bulge in his sock. Lowe
contends that the wad of toilet paper was, in effect, a closed container, and
the detective was not allowed to open and search it because there was no
evidence indicating that Cantu believed the bulge was a weapon.
removed the item causing a bulge in Lowe’s sock, we hesitate to conclude that
it was improper to remove the item to determine whether it was dangerous. “‘The judiciary should not lightly
second-guess a police officer’s decision to perform a patdown search for officer
safety. The lives and safety of police
officers weigh heavily in the balance of competing Fourth Amendment
considerations. [Citations.]’ [Citation.]
The Fourth Amendment has never been interpreted to ‘“require that police
officers take unnecessary risks in the performance of their duties.†[Citation.]’
[Citation.]†(
1374, 1378.)
In any
event, we agree with the Attorney General that the search was reasonable under
the circumstances. When an officer lawfully
pats down a suspect’s outer clothing “and feels an object whose contour or mass
makes its identity immediately apparent†as contraband, the officer may
nevertheless lawfully remove the object.
(Minnesota v. Dickerson (1993)
508 U.S. 366, 373, 375-376.) In reaching
the determination that an object is contraband, the officer may take into
account surrounding circumstances. (
832, 836-837.) “The critical question is
not whether [the officer] could identify the object as contraband based on only
the ‘plain feel’ of the object, but whether the totality of the circumstances
made it immediately apparent to [the officer]
he first felt the lump that the object was contraband.†(Ibid.) Here, the detectives were at an apartment
where drugs were sold, people were coming up to the apartment apparently trying
to buy drugs, Lowe arrived with $10 in his hand, and when he saw a police
officer at the apartment, he turned around and put his hands behind his back. Lowe had a bulge in his sock, which the
Attorney General points out is an unusual location not commonly utilized to
carry everyday items. When asked about
the bulge, Lowe said it was nothing. We
conclude these circumstances supported Cantu’s apparent determination that the
bulge contained contraband. As a
consequence, the removal of the item was permissible, and the trial court
properly denied the motion to suppress.
(See, e.g., ibid.;
1232, 1238-1239 [motion to suppress car keys found in minor’s pocket properly
denied where circumstances included officer feeling car keys during pat-down
search after minor previously denied knowledge of them].)
II. Admission of
enhancement allegations
After the jury was sent out to
deliberate, the court asked both counsel for “a more definitive status on the
possible trial of the bifurcated issues.â€
Lowe’s attorney responded, “I discussed those issues with my
client. He, at this point, he would be
waiving jury trial and he admits to those priors.†The following discussion then occurred:
“THE
COURT: Now, you have a constitutional
right, in the event that you are found guilty of Count One in this case, you
have the constitutional right to have this very same jury decide whether it’s
true that you suffered the prior convictions that are alleged in the case. [¶] Do
you understand that?
“THE
DEFENDANT: Yeah.
“THE
COURT: Okay. Now, if you waive the right to have that jury
decide those issues, then that leaves several options. It can be submitted to me and I will decide
whether those have been proved beyond a reasonable doubt or you can admit
them. [¶] Now, as of right now I’m not going to make
you make that decision as to admitting or just submitting the matter on a court
trial. What I’m interested in right now
is, do you give up your right to have this jury decide the issue of those prior
convictions?
“THE
DEFENDANT: Yes. [¶] … [¶]
“THE
COURT: Okay. [Defense counsel], you’ve already made
comments on this issue, but at this moment do you join in the waiver of the
right to have this jury try the issue of prior convictions?
“[Defense
counsel]: I do, your Honor.
“THE
COURT: Okay. Then, the court does find a knowing,
intelligent, and voluntary waiver of the right to jury trial on the issue of
any prior convictions alleged in the Information. [¶]
Now, the next step is in the event that you are convicted of Count One
in this case the Court does need to make determinations on the issues of those
prior convictions. There are two ways
that can happen. The People can present
proof of the prior convictions in a proceeding that would, first of all,
identify you as … the subject of records that they would introduce into
evidence. I would then review those
documents and determine if you have in fact been convicted of the offenses as
stated and whether you have served prior prison terms for them. I would be the sole trier of fact. [¶]
The other option is that after you and [defense counsel] review all of
those records, if you agree that that is a true and accurate record of your
prior convictions, then you can simply admit that those are true.
“THE
DEFENDANT: All right.
“THE
COURT: Okay. Now, if you are going to have [the
prosecutor] prove those priors up as opposed to admitting them, then I’m going
to instruct [the prosecutor] to be prepared to proceed with the evidentiary
hearing on identification and then the matter can be submitted to me on the
basis of the written documents that he will admit into evidence. [¶]
How do you wish to proceed?
“THE
DEFENDANT: I’m willing to admit
them. They’re true.
“THE
COURT: You’re going to admit that
they’re true?
“THE
DEFENDANT: Yeah.
“THE
COURT: Then, let me go through those
with you now. In the event that you are
convicted, then these findings will become part of the process of this
trial. If you are found not guilty, then
these admissions have no meaning and … the record of them will be
stricken, okay.â€
The court then went through each
enhancement allegation. The information
alleged one felony “strike†conviction and two prison priors. Lowe admitted the allegations and his
attorney stipulated to the factual bases for the admissions.
Generally, before accepting a
defendant’s guilty plea, the trial court must advise a defendant and obtain
waivers of (1) the privilege against self-incrimination; (2) the
right to trial by jury; and (3) the right to confront one’s accusers
before accepting a guilty plea. (
359.) These three rights are referred to
as Boykin-Tahl rights. (See Mosby,
supra, at p. 360.) On appeal,
Lowe contends that, since he was not specifically advised of his right to
confront witnesses and his privilege against self-incrimination, his admissions
must be set aside. We conclude that,
under the totality of the circumstances, Lowe voluntarily and intelligently
admitted the enhancement allegations.
In
defendant guilty of selling cocaine, he was told that he had the right to a
jury trial on the allegation that he had a prior conviction. The defendant waived that right and admitted
the truth of the allegations. On appeal,
the defendant argued that the trial court committed reversible error by not
advising him of his rights to remain silent and to confront witnesses. “The Court of Appeal disagreed, stating: ‘It would exalt a formula (
the formula is supposed to serve (that the plea is intelligent and voluntary)
to suggest that a defendant, who has just finished a contested jury trial, is
nonetheless unaware that he is surrendering the protections of such a trial’
when after being advised of the right to a trial on an alleged prior conviction
the defendant waives trial and admits the prior.†(Ibid.) Our Supreme Court agreed with the Court of
Appeal, observing that, during the trial, the defendant had exercised his right
to remain silent and, through counsel, had confronted witnesses. (Ibid.) Under the totality of the circumstances, it
was not error to conclude that the defendant voluntarily and intelligently
admitted his prior conviction despite being advised of and having waived only
his right to a jury trial. (
Likewise in
this case, Lowe had just undergone a jury trial, at which he did not testify
and his attorney cross-examined witnesses.
Lowe points out that there is no evidence in the record that he had
entered a guilty plea in the past. He
did, however, have extensive previous experience with the criminal justice
system. (See People v. Mosby, supra,
33 Cal.4th at p. 365 [prior experience with criminal justice system
relevant to whether defendant knowingly waived constitutional rights].) Under the totality of the circumstances, we
conclude Lowe voluntarily and intelligently admitted his prior convictions and
prison terms.
III. Alleged judicial plea
bargain
This case was assigned to Judge Vogt
the day before the jury trial began.
Prior to deciding pretrial motions, Judge Vogt asked both counsel
whether there had been previous settlement negotiations in front of other
judges. The deputy district attorney
stated that it was his understanding that Lowe “was offered 28 months by Judge
Conklin when Judge Conklin had jurisdiction over the matter†and later, “Judge
Tharpe renewed that 28-month offer, which the defendant turned
down .…†The deputy district
attorney then told the court, “I do not have an offer for the defendant today.†Judge Vogt asked how the 28-month sentence
was calculated, and Lowe’s attorney explained that he was “pretty positive†it
was a “16-month mitigated term plus one prison prior [one year] and the strike
being Romeroed.â€
Lowe’s attorney then asked for a
treatment program and a stayed sentence.
The deputy district attorney responded that this was a prison case,
given Lowe’s criminal history and “the sheer number of violations of
parole.†Lowe’s attorney next asked the
court, “Is there a possibility then that we can get the previous indicated back
so that I can discuss that with my client to see maybe if he changes his mind
because at trial, of course, clients do get nervous when they face the
reality?â€
The court responded:
“Well,
I understand that. But I happened to
look through the minute orders and I think based on the consistency of the
offer from Judge Conklin through Judge Tharpe in light of the facts of this
case that does appear to this court to be something that I could in fact honor
without reservation. Those judges,
obviously factored in all of the relevant issues that would apply to a
sentencing determination here, so at this time, [deputy district attorney], I
am inclined to put that indicated back on the table before we bring a jury up,
before you call witnesses.â€
The deputy district attorney disagreed
with the court’s assessment of the case.
The court then addressed both counsel:
“I will go ahead and renew that 28-month offer that was extended by
Judge Conklin originally.… I’m not going
to in any way undercut it, but if that’s the last offer that was made by both
judges, I’ll leave it on the table for a little while longer.â€
After Lowe spoke with his attorney
during a recess, the court asked about “the last offer that was—or indicated
that was put there by the Court.†Lowe’s
attorney stated that Lowe had “decided to reject the offer or
indicated .…†The case went to
trial and Lowe was subsequently sentenced to 32 months in prison.
On appeal, Lowe claims that the case
must be remanded so that a sentence of no more than 28 months is imposed. It appears that Lowe’s argument is that the
trial court engaged in improper plea bargaining by offering to sentence Lowe to
28 months if he were to plead guilty.
Lowe contends that he “was improperly punished for rejecting the court’s
offer and for exercising his right to proceed to trial.†We reject Lowe’s claim.
A trial court may properly indicate
what sentence would be imposed if a given set of facts is confirmed, but it may
not engage in plea bargaining over prosecutorial objection. (People
v. Clancey (2013) 56 Cal.4th 562, 570.)
Our Supreme Court recently discussed the difference between proffering
an appropriate indicated sentence and engaging in improper judicial plea
bargaining. In Clancey, supra, 56
Cal.4th 562, the court explained, “‘[A] court may not offer any inducement in
return for a plea of guilty or nolo contendere.
It may not treat a defendant more leniently because he foregoes his
right to trial or more harshly because he exercises that right.’ [Citations.].†(Id.
at p. 575.) Instead, “the indicated
sentence must be the same punishment the court would be prepared to impose if
the defendant were convicted at trial.â€
(Ibid.)
Lowe seems to believe he is entitled
to a sentence no greater than the indicated sentence proffered by Judge Vogt
before trial. An indicated sentence,
however, is not a promise from the
court. (People v. Clancey, supra,
56 Cal.4th at p. 575.) By
indicating a sentence, “the court has merely disclosed to the parties at an
early stage—and to the extent possible—what the court views,
appropriate sentence so that each party may make an informed decision.†(Ibid.,
italics added.) After trial and with the
benefit of the probation report and any other submissions from the parties, the
court was under no obligation to impose the sentence it had indicated before
trial.
We agree with the Attorney General
that Lowe’s claim the trial court “punished†him for choosing to go to trial is
mere speculation. Lowe cites nothing in
the record to suggest the trial court intended to punish him for choosing to go
to trial, and our own review of the record reveals that the court sentenced
Lowe based on a careful review of the facts of the case.
Consequently, we reject Lowe’s claim that the case must be remanded for
resentencing.
IV. Presentence conduct
credit
Section 4019, which governs the
rate at which defendants can earn presentence conduct credit while they are in
local custody, has been changed legislatively many times in the recent
past. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549.) Section 4019, subdivision (f),
currently provides that prisoners receive four days’ credit for every two days
spent in actual custody. This statute
expressly provides that it applies prospectively to prisoners whose crimes were
committed on or after October 1, 2011.
(§ 4019, subd. (h).)
Lowe committed his crime on April 29, 2010. Nonetheless, he argues that, based on
equal-protection principles, he is entitled to presentence conduct credit under
the current statute.
After the parties filed their
opening briefs in this appeal, our Supreme Court rejected a similar argument,
holding that applying an earlier version of section 4019 prospectively did
not violate the equal-protection clause of either the state or federal
Constitution. (People v. Brown (2012) 54 Cal.4th 314, 328-330.) Since then, we addressed Lowe’s exact
argument. In People v. Ellis, supra, 207 Cal.App.4th at page 1552, we
concluded: “We can find no reason
respect to the January 25, 2010, amendment should not apply with equal
force to the October 1, 2011, amendment.
[Citation.] Accordingly, we reject
defendant’s claim he is entitled to earn conduct credits at the enhanced rate
provided by current section 4019 for the entire period of his presentence
incarceration.†Given our conclusion in
entitled to additional presentence conduct credit is without merit.
IV. Abstract of judgment
Finally, Lowe points out that the
box for section 2933.1 is marked on the abstract of judgment. The parties agree that this is incorrect
because section 2933.1 does not apply.
Rather, section 4019 governs the local conduct credit calculation
in this case. We order the court to
correct the error.
DISPOSITION
The
superior court shall modify the abstract of judgment to reflect that
section 4019 applies to this case, not section 2933.1. The superior court shall forward the amended
abstract to the appropriate prison authorities.
The judgment otherwise is affirmed.
_____________________
Wiseman, Acting P.J.
WE CONCUR:
_____________________
Levy, J.
_____________________
Detjen, J.
name="_ftn1" title=""> [1]
v. Arizona (1966) 384 U.S.
436.
name="_ftn2" title=""> [2]Subsequent statutory references are to the
Penal Code.
