P. v. Mehari
Filed 6/28/12 P. v. Mehari CA1/1
TO BE PUBLISHED IN 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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff
and Respondent,
v.
MERHAWI Y. MEHARI,
Defendant
and Appellant.
A132150
(Contra Costa County
Super. Ct. No.
5-110278-9)
INTRODUCTION
Defendant
Merhawi Y. Mehari, driving a stolen car, led police on a chase through Walnut Creek
before crashing into a fence. A jury
convicted him of unlawfully taking or
driving a vehicle and evading an officer. (Veh. Code, §§ 10851, 2800.1.) He was sentenced to prison for eight years,
with presentence credit of 199 days.
Prior to trial, defendant asked for
a translator. The trial court denied the
request. On appeal, defendant argues
that reversal is required because the trial court erroneously denied his
request for the assistance of an interpreter without making an adequate
inquiry. He also argues he is entitled
to additional conduct credits under the current version of Penal Code section
4019
as a matter of equal protection. We affirm the judgment, because the record
does not affirmatively demonstrate defendant needed an interpreter, and a
rational basis supports the prospective application of section 4019 for
awarding credits.
FACTUAL
AND PROCEDURAL BACKGROUND
On
the morning of January 7, 2011, a resident
of the city of Alameda
went outside to defrost the windows of her tan-colored 1999 Mazda Protegé. Leaving the vehicle running and the doors
unlocked, she went back inside her home.
When she went back outside, she saw a tall, slender, black man wearing a
black “hoodie” jacket and latex gloves driving away in her car.
The next morning, a Walnut Creek
police officer on uniformed patrol spotted the stolen car. When backup arrived, the officer activated
his lights and sirens. Defendant, the driver
of the Mazda Protegé, accelerated away from the police cars at 40 miles per
hour and led the officers on a chase through city streets and a parking
lot. He eventually crashed into a fence
and was arrested by police. Defendant
was wearing white latex gloves. Police
found a hooded jacket in the car.
Defendant was tried in
County Superior Court on charges of unlawfully driving or taking a vehicle
(count 1, Veh. Code, § 10851), a felony, and evading an officer (count 2,
Veh. Code, § 2800.1), a misdemeanor.
He was also charged with and tried on a “strike” prior conviction and
service of two prior prison terms. (Pen.
Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) On April 22, 2011, a jury
found defendant guilty as charged.
Following a bifurcated trial on the prior convictions, the jury also
found true the prior conviction allegations.
On May 20, 2011, defendant was sentenced to a prison term of eight years
comprised of the upper term of three years for count one, doubled pursuant to
the three strikes law, and one year to be served consecutively for each of the
prior prison terms. The trial court
awarded defendant a total of 199 days of presentence credit: 133 days of actual local time and 66 days of
local conduct credits.
DISCUSSION
I. Defendant Was Not Deprived Of The Right To An
Interpreter.
Defendant
asserts he was denied his federal and state
effective assistance of counsel, and an interpreter when the trial court denied
his request for a translator without holding an adequate hearing. As we explain below, no abuse of discretion
appears, but even assuming the court’s inquiry was too perfunctory, in our
view, any error was harmless beyond a reasonable doubt. (People
v. Rodriguez (1986) 42 Cal.3d 1005, 1012 (Rodriguez).)
On April 21, 2011,
the fourth day of trial, defense counsel
informed the court there were some objections defendant wanted her to state on
the record. First, he wanted her to
inform the court “that he was highly offended with the Court informing the jury
that he was in custody and shackled and wanted me to lodge an objection as to
that comment made by the Court. He feels
that was highly prejudicial and has probably affected his case at this
point.” Next, he wanted her to object to
herself “for calling him a black man yesterday when I was doing my voir dire
and when I asked the jury if any of them had any racial prejudice against Mr.
Mehari. And he wanted me to state that
he’s a human being, he’s of no color and does not want me to refer to him in
that fashion.” Lastly, defendant wanted
to alert the court that “as far as he knows, [the court] has not corrected the
fact that he’s charged with only one felony and one misdemeanor, and at this
point he feels the jury still believes it’s . . . two felonies.” Defense
counsel also explained to the court that she had informed defendant that if
the jury were to convict him, he would have three choices about how to deal
with his prior convictions: he could
have a jury trial, a court trial, or admit the prior convictions. She informed the court that defendant chose
to have a jury trial.
The court asked defendant if he had
any other concerns besides those voiced by his counsel. Defendant responded, “Yes. Some of this stuff I really
couldn’t―some of the stuff that I heard I really couldn’t understand it,
because English is like my third language, so it had to be said, like, in
something that’s more, like easy for me to understand. Like, she said some of the words that I just
couldn’t even remember, some of them. . . .
[¶] Or maybe you could bring me a translator.”
In response, the court reviewed the
court file, noting that defendant had made several other appearances “[a]nd
there’s absolutely no indication that he doesn’t understand the English
language.” The court also recalled that
at the preliminary hearing, “there wasn’t any indication from the police
officers that they had to use an interpreter in talking to Mr. Mehari after he
was arrested or that there was any difficulty understanding. [¶] So, that is the record with respect
to your claim that you don’t understand what’s going on.” The court then addressed defendant’s other
stated concerns about the jury learning he was shackled and in custody, and
defense counsel’s reference to him as a black man. At the conclusion of the court’s comments,
defendant stated, “I couldn’t even understand some of the things you just told
me right now.” The court responded, “I
don’t believe you. . . .
[T]he record should reflect I do not believe the defendant when he says
he does not understand English.”
The California Constitution
guarantees that every “person unable to understand English who is charged with
a crime has a right to an interpreter throughout
the proceedings.” (Cal.
Const., art. 1, § 14; People v. Aguilar (1984) 35 Cal.3d 785, 790 (Aguilar);
People v. Menchaca (1983) 146 Cal.App.3d 1019, 1023.) The burden of demonstrating inability to
speak English is on the defendant, who must affirmatively show that his or her
“understanding of English is not sufficient to allow him to understand the
nature of the proceedings and to intelligently participate in his
defense.” (In re Raymundo B.
(1988) 203 Cal.App.3d 1447, 1454 (Raymundo B.).) We review for abuse of discretion the trial
court’s determination of whether an accused’s comprehension of English is so
minimal as to render the services of an interpreter necessary. (People v. Carreon (1984) 151
Cal.App.3d 559, 566–567.) Factors
relevant to this determination include the defendant’s request for an interpreter,
whether one has previously been provided, and the defendant’s birthplace,
community, level of education in the United States,
and employment
785, 789, fn. 4; Raymundo B., supra, 203 Cal.App.3d at p. 1455.)
Here, the record before the trial
court supports its conclusion that defendant’s comprehension of English was not
minimal. He evidently understood what
was being said during voir dire well enough to complain to his attorney about
the fact that she had referred to him as a black man, and that the court had
informed the jury of his custodial status and shackling, and that the court had
not corrected the jury’s misconception that he was charged with two
felonies. The evidence adduced at the
defendant did not need an interpreter to understand, or be understood by, the
police. Although he had appeared in
court several times before, he had never requested an interpreter, or complained
of any inability to communicate with his counsel. On this record, the court did not err in
finding that defendant did not need an interpreter.
However, assuming arguendo the court
erred in failing to conduct a more in-depth inquiry into defendant’s linguistic
background, we “review the record as a whole to determine whether we can
ascertain that any error was harmless beyond a reasonable doubt.” (Rodriguez,
supra, 42 Cal.3d at p. 1013.)
name="_ftnref2" title="">[2] Defendant informed the probation officer that
he was born in Eritrea
and emigrated to the United States
with his family in 1990 (when he was 9 years old). He “attended Longfellow Elementary and Chipman Middle schools,
Encinal High
School and Alameda High School
in Alameda
and graduated from the latter. He said
he attended Alameda College
for a short time and was accepted to Sacramento State
on a basketball scholarship. However, he
failed to take advantage of it. . . .
[¶] [H]e indicated he did well in high school.” He also reported that “he has had stints of
employment with Burger King, Nations, Togo’s,
GNC, Alameda Book Store and Plaid Pantry Grocery.”
also shared with the probation officer facts about his upbringing, substance
abuse issues, prior juvenile record, marital status, military record, and
financial status, without an interpreter.
In short, the record below is devoid of any evidence that defendant’s
mastery of English was so minimal that he required the assistance of an
interpreter. Any deficiency in the trial
court’s inquiry was manifestly harmless beyond a reasonable doubt.
Entitled To Additional Conduct Credits Under the Amended Version of Section
4019.
The
trial court awarded defendant 133 days of custody credit and 66 days of conduct
credit for the time he spent in county jail prior to sentencing. The offenses of which defendant was convicted
were committed in January of 2011. He
was sentenced on May 20, 2011. Defendant argues that he is entitled to an
award of 67 additional conduct credits, because the October
1, 2011 amended version of section 4019, if applied prospective only, violates
equal protection of the laws. He relies
on In re Kapperman (1974) 11 Cal.3d
542 (Kapperman), in which our Supreme
Court held that the prospective application of section 2900.5 violated equal
protection.
title="">[3] Defendant argues that, as in
here for section 4019’s distinction between defendants whose offenses were
committed before the effective date of the statute, and those whose offenses were
committed after that date. As we
recently explained in People v. Borg
(2012) 204 Cal.App.4th 1528 (Borg),
the prospective application of section 4019 does not violate equal protection.
“Before
January 25, 2010, section 4019 provided that if a defendant earned all
available presentence conduct credits, six days would be deemed to have been
served for every four days spent in actual custody. (Former § 4019, subd. (f); Stats. 1982,
ch. 1234, § 7, pp. 4553–4554.) [¶] Effective January 25, 2010, the Legislature amended
section 4019 to increase the number of presentence conduct credits available to
eligible defendants. (Stats. 2009, 3d
Ex. Sess. 2009–2010, ch. 28, § 50.)
Under the amended version of the law, a defendant earned credits at
twice the previous rate, that is, four days of presentence credit for every two
days of custody. (Former § 4019,
subd. (f); Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) However, defendants who were required to
register as sex offenders, who were incarcerated for commission of a serious
felony, or who had suffered a prior conviction for a serious or violent felony,
as defined in sections 667.5 and 1192.7, were ineligible for the enhanced
credits and continued to accrue credits at the previously applicable rate. (Former § 4019, subds. (b)(2) &
(c)(2).) [¶] The Legislature again
amended section 4019 in 2010 and 2011.
(See Stats. 2010, ch. 426, § 2; Stats. 2011, ch. 15, § 482;
Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 35.)” (Borg,
supra, 204 Cal.App.4th at pp. 1536–1537.)
As of
October 1, 2011, section 4019 deems “a term of four days . . . to have been
served for every two days spent in actual custody” . . . “[w]hen a
prisoner is confined in a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp as a result of a sentence imposed pursuant
to subdivision (h) of Section 1170.”
(Pen. Code, § 4019, subds. (a)(6),
(f).) This is a more generous formula than
the one applicable under prior versions of the statute to prisoners, like
defendant, who were excluded from earning enhanced credit because of their
criminal histories. The current version
eliminates the exclusion. However, the
current amendment was expressly made prospective only
states that “[a]ny days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.” Defendant contends the distinction drawn by
the current statute violates his right to equal protection of the laws. To remedy the constitutional infirmity,
defendant argues, the current amendments to the statute should be applied
retroactively, thereby entitling him to additional credits for the entire
period of time he served in county jail prior to his sentencing on May 20, 2011.
“ ‘ “Guarantees of equal protection embodied in
the Fourteenth Amendment of the United
States Constitution and article I, section 7 of the California Constitution
prohibit the state from arbitrarily discriminating among persons subject to its
jurisdiction. . . .”
[Citation.]’ . . .
[¶] ‘ “The equality guaranteed by the equal protection clauses
of the federal and state Constitutions is equality under the same conditions,
and among persons similarly situated.
The Legislature may make reasonable classifications of persons and other
activities, provided the classifications are based upon some legitimate object
to be accomplished.” [Citation.]’ [Citation.]”
(Borg, supra, 204 Cal.App.4th
at pp. 1536–1537.)
“ ‘ “ ‘The first prerequisite to a
protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated
groups in an unequal manner.’ ”
[Citations.] . . .’
[Citation.]” (
1537.) “The ‘similarly situated’
prerequisite simply means that an equal protection claim cannot succeed, and
does not require further analysis, unless there is some showing that the two
groups are sufficiently similar with respect to the purpose of the law in
question that some level of scrutiny is required in order to determine whether
the distinction is justified.” (People
v. Nguyen (1997) 54 Cal.App.4th 705, 714; Borg, supra, at p. 1537.)
We
agree with defendant that he is similarly situated with persons whose offenses
were committed after October 1, 2011 with respect to the award of conduct
credits under section 4019. Those
defendants who committed the same offenses or earned conduct credits before the
operative date of the statute are treated more harshly than those who committed
the same crimes or earned their credits on or after October 1, 2011. “[T]he two groups are similarly situated in the sense that they committed the same
offenses, but are treated differently in terms of earning conduct credits based
entirely on the dates their crimes were committed and their credits were
earned. In terms of receiving additional
conduct credit, nothing distinguishes the status of a prisoner whose crime was
committed after October 1, 2011, from one whose crime was committed before that
date. This satisfied the first
prerequisite for a meritorious claim under the equal protection clause, a
classification that affects two similarly situated groups in an unequal
manner. [Citation].” (Borg,
supra, 204 Cal.App.4th at p. 1538.)
We
also agree with the parties the rational basis test is the proper standard of
review for scrutinizing the legislative
action in this case. “Legislation
that creates sentencing disparity or alters the treatment of custody credits
for inmates does not affect a fundamental right, and thus satisfies the
requirements of equal protection ‘if it bears a rational relationship to a
legitimate state purpose.’
[Citations.]” (
1538.) “ ‘ “ ‘[A]
statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against equal protection
challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification. [Citations.] Where there are “plausible reasons” for [the
classification], “our inquiry is at an end.” ’ ” ’ ” (People
v. Hofsheier (2006) 37 Cal.4th 1185, 1200−1201; see also
“We
look to the purposes of the 2011 amendments to section 4019 to evaluate the
rational basis for the legislative classification. The presentence custody credit scheme of
section 4019 is generally focused on encouraging ‘ “minimal cooperation
and good behavior by persons temporarily detained in local custody before they
are convicted, sentenced, and committed on felony
charges. . . .” [Citations.]’ [T]he 2011 amendments to section 4019 were
enacted for a decidedly different purpose:
as part of legislation to address the state’s fiscal emergency by
effectuating an earlier release of a defined class of prisoners, thereby
relieving the state of the cost of their continued incarceration and
alleviating overcrowding in county jail facilities. (See Assem. Bill
No. 17X (2011–2012 1st Ex. Sess.); Stats.
2011, 1st Ex. Sess. 2011–2012, ch. 12, § 35; Legis. Counsel’s Dig., Assem.
Bill No. 109 (2011–2012 Reg. Sess.); Legis. Counsel’s Dig., Assem. Bill No. 109
(2011–2012 Reg. Sess.).)” (
1538.)
Here, as in Borg, the defendant posits “there is no rational basis” for “precluding
a retroactive application of the more generous formula of conduct credits to
some prisoners, based only on the dates their crimes were committed or credits
were earned, [however], we perceive a legitimate reason for limiting the
extension of credits. The Legislature
may have decided that the nature and scope of the fiscal emergency required
granting additional credits to the specified classes of prisoners previously
denied them―those who must register as sex offenders, or committed
serious felonies, or had suffered a prior conviction for a serious or violent
felony―only after the effective date of the amendments. That basis for the legislation is
substantiated by the explicit articulation in subdivision (h) of section 4019
of a prospective application of the statutory amendments. Reducing prison populations by granting a
prospective-only increase in conduct credits strikes a proper, rational balance
between the state’s fiscal concerns and its public safety interests.” (Borg,
supra, 204 Cal.App.4th at p. 1539.)
“ ‘ “The
decision of how long a particular term of punishment should be is left properly
to the Legislature. The Legislature is
responsible for determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others. As long as the Legislature acts rationally,
such determinations should not be disturbed.”
[Citation.]’ [Citations.]” (Borg,
supra, 204 Cal.App.4th at p. 1539.)
The California Supreme Court has rejected the claim that an equal
protection violation arises out of the timing of the effective date of a
statute that ameliorates the punishment for a particular offense. (People
v. Floyd (2003) 31 Cal.4th 179, 188.)
“ ‘ “ ‘ “The Legislature properly may specify that
such statutes are prospective only, to assure that penal laws will maintain
their desired deterrent effect by carrying out the original prescribed
punishment as written.”
[Citations.]’ ” ’ ”
(Borg, supra, at p. 1539.)
We
conclude that a rational basis exists for the timing and prospective
application of the effective date of the 2011 amendments to section 4019, which
lessened punishment by expanding the class of prisoners who receive increased
conduct credits. The prospective
application of the statute does not violate equal
protection principles.
CONCLUSION
On
the record before it, the trial court did not abuse its discretion in denying
defendant’s request for a translator. If
the court erred in failing to conduct a more in-depth inquiry of defendant’s
linguistic background, any error was harmless beyond a reasonable doubt. The prospective application of section 4019
does not violate equal protection principles.
DISPOSITION
The
judgment is affirmed.
______________________
Marchiano, P.J.
We concur:
______________________
Margulies, J.
______________________
Banke, J.
People v. Mehari, A132150
name="_ftn1" title=""> [1]
Unless otherwise indicated, all further statutory references are to the Penal
Code.
name="_ftn2" title=""> [2]
Defendant acknowledges that in Rodriguez
our Supreme Court held that Aguilar
error is not reversible per se, but rather is subject to harmless error
analysis. However, he maintains that “
beyond a reasonable doubt standard in the instant case. Instead, the prejudicial per se standard
should be applied.” We disagree. Rodriguez
is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
