P. v. Meyers
Filed 3/7/13 P. v. Meyers CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LOUIS
MEYERS,
Defendant and Appellant.
A132787
(San
Francisco County
Super. Ct. No. 212059)
Defendant
Louis Meyers was convicted of attempted
grand theft and sentenced to five years in state prison. On appeal, he contends that the trial court
denied his right to make a personal statement in mitigation at sentencing. He also contends that he is entitled to
additional presentence conduct credits, based either on the law in effect when
he was sentenced, or the retroactive application of the current conduct credit
scheme. We agree Meyers is entitled to
additional conduct credits. In all other
respects, however, we affirm the judgment.
I. BACKGROUND
On
February 14, 2010, Meyers
walked into a bar in San Francisco
where the owner was counting the receipts from the previous night. Meyers grabbed some of the money. The bar owner tried to stop him and a
struggle ensued. Meyers eventually
dropped or threw down the money and left the bar empty-handed. The police, responding to a 911 call,
apprehended Meyers.
The
district attorney charged Meyers with attempted second degree robbery (Pen.
Code, §§ 664, 211).
name="_ftnref1" title="">[1] The information alleged two prior serious
felony strike convictions (§§ 667, subds. (d), (e); 1170.12, subds. (b),
(c)) and nine prior felony convictions for which Meyers had served prison terms
(§ 667.5, subd. (b)).
A
jury found Meyers guilty of the lesser included offense of attempted grand
theft (§§ 664, 487). Regarding the
prior conviction allegations, the
parties entered into a stipulation whereby the district attorney agreed to
dismiss one of the strike allegations, and Meyers agreed to admit all of the
remaining prior conviction allegations, including one strike. The court then sentenced Meyers to five years
in prison by imposing the middle term (one year) for the attempted grand theft
conviction, doubling it based on the prior strike conviction, and adding three
one-year enhancements for three of the prior prison term felonies. The court dismissed the remaining prior
prison term enhancements.
The
trial court awarded Meyers 111 days of local (presentence) conduct credits
based on Meyers’s actual custody time of 503 days. In calculating the conduct credits, the court
explained “he has to serve 80 percent because it’s a strike.â€
II. DISCUSSION
A. Right to Make Personal Statement in
Mitigation
Meyers
correctly contends he has a right to make a sworn personal statement in
mitigation of punishment. (See
598-599; see also § 1204.) Contrary
to Meyers’s argument, however, the record reveals he was afforded that right.
Meyers
and his counsel appeared in court on May 20, 2011, after the jury verdict and
after he had admitted the priors. The
court indicated it was prepared to sentence Meyers, but ultimately only decided
Meyers’s motion to dismiss the remaining strike pursuant to section 1385 (
497). Defense counsel proposed to have
Meyers sworn in to testify in connection with the Romero motion. Counsel made
the following offer of proof: Meyers
would explain “his prior actions†and why he “does these things and repeats
these things.†The court declined to
hear the testimony and, after considering the parties’ arguments, denied the
The
court sentenced Meyers on July 1, 2011.
Before the court pronounced sentence, Meyers made a brief unsworn
statement in which he apologized, and asked for a sentence of probation with
credit for time served. (See
at p. 599 [defendant may make brief unsworn statement urging lesser punishment
with parties’ consent].) Neither he nor
his attorney made a request to provide further testimony regarding mitigation.
The
record thus shows the court allowed Meyers to make a statement in mitigation,
and that Meyers was not denied an opportunity to present formal, sworn
testimony when he was sentenced. Meyers
does not cite any authority requiring a trial court to hear testimony in
connection with a Romero motion. We agree with respondent that the court had
discretion to hear testimony and, given the offer of proof, reasonably declined
to hear Meyers’s testimony on the Romero motion.
B. Presentence Conduct Credits
1. Award of Conduct Credits Based
on Date of Offense
Meyers
argued in his opening brief that he was entitled to receive presentence conduct
credits based on the version of section 4019 in effect on the date he was
sentenced. According to Meyers, the law
at that time provided for conduct credits at a rate of two days for every four
days served in custody. (Former
§ 4019, subd. (f); stats. 2010, ch. 426, § 2.) Respondent replied that conduct credits
should be calculated based on the version of section 4019 in effect when Meyers
committed his crime, but that Meyers would not be entitled to any more credits
under either version. Respondent,
however, did not explain how the trial court came to award 111 days of conduct
credits under either version of section 4019.
Based
on our review of the record and the law, the trial court’s calculation appears
incorrect under any of the possible scenarios for awarding presentence conduct
credits. As best as we can tell, the
trial court believed Meyers was limited to earning presentence conduct credits
at a rate of 20 percent of actual custody time because he was being sentenced
under the Three Strikes Law. That law,
however, limits prison conduct
credits, not presentence credits, to 20 percent of custody time. (§ 667, subd. (c)(5).)
Because
neither Meyers nor respondent identified the trial court’s error or otherwise
appeared to have used the correct analysis, we requested supplemental briefing
on how the trial court calculated Meyers’s conduct credits. Respondent replies by simply stating that the
trial court reached its result by using “the twenty percent formula.†As to whether that formula was correct (or
even an option), respondent suggests, in a footnote, that Meyers “may in fact
only be entitled to accrue conduct credit at fifteen percent†pursuant to
section 2933.1.
In
his supplemental reply, Meyers continues to argue he is entitled to two days of
conduct credit for every four days served (six days of total credit for every
four days spent in actual custody), but now he relies on the version of section
4019 in effect at the time he committed his offense. Meyers also claims that respondent’s
suggestion that section 2933.1 might apply in his case is wrong. That section limits conduct credits to
15 percent when the current conviction is one of the violent felonies
listed in section 667.5, subdivision (c).
Meyers’s crime, attempted grand theft, is not on that list.
Based
on the supplemental briefing and before reaching Meyers’s equal protection
contention, post, it now appears both
sides agree Meyers’s conduct credits should be calculated based on the law in
effect at the time he committed his crime.
(See People v. Brown (2012) 54
Cal.4th 314, 322-323 (Brown).)
section 4019 (S.B. No. 18), Meyers was therefore entitled to two days of
conduct credit for each four-day period served, or as summarized in subdivision
(f): “[A] term of six days will be
deemed to have been served for every four days spent in actual custody for
persons described in paragraph (2) of subdivision (b) or (c).â€
By
Meyers’s calculation, he was entitled to 250 days of conduct credits (503
actual days served divided by 4 equals 125 sets of four days, multiplied by 2
equals 250 days of conduct credits). We
agree.
2. Equal Protection
The
Legislature amended section 4019 again, effective after Meyers was
sentenced. Meyers contends he is
entitled under equal protection principles to the more generous credit
provisions of this amended version.
As
part of the 2011 Realignment Legislation (Stats. 2011, ch. 15, § 1), the
Legislature amended section 4019 to once again provide the possibility of
day-for-day presentence conduct credits.
The amended (and current) version of section 4019 provides: “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 two days spent in actual custody.†(Id.,
subd. (f).) Pertinent to Meyers, nothing
in section 4019 (or section 2933) limits or reduces presentence custody credits
for persons with a prior serious felony conviction. This new scheme, however, expressly applies
only to persons convicted of crimes committed on or after October 1, 2011. (Id.,
subd. (h).)
title="">[4]
Meyers
argues his presentence conduct credits should be calculated under the current
version section 4019, even though his crime was committed before
October 1, 2011. He asserts that
when the Legislature enacts a more generous credit scheme, it must be
retroactively applied to all prison inmates “by virtue of the equal protection
clauses of the state and federal Constitutions.â€
The
Supreme Court’s decision in Brown, supra,
54 Cal.4th 314 forecloses Meyers’s argument.
Although the equal protection claim in Brown involved the version of section 4019 effective January 25,
2010 (S.B. No. 18), the same principles apply when considering the section’s
more recent amendments. (See
896, 906, fn. 9.)
The
first prerequisite to a meritorious equal protection claim is a showing that
persons are similarly situated for purposes of the law challenged. (Brown,
supra, 54 Cal.4th at p. 328.)
Prisoners who served local custody time before and after October 1,
2011, however, are not similarly situated.
“[T]he 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.†(Id.
at pp. 328-329.)
In
Brown, the Supreme Court
distinguished the very same cases (People
v. Sage (1980) 26 Cal.3d 498; In re
Kapperman (1974) 11 Cal.3d 542) Meyers relies on to support his equal
protection challenge. (
329-330.) Following Brown, the appellate courts of this state have rejected the
contention that equal protection principles require the retroactive application
of the version of section 4019 effective October 1, 2011. (People
v. Kennedy (2012) 209 Cal.App.4th 385, 396-397; People v. Ellis (2012) 207 Cal.App.4th 1546, 1551-1552; see also
991, 995-997 [finding prisoners who committed their crimes before and after
October 1, 2011, similarly situated but also finding a rational basis for their
unequal treatment].) We therefore reject
Meyers’s equal protection challenge.
III. DISPOSITION
The
judgment is modified to grant Meyers credit for 503 days in presentence custody
and 250 days of conduct credit for a total credit of 753 days. The judgment is affirmed all other respects. The superior court shall prepare an amended
abstract of judgment and deliver a copy to the
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
Penal Code.
The version of section 4019 in effect at that time (stats. 2009, 3rd Ex.Sess.
2009-2010, ch. 28, § 62, hereafter S.B. No. 18), provided the
possibility of day-for-day credits.
(Former § 4019, subds. (b)(1), (c)(1), (f).) Meyers, however, was not eligible for
day-for-day credits based on his prior serious felony conviction for robbery
(not second degree burglary as Meyers states in his supplemental brief).
