P. v. Moore

 

 

 

 

 

 

 

 

Filed 9/18/13 
P. v. Moore CA5

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   KEITH ANTHONY MOORE,   Defendant and Appellant.

F064794   (Super. Ct. No. BF134548A)   >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kern County.  Michael B. Lewis, Judge.

            Julia J.
Spikes, 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, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

 

-ooOoo-

Defendant, Keith Anthony Moore,
challenges the total amount of conduct credits that he was awarded for time
spent in county jail prior to commencement of his prison sentence.  Defendant asserts that changes to Penal Code
section 4019href="#_ftn2" name="_ftnref2"
title="">[1]
permitting additional custody credits which occurred after his offense and
while he was in local custody should apply to him and failure to do so violates
the equal protection clauses of the Constitutions of California and the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States. We find no error and affirm the trial court’s judgment.

>FACTUAL AND PROCEDURAL BACKGROUND

            Defendant
was charged in an information filed on February 1, 2011, with corporal injury
to his child’s parent, a felony (§ 273.5, subd. (a), count 1), feloniously
making a criminal threat (§ 422, count 2), and felony evasion of a peace
officer (Veh. Code, § 2800.2, count 3). 
The information further alleged two prior serious felony convictions
within the meaning of the three strikes law and a prior prison term
enhancement.  The offenses allegedly
occurred on November 13, 2010. 

On January 13, 2012, defendant
entered into a plea agreement and
executed a felony advisement of rights, waiver, and plea form.  In the plea form and at the change of plea
hearing, defendant acknowledged the consequences of his plea, waived his rights
under Boykin/Tahl,href="#_ftn3" name="_ftnref3"
title="">[2]> and plead no contest to count 3, and
admitted the two prior serious felony allegations.  The prosecutor agreed to dismiss the
remaining allegations in exchange for a stipulated prison sentence of six
years.  The court exercised its discretion
under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 to strike one of the prior serious felony
allegations. 

Defendant was arrested and remained
in custody until he was sentenced on March 1, 2012.  The court sentenced defendant to the upper
term of three years, which was doubled to six years pursuant to the three
strikes law.  The court further imposed
various fines, fees, and penalties. 
Pursuant to section 4019, in effect at the time of his arrest, defendant
was given presentence custody credits of 459 days and conduct credits at the
rate of two days for every four days of actual confinement, or 228 days.href="#_ftn4" name="_ftnref4" title="">[3]  Defendant received total custody credits of
687 days. 

On appeal, defendant contends the
current version of section 4019, properly interpreted, entitles him to two days
of presentence conduct credits for every two-day period of confinement and to
interpret it otherwise violates his equal protection rights.

>DISCUSSION

>Statutory
Construction

            The
interpretation of a statute and the determination of its constitutionality are
questions of law.  In analyzing these
questions appellate courts apply a de novo standard of review.  (Valov
v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1120.)

            Section
4019 governs credit to be given to a defendant convicted of a felony for time
spent in county jail “from the date of arrest to the date on which the serving
of the sentence commences .…”  (§ 4019,
subd. (a)(1).)  Prior to January 25,
2010, presentence conduct credits under section 4019 accrued at a rate of two
days for every four days of actual time served in presentence custody.  (People v. Kennedy (2012) 209 Cal.App.4th 385, 395 (>Kennedy); Stats. 1982, ch. 1234, § 7, p.
4554 [former § 4019, subd. (f)].) 
An amendment effective from January 25, 2010, to September 28, 2010,
increased the rate, so that custody credits accrued at a rate of two days of
credit for every two days actually served.href="#_ftn5" name="_ftnref5" title="">[4]  (>Kennedy, supra, 209 Cal.App.4th at p.
395; Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, §§ 50, 62.) 

            The
Legislature amended section 4019 again in September 2010 with Senate Bill No.
76 (SB 76) that made changes to sections 4019 and 2933.  These changes restored the original version
of section 4019, granting presentence custody credits at a rate of two days for
every four days of actual time in custody. 
(§ 4019, subd. (f), effective September 28, 2010, through September
30, 2011.)  The applicability of SB 76
was expressly prospective. 

By amendments that became operative on October 1, 2011, the Legislature
enacted the current version of the statute, under which two days of
conduct credit may be earned for each two days of actual custody.  (§
4019, subds. (b), (c); People v.
Verba (2012) 210 Cal.App.4th 991, 993 (Verba);
Kennedy, supra, 209 Cal.App.4th at pp. 395-396.)

            The current
version of the statute provides that it applies prospectively, “to prisoners
who are confined to a county jail … for a crime committed on or after
October 1, 2011.  Any days earned by
a prisoner prior to October 1, 2011, (hereafter the October 1, 2011,
amendment) shall be calculated at the rate required by the prior law.”  (§ 4019, subd. (h).)  The former sentence expressly makes the
amended statute applicable when the crime was committed on or after
October 1, 2011.  Although the
latter sentence is less clearly expressed, we interpret it to mean that conduct
credit for other prisoners is governed by prior law. 

            In People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis), we held the October 1, 2011, amendment applies only to eligible
prisoners whose crimes were committed on or after that date, and such
prospective-only application neither runs afoul of rules of statutory
construction nor violates principles of equal protection.  (Ellis,
supra, at p. 1548.)  In reaching that conclusion, we relied
heavily on People v. >Brown (2012) 54 Cal.4th 314 (>Brown), in which the California Supreme
Court held the amendment to section 4019 that became effective January 25, 2010
(hereafter the January 25, 2010, amendment) applied prospectively only.  (Brown,
supra, at p. 318; >Ellis, supra, at p. 1550.)

            >Brown first examined rules of statutory
construction.  It observed that
“[w]hether a statute operates prospectively or retroactively is, at least in
the first instance, a matter of legislative intent.”  (Brown,
supra, 54 Cal.4th at
p. 319.)  Where the Legislature’s
intent is unclear, Civil Code section 3 and cases construing its provisions
require prospective-only application, unless it is “‘very clear from extrinsic
sources’” that the Legislature intended retroactive application.  (Brown,
supra, at p. 319.)  The high court found no cause to apply the
January 25, 2010, amendment retroactively as a matter of statutory
construction.  (Id. at pp. 320-322.)

            >Brown also examined In re Estrada (1965) 63 Cal.2d 740 (Estrada), which held that when the Legislature amends a statute to
reduce punishment for a particular criminal offense, courts will assume, absent
evidence to the contrary, the Legislature intended the amended statute to apply
to all defendants whose judgments are not yet final on the statute’s operative
date.  (Brown, supra, 54 Cal.4th
at p. 323; Estrada, >supra, at pp. 742-748.)  Brown
concluded Estrada did not apply;
former section 4019, as amended effective January 25, 2010, did not alter the
penalty for any particular crime.  (>Brown, supra, at pp. 323-325, 328.) 
Rather than addressing punishment for past criminal conduct, >Brown explained, section 4019 “addresses
future conduct in a custodial setting
by providing increased incentives for good behavior.”  (Brown,
supra, at p. 325.)

In Ellis, we determined Brown’s
reasoning and conclusions apply equally to current section 4019.  Accordingly, we held the October 1, 2011,
amendment does not apply retroactively as a matter of statutory construction or
pursuant to Estrada.  (Ellis,
supra, 207 Cal.App.4th at
pp. 1550, 1551.)

>Equal
Protection

            In >Ellis, we next turned to the equal
protection issue.  (Ellis, supra, 207
Cal.App.4th at p. 1551.)  In that
regard, Brown held prospective-only
application of the January 25, 2010, amendment did not violate either the
federal or the state Constitution.  (>Brown, supra, 54 Cal.4th at p. 328.) 
Brown explained:

            “The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally.  [Citation.] 
Accordingly, ‘“[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.”’ 
[Citation.]  ‘This initial inquiry
is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.”’  [Citation.]

            “…
[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.”  (Brown, supra, 54 Cal.4th
at pp. 328-329, second italics added.)

            The state
high court rejected the argument that its decision in People v. Sage (1980) 26 Cal.3d 498 compelled a contrary
conclusion, declining to read that case as authority for more than it expressly
held, namely that authorizing presentence conduct credit for misdemeanants who
later served their sentences in county jail, but not for felons who ultimately
were sentenced to state prison, violated equal protection.  (Brown,
supra, 54 Cal.4th at
pp. 329-330; see People v. Sage,
supra, 26 Cal.3d at p. 508.)  It
further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d 542, a case that, because it dealt
with a statute granting credit for time served, not good conduct, was
distinguishable.  (Brown, supra, at
p. 330.)

            Once again,
we found no reason in Ellis why “>Brown’s conclusions and holding with
respect to the January 25, 2010, amendment should not apply with equal force to
the October 1, 2011, amendment. 
[Citation.]”  (>Ellis, supra, 207 Cal.App.4th at p. 1552.)  Accordingly, we reject defendant’s equal
protection argument.

            >Ellis is dispositive of defendant’s
claim of entitlement to enhanced credits. 
Defendant’s presentence credits were properly calculated.href="#_ftn6" name="_ftnref6" title="">[5]

>DISPOSITION

            The
judgment is affirmed.