P. v. Nash
Filed 7/25/13 P. v. Nash 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opinion has not been certified for publication or ordered published for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.
RICHARD NELSON NASH,
Defendant and
Appellant.
H037740
(Santa Cruz County
Super. Ct. No. F18291)
A jury convicted defendant Richard
Nelson Nash of possession of child pornography
(Pen. Code, § 311.11, subd. (a)), and possession of methamphetamine (Health
& Saf. Code, § 11377, subd. (a)).
allegations that he had suffered five prior violent or serious felony “strikeâ€
convictions. In December 2011, the court
sentenced him to two indeterminate terms of 25 years to life in prison to be
served concurrently. During sentencing,
the court awarded a total of 82 days of presentence credits (61 days of custody
credits and 21 days of conduct credits).
On appeal, defendant contends that
he is entitled to 41 days of additional conduct credits under the latest
amendment to section 4019, effective October
1, 2011 (the October 2011 amendment). He argues that as a matter of
2011 amendment must be applied retroactively.
He contends further that prospective application of the October 2011
amendment violates his constitutional right
to equal protection of the law. Lastly,
he contends that, even if the October 2011 amendment is found not to apply to
his circumstances, the court erred in calculating his presentence credits and
he is entitled to 63 days of custody credits and 30 days of conduct credits.
We conclude that defendant’s claim
of entitlement to additional conduct credits under the October 2011 amendment
to section 4019 is without merit. Last
year, in People v. Kennedy (2012) 209
Cal.App.4th 385 (Kennedy), we
rejected statutory interpretation and equal protection arguments identical to
those raised by defendant here. We
agree, however, that the court erred in its calculation of presentence
credits. Accordingly, we will order the
judgment modified to award the proper presentence credits, will direct the
clerk of the superior court to modify the abstract of judgment and transmit a
certified copy thereof to the Department
of Corrections and Rehabilitation, and will affirm the judgment as
modified.
FACTS
Defendant was placed on probation
in February 2009 after failing to register as a sex offender. The probation officer assigned to him was
Santa Cruz Probation Officer Linda Perez.
In May 2009, defendant was fitted with a GPS monitoring device because
he was classified by the Static-99 risk assessment tool as high-risk for
violent sex offenses. After Officer
Perez noted from monitoring him that defendant frequented the Watsonville Public
Library on three successive days, she went to the library in late May. She observed defendant viewing on a public
computer various images of young girls between the ages of five and nine; she
saw him “zoom in to what was the groin area of the girl[s].†According to GPS data, defendant continued to
frequent Santa Cruz County public libraries in June and July 2009.
On July 27, 2009, Officer Perez and
another probation officer conducted a probation search at the Santa Cruz
residence hotel where defendant was staying.
As they entered the room, defendant went over to one side of the bed and
tried to cover a laptop computer with a blanket. He said he had recently purchased the laptop
after previously purchasing a desktop computer—which was unplugged and on the
floor in the hotel room—that he was unable to make operable. Officer Perez examined the computer,
determined that it was booted up, and viewed some of the Web sites recently
visited. She was concerned because some
of the sites that had been visited, including sites using the term “Lolita,â€
were ones associated with child pornography.
Officer Perez seized the computer for further examination, advising
defendant that he could come to her office that afternoon to retrieve the
computer.
During her preliminary examination
of the laptop at the office, she determined that among the images that were
viewed on the computer were those of young girls (between the ages of five and
nine) having sexual intercourse with adult men.
Officer Perez then stopped her search and contacted the Santa Cruz Police
Department, where she later delivered the laptop for further investigation.
When Officer Perez returned to her
office, defendant was in the waiting area.
While she was meeting with defendant in her office, two Santa Cruz
Police detectives, Mark Eveleth and Katrina Rogers, arrived. The detectives placed defendant under arrest
for possession of child pornography.
They conducted a search of a backpack in defendant’s possession incident
to his arrest and discovered a usable quantity (.15 grams) of methamphetamine.
PROCEDURAL BACKGROUND
Defendant was charged with two
felonies in an information filed October 14, 2009, i.e., possession of child
pornography (§ 311.11, subd. (a)), and possession of a controlled substance,
methamphetamine (Health & Saf. Code, § 11377, subd. (a)). It was also alleged as enhancements that
defendant had suffered six prior violent or serious felonies, i.e., strikes
(§§ 667, subds. (b) – (i); 1170.12), namely, five counts of forcible lewd
act upon a child (§ 288, subd. (b)(1), and kidnapping of a child
(§ 207, subd. (b)). The case
proceeded to jury trial on October 4, 2011.
After a seven-day trial, defendant was convicted of both counts. Defendant admitted the allegations that he
had previously been convicted of six strike offenses.
Defendant filed a motion to strike
the enhancements under People v. Superior Court (Romero) (1996) 13
Cal.4th 497. On December 14, 2011, the
court denied defendant’s Romero motion, and sentenced him to two
concurrent terms of 25 years to life in prison.
The court awarded defendant 61 days of custody credits and 21 days of
conduct credits for a total of 82 days of presentence credits. Defendant filed a timely notice of
appeal.
DISCUSSION
I. Claim
of Additional Conduct Credits Under Section 4019
A. Summary
of Contentions
Defendant contends that the October 2011 amendment
to section 4019 applies to his case. As
discussed in greater detail below, he argues that under both statutory
construction and equal protection analyses, he is entitled to the benefit of
the more favorable calculation of presentence conduct credits under the October
2011 amendment. Specifically, he
contends that he is entitled to the more favorable calculation of conduct
credits for all days he spent in custody from October 1, 2011, until his
sentencing on December 14, 2011.
In the event his argument concerning the
applicability of the October 2011 amendment to section 4019 fails, defendant
contends that the court erred in its calculation of presentence credits, in
that it awarded 61 days of custody credits (instead of 63) and 21 days of
conduct credits (instead of 30).
The Attorney General responds that defendant’s
claims are barred because he failed to initially raise any errors in the
calculation of presentence credits in the trial court as required by section
1237.1. She asserts alternatively that
even if defendant’s contentions regarding the applicability of the October 2011
amendment to section 4019 are cognizable, they lack merit.
B. Applicability of Section
1237.1
We initially reject the Attorney General’s
assertion that section 1237.1 bars defendant’s claims. Section 1237.1 provides: “No appeal shall be taken by the defendant
from a judgment of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the claim in
the trial court at the time of sentencing, or if the error is not discovered
until after sentencing, the defendant first makes a motion for correction of
the record in the trial court.â€
Defendant’s constitutional and statutory challenges
are not ones involving claimed error in the calculation of credits under the
operative version of section 4019. (See
Cal.App.4th 991, 994 (Verba)
[rejecting assertion that section 1237.1 barred defendant’s claim that under
equal protection principles he was entitled to application of October 2011
amendment of section 4019].) As
explained recently by the Fifth District Court of Appeal in rejecting the
Attorney General’s contention that section 1237.1 barred the defendant’s claim
that a different version of section 4019 applied in determining the custody
credits to which he was entitled: “[A]n
error in ‘doing the math’ . . . constitutes the type of minor sentencing error
at which section 1237.1 was clearly aimed.
A determination of which version of a statute applies—especially when,
as here, that determination involves application of constitutional
principles—does not.†(
761, 766.)
Further, defendant’s alternative claim of error is
clearly one that involves an alleged error in calculation of presentence
credits, and section 1237.1 would ordinarily require the initial assertion of
such claim at the trial level. But we
will consider it here “in the interests of economy†because there are other
issues raised in the appeal, namely, defendant’s claim that he is entitled to
the benefit of the more favorable calculation of custody credits under the
October 2011 amendment of 4019. (
485, 493; see also People v. Acosta
(1996) 48 Cal.App.4th 411, 427-428.)
C.
Section 4019 permits a criminal defendant to earn
additional credit prior to being sentenced by performing assigned labor
(§ 4019, subd. (b)(1)) or by his or her good behavior during detention
(§ 4019, subd. (c)(1)). Such
credits are collectively referred to as “conduct credits.†(People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) “The very purpose of conduct credits is to
foster constructive behavior in prison by reducing punishment.†(People
v. Lara (2012) 54 Cal.4th 896, 906 (Lara).) Section 4019 has
undergone a series of revisions since 2009.
(See generally People v. Garcia (2012)
209 Cal.App.4th 530, 535-540.)
Senate Bill No. 18 (2009-2010 3d Ex. Sess.),
enacted in October 2009, amended section 4019, effective January 25, 2010, to
enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28,
§ 50, p. 4427; the January 2010 amendment.) Under the pre-January 2010 formula for
calculating credits under section 4019, a defendant could accrue conduct credit
of two days for every four days of actual presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former
§ 4019, subd. (f).) Under the
January 2010 amendment, a qualifying defendant—persons other than those
required to register as sex offenders, or those being committed to prison for,
or who had suffered prior convictions of, serious felonies as defined in
section 1192.7 or violent felonies as defined in section 667.5—could accrue
conduct credit of two days for every two days of presentence custody, twice the
previous rate. (Stats. 2009-2010, 3d Ex.
Sess., ch. 28, §§ 50, 62 [Pen.Code, former § 4019, subds. (b), (c), &
(f)].)
The statute was again amended by Senate Bill 76,
effective September 28, 2010, to restore the two-for-four conduct credit
calculation less favorable to defendants that had been in effect prior to
January 25, 2010 (Stats. 2010, ch. 426, § 2).
This amendment applied to persons in local custody for crimes committed
on or after September 28, 2010. (Former
§ 4019, subd. (g), as amended by Senate Bill 76.)
And then, as part of the Realignment Act, the
Legislature amended section 4019 a third time in Assembly Bill 109 (2011-2012
Reg. Sess.; Assembly Bill 109). Assembly
Bill No. 109, which amended section 4019 effective July 1, 2011, authorized
conduct credit for all local prisoners at the rate of two days for every two
days spent in local presentence custody.
(§ 4019, subds. (b) & (c), as amended by Stats. 2011, ch. 15,
§ 482.) Like the previous amendment
to section 4019, the amendment in Assembly Bill 109 was to have prospective
application only. (Ibid.) But before July 1,
2011—the operative date of Assembly Bill No. 109—Governor Brown signed Assembly
Bill No. 117 (2011-2012 Reg. Sess.), which retained the enhanced conduct credit
formula but changed the effective date to October 1, 2011. (Former § 4019, subd. (h), as amended by
Stats. 2011-2012, ch. 39, § 53.) On
September 20, 2011, Governor Brown signed Assembly Bill No. 1X 17 (2011-2012
1st Ex. Sess.). This bill enacted the
current version of section 4019 which retains the enhanced conduct credit
provision—four days is deemed to have been served for every two days spent in
actual custody. (Stats. 2011, 1st Ex.
Sess. 2011-2012, ch. 12, § 35; § 4019, subd. (f).) The statute expressly states that it is to apply
prospectively. (§ 4019, subd. (h).)
D.
Defendant claims that as a matter of statutory interpretation, he is
entitled to the benefit of one-for-one conduct credits under the October 2011
amendment to section 4019 for all days spent in custody after October 1, 2011. He claims that an ambiguity in subdivision
(h) of section 4019 compels this conclusion.
While he acknowledges that the first sentence of subdivision (h)
indicates that section 4019 applies to prisoners who committed crimes on or
after October 1, 2011, he asserts that the second sentence—“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))—contains language favoring his
position. He argues that this language
creates an ambiguity requiring the construction that “the liberalized scheme of
the new statute applies both to prisoners confined for crimes committed after
October 1, 2011[,] and to prisoners confined after that date for
earlier crimes.†He asserts that both
sentences of subdivision (h) of section 4019 should be harmonized by construing
the statute as giving the benefit of the two-for-two credit scheme to persons
such as himself who were incarcerated on or after October 1, 2011, for crimes
committed prior to that date.
We rejected this argument in Kennedy, supra, 209
Cal.App.4th at pages 399 to 400.
“We reiterate that according to the explicit language of the statute,
the [October] 2011 amendment to Penal Code section 4019 applies only to crimes
that were ‘committed on or after October 1, 2011.’ (Pen.Code, § 4019, subd. (h).)†(Id.
at p. 399.) Similarly, the court in
People v. Rajanayagam (2012) 211
Cal.App.4th 42, 51 (Rajanayagam)
rejected an argument that the second sentence of section 4019, subdivision (h),
“implies any days earned by a defendant after October 1, 2011, shall be
calculated at the rate required by the current law, regardless of when the
offense was committed.†It concluded
that such an interpretation would render meaningless the language in the first
sentence (ibid.), which provides that
the changes to the accrual of presentence conduct credit “shall apply
prospectively and shall apply to prisoners who are confined to a county jail .
. . for a crime committed on or after October 1, 2011.†(§ 4019, subd. (h).) The court in Rajanayagam concluded that adopting the defendant’s interpretation
would violate an elementary rule requiring courts, if possible, to ascribe
meaning to every word, phrase, and sentence of a statute and to avoid
interpretations that render some words superfluous. (Rajanayagam,
at p. 51.)
We too conclude that defendant is not entitled to
the more favorable calculation of presentence conduct credits provided in the
October 2011 amendment for the time that he was in custody after October 1,
2011. (Accord, People v. Ellis (2012) 207 Cal.App.4th 1546, 1552-1553.)
E. Equal
Protection Challenge
Defendant contends that the failure to give
retroactive application to the October 2011 amendment constitutes a violation
of the equal protection clauses of the federal and state Constitutions (U.S.
Const., 6th Amend.; Cal. Const., Art. I, § 7). He claims that he, as a defendant who
committed crimes before October 1, 2011, but who was incarcerated after that
date, is similarly situated to an inmate who is in custody for committing a
crime after October 1, 2011, and that there is no rational basis to justify the
alleged disparate treatment between these two groups. Therefore, he argues, in order to avoid a
violation of equal protection, the October 2011 amendment should be given
retroactive application in his case.
The first prerequisite for a successful equal
protection argument is “ ‘a showing that the state has adopted a classification
that affects two or more similarly
situated groups in an unequal manner.’
[Citations.]†(
1185, 1199 (Hofsheier), quoting
530.) This inquiry by the court “is not
whether persons are similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ [Citation.]â€
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) The second
requirement is that the challenger establish that there is no rational
relationship to a legitimate state purpose for the state’s having made a
distinction between the two similarly situated groups. (Hofsheier,
at pp. 1200-1201.)
title="">[5]
Last year, our Supreme Court decided in People v. Brown (2012) 54 Cal.4th 314 (Brown) that prospective application of the January 2010 amendment
of section 4019 did not violate equal protection principles, concluding the
amendment did not create two similarly situated groups. The Supreme Court noted that 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.†(
In Kennedy,
addressed the identical equal protection challenge to the October 2011
amendment to section 4019 raised by defendant here. While we acknowledged that
4019 (Kennedy, at p. 396), we
rejected the defendant’s contention that he (Kennedy)—who committed his crime
on March 11, 2011 (id. at p. 388)—was
similarly situated with persons in jail who had committed crimes on or after
the October 1, 2011 operative date of the challenged amendment : “[T]he reasoning of Brown applies with equal force to the prospective-only application
of the current version of section 4019.â€
(Id. at p. 397; but see
similarly situated with respect to equal protection challenge to October 2011
amendment]; Verba,
995-996 [same].)
title="">[7]
Furthermore, the California Supreme Court, one month after deciding
defendant’s argument that the October 2011 amendment should apply
retroactively. Although addressed only
in a footnote, the high court rejected the defendant’s contention that the
prospective application of the October 2011 amendment violated equal
protection: “Today local prisoners may
earn day-for-day credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f),
as amended by Stats. 2011, ch. 15, § 482.)
This favorable change in the law does not benefit defendant because it
expressly applies only to prisoners who are confined to a local custodial
facility ‘for a crime committed on or
after October 1, 2011.’ (§ 4019, subd. (h), italics added.) [¶] Defendant argues the Legislature denied
equal protection [citations] by making this change in the law expressly
prospective. We recently rejected a
similar argument in People v. Brown
(2012) 54 Cal.4th 314, 328-330.) . . . Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose. (Brown, at pp. 328-329.)†(
challenge because he cannot establish that he was similarly situated with
persons who commit crimes on or after October 1, 2011.
Even were we to conclude that defendant is similarly situated with
persons in jail who had committed crimes on or after the October 1, 2011
operative date of the challenged amendment to section 4019, his equal
protection challenge fails. As noted, no
equal protection violation will be found “if the challenged classification
bears a rational relationship to a legitimate state purpose. [Citation.]â€
(Hofsheier, 37 Cal.4th at
p. 1200.) The court’s inquiry is
completed “[w]here there are ‘plausible reasons’ for [the
classification].†(Id. at p. 1201.) As we
held in Kennedy, supra, 209
Cal.App.4th at page 397, there is a plausible reason for the statutory
classification challenged here.
As we explained in Kennedy: “[O]ur Supreme Court has acknowledged [that]
‘statutes lessening the punishment for a particular offense’ may be made
prospective only without offending equal protection principles. (Kapperman,
supra, 11 Cal.3d. at p. 546.) . . .
[¶] In People v. Floyd (2003) 31
Cal.4th 179 (Floyd), the defendant
sought to invalidate a provision of Proposition 36 barring retroactive
application of its provisions for diversion of nonviolent drug offenders. (Id.
at pp. 183-184.) The court reiterated
that the Legislature may preserve the penalties for existing offenses while
ameliorating punishment for future offenders in order to ‘ “assure that penal
laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.†’ (
rationale because it ‘lessen[ed] punishment for particular offenses.’ (Ibid.) As the Floyd
court noted, ‘ “[t]he 14th Amendment does not forbid statutes and statutory
changes to have a beginning, and thus to discriminate between the rights of an
earlier and later time.†[Citation.]’ (Id.
at p. 191.) [¶] ‘The very purpose
of conduct credits is to foster constructive behavior in prison by reducing
punishment.’ (People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme Court accepted in
punishment.’ (Id. at p. 325, fn. 15.) [¶]
We gather that the rule acknowledged in Kapperman
and Floyd is that a statute
ameliorating punishment for particular offenses may be made prospective only
without offending equal protection, because the Legislature will be supposed to
have acted in order to optimize the deterrent effect of criminal penalties by
deflecting any assumption by offenders that future acts of lenity will
necessarily benefit them. [¶] . . . [¶]
Although the statute at issue here does not ameliorate punishment for a
particular offense, it does, in effect, ameliorate punishment for all offenses
committed after a particular date. By
parity of reasoning to the rule acknowledged by both the Kapperman and Floyd
courts, the Legislature could rationally have believed that by making the 2011
amendment to section 4019 have application determined by the date of the
offense, they were preserving the deterrent effect of the criminal law as to
those crimes committed before that date. . . . We see nothing irrational or implausible in a
legislative conclusion that individuals should be punished in accordance with
the sanctions and given the rewards (conduct credits) in effect at the time an
offense was committed.†(
pp. 398-399, fn. omitted.)
Therefore, even had defendant satisfied the “similarly situatedâ€
requirement for an equal protection claim, his challenge to the October 2011
amendment nonetheless fails because the classification between persons—those
committing an offense prior to October 1, 2011, and those committing an offense
on or after that date—bears a rational relationship to a legitimate state
purpose. (Kennedy, supra, 209 Cal.App.4th at pp. 397-399; accord,
Cal.App.4th at pp. 996-997.)
name="_ftnref8" title="">[8]
E.
of Presentence Credits
Defendant argues that, even if we reject his claim that the October
2011 amendment to section 4019 applies to his circumstances, the trial court
erred in calculating his presentence credits.
He argues that he should have received 63 days of custody credits and 30
days of conduct credit, rather than the 61 days and 21 days, respectively,
awarded by the trial court. The Attorney
General concedes that the trial court erred.
Defendant is entitled to custody credits based upon the number of days
he was in custody, calculated from the date he entered custody to the date of
sentencing, inclusive. (
523, 525-526.) Defendant here was
remanded to custody on October 13, 2011, the date the jury returned guilty
verdicts as to both counts alleged in the information. He was sentenced on December 14, 2011 and is
entitled to 63 days of presentence custody credits. Applying the conduct credit formula under
section 4019 in effect at the time defendant committed his crimes, he is
entitled to six days of credit for every four days served in custody. (Former § 4019, subd. (f), stats. 1982,
ch. 1234, § 7, p. 4553.) The
formula used to determine such conduct credits is to divide the number of
custody credits by four, round the number down to the nearest whole number, and
then multiply that number by two. (
Cal.App.4th 893, 908.) Defendant is
entitled to 30 days of conduct credit.
Accordingly, we will order the judgment modified to reflect the correct
number of custody and conduct credits.
DISPOSITION
The judgment is modified to reflect that defendant
shall receive 63 days of custody credits and 30 days of conduct credits for a
total or 93 days of presentence credits.
The clerk of the superior court is directed to prepare an amended
abstract of judgment to reflect this modification and to transmit a certified
copy of the amended abstract to the Department
of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.
Márquez,
J.
WE CONCUR:
Elia,
Acting P.J.
Bamattre-Manoukian,
J.
Further statutory references are to the Penal Code unless otherwise
stated.
name="_ftn2" title="">[2]
We present an abbreviated discussion of the facts underlying the convictions
because they are not germane to the claims of error on appeal.
