P. v. Nguyen
Filed 1/15/13 P.
v. Nguyen CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MINH NGOC
NGUYEN,
Defendant and Appellant.
H037951
(Santa Clara County
Super. Ct. No.
CC950550)
Defendant
Minh Ngoc Nguyen falsely reported to police and to his insurance company that
his leased 2004 Mercedes Benz SL500 had been stolen when he went into a store
to buy cigarettes. His insurance company
eventually paid $55,573.39 on this reported loss. But the Mercedes Benz was not stolen as
reported. Instead, it was in the
possession of someone to whom Nguyen had willingly delivered the vehicle as
security in a business deal that went bad.
Nguyen was arrested and charged with crimes related to his false reports
to the police and to his insurance company.
A
jury convicted Nguyen of one count of presenting a
violation of Penal Code
name="_ftnref1" title="">[1] section 550, subdivision (a)(1), a felony, and one count of making
a false report of vehicle theft in violation of Vehicle Code section 10501, subdivision
(a), a misdemeanor. After the verdict,
the trial court found a prior strike allegation true. At sentencing, the court granted Nguyen’s
term of two years on the felony count.
The court also imposed a 146-day jail term for the misdemeanor
conviction, deemed satisfied with credit for time served. Nguyen was awarded 146 days of pre-sentence
credit, consisting of 98 actual days and 48 days of conduct credit under
section 4019.
On
appeal, Nguyen contends with respect to the conviction for making a false
insurance claim that the court erred by giving a jury instruction concerning
confessions and admissions. He admits to
testifying at trial that he lied about the circumstances of his car having been
stolen, but he contends that he never acknowledged having the specific intent
to defraud the insurance company—an element of the crime—so, he argues, he
never made a confession. Thus, he contends,
the portion of the instruction dealing with confessions was not applicable to
his case and its inclusion in the jury instructions effectively and improperly
reduced the prosecution's burden of proof to convict him. He also contends that the false-vehicle-theft-report
charge was prosecuted beyond the applicable statute of limitations set out in
sections 802, subdivision (a) and 803, subdivision (b). And, finally, he contends that he is entitled
on equal protection grounds to a higher rate of conduct credits under
legislative changes to section 4019, effective October 1, 2011.
Respondent
concedes that the misdemeanor conviction under Vehicle Code section 10501 for
false vehicle-theft report is time barred, and we accept that concession. But Nguyen's other contentions have no merit;
therefore, we will set aside the conviction on count two for making a false
report of vehicle theft in violation of Vehicle Code section 10501 but will
otherwise affirm the judgment.
STATEMENT
OF THE CASE
I.
Nguyen
drove a leased 2004 Mercedes Benz SL500.
He had arranged for his friend, Minh Ly, to lease the car and co-sign a
finance agreement. But it was Nguyen who
drove the car and paid all expenses related to it, including auto insurance
coverage that he obtained from Farmers Insurance.
On
July 25, 2007, Nguyen entered into a written contract with G2Sources, Inc., a
Chinese export trading company whose president was Ge Bao Lin. G2Sources’s primary business involved
exportation of vehicles. The contract
provided that G2Sources would “deposit†$40,000 with Nguyen “as an initial good
faith security deposit†and Nguyen would procure 10 Mercedes Benz model GL450
cars for G2Sources. Then, within two
weeks, G2Sources would buy the vehicles, with delivery to the Port of Oakland
from where they would presumably be shipped to China for resale. Nguyen was to use the $40,000 to make
deposits toward G2Source’s purchase of the cars, but G2Sources would actually
buy the cars by paying the full “sticker price.†There was a margin between the sticker price
and the price Nguyen would negotiate with the seller, which would yield a form
of commission to Nguyen on each sale. As
a “good faith security commitment,†Nguyen was to “deposit his 2004 Mercedes
Benz SL500†with G2Sources, which would “return the car to [Nguyen] once†the
10 transactions were completed. Nguyen
deposited the $40,000 in his bank account and left his car as security for his
performance with Ge Bao Lin, who drove the car to his home in Saratoga where it
remained.
According
to Nguyen, he located the cars and arranged for their purchase but G2Sources
refused to follow through with the transactions. According to Ge Bao Lin, G2Sources was
prepared to follow through with the contract but Nguyen failed in his
obligation to arrange for its purchase of the vehicles. In any event, none of the contemplated
vehicle sales took place. As a result,
Nguyen and G2Sources entered into a second written contract on October 16,
2007. This contract acknowledged that
because of the prior failed contract, there was “no business between G2 and
[Nguyen]†and it provided for Nguyen to return G2Sources’s $40,000 by cashier’s
check by November 5, 2007, with a $500 per day penalty thereafter for every day
that the $40,000 was not paid. G2Sources
agreed to “return [Nguyen’s] car . . . once the payment is clear.â€
According
to Ge Bao Lin, Nguyen did not return G2Sources’s $40,000, so Nguyen’s car was
not returned to him. According to
Nguyen, in early 2008, he asked for his car to be returned but Ge Bao Lin
refused to even show him the car to prove that it was still in G2Sources’s
possession, causing Nguyen to fear that the car would not be returned to him
once he repaid the money. He further
came to believe, falsely, that Ge Bao Lin had already shipped his car to China
for resale there, and that he would never see the car again. He accordingly kept the $40,000.
On
February 4, 2008, Nguyen told his friend Minh Ly, the car’s co-lessee, that the
Mercedes had been stolen, and he asked for and received Minh Ly’s assistance in
reporting the theft. Nguyen told Minh Ly
and police that he had that day left the car parked and running in a shopping
mall parking lot on Stevens Creek Boulevard in Saratoga while he went into a
store to buy cigarettes, and when he came out, the car was gone. According to Nguyen, he involved police
because he thought they may be able to locate the car as it was equipped with a
GPS device. The next day, Nguyen
contacted his agent with Farmers Insurance and reported the car stolen, telling
the same false story about the theft that he had told police. Nguyen made a recorded statement to Farmers
about the loss and filled out an insurance proof-of-loss claim form on February
12, 2008, signing it under penalty of perjury.
He also signed all other documents requested by Farmers as part of the
claim. By March 2008, he had negotiated
the amount of the ultimate insurance settlement paid by Farmers on the loss. Although Nguyen asked that the full
settlement be paid to him so he could, in turn, pay the lienholder, Farmers
informed him that this was not possible.
Settlement of the claim was finally composed of a $49,794.18 payment by
Farmers to the lienholder and another payment of $5,879.21 directly to Nguyen,
for a total pay out of $55,573.39.
Farmers
Insurance ultimately determined that the claim was fraudulent, and reported it
to police. In November 2008, police
recovered Nguyen’s car at Ge Bao Lin’s residence in Saratoga, and Farmers
Insurance received salvage value for it—$15,000. Nguyen was arrested in July 2009. He testified at trial that he actually
believed the car had been stolen from him by Ge Bao Lin, but he was afraid
police would suspect his own conspiratorial involvement in the theft if he told
the true facts surrounding it. He
therefore lied about these circumstances, both to police and to Farmers
Insurance, and ultimately admitted doing so.
II. Procedural
Background
Nguyen
was first charged by felony complaint on July 28, 2009. After he was bound over for trial, the People
filed an information on November 18, 2010.
An amended information was filed at trial on November 1, 2011, charging
Nguyen with one count of presenting a false or fraudulent insurance claim in violation
of section 550, subdivision (a)(1) (count 1), and one count of making a false
report of vehicle theft in violation of Vehicle Code section 10501, subdivision
(a)(2), a misdemeanor (count 2).
further alleged that Nguyen had a prior strike conviction within the meaning of
sections 667, subdivisions (b) through (i) and 1170.12, subdivision (c).
On
November 7, 2011, a jury convicted Nguyen on both counts. The trial court later found the enhancement
allegation true. On February 10, 2012,
the court granted Nguyen’s oral Romero
motion to strike the prior conviction in the interests of justice and sentenced
him to the low term of two years on count one.
The court imposed a concurrent 146-day jail term on the misdemeanor
count two, this sentence deemed satisfied with credit for time served. He was awarded a total of 146 days of
pre-sentence credit, consisting of 98 actual days plus 48 days of conduct
credit under section 4019. Among other
fines and fees, he was ordered to pay restitution to Farmers Insurance in the
amount of $34,712.39, after credit for the salvage value Farmers had received
for the car.
Nguyen
timely appealed.
DISCUSSION
I. The
Misdemeanor Conviction is Barred by the Statute of Limitations
Nguyen
raises four independent challenges to his misdemeanor conviction under Vehicle
Code section 10501, subdivision (a), false report of vehicle theft. Among these challenges is the contention that
the conviction cannot stand because it was obtained in violation of the
one-year statute of limitations set out for misdemeanors in sections 802,
subdivision (a) and 803, subdivision (b).
The crime occurred on February 4, 2008, when Nguyen reported to police
the false story of his car being stolen, and it was not charged until November
1, 2011, by amended information.
charge and conviction are barred by the statute of limitations. We accept the concession and will reverse the
Vehicle Code section 10501, subdivision (a) misdemeanor conviction.
II. There
Was No Prejudicial Error Arising From CALJIC No. 2.70
Nguyen
admitted while testifying at trial that he had lied to his insurance company by
reporting that his car was stolen from a shopping center parking lot on
February 4, 2008, and submitting a claim to his insurer based on this false
scenario. He maintained that he lied, at
least to police with the same story, because though he honestly believed that
his car had been stolen by Ge Bao Lin, he feared that revealing his own involvement
in the true circumstances of his parting with the car would implicate him in a
conspiracy.
Among
the jury instructions given, without objection and by agreement, was CALJIC No.
2.70, which defines a confession and an admission, and advises caution in the
consideration of such statements made out of court.
testimony acknowledging that he had lied about the facts surrounding the theft
of his car did not constitute a full confession of guilt for the crime because
he never acknowledged having the specific intent to defraud, a required element
of making a false insurance claim under section 550.
court erred by giving this instruction to the extent it addressed confessions
because it “allowed the jury to convict . . . based solely on his testimony and
without an independent inquiry into whether he had the specific intent to
defraud,†reducing the burden of proof.
Respondent
contends that this claim of error, raised for the first time on appeal, has
been forfeited, as defense counsel below agreed to the instruction, so the
doctrine of invited error bars this claim.
not forfeit this claim because the doctrine of invited error only bars a claim
of instructional error when defense counsel has offered a deliberate tactical
purpose for acceding to the instruction challenged on appeal, citing
115 [invited error found only where counsel expresses a deliberate tactical
purpose relating to the complained-of instruction]. He further cites section 1259, which permits
an appellate court to “review any instruction given, refused or modified, even
though no objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby.â€
Given
that the record does not disclose an expressed tactical purpose for defense
counsel’s agreement to CALJIC No. 2.70 in the court below, we will exercise our
discretion to review the claim of error.
Moreover, “[t]he inclusion of irrelevant language in an instruction
implicates the trial court’s duty to give only correct and pertinent
instructions responsive to the evidence.
[Citation.] Therefore, defendant
may properly raise this claim despite his failure to challenge the instruction
below.†(People v. Farley (1996) 45 Cal.App.4th 1697, 1712.)
We
determine the correctness of a particular instruction by viewing the jury
instructions as a whole. (
943.) “ ‘It is well established in
California that the correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.’ †(People
v. Bolin (1998) 18 Cal.4th 297, 328.)
In
addition to CALJIC No. 2.70 defining a confession and an admission, the jury
was instructed on: 1) CALJIC No. 2.00
concerning direct and circumstantial evidence and inferences; 2) CALJIC No.
2.01 concerning the sufficiency of circumstantial evidence; 3) CALJIC No. 2.72
concerning the presumption of innocence and the definition of reasonable doubt;
4) CALJIC No. 3.31 concerning the concurrence of act and specific intent; 5)
the allegations of the information that Nguyen presented a false or fraudulent
insurance claim in violation of section 550, subdivision (a)(1), which included
that he “did knowingly present and cause to be presented, a false and
fraudulent claim for the payment of a loss,†under an insurance policy; 6)
proof of the elements of the crime required for a conviction, which included
that Nguyen must have knowingly presented or caused to be presented a false or
fraudulent claim for the payment of a loss or injury, including under a policy
of insurance, and that he must have acted with the specific intent to defraud;
7) CALJIC No. 15.26 defining intent to defraud;
depending on what the jury found to be the facts.
As
a threshold matter, the language of CALJIC No. 2.70 did not direct the jury
that Nguyen’s statements while testifying amounted to a confession. Nor did it imply this conclusion. Instead, the instruction simply defined what
is meant by a confession and an admission, and it clearly informed the jury
that it was exclusively for them to decide if Nguyen had made either. If so, it further instructed the jury to
decide whether his statements were true.
The jury was equipped to properly perform this task, having been
instructed regarding the elements of a section 550 violation and having been
explicitly instructed that proof of specific intent to defraud, as defined, was
necessary for a conviction. Further,
because CALJIC No. 17.31 was also given, the jury was directed to disregard any
instruction that did not apply to the facts the jury determined to be
true. We presume the jury followed the
instructions it was given. (
1121.) But even if the instruction–given
without excising the portions dealing with a confession–was erroneous, Nguyen
was not prejudiced by any such error.
The jury could have relied on circumstantial evidence, outside of
Nguyen’s testimony, of his specific intent to defraud. (People
v. Turley (1953) 119 Cal.App.2d 632, 635 [intent to defraud in the
presentation of proof of loss to insurer may be proven by surrounding
circumstances].) Thus, he cannot show
that it is reasonably probable the jury would have reached a more favorable
verdict without that instruction, as given.
But
more importantly, the jury could properly have found that Nguyen’s testimony
did amount to a full confession of guilt with respect to count one alleging a
violation of section 550, subdivision (a).
As noted, a conviction under this section requires proof that a person
knowingly presented a false claim for the payment for the payment of a loss or
injury, including under a contract of insurance, and that the person acted with
specific intent to defraud.
acts with specific intent to defraud when he presents information he knows to
be false with the intent that the insurance company rely upon it to settle his
claim. (Dieguez, supra, 89 Cal.App.4th at p. 279; People v. Booth (1996) 48 Cal.App.4th 1247, 1254, fn. 3.) “The courts have held that ‘the intent to
defraud the insurer is necessarily implied when the misrepresentation is
material and the insured willfully makes it with knowledge of its falsity. [Citation.]
‘One who willfully submits a claim, knowing it to be false, necessarily
does so with intent to defraud.’
[Citation.]†(
279.) Accordingly, the jury could
properly have found that Nguyen’s testimony in which he admitted lying to
Farmers Insurance in his proof of loss amounted to a confession. This is so even without any express reference
in Nguyen's testimony of his intent to defraud and notwithstanding his
proffered reasons for having presented the false claim, which the jury was free
to disbelieve.
name="_ftnref13" title="">[13] This being the case, the
language of CALJIC No. 2.70 concerning confessions was applicable, undermining
Nguyen’s claim of error. Indeed, when
there is evidence of statements by a defendant that could be construed as an
admission or confession, the trial court has a sua sponte duty to give this
instruction. (People v. Marks (1988) 45 Cal.3d 1335, 1346.)
For
the above reasons, we conclude that Nguyen has failed to show error, let alone
prejudicial error, in the giving of CALJIC No. 2.70.
III. Defendant
is Not Entitled to Additional Conduct Credits
Nguyen
contends that principles of equal
protection entitle him to additional conduct credits. His contention is that the statutory changes
to section 4019, expressly operative October 1, 2011, apply retroactively, in
effect, so as to entitle him to one-for-one conduct credits under the current
version of section 4019 rather than the two-for-four credits he was
awarded. We recently rejected this very
contention in People v. Kennedy
(2012) 209 Cal.App.4th 385 (Kennedy).
A
criminal defendant is entitled to accrue both actual pre-sentence custody
credits under section 2900.5 and conduct credits under section 4019 for the
period of incarceration prior to sentencing.
Additional conduct credits may be earned under section 4019 by
performing additional labor (§ 4019, subd. (b)) and by a prisoner’s good
behavior. (§ 4019, subd. (c).) In both instances, the section 4019 credits
are collectively referred to as conduct credits. (People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with awarding such
credits at sentencing. (§ 2900.5, subd.
(a).)
As
we observed in Kennedy, “Before
January 25, 2010, conduct credits under Penal Code section 4019 could be
accrued at the rate of two days for every four days of actual time served in
pre-sentence custody. [Citation.] Effective January 25, 2010, the Legislature
amended Penal Code section 4019 in an extraordinary session to address the
state's ongoing fiscal crisis.†(
395.) Among other things, then-amended
section 4019 provided that defendants could accrue custody credits at the rate
of two days for every two days actually served, twice the rate as before except
for those defendants required to register as a sex offender, those committed
for a serious felony (as defined in § 1192.7), or those who had a prior
conviction for a violent or serious felony (Kennedy,
supra, at p. 395.)
Effective
September 28, 2010, section 4019 was amended again to restore the presentence
conduct credit calculation that had been in effect prior to the January 2010
amendments, eliminating one-for-one credits (hereafter the September 2010
amendment). By its express terms, the
newly created subdivision (g), declared these amendments applicable only to
inmates confined for a crime committed on or after that date, expressing
legislative intent that they have prospective application only. (Kennedy,
supra, at p. 395.)
The
Legislature later again amended section 4019.
“These statutory changes, among other things, reinstituted one-for-one
conduct credits and made this change applicable to crimes committed on or after
October 1, 2011, the operative date of the amendments, expressing legislative
intent for prospective application only.
[Citation]†(Kennedy, supra, at pp. 395-396.)
Notwithstanding
the express legislative intent that the changes to section 4019, operative
October 1, 2011 (hereafter the 2011 amendment), are to have prospective
application only, Nguyen contends, on equal protection grounds,
implemented by those changes. He argues that In re Kapperman (1974)
11 Cal.3d 542, 544-545 (Kapperman) compels this result. But we dispensed with this claim in
recent decision in People v. Brown
(2012) 54 Cal.4th 314, 330 (Brown).
“In
Kapperman, the Supreme Court reviewed a provision (then-new Penal Code
section 2900.5) that made actual custody credits prospective, applying only to
persons delivered to the Department of Corrections after the effective date of
the legislation. (Kapperman, supra,
11 Cal.3d at pp. 544-545.) The court
concluded that this limitation violated equal protection because there was no
legitimate purpose to be served by excluding those already sentenced, and
extended the benefits retroactively to those improperly excluded by the
Legislature. (Id. at p.
545.) In our view, Kapperman is
distinguishable from the instant case because it addressed actual
custody credits, not conduct credits.
Conduct credits must be earned by a defendant, whereas custody credits
are constitutionally required and awarded automatically on the basis of time
served.†(Kennedy, supra, at p. 396.)
As
we noted in Kennedy and as our
Supreme Court recently confirmed in Brown,
“ ‘[c]redit for time served is given without regard to behavior, and thus
does not entail the paradoxical consequences of applying a statute intended to
create incentives for good behavior.
prisoners serving time before and after the effective date of a statute
authorizing conduct credits are
similarly situated.’ (
330.)†(Kennedy, supra, at p. 396.)
Although
the Supreme Court in Brown focused on
the January 2010 amendment to section 4019 (Brown,
supra, 54 Cal.4th at p. 318),
force to the prospective-only application of the current version of section
4019. “In rejecting the defendant's
argument that the January 2010 amendments to section 4019 should apply
retroactively, the California Supreme Court explained ‘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.’ (Brown, supra,
at pp. 328-329.)†(Kennedy, supra, at pp. 396-397.)
As
in Kennedy and Brown, we also reject Nguyen’s reliance on People ex rel.
Carroll v. Frye (1966) 35 Ill.2d 604.
That case “dealt with actual custody, and not presentence conduct
credits with which we are concerned here. Moreover, the date that was considered
potentially arbitrary or fortuitous in the equal protection analysis . . . was
the date of conviction, a date out of a defendant's control, and not the date
the crime was committed.
[Citation.]†(
Even
if we were to agree that during the period of time that Nguyen was in
presentence custody after October 1, 2011, “he was similarly situated to other
defendants who committed their crimes after October 1, and . . . where, as
here, the statutory distinction at issue neither ‘touch[es] upon fundamental
interests’ nor is based on gender, there is no equal protection violation ‘if
the challenged classification bears a rational relationship to a legitimate
state purpose. [Citations.]’ [Citations.] Under the rational relationship test, ‘ “ ‘ “
‘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.’ †’ †’ [Citation.]†(Kennedy,
supra, at p. 397.)
As
in Kennedy, we perceive such a
plausible reason in this case as to the period of time Nguyen was in custody
after October 1, 2011. “ ‘[S]tatutes
lessening the punishment for a particular
offense’ may be made prospective only without offending equal protection
principles. [Citation.] In Kapperman,
the court wrote that the Legislature may rationally adopt such an approach, ‘to
assure that penal laws will maintain their desired deterrent effect by carrying
out the original prescribed punishment as written.’ [Citation.]â€
(Kennedy, supra, at p. 398,
fn. omitted.)
“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. (
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.’ †’ (Id. at p.
190.) The statute before the court came
within this 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.)†(Kennedy, supra, at p.
398.)
As
the California Supreme Court also recently noted in People v. Lara (2012) 54 Cal.4th 896, 906, “ ‘[t]he very purpose of
conduct credits is to foster constructive behavior in prison by reducing
punishment.’ †And as the court accepted
in Brown, “to increase credits
reduces punishment.†(
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.†(Kennedy, supra, at p. 398.)
When
Nguyen committed his crime, his ability to earn conduct credit was limited to
two days for every four days of actual time served in presentence custody. Although section 4019 “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, [it was]
preserving the deterrent effect of the criminal law as to those crimes
committed before that date. To reward
appellant with the enhanced credits of the October 2011 amendment to section
4019, even for time he spent in custody after October 1, 2011, weakens the
deterrent effect of the law as it stood when appellant committed his
crimes. 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.†(Kennedy,
supra, at pp. 398-399.)
Echoing
Kennedy, we finally observe that “over the past few years we have seen a
series of incremental changes in conduct credit earning rates. Some of these changes have affected only
those with serious felony priors and other disqualifications, some only
providing a benefit to those free from such burdens. Overall, the Legislature has tried to strike
a delicate balance between reducing the prison population during the state's
fiscal emergency and protecting public safety.
Although such an effort may have resulted in comparable groups obtaining
different credit earning results, under the rational relationship test, the
Legislature is permitted to engage in piecemeal approaches to statutory schemes
addressing social ills and funding services to see what works and what does
not. [Citation.].)†(Kennedy, supra, at p. 399, fns.
omitted.)
We
accordingly conclude that equal protection principles do not entitle Nguyen to
additional conduct credits based on amendments to section 4019, operative
October 1, 2011.
name="_ftnref15" title="">[15] This leaves his alternate
argument that he is entitled to the more favorable rate of conduct credits for
time served on and after October 1, 2011, notwithstanding the date he committed
his crime, an argument based solely on dicta in People v. Olague (2012) 205 Cal.App.4th 1126, 1131-1132 (
As we observed in Kennedy, the
Supreme Court has granted review in Olague
(review granted August 8, 2012, S203298).
This renders it unpublished and eliminates it as a basis of citable
authority. (Cal. Rules of Court, rules
8.1105(e)(1) & 8.1115(a).) Without
unsupported, and we accordingly reject it.
DISPOSITION
The
conviction on the misdemeanor count two is set aside. The judgment is otherwise affirmed.
Márquez,
J.
WE CONCUR:
Premo, Acting P.J.
Mihara, J.
name="_ftn1" title=""> [1] Further unspecified statutory references are to the Penal Code.
name="_ftn2" title=""> [2] People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.
