P. v. Obannon
Filed 4/4/13 P. v. Obannon 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opinion has not been certified for publication or ordered published for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.
VINCENT EARL OBANNON,
Defendant and
Appellant.
H037481
(Santa Clara
County
Super. Ct.
No. BB943129)
In this
appeal, Vincent Obannon (appellant) challenges the denial of his motion to
reconsider a Romero ruling,
argues the lower court erred in ordering him to pay direct victim restitution
to Best Buy in the amount of $2,643.36, and contends, on equal protection
grounds, that he is entitled to increased presentence custody credits under the
current version of Penal Code section 4019.
For reasons that follow, we agree that the restitution order to Best Buy
cannot stand. Accordingly, we will
strike the order. As so modified, the
judgment is affirmed.
Facts and Proceedings Below
We take the
facts from the probation officer's report in this case. In turn, those facts were derived from
Mountain View Police case number 09-005642 reports.
Counts One and Two
On August 1, 2009, appellant went into
two Beverages and More stores and attempted to use an altered credit card in
each store to purchase a bottle of tequila valued at $81.99 and two $500 gift
cards. At both stores the clerks
expressed suspicion about the transactions and appellant grabbed the card and
left the stores without the merchandise.
Count Three
On August 22, 2009, appellant entered
another Beverages and More store and filled out an application for a
"BevMo" card. Thereafter, he
purchased a bottle of tequila valued at $81.99 with cash. After purchasing the tequila he attempted to
purchase two $500 gift cards. Since the
numbers on the credit card did not match the numbers on the receipt, appellant
was not permitted to purchase the gift cards.
He took the credit card and left the store. After this incident, the store clerk sent an
email alert to other Beverages and More stores.
Count Four
On June 19, 2009, appellant entered the
Blossom Hill Beverages and More store and purchased three $500 gift cards using
an altered credit card. Officers were
not able to locate the owner of this card.
Counts Five and Six
On May 9, 2009, using the name Anthony
Young, appellant purchased an Apple Macbook and accessories using a stolen
credit card belonging to Gilgent Peng.
The total for the purchase was $2,643.56. The purchases were made at a San Francisco
Best Buy store. Shortly thereafter,
appellant made a $30.77 purchase at an Olympian gas station.
During the
course of an investigation into these incidents police discovered that when
appellant applied for the BevMo card, the social security number used belonged
to both appellant and Anthony Young. A
record check revealed that appellant was a sex offender and on parole for
identity theft.
Police
contacted appellant's parole officer and requested GPS tracking information;
the GPS tracking information revealed that appellant was at Best Buy, the
Olympian gas station and at each of the Beverages and More stores on the dates
of, and within minutes of, the fraudulent transactions.
Appellant
was arrested on September 10, 2009,
at the office of his parole officer. During
a search of appellant's wallet, officers found a folded piece of paper on which
were listed the items required to make a counterfeit credit card. After being given Miranda advisements,
name="_ftnref2" title="">[2]
appellant said that he had information on an ongoing decade old
"operation,"
name="_ftnref3" title="">[3]
but refused to provide more details without some assurance that his charges
would be reduced.
On January
21, 2011, the Santa Clara County District Attorney filed an information in
which appellant was charged with five felony counts of second degree burglary
(Pen. Code, § 459, 460, subd. (b), counts one through five) and one count of
using Gilgent Peng's personal identifying information without
authorization. (§ 530.5, subd. (a),
count six).
title="">[4] The information contained allegations that
appellant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12)
and had served three prior prison terms within the meaning of section 667.5,
subdivision (b).
On June 6,
2011, appellant entered an open plea
of guilty to all counts and admitted each of the prior conviction and prior
prison term allegations.
On July 25,
2011, appellant filed a motion pursuant to Romero,
supra,
13 Cal.4th 497, asking the court to strike his two prior strike convictions for
purposes of sentencing him. On August 22,
2011, the court (Judge Southard) denied the motion as to count one, but granted
the motion to dismiss both the prior strike convictions as to counts two
through six.
title="">[6] The court dismissed the three prior prison
term allegations. The court indicated that
appellant's sentence would be 28 years, four months in state prison; the court
stated that it was willing to go forward with sentencing immediately. On the request of defense counsel the matter
was continued for sentencing. Judge
Southard informed appellant that he would soon be retiring and sought
appellant's waiver of his right to be sentenced by him, which appellant
gave.
Subsequently,
it appears that appellant asked Judge Kumli, to whom the case had been
assigned, to reconsider Judge Southard's Romero
ruling. On October 17, 2011, Judge Kumli
made a record of prior off the record matters.
According to Judge Kumli, the parties had met on September 16th to
discuss the case and the matter was continued, over the People's objection, for
appellant to provide additional information; Judge Kumli went on to say that
"the ruling of the Romero
hearing was in the estimation of this Court binding upon this Court, and that
the indicated sentence given by Judge Southard back on August 22nd would be
imposed." Judge Kumli went on to
say that the matter was back before the court for the third time for imposition
of sentence.
Accordingly,
after noting that the court had read and considered the probation officer's
report and supplemental declarations, which had been submitted in support of
striking the serious felony priors, the court sentenced appellant to 28 years
four months to life in state prison.
custody credits at 768 actual days plus 384 days of conduct credits for a total
of 1152 days. Relevant to this appeal,
the court ordered that appellant pay $2,643.36 to Citibank and to Best Buy.
Appellant
filed a notice of appeal the same day
he was sentenced.
Discussion
Failure to Reconsider
the Romero Motion
Appellant
contends that the lower court abused its discretion and violated due process
when Judge Kumli concluded that he had no authority to re-open the
new evidence."
The
"new evidence" to which appellant refers consists of a letter from a
Ms. Victoria Shepard, the sister of the mother of appellant's children, a
purported affidavit from the mother of appellant's children—Linda
Hollingsworth,
title="">[8] a
letter from Kathy Gordon a former instructor with Milpitas Adult Education at
the Elmwood Correctional Facility (Elmwood) and a letter from appellant.
As noted
Judge Kumli stated that "the ruling of the Romero hearing [is] . . . binding upon this Court." Subsequently, the prosecutor asked Judge
Kumli "not just to indicate that [the court] feels bound by Judge
Southard's ruling but that's the appropriate ruling under the three strikes law
itself as well as the court cases that have interpreted the application of
three strikes. And Judge Southard
actually stated on the record that unfortunately Mr. Obannon was the poster boy
for three strikes and found it sad to say that in light of the fact that Mr.
Obannon seemed to be a charming, intelligent man, but that the Court must set
aside the sympathy it had for Mr. Obannon and follow the law. And that in [sic] Judge Southard's view of the decision to strike the strike of
all counts. [¶] So I ask the Court not to only follow the
ruling but also to embrace it."
Judge Kumli
responded, "All right. Let me be
clear. The Court doesn't feel that it
needs to editorialize or comment one way or the other with regard to the
reasons for the Romero hearing and
the ruling of Judge Southard in this case.
[¶] I will say that - - and this
may be a distinction without a difference, but the Court feels bound to the
ruling on the Romero motion by Judge
Southard . . . ."
Appellant
asserts that the lower court erroneously believed that it had no authority to
reconsider the Romero motion.
Under
section 1385, subdivision (a), a "judge . . . may, either on his or her
own motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed." In Romero, supra, 13 Cal.4th 497, our Supreme Court held that a trial court
may strike or vacate an allegation or finding under the Three Strikes law that
a defendant has previously been convicted of a serious and/or violent felony,
on its own motion, in furtherance of justice pursuant to section 1385,
subdivision (a). (Id. at p. 504.) The
discretionary decision to dismiss or to strike a sentencing allegation under
section 1385 is reviewable for abuse of discretion. (Ibid.) Similarly, "a court's failure to dismiss
or strike a prior conviction allegation is subject to review under the
deferential abuse of discretion standard."
(People v. Carmony (2004) 33 Cal.4th 367, 374.)
We start
from the premise that " '[i]t is presumed that official duty has been
regularly performed' and scores of appellate decisions, relying on this
provision, have held that 'in the absence of any contrary evidence, we are
entitled to presume that the trial court . . . properly followed established
law.' [Citation.]" (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)
Accordingly,
we must presume that Judge Kumli was aware that the general rule that one
superior court judge may not reconsider the previous ruling of another superior
court judge is subject to an exception
where the first judge is unavailable to decide a motion for reconsideration (
Cal.App.4th 695, 713); and that one of the factors to consider in deciding
whether to modify another judge's ruling is whether there has been a change in
circumstances since the previous order was made. (People v. Riva (2003) 112 Cal.App.4th
981, 992.)
The record
is at best ambiguous as to whether Judge Kumli refused to reconsider the motion
because he believed that he did not have authority so to do, or refused to
exercise his discretion under section 1385.
We must keep in mind that the law does not require the trial court to
specify the reasons for denying a Romero
motion to strike prior strikes. (In
re Large (2007) 41 Cal.4th
538, 546, fn. 6.)
It is
possible as appellant suggests that Judge Kumli did not believe he had
authority to rehear the motion, but it is equally possible that Judge Kumli
declined to exercise his discretion under section 1385. We are mindful that "[a] defendant has
no right to make a motion, and the trial court has no obligation to make a
ruling, under section 1385. (
As noted, "[i]t is a basic
presumption indulged in by reviewing courts that the trial court is presumed to
have known and applied the correct statutory and case law in the exercise of
its official duties. (Evid. Code, § 664;
[citations].)" (
1026, 1032.) Accordingly, absent
unambiguous evidence to the contrary, that presumption justifies a finding in
this case that Judge Kumli knew the scope of the section 1385 discretion
available to him and failed to exercise it in appellant's favor because to do
so would have been a manifest abuse of his discretion.
Even if we were to assume for the
sake of argument that Judge Kumli misunderstood the scope of his discretion in
this case, we would not return the matter to the trial court because it would
be an abuse of discretion for Judge Kumli to strike the priors as to all
counts. (See, People v. Askey (1996) 49 Cal.App.4th 381, 389, fn. 3;
1049, 1054-1055.)
When Judge
Southard made his decision to strike the priors as to count one he made a
thorough and detailed record of his decision.
Specifically, he noted "With respect to the prior convictions I
have to note that the one prior conviction out of San Francisco for rape was
particularly onerous.
name="_ftnref9" title="">[9] I realize it happened a long time ago. Mr. Obannon was a very young man. I want to point out however . . . since I am
talking about proportionality, if that crime had occurred at least in Santa
Clara County today he would be looking at virtually life in prison for that
offense today, and all these other crimes that have happened in the last 30
years would have never happened, but it happened someplace else at a different
time under different circumstances, but it was as severe a strike prior as one
can imagine. [¶] Likewise, the other strike prior conviction
was also a crime of violence. It was
robbery of the standard variety, and it happened while he was literally just
out of custody for that other offense.
Since that time Mr. Obannon has had virtually no period in which he was
not either incarcerated, on parole or on probation. He has done poorly notwithstanding his
personal charm and intelligence as one might guess given the kind of record
he's consistently fallen back upon crime as a means of supporting himself. [¶] It
is [sic] great importance to note the
fact that the last time he was charged with multiple counts, many counts of
same type of method of operation in this case, he was given the benefit of a
two strikes sentence, received an 8 year term and then in this particular case
not even two months out of custody on parole he is doing the same thing on a
professional criminal level again."
The
probation officer's report prepared in this case indicated that appellant's
criminal history includes four felony offenses and six misdemeanor convictions
for an array of offenses including rape, robbery, second degree burglary and
petty theft. Appellant had three parole
violations and was on parole at the time of his most current offenses. The probation officer noted that appellant
said that he had a substance abuse problem in that he uses drugs to cope with
life.
Against
this background, the four additional pieces of "evidence" that were
presented to the court—a letter from Ms. Shepard—explained that appellant had
"grow[n] up without a positive role model" and that he had been held
back in his efforts "to provide for himself and his family [due to] social
injustices . . . neighborhood violence, a sense of hopelessness, and lack of
self-esteem" Ms. Shepard confirmed
that appellant had turned to drugs and she believed that he would be a
productive citizen if he were granted leniency and received some community
support.
Ms.
Hollingsworth wrote that appellant was the father of her two children and he
had a long history of drug use. She confirmed
that appellant had been neglected as a child, during which time he had no
contact with his father and lost his mother.
Ms. Hollingsworth asserted that appellant's inability to provide for his
family had driven him to feel hopeless and that his children hoped the court
would give him an opportunity to turn his life around.
The letter
from Ms. Gordon the former education instructor at Elmwood explained that in
the time appellant was in Elmwood he delved deeply into the jail's substance
abuse program and made great strides in understanding his addiction and the
poor choices he made as a result. Ms.
Gordon believed that appellant was sincerely remorseful for the pain his
actions caused others. Ms. Gordon
pledged to provide appellant housing free of drugs, alcohol and crime. She offered to assist appellant in obtaining
employment and continuing his education toward becoming a drug and alcohol
counselor.
Finally, in
a letter to the court, appellant stated that he had been taking substance abuse
classes while in jail, which he had never had the opportunity to do before, and
he was seeking mental health treatment.
He said he was highly remorseful and vowed to live a productive and
crime-free life.
This record
establishes that it would have been a manifest abuse of the trial court's
limited discretion to strike appellant's prior felony conviction allegations
"in furtherance of justice" under section 1385 as to the one count
that Judge Southard left intact. As the
prosecutor argued in her written motion opposing the original
simply failed to present a single compelling factor as it relates to his
background, character, or prospects, which would justify the exercise of [the
court]'s discretion to dismiss his remaining strike prior conviction. As natural as it is to feel some sympathy for
the defendant, and the life he has clearly wasted, it would be improper to use
this emotion in evaluating the defendant's personal and criminal history, the
current offense, and his future prospects."
As our
Supreme Court observed in People v.
Williams (1998) 17 Cal.4th 148 (Williams),
a case where the defendant was convicted of driving under the influence four
times (id at p. 152) and had a
lengthy criminal history (id. at p.
154), " 'the existence of such convictions reveals that [he] had been
taught, through the application of formal sanction, that [such] criminal
conduct was unacceptable -- but had failed or refused to learn his
lesson.' " (
of age; he apparently recognized the fact and stated a desire to change; but he
did not follow through in efforts to bring the situation under control. The defendant was unemployed; he lived alone
although he had cohabited with a woman for five or six years, and had two
children with her, one of whom was disabled; and he wished to receive probation
in order to help care for this child. (
The
defendant]'s background, character, or prospects. We do not ignore the fact that he apparently
had had a stable living arrangement with a woman, had expressed a desire to
help care for their disabled child, and was still loved, and supported, by his
family. But neither can we ignore the
fact that he was unemployed and did not follow through in efforts to bring his
substance abuse problem under control.
Certainly, that he happened to pass about 13 years between his prior serious
and/or violent felony convictions and his present felony, and proceeded from
about 20 years of age to 32, is not significant. He did not refrain from criminal activity
during that span of time, and he did not add maturity to age. Quite the contrary. In those years, he was often in prison or
jail; when he was not, he violated parole and, apparently, probation, and
committed the offenses that resulted in his convictions . . . ." (Williams,
supra,
17 Cal.4th at p. 163.)
Appellant
argues that the letters and affidavits that the defense asked Judge Kumli to
consider supported his position that he should not be sentenced to a life term
based on his background, character and prospects. Unfortunately, for appellant
By this
court's calculation appellant has spent the majority of the last 31 years
incarcerated and/or on parole.
Significant by its absence is any conviction for a drug offense.
Regardless
of the trial court's beliefs in its authority to strike the alleged prior
felony convictions, appellant has suffered no prejudice. It would have been a manifest abuse of the
court's discretion to have exercised it on this record.
Direct Victim
Restitution to Best Buy
As noted, in sentencing
appellant, the court ordered that appellant pay direct victim restitution of
$2,643.36 to Citibank and to Best
Buy. Specifically, the court ordered
appellant "to pay restitution in an amount including but not limited to
$2,643.36 Citibank" and "to pay restitution including but not limited
to . . . $2,643.36 to Best Buy."
Appellant
argues that the lower court erred in ordering him to pay direct restitution to
Best Buy without any evidence to support the order.
Section
1202.4, subdivision (f), states in relevant part, "in every case in which
a victim has suffered economic loss as a result of the defendant's conduct, the
court shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court."
"A
restitution order is reviewed for abuse of discretion and will not be reversed
unless it is arbitrary or capricious. [Citation.]
No abuse of discretion will be found where there is a rational and
factual basis for the amount of restitution ordered." (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542 (Gemelli).) The trial court may consider almost any kind
of information in calculating restitution.
(People v. Phu (2009) 179 Cal.App.4th 280, 283–284.) " 'Further, the standard of proof at a
restitution hearing is by a preponderance of the evidence, not proof beyond a
reasonable doubt. [Citation.]' [Citation.]" (People v. Keichler (2005) 129
Cal.App.4th 1039, 1045.) " 'If the
circumstances reasonably justify the [trial court's] findings,' the judgment
may not be overturned when the circumstances might also reasonably support a
contrary finding." (People v.
Baker (2005) 126 Cal.App.4th 463, 469 (Baker);
see also Gemelli, supra,
161 Cal.App.4th at p. 1542.) In
reviewing the evidence, we do not reweigh or reinterpret it; we determine only
whether there is sufficient evidence to support the inference drawn by the
trier of fact. (Baker, supra, 126
Cal.App.4th at p. 469.)
Appellant
points out that the probation officer's report includes the following
information concerning restitution to Best Buy and Citibank.
"On
July 7, 2011, this officer contacted Best Buy and spoke to the store operation
manager, Joey I., who indicated he does not know if Best Buy suffered any
losses. The company's bookkeeping system
can only go back to the last fiscal year.
He stated he would contact this officer if he had additional
information. Should any information be
received prior to sentencing, it will be forwarded to Court. According to the police report, the defendant
successfully obtained $2,643.36 in merchandise.
This amount is recommended pending further information. [¶] On
June 30, 2011, this officer contacted Citibank fraud investigator, Diana
Lindstrom who indicated Citibank representatives will not attend
sentencing. She indicated Citibank
reimbursed victim Peng for the fraudulent charges, but she did not indicate
reimbursing the two victim business[es], Best Buy or Olympian. They are requesting restitution in the amount
of $2,643.36, which is recommended.
[¶] This officer attempted to
contact victim Peng at the telephone number[s] listed in the police report;
however, one of the number[s] is no longer in service and the other number no
longer belongs to the victim."
After the
court ordered appellant to pay $2,643.36 to Citibank and Best Buy and finished
imposing other fines and fees, the prosecutor asked the court, "with
respect to the restitution order of 2,643.36, could the Court order that to
Citibank? There was a specific request
from Citibank who had indicated to probation that they reimbursed victim [Peng]
for the charges." The court
responded, "That order will be submitted at this time. That restitution in that matter will be paid
directly to Citibank."
Both the
minute order from the sentencing hearing and the abstract of judgment reflect
that appellant is to pay $2,643.36 to Citibank and to Best Buy.
Respondent
asserts appellant has forfeited any challenge to the restitution order by
failing to challenge it below. In
support of this assertion respondent cites to People v. Brasure (2008) 42 Cal.4th 1037.
However, as
this court explained in In re K. F.
(2009) 173 Cal.App.4th 655, "Sufficiency of the evidence has always been
viewed as a question necessarily and inherently raised in every contested trial
of any issue of fact, and requiring no further
appeal. [Citations.]" (Id.
at p. 660.)
assertion of a contrary rule appears to rest entirely on
court dealt with at least a dozen major contentions before reaching the one
relevant here, which was that a restitution order in favor of the victim's
mother was ' "inappropriate"
(not introduced at
trial) that [she]
had sought a
her son and
loss was not
or sworn testimony.' (Ibid.) The court held that 'by
his failure to
object, defendant forfeited
any claim that
the order was
merely unwarranted by
the evidence, as
distinct from being
unauthorized by statute. [Citations.]'
[Citation.]" (
"Respondent apparently reads Brasure as a
repudiation or abandonment of the rule noted above, i.e., that no predicate
objection is required to challenge the sufficiency of the evidence on
appeal. We cannot join in this reading. The Supreme Court itself explicitly
reaffirmed the stated rule in People v. Butler (2003) 31 Cal.4th 1119,
1126 . . . . Nor is a contrary rule suggested by [People v. Smith (2001)
24 Cal.4th 849], 852. . . . the one decision cited on this point in
decisions imposing a forfeiture of objections going to defects of form or
procedure, such as a failure to state reasons for a sentence choice or to
make a required finding.
[Citation.] It did not purport to
hold that a party may similarly forfeit an objection to the sufficiency of
the evidence. Brasure cannot be
understood to have adopted such a rule."
(In re K.F., supra, at
p. 661.)
Accordingly,
we will address appellant's contention.
As
described in the probation officer's report, count five was based on appellant
using a stolen credit card to make a $2,643.36 purchase of a computer and
accessories from a Best Buy store.
claim of unauthorized use of a credit card from their customer and sustained a
financial loss connected with that transaction.
We glean from this Citibank absorbed the loss from the fraudulent
transaction. Notwithstanding the
probation officer's recommendation that the court award restitution to Best
Buy, no evidence was presented by Best Buy that they sustained any loss. To the contrary, the evidence showed that
they had no idea if they sustained a loss.
Citing
246 (Birkett) and
Cal.App.4th 932, 944 (Hamilton),
respondent argues that a court must order restitution to a victim who has
suffered economic loss regardless of that victim's reimbursement from other
sources. In general, we do not disagree
with this contention. In Birkett,
the Court of Appeal had upheld a trial court order that split a mandatory
probationary restitution award for the full amount of certain direct victim
losses between the victims themselves and the insurers who had partially
reimbursed them. (Id. at p. 229.) The issues
before the Supreme Court were whether the 1994 laws governing mandatory
restitution as a condition of adult probation gave insurers a right to
restitution insofar as they had reimbursed their insureds for crime-related
losses, and if not, whether trial courts nonetheless had discretion to
allocate mandatory probationary restitution awards between insurers and
insureds to reflect such reimbursements.
(Id. at p. 228.) Our Supreme Court held that restitution could
not be awarded to insurers that partially reimbursed the direct victims for
their losses, nor could the court divide the full amount of restitution between
the victims and their insurers. (
court noted that "the criminal restitution scheme should always require
the offender to pay the full cost of his crime, receiving no windfall from the
fortuity that the victim was otherwise reimbursed, but that the rights of
reimbursing third parties, aside from the state's own Restitution Fund, should
be resolved in other contexts." (
In contrast to this case, there was no question in Birkett that the victims had suffered an economic loss; the court
had held a restitution hearing at which the court took evidence about the
amount of the victims' losses. (
defendant and the defendant's mother.
When the victim sued them in a civil action, the
mother's insurer settled the claim on her behalf. (Id. at p. 935.) The Court of
Appeal held that the victim restitution orders imposed in the criminal actions
could not be offset by settlement payments in the civil action because the defendant
did not procure the insurance policies or pay the insurance premiums. (Id.
at p. 942.)
The crucial
difference between this case and Hamilton
is that the defendant in Hamilton was
not being asked to pay for a loss for which there was no evidence to support
the award. Rather, he was being asked to
pay for the actual loss he caused even though the victim had received an
insurance settlement. The value of the
loss appellant caused in this case was $2,643.36; either Citibank
sustained such a loss, Best Buy did not.
There is no authority allowing imposition of a restitution order for
which there is no supporting evidence.
Accordingly,
we will strike the restitution order as it pertains to Best Buy.
Presentence Custody
Credits under Section 4019
When
appellant was sentenced in October 2011 for crimes he committed in July 2009,
the court awarded him 768 days of presentence custody credits and 384 days of
conduct credits. Appellant was arrested
on September 10, 2009, and he remained in custody until he was sentenced to
Appellant
argues on equal protection grounds that he was entitled to the enhanced conduct
credits provided by an amendment to section 4019 that became operative on
October 1, 2011.
Prior to
sentencing, a criminal defendant may earn credits while in custody to be
applied to his or her sentence by performing assigned labor or for good
behavior. Such credits are collectively
referred to as "conduct credit."
(People v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3.)
Before
January 25, 2010, conduct credits under section 4019 could be accrued at the
rate of two days for every four days of actual time served in presentence
custody (sometimes referred to a one third time or credits calculated at 33
percent). (Stats.1982, ch. 1234, § 7, p.
4553 [former § 4019, subd. (f) ]; People v. Dieck, supra, 46 Cal.4th at
p. 939 [section 4019 provides a total of two days of conduct credit for every
four-day period of incarceration].)
September 28, 2010, a defendant could accrue presentence conduct credit at a
rate of two days for every two days spent in actual custody (sometimes called
one-for-one credits) 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 such as
appellant. (Stats. 2009–2010, 3d
Ex.Sess., ch. 28, §§ 50, 62 [the January 2010 amendment to § 4019, subds. (b),
(c), & (f) ].)
name="_ftnref15" title="">[15]
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 the enhanced credits. (Stats. 2010, ch. 426, § 2.) By its express terms, the newly created
section 4019, subdivision (g), declared these September 28, 2010 amendments
applicable only to prisoners confined for a crime committed on or after that
date, expressing legislative intention that they have prospective application
only. (Stats. 2010, ch. 426, § 2.)
This brings
us to legislative changes made to section 4019 in 2011 as relevant to
appellant's equal protection challenge.
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, again expressing
legislative intent for prospective application only.
defendants sentenced to jail or prison for crimes committed on or after October
1, 2011 may earn presentence conduct credit at that rate. (§ 4019, subds.(b),
(c), & (f); Stats.2011, ch. 15, § 482; Stats.2011, ch. 39, § 53.) That is, the amendment to section
4019 deleted conduct credit restrictions imposed on defendants with prior
serious or violent felony convictions, those committed for serious felonies,
and persons required to register as sex offenders.
Notwithstanding
the express legislative intent that
the changes to section 4019, operative October 1, 2011, (hereafter the October
2011 amendment) are to have prospective application only —i.e. to crimes
committed on or after the operative date of the statute, appellant contends
equal protection clauses of the federal and California Constitutions if it is
not applied retroactively.
Preliminarily,
we note that to succeed on an equal protection claim, a defendant must first
show that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.
(People v. Wilkinson (2004) 33 Cal.4th 821, 836–837.)
Appellant
contends that In re Kapperman (1974)
11 Cal.3d 542 and People v. Sage
(1980) 26 Cal.3d 498 support his equal protection argument.
In Kapperman, supra, 11 Cal.3d 542,
our 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. (Id. 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.
Our Supreme
Court recently confirmed, "[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. Kapperman
does not hold or suggest that prisoners serving time before and after the
effective date of a statute authorizing conduct credits are similarly
situated." (People v. Brown (2012) 54
Cal.4th 314, 330 (Brown).)
Although
the Supreme Court in Brown was
concerned with the January 2010 amendment to section 4019 (Brown, supra, 54 Cal.4th
at p. 318), the reasoning of Brown applies with equal force to the
prospective-only application of the current version of section 4019.
As can be
seen, in Brown, our Supreme Court expressly determined that Kapperman
does not support an equal protection argument, at least insofar as conduct
credits are concerned. (Brown, supra,
54 Cal.4th at pp. 328–330.) In rejecting
the defendant's argument that the January 2010 amendments to section 4019
should apply retroactively, the 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.)
More importantly,
in Brown, the Supreme Court confirmed
that the October 2011 amendments to Penal Code section 4019 have prospective
application only. The court noted that
the defendant had filed a supplemental brief in which he contended that he was
entitled to retroactive presentence conduct credits under the 2011 amendment to
Penal Code section 4019. The Supreme
Court stated that this legislation did not assist the defendant because the
"changes to presentence credits expressly 'apply prospectively . . . to prisoners
who are confined to a county jail [or other local facility]
1, 2011.' (§ 4019, subd. (h), added
by Stats. 2011, ch. 15, § 482, and amended by 2011, ch. 39, § 53.) Defendant committed his offense in 2006." (Brown,
supra, 54 Cal.4th at p. 322, fn.
11.) Similarly, here, appellant
committed his offenses in 2009.
Sage
is similarly inapposite because it involved a prior version of section
misdemeanants, but not felons. (Sage, supra, 26 Cal.3d at p.
508.) Our Supreme Court found that there
was neither "a rational basis for, much less a compelling state interest
in, denying presentence conduct credit to detainee/felons." (Ibid.) The purported equal protection violation at
issue here is temporal, rather than based on the defendant's status as a
misdemeanant or felon. In Brown,
supra, 54 Cal.4th at page 329, the Supreme Court acknowledged that
"one practical effect of [the Sage decision] was to extend presentence
conduct credits retroactively to detainees who did not expect to receive them,
and whose good behavior therefore could not have been motivated by the prospect
of receiving them." However, the
Supreme Court declined to read Sage as implicitly
holding that prisoners serving time before and after a conduct credit statute
takes effect are similarly situated for purposes of equal protection, because
that proposition was not considered in the case. (Id.
at p. 330.)
Finally,
for equal protection purposes, even if we were to agree that the time that
appellant spent in county jail between October 1, 2011 and the time he was
sentenced on October 17, 2011, appellant was similarly situated to other
defendants who committed their crimes after October 1, and were in presentence
custody, 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.]" (People v. Hofsheier (2006) 37 Cal.4th
1185, 1200; see also People v. Ward (2008) 167 Cal.App.4th 252, 258
[rational basis review applicable to equal protection challenges based on
sentencing disparities].)
We perceive
such a plausible reason in this case as to the period of time defendant was in
custody after October 1, 2011.
As our
Supreme Court has acknowledged, "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 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."
(Ibid.)
name="_ftnref17" title="">[17]
), 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.' " (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 Fourteenth 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 Brown, supra, 54 Cal.4th 314, "to
increase credits reduces 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.
Defendant
committed his crimes in 2009. At that
time, his ability to earn conduct credit was limited to two days for every four
days of actual time served in presentence custody. (Stats. 1982, ch. 1234, § 7.)
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. 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.
Finding no
equal protection violation, we affirm appellant's custody credit award.
Disposition
We modify
the judgment by striking the restitution order awarding Best Buy
$2,643.36. The clerk of the court is
directed to amend the abstract of judgment accordingly and forward a copy to
the Department of Corrections and
Rehabilitation. As so modified the
judgment is affirmed.
_______________________________
ELIA,
Acting P. J.
WE CONCUR:
____________________________________
BAMATTRE-MANOUKIAN,
J.
____________________________________
MÃRQUEZ, J.
name="_ftn1" title="">[1] People
v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero).
name="_ftn2" title="">[2] Miranda
v. Arizona (1966) 384 U.S. 436.
