P. v. Patterson

 

 

 

 

 

Filed 1/22/14  P. v. Patterson CA3

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

COPY

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(El Dorado)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JOSEPH ANTONE PATTERSON,                           Defendant and Appellant.

C071346   (Super. Ct. No. P11CRF0133)

 

 

            Defendant
Joseph Antone Patterson pleaded guilty to first degree burglary (Pen. Code, § 459;
statutory references that follow are to the Penal Code), five counts of receipt
of stolen property (§ 496, subd. (a)), felon in possession of a firearm (§ 12021,
subd. (a)) and admitted two prior prison term allegations (§ 667.5, subd.
(b)). The trial court imposed a stipulated term of 10 years in state prison and
awarded 387 days of presentence credit, consisting of 259 actual days and 128
days of conduct credit.  The trial court
subsequently rejected two pro per motions from defendant seeking additional
presentence credits.  

            On
appeal, defendant contends he is entitled to additional conduct credits as a
matter of equal protection because similarly situated defendants who post bail
are entitled to earn conduct credits at a higher rate in state prison and
because the trial court did not
retroactively apply the conduct credit provisions of the href="http://www.fearnotlaw.com/">Criminal Justice Realignment Act of 2011
(Realignment Act) (Stats. 2011, ch. 15, § 482).  We affirm the judgment.

discussion

            We
will forego a discussion of the facts of defendant’s crimes as they are
unnecessary to resolve this appeal.

            Defendant
committed his crimes in February and March 2011.  Under the law in effect at the time,
defendant, who was convicted of first degree burglary, a serious felony (§1192.7,
subd. (c)(18)), was entitled to earn two days of conduct credit for every four
days of presentence custody.  (Former §§ 2933,
4019 (Stats. 2010, ch. 426).)

            Defendant
contends that “[d]ue to the most recent changes to credits calculations in the
Code, effective October 1, 2011, appellant will
receive day for day credits for the time he spends in prison. (§ 2933,
subd. (b).)”  According to defendant, had
he been freed on bail, “he could receive 257 days of conduct credits for the
257 days he instead spent in jail because he could not post bail, and therefore
ea[r]ned only 128 days of conduct credits.”  Defendant claims the conduct credit provisions
applying to state prison (§ 2933) and presentence custody (§ 4019) serve
the same purpose, “to encourage good behavior of those in custody.”  This, he concludes violates equal protection
as there is no rational basis for the disparate href="http://www.sandiegohealthdirectory.com/">treatment of defendants who
can and cannot make bail.  

            As
we understand defendant’s argument, had he been able to make bail, he would not
have begun his period of incarceration
until the date of sentencing, that is, November 28, 2011.  From that time forward he
will receive day for day credits, effectively reducing his time in
incarceration in half.  But, since he was
not able to post bail, he was incarcerated for 257 days more than his sentenced
time, for which he will only receive 128 days credit.  Put simply, because he was not able to post
bail, he will have to serve his sentence in prison plus 128 days, unlike a
presentence detainee who was able to post bail.

            “
‘The equal protection guarantees of the Fourteenth Amendment and the California
Constitution are substantially equivalent and analyzed in a similar fashion.  [Citations.]’  [Citation.]  We first ask whether the two classes are
similarly situated with respect to the purpose of the law in question, but are
treated differently.  [Citation.]  If groups are similarly situated but treated
differently, the state must then provide a rational href="http://www.mcmillanlaw.us/">justification for the disparity.  [Citation.]  However, a law that interferes with a
fundamental constitutional right or involves a suspect classification, such as
race or national origin, is subject to strict scrutiny requiring a compelling
state interest.  [Citation.]”  (People v. Lynch (2012) 209 Cal.App.4th
353, 358.)

            Section
2933, subdivision (b) states:  â€œFor every
six months of continuous incarceration, a prisoner shall be awarded credit
reductions from his or her term of confinement of six months.  A lesser amount of credit based on this ratio
shall be awarded for any lesser period of continuous incarceration.  Credit should be awarded pursuant to
regulations adopted by the secretary.  Prisoners
who are denied the opportunity to earn credits pursuant to subdivision (a) of
Section 2932 shall be awarded no credit reduction pursuant to this section.  Under no circumstances shall any prisoner
receive more than six months’ credit reduction for any six-month period under
this section.”

            As
defendant correctly points out, this provision entitles a state prisoner to
earn one additional day of credit for each day of incarceration.  This “[c]redit is a privilege, not a right,”
which “must be earned and may be forfeited pursuant to the provisions of
Section 2932.”  (§ 2933, subd. (c).)
 However, defendant errs in stating this
is a result of any recent change to the law.

            Defendant’s
statement that this is a result of recent changes in the calculation of presentence
conduct credits effective October 1, 2011 is not correct.  The Legislature did change the calculation of
conduct credits, effective October 1, 2011, through  the Criminal Justice Realignment Act of 2011
(Realignment Act) (Stats. 2011, ch. 15, § 482).  The Realignment Act amended the law,
entitling defendants to two days of conduct credit for every two days of
presentence custody.  (§ 4019,
subds. (b), (c), (f).)  The award of
credits is not reduced by a defendant’s prior conviction for a serious or
violent felony.  This provision applies
prospectively to defendants serving presentence incarceration for crimes
committed on or after October 1, 2011.  (§ 4019, subd. (h).)

            The
Realignment Act also changed section 2933 by deleting a provision governing the
calculation of presentence conduct credits.  (See § 2933, subd. (e); former § 2933,
subd. (e) (Stats. 2010, ch. 426).)  The
provision upon which defendant relies, subdivision (b) of section 2933 was not
changed by the Realignment Act or any other provision effective October 1, 2011.  The ability of state
prisoners to earn day for day conduct credits was in the initial version of
section 2933 that was passed in 1982.  (See
former § 2933, subd. (a) (Stats. 1982, ch.1234, § 4) [“For every six
months of full-time performance in a credit qualifying program, as designated
by the director, a prisoner shall be awarded worktime credit reductions from
his term of confinement of six months. A lesser amount of credit based on this
ratio shall be awarded for any lesser period of continuous performance”].)  The current version of subdivision (b) was
enacted in 2009, with an effective date of January 25, 2010. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 38.)  

            In
spite of this error, defendant has nonetheless identified a potential equal
protection claim.  As he points out, a
convicted criminal who is in every other respect in the same situation as
defendant except that he makes bail could spend less total time in confinement
than defendant -- the prisoner who makes bail serves the entire confinement in
state prison earning credits at a one for one rate, while defendant earns
credits at the two for four rate in presentence custody.  However, this is not a new issue.  Before the Legislature initiated the series
of changes regarding presentence conduct credits in 2010, section 4019 awarded
conduct credits at a two for four days rate (see People v. Brown (2012) 54 Cal.4th 314, 318 and fn. 4 (>Brown)), while section 2933 allowed
prisoners to earn credits at the one for one ratio. 

            California courts
uniformly rejected equal protection challenges to the different ratios for the
calculation of credits used in sections 4019 and 2933:  â€œNumerous cases have held that various classes
of detainees are not similarly
situated with respect to the award of conduct credits.  In a context very similar to the one before
us, for example, a nonviolent felon earns fewer conduct credits during
presentence confinement in a local detention facility (§[§] 2900.5, 4019)
than he or she does once sentenced to state prison and enrolled in a qualifying
work program (§ 2933).  The courts
have uniformly rejected equal protection claims challenging this disparity, finding
that pretrial detainees and state prison inmates are not similarly situated for
purposes of the statutes [citations], or alternatively that the disparate
treatment is justified by the state’s interest in rehabilitating convicted
felons.  [Citations]”  (People
v. Ramos (1996) 50 Cal.App.4th 810, 822 (Ramos), see also People v.
Caddick (1984) 160 Cal.App.3d 46, 53; In re Cleaver (1984) 158 Cal.App.3d 770, 773-774; >People v. Rosaia (1984) 157 Cal.App.3d
832, 845, disapproved on other grounds in People
v. Horn (1989) 213 Cal.App.3d 701, 708; People v. Davis (1984) 154 Cal.App.3d 253, 255>; People v. DeVore (1990) 218 Cal.App.3d
1316, 1319-1320; People v. Poole
(1985) 168 Cal.App.3d 516, 524-526; People
v. Ross (1985) 165 Cal.App.3d 368, 377; People v. Valladares (1984) 162 Cal.App.3d 312, 320-321; >People v. Caruso (1984) 161 Cal.App.3d
13, 19-20.)

            As
the Court of Appeal noted in Ramos:  â€œ ‘While state prison inmates are conclusively
guilty and presumptively in need of rehabilitation, pretrial felony detainees
are presumptively innocent and may not require rehabilitation.  [Citations.]  The difficulty of establishing prison-style
work programs in county jails for pretrial detainees--who may make bail, or
have work programs interrupted by court appearances and other
obligations--further distinguishes pretrial detainees from state prisoners and
justifies the slightly disparate scheme for awarding conduct credits to the
former class.’  [Citations.]”  (Ramos,
supra, 50 Cal.App.4th at p. 822.)

            Defendant
relies primarily on People v. Sage
(1980) 26 Cal.3d 498, which held that a version of former section 4019
authorizing conduct credits for pretrial detainee misdemeanants but not for
pretrial detainee felons violated equal protection.  (Id.
at pp. 507-508.)  Sage was distinguished in Ramos
and the other decisions rejecting the equal protection challenge to former
section 4019.  (Ramos, supra, 50 Cal.App.4th at pp. 822-823.)  In Brown,
the California Supreme Court “decline[d] to read Sage for more than it expressly holds,” and found defendants
serving time before and after the effective date to changes in section 4019
were not similarly situated.  (>Brown, supra, 54 Cal.4th at p. 330.)
 Like the Supreme Court in >Brown, we decline to extend >Sage to the different treatment of
pretrial detainees and state prisoners.

            Defendant’s
claim is indistinguishable from the previously rejected claims attacking the
disparate treatment of pretrial detainees and state prisoners.  In addition, the United States Supreme Court
has rejected an equal protection challenge to New York law denying “good time” credit
to presentence detainees while “permitting credit up to the full period of
ultimate incarceration for state prisoners who were released on bail prior to
sentencing[.]”  (McGinnis v. Royster (1973) 410 U.S. 263, 264-265 [35 L.Ed.2d 282,
285-286].)  Following the overwhelming
weight of authority, we find defendant is not similarly situated to state
prisoners released on bail before sentencing, and accordingly reject his claim.

            As
previously noted, the Realignment Act changed the law so that defendant would
be entitled to earn presentence conduct credit at the two for two rate in spite
of his being convicted of a serious felony.  This change in the law does not apply to
defendant, who committed his crime before the effective date of the Realignment
Act, October
1, 2011.  (§ 4019, subd. (h).)  Defendant contends the failure to apply this
change retroactively violates equal protection as he is similarly situated to
prisoners who commit their crimes on or after the effective date of the
Realignment Act.  

            Our
high court recently rejected an equal protection claim regarding conduct
credits awarded under the Realignment Act in People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.  Reiterating its reasoning in >Brown, the court stated, “ ‘ “[t]he
obvious purpose” ’ of a law increasing conduct credits ‘ “is to affect the
behavior of inmates by providing them with incentives to engage in productive
work and maintain good conduct while they are in prison.”  [Citation.]  â€œ[T]his incentive purpose has no meaning if an
inmate is unaware of it.  The very
concept demands prospective application.” ’  (Brown,
at p. 329, quoting In re Strick
(1983) 148 Cal.App.3d 906, 913.)  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.)”  (Lara, supra, 54 Cal.4th at p. 906, fn. 9.)

            >Brown and Lara apply here.  Consequently,
we reject defendant’s claim.

>

 

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                              HULL                           , J.

 

 

 

We concur:

 

 

 

          RAYE                           , P. J.

 

 

 

          HOCH                          , J.