P. v. Perkins
Filed 3/19/13 P. v. Perkins 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opinion has not been certified for publication or ordered published for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.
JOSEPH PERKINS,
Defendant and
Appellant.
H037931
(Monterey
County
Super. Ct.
Nos. SS100810A,
SS101331A)
Defendant
Joseph Perkins appeals from a post-judgment
order denying his motion for additional presentence conduct credit under
Penal Code section 4019.
name="_ftnref1" title="">[1] For reasons that we will explain, we will
affirm the order.
In March
2011, in case No. SS100810A, defendant pleaded no contest to two counts of
receiving stolen property (former
§ 496, subd. (a)). The
offenses took place on or about January 26 and February 6, 2010.
In case No. SS101331A, defendant pleaded no contest to assault by
means of force likely to produce great bodily
subd. (a)(1)). The offense took
place on or about May 16, 2010. In case No. SS110369A, defendant pleaded
no contest to making criminal threats (§ 422). Defendant entered the pleas in all three
cases pursuant to a plea bargain in which he would receive a total term of five
years in prison.
In May 2011, the trial court
sentenced defendant to a total term of five years in prison pursuant to the
plea bargain. Regarding
presentence custody credits, in case No. SS100810A, the court granted
defendant 134 days of custody credits, consisting of 90 actual days plus
44 days conduct credit. In case No. SS101331A, the court
granted defendant 540 days of custody
credits, consisting of 360 actual days plus 180 days conduct
credit. No custody credits were awarded
in case No. SS110369A.
In June 2011, defendant filed a
trial court corrected defendant’s presentence custody credits in case
No. SS100810A by granting him one additional day of actual custody credit,
for a total of 135 days of custody credits.
The abstract of judgment was amended accordingly. Defendant subsequently filed a brief
pursuant to People v. Wende (1979) 25
Cal.3d 436, in his appeal from the
judgment. This court affirmed the judgment in an
unpublished opinion. (
In the
meantime, on November 22, 2011,
defendant filed a motion in the trial court seeking additional presentence
conduct credit in case Nos. SS100810A and SS101331A. Defendant contended that, based on equal
protection principles, his conduct credit should be calculated pursuant to
the October 2011 version of section 4019, which was operative
after he was sentenced in May 2011, and that he was therefore entitled to
46 additional days in case No. SS100810A and 180 additional days in case No. SS101331A. The district attorney filed written
opposition to the motion, and defendant filed a reply brief in support of the
motion.
On February 1, 2012, the trial court
denied defendant’s motion for additional conduct credit, finding no equal
protection violation in the prospective application of the October 2011 version
of section 4019. On February 6, 2012, defendant filed a notice of
appeal from the court’s order.
Defendant
contends that his conduct credit in case Nos. SS100810A and SS101331A
should be calculated pursuant to the current version of section 4019,
which was operative after he was sentenced in May 2011, and that, under
the current version, he is entitled to additional conduct credit. Although he acknowledges that the current
version of section 4019 “provides that it is applicable solely to cases where
the offenses were committed on or after
October 1, 2011†(italics
added), he contends that the equal protection clauses of the
that the current version be applied to him.
The
Attorney General contends that, based on People
v. Brown (2012) 54 Cal.4th 314 (Brown)
and People v. Lara (2012) 54 Cal.4th
896 (Lara), which were decided after
defendant filed his opening brief in this appeal, defendant is not entitled to
additional conduct credit.
The current
version of section 4019 generally provides that a defendant may earn conduct
credit at a rate of two days for every two-day period of actual custody. (§ 4019, subds. (b), (c) &
(f).) However, as defendant
acknowledges, the current version of section 4019 states that the conduct
credit rate “shall apply prospectively and shall apply to prisoners who
are confined to a county jail [or other local facility] for a crime committed
on or after October 1, 2011. 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).) In this case, defendant committed his crimes
and was sentenced prior to October 1, 2011. Thus the October 2011 version of
section 4019, which provides for prospective application, does not apply
to defendant. (§ 4019,
subd. (h); Brown,
fn. 11; Lara,
People v. Ellis (2012) 207
Cal.App.4th 1546, 1550 (Ellis).)
We are not
persuaded by defendant’s argument that the equal protection clauses of the
state and federal Constitutions require that the October 2011 version of
section 4019 be retroactively applied to him.
“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under
the equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.†’
[Citation.] ‘This initial inquiry
is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.†’ [Citation.]â€
(Brown, supra, 54 Cal.4th at p. 328.)
We find
protection issue raised by defendant in this case. In Brown,
the California Supreme Court held that a former version of section 4019,
effective January 25, 2010,
applied prospectively, and that the equal protection clauses of the state and
federal Constitutions did not require retroactive application. (Brown,
supra, 54 Cal.4th at p. 318.) In addressing the equal protection issue, the
court determined that “prisoners who served time before and after [the January
2010 version of] section 4019 took effect are not similarly situated . . .
.†(Brown,
supra, at p. 329.) On this point, the California Supreme Court
found In re Strick (1983) 148
Cal.App.3d 906 (Strick), “persuasiveâ€
and quoted from that decision as follows:
“ ‘The obvious purpose of the new section,’ . . . ‘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.]
‘[T]his incentive purpose has no meaning if an inmate is unaware of it. The very concept demands prospective
application.’ [Citation.] ‘Thus, inmates were only similarly situated
with respect to the purpose of [the new law] on [its effective date], when they
were all aware that it was in effect and could choose to modify their behavior
accordingly.’ [Citation.]†(Brown,
supra, at p. 329.) The California Supreme Court also disagreed
with the defendant’s contention that its decision in People v. Sage (1980) 26 Cal.3d 498 “implicitly rejected the
conclusion†that the Court of Appeal reached in Strick, namely “that prisoners serving time before and after a
conduct credit statute takes effect are not similarly situated.†(Brown,
supra, at p. 329.)
Defendant
argues that his case is analogous to In
re Kapperman (1974) 11 Cal.3d 542 (Kapperman),
where the California Supreme Court concluded that equal protection required the
retroactive application of a statute granting credit for time served in local
custody before sentencing and commitment to state prison. In Brown,
however, the California Supreme Court explained that “Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing
situated.†(Brown, supra, 54
Cal.4th at p. 330.)
Lastly, we
observe that in a footnote in Lara,
the California Supreme Court rejected the contention, similar to the one made
by defendant in this case, that the prospective application of the October 2011
version of section 4019 denied the defendant equal protection. (Lara,
supra, 54 Cal.4th at p. 906, fn.
9.) Citing Brown, the California Supreme Court in Lara explained that prisoners who serve their pretrial detention
before the effective date of a law increasing conduct credits, and those who
serve their detention thereafter, “are not similarly situated with respect to
the law’s purpose.†(
Following
conduct credit under the October 2011 version of section 4019. (See Auto
Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455; Ellis,
[“prospective-only application†of the October 2011 version of section 4019
does not violate equal protection].)
The trial
court’s February 1, 2012 order is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
By order of May 18, 2012, we have granted defendant’s request for judicial
notice of the record in his prior appeal, H037055, People v. Perkins. Our
summary of the background includes some information that we have taken from the
record in the prior appeal.
