P. v. Ruff



















Filed 2/7/13
P. v. Ruff 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NOT TO
BE PUBLISHED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opinion has not been certified for publication or ordered published for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.













IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----






>

THE PEOPLE, Plaintiff and Respondent, v. JULIUS LEE RUFF, Defendant and Appellant.

C069408 (Super. Ct. No. CM034768)

Defendant Julius Lee Ruff pled no
contest to corporal injury
to the parent of one’s child (Pen. Code, § 273.5, subd. (a))href="#_ftn1" name="_ftnref1" title="">[1] and admitted a prior
prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to five
years in state prison and awarded 121 days of presentence credit (81 actual and
40 conduct).

On appeal, defendant contends
(1) the trial court erred in relying on a prior serious felony conviction
that was neither pled nor proved to reduce his conduct credits, and (2) he
is entitled to additional conduct credits pursuant to the Criminal Justice
Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482)
under equal protection principles.
Following the California Supreme Court’s decision in >People v. Lara (2012) 54 Cal.4th 896 at
page 906, footnote 9 (Lara), we
reject both contentions. We affirm the
judgment.

DISCUSSIONhref="#_ftn2" name="_ftnref2" title="">[2]

>I

>Dismissed Prior Strike
Conviction

Defendant contends that the trial
court’s reliance on a dismissed prior strike conviction to reduce his conduct
credits violated the pleading and proof requirements of People v. Lo Cicero (1969) 71 Cal.2d 1186 (>Lo Cicero).) We reject this contention.

A.

>Background

The trial court calculated
defendant’s conduct credits under the September 28,
2010,
amendments to sections 4019 and 2933.
Under the law in effect at the time, a defendant was entitled to one day
of conduct credit for each day of presentence confinement. (Former § 2933.) A defendant with a prior serious felony
conviction received two days of conduct credit for every four days spent in
presentence custody. (Former
§§ 2933, 4019.)

In July 2011, the first information
alleged a section 667.5, subdivision (b), prior prison term enhancement, based
on a 2009 conviction for burglary
(§ 459). The information was
amended to omit the prior prison term allegation and to include a prior strike
allegation based on the same burglary conviction, now alleged as a conviction
for first degree burglary.

At the change of plea hearing, href="http://www.mcmillanlaw.com/">defense counsel asked if the prior strike
allegation in the amended information could be changed to a prior prison term
allegation. The prosecutor agreed, and
defendant pled no contest to the corporal injury charge and admitted the prior
prison term allegation in exchange for a dismissal of all other charges and a
maximum sentence of five years in state prison.
The trial court then asked the prosecutor if, by amending the
information to add a prior prison term allegation and omit the prior strike
allegation, he was “in a sense dismissing that strike in the interest of
justice?” The prosecutor replied,
“That’s correct, Your Honor.” Over
defendant’s objection that the prior prison term was not pled and proved in the
proceeding, the trial court relied on the 2009 burglary conviction to reduce
defendant’s conduct credits.

B.

>Analysis

In a case decided after briefing was
concluded, the California Supreme Court held that a prior conviction does not
have to be formally pled and proved in order to limit a defendant’s conduct
credits. (Lara, supra, 54 Cal.4th at p. 906.) Due process in the award of credits entails
“sufficient notice of the facts that restrict [a defendant’s] ability to earn
credits and, if he [or she] does not admit them, a reasonable opportunity to
prepare and present a defense.” (>Ibid.)

The prior burglary conviction was
alleged in the prior prison term allegation in the first information and was
alleged as a prior strike conviction in the amended information. While the prior prison term allegation was
substituted for the now dismissed prior strike allegation in the plea
agreement, the prior burglary conviction remained in the amended information
that formed the basis of the plea.

During the plea colloquy, the trial
court asked defendant: “And with regards
to the amended special allegation, that you suffered a prior prison term within
the meaning of . . . [s]ection 667.5(b); to wit, a conviction of
May 7th, 2009, out of Butte County Superior Court, case number CM030834,
for a violation of . . . section 459, first degree; do you admit that
you suffered that prior conviction?”
Defendant replied: “admit.”

First degree burglary is a serious
felony. (§ 1192.7, subd.
(c)(18).) Defendant was informed of, and
admitted to the prior conviction for first degree burglary during the change of
plea hearing, satisfying the due process requirements of Lara, supra, 54 Cal.4th 896.


II

>Prospective Application
of Section 4019

Defendant’s second contention is
based on the October 1, 2011, amendments to section
4019 in the Realignment Act.

The Realignment Act amended section
4019, entitling defendants to two days of conduct credits for every two days of
presentence custody. (§ 4019,
subds. (b), (c), (f).) The award of
credits is not reduced by a defendant’s current or prior conviction for a
serious felony. This provision applies
prospectively to defendants serving presentence incarceration for crimes
committed on or after October 1, 2011. (§ 4019, subd. (h).) Defendant’s crime was committed before October 1,
2011.

Defendant argues that, despite the express terms
of section 4019, “equal protection compels that the amendment to section 4019
effective October 1, 2011 be applied to award
[defendant] one-for-one credit.” This
argument was rejected by the California Supreme Court in Lara. (Lara, supra, 54 Cal.4th at p. 906,
fn. 9.)

In Lara,
the Supreme Court explained its rejection of defendant’s equal protection
argument as follows: “As we there [>People v. Brown (2012) 54 Cal.4th 314,
328-330] explained, ‘“[t]he obvious purpose”’ of a law increasing 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.]
“[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, at p. 906, fn. 9.)

Accordingly, defendant is not
entitled to the additional accrual of conduct credits under the October 1,
2011, amendment to section 4019.

DISPOSITION

The judgment is affirmed.







HOCH , J.







We concur:







RAYE , P. J.







MURRAY , J.