P. v. Sands

 

 

 

 

Filed 1/30/14  P. v. Sands 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NOT TO BE PUBLISHED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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ARIC RAYMOND SANDS,                           Defendant and Appellant.

C073808   (Super. Ct. No. 11F04461)

 

 

 

            Appointed
counsel for defendant Aric Raymond Sands has asked this court to review the
record to determine whether there exist any arguable issues on appeal.  (People v. Wende (1979) 25 Cal.3d 436
(Wende).)  Defendant has filed a supplemental brief
seeking additional credit.  We shall
affirm the judgment.

BACKGROUND

            On
or around June 20,
2011, defendant drove a pickup truck
without the owner’s consent or permission.  Defendant was charged with driving or taking
of a motor vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen
vehicle (Pen. Code,[1] § 496d, subd. (a)) with a prior strike and four prior prison
term allegations (§§ 1170.12, 667.5, subd. (b)).

            Defendant
pleaded no contest to unlawful driving or taking of a motor vehicle and
admitted four prior prison terms, with the remaining charge and strike
allegation dismissed in the interests of justice.  Pursuant to the plea agreement, defendant
received a sentence of eight years in state prison; the trial court stayed execution of the
sentence and placed defendant on five years of formal probation subject to
various terms and conditions including completing a residential drug treatment program.


            Defendant
subsequently admitted to violating his probation by failing to successfully
complete the program.  The trial court
executed the eight-year term and awarded 523 days of presentence credit (383
actual and 140 conduct).  It subsequently
amended the award to 573 days (383 actual and 190 conduct) and again to reflect
48 days spent in the program, for an award of 621 days (431 actual and 190
conduct).

            Defendant
appeals.  He did not obtain a certificate
of probable cause.

DISCUSSION

            Counsel
filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on
appeal.  (Wende, supra, 25 Cal.3d 436.) 
Defendant filed a supplemental
brief contending he is entitled to the application of a more favorable
conduct credit formula under the principals of equal protection.  We disagree.

            “The
essence of an equal protection claim is that two groups, similarly situated
with respect to the law in question, are treated differently.  [Citations.]”  (Grossmont
Union High School Dist. v. State Dept. of Education (2008) 169 Cal.App.4th
869, 892.)

            In
People v. Brown (2012) 54 Cal.4th
314, our Supreme Court held that a prior amendment to section 4019 must be read
prospectively only, even though the Legislature 
did not expressly so state, and even though this meant “prisoners whose
custody overlapped the statute’s operative date . . . earned credit
at two different rates.”  (>Brown, supra, at p. 322.)  >Brown reasoned that “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.”  (Id. at p. 328.)

            Following
Brown’s lead, two appellate courts
have concluded that persons who commit crimes before and after the October 1, 2011, effective date of the new credit formula are not similarly situated,
and therefore those on the “wrong” side of the dateline have not suffered an equal protection violation.  (See People
v. Ellis (2012) 207 Cal.App.4th 1546, 1550-1552 (Ellis); People v. Kennedy
(2012) 209 Cal.App.4th 385, 396-397.)

            And
although two other appellate courts have found the two groups to be similarly
situated, those courts have held that treating those two groups differently is
subject to rational-basis scrutiny--not “strict” scrutiny as defendant seeks to
apply herein--and that the disparate treatment caused by legislative
line-drawing regarding accrual of presentence credits survives such scrutiny.  (See People
v. Verba (2012) 210 Cal.App.4th 991, 995-997 (Verba); People v. Rajanayagam (2012) 211
Cal.App.4th 42, 53-56 (Rajanayagam).)

            Like
the Verba court:  “We see nothing irrational or implausible in a
legislative conclusion that individuals should be punished in accordance with
the sanctions and given the rewards in effect at the time they committed their
offense.”  (Verba, supra, 210 Cal.App.4th at p. 997.)  Accordingly, even if we found the two groups
similarly situated, we would find a rational basis for the disparate treatment,
and therefore defendant has not established an equal protection violation in
this case.

            Defendant
adds that he is entitled to retroactive application of the amendment to section
4019 under the rule of lenity.  Under the
rule of lenity, “California [courts] will ‘ “construe a penal statute as favorably to the
defendant as its language and the circumstances of its application may
reasonably permit . . . .” ’  [Citation.]”  (In re
Michael D. (2002) 100 Cal.App.4th 115, 125.)  “However, application of the rule of lenity is
inappropriate unless, after consideration of the intent of the statute, the
canons of statutory construction, and an analysis of the legislative history,
the statute is still ambiguous.”  (>Ibid.)

            Section
4019, subdivision (h) provides:  “The
changes to this section enacted by the act that added this subdivision shall
apply prospectively and shall apply to prisoners who are confined to [specified
facilities] 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.”  While the first sentence of subdivision (h)
expresses the Legislature’s intent that application of the enhanced conduct
credits are limited to defendants whose crimes are committed on or after
October 1, 2011, the second sentence of the subdivision arguably implies
any days earned by a defendant on or after October 1, 2011, should be
calculated at the rate required by the current law.

            Two
appellate courts have addressed this ambiguity and interpreted section 4019, subdivision
(h) to give effect to both sentences, such that neither sentence will be
rendered inoperative, superfluous, void, or insignificant.  In Ellis,
the court concluded: “In our view, the Legislature’s clear intent was to have
the enhanced rate apply only to those
defendants who committed their crimes on or after October 1, 2011.  [Citation.]  The second sentence does not extend the
enhancement rate to any other group, but merely



 

specifies the rate at which all others are
to earn conduct credits.  So read, the
sentence is not meaningless, especially in light of the fact the October 1,
2011, amendment to section 4019, although part of the so-called realignment
legislation, applies based on the date a defendant’s crime is committed,
whereas section 1170, subdivision (h), which sets out the basic sentencing
scheme under realignment, applies based on the date a defendant is sentenced.”  (Ellis,
supra, 207 Cal.App.4th at p. 1553.)

            In
Rajanayagam, the court concluded:  “[W]e cannot read the second sentence to imply
any days earned by a defendant after October 1, 2011, shall be calculated at
the enhanced conduct credit rate for an offense committed before October 1,
2011, because that would render the first sentence superfluous.”  (Rajanayagam,
supra, 211 Cal.App.4th at p. 51.)  The appellate court explained its reasoning:  “[S]ubdivision (h)’s second sentence attempts
to clarify that those defendants who committed an offense before October 1, 2011, are to earn credit under the prior law.  However inartful the language of subdivision
(h), we read the second sentence as reaffirming that defendants who committed
their crimes before October 1, 2011, still have the opportunity to earn
conduct credits, just under prior law.  [Citation.]
 To imply the enhanced conduct credit
provision applies to defendants who committed their crimes before the effective
date but served time in local custody after the effective date reads too much
into the statute and ignores the Legislature’s clear intent in subdivision (h)’s
first sentence.”  (Id. at p. 52.)

            We
agree with the reasoning of Ellis and
Rajanayagam.  Because the ambiguity cited by defendant has
been properly resolved by statutory construction of subdivision (h), the rule
of lenity is not applicable.

            Having
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.

 

 

>DISPOSITION

            The
judgment is affirmed.

 

 

 

                                                                                              DUARTE                      , J.

 

 

 

We concur:

 

 

 

          BLEASE                       , Acting P. J.

 

 

 

          NICHOLSON              , J.