P. v. Summers





















Filed 2/24/12 P. v. Summers CA4/2















NOT TO BE PUBLISHED IN OFFICIAL REPORTS







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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. BARRY MARLON SUMMERS, Defendant and Appellant.

E053155 (Super.Ct.No. FSB029047) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County. Ronald M.
Christianson, Judge. Affirmed.

James R. Bostwick, Jr.,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, and Scott C. Taylor and Meredith S. White, Deputy
Attorneys General, for Plaintiff and Respondent.

In 2002, defendant Barry Marlon Summers was found
guilty on three counts of committing a lewd or lascivious act on a child under
14 years. (Pen. Code, § 288, subd.
(a).)

On count 1, pursuant to the “one strike” law
(Pen. Code, § 667.61), defendant was sentenced to an indeterminate term of
15 years to life. On count 3, he was
sentenced to eight years (the upper term).
On count 2, he was sentenced to two years (one-third the midterm). Thus, the total sentence was 25 years to
life. In calculating defendant’s
presentence conduct credits, the trial court applied the 15 percent limitation
of Penal Code section 2933.1.

Defendant appealed. In 2004, we affirmed the judgment. (People v. Summers (Feb. 4, 2004, E032940) [name="SR;13135">nonpub. opn.].)

In January 2011, the prosecution and defendant
stipulated to reduce the sentence on count 3 to six years (the midterm), based
on Cunningham v. California (2007)
549 U.S. 270
[166 L.Ed.2d 856, 127 S.Ct. 856]. Thus,
the total sentence became 23 years to life.

In March 2011, defendant filed a motion to
“correct” the sentence. In it, he
argued, among other things, that the trial court had violated href="http://www.fearnotlaw.com/">ex post facto principles by applying
Penal Code section 2933.1 to offenses committed before its enactment. The trial court denied the motion without a
hearing. Defendant appealed.

Defendant’s sole appellate contention is that the
trial court erred by applying Penal Code section 2933.1 to all three counts,
because two of the counts were committed before Penal Code section 2933.1 went
into effect. We disagree. Hence, we will affirm.

I

FORFEITURE

Preliminarily, the People contend defendant
forfeited his present contention by failing to raise it in his previous appeal.

“[O]rdinarily, no appeal lies from an order
denying a motion to vacate a judgment of conviction on a ground which could
have been reviewed on appeal from the judgment.
[Citation.]” (>People v. Totari (2002) 28 Cal.4th 876,
882.) This rule has been applied not
only to a motion to vacate a judgment of conviction, but also to “any
postjudgment attack upon the conviction or sentence.” (People
v. Gallardo (2000) 77 Cal.App.4th 971, 980-981.) “‘In such a situation appeal from the
judgment is an adequate remedy; allowance of an appeal from the order denying
the motion to vacate would virtually give defendant two appeals from the same
ruling and, since there is no time limit[] within which the motion may be made,
would in effect indefinitely extend the time for appeal from the judgment. [Citation.]
The considerations are the same whether the matters sought to be
presented by motion to vacate actually were presented to the trial court prior
to judgment of conviction, or whether such matters should have been but were
not so presented.’ [Citation.] In other words, ‘an order ordinarily is not
appealable when the appeal would merely bypass or duplicate appeal from the judgment
itself.’ [Citation.]” (People
v. Totari, supra, at
p. 882.)

However, “[a]n exception to the general rule of
nonappealability of a postjudgment order of denial occurs when the final
judgment at issue is void.
[Citation.]” (>People v. Totari, supra, 28 Cal.4th at p. 885, italics omitted.) “A sentence not authorized by law is subject
to correction whenever the error comes to the attention of the trial court or a
reviewing court. [Citations.] In such a case, the sentence, or at least its
unlawful part, is void.
[Citations.]” (>People v. Chagolla (1983) 144 Cal.App.3d
422, 434 [Fourth Dist., Div. Two].)

Here, defendant is claiming that the sentence was
unauthorized. This claim has not been
forfeited.

II

DISCUSSION

A. Statutory Construction.

Defendant argues that Penal Code section 2933.1,
by its terms, does not apply to count 2 or count 3.

Penal Code section 2933.1, subdivision (a)
applies to “any person who is convicted of a [violent]
felony. . . .” A lewd act
on a child is a violent felony. (Pen.
Code, § 667.5, subd. (c)(6).)

Penal Code section 2933.1, subdivision (c) then
provides that presentence conduct credit “shall not exceed 15 percent of the
actual period of confinement for any person specified in subdivision (a).”

Penal Code section 2933.1, however, expressly
applies only “to offenses listed in subdivision (a) that are committed on or
after the date on which this section becomes operative.” (Pen. Code, § 2933.1, subd. (d).) It became operative on September 21, 1994. (Stats. 1994, ch. 713, § 2,
p. 3448.)

In this case, as the People concede, “count 1 is
the only count which definitively occurred after . . . September 21, 1994.” The evidence established only that count 2
occurred sometime between December 1993 and December 1995 and count 3 occurred
sometime between May 1994 and May 1996.
(People v. Summers, >supra, E032940, slip opn. at
p. 3.) Thus, Penal Code section
2933.1 applied only to count 1.

Under People
v. Ramos (1996) 50 Cal.App.4th 810, however, this required the trial court
to limit defendant’s credits on count 2 and count 3. Ramos
held that, where a defendant is convicted of both a violent and a nonviolent
offense, Penal Code section 2933.1 limits the defendant’s credits on both. It reasoned that the language of Penal Code section
2933.1, subdivision (a) “limits to 15 percent the maximum number of conduct
credits available to ‘any person who is convicted of a [violent] felony offense
listed in [Penal Code] Section 667.5.’
That is, by its terms, [Penal Code] section 2933.1 applies to the
offender not to the offense and so limits a violent felon’s conduct credits
irrespective of whether or not all his or her offenses come within [Penal Code]
section 667.5. The Legislature could
have confined the 15 percent rule to the defendant’s violent felonies if that
had been its intention.
[Citation.]” (>Ramos, at p. 817; see also >In re Reeves (2005) 35 Cal.4th 765,
775-776.)

Admittedly, Penal Code section 2933.1,
subdivision (d) specifically excludes certain offenses, not certain offenders. Nevertheless, under the literal language of
the statute, count 1 is an “offense[] listed in subdivision (a).” (Pen. Code, § 2933.1, subd. (d).) Moreover, it is an “offense[] . . .
committed on or after the date on which [Penal Code section 2933.1] bec[a]me[]
operative.” Thus, defendant is a “person
specified in subdivision (a).” (Pen.
Code, § 2933.1, subd. (c).) It
follows that he cannot earn >any presentence conduct credit in excess
of the 15 percent limit — even on count 2 or count 3.

B. Ex Post Facto Analysis.

Defendant argues that this result violates the
federal and state constitutional prohibitions on ex post facto laws.

“[A]n impermissible href="http://www.mcmillanlaw.com/">ex post facto law is one which ‘“makes
more burdensome the punishment for a crime, after its commission.”’ [Citation.]”
(In re E.J. (2010) 47 Cal.4th
1258, 1279.)

Weaver v.
Graham (1981) 450 U.S. 24 [67 L.Ed.2d 17, 101 S.Ct. 960] applied ex post
facto principles to credits. There,
after the defendant had been convicted and sentenced, a statutory amendment was
adopted reducing the rate at which postsentence conduct credit could be
earned. (Id. at pp. 25-27.) The href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court held that the amendment, as applied to the defendant,
was unconstitutionally ex post facto. (>Id. at p. 35.) It explained that “two critical elements must
be present for a criminal or penal law to be ex post facto: it must be
retrospective, that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it. [Citations.]”
(Id. at p. 29, fns.
omitted.) The state argued that the
amendment was not retrospective because it applied only after its effective
date. (Id. at p. 31.) The
Supreme Court disagreed: “For prisoners
who committed crimes before its enactment, [the amendment] substantially alters
the consequences attached to a crime already completed, and therefore changes
‘the quantum of punishment.’
[Citation.]” (>Id. at p. 33.)

In In re
Ramirez (1985) 39 Cal.3d 931, however, the California Supreme Court
distinguished Weaver. There, after the defendant had committed his
crime, been convicted, and been sentenced, a statutory amendment increased the
range of types of bad conduct that would result in a loss of postsentence
conduct credit; it also increased the amount of credit lost. (Ramirez,
at p. 933.)

Our high court held that the amendment was not
retrospective. (In re Ramirez, supra, 39
Cal.3d at pp. 936-937.) It
explained: “It is true that the
. . . amendments apply to petitioner only because he is a prisoner
and that he is a prisoner only because of an act committed before the
. . . amendments. Nonetheless,
the increased sanctions are imposed solely because of petitioner’s prison
misconduct occurring after the . . . amendments became
effective. In other words, the
. . . amendments apply only to events occurring after their enactment. . . . Accordingly, the
. . . amendments, which change the sanctions for that
misconduct, do not relate to petitioner’s original crime and are not
retrospective under Weaver.” (Ibid.)

“‘In general, application of a law is retroactive
only if it attaches new legal consequences to, or increases a party’s liability
for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.]
Thus, the critical question for determining retroactivity usually is
whether the last act or event necessary to trigger application of the statute
occurred before or after the statute’s effective date. [Citations.]
A law is not retroactive “merely because some of the facts or conditions
upon which its application depends came into existence prior to its
enactment.” [Citation.]’ [Citation.]”
(In re E.J., >supra, 47 Cal.4th at
pp. 1273-1274.)

Here, the “last act or event” is count 1 —
defendant’s commission of a violent felony after September 21, 1994. As in Ramirez,
the result is an increase in the punishment for an earlier offense. Nevertheless, because the increase in
punishment is triggered by the defendant’s voluntary commission of an
additional offense following the effective date of the amendment, the amendment
is not unconstitutionally ex post facto.
(See also John L. v. Superior
Court (2004) 33 Cal.4th 158, 174-176 [amendment changing evidentiary
standards and burden of proof in juvenile probation violation proceedings is
not retrospective because it is triggered by new misconduct].)

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

RICHLI

J.

We
concur:



McKINSTER

Acting P.J.





MILLER

J.