Filed
1/29/13 P. v. Tamplin
CA5
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JACQUELINE RENEE TAMPLIN,
Defendant and
Appellant.
F063678
(Super.
Ct. No. F09903063)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Don D. Penner,
Judge.
Donna J.
Hooper, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Charles A. French and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On May 23, 2009, appellant Jacqueline
Renee Tamplin committed burglary. On August
17, 2011, she pled no contest to the burglary charge and admitted
one prior strike conviction. At the September 14, 2011, sentencing
hearing, the trial court awarded presentence conduct credit pursuant to former
Penal Code section 4019.
name="_ftnref2" title="">[1] (Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010.) Tamplin contends she is entitled to
additional presentence credit based upon the amendments to section 4019 that
became operative October 1, 2011. (Stats. 2011, 1st Ex. Sess. 2011-2012, ch.
12, § 35, eff. Sept. 21, 2011,
operative Oct. 1, 2011.) We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Tamplin was
charged with second degree burglary. It
was alleged the burglary was committed on May 23, 2009. It
also was alleged that Tamplin had suffered a prior strike conviction for first
degree robbery. Tamplin pled guilty to
second degree burglary and admitted one prior strike on the understanding that
at sentencing her motion pursuant to People
v. Superior Court (Romero)
and she would be placed on probation, with jail time of no more than 180 days
as a condition of probation.
Tamplin
failed to appear at her January 26,
2011, sentencing because she was in custody in Monterey
County on a separate offense. On August
5, 2011, Tamplin appeared for sentencing on the Fresno
County offense. The trial court indicated that given the Monterey
County offense, it would not adhere
to the indicated sentence.
Thereafter,
on August 17, 2011, Tamplin
pled no contest to second degree burglary and admitted the strike prior. On September
14, 2011, she was sentenced to the low term of 16 months for the
second degree burglary conviction, doubled because of the strike prior. Tamplin was awarded credit for 61 days
actually served and an additional 30 days’ credit pursuant to former section
4019.
DISCUSSION
Tamplin’s
sole contention on appeal is that additional presentence credits should be
awarded to her based upon the amendments to section 4019, operative October 1, 2011. She contends failure to award the additional
credit constitutes a violation of equal protection principles. This court previously has addressed, and
rejected, the equal protection arguments raised here by Tamplin in our decision
in People v. Ellis (2012) 207
Cal.App.4th 1546 (Ellis).
Section
4019, subdivision (h) specifically states that the changes increasing credits
are to apply prospectively only. In
the Legislature “was to have the enhanced rate apply only to those defendants who committed their crimes on or after October 1, 2011. [Citation.]â€
(Ellis, supra, 207 Cal.App.4th
at pp. 1552-1553.) It is undisputed
that Tamplin’s offense was committed well before this date.
“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.]â€
(People v. Brown (2012) 54
Cal.4th 314, 328 (Brown).) Contrary to Tamplin’s contention, the
amendments to section 4019 effective October
1, 2011, do not treat similarly situated groups in a disparate
manner. (Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.)
The
amendments to section 4019 address “‘future
conduct in a custodial setting by providing increased incentives for good
behavior.’ [Citation.]†(Ellis,
supra, 207 Cal.App.4th at p. 1551.)
Prisoners serving time before and after the effective date of a statute
affecting conduct credits are not similarly situated for purposes of equal
protection analysis. (
pp. 329-330, disapproving In re
Kapperman (1974) 11 Cal.3d 542.) The
correctional purpose of a statute that rewards behavior is not served by
rewarding prisoners who served time in custody prior to the effective date of
the incentives because they could not have modified their behavior in response
to the incentives. (Brown, supra, 54 Cal.4th at p. 329.)
Tamplin’s
offense was committed well before the effective date of the amendment.
to October 1, 2011, are not
similarly situated to those committing crimes on and after October 1, 2011, for purposes of
conduct credits, we reject Tamplin’s contentions.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Poochigian, J.
further statutory references are to the Penal Code.
