P. v. Valdovinos
Filed 7/30/12 P. v. Valdovinos CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SIXTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CLAUDIO LORENZO VALDOVINOS,
Defendant and Appellant.
H037095
(Santa
Clara County
Super. Ct.
No. C1074501)
I. INTRODUCTION
Defendant
Claudio Lorenzo Valdovinos pleaded no contest to two felony offenses,
& Saf. Code, § 11377, subd. (a)) and removing or taking an officer’s weapon
other than a firearm (Pen. Code, § 148, subd. (b)),
and misdemeanor resisting, delaying, or obstructing an officer (§ 148,
subd. (a)(1)). He admitted the
allegations that he had one prior violent or serious felony within the meaning
of the “Three Strikes” law (§§ 667, subds. (b) – (i), 1170.12) and had served a
prison prior term (§ 667.5, subd. (b)). The
trial court sentenced defendant to a total term of four years in the state
prison.
On
appeal, defendant contends that the trial court erred in (1) denying his motion
to suppress evidence under section 1538.5; (2) failing to stay the sentence on
the misdemeanor conviction pursuant to section 654; and (3) failing to award
conduct credit under the version of section 4019 operative on October 1, 2011.
For
reasons that we will explain, we find no merit in defendant’s contentions and
we will therefore affirm the judgment.
II. FACTUAL BACKGROUND
Our summary of the
facts is taken from the reporter’s transcript of the hearing on the
held on February 1, 2011.
Police
Officers Francisco Vallejo and Matthew Williams are members of the San Jose
Police Department’s Metro Unit, which focuses on gang suppression and
street-level narcotics. On April 18, 2010, at about 10:50 p.m. the officers were patrolling an
area near Lancelot Lane and
Vernice Drive in San
Jose, which they knew was an area with “high drug and
gang activity.” In particular, Officer
Williams mentioned to Officer Vallejo that the residence located at 1195
Lancelot Lane “was related to gang and drug
activity.” Officer Williams had made an
arrest at that address in 2009 after seeing a baggie of methamphetamine at the
residence.
As
Officer Vallejo and Officer Williams were patrolling in an unmarked police
vehicle while wearing police uniforms, they observed a group of people standing
in front of the residence at 1195 Lancelot Lane. They then saw two people separate themselves
from the group and enter a car that was parked on the street. The police officers drove past 1195
Lancelot Lane very slowly, enabling them to see that
defendant and another person were sitting in the car with the dome light on for
a long time while manipulating something in their hands.
Officer
Vallejo knew from his training and experience that “people who deal drugs often
deal in their vehicles instead of their residences.” Suspecting that the people in the car were
conducting a drug transaction, Officer Vallejo and Officer Williams made a
U-turn and parked about three feet behind the car. Both officers then got out of their car and
approached the suspect vehicle. Officer
Vallejo approached the passenger side, while Officer Williams approached the
driver’s side. As he did so, Officer
Williams had a clear view of the passenger side of the car. He saw defendant, who had tattoos indicating
that he was a gang member, immediately reach down towards the floorboard of the
car. For safety reasons, Officer
Williams said to him, “ ‘Let me see your hands.’ ”
Defendant
did not comply with Officer Williams’ request to show his hands. When Officer Vallejo was about two or three
feet away from the passenger door, defendant opened the door, jumped out, and
charged towards him. Officer Vallejo
could see that defendant “was reaching towards his pockets and waistband.” As defendant
“drove all his weight” into Officer Vallejo, he was able to brace
himself and “get a hold” of defendant.
The two of them then fell to the ground and struggled. Defendant managed to get out of Officer Vallejo’s
grip and tried to run away.
As
defendant attempted to flee, Officer Vallejo was able to grab defendant’s shirt
and trip him to the ground. Officer
Williams assisted Officer Vallejo by trying to hold defendant down while
Officer Vallejo repeatedly told defendant to “ ‘Calm down.’ ” Defendant “refused to obey” the officers and
again managed to get up off the ground.
At
that point, Officer Williams pulled out his baton and “proceeded to baton”
defendant, but “[i]t didn’t work.”
Although Officer Williams struck defendant with the baton several times
in the arm and shoulder areas, it appeared to have no effect on him. Defendant was able to grab the baton from
Officer Williams, but he dropped it and ran away after Officer Williams brought
up his hand gun. Defendant ran about “a
car’s length” before Officer Vallejo caught up to him and tripped him
again. As defendant “[tried] to
struggle” out of the officers’ grips, Officer Williams pulled out his taser and
tased defendant three times. Defendant
got to his feet and attempted to run away after being tased the first and
second times. Officer Williams held the
taser down longer the third time and called to Officer Vallejo to handcuff
defendant. Defendant did not submit to
any of the officers’ demands until he was handcuffed.
After
handcuffing defendant, Officer Vallejo looked for evidence by tracing the path
that defendant took during his struggle with the police officers. The path was about three to four car lengths
long and went from the passenger side of the suspect vehicle to the point where
defendant was on the ground after being tased and handcuffed. About two to three feet from where defendant
was lying on the ground, Officer Vallejo found a “round plastic baggie
containing a white crystal-like substance,” which he recognized from his
training and experience to be methamphetamine.
III. PROCEDURAL BACKGROUND
The complaint
filed on April 22, 2010,
charged defendant with two felony offenses, possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 1) and removing or
taking an officer’s weapon other than a firearm (§ 148, subd. (b); count
2), and misdemeanor resisting, delaying, or obstructing an officer (§ 148,
subd. (a)(1); count 3). The complaint
also alleged that defendant had been convicted of one prior violent or serious
felony within the meaning of the Three Strikes law (§§ 667, subds. (b) – (i),
1170.12) and had served a prison prior term (§ 667.5, subd. (b)).
After
the preliminary hearing held on September
8, 2010, defendant was held to answer on all charges. The information filed on September 16, 2010, included the same charges and
special allegations as the complaint.
On
January 14, 2011, defendant
filed a motion to suppress evidence pursuant to section 1538.5. He argued that all of the evidence used to
charge him on counts 1, 2 and 3 should be suppressed because the evidence had
been discovered as the result of an illegal detention. According to defendant, he was detained when
Officer Williams ordered him to show his hands and Officer Vallejo “blocked
[defendant’s] only exit from the car.” The detention was illegal, defendant argued,
because the police officers’ observations that defendant was walking in a high
crime area and handling an unidentified object in a parked car were
insufficient for a reasonable suspicion that defendant was involved in criminal
activity absent any connection to 1195 Lancelot Lane.
The
People opposed the motion to suppress, contending that defendant was not
detained until he submitted to the police officers’ show of authority, which
occurred when he was tased and handcuffed.
Alternatively, the People argued that even if the police officers’
initial contact with defendant constituted a detention, a brief investigatory
detention was justified due to the following:
The officers’ knowledge of gang activity in the area; their knowledge of
past narcotic activity at 1195 Lancelot Lane; the separation of the group of
people in front of the residence upon the appearance of the officers’ unmarked
police car; defendant was sitting in a car with the dome light on with another
person on for more than a minute; all of this was occurring at a dark location
at nighttime; and defendant’s reaction to the officers. Finally, the People argued that the issue of
the lawfulness of the police officers’ conduct should be submitted to the jury.
At
the hearing on the motion to suppress held on February 1, 2011, the trial court denied the motion. The court found that defendant had not
submitted to the authority of law enforcement until he was handcuffed, based on
the evidence showing that defendant did not obey the initial command to show
his hands, got out of the car and ran away, got up after an officer had taken
him down and applied physical force, grabbed one officer’s baton, dropped it,
and then ran away after the officer showed his gun. Relying on the decision in
621 (Hodari D.), the court stated,
“It doesn’t sound to me like he was physically restrained until they finally
tackled him and cuffed him. And he
certainly didn’t submit to authority.”
After
the motion to suppress was denied, defendant entered into a
contest to all counts and admitted the allegations that he had one prior
violent or serious felony conviction within the meaning of the Three Strikes
law (§§ 667, subds. (b) – (i), 1170.12) and had served a prison prior term
(§ 667.5, subd. (b)) in exchange for a sentence of not more than four years in
the state prison.
During
the sentencing hearing held on June 23, 2011, the trial court heard and denied
defendant’s motion pursuant to People v.
Superior Court (Romero) (1996)
13 Cal.4th 497. The court then
imposed a total term of four years, consisting of 32 months on count 1
(possession of methamphetamine; Health & Saf. Code, § 11377,
subd. (a)) and 16 months on count 2 (removing or taking an officer’s
weapon other than a firearm; § 148, subd. (b)).
The court struck the prior prison term in the interests of justice under
section 1385 and imposed a concurrent 30-day county jail term on count 3
(resisting, delaying, or obstructing an officer; § 148, subd. (a)(1)),
with 30 days credit for time served. The
court awarded defendant 137 days of credit for time served and 68 days of
presentence conduct credit.
Defendant
subsequently filed a timely notice of
appeal based on the denial of his motion to suppress evidence and matters
occurring after the entry of his no contest plea.
IV. DISCUSSION
to Suppress Evidence
On appeal,
defendant contends that the trial court erred in denying his motion to suppress
evidence under section 1538.5 because his detention was illegal, and therefore
all of the police officers’ observations after his detention must be suppressed
as the fruits of the illegal detention.
According to defendant, he was seized within the meaning of the Fourth
Amendment when he exited the car and “ ‘drove his weight’ ” into Officer
Vallejo, who then “grabbed [him], tripped him, and the two of them fell to the
ground.” Defendant also claims that
Officer Williams “further immobilized” defendant by striking him with his
baton.
Defendant
argues that the police officers did not have reasonable suspicion to detain him
based on their observations that he was sitting in a car in a high crime area
where one of the officers had previously arrested another person for
methamphetamine possession.
Alternatively, defendant claims that the police officers illegally
detained defendant when they “blocked” defendant’s vehicle with their vehicle
and ordered him to show his hands.
With
regard to his attempts to flee from the police officers, defendant asserts that
“he was exercising his right to avoid an unwanted encounter with the police
after they had taken concrete and articulable steps to detain him.” Defendant also argues that his use of force
against Officer Vallejo was “legally privileged” because a person who is being
illegally detained “may oppose the officer with reasonable force.”
The
People reject defendant’s contentions and maintain that defendant was not
detained when he was initially contacted by the police officers, since it is
well established that an officer may approach the occupants of a car to
ascertain their well-being without an individualized suspicion that they are
involved in criminal activity. The
People also argue that defendant was not detained because he did not submit to
the officer’s show of authority.
Alternatively,
the People assert that the circumstances justified detention, including the
gang activity in the area, the narcotics activity at 1195 Lancelot Lane, the
time of day, defendant’s presence in a car with another person with the
interior light on for more than a minute, the movement of defendant’s hands
toward the car’s floorboards, and defendant’s attempt to flee when the officers
approached.
The
People also argue that detention was justified because defendant committed
battery upon an officer (§§ 242, 243, subd. (b)) when he “hurled himself” at
Officer Vallejo. Defendant did not have
a right to use force to resist the officer, according to the People, because
Officer Vallejo did not use or threaten to use excessive force.
Under
the applicable standard of review, we determine that the trial court did not
err in denying defendant’s motion to suppress evidence. “ ‘The
review of a
trial court’s ruling
on a motion
to suppress is
well established.
to the trial
court’s factual findings,
express or implied,
where supported by
substantial evidence.’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.) “If there is conflicting testimony, we must
accept the trial court’s resolution of disputed facts and inferences, its
evaluations of credibility, and the version of events most favorable to the
People, to the extent the record supports them.
[Citations.]” (
342.) “ ‘In determining whether, on the
facts so found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment. [Citations.]’
[Citations.]” (
In
the present case, the trial court made the following findings: (1) defendant did not comply with Officer
Williams’ request to show his hands; (2) defendant got out of the car and ran
away; (3) after Officer Vallejo took defendant down, defendant got up;
(4) defendant was batoned and took the officer’s baton; (5) the officer
drew his gun; (6) defendant dropped the baton, kept running and was tased;
and (7) defendant was not physically restrained until “they finally tackled him
and cuffed him.” Based on these factual
findings, the court determined that defendant had not submitted to authority
and was not detained until the police officers succeeded in physically
restraining him. Noting that the
detention is physical force that’s successful or submission to authority,” the
court denied the motion to suppress evidence.
The
trial court properly relied on the decision in Hodari D. in ruling on defendant’s motion to suppress
evidence. The United States Supreme
Court has instructed that “[a] person is seized by the police and thus entitled
to challenge the government’s action under the Fourth Amendment when the officer,
‘ “by means of physical force or show of authority,” ’ terminates or restrains
his [or her] freedom of movement, [citation]. . . .” (Brendlin
v. California
249, 254 (Brendlin).) Citing its earlier decision in
instructed that “[a] police officer may make a seizure by a show of authority
and without the use of physical force, but there is no seizure without actual
submission; otherwise, there is at most an attempted seizure, so far as the
In
Hodari D., the issue was whether the
juvenile, Hodari D., was seized within the meaning of the Fourth
Amendment. (Hodari D., supra, 499 U.S. at p. 623.) Hodari D. was in a group of four or five youths
huddled around a car in a high-crime area of Oakland
when police officers approached the group in an unmarked car. The youths apparently panicked, fled, and
were chased by the officers. Hodari D.
did not see an officer until the “officer was almost upon him, whereupon he
tossed away what appeared to be a small rock.
A moment later, [the officer] tackled Hodari, handcuffed him, and
radioed for assistance.” (
The
Supreme Court stated in Hodari D. that
“[t]he narrow question before us is whether, with respect to a show of
authority as with respect to application of physical force, a seizure occurs
even though the subject does not yield.
We hold that it does not.” (
The court explained that “assuming that [the officer’s] pursuit in the
present case constituted a ‘show of authority’ enjoining Hodari to halt, since
Hodari did not comply with that injunction he was not seized until he was
tackled. The cocaine abandoned while he
was running was in this case not the fruit of a seizure, and his motion to
exclude evidence of it was properly denied.”
(Id. at p. 629.)
Further
clarifying the test for a seizure within the meaning of the Fourth Amendment,
the Supreme Court stated in Brendlin
that “what may amount to submission depends on what a person was doing before
the show of authority: a fleeing man is
not seized until he is physically overpowered, but one sitting in a chair may
submit to authority by not getting up to run away.” (Brendlin,
supra, 551 U.S. at p. 262.)
Having
reviewed the record in this matter, we determine that substantial evidence
supports the trial court’s finding that defendant did not submit to the police
officers’ show of authority at any time.
The police officers testified that defendant failed to comply with
Officer Williams’ command to show his hands, continually attempted to flee from
the police officers, and resisted their efforts to physically restrain him
until Officer Williams tased him for a third time and Officer Vallejo was able
to handcuff him.
We
also determine that substantial evidence supports the trial court’s finding
that defendant was not seized within the meaning of the Fourth Amendment until
he was tased for the third time and handcuffed.
It was not until that point that the police officers succeeded in their
attempts to seize defendant, a fleeing suspect, by physically overpowering
him. (Brendlin, supra, 551 U.S.
at p. 262.)
We
are not convinced by defendant’s argument that the police officers could not
lawfully detain him due to his use of force against Officer Vallejo. Defendant asserts that his use of force was
privileged under the ruling in People v.
Jones (1970) 8 Cal.App.3d 710, 717 (Jones),
that “an officer engaged in an unlawful detention for questioning may be
resisted by means of reasonable force.
[Citation.]” Defendant
acknowledges that section 834a
name="_ftnref2" title="">[2]
provides a person has a duty to refrain from using force to resist an arrest,
but contends that the Jones court
properly determined that section 834a does not apply to a detention. Defendant also acknowledges that the ruling
in Jones was rejected in
Cal.App.4th 321, 329-333 (Evans),
which concerned a civil action arising from the plaintiff’s claim that he was
injured during a police detention. The
unlawful arrest or detention does not give license to an individual to strike
or assault the officer unless excessive
force is used or threatened; excessive force in that event triggers the
individual’s right of self-defense.
[Citations.]” (
Defendant
has not brought to our attention any published decision citing
officer “engaged in an unlawful detention for questioning may be resisted by
means of reasonable force.” (
Moreover, as the Evans court
stated, “If the ultimate determination of the lawfulness of the detention is a
troublesome question for trained legal minds, should there be a rule of law
allowing spur-of-the moment physical force triggered by the detainee’s lay
perception of the detention’s legal justification The mere positing of the question provides
the answer. No.” (Evans,
supra, 22 Cal.App.4th at p. 332-333.)
In
any event, the Jones decision has no
application here because the police officers were not able to engage defendant
in a detention for questioning upon their initial contact with him at the
suspect car, since he managed to escape Officer Vallejo’s grip and flee. As we have discussed, defendant was not
detained or seized within the meaning of the Fourth Amendment until the police
officers succeeded in physically overpowering him by means of taser and
handcuffs. By then, the police officers
had probable cause to arrest defendant for the offense of removing or taking
Officer Williams’ baton (§ 148, subd. (b)). (People
v. Celis (2004) 33 Cal.4th 667, 673 [probable cause exists when the facts
known to the arresting officer would persuade a reasonable person that the
arrestee has committed a crime].)
Defendant has therefore failed to show that he was detained in violation
of the Fourth Amendment’s prohibition of unreasonable searches and seizures.
For
these reasons, we conclude that the trial court did not err in denying
defendant’s motion to suppress evidence.
B. Sentencing
Error
Defendant
contends that the trial court erred in failing to stay execution of the 30-day
county jail sentence
name="_ftnref3" title="">
on the misdemeanor conviction for resisting, delaying, or obstructing an
officer (§ 148, subd. (a)(1); count 3) pursuant to section 654’s ban on
multiple punishments for offenses committed with a single criminal
objective. According to defendant, when
he “used force against Officer Vallejo, [he] had only a single criminal intent;
namely, he was intending to escape.
Thus, he cannot be punished for both taking the baton ([§] 148, [subd.]
(b)) and resisting arrest ([§] 148, [subd.] (a)(1)).”
The People disagree. They argue that the sentence on the
misdemeanor conviction was proper under the exception for crimes of violence
against multiple victims to section 654’s ban on multiple punishment,
because defendant “assaulted” two police officers. Defendant responds that the multiple victim
exception does not apply because the section 148, subdivision (a)(1) offense of
resisting arrest can be committed without the use of violence.
At the outset, we note that
defendant did not object to the sentence on count 3 at the time of
sentencing. However, a defendant’s claim
of sentencing error under section 654 generally “is not waived by failing
to object below.” (People v. Hester (2000) 22 Cal.4th 290, 295 (Hester).) We will therefore
address the merits of defendant’s claim.
Section 654 provides in pertinent
part, “An act or omission that is punishable in different ways by different
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision.” Thus, “[s]ection 654 precludes multiple
punishments for a single act or indivisible course of conduct. [Citation.]”
(Hester, supra, 22 Cal.4th at p. 294.)
Under section 654, “the trial court must stay execution of sentence on
the convictions for which multiple punishment is prohibited. [Citations.]”
(People v. Reed (2006) 38
Cal.4th 1224, 1227.)
The California Supreme Court has
further instructed that determining “[w]hether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.” (
Cal.2d 11, 19, disapproved on another ground in People v. Correa (June 21, 2012, S163273) __ Cal.4th __.)
The applicable standard of review is
well established. “Whether section 654
applies in a given case is a question of fact for the trial court, which is
vested with broad latitude in making its determination. [Citations.]
Its findings will not be reversed on appeal if there is any substantial
evidence to support them.
[Citations.] We review the trial
court’s determination in the light most favorable to the respondent and presume
the existence of every fact the trial court could reasonably deduce from the
evidence. [Citation.]” (People
v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Where, as here, the trial court did
not refer to section 654 during sentencing, “the fact that the court did not
stay the sentence on any count is generally deemed to reflect an implicit
determination that each crime had a separate objective. [Citations.]”
(People v. Tarris (2009) 180
Cal.App.4th 612, 626-627.) The court’s
implicit factual determination that the crimes involved more than one objective
must be sustained on appeal if it is supported by substantial evidence. (People
v. Osband (1996) 13 Cal.4th 622, 730.)
We find that substantial evidence
supports the trial court’s implicit determination that defendant’s crimes of
removing or taking Officer William’s baton (§ 148, subd. (b); count 2) and
resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1); count
3) had separate objectives. According to
the police officers’ testimony, when defendant got out of the suspect car upon
the police officer’s initial contact, he “drove all his weight” into Officer
Vallejo and the two fell to the ground in the ensuing struggle. Another struggle occurred when defendant got
up and attempted to flee, but Officer Vallejo grabbed defendant’s shirt and
tripped him to the ground. Officer
Williams assisted Officer Vallejo by trying to hold defendant down, but
defendant again managed to get up and attempt to flee. The officers could not prevent defendant’s
flight until Officer Williams tased him three times and Officer Vallejo
handcuffed him. Thus, the evidence shows
that defendant’s objective in violating section 148, subdivision (a)(1) by
resisting, delaying, or obstructing arrest was an attempt to avoid arrest by
the police officers. (See, e.g.,
Cal.App.4th 231, 239-240 [defendant’s objective in violating section 148,
subdivision (a)(1) was to resist arrest].)
Officer Williams attempted to stop
defendant’s flight by pulling out his baton and striking defendant several
times in the arm and shoulder areas, but he did not succeed in subduing
defendant. Instead, defendant grabbed
the baton from Officer Williams and only dropped it when Officer Williams
displayed his hand gun. It may be
reasonably inferred from this evidence that defendant’s separate objective in
violating section 148, subdivision (b) by grabbing Officer Williams’ baton was
to use the baton as a weapon and strike the officers who were pursuing him.
Since substantial evidence supports
the trial court’s implicit finding that each of defendant’s crimes had a
separate objective, we determine that the trial court did not err under section
654 by imposing a concurrent sentence on the misdemeanor conviction for
violating section 148, subdivision (a)(1).
Credit
The
trial court awarded defendant 68 days of presentence conduct credit. In his supplemental
he is entitled to 136 days of presentence conduct credit under the versions of
section 4019 and section 2933 that became effective on October 1, 2011.
The
People argue that the trial court correctly determined that defendant was
entitled to 68 days of conduct credit under the versions of section 4019 and
section 2933 that were in effect at the time of defendant’s sentencing in June
2011.
Section 4019
authorizes presentence credits for worktime and for good behavior.
(§ 4019, subds. (b) & (c); People
v. Dieck (2009) 46 Cal.4th 934, 939 (Dieck);
People v. Buckhalter (2001) 26
Cal.4th 20, 36.) These credits are
collectively referred to as “[c]onduct credit.”
(Dieck, supra, at p. 939, fn. 3.)
Subdivision (a) of section 4019 sets forth the types of confinement or
commitment for which a defendant may receive conduct credit under section 4019.
To determine how much
conduct credit the trial court should have awarded defendant, we first examine
the amendments to section 4019.
1. The January 25, 2010 version of section 4019
Defendant
committed the instant offenses in April 2010.
He entered no contest pleas in February 2011 and was sentenced in June
2011. As we will explain, the
calculation of defendant’s presentence conduct credit is governed by the
version of section 4019 effective January 25, 2010, and under this version, defendant is
entitled to 68 days of conduct credit.
At
the time defendant committed the instant offenses in April 2010, the version of
section 4019 in effect was the January 25, 2010 version.
Effective January 25, 2010, section 4019 was amended to allow defendants
to accrue custody credits at the rate of four days for every four days actually
served, except for those defendants who were required to register as a sex
offender, those committed for a serious felony (as defined in § 1192.7),
and those, like defendant in the present case, with a prior conviction for a
violent or serious felony. (Stats. 2009,
3d Ex.Sess. 2009-2010, ch. 28, § 50 [former § 4019, subds. (b), (c) &
(f)].) For these persons, conduct credit
under section 4019 accrued at the rate of two days for every four days of
actual time served in presentence custody, despite the January
25, 2010
amendments. (Stats. 2009,
subds. (b)(2) & (c)(2)].)
Effective
September 28, 2010, section 4019 was again amended.
The September 28, 2010 version provided that a defendant may earn
conduct credit at a rate of two days for every four-day period of actual
custody. (Stats. 2010, ch. 426, §§
2 & 5.) In the same legislation,
section 2933, which was previously applicable only to worktime credits earned
while in state prison, was also amended.
(Stats. 2010, ch. 426, § 1 [former § 2933, subd. (e)].) As of September 28, 2010, section 2933
instead of section 4019 applied to the calculation of presentence conduct
credits for those defendants sentenced to a prison term, with certain
exceptions. This amendment to section
2933 provided for one day of presentence conduct credit for one day of actual
custody, but excluded those inmates required to register as sex offenders,
those committed for a serious felony, and those, like defendant in the present
case, with a prior serious or violent felony conviction. Under this version of section 2933,
subdivisions (e)(1) and (e)(3), these prisoners remained subject to an award of
presentence conduct credits under section 4019, accruing at the rate of two
days for every four-day period of actual custody. However, the September 28, 2010 version of section 4019 was expressly made
applicable only to prisoners who committed a crime on or after September
28, 2010. (Former § 4019, subd. (g).)
In
the present case, we determine that defendant, who was in actual presentence
custody for 137 days, is thus entitled to 68 days conduct credit under the
version of section 4019 effective January 25, 2010. (See
In re Marquez (2003) 30 Cal.4th 14,
25-26 [explaining that under a prior version of section 4019 providing for
conduct credit at a rate of two days for every four-day period of actual
presentence custody, conduct credit is calculated by taking the number of
actual custody days, dividing it by four, discarding any remainder, and
multiplying the result by two].)
The October 2011 version of section 4019
Defendant
contends that principles of equal protection require that the version of
section 4019 operative October 1, 2011, be applied to him and that, under this
version, he is entitled to a total of 136 days conduct credit. We disagree.
Operative
October 1, 2011, the current version of section 4019 eliminates the
disqualification of defendants with prior serious felony convictions under
section 2933 that was in place under the September 28, 2010 version, and
generally provides that a defendant may earn conduct credit at a rate of
actual presentence custody.
(§ 4019, subds. (b), (c) & (f).) Section 4019 expressly provides that this
rate “shall apply prospectively” and that the rate applies to defendants who
are confined in local custody “for a crime committed on or after October
1, 2011.” (§ 4019, subd. (h).)
In
this case, defendant committed his crimes and the trial court sentenced him
Defendant contends, however, that the equal protection clauses of the
state and federal constitutions require that the October 2011 version of
section 4019 be applied to him. He
asserts that “[a] prison inmate who has previously received some conduct credit
under former sections 2933 and 4019 is similarly, if not identically, situated
to every prison inmate who will receive additional conduct credit under the new
statutes.” He further contends that a
prospective-only application of the October 1, 2011 version of section 4019
violates equal protection, based on
held that felons were similarly situated to all other jail inmates and that the
version of section 4019 effective then was violative of equal protection since
it denied conduct credit to felons who were sentenced to prison.
To
prevail on an equal protection claim, a defendant must first establish “ ‘that
the state has adopted a classification that affects two or more
manner.’ [Citations.]” (People
v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier).) Further, in
determining whether a statute violates equal protection, we apply different
levels of scrutiny to different types of classifications. (People
v. Wilkinson (2004) 33 Cal.4th 821, 836-837 (Wilkinson).) If, as in this
case, the statutory distinction at issue does not “touch upon fundamental
interests” and is not based on gender, no equal protection violation will be
found “if the challenged classification bears a rational relationship to a legitimate
state purpose. [Citations.]” (Hofsheier,
supra, at p. 1200; see
challenges a disparity in punishment for two battery offenses];
252, 258 [rational basis review applicable to equal protection challenges based
on sentencing disparities].)
Under
the rational relationship test, “ ‘ “ ‘a statutory classification . . . must be
upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification. [Citations.] Where there are “plausible reasons” for [the
classification], “our inquiry is at an end.” ’ ” ’ [Citations.]”
(Hofsheier, supra, 37 Cal.4th
at pp. 1200-1201, italics omitted.)
In
Kapperman, the California Supreme
Court considered the constitutionality of an express prospective limitation in
former section 2900.5, which limited custody credit “for time served in custody
prior to the commencement of [a] prison sentence” to those defendants
“delivered into the custody of the Director of Corrections on or after March 4, 1972, the effective date of
the section.” (Kapperman, supra, 11
Cal.3d at pp. 544-545.) The
limitation violated equal protection because the legislative classification—the
date of commitment to state prison—was not reasonably related to a legitimate
public purpose. (Id. at p. 545.)
We determine that
present case, because the issue raised in Kapperman
involved actual custody credit, not conduct credit. These two types of credit are distinguishable
because custody credit is awarded automatically on the basis of time served (§
2900.5), while conduct credit must be earned by a defendant (§ 4019). For the same reason, Carroll, supra, 35 Ill.2d
604, which addressed a statute granting prospective pretrial custody credit for
actual time in custody prior to conviction, is not helpful to defendant in this
case.
The decision in Sage is similarly unhelpful to defendant, because it involved a
prior version of section 4019 that allowed presentence conduct credits to
misdemeanants, but not felons. (
508.) The high court found that there
was neither a “rational basis for, much less a compelling state interest in,
denying presentence conduct credit to detainee/felons.” (Ibid.) Sage is
therefore distinguishable because the equal protection violation claim in that
case was based on the defendant’s status as a misdemeanant or felon. Moreover, Sage
is not dispositive because it did not address an issue of retroactivity.
Importantly, the primary focus of
the presentence conduct credit scheme set forth in section 4019 is the
encouragement of “ ‘ “minimal cooperation
and good behavior by persons temporarily detained in local custody before they
are convicted, sentenced, and committed . . . .” ’ [Citations.]”
(Dieck, supra, 46 Cal.4th at p. 939.)
Since a defendant who committed a crime and was sentenced prior to the
operative date of an amendment to section 4019 cannot be retroactively
encouraged to behave well during presentence custody, we find there is a
rational basis for the Legislature’s implicit intent that the amendment to section 4019 apply prospectively, and
prospective application furthers the primary focus of section 4019. This remains true where, as here, the
defendant has already earned the maximum amount of presentence conduct credit
available under a prior version of the statute and is only claiming entitlement
to additional conduct credit for the same good behavior that allowed the
defendant to earn the credit in the first place.
Therefore, we determine that
defendant is not entitled to additional presentence conduct credit under the
amendments to section 4019, operative October
1, 2011.
V. DISPOSITION
The judgment is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P. J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
DUFFY, J.
name="_ftnref5" title="">*
All further statutory references are to the Penal Code unless otherwise
indicated.
Section 834a provides: “If a person has
knowledge, or by the exercise of reasonable care, should have knowledge, that
he is being arrested by a peace officer, it is the duty of such person to
refrain from using force or any weapon to resist such arrest.”
