P. v. Vigil
Filed 6/26/12 P. v. Vigil CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KELVIN
EDWARD VIGIL,
Defendant and Appellant.
A133914
(Sonoma
County
Super. Ct.
No. SCR-599481)
Defendant
Kelvin Edward Vigil appeals from the sentence imposed by the trial court after
he pled no contest to a charge of commercial
burglary. He argues that his
constitutional equal protection rights
require the retroactive application of Penal Code section 4019 (section 4019),
as amended in October 2011, to award him additional presentence conduct credits
despite the statute’s stated prospective application. He also contends the matter must be remanded
for the court to clarify certain fines imposed at sentencing. We vacate the contested fine orders and
remand for clarification as to the mandatory fines imposed. In all other respects we affirm the judgment.
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
name="_ftnref2" title="">[2]
On
March 20, 2011, defendant
and Heather Byrd entered a Home Depot store empty handed. Byrd took a calculator and defendant took a
table saw. Defendant put both items in a
shopping cart. Defendant then went to
the return counter and returned both the saw and calculator for store credit
using a receipt from the previous day.
He then used the store credit to buy a light motion detector and a laser
device. He was arrested with these items
after exiting the store.
On
June 20, 2011, defendant
was charged by information with commercial burglary (§ 459). The information also alleged three prior
prison-term commitments (§ 667.5, subd. (b)).
On
August 26, 2011, pursuant to a negotiated
disposition, defendant pleaded no contest to the burglary and admitted one
prior prison commitment with the understanding that execution of a 28-month
prison sentence would be suspended and he would serve a year in the county jail
and be placed on three years of probation.
On
October 18, 2011, the trial court imposed the agreed-upon sentence. The court found that defendant was entitled
to 13 days of presentence credits (nine actual, plus four conduct). The court also imposed certain fines and
fees, including a restitution fine of $660 (§ 1202.4, subd. (a)(3)(B)), a
restitution fund fine of $400 (§ 1202.4, subd. (b)), a parole revocation fine
of $400 (§ 1202.45), and a probation revocation fine of $600 (§ 1202.44). This appeal followed.
DISCUSSION
The
recent tortuous legislative history of section 4019 has been well documented in
many appellate opinions, and we need not recite it here.
that effective October 1, 2011, the Legislature amended sections 4019 and 2933
to return conduct credit rations to a more lenient formula for inmates
sentenced to county jail. (Stats. 2011,
ch. 15, § 482; Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, § 16.) The revised section 4019 applies to
defendants whose crimes were “committed on or after October 1, 2011.” (§ 4019, subd. (h).)
Citing
equal protections principles and In re
Kapperman (1974) 11 Cal.3d 542 (Kapperman),
defendant argues that the recent amendment to section 4019 granting one-for-one
conduct credits is applicable to his case.
He seeks a modification of the judgment, to increase his presentence
conduct credits by adding four additional credits. As noted above, defendant committed the
instant offense on March 20, 2011, well before the operative date of the
amended statute.
To
succeed on an equal protection claim, a defendant must show that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner. The level of
challenged treatment depends on the nature of the distinguishing
classification. (People v. Wilkinson (2004) 33 Cal.4th 821, 836–837.) Unless the distinction “touch[es] upon
fundamental interests” or is based on gender, it will survive an equal
protection challenge “if the challenged classification bears a rational
relationship to a legitimate state purpose.”
(People v. Hofsheier (2006) 37
Cal.4th 1185, 1200 (Hofsheier); see
also People v. Ward (2008) 167
Cal.App.4th 252, 258 [rational basis review applicable to equal protection
challenges based on sentencing disparities].)
We
agree with defendant that the revised statute subjects two similarly situated
classes of county jail inmates to disparate treatment: (1) those who, like
defendant, committed their crimes before October 1, 2011, but were sentenced to
county jail after October 1, 2011; and (2) those who committed their crimes
after October 1, 2011, were sentenced to county jail and received the enhanced
presentence conduct credits provided in newly amended section 4019. We also note defendant does not contend the
classification here is subject to heightened scrutiny. Accordingly, the statute classification must
be upheld “ ‘ “ ‘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.]” (
1200–1201, italics omitted.)
We
recently addressed the same equal protection issue that defendant raises here
in Borg, supra, 204 Cal.App.4th
1528. In Borg, we held that the prospective application of section 4019 does
not violate equal protection principles.
(Borg, supra, at p.
1539.) In so holding, we concluded that
a rational basis exists for the timing and prospective application of the
effective date of the 2011 amendments to section 4019, reasoning the amendments
were adopted for a predominantly fiscal purpose and that the Legislature was
entitled to balance that purpose against the “public safety interests” served
by the preexisting credit regime: “Reducing prison populations by granting a
prospective-only increase in conduct credits strikes a proper, rational balance
between the state’s fiscal concerns and its public safety interests.” (Borg,
supra, at p. 1539.) We see no reason
to question the soundness of our prior opinion.
Accordingly, we find defendant’s equal protection claim fails.
does not dictate a contrary conclusion. Kapperman
involved an equal protection challenge to legislation that granted credit for
actual time spent in presentence custody on a prospective basis only. (Kapperman,
supra, 11 Cal.3d 542, 544–545.) The
for this prospective-only application and retroactively extended the
credit. (Id. at p. 545.)
because it involved actual custody credit, not conduct credit. The Kapperman
court itself distinguished between actual custody credit—what was at issue in
awarded as a bonus for good conduct and efficient performance of duty while in
prison.” (Id. at p. 548.) The
distinction makes sense. Conduct credits
must be earned, whereas presentence custody credits are awarded automatically,
based on the time served prior to sentencing.
The two types of credit differ in purpose as well. The purpose of conduct credits is to incentivize
good conduct; custody credits offer no corresponding motivation.
Mandatory Fines
At
sentencing, the trial court imposed restitution fines as follows: “He’s ordered
to pay a restitution fine in the amount of $660 which includes a 10 percent
administrative fee to be paid in a manner to be determined by probation. [¶]
He’s also assessed a restitution fine in the amount of $400 pursuant to Penal
Code section [1202.4, subd. (b)] to be paid in a manner to be determined by the
Board of Corrections should the stay on the sentence be lifted. [¶]
. . . [¶] He’s ordered to pay an additional restitution fine pursuant
to Penal Code section 1202.45 in the same amount as that previously
imposed. That’s the $400 dollar figure. However, that restitution fine is suspended
unless his parole is revoked. [¶] . . . [¶] He’s ordered to pay an
additional restitution fine pursuant to Penal Code section 1202.44 in the same
amount as that previously imposed.
That’s the $600 figure. However,
that fine is suspended unless his probation is revoked.” The sentencing minute order details that a
$600 restitution fine was imposed pursuant to section 1202.4, subdivision
(a)(3)(B),
plus a 10 percent “Administration fee,” that the $400 restitution fine
(suspended unless parole revoked) was imposed under section 1202.45, and that a
$600 restitution fine (suspended unless probation is revoked) was imposed
pursuant to section 1202.44.
Defendant
contends this case must be remanded to allow the sentencing court to clarify
the mandatory fines imposed. He
correctly observes that the sentencing court’s oral pronouncement appears to
have imposed a $600 fine (plus 10 percent) and a $400 fine, both under section
1202.4, subdivision (b).
name="_ftnref5" title="">[5] Also, the fines imposed under sections
1202.44 and 1202.45 are supposed to mirror the section 1202.4 fine, but do
not. By their own terms, both section
1202.44 and 1202.45 must be in the same amount as that imposed under section
1202.4.
point. Accordingly, we remand the matter
for clarification on the mandatory fines to be imposed in this case.
DISPOSITION
The
trial court’s orders imposing the $660 restitution fine (referenced as made
pursuant to § 1202.4, subd. (a)(3)(B)), the $400 restitution fine (§ 1202.4,
subd. (b)), the parole revocation fine of $400 (§ 1202.45), and the $600
probation revocation fine (§ 1202.44) are vacated. The matter is remanded for clarification, in
accordance with this opinion, as to the mandatory fines imposed. The court is directed to prepare an amended
abstract of judgment accordingly and forward a certified copy to the
Rehabilitation. In all other
respects, the judgment is affirmed.
__________________________________
Dondero,
J.
We
concur:
__________________________________
Marchiano,
P. J.
__________________________________
Banke,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal
Code.
name="_ftn2" title="">[2] We take the facts from the probation report’s summary
of the offense.
