P. v. Wright
Filed 12/24/12 P.
v. Wright CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
DAREN LEWIS
WRIGHT,
Defendant and Appellant.
H037808
(Santa Clara County
Super. Ct. Nos.
CC943481, C1088514)
Defendant
Daren Lewis Wright entered into a plea
agreement under which he pleaded no contest to numerous counts in two
separate cases in exchange for a specified prison term of 15 years. On appeal, his only contentions are that he
was entitled to additional conduct credit and that the abstract of judgment
must be corrected. The Attorney General
concedes that the abstract requires correction.
We reject defendant’s claim for additional conduct credit.
I. Background
The
facts of defendant’s offenses are immaterial to the issues on appeal. His sentence arose from the settlement of two
separate cases.
He
was charged by information in case No. CC943481 (case 481) with six counts of
459, 460, subd. (b)),
name="_ftnref1" title="">[1]
two counts of receiving stolen property (§ 496, subd. (a)), petty theft with a
prior (§ 666), possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a)), and being under the influence of a controlled substance (Health
& Saf. Code, § 11550, subd. (a)).
The case 481 information also alleged that he had suffered three prison
priors (§ 667.5, subd. (b)) and one strike prior (§§ 667, subds. (b)-(i),
1170.12). All of the crimes charged in
case 481 occurred in 2009.
Defendant
was charged by information in case No. C1088514 (case 514) with nine counts of
second degree burglary, three counts of receiving stolen property, four counts
of grand theft (§§ 484, 487, subd. (a)), two counts of driving or taking a
vehicle (Veh. Code, § 10851, subd. (a)), resisting arrest (§ 148, subd.
(a)(1)), and altering a key (§ 466). The
information in case 514 further alleged that defendant had committed a felony
while on bail (§ 12022.1), and had suffered two prison priors and one strike
prior. The crimes charged in case 514
occurred between July and November 2010.
In
July 2011, defendant entered into a plea
agreement in case 481. He pleaded no
contest to four of the burglary counts (counts 1, 9, 11, and 12) and to the
being under the influence count (count 7) and admitted the prison prior and
strike prior allegations in exchange for dismissal of the remaining counts and
a specified sentence of six years and eight months.
In
August 2011, defendant entered into a plea agreement in case 514. He pleaded no contest to two of the burglary
counts (counts 1 and 7), one driving or taking a vehicle count (count 11), and
one grand theft count (count 19), and admitted the on bail enhancement
allegation and the strike prior and prison prior allegations in exchange for
dismissal of the remaining counts and a specified sentence. The specified sentence was eight years and
four months consecutive to his sentence in case 481 for a total prison term of
15 years.
Defendant
was sentenced on December 16, 2011 to a prison
term of 15 years for both cases. For two
of the 2009 counts, defendant received conduct credit calculated under the
September 2010 version of section 4019.
His actual custody had occurred in 2009, 2010, and 2011. For the other 2009 counts, he had no actual
custody credit. For two of the 2010
counts, defendant had just one day of actual custody and received no conduct
credit. For the other 2010 counts,
defendant had no days of actual custody credit.
This was due to the fact that the second case was sentenced
consecutively to the first case.
Defendant timely filed a notice of appeal from the judgment and obtained
a certificate of probable cause.
II. Discussion
A. Conduct
Credit
Until
January 2010, section 4019 provided that a defendant would receive two days of
conduct credit for every four days of actual custody. From January 2010 until September 2010,
section 4019 temporarily increased this to two days of conduct credit for every
two days of actual custody, but this increase did not apply to a defendant who
had suffered a prior conviction for a serious felony. (People
v. Brown (2012) 54 Cal.4th 314, 317-318 (Brown); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28,
§ 50.) In September 2010, section
4019 was again amended and section 2933 was also amended with regard to
presentence conduct credit. These
statutes also provided that a defendant with a prior serious felony conviction
would receive two days of conduct credit for every four days of actual
custody. (Stats. 2010, ch. 426, §§ 1, 2;
former § 2933, subd. (e).) A new version
of section 4019 became operative in October 2011. This version provided for two days of conduct
credit for every two days of actual
custody, and it did not exclude from its ambit a defendant with a prior serious
felony conviction. (Stats. 2011, ch. 15,
§ 482; Stats. 2011, ch. 39, § 53; Stats. 2011-2012, 1st Ex. Sess., ch. 12, §
35.) However, the October 2011 version
of section 4019 provided that it was prospective only. “The changes in this section as enacted by
the act that added this subdivision shall apply to prisoners who are confined
to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act.†(§ 4019, subd. (g), italics added.)
Defendant
argues that the trial court violated his right to equal protection by failing
to apply the October 2011 version of section 4019 to him. He contends that even though his crimes
occurred prior to the October 1, 2011 prospective date upon which conduct
credit was increased by the Legislature, he was entitled to have the
two-for-two conduct credit scheme applied to him.
Both
the federal and state Constitutions
guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art.
I, § 7.) “ ‘ “The
concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose
of the law receive like treatment.†’
[Citation.]†(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments to section 4019 do not
involve a “ ‘ “ ‘suspect
classification’ †’ †or a “ ‘ “ ‘fundamental
interest,’ †’ †courts apply the
rational basis test to determine whether the “distinction drawn by the
challenged statute bears some rational relationship to a conceivable legitimate
state purpose.†(In re Stinnette (1979) 94 Cal.App.3d 800, 805.)
Defendant
maintains that he is similarly situated to a defendant whose crime was
committed after October 1, 2011. In Brown,
the California Supreme Court rejected a similar argument with respect to a
previous version of section 4019. It
found that prospective only application of the new version of the statute did
not violate equal protection because the purpose of the statute was to create
an incentive for good behavior, which could not be done retroactively. (Brown,
supra, 54 Cal.4th at pp. 328‑330.) “[T]he 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
have modified their
at pp. 328-329, italics added; see also People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.)
In
his reply brief, defendant attempts to distinguish Brown on the ground that it authorized the calculation of conduct
credit at different rates where the defendant’s custody period overlapped the
operative date of a new statute. He
misinterprets Brown. The controversy in Brown arose from the fact that the January 2010 version of section
4019 did not expressly state how it was to be applied. The California Supreme Court held that it
applied prospectively to custody time
served after its operative date.
That necessarily meant that a defendant who served custody time that
overlapped that operative date would have conduct credit calculated under two
different formulas. The same is not true
here because the October 2011 version of section 4019 expressly stated that its
provisions applied only to those defendants who committed their crimes before its operative date. This distinction does nothing to reduce the
import of Brown’s conclusion that
there is no equal protection violation in prospective application of a new
conduct credit calculation scheme.
Defendant would have had no additional incentive to maintain good
behavior after October 1, 2011 because the new law was expressly inapplicable
to him due to the dates of his crimes.
Consequently, he was not similarly situated to those whose crimes
occurred after October 1, 2011 and is not entitled to additional conduct
credit.
B. Abstract
Defendant
contends, and the Attorney General concedes, that the trial court needs to make
two corrections to the abstract of judgment.
The
abstract states that defendant was convicted of count 10 in case 481, but he
actually was convicted of count 11 in case 481.
We will direct the trial court to correct this mistake by amending the
abstract.
The
abstract records that the trial court ordered defendant to pay a $10 fine in
each case and to pay $28 in case 481 and $30 in case 514 for penalty
assessments. However, the court did not
specify the statutory bases for these penalty assessments. Trial courts are required to identify the
statutory bases for all fees, fines, and penalties imposed. (People
v. Eddards (2008) 162 Cal.App.4th 712, 718.) We will direct the trial court to amend the
abstract to do so.
III.
Disposition
The
judgment is reversed and remanded to the trial court for the sole purpose of
permitting the trial court to amend the abstract of judgment replacing “A10â€
with “A11†and specifying the statutory bases for the penalty assessments that
defendant was ordered to pay. The trial
court shall forward a certified copy of the amended abstract to the
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo, Acting P.
J.
_____________________________
Márquez, J.
name="_ftn1" title="">[1] Subsequent statutory
references are to the Penal Code unless otherwise specified.
