P. v. Chavez
Filed 1/4/13 P. v. Chavez
CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
MILTON VALENCIA CHAVEZ,
Defendant and Appellant.
B236881
(Los Angeles County
Super. Ct. No. BA381955)
APPEAL
from a judgment of the Superior Court of
County, Renee Korn, Judge. Affirmed.
A.
William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Kim Aarons, Deputy Attorneys General, for Plaintiff and Respondent.
In a plea bargain, appellant Milton
Valencia Chavez pled nolo contendere to two felony narcotics counts. The crimes were committed on March 9, 2011, the criminal complaint was
filed on March 11, 2011, the plea was
entered on September 28, 2011, and sentencing
was on October 7, 2011. Appellant was in local custody for 141 days,
and received credit against his sentence for that time. The issue in this case is whether he was
entitled to conduct credit at the enhanced rate of two days for each two days
served. The trial court ruled that he
was not. He contests that ruling in this
timely appeal.[1]
There was no error.
Presentence conduct credit is
governed by Penal Code section 4019.
prisoner, and its purpose is to “encourage conformity to prison regulations, to
provide incentives to refrain from criminal, particularly assaultive, conduct,
and to encourage participation in ‘rehabilitative’ activities.†(People
v. Austin (1981) 30 Cal.3d 155, 163.)
That statute historically awarded conduct credit to qualifying prisoners
at the rate of two days for every four days served (in effect a one-for-two
rate). Section 4019 was amended in 2009,
with an operative date of January 25, 2010, to increase
the rate of credit to two days of conduct credit for every two days spent in
local custody. (People v. Brown (2012) 54 Cal.4th 314, 318–319, (
Section 4019 was amended again, effective September 28, 2010 (Stats. 2010, ch. 426, §§ 1, 2, 5) to restore the former one for
two rate. That rate was in effect until October 1, 2011, when additional amendments to section 4019 provided a two for two
calculation based on four days of credit for two days of custody. (Stats. 2011, ch. 15, § 482;
905, fn. 8; Stats. 2011, ch. 39, § 53; Stats. 2011-2012, 1st Ex.
Sess., ch. 12, § 35.) The
amendment effective October 1, 2011 is expressly
made applicable only to prisoners whose crimes were committed on or after that
date. (§ 4019, subd. (h).)
Although appellant committed the
crime charged here on March 9, 2011, he claims the
2011 amendment of section 4019 is applicable to crimes committed before October 1, 2011 or thereafter, both as a matter of statutory construction and on
the basis of equal protection. As noted
by appellant in his opening brief, at the time that brief was filed,
Supreme Court to raise the issue of retroactive application of enhanced conduct
credits under section 4019. That case
has since been decided. Applying
well-established principles of statutory construction, the court held the
enhanced credit version of section 4019 “applied prospectively, meaning that
qualified prisoners in local custody first became eligible to earn credit for
good behavior at the increased rate beginning on the statute’s operative
date.†(Brown, at p. 318.) In
addition, subdivision (h) of section 4019 specifically provides that the
changes effected by the enhanced credit statute “shall apply prospectively and
shall apply to prisoners who are confined to a county
jail, . . . for a crime committed on or after October 1, 2011.â€
This leaves an issue as to the
appellant’s entitlement to the benefits of the most recent revision of section
4019. That amendment was effective on September 21, 2011 and operative on October 1, of that year. As we have discussed, it applies only to
prisoners whose crimes were committed on or after October 1, 2011 and hence, by its terms, it does not apply to appellant, whose
crimes were committed in March of that year.
Appellant argues that he is entitled to its benefits nevertheless, based
on equal protection principles. He
argues the rationale in Brown does
not apply (or, if it does, there still is a violation of federal equal
protection) because he had been in custody since March 2011, and still was in
custody on the October 1 operative date of the most recent amendment to section
4019.
The problem with that analysis is that the legislation is express in
its coverage and scope; the new law applies only to persons whose custody is
based on a crime committed on or after October 1, 2011. Appellant’s crime was committed before that
date.
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prisoner in custody both before and after October 1, 2011 is just as encouraged to earn good conduct credits as is one whose
custody began after that date, so that denying it to one while granting it to
the other would violate the equal
protection principle.
We are not persuaded.
This issue was presented and
recently decided in People v. Lynch
(2012) 209 Cal.App.4th 353 (Lynch). The court pointed out that “[t]he right to
equal protection . . . does not prevent the state from
setting a starting point for a change in the law.†(Id. p.
359.) In doing so, the Legislature may
properly specify that such statutes are prospective only, in order to assure
that penal laws will retain their desired deterrent effect by carrying out the
original prescribed punishment as written.
(Id. p. 360, citing
542, 546; see also People v. Lara
(2012) 54 Cal.4th 896, 906, fn. 9; Brown,
supra, 54 Cal.4th at pp.
328–329.) In addition, the Legislature
may experiment individually with various therapeutic programs related to
criminal punishment, and the Realignment Act
is “if nothing else, a significant experiment by the Legislature. Prospective application is reasonably related
to the Legislature’s rational interests in limiting the potential costs of its
experiment. Nothing prevents the Legislature
from extending the Realignment Act to all criminal defendants if it later
determines that policy is worthwhile.†(
see also People v. Kennedy (2012) 209
Cal.App.4th 385, 388; People v. Garcia (2012)
209 Cal.App.4th 530, 533.)
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE,
J.
SUZUKAWA, J.
dismissed because appellant did not raise his present arguments about
entitlement to the more generous credit provisions in the trial court, and even
if they present a pure question of law, he has forfeited them on that
account. Appellant does not address
these arguments in his reply brief. But
it appears that he is arguing that the trial court miscalculated his
entitlement to credits. Moreover, he was
sentenced on October 7, 2011, and the most recent amendment to the statute, in the
realignment law (Stats. 2011-2012, ch. 39, § 53; see People v. Rajanayagam (2012) 211 Cal.App.4th 43) had just become
operative less than a week before that date.
The issue has been briefed, and even were it procedurally barred, it is
properly considered on appeal in order to “eliminate any uncertainties that
could lead to time-consuming but ultimately unavailing
ineffective-assistance-of-counsel claims.â€
(People v. Mitcham (1992) 1
Cal.4th 1027, 1044, fn. 5.)
Code.
