P. v. >Duncan>



















Filed 1/9/13 P.
v. Duncan CA3











NOT TO BE PUBLISHED



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(San Joaquin)

----


>

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DANGELO DUNCAN, SR., Defendant and Appellant.

C069993 (Super. Ct. No. SF115938A)

Defendant Joseph Dangelo Duncan, Sr., appeals the
sentence imposed following his plea of no contest to driving under the
influence of alcohol and resisting arrest, and his admission that he had
sustained a prior drunk driving conviction, two prior strike convictions, and
had served four prior prison terms.

Defendant contends the October 1,
2011,
amendments to Penal Code section 4019href="#_ftn1" name="_ftnref1" title="">[1] increasing presentence
conduct credits must be applied to him retroactively and the failure to do so
constitutes a violation of equal protection.
Following the California Supreme Court’s
decision in People v. Lara (2012) 54
Cal.4th 896, 906, footnote 9 (Lara),
we reject defendant’s contention. Defendant also contends
the trial court failed to properly delineate the fines and fees imposed and the
statutory bases for those fines and fees.
Relying on People v. High
(2004) 119 Cal.App.4th 1192 (High),
the People properly concede this point.
Accordingly, we remand the matter and direct the trial court to amend
the abstract of judgment with a proper delineation of the fines and fees
imposed upon defendant. In all other
respects, we affirm the judgment.

BACKGROUNDhref="#_ftn2"
name="_ftnref2" title="">[2]

Defendant pled no contest to driving under the influence
of alcohol within 10 years of having sustained a prior conviction for the same
offense (Veh. Code, §§ 23152, subd. (a), 23540), driving with a blood
alcohol level of .08 percent or higher within 10 years of having sustained
a prior conviction for the same offense (Veh. Code, §§ 23152, subd. (b),
23540), and resisting arrest
(§ 148). He also admitted he had
suffered two prior serious felony convictions and served four prior prison
terms. The court struck one of the prior
convictions, and defendant was sentenced to an aggregate term of five years in
state prison. He was awarded 232 days of
actual credit, and 116 local conduct credits.
The trial court also imposed fines and fees as follows: “There’s a fine in the amount of $2,744, as
well as the court security fee in the amount of $120, and an administrative --
excuse me. $80. I apologize.
I was wrong in the math. And an
administrative fee in the amount of $60.
[¶] There’s also a transportation
fee in the amount of $4, but that’s included in the $2,744.”

DISCUSSION

I

Prospective Application of Section
4019

The
Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15,
§ 482) amended section 4019, entitling defendants to two days of conduct
credit for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).) The award of credits is not reduced by a defendant’s
current or prior conviction for a serious felony. This provision applies prospectively to
defendants serving presentence incarceration for crimes committed on or after
October 1, 2011. (§ 4019,
subd. (h).)

Defendant contends he is entitled to
additional presentence conduct credits under this amendment to section
4019. Defendant’s crime was committed
before October 1, 2011. Defendant
argues that, despite the express terms of section 4019, “equal protection
compels that the amendment to section 4019 effective October 1, 2011,
be applied to award [defendant] one-for-one conduct credit.” This argument was
rejected by the California Supreme Court in Lara. (Lara, supra, 54 Cal.4th at
p. 906, fn. 9.)

In
Lara, the Supreme Court explained its
rejection of defendant’s equal protection argument as follows: “As we there [People v. Brown (2012) 54 Cal.4th 314, 328-330] explained, ‘“[t]he
obvious purpose”’ of a law increasing conduct credits ‘“is to affect the
behavior of inmates by providing them with incentives to engage in productive
work and maintain good conduct while they are in prison.” [Citation.]
“[T]his incentive purpose has no meaning if an inmate is unaware of
it. The very concept demands prospective
application.”’ (Brown, at p. 329, quoting In
re Strick (1983) 148 Cal.App.3d 906, 913.)
Accordingly, prisoners who serve their pretrial detention before such a
law’s effective date, and those who serve their detention thereafter, are not
similarly situated with respect to the law’s purpose. (Brown,
at pp. 328-329.)” (>Lara, supra, at p. 906,
fn. 9.)

Accordingly,
defendant is not entitled to the additional accrual of conduct credits under
the October 1, 2011, amendment to section 4019.

II

Fines and Fees

Defendant next contends the trial court failed to specify
the individual fines and fees imposed, the amount of those fines and fees, and
the relevant statutory bases. The People
properly concede this point.

As we explained in High, at sentencing, the trial court must provide a “detailed
recitation of all the fees, fines and penalties on the record,” including their
statutory bases. (High, supra, 119 Cal.App.4th. at
p. 1200.) All of these fines and
fees must be set forth in the abstract of judgment. (Ibid.)

Here, the trial court did not recite the statutory bases
for any of the fines and fees. The court
did not delineate either the bases of the $2,744 fine or the composition of
that fine. We must remand the matter to
the trial court for the limited purpose of preparing an amended abstract of
judgment specifying the amount and the statutory basis for each fine, fee, and
penalty imposed upon defendant.

DISPOSITION

Defendant’s convictions are affirmed. The trial court is directed to prepare an
amended abstract of judgment separately listing the fines, fees, and penalties
imposed upon defendant, and specifying the statutory bases for all fines, fees,
and penalties imposed. The trial court
shall forward a certified copy of the amended abstract to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.









HOCH , J.







We
concur:







HULL ,
Acting P. J.







MAURO , J.