P. v. McCray
Filed 2/13/13 P.
v. McCray CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KEITH GEROME McCRAY,
Defendant and
Appellant.
F063988
(Super.
Ct. No. F10904477)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Jonathan B. Conklin, Judge.
Benjamin
Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted
appellant, Keith Gerome McCray, of unlawful
driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a); count
1) and receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count
2).
two of three alleged “strike†allegations
subdivision (b) (hereafter section 667.5(b)) prior prison term enhancement
allegations. The court made no inquiry
regarding, and appellant did not admit, one of the strike allegations and one
of the section 667.5(b) enhancement allegations.
The court
struck the two strike allegations appellant admitted and imposed a sentence of
12 years, consisting of the two-year midterm on count 1, doubled pursuant to
the three strikes law, for a total of four years based on the court’s
assumption that appellant had admitted one strike allegation, plus eight years
on the section 667.5(b) enhancements based on the court’s assumption that
appellant had admitted all eight prior prison term enhancement
allegations. The court imposed, and
stayed, pursuant to section 654, a four-year term on count 2 and awarded
appellant 699 days of presentence credits, consisting of 467 days of actual
time credits and 232 days of conduct credits.
On appeal,
appellant contends the court erroneously (1) imposed sentence on two prior
prison term enhancements, and (2) failed to calculate his conduct credit under
the one-for-one credit scheme of section 4019.
We modify the sentence by striking two one-year section 667.5(b)
enhancement terms, and otherwise affirm.
DISCUSSION
Appellant’s Prior Prison Term Enhancements and Strike Conviction
Appellant
contends the court erred in imposing sentence on two of his prior prison
enhancements because (1) he did not admit one of them, and (2) two of the
prison terms on which two of those enhancements were based were not “separately
served.†The People concede both points
and therefore conclude that two of the one-year terms imposed on the prior
prison term enhancements are unauthorized and cannot be imposed. In addition, the People argue that because
appellant did not admit the 1992 strike allegation and the court dismissed the
two other strike allegations, the court erred in imposing sentence under the
three strikes law. The People argue
further that the appropriate remedy is remand for the limited purpose of either
a trial on, or admission of, both the 1992 strike allegation and the section
667.5(b) enhancement allegation based on the prior prison term served for the
1992 strike conviction. Appellant, for
his part, argues that this court should simply strike two of the one-year prior
prison term enhancements, and that there is no need for remand to retry the
section 667.5(b) allegations. Appellant
raises no claim of error regarding the absence of a true finding on the strike
allegations.
Background
It was
alleged in an amended information that appellant suffered three strike
convictions, each for robbery, in 1986, 1991 and 1992, respectively, and that
he had served eight separate prison terms for felony convictions within the
meaning of section 667.5(b), including one for his 1992 robbery
conviction. In the proceeding in which
appellant entered his pleas and admissions, he admitted the strike allegations
based on the 1986 and 1991 robbery convictions and seven of the eight section
667.5(b) enhancement allegations, but the court did not mention, and appellant
did not admit, the 1992 strike allegation and the section 667.5(b) enhancement
allegation based on the prison term appellant served for his 1992 robbery
conviction.
In addition
to the section 667.5(b) allegation based on the prison term served for the 1992
strike conviction, it was also alleged, inter alia, that appellant served
separate terms for his 1991 robbery conviction and a 1992 conviction of
unauthorized possession of a controlled substance while incarcerated (§
4573.6). However, the probation
officer’s report indicates that for a period of time in 1992, appellant served
his sentences on these three offenses concurrently and was released on parole
on all three cases in March 1995.
After the
jury returned its verdicts, defense counsel informed the court that appellant
“will admit his prior convictions .…â€
Immediately thereafter, the court took appellant’s admissions but, as
indicated earlier, the court made no mention of the 1992 strike allegation and
the section 667.5(b) allegation based on the prison term served for the 1992
strike conviction.
Prior to imposing sentence, the
court struck the 1986 and 1991 strike convictions and indicated it was not
striking the 1992 strike conviction. In
imposing sentence, the court stated, “There are eight prison priors that
[appellant] has and has admitted pursuant to [section] 667.5(b).†Immediately thereafter, the court stated it
was “looking through the file just to make sure [it had] the appropriate
information†and moments later stated:
“He admitted the prison priors. I
am looking at Entry 17 on the docket order of 8/31/11, ‘Defendant admits eight
prison priors.’ He did admit the three
strike priors as well. So the sentence
is affirmed.â€
Analysis
Under
section 667.5(b), a defendant convicted of a felony is subject to a one-year
enhancement “for each prior separate
prison term†if the defendant does not remain free for five years of both
prison custody and the commission of a new offense resulting in a felony
conviction. (§ 667.5(b), italics
added.) As the parties agree, “only one
[section 667.5(b)] enhancement is proper where concurrent sentences have been
imposed in two or more prior felony cases.
[Citations.]†(
744, 747.) Therefore, as the parties
also agree, because three of appellant’s section 667.5 enhancements were based
on prison terms served concurrently, he was subject to one such enhancement for
those three prison terms, rather than three.
(Jones, at p. 750.) We will order two of appellant’s section
667.5(b) enhancements stricken.
We reject
the People’s argument that because appellant did not admit one of the section
667.5(b) allegations, remand is necessary for either trial or admission of that
allegation. The People base this claim
on section 1018, which provides, in relevant part, that “Unless otherwise
provided by law, every plea shall be
entered or withdrawn by the defendant himself or herself in open court.†(Italics added.) However, here, where the question involves
admissions of enhancement allegations rather than pleas to substantive
offenses, it may be more accurate to describe appellant’s failure to admit the
special allegation in question as a violation of section 1025.
event, such error does not necessitate remand.
As demonstrated above, (1) the
section 667.5(b) allegation that appellant did not admit is one of three such
allegations upon which only one 1-year section 667.5(b) enhancement can be
based, and (2) appellant admitted the other two allegations. The outcome on remand would no doubt be
exactly what we can achieve by striking two of these enhancements: the imposition of a single one-year term
based on the prison term appellant served on three of his prior felony
convictions. Therefore, remand for trial
or admission of the one allegation appellant did not admit would be pointless. (Cf. People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579 (
result in remand because more favorable result was “improbable[,]†and
appellate court “unwilling to expend valuable judicial resources by engaging in
idle gestures or merely adhering to ritualistic formâ€].)
For similar reasons, we will not
remand for trial or admission on the 1992 strike allegation, which appellant
did not admit but which nonetheless became the basis for imposition of sentence
under the three strikes law. At the time
of the trial on the strike and enhancement allegations, defense counsel
indicated appellant wished to admit all
three strike allegations, and on appeal appellant has not raised the issue
of imposition of a three strikes law sentence based on a strike allegation not
found true. There appears to be
virtually no likelihood that on remand appellant would insist on a trial on the
remaining strike allegation. Thus, there
is no reason to remand the matter. (Cf.
Presentence Custody Credits
Under section 2900.5, a person sentenced to state prison for criminal
conduct is entitled to presentence custody credits for all days spent in
custody before sentencing.
(§ 2900.5, subd. (a).) In
addition, section 4019 provides for what are commonly called conduct credits,
i.e., credits against a prison sentence for willingness to perform assigned
labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019,
subd. (c)). (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Section 4019 has undergone numerous amendments in the past few
years. Under the version in effect prior
to January 25, 2010, to which we refer as former section 4019, six days would
be deemed to have been served for every four days spent in actual custody—a
ratio of one day of conduct credit for every two days served (one-for-two
credits). (Former § 4019, subd. (f), as
amended by Stats. 1982, ch. 1234, § 7, pp. 4553- 4554.) Effective January 25, 2010, the Legislature
amended section 4019 to provide for two days of conduct credit for every two
days served—one-for-one credits—for certain defendants, but this more generous
credits accrual scheme did not apply to, inter alia, defendants who, like
appellant, had suffered a strike.
(Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Effective September 28, 2010, the Legislature
again amended section 4019, this time to restore the less generous one-for-two
credits, but this version of the statute by its terms did not apply where
defendants were confined for crimes committed prior to September 28, 2010. (Stats. 2010, ch. 426, § 2.)
The Legislature next amended
section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.) (hereafter
Assembly Bill No. 109), which was part of the so-called criminal realignment
legislation. “[T]he overall purpose of [this legislation]
and improve public safety, while at the same time reducing corrections and
related criminal justice spending.†(
664, 679.) Under the new
legislation, to which we sometimes refer to as the 2011 amendment, all
prisoners, including those who have suffered a strike, can receive one-for-one
credits. (§ 4019, subds. (b), (c),
as amended by Stats. 2011, ch. 15, § 482.)
The legislation expressly provided that this change “shall apply
prospectively and 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
October 1, 2011. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law.†(§ 4019, subd. (h), as
added by Stats. 2011, ch. 15, § 482 and amended by Stats. 2011, ch. 39, §
53.) Appellant committed the instant
offenses on August 29, 2010, approximately 13 months prior to the effective
date of this amendment.
Appellant contends the 2011
amendment created two classes of prison inmates who are “similarly situated
with respect to the purpose of enhanced credit entitlement,†viz., “(1) those
prison inmates sentenced under the three strikes law who will receive
additional conduct credits since they committed their crimes after October 1,
2011; and (2) those prison inmates sentenced under the three strikes law who
will not receive additional conduct credits since they committed their crimes
prior to October 1, 2011.†Appellant, a
member of the second group, suggests that there is no rational basis for
denying him the enhanced credits under the current version of section 4019 for
the sole reason that he committed his crimes prior to October 1, 2011, and
therefore he was denied his constitutional guarantee of equal protection of the
laws. Section 4019, appellant asserts,
“must apply retroactively,†such that he is awarded one-for-one credits of 467
days under the 2011 amendment to section 4019 for his entire period of presentence
confinement—August 30, 2010, through the date of sentencing, December 9,
2011—rather than the one-for-two credits of 232 days awarded by the court under
former section 4019.
name="_ftnref5" title="">[4] We disagree.
“The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated
equally. [Citation.] Accordingly,
‘“[t]he first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects
two or more similarly situated groups
in an unequal manner.â€â€™ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.â€â€™â€
(People v. Brown (2012) 54
Cal.4th 314, 328 (Brown).) “If the first prerequisite is satisfied, we
proceed to judicial scrutiny of the classification.†(People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam.) As the court
in Rajanayagam stated in addressing
an equal protection challenge to the 2011 amendment, “Where, as here, the
statutory distinction at issue neither touches upon fundamental interests nor
is based on gender, there is no equal protection violation if the challenged
classification bears a rational relationship to a legitimate state
purpose. [Citations.]†(Ibid.) “Under the rational relationship test, a
statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights 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. [Citation.]â€
(Ibid.)
We first consider the question of
whether appellant, who has a strike conviction and committed the instant offenses
prior to October 1, 2011, and persons who have suffered a strike conviction and
were confined for offenses for crimes committed after that date are similarly
situated with respect to the purpose of the law. Preliminarily, we note that appellant’s period
of presentence custody—August 30, 2010, through December 9, 2011—encompasses
time both before, on and after October 1, 2011.
In Brown, supra, 54 Cal.4th
314, our Supreme Court addressed whether the amendment to section 4019 that
became operative on January 25, 2010, should be given retroactive effect to
permit prisoners who served time in local custody before that date to earn
conduct credits at the increased rate. (
was similarly situated to those defendants who served time after the operative
date, the court explained: “As we have
already explained, the 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 not have
modified their behavior in response.
That prisoners who served time before and after former section 4019 took
effect are not similarly situated necessarily follows.†(Id.
at pp. 328–329.)
Relying on Brown, this court, in People
v. Ellis (2012) 207 Cal.App.4th 1546, rejected an equal protection
challenge virtually identical to that raised by appellant here: “We can find no reason Brown’s conclusions and holding with respect to the January 25,
2010, amendment should not apply with equal force to the October 1, 2011,
amendment. [Citation.] Accordingly, we reject defendant’s claim he
is entitled to earn conduct credits at the enhanced rate provided by current
section 4019 for the entire period of his presentence incarceration.â€
at p. 1552; accord, People v. Kennedy
(2012) 209 Cal.App.4th 385, 396-397 (Kennedy).)
Appellant argues
reasoning articulated by the court in Rajanayagam,
where the court agreed with appellant’s position, but with respect to time
served after October 1, 2011, only.
name="_ftnref7" title="">[6] In Rajanayagam,
the court held that the two groups in question—“(1) those defendants who are in
jail on and/or after October 1, 2011, who committed an offense on or after
October 1, 2011, and (2) those defendants who are in jail on and/or after
October 1, 2011, who committed the same offense before October 1, 2011â€â€”were “similarly situated for purposes of
the October 1, 2011, amendment .…â€
(Rajanayagam, supra, 211
Cal.App.4th at p. 53.)
on this point.†(Id. at p. 54.) The
follows: “[Brown] did not involve a situation where a defendant sought enhanced
conduct credit for time served after the amendment’s operative date. Instead, Brown
concerned whether the amendment was retroactive, i.e., whether a defendant who
served time before the operative date was entitled to enhanced conduct
credits. Here, we are faced with the
issue of whether the current version of section 4019 operates prospectively as
to a defendant who committed an offense before the amendment’s effective
date. We read the language of
before and after former section 4019 took effect are not similarly situated
necessarily follows’ as limited to the facts in that case—that there is no
incentive for defendants who served time before the amendment’s effective date
to work and behave. Brown is not instructive on the issue of whether there is an
incentive for defendants who served time after the amendment’s effective date
to work and behave.†(
This court did not specifically
address the forgoing argument in Ellis. And we need not do so here because, as we
explain below, even assuming for the sake of argument that the “similarly
situated†requirement has been met for the entire period of appellant’s
presentence confinement, there is a rational basis for the legislative
classification at issue. On this point
we agree with the Rajanayagam court’s
analysis, from which we quote at length.
“With respect to the judicial
scrutiny of the classification, we must determine whether there is any
reasonably conceivable state of facts that could provide a rational basis for
the classification. It is undisputed the
purpose of section 4019’s conduct credits generally is to affect inmates’
behavior by providing them with incentives to work and behave. (Brown,
supra, 54 Cal.4th at pp.
327-329.) But that was not the purpose
of Assembly Bill No. 109, which was part of the Realignment Act.… [T]he Legislature’s stated purpose for the
Realignment Act ‘is to reduce recidivism and improve public safety, while at
the same time reducing corrections and related criminal justice spending.’ [Citations.]
Section 17.5, subdivision (a)(7), puts it succinctly: ‘The purpose of justice reinvestment is to
manage and allocate criminal justice populations more cost-effectively, generating savings that can be reinvested in
evidence-based strategies that increase public safety while holding offenders
accountable.’†(Rajanayagam, supra, 211
Cal.App.4th at pp. 54-55.)
Thus, we must determine whether the
2011 amendment to section 4019 awarding less credits to those defendants
sentenced under the three strikes law who committed their offenses before
October 1, 2011, than those defendants sentenced under the three strikes law
who committed their offenses on or after October 1, 2011, “bears a rational relationship
to the Legislature’s legitimate state purpose of reducing costs.†(Rajanayagam,
supra, 211 Cal.App.4th at p.
55.) “We are mindful the rational
relationship test is highly deferential.
(People v. Turnage (2012) 55
Cal.4th 62, 77 [‘[w]hen conducting rational basis review, we must accept any
gross generalizations and rough accommodations that the Legislature seems to
have made. A classification is not
arbitrary or irrational simply because there is an “imperfect fit between means
and
endsâ€â€™].)†(
As did the court in
classification in question does bear a rational relationship to cost
savings.†(Rajanayagam, supra, 211
Cal.App.4th at p. 55.)
“Preliminarily, we note the California Supreme Court has stated equal
protection of the laws does not forbid statutes and statutory amendments to
have a beginning and to discriminate between rights of an earlier and later
time. (People v. Floyd (2003) 31 Cal.4th 179, 188 (Floyd) [‘[d]efendant has not cited a single case, in this state or
any other, that recognizes an equal protection violation arising from the
timing of the effective date of a statute lessening the punishment for a
particular offense’].) Although
no basis for concluding differently here.â€
(Ibid.; accord,
amendment] does not ameliorate punishment for a particular offense, it does, in
effect, ameliorate punishment for all offenses committed after a particular
dateâ€].)
“More importantly, in choosing
October 1, 2011, as the effective date of Assembly Bill No. 109, the
Legislature took a measured approach and balanced the goal of cost savings
against public safety. The effective date
was a legislative determination that its stated goal of reducing corrections
costs was best served by granting enhanced conduct credits to those defendants
who committed their offenses on or after October 1, 2011. To be sure, awarding enhanced conduct credits
to everyone in local confinement would have certainly resulted in greater cost
savings than awarding enhanced conduct credits to only those defendants who
commit an offense on or after the amendment’s effective date. But that is not the approach the Legislature
chose in balancing public safety against cost savings. (Floyd,
supra, 31 Cal.4th at p. 190
[Legislature’s public purpose predominate consideration].) Under the very deferential rational
relationship test, we will not second‑ guess the Legislature and conclude
its stated purpose is better served by increasing the group of defendants who
are entitled to enhanced conduct credits when the Legislature has determined
the fiscal crisis is best ameliorated by awarding enhanced conduct credit to
only those defendants who committed their offenses on or after October 1,
2011.â€
(Rajanayagam,
accord, Kennedy, supra, 209 Cal.App.4th at p. 399 [in making changes to custody
credits earning rates “the Legislature has tried to strike a delicate balance
between reducing the prison population during the state’s fiscal emergency and
protecting public safety,†and “Although such an effort may have resulted in
comparable groups obtaining different credit earning results, under the rational relationship test, the Legislature
is permitted to engage in piecemeal approaching to statutory schemes addressing
social ills and funding services to see what works and what does notâ€].)
Finally, we
find a second rational basis for the classification at issue. As the court stated in Kennedy: “[T]he Legislature
could rationally have believed that by making the 2011 amendment to section
4019 have application determined by the date of the offense, they were
preserving the deterrent effect of the criminal law as to those crimes
committed before that date. To reward
appellant with the enhanced credits of the 2011 amendment to section 4019, even
for time he spent in custody after October 1, 2011, weakens the deterrent
effect of the law as it stood when appellant committed his crimes. We see nothing irrational or implausible in a
legislative conclusion that individuals should be punished in accordance with
the sanctions and given the rewards (conduct credits) in effect at the time an
offense was committed.†(
appellant’s equal protection rights were not violated.
Statutory Construction
As an alternative to his equal
protection claim, appellant argues that under section 4019, properly construed,
he is entitled to one-for-one credits for the portion of his presentence
confinement time served on and after October 1, 2011.
Appellant bases this claim on
section 4019, subdivision (h), which provides as follows: “The changes to this section enacted by the
act that added this subdivision shall apply prospectively and 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 October 1, 2011. Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior law.â€
Appellant argues: “The first sentence implies that the
increased rate of credit accrual only applies to those whose crimes occurred on
or after [October 1, 2011]. [Citation.] However, the last sentence suggests that the
new rate applies to all time in custody on or after October 1, 2011; otherwise
it would be meaningless because credit cannot be earned on an offense not yet
committed. [Citation.] This resolves the apparent ambiguity because
it gives meaning to both sentences.
[Citations.]â€
name="_ftnref8" title="">[7]
This contention is without
merit. As this court stated in
claim: “In our view, the Legislature’s
clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits. So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant’s crime is
committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced.†(Ellis, supra, 207
Cal.App.4th at p. 1553.)
Here, as indicated above, because
appellant committed the instant offenses prior to October 1, 2011, his custody
credits must be calculated “under prior law†within the meaning of section
4019, subdivision (h). As also indicated
earlier, the applicable prior law here is former section 4019, which provided
for one-for-two credits.
name="_ftnref9" title="">[8] Therefore, the court’s award of conduct
credits of 232 days, based on 467 days of actual time credits, was
correct. (Former § 4019, subds. (b), (c); People v. Caceres (1997)
52 Cal.App.4th 106, 110 [correct formula is to divide days of actual custody,
including date of sentencing, by four, and then multiply result, excluding
remainder, by two].)
DISPOSITION
Appellant’s sentence is modified as
follows: Two of the enhancements imposed
pursuant to section 667.5(b) are stricken, leaving a total term of imprisonment
of 10 years.
The trial court is directed to
prepare an amended abstract of judgment reflecting this modification and
forward it to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Detjen, J. and Franson, J.
as otherwise indicated, all further statutory references are to the Penal Code.
