P. v. Young
Filed 2/21/13 P. v. Young CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
DREW ROY YOUNG,
Defendant and Appellant.
H036922
(Monterey County
Super. Ct. Nos. SS110534A
& SS091912A)
Defendant Drew Roy
Young stole various items from a home where his father and sister lived, and
from the home of his brother’s landlord.
He later sold these items to a pawn shop to pay debts incurred for
drugs. He was charged with numerous
crimes in two separate cases, but eventually pleaded no contest to two counts
of grand theft (Pen. Code,
§ 487, subd. (c))
name="_ftnref1" title="">[1]
and one count of commercial burglary (§ 459). He also admitted to a probation violation in
one of the cases. The trial court
suspended imposition of sentence and placed defendant on three years felony
probation, after which he filed a timely notice of appeal.
On
appeal, defendant contends that several of his probation conditions are
unconstitutionally vague and require modification. He also argues that insufficient evidence
supported the trial court’s order that he pay certain probation-related
fees. And he claims that he is entitled
to additional presentence conduct credit under the January 2010 version of
section 4019. In the alternative, he
argues that principles of equal protection compel the retroactive application
of the October 2011 version of section 4019 to grant him additional conduct
credits.
For the reasons
set forth below, we modify several of the challenged probation conditions,
remand to the trial court to determine defendant’s ability to pay
probation-related fees, and modify the judgment to grant defendant 188 days of
conduct credit under the January 2010 version of section 4019.
and Procedural Background
No. SS091912A
Defendant
pleaded no contest to the charges against him in case number SS091912A, so the
following factual summary is taken from the probation officer’s report, which
is based on a Monterey Police Department report. On July
26, 2009, defendant stole a laptop computer valued at $800, a
digital camera valued at $400, and approximately $150 in coins from a home
where his father and sister lived.
Defendant initially told his father that someone kidnapped him and drove
him to his father and sister’s home, and that his kidnapper stole the missing
items. After an investigation, police
officers concluded there was no kidnapping and that defendant himself stole the
items in order to repay a drug debt.
On
August 13, 2009, the
district attorney charged defendant with residential burglary (§ 459;
count 1) and false report of a crime (§ 148.5, subd. (a); count 2). The district attorney amended the complaint
on March 24, 2010, and added a count of grand theft. Defendant entered a plea of no contest to the
count of grand theft (§ 487, subd. (a); count 3) on March 24, 2010. On April 30, 2010, the court sentenced
defendant to three years felony probation subject to various terms and
conditions. The court dismissed the
remaining charges and ordered defendant to pay $864 for the cost of preparing
the probation report and an additional $81 per month for the cost of supervised
probation in accordance with his ability to pay.
No. SS110534A and the Probation Violation in Case No. SS091912A
Defendant also
pleaded no contest to the charges against him in case number SS110534A, so the
following factual summary is similarly taken from the probation officer’s
report, which is based on a Monterey County Sheriff’s Office report. At some point between December 3, 2010, and
December 10, 2010, investigators determined that defendant entered the home of
his brother’s landlords, Dee and Fred Macdonald, and stole a guitar valued at
$800, a guitar case valued at $200, a ruby ring with a gold band valued at
$1,000, and a gold bracelet valued at $350.
The Macdonalds told deputies that they rented out an apartment next door
to their home, so they kept their kitchen door unlocked to allow the tenants
access to a shared electric breaker box.
Defendant lived in the apartment adjacent to the Macdonalds’ home. Deputies determined that defendant pawned the
items stolen from the Macdonalds’ home at Seaside Trading Post, a local pawn
shop. Defendant initially told
investigators that he pawned the items for a friend named “Joey,†though
officers believed “Joey†was fictional.
On
January 13, 2011, defendant’s probation officer filed a probation revocation
petition in case number SS091912A pursuant to section 1203.2, alleging that
defendant violated his probation by failing to report the offense that would
eventually be charged in case number SS110534A.
The trial court revoked defendant’s probation in case number SS091912A
on January 27, 2011.
On
March 16, 2011, the district attorney charged defendant with residential
burglary (§ 459; count 1) and commercial burglary (§ 459; count 2) in
case number SS110534A. Defendant
thereafter entered a plea on March 29, 2011, for both cases SS110534A and
SS091912A.
would be deemed a violation of probation for case number SS091912A, with the
understanding that probation would be reinstated in that case. During the same hearing, the trial court, on
motion by the district attorney, amended count 1 in case number SS110534A to
allege grand theft (§ 487, subd. (c); count 1). Defendant agreed to the terms of the plea
bargain, and pleaded no contest to both grand theft (§ 487, subd. (c);
count 1) and commercial burglary (§ 459; count 2) in case number
SS110534A.
the probation violation in case number SS091912A.
The
Sentencing Hearing on the Consolidated Cases
On
May 3, 2011, the trial court suspended imposition of sentence and placed
defendant on probation for three years in case number SS110534A, subject to
various terms and conditions including that he serve 30 days in county
jail. The court also revoked and
reinstated defendant’s probation in case number SS091912A, with the condition
that he serve 308 days in county jail.
The trial court granted defendant credit for time served of 206 days
actual custody credit and 102 days conduct credit, for a total of 308 days, in
case number SS091912A. No credit was
granted in case number SS110534A.
Defendant’s trial counsel objected to the assignment of credit at the
sentencing hearing. The trial court
further imposed a separate order of fines and fees, including $864 for the
preparation of the probation report and $81 a month for the cost of supervised
probation.
Defendant
filed a timely notice of appeal in
case number SS110534A on May 4, 2011. He
subsequently filed an amended notice of appeal over both case numbers SS091912A
and SS110534A on June 9, 2011.
Defendant
raises several contentions on appeal. First, he requests that this court modify
several of his probation conditions to include an express knowledge
requirement. Second, he argues
insufficient evidence supported the trial court’s order to pay several
probation-related fees imposed during the sentencing hearing. And third, he asserts he is entitled to
additional conduct credit under the January 2010 version of section 4019 under
principles of statutory construction, and that in the alternative he is
entitled to additional conduct credit under the October 2011 version of section
4019.
1.
Challenges
to Probation Conditions
Legal
Principles and Standard of Review
When granting
probation, a trial court possesses the power to impose as conditions of
probation any “reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may be made to society
for the breach of the law, for any injury done to any person resulting from
that breach, and generally and specifically for the reformation and
rehabilitation of the probationer . . .†(§ 1203.1, subd. (j).) “The sentencing court has broad discretion to
determine whether an eligible defendant is suitable for probation and, if so,
under what conditions.
[Citations.]†(
1114, 1120.)
Objections
to the reasonableness of a probation condition are forfeited if not raised
below. (In re Sheena K. (2007) 40 Cal.4th 875, 883, fn. 4 (
constitutionality of probation conditions may be raised on appeal without prior
objection in the trial court. (
claim—amounting to a ‘facial challenge’—that phrasing or language of a
probation condition is unconstitutionally vague and overbroad . . . does not require
scrutiny of individual facts and circumstances but instead requires the review
of abstract and generalized legal concepts—a task that is well suited to the
role of an appellate court.†(
a probation condition based upon vagueness or overbreadth presents a pure
question of law where the term or condition is “capable of correction without
reference to the particular sentencing record developed in the trial court . .
. .†(Id. at p. 887.)
A
vagueness challenge to a probation condition is supported by the due process
concept of “ ‘fair warning.’ †(
due process concepts of preventing arbitrary law enforcement and providing
adequate notice to potential offenders’ [citation], protections that are
‘embodied in the due process clauses of the federal and California
Constitutions. (U.S. Const. Amends V,
XIV; Cal. Const., art. I, § 7.)’ [Citations.]†(Ibid.) Therefore, “[a] probation condition ‘must be
sufficiently precise for the probationer to know what is required of him, and
for the court to determine whether the condition has been violated, if it is to
withstand a challenge on the ground of vagueness. [Citation.]’ †(Sheena
K., supra, 40 Cal.4th at p.
890.) Probation conditions that place
limitations on an individual’s constitutional rights must “closely tailor those
limitations to the purpose of the condition to avoid being invalidated as unconstitutionally
overbroad.†(Ibid.; In re White (1979)
97 Cal.App.3d 141, 149- 50.)
We review
defendant’s claims that his probation conditions are vague and overbroad under
a de novo standard of review. (
1129, 1143.)
Discrepancies
Between Oral Pronouncement of Probation Conditions and Minute Order
Preliminarily, we note
that the clerk’s minute order granting probation and imposing various terms and
conditions of probation contain several inconsistencies from the court’s oral
pronouncement. As this court stated in
1070 (Gabriel), “[w]hen there is a
discrepancy between the minute order and the oral pronouncement of judgment,
the oral pronouncement controls.†(
599.)
Condition
10: Use, Possession, and Traffic of
Controlled Substances
Condition
10, as pronounced by the court, provides:
“You’re not to use or possess narcotics, intoxicants, drugs or other controlled
substances without the prescription of a physician. [¶]
You’re not to traffic in or associate with persons known to you to
traffic–who use or traffic in narcotics or other controlled substances.â€
Defendant
argues that both parts of condition 10 are unconstitutionally vague because
they lack a specific scienter requirement.
Defendant contends that this court should modify condition 10 to
read: “You are not to
intoxicants, illegal drugs, or other controlled substances without the
prescription of a physician. You are not
to knowingly traffic in narcotics or
other controlled substances, or associate with individuals you know to be
trafficking in narcotics or other controlled substances.†(Emphasis added.)
The
People do not challenge defendant’s assertion that condition 10 in its current
state lacks a specific scienter requirement and is thus vague. Instead, the People urge this court to adopt
the approach set forth by the Third Appellate District in People v. Patel (2011) 196 Cal.App.4th 956 (Patel), and “construe every probation condition proscribing a
probationer’s presence, possession, association, or similar action to require
the action be undertaken knowingly.†(
to adopt the holding in Patel.
In
Patel, the Third District voiced its
concern over the impact on both fiscal and judicial economy due to the
repetitive and frequent nature of appeals over probation conditions lacking
explicit knowledge requirements.
name="_ftnref5" title="">[5] (Patel,
supra, 196 Cal.App.4th at p.
960.) The court explained that “[s]ince
at least 1993, appellate courts have issued opinions consistently holding that
conditions of probation must include scienter requirements to prevent the
conditions from being overbroad.†(
Nonetheless, with “dismaying regularity,†courts “must revisit the issue
in orders of probation, either at the request of counsel or on our own
initiative. The latter in particular is
a drain on the public fisc that could be avoided if probation departments at
fault would take greater care in drafting proposed probation orders.†(Ibid.) The Third District concluded that since there
now existed a “substantial uncontradicted body of case law establishing, as a
matter of law, that a probationer cannot be punished for presence, possession,
association, or other actions absent proof of scienter†(ibid.), the court gave notice of its “intent to henceforth no
longer entertain this issue on appeal, whether at the request of counsel or on
our own initiative†(ibid.). The court then made a blanket order that it
would henceforth “construe every probation condition proscribing a
probationer’s presence, association, or similar action to require the action be
undertaken knowingly†(ibid.) and
that it would “no longer be necessary to seek a modification of a probation
order that fails to expressly include such a scienter requirement†(
The
Third District’s concern over the repetitive and frequent nature of these
appeals and their drain on judicial resources highlights a significant problem.
Nonetheless, we respectfully decline to follow the Third District’s approach
an explicit knowledge requirement is necessary to render [a probation]
condition constitutional.†(
We must follow the Supreme Court’s holding on this point unless and
until it holds differently. (
(1962) 57 Cal.2d 450, 455.) However, in
the future, we urge the trial court to include explicit knowledge requirements
in probation conditions, as appropriate.
Defendant
requests modification of condition 10 by inserting a scienter requirement into
both parts of the condition: (1) the
prohibition on the use and possession of controlled substances, drugs, and
other intoxicants, and (2) the prohibition on trafficking or associating with
those that use controlled substances, drugs, and other intoxicants.
We
agree that absent an explicit scienter requirement, defendant could unwittingly
violate probation if he is unaware of either the presence or character of
certain prohibited items. In certain
circumstances, for a probation condition to be sufficiently specific as to not
offend a criminal defendant’s constitutional rights, an express knowledge
requirement should be included in the condition and should not be left to
implication. (See People v. Freitas (2009) 179 Cal.App.4th 747, 751-752;
97, 102.) We will therefore modify the
first and second sentence of condition 10 to include a knowledge
requirement.
Defendant
further seeks to modify condition 10 by requesting that the word “drugs†in the
first sentence be replaced with “illegal drugs.†Defendant contends this would prevent the
condition from being overbroadly applied to nonprescription medications such as
aspirin. The People argue that the context
of the condition and the inclusion of the phrase “without the prescription of a
physician†lends to the conclusion that the condition “does not prohibit the
use or possession of every conceivable drug, but only those that are illegal.â€
We
find that with its current phrasing, condition 10’s reference to “drugs†is
unclear and can refer to any number of nonprescription medications such as
Tylenol or aspirin. However, defendant’s
request that we modify the condition by adding the adjective “illegal†before
“drugs†renders the condition illogical, as it would then read that defendant
is prohibited from using, dealing, or possessing “illegal drugs†without a
prescription from a physician. By their
very nature, physicians cannot legally prescribe “illegal drugs.†Insomuch as the trial court intended “drugsâ€
to encompass controlled substances, the reference is superfluous as the
condition already bars using, dealing, or possessing controlled
substances. We will therefore further
modify the condition to delete the unnecessary reference to “drugs.â€
Condition
13: Possession, Receipt, and Transport
of Firearms
Condition
13, as pronounced by the court, provides that:
“You’re not to possess, receive or transport any firearm, ammunition or
any deadly or dangerous weapon. [¶] Upon release from custody you’re to
immediately surrender any firearms or ammunition you possess to law
enforcement.â€
In
the court’s signed minute order, condition 13 reads: “Not possess, receive or transport any
firearm, ammunition or any deadly or dangerous weapon. Immediately surrender any firearms or
ammunition you own or possess to law enforcement (P.C. § 12021).†Former section 12021, which was repealed
effective January 1, 2012 (Stats. 2010, ch. 711, § 4, operative Jan. 1, 2012),
prohibited convicted felons from possessing firearms and required willfulness and
knowledge on the part of the defendant.
Defendant
argues that condition 13 in its present state is unconstitutionally vague as it
lacks a specific scienter requirement, and that the condition should be
modified to read: “You are not to
any firearm, ammunition or any deadly or dangerous weapon.†(Emphasis added.)
Defendant
acknowledges this court’s decision in People
v. Kim (2011) 193 Cal.App.4th 836, 846 (Kim),
where we held that a probation condition barring possession of firearms did not
need modification to include a specific scienter requirement since the
condition specifically referenced former sections 12021 and 12316.
we found that “[i]mplicit in the crime of possession of a firearm is that a
person is aware both that the item is in his or her possession and that it is a
firearm.†(Kim, supra, at p.
846.) This court then concluded that
“[w]e believe the same is true of a probation condition prohibiting possession
of a firearm†(ibid.) and since the
probation condition simply implemented a statute no express scienter
requirement was necessary. (
Defendant
distinguishes this case from Kim by
asserting that the trial court’s oral pronouncement of condition 13 omitted the
reference to section 12021, though defendant acknowledges the court included
the reference in its signed minute order.
While defendant’s assertion that the oral pronouncement fails to
reference section 12021 is true, it still implements and tracks the language of
the statute by the very nature of its contents–to prohibit those convicted of
felonies from possessing firearms. This
obviates the need for an explicit knowledge requirement in the condition
itself. (Kim, supra, 193
Cal.App.4th at p. 847.)
However,
to avoid any unnecessary confusion we will modify the condition to include a
reference to section 29800, as requested by the People. As explained ante, the Legislature repealed former section 12021 effective
January 1, 2012. (Stats. 2010,
ch. 711, § 4.) Section 29800
now contains the provisions previously located in former section 12021 that
forbid felons from possessing or owning firearms . (Stats. 2010, ch. 711, § 6, operative
Jan. 1, 2012.)
We
additionally modify the language of the condition to include an express
scienter requirement. Section 29800 and
our holding in Kim eliminates the
need for an express knowledge requirement in a probation condition barring a
felon from possessing a firearm.
However, section 29800 and Kim
do not address the need of an express knowledge requirement for the other
elements of condition 13 that prohibit defendant from receiving or transporting
a firearm, which he could violate without his knowledge. (Sheena
K., supra, 40 Cal.4th at pp.
891-892.)
Condition
16: Stay Away from Victims
Condition
16, as pronounced by the court during the sentencing hearing, provides: “You’re to stay at least 100-yards away from
the victims, Steve McDonald and Seaside Trading Post, their residence, vehicle,
place of employment and business.â€
Notably,
the court’s signed minute order omits
any reference to condition 16. Neither
party mentions this omission in their briefs, but it is a clerical error that
this court may correct without request by either party. (See People
v. Mitchell (2001) 26 Cal.4th 181, 186-187 (Mitchell).) Thus, we will
amend the minute order to include condition 16 that was pronounced by the
court, subject to certain modifications as described below.
Defendant
contends that condition 16is unconstitutionally vague because it fails to
include a knowledge requirement.
Defendant argues that he cannot know the location of the victims, their
vehicles, and their residences at any given moment, and that he might
unwittingly violate the condition if any of the victims move. The People claim that such a knowledge
requirement is redundant, given that defendant knows the location of Seaside
Trading Post and the Macdonalds’ home.
We disagree that a modification is redundant, as the current condition
requires that defendant stay away from the individual victim’s vehicle,
residence, and place of employment. One
or more of these may change without prior knowledge of the defendant. We therefore modify condition 16 to include
an express scienter requirement. (See
19 Cal.App.4th 97, 102.)
The
People also request that this court amend the condition to include a reference
to Dee Macdonald since she was a victim of defendant’s burglary. The trial court’s oral pronouncement of
condition 16 currently only references a “Steve Macdonald.†There
is no record of a victim named “Steve Macdonald†in the clerk’s
transcript. A review of the record indicates that
defendant burglarized the home of Dee and Fred Macdonald, whose names are
clearly stated in the complaint and in the probation report. Neither defendant nor the People reference
this clerical error, but we will correct this mistake to avoid any confusion
that may arise from a probation condition directing defendant to stay away from
a nonexistent victim, and will replace the condition’s reference from “Steve
Macdonald†to “Dee Macdonald.†(
186-187.)
Condition
17: Possession of Burglary Tools
Condition
17, as pronounced orally by the court, reads:
“You’re not to possess tools used for the express purpose of
facilitating burglaries or theft such as pry bars, screwdrivers, pick lock
devices, universal keys or implements or other such devices without the express
permission of your supervising probation officer.â€
Defendant
contends this condition, like conditions 10, 13, and 16, is vague because it
lacks an express knowledge requirement.
We agree. Without an express
knowledge requirement condition 17 is vague as defendant could unwittingly
violate the condition. (See
We therefore modify condition 17 to include an express scienter
requirement.
2.
Evidence
Defendant next
argues that insufficient evidence supported the trial court’s order that he pay
$864 for the preparation of the probation report and $81 per month for the cost
of supervised probation.
name="_ftnref9" title="">[9] Though the trial court did not indicate in
its oral pronouncement under which statute it imposed the fees, we assume that
the court imposed the fee pursuant to section 1203.1b, as that is the statute
that discusses fees for the cost of supervised probation and the preparation of
the probation report.
The
People initially contend that defendant forfeited his probation-related fee
claims because he failed to raise them below in the trial court. However, this court held in
1392 (Pacheco) that claims based on
insufficiency of the evidence to support an order or judgment, such as a claim
regarding insufficient evidence to support a determination of an individual’s
ability to pay fees and fines, need not be raised in the court below to be
preserved on appeal. (
held otherwise in similar cases.
name="_ftnref10" title="">[10] (See People
v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072 [First District held
that claim regarding insufficient evidence to support probation supervision fee
forfeited on appeal].) Nonetheless, we
will adhere to our conclusion in Pacheco
and will reach the merits of defendant’s claims.
Section
1203.1b sets forth a process that must be followed before the trial court may
impose a fee for the cost of supervised probation or for the cost of preparation
of a probation report. First, the court
must order the defendant to report to the probation officer, who will then make
a determination of the defendant’s ability to pay. (§1203.1b, subd. (a).) After the probation officer determines the
amount the defendant may be able to pay, the probation officer must inform the
defendant that he or she is entitled to a hearing, during which the court will
make a determination of the defendant’s ability to pay and the payment amount. (§ 1203.1b, subd. (a).) Defendant is entitled to representation by
counsel during this hearing. (§ 1203.1b,
subd. (a).) A defendant may waive his or
her right to a hearing, but this
waiver must be made knowingly and intelligently. (§ 1203.1b, subd. (a).) If no waiver is given, the probation officer
must refer the matter back to the trial court, and the trial court will make a
determination of defendant’s ability to pay.
In
defendant’s case, the trial court orally ordered defendant to pay $864 for the
cost of preparation of the probation report and $81 per month for the cost of
supervised probation.
name="_ftnref12" title="">[12] The court did not indicate any findings it
may have made as to defendant’s ability to pay.
In
Pacheco, supra, 187 Cal.App.4th 1392, the trial court ordered Pacheco to pay
$64 a month as a probation supervision fee.
(Id. at p. 1400.) After review of the record, this court
determined that there was no evidence indicating that the probation officer or
the court ever “made a determination of Pacheco’s ability to pay the $64 per
month probation supervision fee.†(
advised him of his right to have the court make this determination or that he
waived this right.†(
We found that “[i]n short, it appears that the statutory procedure
provided at section 1203.1b for a determination of Pacheco’s ability to pay
probation related costs was not followed†and concluded that the monthly
probation fee could not stand. (
Here,
as in Pacheco, nothing in the record
indicates that defendant was ever advised of his right to a hearing on his
ability to pay, or that he ever waived his right to a hearing. The People argue that given that the
probation report indicated the probation officer was recommending to the court
that defendant be ordered to pay the probation-related fees, defendant was
given sufficient notice of the proposed probation fees. But we are not aware of any legal
authority–and the People do not cite to any such authority–that supports the
argument that the requirements of section 1203.1b can be circumvented if a
defendant has sufficient notice of the fees.
There is also nothing in the record to substantiate the source of
probation-related fees. The only
reference to defendant’s ability to pay in the prepared probation report is
that the probation officer rated defendant’s financial capability as
“[m]inimal,†though the report noted that “it is anticipated that the defendant
will be able to pay any victim restitution, fines, or fees, associated with
these cases.â€
It
is possible the court intended that its order set a “ceiling†for the amount of
fees defendant would be required to pay, pending a determination of his ability
to pay by the probation department, but this procedure does not comport with
the statutory requirements set forth in section 1203.1b. The statute contemplates that the court must
first refer the defendant to the probation department for an analysis of his or
her ability to pay prior to the imposition of an order to pay fees. (§ 1203.1b, subd. (a).) The probation department is then obliged to
inform the defendant of his right to contest the probation department’s
evaluation at a court hearing. (
Here, there is no evidence that any analysis into defendant’s ability to
pay was made prior to the court’s fee order.
We
therefore find that the fees of $864 for the cost of preparing the report and
$81 per month for supervised probation cannot stand, and remand the imposition
of these fees to the trial court with directions that it comply with section
1203.1b by ordering a determination be made of defendant’s ability to pay such
fees. (People v. O’Connell (2003)
107 Cal.App.4th 1062, 1067-1068; see also Pacheco, supra, 187 Cal.App.4th
at pp. 1401, 1404.)
3.
Defendant
also argues that he is entitled to additional conduct credit under the January
2010 version of section 4019. He
contends that the trial court erroneously calculated his conduct credit under
the September 2010 version of section 4019.
Defendant
was incarcerated twice in case number SS091912A, which is the only case in
which he was awarded conduct credit and custody credit. He was first incarcerated from December 22,
2009, through May 3, 2010, after he committed the initial offense.
February 20, 2011, through May 3, 2011, after his violation of probation due to
his failure to report the offense in case number SS110534A.
custody for case number SS091912A, and the court awarded him 102 days of
conduct credit.
Before
we address the merits of defendant’s claims, we briefly review the statutory
history of section 4019.
A.
Section
4019 provides for presentence credits, consisting of worktime and good
behavior. (§ 4019, subds. (b) &
(c).) Collectively, these presentence
credits are referred to as “conduct credit.â€
(People v. Dieck (2009) 46
Cal.4th 934, 939, fn. 3 (Dieck).) Criminal defendants earn conduct credit prior
to the imposition of a sentence and also earn conduct credit when a jail
sentence is a term or condition of probation.
(People v. Daniels (2003) 106
Cal.App.4th 736, 740.)
Defendant
committed his initial offense in case number SS091912A in July 2009. At the time he committed the offense, former
section 4019 allowed defendants to earn conduct credit at a rate of two days
for every four days of actual custody.
(Stats.1982, ch. 1234, § 7, p. 4553 [former § 4019, subd. (f)].)
Effective
January 25, 2010, the Legislature amended section 4019 to allow defendants to
earn conduct credit at a rate of two days for every two days of actual
custody. (Stats. 2009, 3d Ex. Sess.
2009-2010, ch.28, § 50, eff. Jan. 25, 2010 [January 2010 version of
§ 4019, subds. (b)(1), (c)(1) & (f)].)
However, if a defendant had a prior serious felony conviction as defined
in section 1192.7, the defendant would earn conduct credit at the less
favorable rate of two days for every four days of actual custody. (Stats. 2009, supra, ch.28, § 50 [former section 4019, subds. (b)(2) &
(c)(2)].) Defendant’s offense of grand
theft is not a serious or violent felony under section 1192.7.
Effective
September 28, 2010, section 4019 was amended again to allow defendants to earn
conduct credit at a rate of two days for every four days of actual
custody. (Stats. 2010, ch. 426, §§ 2, 5
[September 2010 version of § 4019].)
And the provision of section 4019 that treated defendants differently
due to their prior serious felony conviction was eliminated. (Stats. 2010, ch. 426, § 2.) At the same
time, the Legislature amended section 2933.
(Stats. 2010, ch. 426, § 1 [former § 2933, subd. (e)].) The amendment to section 2933 allowed
defendants who were sentenced to prison and for whom the sentence was executed
to earn presentence conduct credit at the rate of one day for every day of
actual custody. (Stats. 2010, ch. 426, §
1 [former § 2933, subd. (e)(1)].)
Defendants with a prior serious felony conviction were excluded from
this more favorable calculation under former section 2933, and instead earned
conduct credit under section 4019.
(Stats. 2010, ch. 426, § 1 [former § 2933, subd. (e)(3)].) But the September 2010 version of section
4019 expressly applied only to defendants who committed their crime on or after
the statute's effective date of September 28, 2010. (Stats. 2010, ch. 426, § 2.)
Section
4019 was amended once more, operative October 1, 2011, and now provides that
defendants earn conduct credit at a rate of two days for every two days of
actual custody. (§ 4019, subds. (b),
(c), & (f); Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39,
§ 53.) The October 2011 version of
section 4019 does not disqualify defendants with prior serious felony
convictions from this rate.
(§ 4019, subds. (b), (c), & (f).) The October 2011 version of section 4019
applies only to those defendants who commit a crime on or after October 1,
2011, and the statute specifically provides that any days earned by defendants
prior to that date will be calculated according to “the rate required by the
prior law.†(§ 4019, subd. (h).) Section 2933 was also amended, operative
October 1, 2011, and it no longer provides for presentence conduct credit. (Stats.
12, § 16.)
B.
Preliminarily,
the People argue that defendant waived his right to additional presentence
conduct credit because he accepted probation on the condition that he serve a
jail term of 308 days. Accordingly, they
contend, we should not reach the merits of defendant’s claims. We find no merit to this argument.
The
People rely on People v. Johnson
(2002) 28 Cal.4th 1050 (Johnson),
where the California Supreme Court allowed a defendant to waive actual custody
credit (§ 2900.5) when agreeing to probation terms. (Id.
at p. 1058-1059.) In addition to waiver
of actual custody credit, a defendant may also waive conduct credits as part of
a negotiated disposition. (
302.) As with waiver of “any significant
right by a criminal defendant, a defendant's waiver of entitlement to section
2900.5 custody credits must, of course, be knowing and intelligent.†(Johnson,
supra, at p. 1055.)
Despite
the People’s contentions, nothing in the record indicates that a knowing or
intelligent waiver of presentence conduct credit took place. Although defendant agreed to the terms and
conditions of probation during the sentencing hearing, he did not expressly
waive his right to any further conduct credit.
In fact, defendant’s counsel objected to the trial court’s calculation
of credits at the time of sentencing.
Since there appears to be no knowing or intelligent waiver of credits,
we turn to the merits of defendant’s claim.
C.
Version of Section 4019
In
his reply brief, defendant concedes that under the California Supreme Court’s
holding in People v. Brown (2012) 54
Cal.4th 314 the trial court correctly calculated his presentence conduct
credits at a rate of two days for every four days of actual custody for the
time defendant spent in jail prior to January 25, 2010, the operative date of
the January 2010 version of section 4019.
(Stats. 2009, 3d Ex. Sess. 2009-2010, ch.28, § 50, eff. Jan. 25,
2010.) However, defendant argues that
under Brown, he is still entitled to
additional conduct credit for the time he spent in jail after January 25, 2010.
In
Brown, our Supreme Court concluded
that “former section 4019 [the January 2010 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.†(
Thus, defendant first became
eligible to earn increased conduct credit after the statute’s operative date of
January 25, 2010, through his release from custody on May 3, 2010.
Defendant
additionally argues he is entitled to increased conduct credit for his second
period of incarceration between February 20, 2011 and May 3, 2011, for case
number SS091912A. During the
that all of the conduct credit it awarded was for defendant’s violation of
probation in case number SS091912A, including the credit awarded for
defendant’s period of incarceration between February 20, 2011 and May 3,
2011. Defendant committed the initial
offense in case number SS091912A in July of 2009, well before the September
2010 version of section 4019 came into effect.
All conduct credit awarded to defendant for time he spent incarcerated
for case number SS091912A should therefore be calculated in two tiers, with all
conduct credit for time served prior to January 25, 2010, calculated at a rate
of two days for every four days of actual custody, and all time served on and
after that date calculated at a rate of two days for every two days of actual
custody.
Broken
down, defendant’s period of custody between December 22, 2009 and January 24,
2010 (34 actual days) should be subject to the pre-January 2010 version of
section 4019, meaning that defendant earned two days of conduct credit for
every four days of actual custody, for a total of 16 days of conduct credit.
(Stats. 1982, ch. 1234, § 7, p. 4553 [former § 4019, subd.
(f)].) Defendant’s period of custody
between January 25, 2010 and May 3, 2010 (99 actual days), and the period of
custody between February 20, 2011 and May 3, 2011 (73 actual days), should be
subject to the January 2010 version of section 4019, meaning that defendant
earned two days of conduct credit for every two days of actual custody, for a
total of 172 days conduct credit.
(Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010
[January 2010 version of § 4019, subds. (b)(1), (c)(1) & (f)].) The judgment should therefore be modified to
award defendant a total of 188 days of conduct credit for case number
SS091912A.
D.
of the October 2011 Version of Section 4019
In
the alternative, defendant argues that equal protection compels the retroactive
application of the October 2011 version of section 4019 to both periods of
incarceration in case number SS091912A.
We determined that the January 2010 version of section 4019 applies to
defendant’s time spent in custody after January 25, 2010, but not to his time
spent in custody prior to January 25, 2010.
If the October 2011 version of section 4019 was to retroactively apply
under the principles of equal protection, the entirety of defendant’s sentence,
including the time he spent in custody prior to January 25, 2010, would be
subject to an increased conduct credit accrual rate. We conclude that equal protection does not
compel the application of the October 2011 version of section 4019.
In
order to succeed on a claim of equal protection, a defendant needs to
demonstrate that there are two similarly situated groups that are unequally
treated. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (
afforded to different types of classifications.
(People v. Wilkinson (2004) 33
Cal.4th 821, 836-837.) In cases where
the disparate statutory treatment does not touch upon “fundamental interests,â€
and is not rooted in gender, the analysis must be whether or not the
classification “ ‘bears a rational relationship to a legitimate state purpose.’
†(Hofsheier,
at p. 1200.) If any “ ‘plausible
reasons’ †for the classification at issue exist, there is no equal protection
violation. (Id. at pp. 1200-1201.)
The
October 2011 version of section 4019 expressly includes a provision that states
the statute only applies to inmates who committed offenses on or after October
1, 2011. (§ 4019, subd. (h).) Defendant contends that the October 2011
version of section 4019 creates two similarly situated groups that are treated
unequally under the statutory scheme:
(1) those who will receive conduct credit at a reduced rate because they
committed an offense before October 1, 2011, and (2) those who will receive
conduct credit at an increased rate because they committed an offense after
October 1, 2011. This argument lacks
merit.
Our
Supreme Court held in Brown, supra,
54 Cal.4th 314 that a prospective application of the January 2010 version of
section 4019 does not violate the principles of equal protection because the
statute did not create two similarly situated groups. The court noted that 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.†(Brown, supra, 54 Cal.4th
314, pp. 328-329.) As a result,
“prisoners who served time before and after former section 4019 took effect are
not similarly situated necessarily follows.â€
(Id. at p. 329.) We recently held in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy) that there is no reason why the reasoning and holding in
1, 2011 amendment to section 4019.
Defendant
contends that the decision in People v.
Sage (1980) 26 Cal.3d 498 implicitly held that felons are similarly
situated to other inmates “regardless of their lack of awareness of the right
to earn conduct credits.†Defendant
further contends that the reasoning of In
re Strick (1983) 148 Cal.App.3d 906 (Strick)
was not only wrongly decided but refuted by Sage. The appellate court in Strick denied a defendant’s equal protection claim over the
prospective application of a statute that gave additional custody credit to
those inmates participating in a work program, finding that the two groups (the
group deprived of additional credit and the group granted additional credit) were
not similarly situated. (
Defendant’s
argument on this point fails as the court in Brown rejected a similar argument, finding Strick to be “persuasive.†(
In Brown, the Supreme Court noted
that the Strick court found that
prospective application of a statute effecting conduct credit was appropriate
as the “ ‘obvious purpose of the new section’ †was 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.’ †(Id. at
pp. 329-330.)
Defendant’s
claim that there is no rational reason for the disparate treatment is also
refuted by the reasoning in Brown. In support of his argument on this point, defendant
relies on In re Kapperman (1974) 11
Cal.3d 542 and Sage. But both Kapperman
and Sage were discussed and
distinguished by the Supreme Court in Brown. (Brown,
supra, 54 Cal.4th at pp.
328-330.)
Kapperman
concerned a statute that awarded custody credit only to those inmates delivered
to the Director of Corrections by the statute’s effective date, which date did
not bear a rational relationship to a legitimate state purpose. (Id.
at p. 545.) In its decision, the court
ordered the statute applied retroactively to all felons who were incarcerated
or on parole, including those excluded from the scope of the original
statute. (Id. at p. 550.) The
regard to behavior, and thus does not entail the paradoxical consequences of
applying retroactively a statute intended to create incentives for good
behavior. Kapperman does not hold or suggest that prisoners serving time
before and after the effective date of a statute authorizing
situated.†(Brown, supra, 54 Cal.4th
at p. 330, emphasis in original.)
The
Brown court also distinguished
supra, 54 Cal.4th at pp.
329-330.) In Sage, the court held that a provision that awarded presentence
conduct credit to those convicted of misdemeanors but not felonies violated
principles of equal protection, finding that there was no rational basis for
the varying treatment. (
The Brown court reasoned that
“[t]he unsigned lead opinion ‘by the Court’ in Sage does not mention the argument that conduct credits, by their
nature, must apply prospectively to motivate good behavior. A brief allusion to that argument in a
concurring and dissenting opinion [citation] went unacknowledged and unanswered
in the lead opinion. As cases are not
authority for propositions not considered [citation], we decline to read
holds.†(Brown, supra, 54 Cal.4th
at p. 330.)
We
conclude that the prospective application of the October 2011 version of
section 4019 does not violate the principles of equal protection, and therefore
find no merit to defendant’s claim for additional conduct credit under this
theory.
Probation conditions 10, 13,
and 17 are modified as follows:
Condition
10: “You are not to knowingly use or
possess narcotics, intoxicants, or other controlled substances without the
prescription of a physician. You are not
to knowingly traffic in narcotics or other controlled substances, or associate
with individuals you know to be trafficking in narcotics or other controlled
substances.â€
Condition
13: “You are not to knowingly possess,
receive or transport any firearm, ammunition or any deadly or dangerous weapon.
Upon release from custody you are to immediately surrender any
enforcement.â€
Condition
17: “You are not to knowingly possess
tools used for the express purpose of facilitating burglaries or theft such as
pry bars, screwdrivers, pick lock devices, universal keys or implements or
other such devices without the express permission of your supervising probation
officer.â€
Condition
16 is added to the minute order and is modified as follows: “You are to stay at least 100-yards away from
those you know to be the victims, Dee Macdonald and Seaside Trading Post, and
places you know to be their residence, vehicle, place of
employment and business.â€
The
order directing defendant to pay $864 for the cost of preparation of the
probation report and $81 per month for the cost of supervised probation is
remanded to the trial court for a determination of defendant’s ability to pay
under section 1203.1b.
The
judgment granting defendant conduct credit in case number SS091912A is
modified. Defendant is granted a total
of 188 days conduct credit in addition to his 206 days of custody credit, for a
total of 394 days of presentence credit.
In
all other respects, the judgment is affirmed.
_______________________
Márquez,
J.
WE CONCUR:
___________________________
Premo, Acting P.J.
________________________
Mihara, J.
further unspecified statutory references are to the Penal Code.
plea bargain also included a misdemeanor case (case no. MS293716A) for
resisting public or peace officers or emergency medical technicians in
discharge of their duties (§ 148, subd. (a)(1)) in February 2011. That misdemeanor is not part of this current
appeal.
