P. v. McAlmond
Filed 2/21/13 P. v. McAlmond CA6
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opinion has not been certified for publication or ordered published for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.
RONALD DALE MCALMOND,
Defendant and
Appellant.
H037617
(Monterey
County
Super. Ct.
Nos. SS100996A &
SS110713A)
On April 5, 2010, defendant Ronald Dale
McAlmond pleaded no contest to possession
of a controlled substance, methamphetamine (Health & Saf. Code, §
11377, subd. (a); the methamphetamine case).
He was initially placed on a Proposition 36 drug diversion program (Pen.
Code, § 1210.1),
title="">[1]
but after multiple probation violations, the trial court terminated his
Proposition 36 probation and placed him on formal probation for three
years. By the time he was placed on
formal probation, defendant had earned 289 days of presentence credits;
therefore, the court ordered him to serve a 289-day county jail term as a
condition of his formal probation and he was released from custody for time
served.
Several
months later, in a separate case, defendant was arrested on suspicion of
committing a first-degree residential
burglary (§ 459; the burglary case).
Still on formal probation in the methamphetamine case, he also faced
violation of probation proceedings.
A jury
convicted defendant of first-degree residential burglary. The trial court also found that he violated
his formal probation in the methamphetamine case and, for that reason, revoked
and terminated his probation. He then
received a four-year sentence for the burglary and a consecutive eight-month
sentence in the methamphetamine case. He
was awarded 307 days of presentence credits in the burglary case. Separately, in the methamphetamine case, he
was awarded 43 days of presentence credits.
On appeal,
defendant contends, on both constitutional
and statutory grounds, that he is entitled to additional presentence
conduct credit in the burglary case based on an amendment to section 4019 that
took effect on October 1, 2011. He also claims that he is entitled to have
the 289 days of county jail time that he previously served as a condition of
probation in the methamphetamine case credited against his eight-month sentence
arising from that case.
We conclude
that defendant is not entitled to additional presentence conduct credit in the
burglary case, but he is entitled to 289 days of presentence credits in the
methamphetamine case. We will modify the
judgment to include 289 days of presentence credits in the methamphetamine case
such that defendant's eight-month sentence in that case is deemed served. As modified, the judgment is affirmed.
FACTS AND PROCEEDINGS
BELOW
Possession
of Methamphetamine (Case Number SS100996A)
Since the
claims on appeal concern only presentence credits, it is not necessary to give
a detailed recitation of the facts underlying defendant's convictions. Rather, we note that on April 5, 2010, while on misdemeanor probation,
name="_ftnref2" title="">[2]
defendant pleaded no contest to possessing a controlled substance,
methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He committed this crime on March 27, 2010. The trial court suspended the imposition of
his sentence for a period of eighteen months and instead ordered him to
complete a Proposition 36 drug diversion program (§ 1210.1).
On April 28, 2010, a probation violation
petition pursuant to section 1203.2 was filed against him. On May
17, 2010, he admitted that he violated his Proposition 36 probation
by failing to participate in substance abuse counseling and failing to report
to probation. The court reinstated his
Proposition 36 probation on the same terms and conditions originally set on April 5, 2010.
A
second probation violation petition was filed in July 2010. On November
23, 2010, after having been convicted in a separate case of
misdemeanor domestic violence, the court sustained the second probation
violation petition. The court modified
defendant's probation by terminating his Proposition 36 probation, placing him
on formal probation for a period of three years, and ordering him to serve 289
days in county jail as a condition of probation. It was the court’s intention “not to give any
additional jail time on this particular case.â€
Applying the January 25, 2010
version of section 4019 to calculate defendant's conduct credits, the court
awarded 145 days of custody credits and 144 days of conduct credits, totaling
289 days of presentence credits.
Defendant was released from custody for time served.
II.
Residential
Burglary (Case Number SS110713A)and Sentencing in the Methamphetamine Case
(Case Number SS100996A)
While
defendant was still on formal probation in the methamphetamine case, a new
complaint was filed against him alleging that, on April 11, 2011, he committed
459). A trial was held and a jury
convicted him of first-degree burglary.
The court also found that he violated his probation in the
methamphetamine case. He was sentenced
in both cases on November 1, 2011.
In the
burglary case, the trial court sentenced defendant to four years in state
prison, the mid-term for first-degree residential burglary (§ 459). He was awarded 307 days of presentence
credits against his sentence, consisting of 205 days of custody credits and 102
days of section 4019 conduct credits.
In the
methamphetamine case, the trial court revoked and terminated defendant’s
probation and sentenced him to a consecutive eight-month term in state prison,
which is one-third of the mid-term for possession of a controlled substance
(Health & Saf. Code, § 11377, subd. (a)).
Applying the pre-January 25, 2010 version of section 4019, defendant was
awarded 29 days of custody credits and 14 days of section 4019 conduct credits,
totaling 43 days of presentence credits against his eight-month sentence.
DISCUSSION
I.
Defendant
is Not Entitled to Additional Presentence Conduct Credits in the Residential
Burglary Case
Defendant's
primary argument is that federal and state equal
protection principles require that the more favorable conduct credit scheme
set forth in the amendment to section 4019 effective October 1, 2011, be
applied to him in the burglary case notwithstanding that he committed the
burglary prior to October 1, 2011. He
argues, in the alternative, that he is entitled to additional conduct credits
for time served after October 1, 2011, under the rationale of
1126, review granted August 8, 2012, S203298 (Olague). We conclude that
neither of these arguments have merit.
Background
Presentence
credits are awarded at the time of sentencing (§ 2900.5, subd. (a)), and
consist of actual days in custody (custody credits) plus eligible work and good
behavior credits under section 4019, subdivisions (b) & (c) (collectively,
conduct credits). (People v. Cooper (2002)
27 Cal.4th 38, 40.) In
385, 395-396 (Kennedy), we explained
the recent legislative changes to section 4019, noting that “[b]efore January
25, 2010, conduct credits under Penal Code section 4019 could be accrued at the
rate of two days for every four days of actual time served in pre-sentence
custody. (Stats. 1982, ch. 1234, § 7, p.
4554 [former § 4019, subd. (f)].)
Effective January 25, 2010, the Legislature amended Penal Code section
4019 in an extraordinary session to address the state's ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18
amended section 4019 such that defendants could accrue custody credits at the
rate of two days for every two days actually served, twice the rate as before
except for those defendants required to register as a sex offender, those
committed for a serious felony (as defined in § 1192.7), or those who had a
prior conviction for a violent or serious felony. (Stats. 2009-2010, 3d Ex.Sess., ch. 28, §§
50, 62 [Pen. Code, former § 4019, subds. (b), (c), & (f)].) [¶]
Effective September 28, 2010, Penal Code section 4019 was amended again
to restore the presentence conduct credit calculation that had been in effect
prior to the January 2010 amendments, eliminating one-for-one credits
(hereafter the September 2010 amendment, Stats. 2010, ch. 426, § 2). By its express terms, the newly created Penal
Code section 4019, subdivision (g), declared these September 28, 2010
amendments applicable only to inmates confined for a crime committed on or
after that date, expressing legislative intention that they have prospective
application only. (Stats. 2010, ch. 426,
§ 2.) [¶] Thereafter, again, the Legislature amended
Penal Code section 4019. These statutory
changes, among other things, reinstituted one-for-one conduct credits and made
this change applicable to crimes committed on or after October 1, 2011, the
operative date of the amendments, expressing legislative intent for prospective
application only. (Pen. Code, § 4019, subds. (b), (c), &
(h).)â€
It is the
final amendment that took effect on October 1, 2011 (hereafter the 2011
amendment) that we are concerned with in this appeal.
Equal
Protection
with an equal protection challenge to the prospective application of the 2011
amendment identical to the one raised here.
Relying on Brown,
applying the 2011 amendment to section 4019 (with its one-for-one conduct
credit formula) to persons who committed crimes on or after October 1, 2011,
did not violate principles of equal protection.
In
on an equal protection claim, a defendant must first show that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner. (People v.
Wilkinson (2004) 33 Cal.4th 821, 836-837.)â€
(Kennedy, supra, 209
Cal.App.4th at p. 396.) We concluded
that defendants who committed crimes before October 1, 2011, and defendants who
committed crimes on or after October 1, 2011, are not similarly situated for
purposes of earning presentence conduct credits. (Id. at
pp. 396-397; accord, People v. Ellis (2012)
207 Cal.App.4th 1546, 1551-1552, review den. October 31, 2012, S205334.)
We noted
that “[a]lthough the Supreme Court in Brown
was concerned with the January 2010 amendment to section 4019 (
with equal force to the prospective-only application of the current [October 1,
2011] version of section 4019.†(
396-397.) And we then explained that “[i]n
rejecting the defendant's argument that the January 2010 amendments to section
4019 should apply retroactively, the California Supreme Court 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.’ (Brown,
supra, at pp. 328-329.)†(
defendants who committed crimes before October 1, 2011, and defendants who
committed crimes on or after October 1, 2011, are not similarly situated for
purposes of earning presentence conduct credits.
However,
even if the two classes of defendants created by the 2011 amendment were
similarly situated for purposes of earning presentence conduct credits, the
2011 amendment does not violate equal protection. (Kennedy,
supra, 209 Cal.App.4th 397-399.)
“[W]here, as here, the statutory distinction at issue neither ‘touch[es]
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.]’ (People v.
Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier); see also People
v. Ward (2008) 167 Cal.App.4th 252, 258 [rational basis review applicable
to equal protection challenges based on sentencing disparities].)†(Kennedy,
supra, at p. 397.) Pursuant to
the rational relationship test, “ ‘ “ ‘ “a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional
rights must be upheld against [an] equal protection challenge if there is any
reasonably conceivable state of facts that could provide a rational basis for
the classification. [Citations.] Where there are “plausible reasons†for [the
classification], “our inquiry is at an end.†’ †’ †(Hofsheier, supra, 37 Cal.4th at pp.
1200-1201, italics omitted.)†(
A rational
relationship exists to support the prospective application of the 2011
amendment to section 4019. (
For instance, “the 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
before that date. To reward appellant
with the enhanced credits of the October 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.†(
The
Attorney General notes that over the past few years there have been a series of
incremental changes in the presentence conduct credit earning rates provided in
section 4019. As we explained in
accurate. Indeed, “[s]ome of these
changes have affected only those with serious felony priors and other
disqualifications, some only providing a benefit to those free from
such burdens. Overall, the Legislature
has tried to strike a delicate balance between reducing the prison population
during the state's fiscal emergency and protecting public safety. 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
approaches to statutory schemes addressing social ills and funding services to
see what works and what does not. (Warden
v. State Bar (1999) 21 Cal.4th 628, 649, [reform measures can be
implemented one step at a time].)†(Kennedy,
supra, 209 Cal.App.4th at p. 399, fns. 9 & 10 omitted.)
Defendant’s
reliance on In re Kapperman (1974) 11
Cal.3d. 542 and its citation to People ex rel. Carroll v. Frye (1966) 35
Ill.2d 604 (Frye), is misplaced. As we held in Kennedy, relying on the Supreme Court’s reasoning in
the Supreme Court reviewed a provision (then new Penal Code § 2900.5) that made
actual custody credits prospective, applying only to persons delivered to the
Department of Corrections after the effective date of the legislation. [Citation]
The court concluded that this limitation violated equal protection because
there was no legitimate purpose to be served by excluding those already
sentenced, and extended the benefits retroactively to those improperly excluded
by the Legislature. [Citation]†(
396.) Accordingly, “Kapperman is
distinguishable from the instant case because it addressed actual custody
credits, not conduct credits.
Conduct credits must be earned by a defendant, whereas custody credits
are constitutionally required and awarded automatically on the basis of time
served.†(Ibid.)
Frye,
supra, 35 Ill.2d 604—as cited in a
footnote in Kapperman (Kapperman,
supra, 11 Cal.3d at p. 547, fn. 6)—is also inapposite. Frye is
an Illinois case which dealt with custody credits, not conduct credits with
which we are concerned here. Moreover,
“the date that was considered potentially arbitrary or fortuitous in the equal
protection analysis in People ex rel. Carroll v. Frye was the date of
conviction, a date out of a defendant's control, and not the date the crime was
committed. [Citation]†(
397.)
For
all of these reasons, defendant's equal protection challenge is rejected. Defendant, who was convicted of a burglary
committed in April 2011, is not entitled to one-for-one presentence conduct
credit under the 2011 amendment because that amendment is expressly applicable
only to defendants who commit crimes on or after October 1, 2011.
C.
Defendant
May Not Rely on People v. Olague to Argue that He is Statutorily Entitled to
Additional Presentence Conduct Credits
Alternatively,
defendant argues that pursuant to dicta in this court's opinion in Olague,
supra, 205 Cal.App.4th 1126, he is statutorily entitled to the increased
credits provided in the 2011 amendment for any time he spent in custody on and
after October 1, 2011. As we did in
An opinion is no longer considered published if the Supreme Court grants
review (Cal. Rules of Court, rule 8.1105(e)(1)) and may not be relied on or
cited. (Cal. Rules of Court, rule
8.1115(a).)†(Kennedy, supra, 209 Cal.App.4th at p. 400.)
II.
Defendant is Entitled to 289 Days of
Presentence Credits in the Methamphetamine Case (Case Number SS100996A)
Initially, we note that ordinarily
defendant's miscalculation of presentence credits claim would be barred
pursuant to section 1237.1 for failing to first raise this claim in the trial
court.
addition to an independently cognizable claim, judicial economy is best served
by addressing it on appeal in the first instance. (People
v. Delgado (2012) 210 Cal.App.4th 761, 7654-767 [a constitutional challenge
to section 4019 is a claim that is cognizable on appeal in its own right]; People
v. Acosta (1996) 48 Cal.App.4th 411, 427-428 [a claim that would normally
be barred pursuant to section 1237.1 may be properly considered on appeal in
the first instance when other issues are properly before the court].)
When
defendant was sentenced to a consecutive eight-month term in the methamphetamine
case, the probation report recommended awarding him 29 days of custody credits
and 14 days of conduct credits, calculated by utilizing the pre-January 25,
2010 version of section 4019, for a total of 43 days of presentence credits. The trial court followed probation’s
recommendation. As we will explain
below, the probation report was erroneous.
Pursuant to “section 2900.5, a
defendant sentenced either to county jail or to state prison is entitled to
credit against the term of imprisonment for days spent in custody before
sentencing as well as those served after sentencing as a condition of
probation. [Citations].†(
1050, 1053.) In calculating a
defendant’s credits pursuant to section 2900.5, all actual days of custody plus
conduct credits earned pursuant to section 4019 are included. (§ 2900.5, subd. (a).) “If the total number of days in custody
exceeds the number of days of the term of imprisonment to be imposed, the
entire term of imprisonment shall be deemed to have been served.â€
(§ 2900.5, subd. (a).)
Defendant committed the crime in
the methamphetamine case on March 27, 2010.
He later failed to comply with his Proposition 36 drug diversion
program. Consequently, on November 23,
2010, he was placed on formal probation for three years with the condition that
he serve 289 days in county jail. At
that time, he was awarded 145 days of custody credits, which included: March
27, 2010 through April 5, 2010, June 30, 2010 through July 6, 2010, and July
19, 2010 through November 23, 2010. He
was also awarded 144 days of conduct credits pursuant to the January 25, 2010
version of section 4019, for total presentence credits of 289 days.
As the
California Supreme Court explained in People
v. Riolo (1983) 33 Cal.3d 223, when a defendant serves time in custody as a
condition of probation and probation is later revoked and terminated—as
occurred here in the methamphetamine case—the defendant retains his earned
credits. “Probationers in this situation
do not receive unearned ‘gifts’ of credits, but reductions in their [ultimate
prison] sentences to reflect time which they have already served in
custody. They have already been
punished, at least in part.†(
In the
burglary case, defendant was held in presentence custody from April 11, 2011,
the date he was arrested for the burglary, through November 1, 2011, his
sentencing date. This time period
amounts to 205 actual days of custody; therefore, defendant was awarded 307
days of presentence credits in the burglary case, consisting of 205 days of
custody credits and 102 days of conduct credits.
Although
the court had previously calculated defendant’s presentence credits in the
methamphetamine case on November 23, 2010, the probation officer’s report
recalculated these credits. This was
unnecessary because defendant did not spend any additional time in presentence
custody attributable to the methamphetamine case after November 23, 2010. The time defendant spent in custody from
April 11, 2011, to November 1, 2011, was all credited towards his sentence in
the burglary case.
In any
event, the probation officer’s recalculation report contains numerous errors,
including inaccurately reporting dates of presentence custody and incorrectly
performing mathematical calculations.
For instance, in recalculating defendant’s custody credits, the report
shows defendant’s arrest date as March 28, 2010. In fact, he was arrested on March 27,
2010. More importantly, the report fails
to attribute 128 days of custody from July 19, 2010, through November 23, 2010,
to any of defendant's cases. This
conflicts with the probation officer’s prior report to the court that was
prepared for defendant’s November 23, 2010 violation probation proceedings,
which attributed these same 128 days of custody to the methamphetamine
case.
The
Attorney General nonetheless argues that defendant would receive double credits
if awarded the 289 days of presentence credits he claims he is entitled to
receive. Awarding defendant credits that
were served as a condition of probation, however, does not amount to awarding
double credits. The award of double
credits, which is barred by section 2900.5, subdivision (b), occurs when a
defendant receives consecutive sentences and
is awarded credits for the same time period in two or more separate
cases. (§ 2900.5, subd. (b).) Here, no single period of custody was
attributed to more than one case.
Both
custody and conduct credits earned by a defendant in any particular case remain
attributable to that case throughout its duration, unless waived by the
defendant. (§ 2900.5, subd. (a);
183, 188; People v. Johnson, supra, 28 Cal.4th at pp. 1053-1058;
300-310.) Here, the record
reveals no such waiver by defendant, nor does the Attorney General suggest that
a waiver was ever made. Accordingly, the
trial court should have awarded defendant 289 days of presentence credits
against his eight-month sentence in the methamphetamine case, thereby deeming
this sentence served pursuant to section 2900.5, subdivision (a).
DISPOSITION
The
abstract of judgment is modified to reflect that (1) defendant shall receive
presentence credits of 145 days of custody credits plus 144 days of conduct
credits for total presentence credits of 289 days in the methamphetamine case,
Case Number SS100996A, and (2) based upon the receipt of such credits, his
eight-month sentence in that case is deemed served. As modified, the judgment is affirmed.
_______________________
Márquez,
J.
WE
CONCUR:
___________________________
Premo,
Acting P.J.
___________________________
Mihara,
J.
name="_ftn1" title=""> [1]
Unless otherwise specified, all further statutory references are to the Penal Code.
name="_ftn2" title=""> [2]
Defendant also had three other cases pending in the superior court, two
misdemeanor cases, and one felony case, none of which is before this court.
