P. v. Brown
Filed 2/25/13 P. v. Brown 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opinion has not been certified for publication or ordered published for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.
SHERRY FAYE BROWN,
Defendant and
Appellant.
H037615
(Monterey County
Super. Ct. Nos. SS110899,
& SS111281)
Defendant Sherry Faye Brown pleaded
no contest in two proceedings to four felonies (three counts of
count) with the understanding that she would receive a sentence of no more than
five years, four months in prison. On November 9, 2011, in accordance with
the negotiated disposition, the court sentenced defendant to an aggregate
prison term in both cases of five years, four months. The court ordered that defendant receive a
total of 242 days of presentence credits in the two cases, consisting of 162
days of custody credits and 80 days
of conduct credits.
Defendant claims on appeal that she
is entitled to 82 days of additional conduct credits under the latest amendment
to Penal Code section 4019, which expressly provides that it applies to
defendants whose crimes were committed on or after October 1, 2011.
was convicted was committed prior to October
1, 2011. Her primary
contention is that, notwithstanding the clear inapplicability of the latest
amendment to section 4019, it must be applied retroactively because its
prospective application would violate her constitutional right to equal
protection of the law. Last year, we
rejected an identical equal protection challenge in People v. Kennedy (2012) 209 Cal.App.4th 385 (
FACTS
I. Case
Number CC1100899A (Walmart Burglary)
On the afternoon of April 20, 2011, defendant entered the
electronics department of Walmart and indicated that she wanted to purchase a
specific laptop computer that she brought to the service desk. The sales associate placed the computer
behind the counter and advised defendant that the transaction would have to be
delayed until a coworker brought cash to the register. The salesperson left the desk to help other
customers; when she returned, both defendant and the computer were no longer
there. The salesperson and her manager
viewed the store’s security footage and observed defendant on film reach behind
the counter for the computer and exit the store through the garden department
without paying for the item.
Defendant returned to the Walmart
on May 7, 2011. Sales associates recognized defendant from
the incident 17 days earlier. One
salesperson followed defendant around the store for approximately an hour and
observed her reach behind the counter, take a laptop, and proceed toward the
garden department. Marina
police officers apprehended defendant as she attempted to leave the store. A search of defendant incident to her arrest
yielded a prescription for Loratadine to a third person, three books of checks
addressed to “Elect Jordan Committee,†and one book of checks in the name of
Jessica Diaz.
II. Case
Number SS111281A (Comfort Inn Burglary)
On July 5, 2011, Marina
police officers were dispatched to the Comfort Inn after defendant and Mark
Baldwin attempted to rent a room with a suspected stolen credit card. The Wells Fargo bank debit/credit card was in
the name of Antero Martinez. The hotel
employee, Kyung Chee, advised the police that four days earlier, someone had
twice attempted to rent a room using Martinez’s
name, but cancelled both transactions after 20 minutes. Kyung stated that on July 5, someone had made
an on-line reservation with the hotel, using Martinez’s
bank debit/credit card. Upon checking in
that afternoon, defendant reached into her purse and presented Martinez’s
bank debit/credit card to Kyung and identified Baldwin
as her husband. During a search of
defendant and Baldwin by the police, they discovered a glass pipe with cocaine
residue in defendant’s purse.
PROCEDURAL BACKGROUND
In case number SS110899A arising
out of the incidents at Walmart (the Walmart case), defendant was originally
charged with three felonies and one misdemeanor by complaint filed May 9, 2011.
commercial burglary, a felony (§ 459; counts 1 and 2); forgery, a felony
(§ 475, subd. (b); count 3); and possession of a drug without a prescription,
a misdemeanor (Bus. & Prof. Code, § 4060; count 4). As to counts 1 through 3, it was alleged that
defendant had suffered a prior strike offense (robbery) within the meaning of
1170.12, subdivision (c)(1).
On July 13,
2011–between the filing dates of the original complaint and amended complaint in the Walmart case–defendant
was charged by first amended complaint
in case number SS111281A (the Comfort Inn case) with commercial burglary, a
felony (§ 459; count 1); misappropriation of lost property, a misdemeanor
(§ 485; count 2); and possession of drug paraphernalia, a misdemeanor
(Health & Saf. Code, § 11364, subd. (a); count 3). As to count 1, it was alleged that defendant
had suffered a prior strike offense (robbery) within the meaning of 1170.12,
subdivision (c)(1); and had committed the charged commercial burglary while she
was released on bail (§ 12022.1) for crimes alleged in the Walmart case.
Pursuant to a negotiated
disposition, on October 5, 2011, defendant pleaded no contest to the three
felonies alleged in the amended complaint in the Walmart case, and admitted the
prior strike allegation. On the same
date, defendant pleaded no contest to the commercial burglary offense charged
in the first amended complaint in the Comfort Inn case, admitted the prior
strike allegation, and admitted that she had committed the charged offense
while she was on bail for crimes charged in the Walmart case. She entered the no contest pleas based upon
the understanding that she would receive a maximum prison sentence in both
cases of five years, four months, and that the remaining counts would be
dismissed.
Before accepting the plea,
defendant was apprised fully of the rights she was giving up as a result of her
no contest pleas and concerning the consequences of those pleas. Counsel stipulated that there was a factual
basis for the plea in each case, and the court found the existence of such a
factual basis.
On November 9, 2011, and in
accordance with the negotiated disposition,
the court sentenced defendant to an aggregate prison term in both cases of five
years, four months. This sentence was
calculated through the imposition of consecutive sentences of 16 months each
for counts 1, 2, and 3 in the Walmart case (the middle term of eight months for
each offense, doubled pursuant to section 1170.12, subd. (c)(1)), and 16 months
(lower term) for count 1 in the Comfort Inn case.
strike the strike allegation in the Comfort Inn case pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, and dismissed in the
interests of justice the allegation under section 12022.1. Defendant received presentence credits
totaling 62 days in the Walmart case, based upon 42 days of custody credit plus
20 days of conduct credit pursuant to section 4019. Defendant received presentence credits
totaling 180 days in the Comfort Inn case, based upon 120 days of custody
credit plus 60 days of conduct credit pursuant to section 4019. Defendant filed a timely
After entry of judgment and in
March 2012, defendant filed a motion for an award of additional conduct credits
pursuant to section 4019, seeking 60 additional days in the Walmart case and 22
additional days in the Comfort Inn case.
The motion was based upon the contention that the amendment to section
4019, effective October 1, 2011, should apply retroactively to defendant’s
circumstances, based upon the equal protection argument asserted in this
appeal. The court denied the motion on
March 14, 2012. On July 25, 2012,
defendant filed a notice of appeal from that order.
affecting defendant’s substantial rights is proper. (§ 1237, subd. (b); People v. Hyde (1975) 49 Cal.App.3d 97, 103.)
DISCUSSION
I. Claim
of Additional Conduct Credits Under Section 4019
A. Background
Concerning Section 4019
Section 4019 permits a criminal defendant to earn
additional credit prior to being sentenced by performing assigned labor
(§ 4019, subd. (b)(1)) or by his or her good behavior during detention
(§ 4019, subd. (c)(1)). Such
credits are collectively referred to as “conduct credits.†(People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) “The very purpose of conduct credits is to
foster constructive behavior in prison by reducing punishment.†(People
v. Lara (2012) 54 Cal.4th 896, 906 (Lara); see also Dieck, at
p. 939 [section 4019’s scheme is to encourage cooperation and good
behavior for persons in local custody before they have been convicted,
sentenced, and committed].) Section 4019
has undergone a series of revisions since 2009.
(See generally People v. Garcia (2012)
209 Cal.App.4th 530, 535-540.)
Senate Bill No. 18 (2009-2010 3d Ex. Sess.),
enacted in October 2009, amended section 4019, effective January 25, 2010, to
enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50,
p. 4427; the January 2010 amendment.)
Under the pre-January 2010 formula for calculating credits under section
4019, a defendant could accrue conduct credit of two days for every four days
of actual presentence custody. (Stats.
1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f).) Under the January 2010 amendment, a
qualifying defendant—persons other than those required to register as sex
offenders, or those being committed to prison for, or who had suffered prior
convictions of, serious felonies as defined in section 1192.7 or violent
felonies as defined in section 667.5—could accrue conduct credit of two days
for every two days of presentence custody, twice the previous rate. (Stats.
2009-2010, 3d Ex. Sess., ch. 28, §§ 50, 62 [Pen.Code, former § 4019,
subds. (b), (c), & (f) ].)
The statute was again amended, effective September
28, 2010, to restore the two-for-four conduct credit calculation less favorable
to defendants that had been in effect prior to January 25, 2010 (Stats. 2010,
ch. 426, § 2). And then, as part of the
Realignment Act, the Legislature amended section 4019 a third time in Assembly
Bill 109 (2011-2012 Reg. Sess.; Assembly Bill 109). Assembly Bill No. 109, which amended section
4019 effective July 1, 2011, authorized conduct credit for all local prisoners
at the rate of two days for every two days spent in local presentence
custody. (§ 4019, subds. (b) & (c),
as amended by Stats. 2011, ch. 15, § 482.)
Like the previous amendment to section 4019, the amendment in Assembly
Bill 109 was to have prospective application only. (Ibid.) Before
July 1, 2011—the operative date of Assembly Bill No. 109—Governor Brown signed
Assembly Bill No. 117 (2011-2012 Reg. Sess.), which retained the enhanced
conduct credit formula but changed the effective date to October 1, 2011. (Former § 4019, subd. (h), as amended by
Stats. 2011-2012, ch. 39, § 53.)
On September 20, 2011, Governor Brown signed
Assembly Bill No. 1X 17 (2011-2012 1st Ex. Sess.), the current version of
section 4019 (hereafter, the October 2011 amendment), which retains the
enhanced conduct credit provision—four days is deemed to have been served for
every two days spent in actual custody.
(Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35; § 4019, subd. (f).) Subdivision (h) of section 4019
provides: “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€
B. Parties’ Contentions
Defendant contends that she is entitled to
additional conduct credits under section 4019.
She acknowledges that the October 2011 amendment containing the
favorable two-for-two conduct credit formula applies to defendants whose crimes
were committed after October 1, 2011, a category within which she obviously
does not fall. She contends, however,
that the failure to give retroactive application to the October 2011 amendment
constitutes a violation of the equal protection clauses of the federal and
state Constitutions (U.S. Const., 6th Amend.; Cal. Const., Art. I,
§ 7). She claims that she, as a
defendant who committed crimes before October 1, 2011, but who was incarcerated
after that date, “is similarly, if not identically, situated to an inmate who
is in custody for committing a crime after October 1, 2011†and that the
alleged disparate treatment between these two groups cannot be justified under
a “compelling state interest.â€
Therefore, she argues, in order to avoid a violation of equal
protection, the October 2011 amendment should be given retroactive application
in her case. Defendant therefore asserts
that she should be awarded a total of 240 credits (i.e., an additional 60 days
of conduct credits) in the Comfort Inn case and 84 credits (i.e., an additional
22 days of conduct credits) in the Walmart case.
The Attorney General responds that the October 2011
amendment to section 4019 was properly applied in a prospective fashion as
delineated by the Legislature, and that such prospective application in
defendant’s case does not violate her equal protection rights.
C. Equal
Protection Challenge
The first prerequisite for a successful equal
protection argument is “ ‘a showing that the state has adopted a classification
that affects two or more similarly
situated groups in an unequal manner.’
[Citations.]†(
1185, 1199 (Hofsheier), quoting
530.) This inquiry by the court “is not
whether persons are similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ [Citation.]â€
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) The second
requirement is that the challenger establish that there is no rational
relationship to a legitimate state purpose for the state’s having made a
distinction between the two similarly situated groups. (Hofsheier,
at pp. 1200-1201.)
title="">[6]
Last year, our Supreme Court decided in People v. Brown (2012) 54 Cal.4th 314 (Brown) that prospective application of the January 2010 amendment
of section 4019 did not violate equal protection principles, concluding that
amendment did not create two similarly situated groups. The Supreme 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. That prisoners who served time
before and after former section 4019 took effect are not similarly situated
necessarily follows.†(
In Kennedy,
addressed the identical equal protection challenge to the October 2011
amendment to section 4019 raised by defendant here. While we acknowledged that
4019 (Kennedy, at p. 396), we
rejected the defendant’s contention that he—who committed his crime on March
11, 2011 (id. at p. 388)—was
similarly situated with persons in jail who had committed crimes on or after
the October 1, 2011 operative date of the challenged amendment to section
4019: “[T]he reasoning of
prospective-only application of the current version of section 4019.†(Id.
at p. 397; but see People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 53-54 (Rajanayagam) [distinguishing Brown
by finding two groups were similarly situated with respect to equal protection
challenge to October 2011 amendment];
People v. Verba (2012) 210 Cal.App.4th 991, 995-996 (
Furthermore, the California Supreme Court, one month after deciding
defendant’s argument that the October 2011 amendment should apply
retroactively. Although addressed only
in a footnote, the high court rejected the defendant’s contention that the
prospective application of the October 2011 amendment violated equal
protection: “Today local prisoners may
earn day-for-day credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f),
as amended by Stats. 2011, ch. 15, § 482.)
This favorable change in the law does not benefit defendant because it
expressly applies only to prisoners who are confined to a local custodial
facility ‘for a crime committed on or
after October 1, 2011.’ (§ 4019, subd. (h), italics added.) [¶] Defendant argues the Legislature denied
equal protection [citations] by making this change in the law expressly
prospective. We recently rejected a
similar argument in People v. Brown
(2012) 54 Cal.4th 314, 328-330.) . . . Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose. (Brown, at pp. 328-329.)†(
challenge because she cannot establish that she was similarly situated with
persons who commit crimes on or after October 1, 2011.
Even were we to conclude that defendant is similarly situated with
persons in jail who had committed crimes on or after the October 1, 2011
operative date of the challenged amendment to section 4019, her equal
protection challenge fails. As noted, no
equal protection violation will be found “if the challenged classification
bears a rational relationship to a legitimate state purpose. [Citation.]â€
(Hofsheier, 37 Cal.4th at
p. 1200.)
title="">[9] The court’s inquiry is completed “[w]here
there are ‘plausible reasons’ for [the classification].†(Id.
at p. 1201.) As we held in
page 397, there is a plausible reason for the statutory classification
challenged here.
As we explained in Kennedy: “[O]ur Supreme Court has acknowledged [that]
‘statutes lessening the punishment for a particular offense’ may be made prospective
only without offending equal protection principles. (Kapperman,
supra, 11 Cal.3d. at p. 546.) . . .
[¶] In People v. Floyd (2003) 31
Cal.4th 179 (Floyd), the defendant
sought to invalidate a provision of Proposition 36 barring retroactive application
of its provisions for diversion of nonviolent drug offenders. (Id.
at pp. 183-184.) The court reiterated
that the Legislature may preserve the penalties for existing offenses while
ameliorating punishment for future offenders in order to ‘ “assure that penal
laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.†’ (
rationale because it ‘lessen[ed] punishment for particular offenses.’ (Ibid.) As the Floyd
court noted, ‘ “[t]he 14th Amendment does not forbid statutes and statutory
changes to have a beginning, and thus to discriminate between the rights of an
earlier and later time.†[Citation.]’ (Id.
at p. 191.) [¶] ‘The very purpose
of conduct credits is to foster constructive behavior in prison by reducing
punishment.’ (People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme Court accepted in
punishment.’ (Id. at p. 325, fn. 15.) [¶]
We gather that the rule acknowledged in Kapperman
and Floyd is that a statute
ameliorating punishment for particular offenses may be made prospective only
without offending equal protection, because the Legislature will be supposed to
have acted in order to optimize the deterrent effect of criminal penalties by
deflecting any assumption by offenders that future acts of lenity will
necessarily benefit them. [¶] . . . [¶]
Although the statute at issue here does not ameliorate punishment for a
particular offense, it does, in effect, ameliorate punishment for all offenses
committed after a particular date. By
parity of reasoning to the rule acknowledged by both the Kapperman and Floyd
courts, 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 criminal law as to
those crimes committed before that date. . . .
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.†(Kennedy, supra, 209 Cal.App.4th at pp. 398-399, fn. omitted.)
Therefore, even had defendant satisfied the “similarly situatedâ€
requirement for an equal protection claim, her challenge to the October 2011
amendment nonetheless fails because the classification between persons—those
committing an offense prior to October 1, 2011, and those committing an offense
on or after that date—bears a rational relationship to a legitimate state
purpose. (Kennedy, supra, 209 Cal.App.4th at pp. 397-399; accord,
Cal.App.4th at pp. 996-997.)
name="_ftnref10" title="">[10]
D.
Challenge
Defendant, apart from her equal protection challenge, argues that she
should receive one-for-one conduct credits for all days she spent in custody
after October 1, 2011, up through her sentencing on November 9, 2011. She bases this claim on an alleged “potential
ambiguity†in the latest version of section 4019.
of subdivision (h) appears to indicate that the new, two-for-one conduct
credits apply only to jail inmates whose crimes were committed on or after
October 1, 2011. However, the second
sentence contradicts that interpretation because it is impossible to earn days
in presentence confinement on an offense which had not yet been committed. Therefore, the second sentence is meaningless
unless the more favorable credit rate applies to those in custody for crimes
committed before October 1, 2011.â€
We rejected this argument in Kennedy,
supra, 209 Cal.App.4th at pages
399 to 400. “We reiterate that according
to the explicit language of the statute, the [October] 2011 amendment to Penal
Code section 4019 applies only to crimes that were ‘committed on or after
October 1, 2011.’ (Pen.Code, § 4019,
subd. (h).)†(Id. at p. 399.) We
conclude that defendant is not entitled to the enhanced presentence conduct
credits provided in the October 2011 amendment for the time that she was in
custody after October 1, 2011 because of any perceived ambiguity in subdivision
(h) of section 4019. (Accord,
Cal.App.4th 1546, 1552-1553.)
DISPOSITION
The judgment is affirmed.
Márquez,
J.
WE CONCUR:
Rushing,
P.J.
Grover,
J.
name="_ftn1" title="">[1]
Further statutory references are to the Penal Code unless otherwise
stated.
name="_ftn2" title="">[2]
We present an abbreviated version of the facts underlying the convictions,
derived from the reports of the probation officer, because the facts are not
relevant to the claims on appeal.
