P. v. Bateman
Filed 6/20/12 P. v. Bateman CA2/4
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
LEE M. BATEMAN,
Defendant
and Appellant.
B233984
(Los Angeles County
Super. Ct. No. BA355047)
APPEAL
from a judgment of the Superior Court of
County, Leslie A. Swain, Judge. Affirmed.
Jennifer
M. Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Chung L. Mar and Victoria B.
Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Lee M. Bateman appeals from
the judgment following his conviction by a jury of
additional 138 days of presentence custody
credit under an amendment to Penal Code section 4019
sentence but before the resolution of this appeal. He also requests that we review the
transcript of the Pitchess
material was improperly withheld.
Finding no error, we affirm the judgment.
On April 6, 2009, Los Angeles Police Department Officer George Mejia
observed defendant conducting an apparent sale of narcotics on the corner of
5th and Main Streets in Los Angeles. Both parties to the transaction were
detained, searched, and found to be carrying an off-white solid substance that
was later tested and identified as cocaine base.
Defendant
was arrested and charged with the sale, transportation, or offer to sell a
controlled substance in violation of Health and Safety Code section 11352,
subdivision (a) (count 1), and possession for sale of cocaine base in violation
of Health and Safety Code section 11351.5 (count 2). As to each count, it was further alleged that
defendant had four prior serious felony convictions or juvenile adjudications
within the meaning of the “Three Strikes†law (§§ 1170.12, subds. (a)-(d), 667,
subds. (b)-(i)) and had served five prior prison terms (§ 667.5).
Following
a jury trial, defendant was acquitted of the charged offenses but was convicted
of possession of a controlled substance
(Health & Saf. Code, § 11350, subd. (a)), a lesser included offense of
count 2.
title="">[3] At a bifurcated
hearing, defendant admitted his most recent strike prior, a March 14, 2001
conviction for attempted robbery in case number BA107375. (§§ 664, 211.)
On January 7, 2010, the trial court sentenced defendant to the midterm
sentence of two years under section 1170, subdivision (h)(1), which was doubled
to four years under the Three Strikes law.
(§§ 1170.12, subd. (c)(1), 667, subd. (e)(1).) The trial court awarded 415 days of
presentence credit based on 277 days of actual custody and 138 days of conduct
credit.
I. Presentence Conduct Credit
Under
the former version of section 4019 that was in effect on the date of sentencing
(Jan. 7, 2010), defendant earned 138 days of presentence conduct credit while
serving 277 days of actual custody.
section 4019, which became operative on October 1, 2011, he should have earned
two days of conduct credit for every two days in local custody, or an
additional 138 days of presentence conduct credit. We are not persuaded.
Section
4019 was amended three
name="_ftnref5" title="">[5] times between the date of sentencing and the
resolution of this appeal. Only the
third amendment, which enacted the current version of section 4019, is at issue
on appeal.
The
first amendment to section 4019, which took effect on January 25, 2010, allowed
qualifying defendants to earn two days of conduct credit for every two days in
local custody (one-for-one conduct credit).
Regardless of the January 25, 2010 amendment’s retroactivity, defendant
was not eligible for the doubled rate of accrual because of his prior serious
felony conviction. By its terms, the
January 25, 2010 amendment’s increased rate of accrual did not apply to those
who must register as a sex offender, whose present offense was a serious
felony, or who had a prior conviction for a serious or violent felony. (Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B.
18), § 50, eff. Jan. 25, 2010.)
The
second amendment to section 4019, which took effect on September 28, 2010,
eliminated the one-for-one conduct credit provisions of the prior amendment and
reinstated the conduct credit provisions that were in effect before the January
25, 2010 amendment. However, the
September 28, 2010 amendment applied only to local custody served by defendants
for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.)
The
current version of section 4019, which became operative on October 1, 2011,
reinstated the one-for-one conduct credit provisions, but eliminated the
exceptions found in the January 25, 2010 amendment. (Stats. 2010-2011, 1st Ex. Sess., ch. 12
(A.B. 17) §§ 16, 35.) In other
words, the increased rate of accrual presently found in section 4019 applies
even to those who must register as a sex offender, whose present offense was a
serious felony, or who had a prior conviction for a serious or violent felony.
However,
by its express language, the increased rate of accrual presently found in
section 4019 does not apply to those, like defendant, whose days were earned before
October 1, 2011. The current statute
plainly states that “[a]ny days earned by a prisoner prior to October 1, 2011,
shall be calculated at the rate required by the prior law.†(§ 4019, subd. (h).)
Defendant
contends that the distinction drawn in the current statute between days earned
before and after October 1, 2011, serves no rational purpose and violates the
equal protection rights of those whose days were earned before the effective
date of the amendment.
Both the federal and state Constitutions
guarantee the equal protection of laws
to all persons. (U.S. Const., 14th
Amend., § 1; Cal. Const., art. I, § 7.)
“‘The concept of the equal protection
of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like
treatment.’†(In re Gary W.
(1971) 5 Cal.3d 296, 303, superseded by statute on other grounds as stated in
990.) Where, as here, the statutory distinction at issue
involves neither a fundamental interest nor gender, the legislation does not
violate equal protection if it bears a rational relationship to a legitimate
state purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) Under the rational relationship test, if
there is some reasonably conceivable state of facts that could provide a
rational basis for the classification, the inquiry is over. (Id. at
pp. 1200-1201.)
In analyzing defendant’s equal
protection challenge, we are guided by the underlying principles concerning
presentence credit. “Credit is a privilege, not
a right. Credit must be earned.†(§ 2933, subd. (c).) Conduct credits are not a mitigation of
punishment, but a means of encouraging and rewarding behavior. (People
v. Brown (2004) 33 Cal.4th 382, 405.)
“The primary purposes of conduct
credits for prison inmates are to encourage conformity to prison regulations,
to provide incentives to refrain from criminal, particularly assaultive,
conduct, and to encourage participation in ‘rehabilitative’ activities. [Citations.]â€
(People v. Austin (1981)
30 Cal.3d 155, 163.)
In addition, we note that the recent
amendments to section 4019 were enacted at least in part in response to the
current fiscal crisis. For example, Senate
Bill No. 18, which amended section 4019 to provide for the accrual by qualified
defendants of presentence credits at twice the previous rate, states that the
legislation was drafted in response to “the fiscal emergency declared by the
Governor by proclamation on December 19, 2008.â€
(Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 62.)
Moreover, we are aware that we are
not treading new ground. There are many
published and unpublished cases concerning the recent amendments to section
4019 that are currently pending before the Supreme Court, including a case in
which this division held that the prospective application of the January 25,
2010 amendment to section 4019 did not violate the appellant’s right to equal
protection. (People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept.
22, 2010, S184957.)
Turning to an earlier decision,
is particularly helpful to our analysis of defendant’s equal protection
claim. The panel in Stinnette was faced with an equal protection challenge to a
provision analogous to section 4019, which allowed state prisoners to earn
credit on a prospective basis. The court stated that “it is not a denial
of equal protection to refuse to apply the credit provision in question retroactively.†(Id. at
p. 805.) It found that the prospective
application of the statute promoted the state’s “desirable and legitimate
purpose of motivating good conduct among prisoners so as to maintain discipline
and minimize threats to prison security.
Reason dictates that it is impossible to influence behavior after it has
occurred.†(Id. at p. 806.)
We similarly find that the current
statute’s prospective application promotes legitimate fiscal and public safety
interests. As in Stinnette, there is a valid
public interest in encouraging the future compliance and good behavior of
locally detained defendants. It is
impossible to exert the same influence over those defendants who had already
left local custody before the present statute took effect. In light of the rational basis for the
statute’s prospective application, we conclude there is no equal protection
violation in the prospective application of the October 1, 2011 amendment to
section 4019.
Defendant
cites In re Kapperman (1974) 11
Cal.3d 542, in which the Supreme Court invalidated on equal protection grounds
a provision that made presentence custody credit applicable only to persons
delivered to the Department of Corrections after the effective date of the
statute. We find that
addressed actual custody credits, not conduct credits. Custody credits are awarded automatically on
the basis of time served, while conduct credits are earned through compliance
and good behavior.
Defendant
also cites People v. Sage (1980) 26
Cal.3d 498, in which the court reviewed a prior version of section 4019 that
denied presentence conduct credit to a “detainee/felon†who was eventually
sentenced to prison, but granted presentence credit to a detainee who was
convicted of a misdemeanor and to a felon who, having made bail, was released
on his own recognizance and therefore served no presentence time. (Id. at
p. 507.) The court found no rational
basis for those distinctions: “Each
of the grounds advanced by the People for denying presentence conduct credit to
detainee/felons might also be given for denying such
to detainee/misdemeanants as well. Yet
detainee/misdemeanants are clearly entitled to such credit under section
4019. The inescapable conclusion is that
the challenged distinction—between detainee/felons and felons who serve no
presentence time—was not based on the grounds proposed.†(Id. at
pp. 507-508.)
We find that Sage is distinguishable because it involved a limitation on
presentence conduct credit based on the defendant’s ultimate status as a
misdemeanant or felon. In this case, the
prospective application of the increased accrual rate bears a rational
relationship to the state’s interest in influencing the future behavior of
local detainees while simultaneously easing the fiscal crisis.
Hearing
Defendant filed a
certain personnel information relating to six police officers, which was later
limited to Officers Mejia (who conducted the surveillance) and Valencia (the
arresting officer). The trial court
found good cause to conduct an in camera hearing to examine the officers’
personnel records for discoverable complaints of false reporting and
fabrication of evidence. After
conducting an in camera hearing, the trial court ordered the production of 20
documents that it found dealt with either dishonesty or fabrication of
evidence.
We have conducted an
which indicates that the court complied with the procedural requirements of a
pertaining to possible incidents of false reporting and fabrication of evidence
were produced and find no abuse of discretion.
(Id. at p. 1228 [abuse of
discretion standard applies to a trial court’s decision on the discoverability
of material in police personnel files].)
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J. WILLHITE,
J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2]
Cal.3d 531 (Pitchess).
