P. v. Lomas

















Filed 3/20/13 P. v. Lomas CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO JAVIER LOMAS, Defendant and Appellant.

H038068 (Santa Clara County Super. Ct. No. BB945131)

>I. >INTRODUCTION

In March
2011, defendant Francisco Javier Lomas pleaded no contest to href="http://www.fearnotlaw.com/">inflicting corporal injury on a cohabitant
(Pen. Code, § 273.5, subd. (a)),href="#_ftn1"
name="_ftnref1" title="">[1]
and possession for sale of methamphetamine (former Health & Saf. Code,
§ 11378). He also admitted that he
had a prior conviction involving a controlled substance (Health & Saf.
Code, § 11370.2), and that he had two prior strikes (former §§ 667,
subds. (b)-(i), 1170.12). In
August 2011, after the trial court struck one of defendant’s two strikes,
the court sentenced him to 12 years four months in prison. The court granted defendant 804 days of custody credits, consisting of
536 actual days plus 268 days conduct credit under section 4019.

On appeal,
defendant contends that he is entitled to additional conduct credit under the
October 2011 version of section 4019.
For reasons that we will explain, we conclude that defendant is not
entitled to additional conduct credit.

>II. >FACTUAL AND PROCEDURAL BACKGROUND

In December
2009, the victim reported to police that defendant had kicked her, stomped on
her, punched her on the mouth, and slapped her before leaving the residence
that night.href="#_ftn2" name="_ftnref2"
title="">[2] The victim, who was the mother of defendant’s
child and who had been living with defendant for two years, had a cut on her
lip. The victim consented to a search of
the residence, where the police found two plastic bags containing
146 grams of a substance later determined to be crystal
methamphetamine. The police also found
more than $54,000 in cash, including $4,875 on defendant when he was located
and arrested a few hours later. Further,
the police found a cell phone containing a picture of a motorcycle and a text
message reading, “ ‘give me 2 ozs and it’s yours.’ ”

In March
2010, defendant was charged by first amended complaint with assault with a
deadly weapon or by means of force likely to produce great bodily injury
(former § 245, subd. (a)(1); count 1), inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a); count 2), and possession for sale of
methamphetamine (former Health & Saf. Code, § 11378; count 3). The complaint further alleged that he
personally inflicted great bodily injury on the victim (§ 12022.7), that
he had a prior conviction for violating Health and Safety Code
section 11378 (Health & Saf. Code, § 11370.2), that he had two
prior serious felony convictions and two prior strikes (former
§§ 667, subds. (a), (b)-(i), 1170.12), and that he had served two
prior prison terms (§ 667.5, subd. (b)).

In March
2011, defendant pleaded no contest to count 2, inflicting corporal injury on a
cohabitant (§ 273.5, subd. (a)), and to count 3, possession for sale of
methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a prior
conviction for violating Health and Safety Code section 11378 (Health &
Saf. Code, § 11370.2), and that he had two prior strikes (former §§ 667,
subds. (b)-(i), 1170.12). Defendant
entered the pleas with the understanding that the remaining count and
enhancements would be dismissed or stricken, that he would be eligible for
probation if his anticipated Romero
motionhref="#_ftn3" name="_ftnref3" title="">[3]
was granted, and that a separate case against him would be dismissed.

Defendant
subsequently filed a written Romero
motion and the prosecution filed written opposition.

On August
22, 2011, the trial court granted defendant’s Romero motion in part and struck one of defendant’s two
strikes. The court then sentenced
defendant to 12 years four months in prison.
The court granted defendant 804
days of custody credits, consisting of 536 actual days plus 268 days
conduct credit. The remaining count and
allegations were dismissed or stricken.

Defendant
filed a notice of appeal on May 25,
2012, after this court granted his application for relief from default for
failure to timely file a notice of appeal.

>III. >DISCUSSION

Defendant
contends that his conduct credit should be calculated pursuant to
the current version of section 4019, which was operative after he was
sentenced in August 2011, and that, under the current version, he is entitled
536 days conduct credit instead of the 268 days awarded by the court. Although he acknowledges that the current
version of section 4019 “provides that it is applicable solely to cases where
the offenses were committed on or after
October 1, 2011” (italics added), defendant contends in his opening brief that
the equal protection clauses of the state and federal Constitutions require
that the current version be applied to him.
In a footnote in his opening brief, defendant acknowledges that >People v. Brown (2012) 54 Cal.4th 314 (>Brown) is adverse to his position. He states that “the Brown decision is not yet final” and that he “raises this issue to
preserve it in the event of modification or rehearing in Brown.”

The
Attorney General contends that defendant’s claim for additional presentence
custody credit is barred by section 1237.1 because he failed to raise the
claim below. The Attorney General
further contends that, based on Brown,
supra, 54 Cal.4th 314, as well as >People v. Ellis (2012) 207 Cal.App.4th
1546 (Ellis), and >People v. Kennedy (2012) 209 Cal.App.4th
385 (Kennedy), defendant’s equal
protection claim fails and he is not entitled to additional conduct credit.

In reply,
defendant acknowledges that Brown is
“dispositive” of his equal protection claim under the California Constitution
but he “still contends that the prospective only application” of the current
version of section 4019 violates the federal equal protection clause.

We will
assume, without deciding, that section
1237.1, which generally precludes a defendant from raising a purported error in
the calculation of presentence custody credits for the first time on appeal, does
not apply where, as here, the defendant’s claim of error is not based on a
purported clerical or mathematical error by the trial court. (See People
v. Delgado (2012) 210 Cal.App.4th 761.)
We nevertheless conclude that defendant is not entitled to additional
conduct credit.

The current
version of section 4019 generally provides that a defendant may earn conduct
credit at a rate of two days for every two-day period of actual custody. (§ 4019, subds. (b), (c) &
(f).) However, as defendant
acknowledges, the current version of section 4019 states that the conduct
credit rate “shall apply prospectively and shall apply to prisoners who are
confined to a county jail [or other local facility] for a crime committed on or
after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.”
(§ 4019, subd. (h).) In
this case, defendant committed his crimes and was sentenced >prior to October 1, 2011. Thus the October 2011 version of section
4019, which provides for prospective application, does not apply to
defendant. (§ 4019, subd. (h);
Brown, supra, 54 Cal.4th at p. 322, fn. 11; Ellis, supra, 207
Cal.App.4th at p. 1550; Kennedy,
supra, 209 Cal.App.4th at pp. 395-396.)

We are not
persuaded by defendant’s argument that the federal equal protection clause
requires that the October 2011 version of section 4019 be applied to him.

“The
concept of equal protection recognizes
that persons who are similarly situated with respect to a law’s legitimate
purposes must be treated equally.
[Citation.] Accordingly, ‘ “[t]he
first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more >similarly situated groups in an unequal
manner.” ’ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’
[Citation.]” (>Brown, supra, 54 Cal.4th at p. 328.)

We find >Brown instructive on the equal
protection issue raised by defendant in this case. In Brown,
the California Supreme Court held that a former version of section 4019,
effective January 25, 2010, applied prospectively, and that the equal
protection clauses of the state and federal Constitutions did not require
retroactive application. (>Brown, supra, 54 Cal.4th at pp. 318, 328.)
In addressing the equal protection issue, the court explained 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 [the January 2010 version of] section 4019 took
effect are not similarly situated necessarily follows.” (Brown,
supra, at pp. 328-329.) On this point, the California Supreme Court
found In re Strick (1983) 148
Cal.App.3d 906 (Strick), “persuasive”
and quoted from that decision as follows:
“ ‘The obvious purpose of the new section,’ . . . ‘is 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.’ [Citation.]
‘[T]his incentive purpose has no meaning if an inmate is unaware of
it. The very concept demands prospective
application.’ [Citation.] ‘Thus, inmates were only similarly situated
with respect to the purpose of [the new law] on [its effective date], when they
were all aware that it was in effect and could choose to modify their behavior
accordingly.’ [Citation.]” (Brown,
supra, at p. 329.)

Subsequently,
in People v. Lara (2012) 54 Cal.4th
896 (Lara), which was decided after
defendant filed his opening brief in
this appeal, the California Supreme Court rejected the contention that the
prospective application of the October 2011 version of section 4019 denied
the defendant equal protection under the state and federal Constitutions. (Lara,
supra, at p. 906, fn. 9.) Citing Brown,
the California Supreme Court in Lara
explained that prisoners who serve their pretrial detention before the
effective date of a law increasing conduct credits, and those who serve their
detention thereafter, “are not similarly situated with respect to the law’s
purpose.” (Lara, supra, at p. 906,
fn. 9.)

Thereafter,
the Court of Appeal in Ellis cited >Lara, and similarly concluded that >Brown’s holding with respect to the
January 2010 version of section 4019 also applies to the October 2011 version
and that the prospective-only application of the October 2011 version does not
violate equal protection. (>Ellis, supra, 207 Cal.App.4th at pp. 1548, 1552 [“We can find no reason >Brown’s conclusions and holding with
respect to the January 25, 2010, amendment should not apply with equal force to
the October 1, 2011, amendment”]; see also
Kennedy, supra, 209 Cal.App.4th at p. 397 [“the reasoning of >Brown applies with equal force to the
prospective-only application of the current version of section 4019” ]; but see
People v. Verba (2012) 210
Cal.App.4th 991, 995-996.)

In this
case, we similarly determine that defendant is not entitled to additional
conduct credit under the October 2011 version of section 4019 by virtue of
state or federal equal protection principles.
(See Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450,
455.)

>IV. > DISPOSITION

The
judgment is affirmed.





___________________________________________

Bamattre-Manoukian, J.











WE CONCUR:









__________________________

ELIA, ACTING P.J.















__________________________

Márquez,
J.