P. v. Zahir



















Filed 4/3/13 P. v. Zahir CA5

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. NASEER HAMIT ZAHIR, Defendant and Appellant.

F064242 (Super. Ct. No. F11905068) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Gary D. Hoff,
Judge.

Julia J.
Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On September 2, 2011, a complaint was
filed in Fresno County Superior Court, charging defendant Naseer Hamit Zahir
with petty theft with prior
convictions. (Pen. Code,href="#_ftn2" name="_ftnref2" title="">^[1] § 666; count 1.) In addition, defendant was alleged to have
suffered a prior conviction under the “Three Strikes” law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), for which he served a prison term
(§ 667.5, subd. (b)).

On November
1, 2011, defendant entered into a plea agreement pursuant to which he pleaded
no contest to count 1 and admitted the prior strike and prison term
allegations, on the condition that he receive the lower term of 16 months in
prison. On December 13, 2011, the court dismissed the prior strike
conviction (§ 1385; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497) and the prior prison term
enhancement, and sentenced defendant to 16 months in prison. The court ordered defendant to pay various
fees, fines, and assessments; and awarded 71 days of actual credit, plus 34
days of conduct credit, for a total of 105 days.

Defendant
now contends he is entitled to additional custody
credits. We affirm.

FACTShref="#_ftn3"
name="_ftnref3" title="">^[2]

On the
evening of June 17, 2011,
officers were dispatched to the Greyhound bus station regarding a subject
stealing a gutter cover from the sidewalk.
Upon arrival, the officers found defendant pushing a shopping cart that
contained an eight-foot by one-foot metal gutter cover valued at $300. While at the scene, defendant admitted taking
the gutter cover, but said he found it.
The gutter cover and shopping cart were recovered.

DISCUSSION

Defendant
admitted having suffered a prior strike conviction, to wit, residential (first
degree) burglary. (§§ 459, 460,
subd. (a).) First degree burglary
constitutes a serious felony under section 1192.7, subdivision (c)(18).

At the time
defendant committed his current offense, section 2933 allowed a prisoner
sentenced to state prison under section 1170 to have one day deducted from his
or her sentence for every day he or she served in a county jail from the date
of arrest until state prison credits became applicable, except that section
4019, and not section 2933, applied to a prisoner with a prior conviction for a
violent or serious felony. (§ 2933,
former subd. (e)(1), (3), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Under section 4019 as it then read, prisoners
were entitled to presentence credits in an amount such that six days were
deemed to have been served for every four days spent in actual custody. (§ 4019, former subds. (b), (c) &
(f), as amended by Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010, & subd. (g).) Defendant was awarded credits calculated by
means of the former section 4019 formula for his entire period of presentence
incarceration.href="#_ftn4" name="_ftnref4"
title="">^[3]

By the time
defendant was arrested on October 4,
2011, section 2933 had been amended to delete references to section
4019 and calculation of presentence credits.
(Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16, eff. Sept. 21, 2011, operative Oct. 1, 2011.) Section 4019 was also amended. Subdivision (f) of the statute now
provides: “It is the intent of the
Legislature that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in actual
custody.” (§ 4019, subd. (f), as
amended by Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, operative Oct. 1, 2011, & Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct. 1, 2011.) Thus, section 4019 now provides (and did the
entire period defendant was in presentence custody) for day-for-day credits for
defendants — even those with prior strike convictions — who serve presentence
time in county jail. The only exceptions
are defendants with current violent felony or murder convictions
(§§ 2933.1, 2933.2; see People v.
Nunez (2008) 167 Cal.App.4th 761, 765), which defendant does not have (see
§ 667.5, subd. (c)).

Defendant
contends that, since all of his
presentence custody time was served after the operative date of the October 1, 2011, amendment to section
4019, he is entitled to presentence custody credits calculated pursuant to the
current version of that statute, i.e., day-for-day credits. He recognizes the statutory changes from
which he seeks to benefit expressly “apply prospectively and … to prisoners who
are confined to a county jail … for a crime committed on or after October 1,
2011,” while “[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).) Nevertheless, he argues that the statutory
language is ambiguous and, pursuant to People
v. Olague (2012) 205 Cal.App.4th 1126, 1131-1132, review granted August 8,
2012, S203298, review dismissed and case remanded March 20, 2013, should
be interpreted to apply the liberalized credit-earning scheme both to prisoners
confined for crimes committed after October 1, 2011, and to prisoners confined
after that date for earlier crimes. >Olague may no longer be cited as
precedent (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a)); moreover, we
rejected its interpretation in People v.
Ellis (2012) 207 Cal.App.4th 1546, 1552-1553 (Ellis).

Defendant
says he is nevertheless entitled to the ameliorative effect of the October 1, 2011, amendment,
because to deny him that benefit would violate the equal protection clauses of
the federal and state Constitutions. We
disagree.

In >Ellis, we held that the October 1, 2011, amendment to section
4019 applies only to eligible prisoners whose crimes were committed on or after
that date, and such prospective-only application neither runs afoul of rules of
statutory construction nor violates principles of href="http://www.mcmillanlaw.com/">equal protection. (Ellis,
supra, 207 Cal.App.4th at
p. 1548.) In reaching that
conclusion, we relied heavily on People
v. Brown (2012) 54 Cal.4th 314 (Brown),
in which the California Supreme Court held the amendment to section 4019 that
became effective January 25, 2010, applied prospectively only. (Brown,
supra, at p. 318; >Ellis, supra, at p. 1550.)

>Brown first examined rules of statutory
construction. It observed that
“[w]hether a statute operates prospectively or retroactively is, at least in
the first instance, a matter of legislative intent.” (Brown,
supra, 54 Cal.4th at
p. 319.) Where the Legislature’s
intent is unclear, section 3 and cases construing its provisions require prospective-only
application, unless it is “‘very clear from extrinsic sources’” that the
Legislature intended retroactive application.
(Brown, supra, at p. 319.) The
high court found no cause to apply the January 25, 2010, amendment
retroactively as a matter of statutory construction. (Id.
at pp. 320-322.)

>Brown also examined In re Estrada (1965) 63 Cal.2d 740 (Estrada), which held that when the Legislature amends a statute to
reduce punishment for a particular criminal offense, courts will assume, absent
evidence to the contrary, the Legislature intended the amended statute to apply
to all defendants whose judgments are not yet final on the statute’s operative
date. (Brown, supra, 54 Cal.4th
at p. 323; Estrada, >supra, at pp. 742-748.) Brown
concluded Estrada did not apply;
former section 4019, as amended effective January 25, 2010, did not alter the
penalty for any particular crime. (>Brown, supra, at pp. 323-325, 328.)
Rather than addressing punishment for past criminal conduct, >Brown explained, section 4019 “addresses
future conduct in a custodial setting
by providing increased incentives for good behavior.” (Brown,
supra, at p. 325.)

In >Ellis, we determined >Brown’s reasoning and conclusions apply
equally to current section 4019.
Accordingly, we held the October 1, 2011, amendment does not apply
retroactively as a matter of statutory construction or pursuant to >Estrada.
(Ellis, supra, 207 Cal.App.4th at pp. 1550, 1551.)

We next
turned to the equal protection issue. (>Ellis, supra, 207 Cal.App.4th at p. 1551.) In that regard, Brown held prospective-only application of the January 25, 2011,
amendment did not violate either the federal or the state Constitution. (Brown,
supra, 54 Cal.4th at
p. 328.) Brown explained:

“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.]

“…
[T]he 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, 54 Cal.4th at pp. 328-329.)

The state
high court rejected the argument that its decision in People v. Sage (1980) 26 Cal.3d 498 compelled a contrary
conclusion, declining to read that case as authority for more than it expressly
held, namely that authorizing presentence conduct credit for misdemeanants who
later served their sentences in county jail, but not for felons who ultimately
were sentenced to state prison, violated equal protection. (Brown,
supra, 54 Cal.4th at
pp. 329-330; see People v. Sage,
supra, 26 Cal.3d at p. 508.) It
further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d 542, a case that, because it dealt
with a statute granting credit for time served, not good conduct, was
distinguishable. (Brown, supra, at
p. 330.)

Once again,
we found no reason in Ellis why “>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.
[Citation.]” (>Ellis, supra, 207 Cal.App.4th at p. 1552.) Accordingly, we rejected the defendant’s
equal protection argument.

Defendant
points out, however, that unlike the situation before us in >Ellis, he served all of his presentence custody after the October 1, 2011,
amendment; thus, he says, he is indeed similarly situated, as far as incentives
for good behavior are concerned, to someone who committed his or her crime on
or after that amendment took effect. We
acknowledge the difference, but decline to find an equal protection violation. In our view, the California Supreme Court has
strongly signaled its conclusion that the enhanced credit-earning rate
presently available under section 4019 is available only to prisoners who committed their crimes on or after October 1,
2011, and that equal protection is not thereby denied. (See People
v. Lara, supra, 54 Cal.4th at p. 906, fn. 9.) Moreover, to the extent an equal protection
analysis may be appropriate to defendant’s situation, we agree with the
reasoning and conclusions of those cases that, after having undertaken such an
analysis, have refused to apply the more liberal credit-earning rate to
prisoners who, like defendant, were in presentence custody on and/or after
October 1, 2011. (See, e.g., >People v. Rajanayagam (2012) 211
Cal.App.4th 42, 52-56; People v. Verba (2012)
210 Cal.App.4th 991, 994-997.)

Because
defendant committed his offense prior to October 1, 2011, the amendment to
section 4019 that became operative on that date does not benefit him, even
though he served his presentence custody after that date. Defendant’s presentence credits were properly
calculated; subdivision (h) of section 4019 is not void.

DISPOSITION

The
judgment is affirmed.