P. v. Hall
Filed 4/4/13 P. v. Hall CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
REGINALD A.
HALL,
Defendant and Appellant.
A136225
(San Mateo
County
Super. Ct.
No. SC072790A)
In
February 2012, appellant pled no contest to one count of a multi-count
information and admitted the truth of serious felony and strike allegations in
an amended information dealing with his assault on a woman who was the mother
of two of his children. After accepting
that plea, the trial court sentenced appellant to seven years and eight months
in prison, imposed fines on him, and awarded him conduct and
court’s declination to consider striking a prior serious felony conviction was
error because the possible basis of that decision, i.e., Penal Code section
1385, subdivision (b) (section 1385(b)),
unconstitutional, (2) the trial court erred in several aspects of its award of
conduct and custody credits, and (3) appellant received ineffective assistance
of trial counsel regarding both issues.
We agree that, as conceded by the Attorney General, appellant is
entitled to some additional conduct credits; otherwise, we reject appellant’s
contentions and thus affirm the judgment of the trial court. We do, however, remand the case to the trial
court for correction of the award of conduct credits.
II. FACTUAL AND
PROCEDURAL BACKGROUND
On
November 11, 2010,
appellant had a domestic dispute with Lori Houston, the mother of two of his
daughters. On that day, appellant came
to Houston’s house in South San
Francisco, stating to her that he wanted to “take the girls.†Houston
refused to let him in, so he began kicking her door. As appellant was kicking the door, Houston
called 911. Appellant then kicked in the
door and chased and choked Houston,
and grabbed her cell phone out of her hands.
Houston was able to retrieve
another phone and called 911 again; when she did so, appellant could be heard
yelling in the background. Houston
was not seriously hurt, but did suffer considerable pain from appellant’s
assault.
Via
an amended information filed on March
15, 2011, appellant was charged with four counts, namely: (1)
assault by force likely to cause great bodily injury (§ 245, subd.
(a)(1)); (2) residential burglary (§§ 459, 460, subd. (a)); (3) dissuasion
of a witness or victim (§ 136.1, subd. (b)(1)); and (4) misdemeanor
vandalism (§ 594, subd. (b)(2)(A)).
The amended information also alleged several prior convictions and
prison terms of appellant, to be noted hereafter.
On
February 1, 2012, appellant
pled no contest to the third count, i.e., dissuasion of a witness. He also admitted that that offense was a
“serious felony or strike offense within the meaning of [section] 1192.7(c)(37)
of the Penal Code.â€
title="">[2] Finally, appellant admitted the truth of the
serious felony and strike allegations alleged with regard to that offense,
i.e., that (1) on October 25, 2000, he had been convicted of assault with a
firearm (§ 245, subd. (a)(2)), which (2) was both a serious felony and a
strike under section 1170.12, subdivision (c)(1), and (3) he had served three
prison terms, i.e., for the October 2000 assault, a July 1993 escape conviction
(§ 4532, subd. (b)), and a March 2008 drug conviction (Health & Saf. Code,
§ 11350). In exchange for this
plea, the remainder of the charges against appellant were dismissed.
On
May 7, 2012, appellant filed a motion under section 1385 and
to strike “all priors alleged under the ‘Three Strikes’ law in the interests of
justice.†The prosecution opposed this
motion on May 15, 2012.
A
sentencing hearing was held on June 8, 2012.
At that hearing, the trial court denied appellant’s Romero motion based on his prior
granting of such a motion—by the same trial judge—in connection with
appellant’s 2008 drug conviction. It
then sentenced appellant to a term of seven years and eight months, consisting
of a mitigated term of 16 months, doubled because of the prior strike, plus a
five-year enhancement because of the prison term prior. Miscellaneous fines and fees were imposed,
and appellant given credit for 350 actual days in custody, plus 70 days for
good conduct credit. (The latter was
limited to this amount, per the trial court, because of the Three Strikes
law.) Several days later, the court
amended its sentencing order by giving appellant a concurrent prison sentence
of one year and four months for violating his probation in the 2008 drug
case.
Appellant
filed a timely notice of appeal on
August 7, 2012.
As
noted, appellant raises three issues on appeal, i.e., that (1) the trial court
erred in relying on an unconstitutional law, section 1385(b), in sentencing
him, (2) the trial court incorrectly credited appellant with the custody and
conduct credits to which he was entitled, and (3) he received ineffective
assistance of counsel with regard to both issues. We shall discuss these contentions hereafter.
A.
Section 1385(b) is Not
Unconstitutional
In
1986, the Legislature added subdivision (b) to section 1385; it reads: “This section does not authorize a judge to strike any prior
conviction of a serious felony for purposes of enhancement of a sentence under
Section 667.†(§ 1385(b).) The reasons for this enactment were
summarized in People v. Valencia (1989)
207 Cal.App.3d 1042 (Valencia), where
one of our sister courts was faced with the contention—identical to that being
made by appellant here—that section 1385(b) was unconstitutional. The court responded thusly: “Valencia
contends [section 1385(b)] ‘unconstitutionally infringes upon the power of the
judiciary by prohibiting the striking of prior § 667
felonies . . . .’ He
cites no authority for this surprising assertion. Subdivision (b) of Penal Code section 1385
was enacted by the Legislature as an emergency measure expressly for the
purpose of abrogating People v. Fritz
(1985) 40 Cal.3d 227 ‘and to restrict the authority of the trial court to
strike prior convictions of serious felonies when imposing an enhancement under
Section 667 of the Penal Code.’ (Stats.
1986, ch. 85, § 3; see People v.
Williams (1987) 196 Cal.App.3d 1157, 1160.)
[¶] In People v. Williams
(1981) 30 Cal.3d 470, 482 the California Supreme Court discussing Penal Code
section 1385 as worded prior to the 1986 amendment stated, ‘Section 1385
permits dismissals in the interest of justice in any situation where the
Legislature has not clearly evidenced a contrary intent.’ The 1986 amendments to sections 1385 and 667
could not more clearly have expressed a contrary intent to judicial discretion
in the area of prior serious felonies as enhancements under Penal Code section
667. As was said in People v. Williams, supra, 196 Cal.App.3d at page 1160, ‘The
amended version of section 1385 removes from the trial court all discretion to
strike the prior felony convictions, thus rendering imposition of a five-year enhancement
for each such prior conviction a certainty.’
The Legislature’s power to limit trial court discretion in this way is
beyond question. ‘We note at the outset
“that in our tripartite system of government it is the function of the
legislative branch to define crimes and prescribe punishments, and that such
questions are in the first instance for the judgment of the Legislature
alone.†[Citation.]’ [Citation.]â€
(Valencia, supra, 207
Cal.App.3d at p. 1045, fns. omitted.)
Since
Valencia, many of our sister courts
have also considered or cited section 1385(b).
None of their decisions regarding it have hinted in the slightest
regarding its possible unconstitutionality.
1373, 1383; People v. Wilson (2002)
95 Cal.App.4th 198, 201-202; People v.
Perez (2001) 86 Cal.App.4th 675, 679; People
v. Turner (1998) 67 Cal.App.4th 1258, 1268-1269; People v. Aubrey (1998) 65 Cal.App.4th 279, 282-285;
381, 389; People v. Luckett (1996) 48
Cal.App.4th 1214, 1219; People v. Samuels
(1996) 42 Cal.App.4th 1022, 1029 [discussing the companion statute, i.e.,
the amendment to § 667, subd. (a)(1)], disapproved on other grounds as stated
in People v. Deloza (1998) 18 Cal.4th
585; see, generally, 3 Witkin, Cal. Criminal Law (4th ed. 2012) Punishment,
§§ 347(1), pp. 530-531; 439, pp. 690-693; 5 Witkin, Cal. Criminal Law (4th
ed. 2012) Criminal Trial, § 475, pp.
738-740.)
Even
more importantly, in its 1996 decision in Romero,
our Supreme Court dealt with section 1385(b).
Romero basically addressed the
issue of whether, considering the combined effects of sections 667, subdivision
(f), 1385, and 1170.12, subdivision (d), a trial court retains the power to
dismiss a prior conviction either on its own or the prosecutor’s motion. (Romero,
supra, 13 Cal.4th 497.) It held that
it did, and that “the Legislature may completely bar a court from dismissing
certain charges. But if it permits a
charge to be dismissed, it cannot validly subject the court’s exercise of that
power to prosecutorial consent.†(3 Witkin, Cal. Criminal Law,
690-693; see also id. at § 430,
pp. 674-676; 5 Witkin, Cal. Criminal Law,
supra, Criminal Trial, §§ 465, pp. 725-726; 475, pp. 738-740.)
In
so holding, however, the Romero court
made clear that legislative enactments limiting a court’s power in this respect
are valid. Indeed, in the opening
paragraph of the court’s opinion in Romero,
it stated: “Although the Legislature may
withdraw the statutory power to dismiss in furtherance of justice, we
conclude it has not done so in the Three Strikes law.†(Romero,
supra, 13 Cal.4th at p. 504, italics supplied.) It later explained: “In People
v. Thomas [(1992)] 4 Cal.4th 206, we upheld a law (§ 12022.5, subd. (a))
requiring the court to impose an enhanced sentence on any person who personally
uses a firearm in the commission or attempted commission of a felony. Because the law made no exception for cases
in which the prosecutor requested the court to strike, the separation of powers
question at issue in this case was not implicated. The same is true of People v. Tanner [(1979)] 24 Cal.3d 514, in which we upheld a law
(§ 1203.06) barring probation for certain defendants who used firearms in
committing their offenses, and of [Valencia]
the Court of Appeal upheld a law (§ 1385(b)) withdrawing courts’ power to
strike prior serious felony conviction allegations made for the purpose of
enhancing sentence under section 667, subdivision (a). None of these statutes purported to make the
exercise of a judicial power subject to the prosecutor’s approval.†(Romero,
supra, 13 Cal.4th at p. 516.)
Clearly,
nowhere in this citation of both Valencia
and section 1385(b) did the court suggest that there might be some
constitutional problems with that statute.
And it continued in that vein later in Romero, i.e., in the portion of its opinion rejecting the
prosecutor’s argument “that section 1385(b) independently bars a court from
striking prior felony allegations in Three Strikes cases, regardless of the
language of the Three Strikes law.†(
525.) For a variety of reasons, none of
them necessary to reiterate here, the court held that the prohibition
enunciated in section 1385(b) did not apply to cases brought under the Three
Strikes law as enacted in 1994. (See
525-529.) But, again, the court never
hinted that there might be any constitutional problems regarding section
1385(b). (Ibid.)
Perhaps
even more significantly, the court has, very recently, effectively affirmed the
validity of a very similar statute, section 1385.1, which provides that
“[n]otwithstanding Section 1385 or any other provision of law, a judge shall
not strike or dismiss any special circumstance which is admitted by a plea of
guilty or nolo contendre or is found by a jury or
court . . . .â€
(§ 1385.1.) In
(Mendoza),
the court held: “In light of section
1385.1, the court had no authority to strike the lying-in-wait special
circumstance.†(Id. at p. 1075.) The
appellant’s contention that section 1385.1 “applied only when the striking
would alter the defendant’s sentence,†stating that the “language of section
1385.1 is unambiguous in the breadth of its application.†(Mendoza,
supra, at p. 1077.) Just so here
regarding the very similar section 1385(b).
And, therefore, clearly there was no ineffective assistance of trial
counsel in not arguing that section 1385(b)—a provision not even mentioned in
the trial court (see ante)—was
unconstitutional.
Further,
appellant’s reliance on our Supreme Court’s decision in People v. Tenorio (1970) 3 Cal.3d 89 (Tenorio) to support his argument regarding the unconstitutionality
of section 1385(b) does not withstand examination. First of all, and as Romero made clear, Tenorio did
not address the issue of a claimed “legislative restriction†of the “power to
dismiss,†but only whether the prosecution
itself has such power. (See
515-517.) And several of our Supreme
Court’s decisions since Tenorio have
made clear that the reach of that case is, indeed, so limited. Thus, in Davis
v. Municipal Court (1988) 46 Cal.3d 64 (Davis),
the court explained that Tenorio involved
“a statutory provision which gave the district attorney the power to preclude a
trial court from exercising its long established discretion, under Penal Code
section 1385, to strike a prior offense for the purposes of
sentencing. . . . [¶] . . . All of the
subsequent cases applying Tenorio to
invalidate legislative provisions have similarly involved statutes which
authorized the exercise of a prosecutorial veto after the filing of criminal charges, when the
within the aegis of the judicial branch.â€
(Id. at pp. 82-83.) That holding simply did not apply in the case
before it, the court held, because it involved only the exercise of a local
wobbler rule, i.e., whether the prosecutor charged the offense at issue as a
felony or misdemeanor. (
Finally
regarding the issue of the constitutionality of section 1385(b), the Attorney
General contends in her brief to us that, because this contention was not made
in the trial court, it is forfeited on appeal.
In all candor, we have difficulty dealing with this contention because
of the arguments of the respective parties in the trial court and that court’s
ruling.
In
a presentencing motion to the trial court, his counsel first asked that court
to “grant his motion to strike his prior conviction under Romero.†However, in the
very next paragraph, the same pleading then asked the court to grant appellant
probation, stating: “Defendant does
argue that the admission to the enhancement of his sentence further to Penal
Code section 667 [subdivision,] (a) was an insistent condition by the People
with [sic: without] which no disposition would occur. Defendant respectfully suggests that [the]
Court should not allow the People to tie it’s [sic] hands. Without
a grant of probation, the court must impose five additional years to the
sentence of Defendant irrespective of the ruling under Romero.†(Emphasis supplied.) Notwithstanding this concession, nowhere in
appellant’s motion to the trial court was section 1385(b) cited.
Section
1385(b) was also not cited in the district attorney’s opposition pleading filed
a week later. But, curiously, that
opposition conceded that the court had discretion to strike, stating: “While the People recognize that the court
has discretion to strike the ‘strike’ allegation based on the authority
conferred by Penal Code section 1385(a), we respectfully urge the court not to
exercise that discretion because it does not serve the interests of
justice.†That brief went on to cite
substantial criminal record and the circumstances of his entry into Houston’s
home and subsequent assault on her, that the trial court should not dismiss the
prior under section 1385, because a “dismissal not in furtherance of justice is
an abuse of discretion requiring a reversal.â€
Lastly,
the trial court also did not cite or mention section1385(b) in its ruling
denying appellant’s motion to strike the charged enhancement. After hearing arguments from both counsel,
the court made the following observations and rulings: “What’s bothering me I suppose about this one
is the five year prior leaves so little discretion to the Court. That’s partly why I’ve listened considerably
this morning, because it bothers me that the choices are as limited as they
are. . . . [¶] . . . That’s Mr. Hall’s
option in whether to go to trial and risk 20 years or take a chance on a
trial. But at this point I can’t find
that Mr. Hall is deserving of another Romero grant. The last one was only two years before this
offense occurred. And I can’t find that
he’s an appropriate candidate for probation.
His convictions continue to be serious.
This one’s serious. The last one
was serious. The one two [sic: years]
ago was serious. Probation isn’t
working. [¶] I can’t grant Romero on these facts and I can’t grant
probation if I were to consider a Romero.
Were there more choices on the length of the sentence that might be
something I would give thought to. But
as the conviction stands I have very limited options other than to grant
Romero, which he doesn’t deserve, and give him probation, which he doesn’t
deserve in my view. [¶] So having said that I believe I have no option
except on Count 3 in the case ending in 90 to sentence him to the low term,
which is 16 months, but doubled by virtue of the strike. And I’m required to impose the five years for
the previous sentence for the previous conviction. If the laws were different I might consider
other options.â€
Presumably, albeit
certainly not definitely, via the next-to-the-last sentence quoted above, the
trial court was referring to section 1385(b) (and, possibly, also, § 667,
subd. (a)(1)).
In
light of this history, but also in light of the constitutionality of section
1385(b) discussed above, we see no need to reach the issue of whether appellant
has “forfeited†his right to right to argue that issue.
B.
The Issues of the Conduct and
Custody Credits to Which Appellant is Entitled
Appellant
makes three contentions regarding errors the trial court allegedly made in
awarding him conduct and custody credits.
Before summarizing them, a bit of factual background is appropriate
regarding appellant’s jail time and the relevant statute regarding such. As noted above, appellant committed the crime
at issue here on November 11, 2010; he was taken into custody two days later,
i.e., on November 13, 2010, and not released on bail until October 29,
2011. He was, therefore, in jail a total
of 350 days.
At
the sentencing hearing, the
prosecutor argued that appellant’s presentence conduct credits should be capped
at 20 percent of his actual custody time of 350 days because he was being
sentenced under the Three Strikes law.
The court agreed, albeit incorrectly as the Attorney General concedes. This is so because that law’s cap on conduct
credit does not apply to presentence confinement, the confinement at issue
here. (See People v. Thomas (1999) 21 Cal.4th 1122, 1125.) As a result of its agreement with the
prosecutor’s position, the trial court “capped†appellant’s conduct credit at
20 percent of the 350 days he had been confined, i.e., at 70 days. But under the version of section 4019
applicable to appellant, the parties agree that his presentence conduct credits
totaled 174 days, and that he is therefore entitled to 104 days additional
conduct credits.
Next,
appellant argues that he is entitled to an additional 29 days of conduct credit
for the time he spent in presentence confinement on and after October 1, 2011,
the operative date of the current version of section 4019. That version now provides for two days of
conduct credit for every four days of time served. (See § 4019, subd. (f).) Appellant argues that this calculation should
apply to the time he spent in jail from October 1 to October 29, 2011, i.e.,
that he should be entitled to 29 more days of credit for that portion of his
presentence confinement. The Attorney
General disagrees. We agree with the
Attorney General’s argument.
To reiterate the
key dates involved with this issue, appellant committed the last, and relevant,
crime on November 11, 2010. The version
of section 4019 that he asks be made applicable to him, however, clearly states
that it “shall apply prospectively and shall apply to prisoners who are
confined to a county jail . . . 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);
hereafter § 4019(h).) Both
in terms of its clear language and several recent cases interpreting it, this
version of section 4019 does not apply to appellant for the reasons that (1) he
committed his offense 10 months before the effective date of this
the statute is valid as worded. (See
Appellant
contends that the final sentence of the latest version of section 4019(h)
allows him to receive the increased conduct credits for the presentencing days
he served on and after October 1, 2011.
However, and as pointed out by the Attorney General, several recent
appellate decisions have rejected this interpretation of the latest version of
section 4019(h), and have held that the clearly more explicit language of the
next-to-the-last sentence of that provision negates any interpretation of the
broader final sentence regarding whether the latter sentence means that the
amendment can and should be applied retroactively. Those cases have all held that may not
be. (See Ellis, supra, 207 Cal.App.4th at pp. 1552-1553;
pp. 51-52.)
title="">[7]
Finally, appellant
contends that based both on statutory interpretation and application, and also
under the doctrine of equal protection of the law, he is entitled to
day-for-day conduct credit for the substantial period of time (over 10 months)
he served before October 1, 2011. Again,
the Attorney General disagrees.
For
several reasons, we agree with the Attorney General. First of all, the amendment to section 4019
that provided for an increased conduct credit rate was specifically framed so
as to make it inoperative for anyone
at all until October 1, 2011.
name="_ftnref8" title="">[8] As our Supreme Court held last year in
4019 had no retroactive application, because (1) the statute specifically said
that it applied prospectively (see section 4019(h)), (2) section 3 of the Penal
Code provides similarly regarding provisions of that code unless the contrary
is “expressly so declared†(§ 3), and (3) the “equal protection†doctrine
does not mandate a different result. (
319-330.) As several cases have noted
subsequent to Brown, its holding
clearly applies to the current version of section 4019. (See People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9 (Lara); Kennedy, supra, 209
Cal.App.4th at pp. 395-400; Ellis, supra,
207 Cal.App.4th at p. 1552.)
Appellant’s
equal protection argument also fails both because of the reasons stated in
9), and also because “several legitimate reasons†existed for the Legislature
to make the “increased level of presentence conduct credit applicable only to
those who commit their crimes on or after October 1, 2011.†(People
v. Verba (2012) 210 Cal.App.4th 991, 996-997; see also Rajanayagam, supra, 211 Cal.App.4th at pp. 53-56.) For all of these reasons, we have no
difficulty in holding that appellant is not entitled to day-for-day credits for
the presentencing time he was in jail prior to October 1, 2011.
Finally,
both for the reasons stated above, i.e., that there was no error committed by
the trial court regarding the final two conduct-credit issues discussed above,
and also because these are the sorts of issues that can be raised the first
time on appeal (see People v. Acosta (1996)
48 Cal.App.4th 411, 420-428), there was no ineffective assistance of counsel
provided appellant in the trial court regarding this subject.
IV. DISPOSITION
The
judgment, including the sentence imposed, is affirmed, except that appellant
should be awarded 104 additional conduct credit days. The case is remanded to the trial court to
correct the abstract of judgment in that respect.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
subsequent statutory references are to the Penal Code, unless otherwise noted.
was done pursuant to People v. West (1970)
3 Cal.3d 595, 604-608.
