P. v. Sims
Filed 4/15/13 P. v. Sims 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ERNEST JOSEPH SIMS,
Defendant and
Appellant.
F064456
(Super.
Ct. No. MF008419A)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court
of
John L.
Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and
Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Following
an earlier conviction for indecent exposure and resentencing related thereto,
defendant Ernest Joseph Sims contends that he should have been awarded
additional conduct credits pursuant to Penal Code
failure to award the additional credits amounts to a violation of his
awarded by the trial court in February 2012 were proper. The court will affirm the judgment.
RELEVANT PROCEDURAL BACKGROUND
In
September 2011, this court found that defendant’s prior separate convictions
for violations of section 245, subdivision (a)(1), and section 243, subdivision
(d) did not qualify as strikes. (
opn.].) Thus, defendant’s 25
years-to-life sentence was vacated, the judgment was otherwise affirmed, and
the matter was remanded to the trial court for resentencing, or at the People’s
election, retrial regarding the prior strike allegations.
Following
remittitur, the Kern County District Attorney elected not to seek a retrial of
the strike priors. Accordingly, the
parties agreed that defendant should be resentenced.
On February 22, 2012, for a
violation of section 314, subdivision 1, the trial court sentenced defendant to
the upper term of three years, plus 3 one-year enhancements imposed pursuant to
section 667.5, subdivision (b), for a total of six years.
fines, the trial court awarded a total of 1,427 days of custody credit.
On that
same date, defendant filed a notice of
appeal.
UNDERLYING FACTUAL BACKGROUND
As noted in
this court’s prior opinion, on April 30,
2007, while in the custody of the California
Rehabilitation, and while engaged in conversation with a female
correctional officer, defendant stroked his erect penis.
The
Custody Credits Imposed Pursuant to Section 4019 Were Properly Calculated;
There Was No Violation of Defendant’s Rights as Provided by the Equal
Protection Clauses of the California and United States Constitutions
Defendant
maintains that he should have been awarded an additional 429 days of conduct
credits pursuant to section 4019. He
contends that while the current version of the statute expressly provides that
its terms apply prospectively to persons who committed crimes on or after October 1, 2011, equal
protection compels that he receive “one-for-one conduct credit.†Defendant claims the two classes of prison
inmates and parolees—those who committed a crime on or after October 1,
2011, and who may receive additional conduct credits, and those who committed
their crimes prior to October 1, 2011, and who are not entitled to
additional conduct credits—are similarly situated. Further, defendant contends there is no
rational basis for the disparate classes created by the current version of
section 4019. The court does not agree.
The
relevant portions of the current statute provide as follows:
“(a)
The provisions of this section shall apply in all of the following cases:
“(1)
When a prisoner is confined in or committed to a county jail, … including all
days of custody from the date of arrest to the date on which the serving of the
sentence commences, under a judgment of imprisonment, or a fine and
imprisonment until the fine is paid in a criminal action or proceeding. [¶] … [¶]
“(f) 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.
“(g)
The changes in this section as enacted by the act that added this subdivision
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 the effective
date of that act.
“(h)
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.†(§ 4019, as amended by Stats. 2011, ch.
15, § 482, Stats. 2011, ch. 39, § 53, Stats. 2011-2012, 1st. Ex.
Sess., ch. 12, § 35.)
Here,
defendant argued for the award of additional conduct credit during the
resentencing proceedings:
“[Defense Counsel]: Now, the remaining issue is the 254 days that
the Court has calculated good-and-work time, which is basically getting—getting
half-time credits rather than day-for-day credits.
“Our
contention is that under the Constitution of California and the United States,
equal protection of the law and the due process of the law should give him
credits of—of double that, possibly 509, maybe 508 days’ credit instead of the
254, because on October 1st of 2011 the realignment rules went into
effect, and a person who commits a crime such as this on or after
October 1st, 2011, would receive, essentially, twice as much good-and-work
time credits.
“However,
the statute seems to read—I emphasize seems—that crimes that occurred before
October 1st, but where the sentencing occurs after October 21st, that they
only get, basically, essentially, half the amount of credits, which in this
case would be 254 days.
“This
matter, I think, is being appealed in probably a plethora of cases right now,
and we don’t know what the final results are going to be.
“I
understand the Court is declining, at this point, to award him the—the double
amount of credits, but we are making that request, nevertheless, and preserving
the record, hopefully.â€
The trial court sentenced defendant as follows:
“[The Court:] As to custody credit, the way I calculated it
is as follows: We have 447 days of jail
time, plus an additional four days, as you’ve discussed [defense counsel], plus
58, since he’s come back on the remittitur, for a total of 509.
“Since
the crime for this case occurred in 2007, my view of the law, at this point
he’s only entitled to half credit for that.
So it’s 509, plus 254, for a total of 763.
“His
prison time that he has—not jail time but prison time—is an actual 664, for a
total of 1,427 days or 3.9 years toward his seven-year sentence.â€
Because
defendant committed his crime in April 2007, the trial court refused to award
four days for every two days spent in actual custody to the period during which
defendant was in jail custody. Rather,
because defendant’s crime occurred prior to October 1, 2011, the trial
court awarded defendant custody credits in accordance with the then-current
section 4019, or prior to January 25, 2010: for every four days spent in actual custody,
six days were deemed earned. (Former
§ 4019, subds. (b), (f).)
Defendant
argues however that despite the prospective application language of the current
statute, such an application violates his rights to equal protection under the
state and federal Constitutions.
However, following briefing in this matter, this court decided
1546 (Ellis). It is determinative of the outcome here.
In
to section 4019 applies only to eligible prisoners whose crimes were committed
on or after October 1, 2011, and such a prospective-only application
neither runs afoul of the rules of statutory construction nor does it violate
the principles of equal protection. (
That finding relied heavily upon the California Supreme Court’s opinion
in People v. Brown (2012) 54 Cal.4th
314, where the high court held that a prior amendment to section 4019 that
became effective on January 25, 2010, applied prospectively only. (Brown,
supra, at p. 318;
First,
construction. The high court observed
that “[w]hether a statute operates prospectively or retroactively is, at least
in the first instance, a matter of legislative
intent.†(People v. 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.) It found no cause to apply the
January 25, 2010, amendment retroactively as a matter of statutory
construction. (Id. at pp. 320–322.)
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, that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative
date. (People v. Brown, supra,
54 Cal.4th at p. 323; In re Estrada,
court concluded that Estrada did not
apply; former section 4019, as amended effective January 25, 2010, did not
alter the penalty for any particular crime.
(People v. Brown,
criminal conduct, section 4019 “addresses future
conduct in a custodial setting by providing increased incentives for good
behavior.†(People v. Brown, supra,
at p. 325.)
In
equally to the current version of section 4019.
Therefore, the court held the October 1, 2011, amendment does not
apply retroactively as a matter of statutory construction or pursuant to
(Ellis, supra, 207 Cal.App.4th at pp. 1550-1551.)
With regard
to the equal protection issue, Brown
held prospective-only application of the January 25, 2010, amendment did
not violate either the federal or the state Constitution. (People
v. Brown, supra, 54 Cal.4th at p.
328.) That court 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.â€â€™
[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.â€â€™ [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.
after former section 4019 took effect are not similarly situated necessarily
follows.†(People v. Brown, supra,
54 Cal.4th at pp. 328–329, second italics added.)
The
California Supreme Court rejected an argument that its decision in
compelled a contrary conclusion, declining to read that case as authority for
more than it expressly held. In
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. (
p. 508.) It further refused to find that
the holding in In re Kapperman (1974)
11 Cal.3d 542 controlled because Kapperman
is distinguishable; it dealt with a statute granting credit for time served,
not good conduct. (People v. Brown, supra,
at p. 330.)
In
respect to the January 25, 2010, amendment should not apply with equal
force to the October 1, 2011, amendment.
[Citation.]†(
Similarly here, defendant’s equal protection argument lacks merit. Ellis
is dispositive of defendant’s claim of entitlement to additional conduct
credits. The trial court properly
calculated the credits to which defendant was entitled during resentencing.
In sum, the
trial court did not err in awarding custody credits based upon former section
4019, applying a six-for-four versus one-for-one calculation, because
defendant’s crime occurred in 2007.
Further, defendant’s equal protection rights have not been violated for
the reasons explained above. The trial
court properly awarded defendant a total of 1,427 days of custody credit.
DISPOSITION
The trial
court is directed to amend the abstract of judgment to reflect a total of 1,427
days of custody credit, comprising 509 days of actual local time, 254 days of
local conduct credit, and 664 days of time served in the
name="_ftn1" title="">*Before
Gomes, Acting P.J., Poochigian, J. and Peña, J.
name="_ftn2" title="">[1]All
further statutory references are to the Penal Code.
