P. v. Espiritu
Filed 6/20/13 P. v. Espiritu CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS REYES ESPIRITU,
Defendant and Appellant.
D061931
(Super. Ct.
No. SCE307352)
APPEAL from
a judgment of the Superior Court
of
County, Joseph P. Brannigan, Judge. Affirmed in part, reversed in part, and
modified in part.
Stephen M.
Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie F.
Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury
convicted Thomas Reyes Espiritu of gross
vehicular manslaughter while intoxicated (Pen. Code,
191.5, subd. (a); count 1), driving under the influence causing injury (Veh.
Code, § 23153, subd. (a); count 2), and driving with a measurable blood alcohol
level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and 3, the jury also found
true allegations Espiritu had a blood alcohol concentration of 0.15 percent or
more (Veh. Code, § 23578) and personally inflicted great bodily injury
(§ 12022.7, subd. (a)).
The court
sentenced Espiritu to six years in state
prison for count 1 and, at the parties' request, stayed the convictions for
counts 2 and 3 under section 654. The
court additionally awarded him 200 days of presentence credit, consisting of
134 actual days and 66 conduct days under section 4019.
Espiritu
appeals, contending the court prejudicially erred by admitting an irrelevant
and unduly inflammatory autopsy photograph, admitting irrelevant and
unsupported expert accident reconstruction testimony, excluding relevant
evidence of the victim's narcotics use, and refusing to give a requested
pinpoint instruction on the definition of gross negligence. Additionally, he contends the cumulative
prejudicial impact of these errors deprived him of
convictions for counts 2 and 3 because they are lesser included offenses of
count 1, and he is entitled to additional presentence conduct credit under the
current version of section 4019.
The People
concede and we agree we must reverse his convictions for counts 2 and 3. In all other respects, we affirm the
judgment.
BACKGROUND
On an
evening in December 2010, Espiritu and his fiancée attended a Christmas party
where Espiritu drank vodka and whiskey.
After the party, Espiritu's fiancé, who had not been drinking, drove
them to her home. About 15 minutes after
they arrived, Espiritu left in his vehicle to pick up his daughter. At trial, Espiritu's fiancée testified she
did not think he was too impaired to drive; however, that night she told a
police officer the opposite.
Sometime
after leaving his fiancée's home, Espiritu passed a car in which Jeffrey Smith
was a passenger. Smith saw Espiritu
weave in and out of traffic and estimated Espiritu was driving at least 70
miles per hour. Espiritu's car was
moving so fast it had a body roll and its tires were folding under it. After Espiritu passed Smith, Smith lost sight
of Espiritu's car. About a minute later
and a mile or two down the road, Smith saw debris in the roadway and a body
lying in the center of the road. He also
saw Espiritu's now damaged car a bit farther ahead.
A community
service officer who responded to the scene asked Espiritu if he had been in a
accident with a motorcycle. Espiritu did
not respond. When the officer asked him
again whether he had been in an accident, Espiritu told him a motorcycle had
committed a hit and run. A bystander
then informed the officer a motorcycle and rider were down. The officer went to where the rider, David
Dickinson, was lying on the ground.
Dickinson was alive, but nonresponsive.
Dickinson
later died at the hospital. The medical
examiner noted he had scrapes and bruising around his face and bleeding around
his brain. His brain had swelled, his
spinal cord was bruised, and his neck, the base of his skull, and two locations
along his spine were fractured. He also
had a scrape across his abdomen and chest, multiple rib fractures, and multiple
organ injuries. He died from multiple
blunt force injuries.
A police
officer with expertise in conducting driving under the influence (DUI)
evaluations noticed Espiritu smelled of alcohol, had bloodshot and watery eyes,
slurred speech, and an unsteady gait.
The officer performed a series of field sobriety tests on Espiritu. The officer also had Espiritu blow into a
preliminary alcohol screening device two times.
The first time produced a reading of 0.169 percent blood alcohol content
and the second time produced a reading of 0.166 percent blood alcohol
content. Based on the results of the
field sobriety tests and the preliminary alcohol screening, the officer formed
the opinion Espiritu was under the influence of alcohol, arrested him, and
transported him to the police station.
At the
station, the officer administered two breath tests to Espiritu, which produced
readings of 0.15 percent blood alcohol content and 0.16 percent blood alcohol
content. The officer also had Espiritu's
blood drawn.
A
criminalist performed two tests on the blood drawn from Espiritu. The first test showed he had a blood alcohol
content of 0.135 percent and the second showed he had a blood alcohol content
of 0.136 percent. From the results of the
breath and blood tests, the criminalist calculated Espiritu's blood alcohol
content at the time of the collision was between 0.15 and 0.17 percent. According to the criminalist, a person with a
0.15 blood alcohol content level would have pronounced physical and mental
impairments. Based on the results of the
scientific tests, the field sobriety tests, and Espiritu's reported driving
behavior, the criminalist opined he was under the influence at the time of the
collision.
A tow truck
operator drove up to the scene, noticed Dickinson's motorcycle lying on its
side, and picked it up and put it on its stand.
The tow truck operator noticed the rear wheel of the motorcycle was
heavily damaged.
A
motorcycle maintenance expert subsequently inspected Dickinson's
motorcycle. The right side of the
motorcycle was heavily damaged. The rear
was also heavily damaged from what appeared to be a very large, direct impact. At the time of the collision, the motorcycle
was in third gear. In third gear, the
motorcycle can go between 20 and 70 miles per hour, with a comfortable cruising
speed of 30 to 45 miles per hour.
The right
side of the motorcycle's engine had grind marks indicating the engine had slid
on the ground for a time. There was
plastic imbedded in the motorcycle's muffler.
An officer opined the plastic came from the headlight housing on
Espiritu's vehicle.
An accident
reconstruction expert studied the data from the event data recorder in
Espiritu's car. The expert determined
the vehicle was going between 86 to 95 miles per hour in the period between 4.3
and 2.3 seconds before the impact.
Immediately before the impact, the car's speed dropped to between 76 and
85 miles per hour as Espiritu took his foot off the accelerator and stepped on
the brake pedal. There was no evidence,
such as skids marks, indicating either Espiritu's car or the motorcycle were
braking hard at the time of the collision.
Based on
the presence of corresponding impact scuff marks, El Cajon police officer and
traffic collision investigator Joshua Pittsley opined the back of Dickinson's
helmet had impacted the "A" pillar of Espiritu's vehicle. Additionally, the front tire of Espiritu's
car was pushed back into the wheel well to the point the tire would not roll,
and the entire front end of the vehicle was collapsed two to three feet. Espiritu's vehicle also impacted a curb.
The officer
opined Espiritu had been trying to flatten out a corner turn when his car
drifted out of the right lane, straddled the right and left lanes, and struck
the rear of Dickinson's motorcycle, which was traveling in the right third of
the left lane. The impact carried
Dickinson on Espiritu's vehicle for 120 feet before Dickinson slid another 57
feet to the ground. Dickinson's
motorcycle was carried 360 feet on Espiritu's vehicle before it slid to the
ground and eventually ended up 414 feet from the point of impact. Espiritu's vehicle ended up 735 feet from the
point of impact.
DISCUSSION
I
Admission of
Autopsy Photograph
A
Before
trial, the prosecutor sought admission of a single autopsy photograph of
Dickinson's face showing abrasions and bruising on his forehead, left eye,
nose, upper lip, lip, chin, and left cheek.
The prosecutor argued the photograph was admissible because it
corroborated the medical examiner's testimony, illustrated the nature of
Dickinson's injuries, and supported the theory Espiritu's unreasonable speed
launched Dickinson 177 feet.
Defense
counsel objected to the admission of the photograph under Evidence Code section
352, arguing neither Dickinson's identity nor the fact of his death were at
issue and viewing the photograph would be upsetting to a layperson. After viewing the photograph, the court found
it was relevant and its prejudicial effect did not outweigh its probative
value.
B
1
Espiritu
contends the court prejudicially erred in admitting the autopsy
photograph. To evaluate the merit to
this contention, we first consider whether the trial court abused its
discretion in determining the photograph was relevant. (People
v. Ramirez (2006) 39 Cal.4th 398, 453; People
v. Carter (2005) 36 Cal.4th 1114, 1166.)
" ' "Relevant evidence" means
evidence . . . having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.' (Evid. Code, § 210.)" (People
v. Ramirez, supra, at p.
453.) " ' "The test of
relevance is whether the evidence tends ' "logically, naturally, and by
reasonable inference" to establish material facts such as identity,
intent, or motive.' " ' " (
In this
case, the prosecutor had to prove Espiritu acted with gross negligence
resulting in the death of another. To
meet this burden, the prosecutor presented accident reconstruction evidence
indicating Espiritu collided with the rear of Dickinson's motorcycle at a high
rate of speed, causing Dickinson to be thrown from his motorcycle and slide
across the roadway before coming to rest 177 feet from the point of
impact. The medical examiner's testimony
corroborated the accident reconstruction evidence and established the cause of
Dickinson's death. The autopsy
photograph also corroborated the accident reconstruction evidence and
illustrated part of the medical examiner's testimony. Accordingly, the court did not abuse its
discretion in determining the photograph was relevant. (People
v. Virgil (2011) 51 Cal.4th 1210, 1248 [photographs are relevant to
illustrate a forensic expert's testimony]; People
v. Howard (2010) 51 Cal.4th 15, 33 [autopsy photographs are admissible to
clarify the testimony of prosecution witnesses regarding the crime scene and
the autopsy].)
Although
Espiritu contends the photograph was irrelevant because it was probative only
of undisputed issues, "autopsy and crime scene photographs are not made
inadmissible because they are offered to prove an issue not in
dispute." (People v. Watson (2008) 43 Cal.4th 652, 684; People v. Crittenden (1994) 9 Cal.4th 83, 132-133.) Moreover, even if the photograph was
cumulative to the testimonial evidence, " 'this . . . does not
demonstrate the trial court abused its broad discretion.
"[P]rosecutors . . . are not obliged to prove
their case with evidence solely from live witnesses; the jury is entitled to
see details of the victims' bodies to determine if the evidence supports the
prosecution's theory of the case." ' " (People
v. Garcia (2008) 168 Cal.App.4th 261, 294; accord, People v. Lewis (2009) 46 Cal.4th 1255, 1282.)
2
We next
consider whether the court abused its discretion in determining the probative
value of the photograph outweighed its prejudicial effect. " 'The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create
substantial danger of undue prejudice . . . .' [Citation.]
'The jury can, and must, be shielded from depictions that sensationalize
an alleged crime, or are unnecessarily gruesome, but the jury cannot be
shielded from an accurate depiction of the charged crimes that does not
unnecessarily play upon the emotions of the jurors.' [Citation.]
We review the trial court's ruling under Evidence Code section 352 for
abuse of discretion [citation], and . . . will reverse a
trial court's exercise of discretion to admit crime scene or autopsy photographs
only when 'the probative value of the photographs clearly is outweighed by
their prejudicial effect.' " (
Admission
of an autopsy photograph is only unduly prejudicial if the photograph
" 'uniquely tends to evoke an emotional bias against a party as an
individual, while having only slight probative value with regard to the
issues.' " (People v. Virgil (2011) 51 Cal.4th 1210, 1248.) The photograph at issue here is a close-up of
Dickinson's face with his eyes closed.
The photograph has a yellow tinge and was taken as Dickinson's body lay
on a metal table with a covering up to his chin. The photograph does not show any open or
bleeding wounds. Of the bruises and
abrasions shown, only one, a deep, dark red bruise on the tip of Dickinson's
nose, stands out. While unquestionably
unpleasant, the photograph cannot be fairly characterized as sensational or
unduly gruesome. We, therefore, cannot
conclude the prejudicial effect of the photograph clearly outweighed its
probative value such that the court abused its discretion in admitting it.
Even if the
court had abused its discretion in admitting the photograph, the photograph did
not provide the jury with any additional or more graphic information than the
medical examiner's testimony. Thus,
admission of the photograph was harmless under both Chapman v. California (1967) 386 U.S. 18, 24 and
836-837. (People v. Cole (2004) 33
Cal.4th 1158, 1199.)
II
Admission of
Accident Reconstruction Expert Testimony
Espiritu
contends the court erred by admitting Pittsley's expert accident reconstruction
testimony because the testimony was based on two false premises: (1) Dickinson was an experienced motorcycle
rider, and (2) Dickinson was sober at the time of the accident. We review a court's decision to admit expert
testimony for abuse of discretion. (
45.)
"[A]n
expert's opinion based on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural factors [citation], has no
evidentiary value [citation] and may be excluded from evidence." (Jennings
v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117;
accord, People v. Richardson (2008)
43 Cal.4th 959, 1008.) In this case,
however, the record does not show Pittsley's trial testimony was based on
unsupported assumptions.
Espiritu
has not identified nor have we located any place in the record indicating
Pittsley based his trial testimony on the assumption Dickinson was sober.
experienced motorcycle riders tend to ride in a particular place in the roadway
and he believed the collision occurred in this place, he did not base his
belief on the assumption Dickinson was an experienced rider. He acknowledged he did not know anything
about Dickinson's experience or ability riding motorcycles. Rather, he based his belief solely on the
physical evidence at the collision scene.
Accordingly, Espiritu has not established the court abused its
discretion in admitting Pittsley's testimony.
Given this conclusion, we need not address the People's assertion that
Espiritu forfeited this contention by failing to object to Pittsley's testimony
below.
III
Exclusion of
Evidence of Dickinson's Drug Use
A
Before
trial, defense counsel sought to admit and the prosecutor sought to exclude
under Evidence Code section 352 evidence of Dickinson's narcotics use. Defense counsel argued the court should allow
admission of the evidence as it was relevant to Dickinson's cause of death
because methamphetamine use increases hemorrhaging, which caused him to bleed
more and faster, leading to his death.
The prosecutor responded that the medical examiner determined the cause
of death to be multiple blunt force trauma, not methamphetamine use. The court found the evidence irrelevant and
excluded it.
During
trial, defense counsel renewed her
request to admit evidence of Dickinson's narcotics use, arguing the evidence
was necessary to counter Pittsley's assumption Dickinson was riding in the
right third of the left lane at the time of the accident because that is what an
experienced, sober motorcycle rider would do.
In response, the prosecutor pointed out Pittsley's opinions had more to
do with where the physical evidence placed Dickinson than with any assumption
about the behavior of an experienced motorcycle rider. Therefore, the prosecutor argued admission of
the evidence of Dickinson's narcotics use would be far more prejudicial than
probative. The court agreed with the
prosecutor's position, particularly absent the existence of any evidence
indicating Dickinson was driving in an erratic manner before the collision, and
reaffirmed its pretrial ruling excluding the evidence.
B
Espiritu
contends the court prejudicially erred in excluding the evidence because its
admission was necessary for him to counter Pittsley's assumption Dickinson was
sober at the time of the accident. We
review a trial court's ruling on the admissibility of evidence for abuse of
discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)
As we noted
in part II, ante, nothing in the
record indicates Pittsley based his opinions about how the collision occurred
on the assumption Dickinson was sober.
To the contrary, the record shows Pittsley knew Dickinson was possibly
impaired at the time of the collision.
Consequently, Espiritu has not established the evidence of Dickinson's
narcotics use was probative, much less more probative than prejudicial, and we
cannot conclude the court abused its discretion in excluding it.
IV
Refusal of
Pinpoint Gross Negligence Instruction
A
To instruct
the jury on the crime of gross vehicular manslaughter while intoxicated, the
court used a tailored version of CALCRIM No. 590. The instruction informed the jury,
"Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts
with gross negligence when: [¶] 1. He or she acts in a reckless way that
creates a high risk of death or great bodily injury; [¶] [and] [¶] 2. A reasonable person would have known that
acting in that way would create such a risk.
[¶] In other words, a person acts
with gross negligence when the way he or she acts is so different from the way
an ordinarily careful person would act in the same situation that his or her
act amounts to disregard for human life or indifference to the consequences of that
act. [¶]
The combination of driving a vehicle while under the influence of an
alcoholic beverage and violating a traffic law is not enough by itself to
establish gross negligence. In
evaluating whether the defendant acted with gross negligence, consider the
level of the defendant's intoxication, if any; the way the defendant drove; and
any other relevant aspects of the defendant's conduct."
Defense
counsel requested the court also give the jury a pinpoint instruction on the
definition of gross negligence. The
proposed instruction read: " 'Gross negligence' requires more than
ordinary carelessness, inattention or mistake in judgment. [¶]
'Gross negligence' means conduct which is more than ordinary
negligence. Ordinary negligence is the
failure to exercise ordinary or reasonable care. [¶]
'Gross negligence' refers to a negligent act which is aggravated,
reckless or flagrant and which is such a departure from what would be the
conduct of an ordinarily prudent, careful person under the same circumstances
as to be contrary to a proper regard for danger to human life or to constitute
indifference to the consequences of those acts.
[¶] The facts must be such that
the consequences of the negligent act could reasonably have been foreseen and
it must appear that the death or danger to human life was not the result of
inattention, mistaken judgment or misadventure but the natural and probable
result of an aggravated, reckless or flagrantly negligent act."
The
prosecution objected to the pinpoint instruction, arguing the definition of
gross negligence was adequately covered by CALCRIM No. 590 and the pinpoint
instruction might confuse the jury. The
court agreed CALCRIM No. 590 adequately covered the definition and declined to
give the pinpoint instruction.
B
Espiritu
contends the proposed pinpoint instruction expanded on CALCRIM No. 590 and
clarified the distinction between ordinary and gross negligence by: (1) adding "aggravated" and
"flagrant" to the definition, (2) requiring the consequences of the negligence
to be reasonably foreseen, and (3) informing the jury gross negligence is
"not the result of inattention, mistaken judgment or
misadventure." As the pinpoint
instruction supported his defense theory (i.e., he acted with ordinary
negligence rather than gross negligence), he contends the court was obliged to
give the instruction and prejudicially erred by refusing to do so.
The
propriety of a decision to give or refuse any particular instruction in any
particular case involves a mixed question of law and fact. As the question is a predominantly legal one,
we independently review it. (
733; People v. Shaw (2002) 97
Cal.App.4th 833, 838.)
" '
"[A] defendant has a right to an instruction that pinpoints the theory of
the defense . . . ." '
[Citation.] The court may,
however, 'properly refuse an instruction offered by the defendant if it
incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence.'
" (People v. Burney (2009) 47 Cal.4th 203, 246; accord,
120; People v. Canizalez (2011) 197
Cal.App.4th 832, 856–857.)
In this
case, the pattern instruction the court used adequately covered each of the
points for which Espiritu sought the pinpoint instruction. The pattern instruction conveyed the need for
grossly negligent conduct to be "aggravated" and "flagrant"
by informing the jury the conduct had to create "a high risk of death or
great bodily injury" and had to be "so different from the way an
ordinarily careful person would act in the same situation" that it
amounted to "disregard for human life or indifference to the
consequences" of the conduct.
(CALCRIM No. 590.) The pattern
instruction conveyed the need for the consequences of the grossly negligent
conduct to be reasonably foreseen by informing the jury "[a] person acts
with gross negligence when: [¶] . . .
[¶] [a] reasonable person would have
known that acting in that way would create such a risk." (CALCRIM No. 590.) Finally, the pattern instruction clarified
that gross negligence is "not the result of inattention, mistaken judgment
or misadventure" by informing the jury gross negligence "involves
more than ordinary carelessness, inattention, or mistake in
judgment." (CALCRIM No. 590.) A court is not required to give a pinpoint
instruction on a matter adequately covered by another instruction. (People
v. Clark (2011) 52 Cal.4th 856, 975.)
Accordingly, we conclude the court did not err by failing to give
Espiritu's requested pinpoint instruction on gross negligence.
Even if the
court should have given a pinpoint instruction, the error was harmless. Defense counsel's closing argument fully
presented the defense theory that Espiritu's conduct amounted to only ordinary
negligence and nothing in the court's instructions precluded the jury from so
finding. (See, e.g.,
1083, 1144-1145.)
V
Cumulative Error
Espiritu
contends we must reverse his convictions because the cumulative effect of the
above claimed errors prejudiced him. We
reject this argument as "[w]e have found no error that, either alone or in
conjunction with others, prejudiced [him]." (People
v. Williams (2013) 56 Cal.4th 165, 201.)
VI
Dismissal of
Counts 2 and 3 as Lesser Included Offenses
Espiritu
contends, the People concede, and we agree we must reverse Espiritu's
convictions for counts 2 and 3 because they are lesser included offenses of
count 1. A defendant may not be convicted
of both a greater and a lesser included offense. (People
v. Medina (2007) 41 Cal.4th 685, 701.)
Thus, when a jury finds a
defendant guilty of both a greater and a lesser included offense and there is
substantial evidence to support the conviction for the greater offense, the
greater offense controls and the lesser included offense must be reversed. (Id.
at pp. 701-702; People v. Moran
(1970) 1 Cal.3d 755, 763.)
VII
Custody Credits
Espiritu
was initially confined December 19, 2010, was released the same day, was
confined again on January 11, 2011, and released on January 12, 2011, and was
confined again on December 22, 2011. The
court subsequently sentenced him on April 30, 2012. The court awarded him 200 days of presentence
custody credit, consisting of 134 days of actual custody credit and 66 days of
conduct credit. Based on amendments to
section 4019, which took effect on October 1, 2011, Espiritu contends he is
entitled to additional presentence conduct credit for the time he served after
that date. He further contends failure
to award him additional presentence conduct credit for this time deprives him
of equal protection of the law. We
disagree.
Section
4019, which specifies the rate of presentence conduct credit an inmate in local
custody may earn, had undergone numerous revisions in the past several
years. (People v. Rajanayagam (2012) 211
Cal.App.4th 42, 48-50 (Rajanayagam)
[detailing the history of recent amendments]; People v. Garcia (2012) 209 Cal.App.4th 530, 533-540 [same].) At the time of Espiritu's offense, section
4019 allowed an inmate in local custody to earn up to six days of conduct
credit for every four days of actual custody.
(Former § 4019, subds. (b), (c), & (f), Stats. 2010, ch. 426, § 2,
eff. Sept. 28, 2010; People v. Ellis
(2012) 207 Cal.App.4th 1546, 1549.) As
of October 1, 2011, section 4019 allows an inmate in local custody to earn
up to four days of conduct credit for every two days of actual custody. (Amended § 4019, subds. (b), (c), & (f),
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; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, eff. Sept. 21, 2011,
operative Oct. 1, 2011; People v.
Of
pertinence here, subdivision (h) of amended section 4019 states, "The
changes to this section . . . 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." According to Espiritu, the
latter sentence creates an ambiguity, which should be interpreted to allow him
to earn credits for local time served after October 1, 2011, even though he
committed his crime before then.
However, as
the Rajanayagam court explained,
"subdivision (h)'s first sentence reflects the Legislature intended the
enhanced conduct credit provision to apply only to those defendants who
committed their crimes on or after October 1, 2011. Subdivision (h)'s second sentence does not
extend the enhanced conduct credit provision to any other group, namely those
defendants who committed offenses before October 1, 2011, but are in local
custody on or after October 1, 2011.
Instead, subdivision (h)'s second sentence attempts to clarify that
those defendant's who committed an offense before October 1, 2011, are to earn
credit under the prior law. However
inartful the language of subdivision (h), we read the second sentence as
reaffirming that defendants who committed their crimes before October 1, 2011,
still have the opportunity to earn conduct credits, just under prior law. [Citation.]
To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local
custody after the effective date reads too much into the statute and ignores
the Legislature's clear intent in subdivision (h)'s first sentence." (Rajanayagam,
supra, 211 Cal.App.4th at p. 52, fn.
omitted; see also, People v.
does not extend the enhanced rate to any other group, but merely specifies the
rate at which all others are to earn conduct credits"];
Cal.App.4th at p. 541 [the language of amended section 4019 does not entitle a
defendant who was sentenced after its effective date but whose crimes occurred
prior to its effective date to additional conduct credit].)
This
interpretation and its application to Espiritu does not deprive him of equal
protection of the law because, assuming he is similarly situated to inmates who
committed their offenses after the effective date of amended section 4019, the
Legislature nonetheless had a rational basis for treating the latter inmates
differently. Amended section 4019 was
part of larger legislation whose purpose was to "to reduce recidivism and
improve public safety, while at the same time reducing corrections and related
criminal justice spending.' " (
effective date of [amended section 4019], the Legislature took a measured
approach and balanced the goal of cost savings against public safety. The effective date was a legislative
determination that its stated goal of reducing corrections costs was best
served by granting enhanced conduct credits to those defendants who committed
their offenses on or after October 1, 2011.
To be sure, awarding enhanced conduct credits to everyone in local
confinement would have certainly resulted in greater cost savings than awarding
enhanced conduct credits to only those defendants who commit an offense on or
after the amendment's effective date.
But that is not the approach the Legislature chose in balancing public
safety against cost savings.
[Citation.] Under the very
deferential rational relationship test, we will not second-guess the
Legislature and conclude its stated purpose is better served by increasing the
group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding
enhanced conduct credit to only those defendants who committed their offenses
on or after October 1, 2011."
(Rajanayagam, at pp. 55-56.)
DISPOSITION
The
convictions for counts 2 and 3 are reversed.
The trial court is directed to modify the abstract of judgment
accordingly and to send a copy of the amended abstract of judgment to the
affirmed.
McCONNELL,
P. J.
WE CONCUR:
AARON, J.
IRION, J.
name="_ftn1" title="">[1] Further statutory references are to the Penal Code unless
otherwise stated.
name="_ftn2" title="">[2] At the preliminary hearing, during cross-examination by
defense counsel, Pittsley testified the collision in this case was not
consistent with the scenario of Dickinson's motorcycle having cut off
Espiritu's car. He based this opinion in
part on the assumption Dickinson was maintaining his lane and a consistent
speed at the time of the accident. He
acknowledged an intoxicated person would have a difficult time doing either. He also acknowledged blood tests showed there
were controlled substances in Dickinson's system at the time of the accident
and there was a possibility Dickinson was impaired. However, he further testified this
information did not change his opinion that Dickinson was not at fault for the
accident.
