P. v. >Hermosillo>
Filed 8/27/13 P. v. Hermosillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOSE HORACE HERMOSILLO,
Defendant and
Appellant.
H037917
(Santa Clara
County
Super. Ct.
No. C1070962)
Defendant
Jose Horace Hermosillo entered a negotiated plea of guilty to three counts
related to a burglary and vandalism of
a vehicle committed in November 2010, six counts related to a burglary of Valley
Medical Center
committed in March 2010, and one count of false application for a driver’s
license committed in January 2008. And,
after a court trial, the trial court found true an allegation for purposes of
the Three Strikes law and nine prior-prison-term allegations for purposes of
sentence enhancements. It sentenced
defendant to 13 years and eight months in prison. On appeal, defendant contends that (1) the
trial court erred by sentencing him to a term in excess of the plea bargain,
(2) his 16-month consecutive sentence for vandalism constitutes improper
multiple punishment (Pen. Code, § 654),href="#_ftn1" name="_ftnref1" title="">[1]
(3) he received ineffective assistance of counsel because his counsel failed to
object to the consecutive sentence for vandalism, and (4) he is entitled to
additional presentence custody credits
via retroactive application of the October 2011 amendment to section 4019,
which facially applies to defendants who committed their crimes after October
1, 2011. We disagree and affirm the
judgment.
background
Defendant’s
counsel announced the terms of the plea bargain as follows: “Your Honor, he is going to plead . . . to
everything and admit the priors conditionally. [¶] We are going to have a court
trial on that at some point. And he’ll
waive his right to a jury trial as to that. [¶] . . . [¶] And for that he’s
going to receive a top of eight years, eight months. [¶] . . . [¶] Also, he’s
going to be out of custody on bond for 90 days but with the proviso with a >Cruz[href="#_ftn2" name="_ftnref2" title="">[2]]
waiver he has to show up here every 30 days.
And the Court will continue it again.
But the Court wants to have some handle on him and not just out of
custody for the 90 days without the Court having some control on him. [¶] . . .
[¶] And we’ve agreed that the two counts on the ID impersonating somebody, and
also the perjury are [section] 654 which gives him a maximum 22 years, four
months.â€
The trial
court then asked defendant whether he understood the proposed disposition, and
defendant responded “I do.†The trial
court thereafter specified: “Now, you
need to understand if you fail to appear at sentencing or at any of these
30-day periods that I set, the plea bargain will not be in effect. And I will be able to impose any sentence
authorized by law.†To this, defendant
replied, “I understand.†The trial court
then obtained waivers of defendant’s constitutional rights and accepted
defendant’s guilty pleas. It ordered
defendant to appear in 30 days for a court trial and sentencing. And it reminded defendant that “the maximum
term you could get in this case under the pleas that you’ve entered is 22 years
and four months.†To this, defendant
replied, “I understand.â€
Defendant
failed to appear as ordered, the trial court issued a href="http://www.fearnotlaw.com/">bench warrant, and defendant was
apprehended. At a court trial on the
prior-conviction allegations, the trial court found the allegations true.
At sentencing, defendant’s counsel
acknowledged that defendant had failed to appear as ordered but offered that he
had “medical records†that defendant “was--went down to be treated†to show
“the court that he was in custody at that time.†He asked the trial court to “be lenient in
this case†and “grant the eight-year four-month that he pled to.†The People replied that defendant was “a
one-man crime wave†who had been released on a Cruz waiver over the People’s objection and not only failed to
appear but also “picked up a new case in the meantime.†They noted that the probation department was
recommending 16 years and eight months.
Defendant then apologized for missing the court date and explained: “I didn’t handle the stress well and I
reverted to drug use and had a relapse. [¶] My life spun out of control very
quickly. I was in a state of
oblivion. And I missed the court date
all together. I was down at Valley
Medical being treated for a prostate issue.
I didn’t realize I had missed court until the bail bondsman showed up at
my home to arrest me. I realize that
addiction is the core for every legal problem.
And I realize I need help. I
failed the court in my commitment. I
failed my family. And also I failed
myself. And I am truly sorry for the bad
choices I have made up to this point.â€
The trial court explained as
follows: “In 2009 you apparently had the
opportunity of a lifetime when Judge Brock struck your priors and sentenced you
to 16 months on three different cases which had a total of 11 counts. And within six months of that sentence you
were committing these offenses. [¶] So while you--you have a drug problem,
clearly there has to have been at some point during the past 36 years when
you’ve been using drugs, that you could have taken some positive steps towards
overcoming that drug use. And you
haven’t done that. [¶] And, consequently, I think that--[¶] And, in addition, I
want to point out when you were out of custody on the VMC cases you then
committed the burglary of the automobile case.
So you had your chances and you just haven’t ever taken advantage of
them. And I’m sorry that you haven’t. But I think that the sentence that I have
indicated to counsel of three [sic]
years, eight months is appropriate. [¶] So under--at this time--the court will
deny probation. [¶] And the defendant will be committed to the California
Department of Corrections and Rehabilitation for 13 years and eight
months.â€
term exceeding the plea bargain
“Under
section 1192.5, if a plea agreement is accepted by the prosecution and approved
by the court, the defendant ‘cannot be sentenced on the plea to a punishment
more severe than that specified in the plea.’ â€
(People v. Masloski (2001) 25 Cal.4th 1212, 1217.) The statute further provides that, if the
trial court approves a plea bargain, it must inform the defendant before the
plea that its approval is not binding, that the court may withdraw its approval
in light of further consideration and that, if it does, “ ‘the defendant shall
be permitted to withdraw his or her plea if he or she desires to do so. . . .’
†(Cruz, supra, 44 Cal.3d at p. 1250, italics omitted.)
In Cruz, the defendant pleaded guilty
pursuant to an agreement which provided that he would receive the lower term of
imprisonment or probation with local custody, at his option. The trial court, however, did not admonish
him in accordance with section 1192.5.
The defendant failed to appear for sentencing. When he eventually appeared for sentencing,
the trial court rejected his attempt to withdraw his guilty plea and sentenced
him to the middle term of imprisonment.
The Court of Appeal affirmed the judgment, but the Supreme Court
reversed, holding that “[t]he imposition of an additional or enhanced sentence
for a separately charged offense without the benefit of a trial on that charge,
and in the absence of a knowing and intelligent waiver, is clearly offensive to
the principles of due process.†(Cruz, supra, 44 Cal.3d at p.
1253.) In reaching this conclusion, the
court rejected the idea that failing to appear breached an implied term of the
plea bargain that relieved the trial court of the restrictions of section
1192.5. Such failure to appear is, rather,
a separate offense that may be punished in a separate proceeding.
name="citeas((Cite_as:_2003_WL_21404818,_*4_(C">The court in Cruz
also stated, however, that a defendant, under specified circumstances, could
give up the protections of section 1192.5:
“We do not mean to imply . . . that a defendant fully advised of his or
her rights under section 1192.5 may not expressly waive those rights, such that
if the defendant willfully fails to appear for sentencing the trial court may
withdraw its approval of the defendant’s plea and impose a sentence in excess
of the bargained-for term. Any such name="SR;2422">waiver, of course, would have to be obtained at the time of
the trial court’s initial acceptance of the plea, and it must be knowing and
intelligent.†(Cruz, supra, 44 Cal.3d at p. 1254,
fn. 5.)
Such a waiver
is commonly called a “Cruz waiver.â€
(See People v. Masloski, supra, 25 Cal.4th at p. 1222; People
v. Vargas (2007) 148 Cal.App.4th 644, 646.)
Defendant
contends that the trial court erred by imposing a sentence greater than that
agreed upon in the plea agreement. He
initially describes the supposed error as the trial court’s failure to (1) give
him the admonitions required by section 1192.5, and (2) elicit from him a
knowing and intelligent Cruz
waiver. But we agree with the People
that defendant’s failure to obtain a name="SR;2540">certificate of probable name="SR;2543">cause is fatal to his attempt to challenge the sufficiency
of the section 1192.5 admonitions and >Cruz waiver.
“A
defendant who has pleaded guilty or nolo contendere to a charge in the superior
court, and who seeks to take an appeal from a judgment of conviction entered
thereon†must fully comply with section 1237.5 and rule 8.304(b) of the
California Rules of Court, which require that the defendant secure a
certificate of probable cause in order to challenge the validity of the plea. (People v. Mendez (1999) 19 Cal.4th
1084, 1088.) In the absence of full
compliance and a certificate of probable cause, the reviewing court may not
reach the merits of any issue challenging the validity of the plea, but must
order dismissal of the appeal. (Id.
at p. 1099.) The California Supreme
Court has expressly disapproved the practice of applying the rule loosely in
order to reach issues that would otherwise be precluded. (Id. at pp. 1098-1099.)
In determining whether
section 1237.5 applies to a challenge of a sentence imposed after a plea of
guilty or no contest, we must look to the substance of the appeal. The crucial
issue is what the defendant is challenging, not the time or manner in which the
challenge is made. Therefore, we focus
on whether the defendant’s challenge to the sentence is in substance a
challenge to the validity of the plea, thus rendering the appeal subject to the
requirements of section 1237.5. (People
v. Buttram (2003) 30 Cal.4th 773, 781-782.)
Here, defendant’s plea bargain unquestionably included
a Cruz waiver. But whether defendant received adequate
statutory warnings concerning his plea bargain and gave a knowing and
intelligent Cruz-waiver are questions that go to the validity of the
proceedings in which the plea was taken, not
any issue that arose after entry of the plea.
These questions are within the scope of section 1237.5 and require a name="SR;2788">certificate of probable name="SR;2791">cause before they may be raised on appeal. (Cf. People
v. Panizzon (1996) 13 Cal.4th 68, 76, fn. 6 [inadequate admonishment regarding
waiver of appellate rights in plea agreement subject to § 1237.5].) Since defendant did not obtain the requisite name="SR;2836">certificate of probable name="SR;2839">cause, we will not consider the questions.
Defendant, however, also describes the supposed
error as a violation of Cruz because
his failure to appear was not willful.
In essence, this aspect of defendant’s challenge accepts the validity of
the plea agreement and his Cruz
waiver but contests the evidence justifying a sentence in excess of the plea
bargain sentence.
A certificate of probable cause is not required
where a defendant does not challenge the original validity of the plea but
asserts that errors were committed in proceedings subsequent to the plea for
the purpose of determining the penalty to be imposed. (People v. Kaanehe (1977) 19 Cal.3d 1,
8.)
On the merits, however,
defendant cannot prevail.
In analogous bail
forfeiture cases, a defendant’s failure to appear “is presumptively without
sufficient excuse.†(People v.
Beverly Bail Bonds (1982) 134 Cal.App.3d 906, 911.) It was therefore defendant’s burden to prove
that his failure to appear was not willful.
(Id. at pp. 911-913.)
“We generally apply the familiar
substantial evidence test when the sufficiency of the evidence is at issue on
appeal. Under this test, ‘ “we are bound
by the established rules of appellate review that all factual matters will be
viewed most favorably to the prevailing party [citations] and in support of the
judgment . . . . ‘In brief, the
appellate court ordinarily looks only at the evidence supporting the
successful party,name="sp_7047_309"> and disregards the contrary
showing.’ [Citation.] All conflicts, therefore, must be resolved in
favor of the respondent.†’ [Citation.]
name="sp_999_6">“But this test is typically
implicated when a defendant contends that the plaintiff succeeded at trial in
spite of insufficient evidence. In the
case where the trier of fact has expressly or implicitly concluded that the
party with the burden of proof did not carry the burden and that party appeals,
it is misleading to characterize the failure-of-proof issue as whether
substantial evidence supports the judgment.
This follows because such a characterization is conceptually one that
allows an attack on (1) the evidence supporting the party who had no burden of
proof, and (2) the trier of fact’s unassailable conclusion that the party with
the burden did not prove one or more elements of the case (Oldenburg v.
Sears, Roebuck & Co.
(1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive judge of the
credibility of the evidence and can reject evidence as unworthy of credence]; name="sp_4041_466">name="citeas((Cite_as:_196_Cal.App.4th_456,_*4">Hicks v. Reis (1943) 21
Cal.2d 654, 659-660 [trial court is entitled to reject in toto the testimony of
a witness, even if that testimony is uncontradicted]).
name="______#HN;F6">“Thus, name="SR;5158">where the issue name="SR;5161">on appeal turns name="SR;5164">on a failure name="SR;5167">of proof at name="SR;5170">trial, the question
for a reviewing
court becomes whether
the evidence compels
a finding in name="SR;5185">favor of the name="SR;5188">appellant as a name="SR;5191">matter of law. [Citations.] Specifically, name="SR;5197">the question becomes
whether the appellant’s
evidence was (1)
‘uncontradicted and name="SR;5208">unimpeached’ and (2)
‘of such a name="SR;5214">character and weight
as to leave name="SR;5220">no room for name="SR;5223">a judicial determination
that it was name="SR;5229">insufficient to support
a finding.’ †(In re I.W.
(2009) 180 Cal.App.4th 1517, 1527-1528.)
Here, the
case is the ordinary one posing evidentiary conflicts. Defendant had the burden to prove that his
failure to appear was not willful. The
trial court concluded that plaintiff failed to carry this burden. That is the end of our inquiry. We decline defendant’s invitation to address
whether he “did not intend to miss the trial on the priors . . . because he was
being treated for a medical condition.â€
It is not our function to retry the case.
multiple punishment
name="sp_999_8">name=B017172002641325>The
evidence as to count 9 (automobile burglary) and count 10 (automobile
vandalism) was as follows: defendant
walked up to the victim’s vehicle, cut a hole in the convertible top, and
reached inside; defendant then walked to the other side of the vehicle, cut
another hole in the top, and reached inside; defendant then left the scene when
a witness began walking in his direction; the witness left the area to look for
the car’s owner; when he returned with the owner, he saw defendant with his arm
inside the vehicle.
In arriving at defendant’s
sentence, the trial court imposed a sentence of one year and four months for
the automobile burglary and, consecutive to that term, one year and four months
for vandalism of the vehicle.
Defendant contends that his
consecutive sentence for vandalism should have been stayed under section 654
because the burglary and vandalism “were part of an indivisible transaction
involving the intent to steal.†We
disagree with defendant’s analysis.
Section 654 provides in part, “(a)
An act or omission that is punishable in different ways by different provisions
of law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. . . .â€
“[I]t is well settled that section
654 applies not only where there was but one act in the ordinary sense, but
also where there was a course of conduct which violated more than one statute
but nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the intent and
objective of the actor.†(People v.
Perez (1979) 23 Cal.3d 545, 551.) If
all the offenses were incident to one objective, the defendant may not be
punished for more than one, e.g., a defendant who attempts murder by setting
fire to the victim’s bedroom could not be punished for both arson and attempted
murder, because his primary objective was to kill, and the arson was the means
of accomplishing that objective and thus merely incidental to it. (Ibid.) “On the other hand, if the evidence discloses
that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for
the independent violations committed in pursuit of each objective even though
the violations were parts of an otherwise indivisible course of conduct.†(Ibid.) For example, the objectives to drive while
intoxicated and to drive with a suspended license were separately punishable,
though they occurred simultaneously. (Id.
at p. 552.) The purpose of the
protection against multiple punishment is to insure that the defendant’s
punishment will be commensurate with his criminal culpability. (Id. at p. 552, fn. 4.)
“A trial
court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by
substantial evidence.†(People v.
Blake (1998) 68 Cal.App.4th 509, 512.)
name="citeas((Cite_as:_2011_WL_856427,_*5_(Cal">Here, the trial court
specifically found that the burglary and vandalism were divisible: “Count nine--pardon me--is the burglary of
the automobile. I am finding that that
was a separate occasion from count 10.
The [vandalism] of the automobile at the time of the [offense] [was]
when the convertible top was initially cut into. That will be the [vandalism]. The defendant did try to find property in
there. He was observed by a witness. [¶]
He left the area when the witness came back with the owner of the car. They found the defendant again with his hand
inside the ripped convertible top, so I believe that is the separate--that
makes the [burglary] a separate occasion. [¶] And I will impose 16 months
consecutive on count nine. [¶] 16 months consecutive on count 10.â€
The evidence supports that
defendant cut into the convertible top on one occasion, left the scene,
returned on another occasion, and put his hand inside the vehicle. Defendant’s point that there was a single
objective to steal is simply a view of the evidence at odds with the evidence
supporting the judgment.
ineffective assistance of counsel
When a defendant is name="SR;2824">sentenced on multiple felony counts under the Three Strikes
law because he or she has previously been convicted of one or more serious or
violent felony offenses, the trial court must impose consecutive
sentences for all the current convictions that were
committed on the same occasion and arose from the same set of operative
facts. (§§ 667, subd. (c)(6), (7),
1170.12, subd. (a)(6), (7).) The trial
court retains discretion to impose either concurrent or name="SR;2907">consecutive sentences for crimes
committed on the same occasion or arising from the same set of operative
facts. (§§ 667, subd. (c)(6), (7),
1170.12, subd. (a)(6), (7).)
name=SearchTerm>Defendant
contends that he received ineffective assistance of
counsel because his trial counsel failed to object to the
trial court’s imposition of the consecutive name="SR;1563">sentence for count 10.
According to defendant, the trial court’s “stated grounds for imposing
consecutive sentences . . . indicate that it believed†that a mandatory
consecutive sentence was compelled but that its articulated reason for imposing
a consecutive sentence (the burglary and vandalism were separate occasions)
indicates that a consecutive sentence was not mandatory. Defendant concludes that, had trial counsel
objected to the consecutive sentence on the ground that a consecutive sentence
was discretionary, the trial court would have exercised its discretion to
impose a concurrent sentence for count 10.
There is no merit to defendant’s contention.
“Under both
the Sixth Amendment to the United States Constitution and article I, section
15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.†(>People v. Ledesma (1987) 43 Cal.3d 171,
215.) That right “entitles the defendant
not to some bare assistance but rather to effective
assistance.†(Ibid.) But the “Sixth
Amendment guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.†(>Yarborough v. Gentry (2003) 540 U.S. 1,
8.)
“To
establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell
below an objective standard of reasonableness under prevailing professional
norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e.,
there is a reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the defendant. (People
v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim
that his counsel was ineffective, the appellate court must consider whether the
record contains any explanation for the challenged aspects of representation
provided by counsel. “If the record
sheds no light on why counsel acted or failed to act in the manner challenged,
‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ [citation], the
contention must be rejected.†’ †(>People v. Samayoa (1997) 15 Cal.4th 795,
845.)
Defendant
bears a burden that is difficult to carry on direct appeal. (People
v. Lucas (1995) 12 Cal.4th 415, 436.)
Our review is highly deferential; we must make every effort to avoid the
distorting effects of hindsight and to evaluate the challenged conduct from
counsel’s perspective at the time. (>In re Jones (1996) 13 Cal.4th 552, 561; >Strickland v. Washington,> supra, 466 U.S. at p. 689.) In
evaluating whether trial counsel’s representation was deficient “we accord
great deference to the tactical decisions of trial counsel in order to avoid
‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting
counsel “to defend himself [or herself] against a claim of ineffective
assistance after trial rather than to defend his [or her] client against
criminal charges at trial.†’ †(>In re Fields (1990) 51 Cal.3d 1063,
1069.) A court must indulge a strong
presumption that counsel’s acts were within the wide range of reasonable
professional assistance. (>Strickland v. Washington,> supra, at p. 689; People v. Hart (1999)
20 Cal.4th 546.) The burden is to
establish the claim not as a matter of speculation but as a matter of
demonstrable reality. (>People v. Garrison (1966) 246 Cal.App.2d
343, 356.) As to failure to object in
particular, “[a]n attorney may choose not to object for many reasons, and the
failure to object rarely establishes ineffectiveness of counsel.†(People
v. Kelly (1992) 1 Cal.4th 495, 540.)
This is the case especially when trial counsel might reasonably have
concluded that an objection would be futile.
(People v. Price (1991) 1
Cal.4th 324, 387.)
There
is ample reason why trial counsel may have concluded that objecting
to imposition of the consecutive sentence
was futile.
Most
obviously, the trial court nowhere explicitly states that it was imposing a
mandatory consecutive sentence. Contrary to defendant’s premise, it is
ambiguous whether the trial court imposed a mandatory or discretionary
consecutive sentence.
In the context of the trial court’s articulated desire to impose name="SR;3284">a consecutive sentence, trial counsel could have interpreted
the separate-occasion statements as reflective of the trial court’s belief that
defendant’s vandalism offense was worthy of a consecutive
sentence,href="#_ftn3" name="_ftnref3" title="">[3] not that a consecutive name="SR;3329">sentence was mandatory.
Given that the trial court did not address the second, independent
requirement for a mandatory consecutive sentence (separate operative facts), we
presume that the trial court imposed a discretionary consecutive sentence. (People v. Jacobo (1991) 230
Cal.App.3d 1416, 1430 [an appellate court presumes that the trial court knew
and applied the correct statutory and case law]; cf. People v. Alvarez
(1996) 49 Cal.App.4th 679, 695 [an appellate court will not conclude that the trial
court misunderstood the scope of its sentencing discretion “in the absence of
some affirmative showing that it misunderstood its discretionâ€].) Objection was therefore futile.
In any event,
had trial counsel believed that the trial court was erroneously imposing a
mandatory consecutive sentence, counsel could nevertheless have reasonably
refrained from objecting after concluding that, upon
objection, the trial court would likely (1) overrule the objection and clarify
that it was imposing a discretionary consecutive sentence, or (2) sustain the
objection and impose a discretionary consecutive sentence
by reiterating its already-expressed separate-occasion justification. (Ante,
fn. 3.)
Defendant
simply fails to affirmatively demonstrate ineffective assistance of counsel.
presentence
custody credits
Defendants who
committed their crimes on or after October 1, 2011, are eligible for
presentence conduct credits calculated on the basis of two days of conduct
credit for every two days of actual custody.
(§ 4019, subds. (b), (c) & (f).)
Defendants who committed their crimes before October 1, 2011, are
eligible for conduct credits at the previous rate of two days for every four
days in custody. (Id. subd. (h).)
Notwithstanding
the express legislative intent that the changes to section 4019, operative
October 1, 2011 (hereafter the October 2011 amendment), are to have prospective
application only--i.e., to crimes committed on or after the effective date of
the statute--defendant contends that the October 2011 amendment to section 4019
violates the equal protection clauses of the federal and California
Constitutions if it is not applied retroactively because it treats a defendant
who committed a crime before October 1, 2011, differently than if he or she
committed the same crime after the statute’s effective date. Defendant cites In re Kapperman (1974)
11 Cal.3d 542, 544-545 (Kapperman) and People v. Sage (1980) 26
Cal.3d 498, 507-508 in support of his equal protection argument. He seeks an additional 178 days of
presentence credit.
To succeed on
an equal protection claim, “a defendant must first show that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner.†(>People v. Kennedy (2012) 209 Cal.App.4th
385, 396 (Kennedy).)
In
People v. Brown (2012) 54 Cal.4th 314 (name="SR;1640">Brown), the California Supreme Court expressly
determined that neither Kapperman nor Sage supports an equal
protection argument, at least insofar as conduct credits are concerned. (Id. at pp. 329-330.) In rejecting an inmate’s argument that
January 2010 amendments to section 4019 should apply retroactively, the court
explained “the important correctional purposes
of a statutename="SR;1704"> authorizing incentives name="SR;1706">for good behavior
[citation] are not
served by rewarding name="SR;1715">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 name="SR;1744">section 4019 took
effect are not
similarly situated necessarily
follows.†(Brown, supra, at pp. 328-329.)
Addressing
the inmate’s equal protection claims, the court distinguished Kapperman
on the grounds that it addressed custody credits, rather than conduct
credits. (Brown, supra, 54 Cal.4th at p.
330.) Conduct credits must be earned by
a defendant, whereas custody credits are constitutionally required and awarded
automatically on the basis of time served.
“Credit for time
served is given without
regard to behavior, and thus does not entail the
paradoxical consequences of applying retroactively a statute intended to create
incentives for good behavior. Kapperman does not hold or suggest
that prisoners serving time before and after the effective date of a statute
authorizing conduct credits are
similarly situated.†(Ibid.)
Concerning
Sage, the court
acknowledged that “one practical effect of [that
decision] was to extend presentence conduct credits retroactively to detainees
who did not expect to receive them, and whose good behavior therefore could not
have been motivated by the prospect of receiving them.†(Brown, supra, 54 Cal.4th at p. 329.) However, it declined to read Sage as
implicitly holding that prisoners serving time before and after a conduct
credit statute takes effect are similarly situated for purposes of equal
protection, because that proposition was not considered in the case. (Ibid.)
Defendant’s
reliance on People v. Frye (1966) 221 N.E.2d 262 (Frye), cited in a footnote in Kapperman, supra, 11 Cal.3d at page 547, footnote 6, is also erroneous. This Illinois case, similar to Kapperman, dealt with actual custody, and not
the presentence conduct credits that we are concerned with here. Moreover, the date that was considered
potentially arbitrary or fortuitous in the equal protection analysis was the date
of conviction, a date out of a defendant’s control, and not the date on which
the crime was committed. (Frye, supra, at pp. 264-265.)
The Brown
court finally resolved the equal protection issue by concluding that, “name="SR;1997">equal protection does
not require former section 4019 to be applied retroactively.†(Brown, supra, 54 Cal.4th at p. 330.)
Although the Brown
decision concerned the January 2010 version of section 4019, we recently
held that there is no reason why the reasoning and holding in Brown cannot
be extended to the October 2011 amendment to section 4019. (Kennedy,> supra, 209 Cal.App.4th at pp. 396-397;
accord, People v. Ellis (2012) 207 Cal.App.4th 1546, 1552.)
name="OLE_LINK1">Moreover, in observing that the October 2011 amendment to
section 4019 has prospective application only, the Brown court noted that the defendant had filed a supplemental brief
in which he contended that he was entitled to retroactive presentence conduct
credits under the 2011 amendment. It
then observed that the amendment did not assist the defendant because the “name="SR;8291">changes name="SR;8292">to presentence credits
expressly ‘apply >prospectively . . . to
prisoners who are
confined to a
county jail [or
other local facility]
for a crime
committed on or
after October 1, 2011.’ [Citation.] Defendant committed name="SR;8345">his offense in name="SR;8348">2006.†(name="SR;8350">Brown,
supra, 54 Cal.4th at p. 323, fn. 11.) Similarly, here, defendant committed his
offenses in 2008 and 2010.
The right to
equal protection does not prevent the Legislature from limiting the increased
level of presentence conduct credits to detainees who committed their crimes on
or after October 1, 2011. We therefore
reject defendant’s equal protection challenge to the October 2011 amendment of
section 4019.
Alternatively,
defendant seeks an additional 75 days of presentence custody credit (from
October 1, 2011, until his sentencing on January 13, 2012) on the theory that
the October 2011 amendment applies to prisoners confined after October 1, 2011,
for crimes committed before October 1, 2011.
But he cites no authority for the proposition.
DISPOSITION
The
judgment is affirmed.
Premo,
J.
WE CONCUR:
Rushing, P.J.
Elia, J.
id=ftn1>
href="#_ftnref1" name="_ftn1" title=""> [1]
Further unspecified statutory references are to the Penal Code.
id=ftn2>
href="#_ftnref2" name="_ftn2" title=""> [2]
People v. Cruz (1988) 44 Cal.3d 1247, 1250 (waiver of right to withdraw
plea if trial court imposes sentence in excess of plea-bargained sentence) (>Cruz).