P. v. Hale
Filed 5/30/13 P. v. Hale CA6
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opinion has not been certified for publication or ordered published for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.
JAMES A. HALE,
Defendant and
Appellant.
H037877
(Santa Clara
County
Super. Ct.
No. C1079349)
In
September 2011, defendant James A. Hale pleaded guilty to
§§ 459, 460, subd. (b)),
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fraudulent use of an access card (§§ 484g, subd. (a), 487), possessing a forged
driver’s license (§ 470b), using personal identifying information without
authorization (§ 530.5, subd. (a)), false personation (§ 529), and misdemeanor
falsely identifying himself to a peace officer (§ 148.9). The offenses took place on or about June 8, 2010. Defendant also admitted that he had a prior
strike (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison
terms (§ 667.5, subd. (b)). In
December 2011, the trial court denied defendant’s Romero motion
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and sentenced him to prison for six years.
The court granted defendant 835 days of custody credits, consisting
of 557 actual days plus 278 days conduct credit.
On appeal,
defendant contends that he is entitled to additional presentence conduct credit
pursuant to the version of section 4019 operative October 1, 2011.
For reasons that we will explain, we will affirm the judgment.
In 2010,
defendant was charged by information with second
degree burglary (§§ 459, 460, subd. (b); count 1), fraudulent use of
an access card (§§ 484g, subd. (a), 487; count 2), possessing a forged driver’s
license (§ 470b; count 3), using personal identifying information without
authorization (§ 530.5, subd. (a); count 4), false personation (§ 529; count
5), and misdemeanor falsely identifying himself to a peace officer (§ 148.9;
count 6). The offenses allegedly took
place on or about June 8, 2010. The information further alleged that
defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12) and had served
five prior prison terms (§ 667.5, subd. (b)).
In
September 2011, defendant pleaded guilty to all counts and admitted the prior
strike allegation and four prior prison term allegations. The remaining prior prison term allegation
was stricken on motion of the People.
Defendant entered his pleas and admissions with the understanding that
he would receive a “six year sentence top†and that he could bring a
Defendant
thereafter filed a Romero motion,
requesting that the trial court strike his strike. The People filed opposition to the
motion. On December 16, 2011, the court denied the motion and
sentenced defendant to prison for six years. The sentence consists of four years
(double the middle term) on count 1, and concurrent terms of
four years (double the middle term) each on counts 2 through 4, plus
consecutive terms of one year each for two prison priors. The court stayed the term on count 5
pursuant to section 654, and struck the punishment for the two remaining
prison priors. The court granted
defendant 835 days of custody credits, consisting of 557 actual days
plus 278 days conduct credit.
Regarding count 6, the court imposed a one-year jail term, which
was deemed satisfied by credit for time served.
Defendant
filed multiple notices of appeal from the judgment. While the appeal was pending, defendant filed
a motion in the trial court seeking additional presentence conduct credit. The People filed opposition to the
motion. The court denied the motion
without prejudice, believing the court lacked jurisdiction due to the pending
appeal.
Defendant
thereafter filed a “renewed†motion in the trial court seeking additional
presentence conduct credit. The People
filed opposition to the motion. In
October 2012, the court denied the motion, stating that the court did not have
jurisdiction to rule on the motion and that, even if the court did, defendant
was not entitled to additional presentence custody credits. Defendant filed a notice of appeal from the
court’s order.
Defendant
was in presentence custody before and after the operative date of the current
version of section 4019. For his time in
presentence custody during the latter time period, defendant contends that the
trial court should have used the current version of section 4019 to calculate
his conduct credit. Under that version,
defendant argues that he is entitled to an additional 38 days conduct credit.
The
Attorney General contends that defendant is not entitled to any additional
conduct credit.
The current
version of section 4019 became operative on October 1, 2011. (People
v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1550 (Ellis).) This version
generally provides that a defendant may earn conduct credit at a rate of two
days for every two-day period of actual custody. (§ 4019, subds. (b), (c) &
(f).) Unlike some prior versions of the
statutes addressing conduct credit, the current version of section 4019
does not exclude a defendant with a current serious felony conviction, or a
prior serious or violent felony conviction, from the specified conduct credit
rate. (See Stats. 2009, 3d Ex. Sess.
2009‑2010, ch. 28, § 50, eff. Jan. 25, 2010 [former section 4019,
subds. (b)(2) & (c)(2)]; Stats. 2010, ch. 426, § 1, eff. Sept. 28,
2010 [former section 2933, subd. (e)(3)]; People
v. Lara (2012) 54 Cal.4th 896, 899, 906, fn. 9.) However, the current version of
section 4019 states: “The changes
to this section [regarding two-for-two credits] enacted by the act that
added this subdivision 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.â€
(§ 4019, subd. (h).)
In this
case, defendant committed his offenses on or about June 8, 2010, prior to
the October 1, 2011 operative date of the current version of section 4019. Defendant acknowledges that his conduct
credit was “correctly calculated†under prior law for his time in actual
custody from the date of arrest to September 30, 2011. However, for his time in actual custody
contends that the October 2011 version of section 4019 should be used to
calculate his conduct credit. In other
words, his conduct credit should be calculated using two different rates.
In support
of his argument that the October 2011 version of section 4019 should be used to
calculate a portion of his conduct credit, defendant quotes part of the
following language from People v. Brown
(2012) 54 Cal.4th 314 (Brown), which
addressed a prior amendment to section 4019 operative January 25, 2010: “To apply former section 4019 prospectively
necessarily means that prisoners whose custody overlapped the statute’s
operative date (Jan. 25, 2010) earned credit at two different rates.†(Brown,
supra, at p. 322.) Defendant contends that, although the
to the October 2011 version of section 4019, “there is no reason why the same
analysis would not apply.†Defendant’s
reliance on Brown is
unpersuasive. As explained in
42 (Rajanayagam): “Brown,
supra, 54 Cal.4th at page 322,
includes language that supports the conclusion the Supreme Court approved
earning conduct credits at two different rates and thus the date when a
defendant committed an offense is not dispositive. But in Brown
the Legislature did not expressly declare whether the January 25, 2010,
amendment was to apply retroactively or prospectively. (Id.
at p. 320.) Here, the Legislature did
expressly state the current version of section 4019 is to apply prospectively
only to defendants who commit their offenses on or after October 1, 2011.†(Rajanayagam,
supra, at p. 52, fn. 4.)
Defendant
also relies on the following language in subdivision (h) of section 4019
to support his argument that the current version should be used to calculate
his conduct credit for time in actual custody on and after October 1,
2011: “The changes to this section
[regarding two-for-two credits] enacted by the act that added this subdivision
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.†(Id., subd. (h).)
According to defendant, “[t]his second sentence is significant because,
if the first sentence intended to limit the statute’s application to only those
inmates whose crimes occurred after October 1, 2011, then the second sentence
would not be necessary,†and a statute should be construed to avoid rendering
portions of it superfluous.
In support
of this argument in his opening brief, defendant relied on dicta from this
court’s decision in People v. Olague
(2012) 205 Cal.App.4th 1126, review granted August 8, 2012, S203298, review
dismissed and cause remanded March 20, 2013.
As the California Supreme Court granted review and ultimately dismissed
review, the opinion may no longer be relied on or cited. (People
v. Kennedy (2012) 209 Cal.App.4th 385, 400 (Kennedy); Cal. Rules of Court, rules 8.1105(e)(1), 8.528(b)(3),
8.1115(a).)
In his
reply brief, defendant acknowledges that his statutory interpretation argument
was rejected in Ellis,
He contends that both cases were wrongly decided.
In
October 1, 2011 version of section 4019 “applies only to eligible prisoners
whose crimes were committed on or after that date.†(Ellis,
supra, 207 Cal.App.4th at p. 1548.) The Ellis
court held that because the Legislature specified that the amendment applied
“prospectively†(§ 4019, subd. (h)), its “clear intent was to have the enhanced
rate apply only to those defendants
who committed their crimes on or after October 1, 2011. [Citation.]â€
(Ellis, supra, at p. 1553.) The
Ellis court declined to find that the
second sentence of section 4019, subdivision (h) extends “the enhanced rate to
any other group.†(Ellis, supra, at p.
1553.) Rather, that sentence “merely
specifies the rate at which all others are to earn conduct credits.†(Ibid.)
In
similarly concluded that the conduct credit rate provided by the October 2011
version of section 4019 “applies only
to those defendants who committed their crimes on or after October 1,
2011.†(Rajanayagam, supra, 211
Cal.App.4th at p. 52.) The
“plain language†of the first sentence of section 4019, subdivision (h) “leads
unmistakably to the conclusion†that the October 2011 version of section 4019
does not apply to a defendant whose crime was committed prior to October 1,
2011. (Rajanayagam, supra, at p.
51.) Further, the second sentence of
section 4019, subdivision (h) “cannot [be] read . . . to imply any days earned
by a defendant after October 1, 2011,
shall be calculated at the enhanced conduct credit rate for an offense
committed before October 1, 2011, because that would render the first sentence
superfluous.†(Rajanayagam, supra, at p.
51.) Construing each sentence “ ‘ “to
produce a harmonious whole,†’ †the Rajanayagam
court reasoned that “[s]ubdivision (h)’s second sentence does not extend the
enhanced conduct credit provision to any other group . . . . Instead, subdivision (h)’s second sentence
attempts to clarify that those defendants 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.†(Id.
at p. 52, fn. omitted.)
This
court’s decision in Kennedy,
with the decisions in
4019. (Kennedy, supra, at p. 399
[“according to the explicit language of the statute, the 2011 amendment to
Penal Code section 4019 applies only to crimes that were ‘committed on or after
October 1, 2011’ â€].) As we are not
persuaded by defendant’s argument that Ellis
and Rajanayagam were wrongly decided
in this regard, we determine that the October 2011 version of section 4019
applies only to those defendants whose crimes were committed on or after
October 1, 2011. Because defendant
committed his crimes prior to that date, we conclude that he is not entitled to
additional conduct credit under the October 2011 version of section 4019.
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
________________________________
ELIA, ACTING P.J.
________________________________
Márquez,
J.
All further statutory references are to the Penal Code unless otherwise
indicated.
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People v. Superior Court (
