P. v. Luera
Filed 5/6/13 P. v. Luera CA5
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE
PEOPLE,
Plaintiff and Respondent,
v.
LOUIE
PAUL LUERA, JR.,
Defendant and Appellant.
F064422
(Super. Ct. No. 09CM0520)
O P I N I
O N
THE COURT
APPEAL
from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
Heather
MacKay, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In May 2009, appellant, Louie Paul
Luera, Jr., pled guilty to unlawful possession of a dagger (Pen. Code,
under the influence of a controlled substance (Health & Saf. Code, § 11550,
subd. (a)), possession of narcotics paraphernalia (Health & Saf. Code, §
11364), and giving a false identity to a peace officer (§ 148.9, subd. (a)),
and admitted allegations that he had suffered a “strikeâ€
separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
In
June 2009, the court imposed a prison term of seven years and awarded appellant
presentence credits of 164 days, consisting of 110 days of actual time credits
and 54 days of custody credits.
Appellant filed a timely notice of appeal, and in April 2010, this
court, in case No. F058170, affirmed the judgment.
In
January 2012, appellant filed a “MOTION
TO CORRECT ABSTRACT OF JUDGMENT†(credits motion) in which he argued that
he was entitled to additional presentence credits. The court denied the motion. The instant appeal followed.
On appeal,
appellant’s sole contention is that the court erred in denying his credits
motion. Specifically, he argues that the
court’s failure to award him presentence conduct credits under the one-for-one
credit scheme of the current iteration of section 4019 violated his
constitutional right to equal protection of the laws. We affirm.
DISCUSSION
Under section 2900.5, a person sentenced to
state prison for criminal conduct is entitled to presentence custody credits
for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides for what
are commonly called conduct credits, i.e., credits against a prison sentence
for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance
with rules and regulations (§ 4019, subd. (c)).
(People v. Dieck (2009) 46
Cal.4th 934, 939, fn. 3.)
Section 4019 has undergone numerous
amendments in the past few years. Under
the version in effect prior to January 25, 2010, at the time of appellant’s
sentencing, six days would be deemed to have been served for every four days
spent in actual custody—a ratio of one day of conduct credit for every two days
served (one-for-two credits). (Former §
4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, the Legislature
amended section 4019 to provide that any person who is
not required to register as a sex offender and is not being committed to prison
for, or has not suffered a prior conviction of, a serious felony as defined in
section 1192.7 or a violent felony as defined in section 667.5, subdivision
(c), may accrue one-for-one
credits, i.e., conduct credits accrued at the rate of two days for every two days
served. (Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28, § 50.)
name="_ftnref5" title="">[4]
Effective September 28, 2010, the Legislature again amended section
4019, this time to restore the less generous one-for-two credits for defendants
confined for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.)
The Legislature
next amended section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.). Under the new legislation, to which we refer
as the 2011 amendment, defendants, including those who had been precluded from
enhanced credits under the January 25, 2010, amendment, can receive one-for-one
credits. (§ 4019, subds. (b), (c), as
amended by Stats. 2011, ch. 15, § 482.)
The legislation expressly provided that this change “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, subd. (h), as
added by Stats. 2011, ch. 15, § 482 and amended by Stats. 2011, ch. 39, §
53.)
Appellant
committed the instant offenses in March 2009, more than two and one-half years
prior to October 1, 2011, and therefore, as appellant acknowledges, the 2011
amendment, by its terms, does not apply to him.
He also effectively concedes that the trial court, in awarding him
one-for-two credits, correctly applied the version in effect prior to the
January 25, 2010, amendment. However, as
indicated above, he argues that under equal protection principles, he is
entitled to one-for-one credits under the 2011 amendment.
Appellant posits
two groups, viz., (1) “[p]risoners who have a prior serious or violent felony
conviction, a current serious felony conviction, or who are required to
register as sex offenders ... [who have] committed their offenses before
October 1, 2011,†and (2) “[p]risoners with the same sorts of criminal
histories, but who committed their most recent offense on or after October 1,
2011 ....†He argues that because
prisoners in the first group, of which he is member, are statutorily ineligible
for one-for-one credits under the 2011 amendment and are subject to the less
generous one-for-two credits accrual provisions of the version of section 4019
in effect prior to January 25, 2010, whereas prisoners in the second group may
earn one-for-one credits under the 2011 amendment, the two groups are subject
to “disparate treatment.†And, this
disparate treatment violates equal protection principles, he argues, because
(1) the two groups are “similarly situated†with respect to the purposes of the
2011 amendment, and (2) “there is neither a compelling state interest nor a
rational basis for [such] disparate treatment ....†This equal protection violation, he contends,
should be remedied by modifying the judgment to award him one-for-one credits
of 220 days under the 2011 amendment to section 4019 rather than the
one-for-two credits awarded by the court under the version of section 4019 in
effect prior to January 25, 2010. We
disagree.
“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€™â€ (People
v. Brown (2012) 54 Cal.4th 314, 328 (Brown).)
In
brief, our Supreme Court addressed whether the January 25, 2010, amendment
should be given retroactive effect to permit prisoners who served time in local
custody before the amendment’s operative date to earn conduct credits at the
increased rate. (Brown, at pp. 318-319.) The
court held that prospective-only application of that amendment did not violate
the equal protection clauses of the federal and state Constitutions. (Id.
at pp. 328-330.) Addressing the issue of
whether the defendant was similarly situated to those defendants who served
time after the operative date, the court explained: “[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. That prisoners who served time before and
after former section 4019 took effect are not similarly situated necessarily
follows.†(Id. at pp. 328-329.)
Relying on
1546, rejected an equal protection challenge to the 2011 amendment virtually
identical to that raised by appellant here:
“We can find no reason Brown’s
conclusions and holding with respect to the January 25, 2010, amendment should
not apply with equal force to the October 1, 2011, amendment. [Citation.]
Accordingly, we reject defendant’s claim he is entitled to earn conduct
credits at the enhanced rate provided by current section 4019 ....†(People
v. Ellis, supra, at p. 1552;
accord, People v. Kennedy (2012) 209
Cal.App.4th 385, 396-397.) For the same
reason, we reject appellant’s equal protection claim here.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Kane, Acting P.J., Poochigian, J., and Detjen, J.
name="_ftn2" title="">[1] Except as otherwise indicated, all statutory references are
to the Penal Code.
