Opinion
No. A129258.
2012-07-18
The PEOPLE, Plaintiff and Respondent, v. James BORG, Defendant and Appellant.
Carol A. Navone, Esq., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.
Background: Defendant was convicted in the Superior Court, San Francisco County, No. 209487, Ronald E. Albers, J., of stalking, with a prior conviction of stalking and making a criminal threat. Defendant appealed.
Holding: The Court of Appeal, Dondero, J., held that statute prospectively increasing conduct credits did not violate defendant's equal protection rights.
Affirmed as modified. Carol A. Navone, Esq., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney General, for Plaintiff and Respondent.
DONDERO, J.
Defendant was convicted following a jury trial of stalking (Pen.Code, § 646.9, subd. (a)),
with a prior conviction of stalking and making a criminal threat ( Pen.Code, § 422). He was sentenced to five years in state prison, with a total of 455 days of presentence credit. In this appeal he claims that the trial court erred by denying his motion for substitution of counsel ( People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44( Marsden)), and improperly imposed a one-year concurrent term for a prior prison term. He also challenges the trial court's award of conduct credits. We conclude that the trial court did not conduct a deficient Marsden inquiry or erroneously deny the motion for substitution of counsel. We find that the judgment must be modified by striking the sentence for a prior prison term that was not found true by the jury, and increasing defendant's presentence credits by 14 days served in Napa State Hospital after he was found competent to stand trial. In all other respects we affirm the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the issues presented on appeal, which do not deal with the evidence presented at trial, our recitation of the facts that comprise the underlying offenses will be in somewhat summary form. We will focus on presentation of the facts pertinent to the issues raised by defendant, particularly the denials of his sequence of motions for substitution of counsel.
The convictions stem from a series of events that commenced at the victim's place of work and occurred on two consecutive days. On July 13, 2009, defendant came into the Buffalo Exchange store on Haight Street, where the victim Samantha Fuller was working at the cash register. According to Fuller's testimony, defendant wrote her a note that said “F me,” and bore her first name as stated on her store identification tag. When Fuller told defendant the note was “inappropriate” and asked him to leave the store, he informed her that he wanted to “marry” her. Defendant looked directly at Fuller, often stared at her, and seemed “serious.”
Defendant eventually left the store, but Fuller encountered him again later that night, after the store was closed and she was walking to a bus stop with a coworker. Defendant approached her, gazed at her eyes earnestly, and repeatedly said to her directly and clearly, “I want to cunnilingus your pussy.” Fuller was “terrified,” and asked defendant to leave, as did her coworker. Defendant quickly returned with a “6–pack of beer in his hand,” however, and continued to leer at Fuller, mumbling inaudibly. Fuller felt that defendant was “really intimidating.” Fuller's friend stayed with her until the bus came and she went home.
The next evening, defendant reappeared in the Buffalo Exchange store. He began staring at Fuller and again repeating, “I want to cunnilingus your pussy.” Fuller and her coworkers directed defendant to “leave the store right now.” Fuller also warned defendant that she would call the police if he returned. Before defendant left the store he looked Fuller “straight in the eyes” and said, “Well, if I ever see you on the street I'm going to take your pussy.” Fuller testified that defendant was “very serious.” She interpreted defendant's statement as a threat of rape. Defendant then stood in front of the store and “proceeded to grab his penis over his clothes,” and began “shaking it up and down” as he laughed derisively.
About 10 or 15 minutes later a police officer arrived at the store in response to Fuller's call. Fuller told the officer “what had happened,” and gave a description of the suspect. Later that night, the officer provided Fuller with a photo-lineup, and she “instantly recognized” defendant.
Defendant was arrested the following morning in front of the Buffalo Exchange store. In response to subsequent questioning, defendant admitted that he wrote the victim an “obscene note,” approached her later that evening on Haight Street, and “had told the victim that he was going to take her pussy.” He also stated to the officer that he loved Fuller and wanted to marry her.
Defendant testified at trial that he interacted with Fuller “good-naturedly and kindly,” hoping for a “positive, harmless date,” and did not intend to frighten her. In response, Fuller became embarrassed, angry and vindictive, then “exaggerated and lied” in her testimony. Defendant apologized to Fuller for “having naively and innocently asked for lovemaking.”
On August 5, 2009, defendant was charged with stalking (§ 646.9, subd. (a)), making a criminal threat (§ 422), and second degree burglary (§ 459), with an enhancement allegation of a prior conviction and prison term within the meaning of section 646.9, subdivision (c)(2). In September of 2009, criminal proceedings were suspended pursuant to section 1368, following a finding that defendant was not competent to stand trial. Defendant was treated at Napa State Hospital, and found mentally competent to stand trial on January 7, 2010. He was returned to county jail on February 5, 2010, and proceedings were reinstated. A first amended information was filed on April 22, 2010, to correct the date of the alleged prior conviction and add an allegation of a prior prison term (§ 667.5, subd. (b)).
Defendant made the first of his three motions for substitution of counsel pursuant to Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, on April 23, 2010, at the conclusion of a hearing on in limine motions. Defendant complained that his attorney failed to meet with him as promised or provide him with copies of documents, and failed to file a motion for a continuance of the trial. The motion was denied, without prejudice to renewal after defendant obtained his “notes” and met with counsel.
A second or revisited Marsden motion was made by defendant on April 26, 2010, again before trial commenced. Defendant repeated his grievances that counsel failed to obtain a continuance in the case, “missed crucial meetings,” did not adequately consult with him. Defendant added that he neither trusted nor was “comfortable at all working with this lawyer.” He particularly mentioned that counsel was “unjust” and in need of doing “a lot of repenting.” Defendant further expressed his fear that evidence of prior convictions would be admitted in the present case. The court again denied the motion, and urged defendant to consult with counsel.
After guilty verdicts had been returned by the jury on counts 1 and 2, at a hearing to order a presentence report on May 14, 2010, defendant reiterated his lack of trust in his appointed counsel, and expressed a desire to work with other lawyers. Defendant protested that his attorney mistakenly believed he “was guilty in this present case” and deserved to be punished, and as a result resisted defendant's “explanations of truth.” The court pointed out that defendant was entitled to retain new counsel if he acted quickly, and asked if he was pursing a third Marsden motion.
Another Marsden hearing ensued. Defendant professed his innocence and asserted that he did not want counsel “involved in anything further” in the case. The court advised defendant that if he wanted to proceed with any motion for a new trial, he needed to cooperate with counsel. Defendant stated that counsel did “not have the heart” to assist him “to point out the truth,” as needed to obtain “reversal of the decision” of the jury. He also protested that counsel “worked against” him, resisted his efforts to establish innocence, and called him “a liar” to his “face quite a few times.” Defense counsel pointed out to the court that “another lawyer” was necessary to review any new trial motion based on ineffective assistance of counsel, as he had not “seen any issues for a new trial.” The court denied the Marsden motion.
I.–III.
See footnote *, ante.
IV. Additional Conduct Credits Under the Amended Version of Section 4019.
In a supplemental brief defendant presents another equal protection argument. He argues that he is entitled to an award of additional presentence conduct credits under the most recent amended version of section 4019. In 2011 section 4019 was amended to grant presentence conduct credits in accordance with a more favorable formula to enumerated classes of prisoners who were previously denied those credits under prior versions of the statute. Defendant contends that the 2011 amendments to the statute should be applied to the entire period of his presentence custody, entitling him to additional conduct credits for the time served prior to October 1, 2011. Defendant requests that we order the trial court to amend the abstract of judgment to reflect “281 days” of conduct credit, “for a total of 610 presentence credit days.”
[1] A defendant “sentenced to prison for criminal conduct is entitled to credit against his [or her] term for all actual days of [presentence] confinement solely attributable to the same conduct.” ( People v. Buckhalter (2001) 26 Cal.4th 20, 30, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) That confinement or custody includes days spent in jail before sentencing. (§ 2900.5, subd. (a).) Pursuant to section 4019, a defendant may also earn credit for “good behavior” and satisfactory performance of any labor assigned him or her during presentence custody. (§ 4019, subds. (b), (c); People v. Dieck (2009) 46 Cal.4th 934, 939, 95 Cal.Rptr.3d 408, 209 P.3d 623.) A defendant's good conduct time is deducted from his or her period of confinement. (§ 4019, subds. (b) & (c).) Before January 25, 2010, section 4019 provided that if a defendant earned all available presentence conduct credits, six days would be deemed to have been served for every four days spent in actual custody. (Former § 4019, subd. (f); Stats. 1982, ch. 1234, § 7, pp. 4553–4554.)
Effective January 25, 2010, the Legislature amended section 4019 to increase the number of presentence conduct credits available to eligible defendants. (Stats. 2009 (2009–2010 3d Ex.Sess.) ch. 28, § 50.) Under the amended version of the law, a defendant earned credits at twice the previous rate, that is, four days of presentence credit for every two days of custody. (Former § 4019, subd. (f); Stats. 2009, ch. 28, § 50.) However, defendants who were required to register as sex offenders, who were incarcerated for commission of a serious felony, or who had suffered a prior conviction for a serious or violent felony, as defined in sections 667.5 and 1192.7, were ineligible for the enhanced credits and continued to accrue credits at the previously applicable rate. (Former § 4019, subds. (b)(2) & (c)(2).)
The Legislature again amended section 4019 in 2010 and 2011. (See Stats. 2010, ch. 426, § 2; Stats. 2011, ch. 15, § 482; Stats. 2011–2012 (1st Ex.Sess.) ch. 12, § 35.) The most recent 2011 amendments of section 4019, as operative October 1, 2011, to add subdivision (a)(6), provide that the formula of four days of presentence credit for every two days of custody applies, “When a prisoner is confined in a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp as a result of a sentence imposed pursuant to subdivision (h) of Section 1170.” Thus was removed the previous exclusion of classes of prisoners, including defendant, who must register as sex offenders, were committed for commission of a serious felony, or who had suffered a prior conviction for a serious or violent felony, as defined in sections 667.5 and 1192.7, from the benefits of the increase in the formula for awarding presentence conduct credits.
According to subdivision (h) of the most current version of section 4019, however, 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.” Defendant committed the current offenses well before the operative date of the amended statute, but argues that “equal protection compels an award of additional presentence credits in the present case.”
[2][3][4] “ ‘Guarantees of equal protection embodied in the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution prohibit the state from arbitrarily discriminating among persons subject to its jurisdiction....’ [Citation.]” ( People v. Chavez (2004) 116 Cal.App.4th 1, 4, 10 Cal.Rptr.3d 556.) “The constitutional guarantee of equal protection of the laws has been defined to mean that all persons under similar circumstances are given ‘ “equal protection and security in the enjoyment of personal and civil rights ... and the prevention and redress of wrongs....” ’ [Citation.] The concept ‘ “ ‘compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” ' [Citation.]” ( Pederson v. Superior Court (2003) 105 Cal.App.4th 931, 939, 130 Cal.Rptr.2d 289.) “ ‘Under the equal protection clause, “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some grounds of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” ' [Citations.]” ( People v. Wilder (1995) 33 Cal.App.4th 90, 104, 39 Cal.Rptr.2d 247.)
[5][6][7][8][9][10][11][12] “ ‘The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classifications of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished.’ [Citation.]” ( People v. Spears (1995) 40 Cal.App.4th 1683, 1687, 48 Cal.Rptr.2d 634.) “ ‘ “The 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.” [Citations.] ... [Citation.]’ ” ( People v. Dial (2004) 123 Cal.App.4th 1116, 1120, 20 Cal.Rptr.3d 573; see also People v. Calhoun (2004) 118 Cal.App.4th 519, 529, 13 Cal.Rptr.3d 166.) “The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” ( People v. Nguyen (1997) 54 Cal.App.4th 705, 714, 63 Cal.Rptr.2d 173.) “Persons who are similarly situated must be treated alike. [Citation.] There is, however, no requirement that persons in different circumstances must be treated as if their situations were similar.” ( People v. McCain (1995) 36 Cal.App.4th 817, 819, 42 Cal.Rptr.2d 779.) “The analysis will not proceed beyond this stage if the groups at issue are not ‘ “similarly situated with respect to the legitimate purpose of the law,” ’ or if they are similarly situated, but receive ‘ “like treatment.” ’ Identical treatment is not required. [Citations.]” (In re Jose Z. (2004) 116 Cal.App.4th 953, 960, 10 Cal.Rptr.3d 842.)
[13] The distinction created by the amended version of section 4019 at issue here is a straightforward one: those defendants who committed the same offenses or earned conduct credits before the operative date of the statute are treated more harshly than those who committed the same crimes or earned their credits on or after October 1, 2011. Abstractly speaking, the two groups are similarly situated in the sense that they committed the same offenses, but are treated differently in terms of earning conduct credits based entirely on the dates their crimes were committed and their credits were earned. In terms of receiving additional conduct credit, nothing distinguishes the status of a prisoner whose crime was committed after October 1, 2011, from one whose crime was committed before that date. This satisfied the first prerequisite for a meritorious claim under the equal protection clause, a classification that affects two similarly situated groups in an unequal manner. ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, 127 Cal.Rptr.2d 177, 57 P.3d 654.)
[14][15] We proceed to judicial scrutiny of the classification. ( People v. Buffington (1999) 74 Cal.App.4th 1149, 1155, 88 Cal.Rptr.2d 696.) Legislation that creates sentencing disparity or alters the treatment of custody credits for inmates does not affect a fundamental right, and thus satisfies the requirements of equal protection “if it bears a rational relationship to a legitimate state purpose.” ( People v. Richter (2005) 128 Cal.App.4th 575, 584, 27 Cal.Rptr.3d 198; see also People v. Wilkinson (2004) 33 Cal.4th 821, 840, 16 Cal.Rptr.3d 420, 94 P.3d 551;People v. Silva (1994) 27 Cal.App.4th 1160, 1168–1169, 33 Cal.Rptr.2d 181.) “ ‘ “ ‘[A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ...’ ” ' [Citations.]” ( People v. Hofsheier (2006) 37 Cal.4th 1185, 1200–1201, 39 Cal.Rptr.3d 821, 129 P.3d 29; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 12–13, 104 Cal.Rptr.2d 247.)
[16] We look to the purposes of the 2011 amendments to section 4019 to evaluate the rational basis for the legislative classification. The presentence custody credit scheme of section 4019 is generally focused on encouraging “ ‘minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges....' [Citation.]” ( People v. Brown (2004) 33 Cal.4th 382, 405, 15 Cal.Rptr.3d 624, 93 P.3d 244.) The 2011 amendments to section 4019 were enacted for a decidedly different purpose: as part of legislation to address the state's fiscal emergency by effectuating an earlier release of a defined class of prisoners, thereby relieving the state of the cost of their continued incarceration and alleviating overcrowding in county jail facilities. (See Assem. Bill No. 17X (2011–2012 1st Ex.Sess.) Stats. 2011–2012, 1st Ex.Sess. 2011, ch. 12X, § 35; p. 76; Legis. Counsel's Dig., Assem. Bill No. 109 (2011 Reg. Sess.) –––– Stats. 2011, Summary Dig., p. 17; Legis. Counsel Dig., Assem. Bill No. 109 (2011 Reg. Sess.) –––– Stats. 2011, Summary Dig., p. 19.) While defendant proposes that “there is no rational basis” for precluding a retroactive application of the more generous formula of conduct credits to some prisoners, based only on the dates their crimes were committed or credits were earned, we perceive a legitimate reason for limiting the extension of credits. The Legislature may have decided that the nature and scope of the fiscal emergency required granting additional credits to the specified classes of prisoners previously denied them – those who must register as sex offenders, or committed serious felonies, or had suffered a prior conviction for a serious or violent felony – only after the effective date of the amendments. That basis for the legislation is substantiated by the explicit articulation in subdivision (h) of section 4019 of a prospective application of the statutory amendments. Reducing prison populations by granting a prospective-only increase in conduct credits strikes a proper, rational balance between the state's fiscal concerns and its public safety interests.
[17][18][19][20] “ ‘The decision of how long a particular term of punishment should be is left properly to the Legislature. The Legislature is responsible for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others. As long as the Legislature acts rationally, such determinations should not be disturbed.’ [Citation.]” ( People v. Wilkinson, supra, 33 Cal.4th 821, 840, 16 Cal.Rptr.3d 420, 94 P.3d 551, quoting from People v. Flores (1986) 178 Cal.App.3d 74, 88, 223 Cal.Rptr. 465.) “ ‘ “Where ... there are plausible reasons for [the Legislature's] action, our inquiry is at an end.” [Citation.]’ [Citation.]” ( People v. Malfavon (2002) 102 Cal.App.4th 727, 739, 125 Cal.Rptr.2d 618.) The California Supreme Court declared in People v. Floyd (2003) 31 Cal.4th 179, 188, 1 Cal.Rptr.3d 885, 72 P.3d 820: “Defendant has not cited a single case, in this state or any other, that recognizes an equal protection violation arising from the timing of the effective date of a statute lessening the punishment for a particular offense. Numerous courts, however, have rejected such a claim—including this court. ( Baker v. Superior Court (1984) 35 Cal.3d 663, 668 [200 Cal.Rptr. 293, 677 P.2d 219] [‘ “A refusal to apply a statute retroactively does not violate the Fourteenth Amendment” ’], quoting People v. Aranda (1965) 63 Cal.2d 518, 532 [47 Cal.Rptr. 353, 407 P.2d 265].) ‘The Legislature properly may specify that such statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.’ [Citations.]”
We conclude that a rational basis exists for the timing and prospective application of the effective date of the 2011 amendments to section 4019, which lessened punishment by expanding the class of prisoners who receive increased conduct credits. The prospective application of the statute does not violate equal protection principles.
DISPOSITION
The judgment is amended to strike the one-year sentence for the prior prison term and award defendant an additional 14 days of presentence credits under section 4019. As so amended the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment reflecting the modifications to the Department of Corrections and Rehabilitation.