Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F09902758, F09903027, Denise Whitehead, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Defendant Jordan Miles Perez appeals his sentence, raising two challenges to the calculation of his presentence custody credits under Penal Code section 4019 as amended, effective January 25, 2010 (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50) (amended section 4019). First, Perez raises an Apprendi issue, arguing that, in order to use the determination that he must register as a sex offender to reduce his presentence custody credits, the registration determination must be submitted to a jury and decided beyond a reasonable doubt. Second, he argues that treating persons required to register as sex offenders differently than other offenders in calculating presentence custody credits violates equal protection. We reject these arguments.
Subsequent statutory references are to the Penal Code unless otherwise stated.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
Perez also requests that the abstract of judgment be corrected, and the People agree that the corrections should be made. We direct the trial court to correct the minute order and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORIES
In a felony complaint, case No. F09902758, filed May 12, 2009, Perez was charged with two counts of unlawful sexual intercourse with a minor. In an additional felony complaint, case No. F09903027, filed May 22, 2009, Perez was charged with three counts of sexual offenses against a minor.
Pursuant to plea agreements reached in both cases, on September 21, 2009, Perez entered a plea of no contest to two counts of unlawful sexual intercourse with a minor more than three years younger than himself (§ 261.5, subd. (c)) and one count of unlawful sexual intercourse with a minor who is under 16 years of age by a person 21 years of age or older (§ 261.5, subd. (d)). The agreements provided a two-year “lid” on both cases and required Perez to register as a sex offender.
On February 19, 2010, the court sentenced Perez to a total of two years in prison and ordered him to register as a sex offender. The court stated, “With respect to the 290 registration, the offenses to which the defendant pleaded no contest, which was the 261.5(c) and 261.5(d), registration is not mandatory on these offenses, however, the court does have discretion pursuant to [§ 290.006 to order registration where the court finds the offense was committed for the purposes of sexual gratification. The court so finds in this case, and in addition notes for the record that the 290 registration was agreed to by the defendant in the negotiated plea agreement in this case.”
The court cited section “290.002” in ordering registration. Discretionary registration, however, is authorized by section 290.006, which allows court-ordered registration for any offense not included in section 290, subdivision (c), “if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
In case No. F09902758, Perez was awarded custody credits of 440 days, based on 294 days of actual time served, plus 146 days of custody credits pursuant to amended section 4019. In case No. F09903027, Perez was awarded custody credits of 433 days, based on 289 days of actual time served, plus 144 days of custody credits pursuant to amended section 4019.
DISCUSSION
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) A criminal defendant may also earn additional “conduct credit” for willingness to work and good behavior. (§ 4019, subds. (b) & (c); see People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Prior to January 25, 2010, a person could accrue presentence conduct credits at a rate of two days for every four days spent in actual custody pursuant to former section 4019. (Former § 4019, subds. (b) & (c); Stats. 1982, ch. 1234, p. 4553, § 7.) Section 4019 was amended, effective January 25, 2010, to provide that conduct credits could be accrued at a more generous rate of four days for every four days spent in actual custody. (Amended § 4019, subds. (b)(1), (c)(1), & (f).) This more generous rate did not apply to any person who was required to register as a sex offender or was being committed to prison for a serious felony or had a prior conviction for a serious or violent felony; such persons continued to accrue conduct credits at the previous rate of two days for every four days spent in actual custody. (Id., subds. (b)(2), (c)(2) & (f).)
The Legislature amended section 4019 again, effective September 28, 2010, to restore the credit scheme that existed prior to the amendment of January 25, 2010. (Stats. 2010, ch. 426, § 2.)
Registration as a sex offender is not mandatory for the offenses to which Perez pleaded guilty. (§ 290, subd. (c).) The court exercised its discretionary authority and ordered Perez to register pursuant to section 290.006. Since the court ordered Perez to register as a sex offender, it calculated his conduct credits at the less generous two-for-four rate. (Amended § 4019, subds. (b)(2), (c)(2) & (f).)
I. Apprendi
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.)
Perez was convicted of one count of a violation of section 261.5, subdivision (d), which provides a middle term of three years. He was also convicted of two counts of violation of section 261.5, subdivision (c), for which offense the middle term is two years. (§§ 18, 261.5, subd. (c).) His sentence of two years in prison was well within the “prescribed statutory maximum” for these crimes.
Perez argues, however, that denial of a benefit that reduces a defendant’s time of incarceration is an enhanced punishment subject to the requirements of Apprendi. According to Perez, in order to deny him the more generous rate for accruing conduct credits on the basis of the sex offender registration requirement, the facts upon which the section 290.006 determination are based must be found by a jury or judge beyond a reasonable doubt or must be admitted by the defendant. We disagree.
In People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia), the court addressed the argument that Apprendi required a jury determination of facts relating to a reduction in presentence worktime credits under section 2933.1. Section 2933.1 provides that, for any person who is convicted of a violent felony, the maximum worktime credits that may be earned following arrest and prior to placement in the custody of the Director of Corrections is 15 percent of the actual period of confinement. (§ 2933.1, subd. (c).) The defendants in Garcia argued that, since the determination that their crime was a violent felony reduced the amount of worktime credit they could receive, determination was required to be submitted to a jury. (Garcia, supra, at p. 276.)
Prisoners may earn “worktime credit” against their sentences by participating in qualifying work, training, and educational programs. (§ 2933; In re Reeves (2005) 35 Cal.4th 765, 768.)
The court rejected this argument, explaining:
“Contrary to [the defendants’] contention, section 2933.1, subdivision (c)’s limitation on presentence conduct credits is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary. (§ 461, subd. 1.) Rather, the provisions for presentence conduct credits function as a sentence ‘reduction’ mechanism outside the ambit of Apprendi. [Citations.] The limitation on conduct credits for defendants convicted of violent felonies represents a legitimate policy decision by the Legislature to provide greater protection to the public from dangerous offenders who might otherwise be paroled at an earlier date. [Citation.] Lessening the ‘discount’ for good conduct credit does not increase the penalty beyond the prescribed maximum punishment and therefore does not trigger the right to a jury trial identified in Apprendi. [Citations.]” (Garcia, supra, 121 Cal.App.4th at pp. 277-278.)
Similarly, in In re Pacheco (2007) 155 Cal.App.4th 1439, 1445, the court recognized that “[a] reduction in the worktime credits allowed by section 2933.1 may feel like ‘additional punishment’ to a prisoner.… However, a reduction in credits is not considered ‘punishment’ under the law. Rather, such credits are benefits a prisoner earns based on good conduct and participation in qualifying programs.”
These cases are persuasive. Like a reduction in worktime credits, the use of a less generous rate for accruing conduct credits under amended section 4019 “does not increase the penalty beyond the prescribed maximum punishment and therefore does not trigger the right to a jury trial identified in Apprendi.” (Garcia, supra, 121 Cal.App.4th at p. 277; accord People v. James (June 24, 2011, D057527) ___ Cal.App.4th ___ [2011 WL 2505557, *4], modified July 14, 2011 [2011 WL 2725368] [rejecting argument that, to use existence of prior serious felony conviction to calculate conduct credit pursuant to § 4019, prosecution must first plead and prove that conviction].) As a result, the court properly used Perez’s sex offender registration status in calculating his presentence conduct credits without having submitted the registration determination to a jury or obtaining an admission from Perez.
II. Equal protection
Perez also contends that denying sex offender registrants the more generous rate for accruing conduct credits afforded to other prisoners is a denial of equal protection. Amended section 4019 divides prisoners into two classes: (1) prisoners who are required to register as sex offenders, prisoners who are committed for a serious felony, and prisoners who have prior convictions for a serious or violent felony, and (2) all other prisoners. (Amended § 4019, subds. (b) & (c).) Prisoners in the first class accrue presentence conduct credits at a lower rate than prisoners in the second class. (Ibid.)
To withstand an equal protection challenge, this classification need only bear “a rational relationship to a legitimate state purpose”; where there are plausible reasons for a classification, our inquiry is at an end. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.)
We reject Perez’s argument that a reduction in conduct credits implicates a fundamental interest subject to strict scrutiny rather than the rational relationship test. (In re Stinnette (1979) 94 Cal.App.3d 800, 805, fn. 4 [since “the ‘good time credit’ provision is wholly amelioratory, ” “the fundamental right to personal liberty is not violated, and the ‘rational basis’ level of review is applicable”]; In re Kapperman (1974) 11 Cal.3d 542, 546.)
Courts have observed that “the ‘risk of recidivism posed by sex offenders is “frightening and high, ”’ and when they reenter society ‘“they are much more likely than any other type of offender to be rearrested”’ for another sex crime.” (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1109.) The People suggest that the Legislature’s denial of more generous conduct credits to registered sex offenders is, therefore, rationally related to the state’s interest in protecting the public and preventing or reducing recidivism for sex offenders. This reason passes the rational relationship test.
We have previously recognized there is a plausible rationale for distinguishing between prisoners when awarding presentence conduct credits. Amended section 4019 was enacted to “‘address[] the fiscal emergency declared by the Governor.…’” (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.) § 62.) We reasoned, “because the express purpose of Senate Bill 18 was to address the state’s fiscal emergency, it is … plausible the Legislature determined the following: The persons whose sentences will be reduced under the section 4019 amendment are just as culpable and deserving of punishment as they were before the amendment; after all, there has been no legislative determination that the offenses for which those persons were sentenced should be punished less severely. However, for fiscal reasons, prison populations must be reduced, and accomplishing this reduction by the early release of felons who have indicated they are less dangerous than others, by refraining from serious, violent and/or sex offenses, strikes the proper balance between the state’s fiscal concerns and its public safety concerns.” (People v. Rodriguez (2010) 183 Cal.App.4th 1, 9, review granted June 9, 2010, S181808.) Consequently, we reject Perez’s equal protection argument.
III. Abstract of judgment
Perez points out that the abstract of judgment contains two errors. First, it states that Perez was convicted of (1) one count of violation of section 261.5, subdivision (d); (2) one count of violation of section 261.5, subdivision (c); and (3) one count of violation of section 261, subdivision (a)(2). From the reporter’s transcript and the minute orders, it is apparent that Perez was not convicted of a violation of section 261, subdivision (a)(2); the third count was for a violation of section 261.5, subdivision (c). (People v. Mesa (1975) 14 Cal.3d 466, 471 [court’s oral pronouncement controls over abstract of judgment].) Second, the abstract of judgment provides that Perez must register “pursuant to PC290.1, ” but the statutory authority for the court’s order is found in section 290.006.
The People agree that the abstract of judgment should be corrected. We direct the trial court to amend the abstract of judgment to reflect the correct conviction and statutory basis for registration. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1431-1432.).
DISPOSITION
The trial court shall correct the abstract of judgment by replacing the conviction for section 261, subdivision (a)(2), with a conviction for section 261.5, subdivision (c), and by replacing the order to register pursuant to section 290.1 with an order to register pursuant to section 290.006. In all other respects, the judgment is affirmed.
WE CONCUR: Levy, J., Gomes, J.