Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2007019227, of Ventura Charles W. Campbell, Judge
(Retired Judge of the Ventura S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
David Chavez appeals the order revoking his probation and sentencing him to eight years in state prison following his guilty plea to assault with a deadly weapon by means likely to produce great bodily injury (§ Pen. Code, § 245, subd. (a)(1)) and his admission that he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant contends the court erred in imposing a $1,000 restitution fine pursuant to section 1202.4, subdivision (b), because the $200 restitution fine that was imposed as a condition of his probation survived the revocation of probation. He also asserts that he is entitled to additional presentence custody credits under the amended version of section 4019 that went into effect after he was sentenced. We shall order the $1,000 restitution fine stricken. Otherwise, we affirm.
All further statutory references are to the Penal Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Because the facts underlying appellant's conviction are not relevant to the issues raised on appeal, we need not discuss them in detail. In August 2007, appellant pleaded guilty to assault with a deadly weapon after he participated in a fight between members of two street gangs. The court suspended imposition of sentence and placed appellant on probation with terms and conditions including that he serve one year in county jail and pay a $200 restitution fine pursuant to section 1202.4, subdivision (b).
In June 2008, appellant was charged with violating the terms of his probation by having a knife and gang clothing in his bedroom. After appellant failed to appear, a bench warrant was issued. Five months later, he was arrested on new charges of assault with a deadly weapon, brandishing a weapon (§ 417, subd. (b)), and street terrorism (§ 186.22, subd. (a)). Those charges were also alleged as probation violations in the instant matter.
A jury subsequently acquitted appellant on the charges of brandishing a weapon and street terrorism, but failed to reach a verdict and hung on the assault count. Based on the evidence presented at trial, the court found that appellant had committed the assault and thereby violated his probation. The court sentenced appellant to eight years in state prison and awarded 866 days of presentence custody credit pursuant to section 4019. Appellant was also ordered to pay various fines and fees, including a $1,000 restitution fine pursuant to section 1202.4, subdivision (b).
DISCUSSION
I.
$1,000 Restitution Fine (§ 1202.4, subd. (b))
Appellant contends the court erred in imposing a $1,000 restitution fine under subdivision (b) of section 1202.4 because the $200 restitution fine imposed pursuant to the same statute as a condition of his probation remained in effect. The People concede the point.
Section 1202.4, subdivision (b) provides that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." The court imposed a $200 restitution fine pursuant to this statute when it placed appellant on probation, and that fine survived the revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 820.) Moreover, the court had no authority to impose a new restitution fine or increase the original fine based on the revocation of appellant's probation. (Id. at pp. 820-821.) Accordingly, the $1,000 restitution fine imposed after revocation of probation is unauthorized and must be stricken.
II.
Presentence Custody Credits (§ 4019, subd. (e))
Under the version of section 4019 that went into effect on January 25, 2010, certain defendants earn what are referred to as "one-for-one" presentence conduct credits, which is actually two days of conduct credit for every two days in custody. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) Defendants who commit serious felonies as defined in section 1192.7 are entitled only to the amount of credit they would have received under the former version of section 4019, i.e., two days of conduct credit for every four days in actual custody. (§ 4019, subds. (b)(2) & (c)(2) [amended Jan. 25, 2010] & (f).)
On September 28, 2010, section 4019 was amended to restore the former computation for prisoners confined for crimes committed after the amendment went into effect. (Stats. 2010, ch. 426, § 2; § 4019, subds. (b) & (g).) That same date, section 2933 was amended to provide that a prisoner sentenced to state prison for whom the sentence is executed is entitled to actual one-for-one presentence custody credits (i.e., one day of credit for every day served) unless he or she (1) is required to register as a sex offender; (2) was committed for a serious felony; or (3) has a prior conviction for a serious or violent felony. (Stats. 2010, ch. 426, § 1; § 2933, subds. (e) & (f).)
Appellant, who was sentenced before the amended version of section 4019 went into effect, contends that the statute applies retroactively. He further contends that the provision denying additional conduct credits for defendants such as him who are convicted of serious felonies violates equal protection. Because we reject appellant's equal protection claim, we need not address the issue of retroactivity.
The Supreme Court has granted review to resolve a split in authority on this issue. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, No. S181963 [holding the amendments are retroactive]; contra, People v. Rodriguez (2010) 183 Cal.App.4th 1 , review granted June 9, 2010, No. S181808.)
Appellant's equal protection claim is premised on the fact that prisoners convicted of serious felonies are not entitled to one-for-one presentence conduct credit under section 4019, yet earn the equivalent of one-for-one postsentence conduct credit after they are sentenced to prison. (§ 2933, subd. (b).) He argues that "[the] denial of credits limited to periods of confinement in jail denies [prisoners convicted of serious felonies] equal protection, because such persons will end up serving a longer sentence than similarly-situated individuals who have not served a significant period of pre-sentence confinement in jail prior to their sentence to state prison."
The statute provides: "For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration."
Although courts have consistently rejected the argument that the disparate application of presentence and postsentence conduct credit violates equal protection (e.g., People v. DeVore (1990) 218 Cal.App.3d 1316, 1319; People v. Poole (1985) 168 Cal.App.3d 516, 524-526; People v. Ross (1985) 165 Cal.App.3d 368, 377), appellant claims that these cases are no longer persuasive because they were based on the conclusion that postsentence conduct credits had to be earned, while presentence credits are automatic. According to appellant, postsentence conduct credits are now effectively "automatic" because credits cannot be denied to prisoners who are willing to work but lack the opportunity to do so. (§ 2933, subd. (b).) He asserts that the issue is therefore controlled by People v. Sage (1980) 26 Cal.3d 498, in which the Supreme Court concluded there was no rational basis for section 4019 to award presentence conduct credits to defendants ultimately convicted of misdemeanors, and yet deny them to defendants ultimately convicted of felonies. (Id. at pp. 507-508.)
We reject appellant's interpretation. Subdivision (c) of section 2933 plainly provides that post-sentence conduct credits are "a privilege, not a right" and "must be earned." Moreover, the cases finding no equal protection violation in this context are based not only on the fact that postsentence conduct credits must be earned, but also because "the state's interest in rehabilitation and the difficulty in establishing prison-style work programs in county jails justify the disparate application of presentence and postsentence work credits." (People v. DeVore, supra, 218 Cal.App.3d at p. 1320, citing People v. Waterman (1986) 42 Cal.3d 565, 570; see also People v. Buckhalter (2001) 26 Cal.4th 20, 36 ["the pre and postsentence credit systems serve disparate goals and target persons who are not similarly situated"].) "The legislative justification for this differential treatment of prisoners cannot be summarily rejected here, as it was in Sage, because the factors do not apply to misdemeanants here." (DeVore, at p. 1320.) Because the amended version of section 4019's denial of additional presentence custody credit for serious felons does not violate equal protection, appellant is only entitled to the credits he was actually awarded under the former version of the statute.
DISPOSITION
The $1,000 restitution fine imposed pursuant to section 1202.4, subdivision (b), is ordered stricken. The clerk shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.