Opinion
2d Crim. No. B225266 Super. Ct. No. 2010004613
05-19-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL JESSE PEREZ, Defendant and Appellant.
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., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Paul Jesse Perez appeals the judgment following his guilty plea to resisting an executive officer (Pen. Code, § 69) and his admission that he had suffered a prior strike conviction (§§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)) and served two prior prison terms (§ 667.5, subd. (b)). In exchange for appellants plea, the trial court struck the strike prior and one of the prison priors and sentenced him to three years in state prison. Appellant was awarded 163 days of presentence custody credit, consisting of 109 days actual custody credit and 54 days conduct credit. Appellant contends the court erred in concluding that his prior strike conviction rendered him ineligible for "one-for-one" presentence conduct credits under the amended version of section 4019 that was in effect when he was sentenced, notwithstanding the fact that the prior conviction had been stricken pursuant to section 1385. He further contends that section 4019s limitation of presentence conduct credit for prisoners with prior strike convictions violates his equal protection rights. Although we reject the equal protection claim, we conclude that the court erroneously believed it lacked the discretion to strike appellants prior conviction for purposes of section 4019. Accordingly, we shall remand for the court to determine whether to exercise its discretion in that regard. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
At approximately 4:00 a.m. on February 7, 2010, police officer Edward McCain responded to a domestic disturbance call at a residence in Ventura. Officer McCain saw appellant outside and tried to talk to him. Appellant became hostile and resisted the officers attempt to search him for weapons. When the officer attempted to handcuff appellant, appellant pulled his hand away and yelled, "[M]otherfucker. Youre going to take it to the neck." Appellant tried to break free while he was being escorted to the patrol car and kicked Officer McCain twice in the knee.
DISCUSSION
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 with prior strike convictions receive the same credits to which they were entitled under the former version of the statute, i.e., two days of conduct credit for every four days actually served. (§ 4019, subds. (b)(2) & (c)(2).) Appellant admitted a prior strike, but the court dismissed it pursuant to section 1385 in accordance with the plea agreement.
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 one-for-one presentence custody credits (i.e., one day of credit for every day actually 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, subd. (e).)
In addressing the issue of presentence custody credits at the sentencing hearing, appellant argued: "[S]ince the Court intends to strike the strike, I would ask the Court to give [appellant] 109 days of actual time and 109 days of [section] 4019 time.... [I]f the strike is stricken, it should be stricken for all purposes, including [section] 4019 consideration." The court found that appellant was not entitled to one-for-one conduct credits "since there is a strike in his history, regardless of whether the Court strikes it."
Appellant contends the court erred in finding that the striking of his prior conviction did not render him eligible for one-for-one conduct credits under the amended version of section 4019. He asserts that the statutes limitation on conduct credit for defendants who have one or more prior strike convictions does not apply when the convictions are dismissed pursuant to section 1385. Although we disagree with appellants claim that the court was compelled to treat the conviction as stricken for purposes of section 4019, we conclude that it had discretion to strike it for that purpose. Accordingly, we shall remand for a hearing on the matter.
We recently concluded that "section 1385, subdivision (a), vests a trial court with the discretion to strike a prior serious felony conviction enhancement for section 4019 sentencing purposes." (People v. Koontz (2011) 193 Cal.App.4th 151, 153 (Koontz).)In reaching that conclusion, we reasoned among other things that the denial of one-for-one presentence conduct credits under the amended version of section 4019 for defendants without prior serious felony convictions amounts to an increase in punishment, as contemplated by In re Estrada (1965) 63 Cal.2d 740, 748, and People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193. Our colleagues in the Sixth District subsequently issued a decision agreeing with Koontz and expanding on its rationale. (People v. Lara (2011) 193 Cal.App.4th 1393,__ (Lara).) Appellants prior strike conviction subjects him to increased punishment by depriving him of additional conduct credits, so the allegation that appellant suffered the prior conviction was required to be (and in fact was) pleaded and proved. (Lara, at pp. *5-7.) Accordingly, the court had discretion to dismiss the conviction not only for purposes of the three strikes law, but also to the extent it serves as a sentencing allegation under section 4019.
Because the court erroneously believed that it lacked the discretion to dismiss appellants strike prior for purposes of section 4019, the matter must be remanded. Appellant asserts that remand is unnecessary because in striking the conviction pursuant to section 1385 the court effectively "eliminate[d] the fact of the conviction for purposes of section 4019. [Citation.]" According to appellant, "[i]f a defendant is outside the spirit of the Three Strikes Law, he is likewise outside the spirit of the credit ineligibility provisions of section 4019." There is no merit in this claim. As we have noted, the court is free to strike the conviction either in its entirety or for a limited purpose. (Koontz, supra, 193 Cal.App.4th at pp. 153-154, citing In re Pacheco (2007) 155 Cal.App.4th 1439, 1444; Lara, supra, at pp. *5-7.)
We also reject appellants claim that section 4019s denial of one-for-one presentence custody credits for defendants with prior strike convictions violates equal protection. Appellants claim is premised on the fact that prisoners with prior strike convictions that are stricken pursuant to section 1385 can earn one-for-one postsentence conduct credits under section 2933. As appellant acknowledges, courts have consistently rejected the argument that the disparate application of presentence and postsentence conduct credit violates equal protection. (See, e.g., People v. DeVore (1990) 218 Cal.App.3d 1316, 1319; People v. Poole (1985) 168 Cal.App.3d 516, 524526; People v. Ross (1985) 165 Cal.App.3d 368, 377.) He claims, however, that those 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 awarded under section 2933 are now effectively "automatic" because under subdivision (b) credits cannot be denied to prisoners who are willing to work but lack the opportunity to do so. He asserts that this case 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.)
The People take issue with appellants implicit assertion that the three strikes laws 20-percent limitation on postsentence credits for prisoners with a prior strike conviction (§ 667, subd. (c)(5)) does not apply when the prior conviction is stricken under section 1385. We think it manifest that this provision of the three strikes law does not apply when the court strikes the conviction for the very purpose of avoiding that law. (People v. Murphy (2004) 124 Cal.App.4th 859, 862-864 [recognizing same]; People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 531.)
We reject appellants interpretation. Subdivision (c) of section 2933 makes clear that postsentence 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 states 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.)
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court to conduct a hearing concerning whether to strike the prior felony strike conviction for the purpose of applying amended section 4019. If the prior conviction is stricken for that purpose, the trial court is directed to award the additional presentence custody credit and prepare an amended abstract of judgment, a copy of which is to be sent to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
YEGAN, J.
Bruce A. Young, Judge
Superior Court County of Ventura
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., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.