Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2009029040 of Ventura John E. Dobroth, Judge
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Larry Bernard Tombow contests the presentence conduct credits awarded to him under a prior version of Penal Code section 4019. He contends he is entitled to the benefits of the amended version of section 4019. He also contends he is denied equal protection to the extent that a registered sex offender is not entitled to any presentence credits under the amended version of section 4019. We determine section 4019 as amended does not deny Tombow equal protection. We need not decide whether the amended version is retroactive.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
On April 2, 2010, a jury found Tombow guilty of indecent exposure in violation of section 314. Tombow admitted he served two prior prison terms within the meaning of section 667.5, subdivision (b).
On May 3, 2010, the trial court sentenced Tombow to the middle term of two years, plus one year for each of the prior prison terms, for a total of four years. The court awarded presentence credit of 269 days of actual custody and 134 days of conduct credit, for a total of 403 days. Tombow acknowledges that a violation of section 314 requires that he register as a sex offender under section 290, subdivision (c).
DISCUSSION
Under the provisions of section 4019, Tombow was given two days of presentence credit for every four days in custody. The amended version of section 4019 increases the presentence credit to "day-for-day." But Tombow concedes that he is not eligible for the benefits of section 4019 as amended because he must register as a sex offender. He argues that the equal protection guaranty requires he receive the benefit of the section.
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).)
Tombow points out that under section 2933, subdivision (b), persons sentenced to state prison receive one day credit for every day served postsentence. The section contains no exception for registered sex offenders. Section 4019 as amended denies presentence custody credits for registered sex offenders. Thus registered sex offenders who spend long periods in presentence custody will spend a longer total period in custody than those who spend less time in presentence custody.
Tombow 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, 524-526; People v. Ross (1985) 165 Cal.App.3d 368, 377.) He claims, however, that those cases are no longer persuasive because the law has changed. Under the law that existed when those cases were decided, a defendant earned less in presentence credits for time spent in jail than for postsentence credits for time spent in prison. Tombow points out that section 2933, subdivision (b) now provides day-for-day credits for persons in state prison that are equal to presentence credits awarded under section 4019.
The details of the law may have changed, but the argument remains the same. Tombow argues the sentencing scheme violates equal protection because those who spend more time in presentence custody serve a longer total time in custody than those who go directly to prison. That is precisely the argument the cases have unanimously rejected.
What Tombow's argument fails to acknowledge is that those in presentence custody and those in postsentence custody are not similarly situated. As our Supreme Court stated in People v. Buckhalter (2001) 26 Cal.4th 20, 36, "[T]he pre and postsentence credit systems serve disparate goals and target persons who are not similarly situated. The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges. By contrast, the worktime credit scheme for persons serving prison terms emphasizes penological considerations, including the extent to which certain classes of prisoners, but not others, deserve or might benefit from incentives to shorten their terms through participation in rehabilitative work, education, and training programs operated by the Department of Corrections. [Citations.]"
Tombow's reliance on People v. Sage (1980) 26 Cal.3d 498, is misplaced. There the Court concluded there is no rational basis for denying presentence conduct credit for felons but allowing it for misdemeanants. (Id. at pp. 507-508.) The Court's conclusion involved only presentence conduct credit. Tombow's argument contrasts presentence and postsentence credits. As Buckhalter explains, pre and postsentence conduct credit systems serve disparate goals and target persons who are not similarly situated.
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.