Opinion
E051794 Super.Ct.No. RIF126145
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES CARROLL WILLIAMS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Carroll Williams contends equal protection requires that he receive additional presentence custody credits under the amendment to Penal Code section 4019, which became effective January 25, 2010. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62), and that the applicable standard of review is strict scrutiny. We affirm.
Penal Code section 4019 was amended again, effective September 28, 2010, to reinstate the conduct credit provisions that applied before the January 25, 2010, amendment. (Pen. Code, § 4019, as amended by Stats. 2010, ch. 426, § 2.) The latest statutory change will apply only to crimes committed after September 28, 2010.
Unless otherwise specified, all further references to "interim" section 4019 refer to the amendment effective January 25, 2010. (Pen. Code, § 4019, as amended by Stats. 20092010, ch. 28, § 50.) Any reference to "former" section 4019 refers to the version that was in effect prior to January 25, 2010. (Pen. Code, § 4019, as amended by Stats. 1982, ch. 1234, § 7.) Any references to "section 4019" simply refer to section 4019, in general.
PROCEDURAL BACKGROUND
Defendant pled guilty, pursuant to a plea agreement, to 61 counts of making a false statement for the purpose of reducing the cost of worker's compensation insurance (Ins. Code, § 11880, subd. (a), counts 1-61), 21 counts of tax evasion (Unemp. Ins. Code, § 2117.5, counts 62-82), one count of making a false claim on an insurance policy (Pen. Code, § 550, subd. (b)(1), count 83), and one count of making a false statement to support insurance compensation (Ins. Code, § 1871.4, subd. (a)(2), count 84). With respect to count 84, defendant admitted the allegations that he took property of a value exceeding $2,500,000 (Pen. Code, § 12022.6, subd. (a)(4)), and that he committed two or more felonies related to fraud or embezzlement, which involved the taking of more than $500,000 (Pen. Code, § 186.11, subd. (a)(2)). On August 29, 2006, the trial court sentenced defendant to a total of nine years in state prison. The trial court awarded him a total of 92 days of custody credit (62 actual, 30 conduct). Defendant did not appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
On or around May 7, 2010, defendant filed, in propria persona, an ex parte application and motion for additional credits under interim section 4019. The trial court denied the motion.
On July 6, 2010, defendant filed a notice of appeal "based on the sentence or other matters that occurred after the plea."
Defendant, in propria persona, then filed a "Motion to Correct Abstract of Judgment," again claiming additional credits under interim section 4019. The trial court denied the motion on September 16, 2010.
DISCUSSION
Defendant Is Not Entitled to Additional Credits
Defendant argues that he is entitled to 32 additional days of custody credits, under interim section 4019, because equal protection requires that the amendment be applied retroactively. We disagree.
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to credits for actual time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793 (Duff).) This is because section 4019 "focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody." (People v. Brown (2004) 33 Cal.4th 382, 405.) Section 4019 credits are awarded or withheld "[a]t the time of sentencing." (Cal. Rules of Court, rule 4.310.) Under the version of section 4019 in effect at the time of defendant's sentencing, former section 4019, he was awarded "two days [of conduct credit] for every four days [he was] in actual presentence custody." (Duff, at p. 793.) After defendant's judgment became final, section 4019 was amended to provide for the granting of two days of conduct credit for every two days of presentence custody for certain defendants. (Interim § 4019, subd. (f).)
We initially note that the appellate courts are divided on the question of the retroactivity of the amendment to section 4019. The issue is currently under review before the California Supreme Court in a number of cases, including one case emanating from this court. In that case, People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314, we concluded that the amendment applies prospectively only. Until the issue is decided by the California Supreme Court, we continue to take that view, for the following reasons:
Under section 3, "'[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication. We recognize that, under In re Estrada (1965) 63 Cal.2d 740, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (Brown, supra, 33 Cal.4th at p. 405.) Accordingly, the section 3 presumption of prospective application is not rebutted.
Because defendant's judgment was final prior to the effective date of the amendment, his claimed entitlement to the additional credits is based only upon equal protection grounds. Of the decisions finding the amendment prospective only, many have subjected the amendment to rational basis scrutiny and rejected equal protection challenges because conduct cannot be influenced retroactively. (See, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724.) However, defendant contends his equal protection challenge subjects the amendment to strict scrutiny because the issue involves the fundamental interest of liberty. We hold that a rational basis test is appropriate, and a rational basis justifies the temporal distinction between persons sentenced before and after interim section 4019 became operative.
"It is a fundamental principle that, '[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] 'In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 571, fn. omitted ["equal protection provisions in the California Constitution 'have been generally thought . . . to be substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution'"].)
In In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette),the court considered a portion of the Determinate Sentencing Act, which added provisions that allowed prisoners to earn conduct credit in prison (§§ 2930 and 2931). (Stinnette, supra, 94 Cal.App.3d at pp. 804-805.) By the express terms of the statute, the credits were to be applied prospectively only. (Ibid.) The court considered whether it was a denial of equal protection to apply the credit provision prospectively. (Id. at p. 805.) The court determined that the statute did not involve any "'suspect' categories such as race, ancestry or national origin," and that it did not "encroach upon any fundamental rights." (Ibid.)The court specifically explained that the challenged statute did not abridge the defendant's "'fundamental interest' in freedom," since it "[did] not authorize confinement of a prisoner for a longer term than he otherwise would have served." (Ibid., fn. 4.) Therefore, the court applied the rational basis test, which merely requires "that the distinction drawn by a challenged statute bears some rational relationship to a conceivable legitimate state purpose. [Citations.]" (Id. at p. 805.) The court in Stinnette cited In re Moreno (1976) 58 Cal.App.3d 740, 743, which stated: "In the context of equal protection, '[a] refusal to apply a statute retroactively does not violate the Fourteenth Amendment.' [Citation.] Equal protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.] The only requirement is that 'classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose.' [Citations.]" (See also Stinnette, at p. 806.) The Stinnette court held that, because the Legislature had the legitimate purpose of "motivating good conduct among prisoners so as to maintain discipline and minimize threats to prison security," the classification involved was reasonable, and there was no equal protection violation. (Ibid.)
In the instant case, defendant was sentenced prior to the effective date of interim section 4019. He was awarded full conduct credits under the version of section 4019 in effect at the time of his sentencing. The gravamen of his contention is that he is similarly situated to, but receiving a sentence that is disparate from, convicts sentenced after interim section 4019 became operative. However, the purported equal protection violation here is temporal, and "'[t]he 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.' [Citation.]" (People v. Floyd (2003) 31 Cal.4th 179, 191 (Floyd).) Furthermore, there is no equal protection violation "'where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.]'" (Stinnette, supra, 94 Cal.App.3d at p. 806.) The only requirement is that the classification between those sentenced before and after the amendment be reasonably related to a legitimate public purpose. (Ibid.)Here, the Legislature had the legitimate purpose of motivating good conduct. As the Stinnette court noted, "[r]eason dictates that it is impossible to influence behavior after it has occurred." (Ibid.) Thus, affording increased conduct credits as of the effective date of the amendment was reasonably related to a legitimate purpose, and there was no equal protection violation. (See Ibid.)
Defendant relies on People v. Caruso (1984) 161 Cal.App.3d 13, 17 (Caruso), People v. Saffell (1979) 25 Cal.3d 223, 228, 235 (superseded by statute as stated in People v. Brunner (1983) 144 Cal.App.3d 934) and People v. Sage (1980) 26 Cal.3d 498, 507-508 (Sage)(superseded by statute as stated in People v. Brunner),for the proposition that he has a fundamental interest in liberty at stake and, thus, a strict scrutiny review applies. However, Caruso applied strict scrutiny in express disagreement with In re Bender (1983) 149 Cal.App.3d 380 (Bender),where the court concluded that the rational basis test applied to the prospective only application of new prison conduct credits. (Caruso, at p. 17.) Our Supreme Court has since favorably cited Bender for the proposition that "'punishment-lessening statutes given prospective application do not violate equal protection.'" (Floyd, supra, 31 Cal.4th at p. 189.) In any event, we agree with the Stinnette court's view that credit provisions do not deprive a defendant of liberty, but rather shorten time served; therefore, a rational basis review is appropriate. (Stinnette, supra, 94 Cal.App.3d at pp. 805-806, fn. 4.)
Furthermore, Sage, supra, 26 Cal.3d 498, involved a prior version of section 4019, which allowed presentence conduct credits to misdemeanants, but not felons. (Id. at p. 508.) The California Supreme Court found that there was neither "a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons." (Ibid.) Sage is distinguishable on the ground that the purported equal protection violation at issue in the instant case is temporal, rather than based on the defendant's status as a misdemeanant or a felon. As stated ante, equal protection does not forbid distinguishing "'between the rights of an earlier and later time.'" (Floyd, supra, 31 Cal.4th at p. 191.)
Defendant also relies on In re Kemp (2011) 192 Cal.App.4th 252, review granted April 13, 2011, S191112. Moreover, the Kemp court relies upon In re Kapperman (1974) 11 Cal.3d 542 (Kapperman),which is not applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, at pp. 544-545.) Kapperman is distinguishable because it addressed actual custody credits, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
We note the People's extensive argument that a rational basis for not applying the January 25, 2010 amendment retroactively is that, to do so, would violate California's separation of powers doctrine. This argument is apparently in response to defendant's citation of Kemp, which states that extending the benefits of the amendment to those whose judgments were final prior to the amendment's effective date would not violate separation of powers. However, since defendant did not discuss the separation of powers in either his opening or reply brief, we find no need to address the issue.
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In sum, defendant is not entitled to additional conduct credits under interim section 4019, as his right to equal protection has not been violated.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.