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People v. Wright

California Court of Appeals, Sixth District
Feb 25, 2011
No. H034988 (Cal. Ct. App. Feb. 25, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KEVIN G. WRIGHT, JR., et al., Defendants and Appellants H034988 California Court of Appeal, Sixth District February 25, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC938953.

BAMATTRE-MANOUKIAN, ACTING P.J.

Defendants Kevin G. Wright, Jr., and Luther Clayton Brock were convicted after jury trial of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Further, the jury found true allegations as to both defendants that the offense was a hate crime within the meaning of section 422.75, subdivision (b). However, the jury found defendants not guilty of attempted robbery (§§ 664, 211, 212.5, subd. (c)). Wright admitted that he had served a prior prison term (§ 667.5, subd. (b)), and the court sentenced him to four years in prison with 355 days presentence credit. The court placed Brock on probation with various terms and conditions, including that he serve a one-year county jail term with 291 days of presentence credit, and that he pay various fines and fees.

All further statutory references are to the Penal Code unless otherwise specified.

On appeal, Wright contends that (1) the court erred and violated his due process rights by failing to give a Dewberry instruction sua sponte; (2) he is entitled to 118 days additional presentence credit pursuant to section 4019 as amended January 25, 2010; and (3) the abstract of judgment should be corrected to reflect that the trial court struck rather than stayed the sentence on the hate crime allegation. Brock contends that (1) the court erred by failing to give a Dewberry instruction sua sponte; (2) he is entitled to additional presentence custody credits under amended section 4019; (3) the matter must be remanded for a determination of his ability to pay the ordered probation supervision fees, presentence investigation fee, and booking fee; and (4) the ordered probation revocation fine must be reduced by $20.

People v. Dewberry (1959) 51 Cal.2d 548.

We will affirm Wright’s judgment but order the abstract of judgment corrected to reflect the trial court’s oral pronouncement of judgment. We will reverse Brock’s judgment and remand the matter to the trial court with directions to determine, in accordance with the applicable statutes, Brock’s ability to pay the ordered probation supervision fees, the presentence investigation fee, and the booking fee. We will also order the suspended probation revocation fine reduced.

BACKGROUND

Defendants were charged by information with attempted second degree robbery (§§ 664, 211, 212.5, subd. (c); count 1) and assault by force likely to produce great bodily injury (§ 245, subd. (a))(1); count 2). The information further alleged that the offenses were hate crimes within the meaning of section 422.75, subdivision (b), and that Wright had served a prior prison term (§ 667.5, subd. (b)). The court granted Wright’s motion to bifurcate trial on the alleged prior.

The information included similar allegations against Steven Williams, Manuel Ray Caruso, and Tyrone Demar Fryman, who are not parties to this appeal. A joint trial was held for all five defendants.

The Trial Evidence

Around 11:00 p.m. on March 29, 2009, Michael Benning, a transgender individual, was walking southbound on Fourth Street in downtown San Jose on her way home. She was wearing a wig and makeup and was dressed as a woman in blue jeans, a gray zippered jacket, and tennis shoes. As she crossed San Salvador Street, she saw five young men on the sidewalk ahead of her at the corner of William and Fourth Streets. When Benning got to that corner and hit the button to get a walk signal, she heard the men say, “Hell no, that’s a damn man.” “You a damn faggot.” “What you doing out here? Oh, hell no, dude.” Benning stepped off the curb to cross the street.

As Benning testified that “I’m... a woman trapped inside of a man’s body, ” we will hereafter use the feminine pronoun when referring to Benning. Benning testified that she had five theft convictions between 1984 and 2006. The parties stipulated that the 2006 conviction was a felony and that the others were misdemeanors.

The five men stood about ten feet away from Benning and looked in her direction. Three of the men, Wright, Brock, and Tyrone Fryman, directed a flurry of derogatory comments at Benning while Manuel Caruso and Steven Williams laughed. Benning held up her hands with her palms outward and said, “I don’t want no trouble.” Fryman said, “We’re gonna take your money.” Although Benning had $10 in the back pocket of her jeans, she said, “What? I don’t have any money.” Wright replied, “We’re gonna take your money.” Benning started to cross William Street without paying attention to the traffic light because she was frightened. She turned to see if the men were following her and saw that they were, so she ran.

When Benning reached the opposite curb, she turned to face the five men and backed up while putting her hands in the front pocket of her jacket where she had her keys. Fryman said, “Yeah, you got some money. It’s in that pocket there.” Benning pulled out her keys and shook them, saying “This ain’t no money, this is keys.” She put the keys back in her pocket. The five men started to surround Benning, blocking the sidewalk, so she stumbled back into the street. All five men swung and kicked at Benning. She tried to block the blows but was hit four or five times in the head and right shoulder and was knocked down in the street. Benning thought that it was Wright, Fryman, and Williams who actually struck her in the face.

There was traffic in the street when Benning was knocked down. When the blows stopped, she looked up and saw that the five men were gone. She got up and ran back to the corner, where she was able to see the men walking fast westbound on William Street. A couple of the men turned around and looked back in Benning’s direction. One of the men, Benning could not remember which one, said, “Oh, he’s trying to follow us. Let’s go back and finish him off.” All five men then stopped, looked around, and headed back towards Benning. Benning turned around and ran across the street towards the gas station on the corner of Fourth and William streets.

As Benning crossed Fourth Street, she ran by a woman who was also crossing the street. She told the woman that she was being assaulted and pointed to the five men. She asked the woman to help her and to call the police. The woman looked startled but did not say anything. Benning continued running towards the gas station. Although there was a sign indicating that the gas station was open, Benning tried the door and found it was locked. Benning then ran diagonally back across Fourth Street. She saw that three of the five men, Wright, Brock, and Caruso, were standing at the corner and that the other two men, Fryman and Williams, were still chasing her.

Benning heard somebody honk their horn as she dodged traffic in the street. Fryman and Williams caught up with Benning in the middle of the street. They hit Benning four or five more times in the head as she screamed for help. Christina Yanez, who was looking out the window of a nearby apartment, saw two men run up to Benning in the middle of the street and punch her in the face. Benning testified that she fell to the ground and that she heard the men say, “Nobody will help you. Nobody will give a damn about you.” Yanez testified that she did not hear Benning scream for help or see Benning fall to the ground; she did hear one of the two attackers say “Bitch” before they laughed and ran back southbound on Fourth Street. Benning headed towards San Salvador Street to find help. The parties stipulated that Yanez called 911 at 11:08 p.m. A uniformed officer found Benning in the area of Second and San Salvador Streets. Benning briefly told the officer what had happened and briefly described the five men. She said that she could identify the men. Benning sustained bruises on her face and right shoulder as a result of the attacks.

Several San Jose Police officers who heard the radio dispatch regarding an assault at Fourth and William Streets proceeded to that area. They stopped five men walking west on William towards Second Street. One of the men, Caruso, was wearing an ankle tracking device. Later, the officer who spoke to Benning took her to Second and William Streets, where she identified the detained men, Wright, Brock, Caruso, Fryman, and Williams, as the five men who attacked her.

Thomas Casillas, Jr., a state parole agent, testified that he placed an ankle tracking devise on Caruso as a condition of his parole. Michael P. Garrett, a technical support manager for Protect Monitoring, the company that manufactured Caruso’s ankle tracking device, testified as to what the device reported regarding Caruso’s whereabouts between 10:48 p.m. and 11:10 p.m. on March 29, 2009.

Verdicts, Admission of the Prior, Motion for New Trial, and Sentencing

On September 2, 2009, the jury found all five defendants not guilty as to count 1 (attempted robbery, §§ 664, 211, 212.5, subd. (c)) and guilty as to count 2 (assault by means of force likely to produce great bodily injury, § 245, subd. (a)(1)), and it found true as to all defendants the allegation that the assault was a hate crime (§ 422.75, subd. (b)). Wright then waived his right to a jury trial on the prison prior allegation (§ 667.5, subd. (b)), and on September 4, 2009, he admitted the prior.

The jury also found Fryman and Williams guilty of a second assault with a hate crime allegation.

On September 22, 2009, Wright filed a motion for new trial or, in the alternative, to modify the verdict. (§ 1181, subd. 6.) Wright contended that “the weight of the evidence does not support a claim that the degree of force employed [during the assault] was such that it was likely to produce great bodily injury.” Brock joined in the motion. The prosecutor filed opposition to the motion on October 1, 2009. Following a hearing on October 9, 2009, the court denied the motion. The court then suspended imposition of sentence and granted Brock probation for three years with various terms and conditions, including that he serve a 12-month county jail term with 291 days presentence credit; that he pay a restitution fine of $200 and a 10 percent administration fee pursuant to section 1202.4, with a suspended “additional equal probation revocation fine” pursuant to section 1202.44; and that he pay “[a] Criminal Justice Administration fee to the City of San Jose in the amount of $129.75... pursuant to Government Code [section] 29550.” The court separately ordered, not as a condition of probation, that Brock pay “[a] pre-sentence investigation fee not to exceed $450” pursuant to section 1203.1b, and a “probation supervision fee not to exceed $110 per month” pursuant to section 1203.1b.

On November 20, 2009, the court sentenced Wright to four years in prison. The sentence consists of the middle term of three years for the assault (§ 245, subd. (a)(1)) and one year for the prison prior (§ 667.5, subd. (b)). The court struck the additional punishment for the hate crime enhancement (§ 422.75, subd. (b)), and granted Wright 355 days presentence custody credit.

DISCUSSION

Dewberry Instruction

Prior to trial, the prosecutor informed the court and defendants that he would be requesting jury instructions on the lesser-included offense of misdemeanor assault (§ 240) and the hate-crime allegation associated with that charge (§ 422.7, subd. (a)). Counsel for Wright contended that misdemeanor assault with a hate-crime enhancement could not be considered a lesser-included offense of the assault and enhancement charged in count 2. The prosecutor then moved to amend the information to add misdemeanor assault and the hate-crime enhancement as “alternate count 2” so that the jury would not “get the impression that the defendants can be convicted or should be convicted of both the greater assault, which is the assault by force likely[, ] as well as the simple assault.” “I had hoped that we would just treat it as [a lesser-included offense], but I understand [Wright’s] position that he does not believe the hate crime enhancement under [section] 422.7 is [a lesser-included offense], if you will, of [section] 422.75, and because he... opposed that, I think for appellate purposes and down the line it would probably just be cleaner to add it as an alternate count, and that’s what I’m... moving to do in this case.” After hearing argument from the parties, the court ruled that it was “going to allow this amendment, ” “[t]hough I do believe we’re going to need to give an instruction to the jury of how it treats the alternate counts, that it’s also only to get [to] the alternate count [if] it concludes the defendant [is] not guilty [of], for lack of a better term, [the] main count.” The prosecutor stated that one of the instructions he had proposed would do that.

During the parties’ later discussion with the court of the proposed instructions, the court stated that it had a duty to give CALCRIM No. 3516 as defendants were charged with alternate charges as to count 2. The parties then discussed the prosecutor’s proposed version of CALCRIM No. 3519. Other than inserting “a sentence that was omitted from the end three paragraphs, ” the parties did not object to or request modification of the instruction as proposed by the prosecutor. The court later instructed the jury with these two instructions as to count 2 as follows:

“The defendant is charged in Count 2 with assault by means of force likely to produce great bodily injury, and in Alternate Count 2 with simple assault. These are alternate charges. If you find the defendant guilty of one of these you must find him not guilty of the other. You cannot find the defendant guilty of both.” (See CALCRIM No. 3516.)

“If all of you find that the defendants is or are not guilty of a greater charged crime, that is assault by force likely, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant[s] is or are guilty of that lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [¶] Now, I will explain to you which charges are affected by this instruction. Simple assault is charged in Alternate Count 2 as a lesser crime to assault by force likely as charged in Count 2. [¶]... [¶] It is up to you to decide the order in which you consider each greater and lesser crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime, simple assault, only if you have found the defendant not guilty of the greater crime assault by force likely. [¶] For any count in which a greater and lesser crime is charged you will receive verdict forms of guilty and not guilty for the greater and lesser crimes. Follow these directions before you give me any completed and signed final verdict form. Return any unused verdict forms to me unsigned. [¶] If you all agree the People have proved beyond a reasonable doubt that the defendants is or are guilty of the greater crime assault by force likely, complete and sign the verdict form for guilty of that crime. Do not complete or sign any verdict form for the corresponding lesser crime, simple assault. [¶] If all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, assault by force likely, inform me of your disagreement and do not complete or sign any verdict form for that crime or the corresponding lesser crime, simple assault. [¶] If you all agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, assault by force likely, and also agree that the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, simple assault, complete and sign the verdict form for not guilty of the greater crime, and the verdict form for guilty of the corresponding lesser crime. Do not complete or sign any other verdict forms for those charges. [¶] If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater or lesser crime, complete and sign the verdict form for not guilty of the greater crime, and verdict form for not guilty of the corresponding lesser crime. [¶] If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, assault by force likely, but all of you cannot agree on a verdict for the lesser crime, simple assault, complete and sign the verdict form for not guilty of the greater crime, and inform me about your disagreement on the lesser charge.” (See CALCRIM No. 3519.)

The court also instructed the jury pursuant to CALCRIM No. 220 as follows: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt they are entitled to acquittal and you must find them not guilty.”

Defendants now contend that the court prejudicially erred when it failed to instruct the jury sua sponte pursuant to Dewberry, supra, 51 Cal.2d 548, “that if a reasonable doubt existed as to which offense was committed, [their] liability could not extend beyond the lesser offense.” “[S]ince the record is clear that this instruction was not given, and that the other instructions did not convey to the jury the same information, the trial court committed an instructional error and also violated [defendants’] Fourteenth Amendment rights.” The Attorney General contends that, “because the trial court properly instructed the jury pursuant to CALCRIM [No.] 3519, ... [n]o additional instruction based on section 1097 was necessary.”

Section 1097 states that, “[w]hen it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.” Accordingly, our Supreme Court stated in Dewberry that “when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Dewberry, supra, 51 Cal.2d at p. 555.) The failure to do so in that case was prejudicial error as the trial court instructed the jury to return a verdict of second degree murder if there was reasonable doubt about first degree murder, but it did not instruct the jury to apply the same rule to second degree murder and manslaughter. (Id. at p. 557.)

People v. Aiken (1971) 19 Cal.App.3d 685 (Aiken), disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 512-514, determined that a Dewberry instruction should be given sua sponte when a jury must decide between an offense and a lesser included offense. (Aiken, supra, at pp. 703-704; see also People v. Crone (1997) 54 Cal.App.4th 71, 76-78 (Crone).) People v. Reeves (1981) 123 Cal.App.3d 65 (Reeves), disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 919, followed Aiken and also concluded that CALJIC No. 17.10 (which is embodied in CALCRIM No. 3519) does not sufficiently inform a jury how to resolve a reasonable doubt between two offenses. (Reeves, supra, 123 Cal.App.3d at p. 70.) The Reeves court concluded, however, that the error in that case was harmless under People v. Watson (1956) 46 Cal.2d 818, because the trial court’s instructions on reasonable doubt, including CALJIC No. 17.10, had adequately informed the jury that it had “the option of convicting appellant of only the lesser offense if it entertained such a doubt.” (Reeves, supra, at p. 70.)

CALJIC No. 17.10 states in relevant part: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] [The crime of _____ [as charged in Count __] is lesser to that of _____ charged in Count _____.] [¶]... [¶] Thus, you are to determine whether [a] [the] defendant[s] [is] [are] guilty or not guilty of the crime[s] charged [in Count[s] ___] or of any lesser crime[s]. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach a tentative conclusion on all charges and lesser crimes before reaching any final verdict[s]. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the defendant not guilty of the [charged] [greater] crime.”

Later cases concluded that CALJIC No. 17.10 sufficiently conforms to the Dewberry mandate. The court in People v. St. Germain (1982) 138 Cal.App.3d 507 (St. Germain), at page 522, footnote 9, disagreed with Reeves, and concluded that “[i]n giving CALJIC No. 17.10, the trial judge adhered precisely to Dewberry and section 1097 which that decision took pains to interpret.” (Id. at p. 521.) The court upheld the trial court’s refusal to give a Dewberry instruction in addition to CALJIC No. 17.10. (Id. at p. 522.)

The court in People v. Gonzalez (1983) 141 Cal.App.3d 786, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, held that “CALJIC Nos. 17.10 and 17.11 are tailor-made to express the Dewberry concept.” (Gonzalez, supra, at p. 793.) The court expressly disagreed with “anything in Reeves which indicates that CALJIC No. 17.10 by itself was in any way insufficient.” (Id. at p. 794, fn. 8.)

The court in People v. Barajas (2004) 120 Cal.App.4th 787, agreed with the St. Germain court’s reasoning (Barajas, supra, at p. 794), and found that “CALJIC No. 17.10 satisfies the requirements of Dewberry.” (Barajas, supra, at p. 793.) “If a jury is convinced beyond a reasonable doubt that a defendant is guilty of either a greater or a lesser offense, this can only be because it has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser. Under these circumstances, CALJIC No. 17.10 instructs the jury to convict of the lesser offense.” (Ibid.)

In this case, the court instructed the jury on reasonable doubt (CALCRIM No. 220), on the elements of the greater offense of assault with force likely to produce great bodily injury (CALCRIM No. 875), and on the lesser offense of simple assault (CALCRIM No. 915). The court also instructed the jury on how to proceed if it entertained a reasonable doubt about convicting a defendant for the greater, as opposed to the lesser assault offense (CALCRIM No. 3519), and that it could not convict a defendant of both offenses (CALCRIM No. 3516). Thus, we agree with the St. Germain court that the instructions the trial court gave in this case enunciated what the Reeves court found that CALJIC No. 17.10 did not: “namely, [they] instruct[ed] the jury that if it finds the prosecution has not sustained its burden of proving each element of the greater offense beyond a reasonable doubt, but finds that the prosecution has sustained its burden of proving the elements of the lesser offense beyond a reasonable doubt, then it must return a guilty verdict of the lesser offense only. In light of our conclusion, the additional instruction mandated by Reeves is redundant....” (St. Germain, supra, 138 Cal.App.3d at p. 522, fn. 9.) We therefore conclude that defendants’ claim of Dewberry error is meritless.

We also note that the Bench Notes for CALCRIM No. 3519 state that the court has a sua sponte duty to give the instruction pursuant to Dewberry “[w]henever greater and lesser included crimes are separately charged, ” as they were in this case.

Even if we were to find that Dewberry error occurred in this case, we would find the error harmless. Such error requires reversal only if it is reasonably probable a defendant would have received a more favorable verdict had the instruction defendant sets forth been given. (Dewberry, supra, 51 Cal.2d at p. 548; Reeves, supra, 123 Cal.App.3d at p. 70; Crone, supra, 54 Cal.App.4th at pp. 78-79.) Here, after reviewing the record in this case, we find that it is not reasonably probable either Wright or Brock would have received a more favorable verdict had an additional instruction as defendants argue on appeal been given. The prosecution alleged that the assault on Benning by all five defendants had been committed with force likely to produce great bodily injury. In instructing on this allegation, the trial court gave a Dewberry-type instruction when it told the jury that “[i]f you all agree the People have proved beyond a reasonable doubt that the defendants is or are guilty of the greater crime, assault by force likely, complete and sign the verdict form for guilty of that crime.... [¶]... [¶] If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime, assault with force likely, and also agree the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, simple assault, complete and sign the verdict form not guilty of the greater crime and the verdict form for guilty of the corresponding lesser crime.” The jury found defendants guilty of assault by force likely to produce great bodily injury rather than the lesser offense of simple assault. Given the jury’s verdict, it is not conceivable that the jury had any reasonable doubt that the offense was assault by force likely to produce great bodily injury. Moreover, the jury was instructed that it could not find either defendant guilty of any offense unless it unanimously found that the People proved every element of the offense beyond a reasonable doubt. (CALCRIM No. 220.)

In addition, the jury was instructed that to prove assault by force likely to produce great bodily injury, “the People must prove beyond a reasonable doubt that the defendant did an act which by its nature would directly and probably result in the application of force to the person of... Benning and, that the force used was such that it was likely to produce great bodily injury. That is, force that is likely to cause a significant or substantial physical injury, an injury greater than minor or moderate harm.” The record shows that all five defendants swung and kicked at Benning, that several blows actually made contact with her head causing her to fall to the ground in the street, and that she received injuries to her face and right shoulder as a result of the defendants’ assault. On this record, we cannot say that it is reasonably probable either Wright or Brock would have received a more favorable verdict had an additional instruction as mandated by Reeves been given. (Cf. Dewberry, supra, 51 Cal.2d at p. 558; Reeves, supra, 123 Cal.App.3d at p. 70.) Accordingly, we conclude that any Dewberry error was harmless.

Presentence Credits

Both defendants contend that they are entitled to additional presentence credits pursuant to section 4019 as amended effective January 25, 2010. Wright contends that he is entitled to 236 rather than 118 days of presentence credit and Brock contends that he is entitled to 194 rather than 96 days of presentence credit.

Section 4019 provides for presentence credits for worktime and for good behavior. (§ 4019, subds. (b)(1) & (c)(1).) These presentence credits are collectively referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 (Dieck).) Section 4019’s conduct credit scheme “ ‘ ‘focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Id. at p. 939.)

At the time of defendants’ sentencing hearings in 2009, section 4019 provided that a defendant could accrue conduct credit at a rate of two days for every four-day period of actual presentence custody. (Former § 4019, subds. (b), (c), & (f); Dieck, supra, 46 Cal.4th at p. 939.) Section 4019 was amended effective January 25, 2010, to allow qualifying defendants to earn conduct credit at a rate of four days for every four days of presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Defendants contend that because their convictions were not final when the amendment became effective on January 25, 2010, they are entitled to additional conduct credit in accordance with the formula provided in that amendment. The Attorney General contends that defendants are not entitled to additional conduct credit because the amendment should be applied prospectively.

The statute was amended again effective September 28, 2010.

The issue of whether a statutory amendment applies retroactively is determined under the independent standard of review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) The specific question of whether the amendment to section 4019 effective January 25, 2010, applies retroactively has divided the appellate courts and is presently pending before our Supreme Court. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [the amendment applies retroactively]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [the amendment applies prospectively].)

We believe that the amendment to section 4019 effective January 25, 2010, applies prospectively. Section 3 states that no part of the Penal Code is “retroactive, unless expressly so declared.” Our Supreme Court has held that section 3 “mean[s] ‘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 (Alford).) Therefore, absent “an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).)

The amendment to section 4019 effective January 25, 2010, contains no “ ‘express declaration of retroactivity.’ ” (Alford, supra, 42 Cal.4th at p. 753.) Accordingly, we must evaluate whether there is “ ‘a clear and compelling implication’ ” that the Legislature intended retroactivity. (Ibid.)

The amendment to section 4019 effective January 25, 2010, was intended to address California’s fiscal emergency by reducing the prison population. (See Stats. 2009, 3d Ex. Sess, 2009-2010, ch. 28, §2.) This fact, however, does not suggest that there was an implied intent that the amendment be applied retroactively. Both a prospective, as well as a retroactive, application of the amendment would effect savings through a reduction in prisoners’ terms, thereby addressing the state’s fiscal emergency, although retroactive application of the amendment might result in greater savings to the state.

Section 59 of the act underlying the amendment to section 4019 effective January 25, 2010, contemplated that there would be “delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act.” This also does not suggest a clear implication that the Legislature intended the amendment to section 4019 be retroactive. The act amended other credit statutes besides section 4019 and at least one of those statutes, section 2933.3, specifies retroactive credit. Accordingly, the language in section 59 of the act regarding the calculation of additional credits applies to section 2933.3, and such language would not be surplusage were we to find that the amendment to section 4019 applies retroactively.

“The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action of claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.” (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 59.)

Both defendants rely on In re Estrada (1965) 63 Cal.2d 740, in support of their retroactivity arguments. In Estrada, our Supreme Court held that “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.) However, the rule in Estrada does not apply in the present case because the amendment to section 4019 effective January 25, 2010, does not necessarily lessen a defendant’s punishment. Rather, it provides for additional conduct credit that a defendant must earn, as contrasted with additional custody credit that a defendant may receive solely as a result of being in presentence custody (§ 2900.5). Since the state cannot influence the behavior of defendants who have been in presentence custody where that custody (and hence the behavior) has already occurred, the amendment’s purpose of rewarding good behavior would not be served by retroactive application of the amendment.

Nor are we persuaded by defendants’ contention that retroactive application of the amendment is necessary based on equal protection principles under the authority of People v. Sage (1980) 26 Cal.3d 498 (Sage) and In re Kapperman (1974) 11 Cal.3d 542. Kapperman does not apply because it addressed custody credit, not conduct credit. (Kapperman, supra, at pp. 544-545.) As we stated above, custody credits are awarded automatically, while conduct credit must be earned.

Sage is also inapposite. In that case, our Supreme Court discussed a prior version of section 4019 that allowed presentence conduct credit to misdemeanants but not to certain felons. (Sage, supra, 26 Cal.3d at p. 507.) The court concluded that there was no rational basis, much less a compelling state interest, for the distinction. (Id. at p. 508.) In contrast, the issue in this case concerning the amendment to section 4019 effective January 25, 2010, is temporal rather than based on the defendant’s status as a felon or misdemeanant. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for the Legislature’s implicit intent that the amendment granting additional conduct credit apply prospectively.

Because there is neither “ ‘an express declaration of retroactivity’ ” (Alford, supra, 42 Cal.4th at p. 753), nor anything in the act underlying the amendment to section 4019 effective January 25, 2010, which provides the necessary “ ‘clear and unavoidable implication negat[ing] the presumption’ ” provided in section 3 (Evangelatos, supra, 44 Cal.3d at p. 1208), we conclude that the amendment operates prospectively. Therefore, defendants are not entitled to the additional presentence credits they seek.

Correction of Abstract of Judgment

When sentencing Wright, the court exercised its statutorily authorized discretion to strike the punishment for the hate-crime enhancement. (§ 422.75, subds. (b) & (g).) However, the abstract of judgment states that the punishment was stayed rather than stricken. Wright requests that we order the abstract of judgment corrected, and the Attorney General agrees that it should be corrected. Accordingly, we will so order.

Fines and Fees

Brock contends that the court erred in ordering the presentence investigation fee “not to exceed $450, ” and the probation supervision fee “not to exceed $110 per month, ” pursuant to section 1203.1b, and the criminal justice administration or booking fee of $129.75 pursuant to Government Code section 29550, because the record contains no evidence that he has the ability to pay these fees. He argues that the matter must be remanded so that the trial court can hold a hearing to determine whether he has the ability to pay the fees. The Attorney General agrees.

In People v. Pacheco (2010) 187 Cal.App.4th 1392, at page 1400 (Pacheco), this court held that “a prerequisite to the imposition of a booking fee... under Government Code section 29550... is a finding, whether express or implied, of the defendant’s ability to pay. Such a finding must be supported by substantial evidence. Further, a booking fee must not exceed the actual administrative costs of booking, as further defined in the relevant statutes.” Because there was no evidence in the record in that case of either the defendant’s ability to pay a booking fee, particularly as a condition of probation, or of the actual administrative costs of his booking, we reversed the judgment and remanded the matter to the trial court with directions to determine the defendant’s ability to pay the fee. (Id. at p. 1404.)

This court also held in Pacheco that section 1203.1b sets out a procedure to follow to determine a defendant’s ability to pay probation-related costs such as a probation supervision fee and a presentence investigation fee. Because the statutory procedure provided by section 1203.1b for the determination of the defendant’s ability to pay those fees was not followed in that case (Pacheco, supra, 187 Cal.App.4th at p. 1401), this court also directed the superior court to determine the defendant’s ability to pay these fees on remand. (Id. at p. 1404.)

Section 1203.1b states in relevant part: “(a) In any case in which a defendant is convicted of an offense and is the subject of any... presentence investigation and report, ... and in any case in which a defendant is granted probation... the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision..., of conducting any presentence investigation and preparing any presentence report.... The reasonable cost of these services and of probation supervision... shall not exceed the amount determined to be the actual average cost thereof.... The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant’s ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver. [¶] (b) When the defendant fails to waive the right provided in subdivision (a) to a determination of the court of his or her ability to pay and the payment amount, the probation officer shall refer the matter to the court for the scheduling of a hearing to determine the amount of the payment and the manner in which the payments shall be made. The court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report ot the probation officer, or his or her authorized representative.... [¶]... [¶] (e) The term ‘ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of conducting the presentence investigation, preparing the... presentence report, ...and probation supervision..., and shall include, but shall not be limited to, the defendant’s: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant’s financial capability to reimburse the county for the costs.”

In this case the probation officer recommended that Brock pay a criminal justice administration or booking fee of $129.75 pursuant to Government Code section 29550 as a condition of probation, and that he also pay a presentence investigation fee not to exceed $450 and a probation supervision fee not to exceed $110 per month pursuant to section 1203.1b. However, there is no evidence in the record that there was a determination of Brock’s ability to pay the recommended fees prior to the court’s order that he pay them. Nor is there any evidence that the statutory procedure provided for in section 1203.1b for a determination of Brock’s ability to pay the probation-related fees was followed. Accordingly, we must remand the matter to the trial court with directions to determine, in accordance with the applicable statutes, Brock’s ability to pay these ordered fees.

Brock separately contends that the 10 percent administration fee imposed with the $200 suspended probation revocation fine pursuant to section 1202.44 was improper. The Attorney General concedes that although section 1202.4 allows the court to impose a fee “to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, ” there is no such provision in section 1202.44. The minute order states that both the ordered restitution fine and the suspended probation restitution fine are $220. Accordingly, we will order the suspended probation revocation fine be reduced to $200.

DISPOSITION

The judgment as to Wright is affirmed. The clerk of the superior court is directed to prepare a corrected abstract of judgment striking the punishment on the section 422.7, subdivision (b) enhancement, and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

The judgment as to Brock is reversed. The matter is remanded with directions to the trial court to determine, in accordance with the applicable statutes, Brock’s ability to pay the ordered $129.75 criminal justice administration fee, the $110 probation supervision fee, and the $450 presentence investigation fee before reimposing them. The court shall also delete the $20 administration fee imposed on the suspended $200 probation revocation fine.

WE CONCUR: MIHARA, J., DUFFY, J.


Summaries of

People v. Wright

California Court of Appeals, Sixth District
Feb 25, 2011
No. H034988 (Cal. Ct. App. Feb. 25, 2011)
Case details for

People v. Wright

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEVIN G. WRIGHT, JR., et al.…

Court:California Court of Appeals, Sixth District

Date published: Feb 25, 2011

Citations

No. H034988 (Cal. Ct. App. Feb. 25, 2011)