P. v.
Filed 6/7/13 P. v. Arnold CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. DOYLE ORLANDO ARNOLD, Defendant and Appellant. | H037541 & H038656 (Santa Clara County Super. Ct. Nos. CC817207 & CC775045) |
I. Statement
of the Case
In H037541,
defendant Doyle Orlando Arnold appeals from a judgment entered after the court
revoked probation and sentenced him in two separate cases to concurrent terms
of two years. In H038656, defendant
appeals from a post-judgment order denying his request for additional
presentence conduct credit.
name="_ftnref1" title="">[1] On appeal, he claims that he is entitled to
additional presentence conduct credit.
We disagree and affirm the judgment and
II. Background
On August 29, 2007, in superior court case
No. CC775045, defendant pleaded guilty to possession of a controlled substance,
being under the influence of a controlled substance, and possession of
narcotics paraphernalia, and he admitted a prior prison term allegation. (Health & Saf. Code, §§ 11350, subd. (a),
11550, subd. (a), 11364; Pen. Code, § 667.5, subd. (b).)
and placed him on probation.
On October 23, 2008, in superior court case
No. CC817207, defendant pleaded no contest to passing bad checks and admitted a
prior prison term allegation. (§
476a.) Again, the court suspended
imposition of sentence and granted probation.
On May 22, 2011, defendant returned to
custody due to a probation violation. On
July 13, 2011, defendant
admitted the violation. The court
terminated probation and sentenced him in both cases to concurrent terms of two
years. Concerning credit, the court in
case No. CC775045 granted him 176 days of presentence custody credit and
113 days of conduct credit. The
conduct credit consisted of 60 days calculated under former section 4019 for
the 123 days he spent in custody before January 25, 2010; and 53 days
calculated under former section 2933 for the 53 days he spent in custody after
September 28, 2010. In case No.
CC817207, the court granted defendant 300 days of presentence custody credit
and 175 days of conduct credit. The
conduct credit consisted of 122 days calculated under former section 4019 for
the 247 days he spent in custody before January 25, 2010; and 53 days of credit
calculated under former section 2933 for the 53 days he spent in custody after
September 28, 2010.
After
appealing from the judgment (H037541), defendant filed a motion in the trial
court seeking additional conduct credit.
The court denied the motion. In
August 2012, defendant appealed from the order denying his motion.
II. Discussion
In his post-judgment motion, defendant claimed that
former section 2933, subdivision (e) (Stats. 2010, ch. 426, § 1, eff. Sept. 28,
2010), which provided one-for-one conduct credit, applied to all of the
presentence custody in both cases and not, as the trial court awarded, just to
the 53 days he spent in custody before September 28, 2010, the effective date
of former section 2933, subdivision (e).
one-for-one formula did not apply to all presentence custody, then he was
nevertheless entitled to the additional credit under federal constitutional
principles of equal protection. Thus, in
case No. CC775045, defendant sought an additional 63 days of conduct credit;
and in case No. CC817207, he sought an additional 125 days of credit.
In his
opening brief, defendant acknowledged that Brown, supra, 54
Cal.4th 314 “essentially forecloses†his claims for additional conduct
credit. He reiterates his federal equal
protection claim to preserve the right to
obtain relief in the event that a petition for writ of certiorari is filed
and granted in Brown.
We agree
that the analyses in Brown foreclose defendant’s claims. In Brown, the court explained that
“[c]redits are determined and added to the abstract of judgment at the time of
sentencing, but they are earned day
by day over the course of a defendant’s confinement as a predefined, expected
reward for specified good behavior.†(Brown,
supra, 54 Cal.4th at p. 322.) Thus,
credit is accrued and later calculated under the rate applicable at the time
the period of custody was served, and where a period of custody overlaps
two different accrual rates, both rates are used to determine the total amount
of credit. (Ibid.)
The Brown
court also rejected a claim that the federal equal protection clause required
the retroactive application of the more generous accrual rate in an amendment
to section 4019 to time spent in custody before the amendment became
effective. The court explained that the
purpose of the higher rate was to increase the incentive for good behavior
while in custody. This purpose of the
incentive is served by offering those in custody a higher accrual rate. However, the purpose is not served by awarding
additional credit retroactively for time that has already been served. For this reason, the court concluded that
persons in custody before and after the increased rate became effective were
not similarly situated for purposes of an equal
protection analysis.
Although Brown
addressed an earlier amendment to a different statute and not the amendment to
section 2933 applicable in this case, its explanation concerning when credit is
earned and calculated and its equal protection analysis apply here with equal
force. (See, e.g., People v. Ellis
(2012) 207 Cal.App.4th 1546, 1552 [applying Brown in different but
equivalent legislative context].)
Here, the
court properly calculated conduct credit based on the accrual rates applicable
when defendant was in presentence custody.
He received 53 days of conduct
credit under the one-for-one rate in former section 2933, subdivision
(e), which in effect during the 53 days he spent in actual custody. He was not entitled to have the one-for-one
rate applied to the time he spent in custody before that rate became effective.
Defendant’s
reliance on In re Kapperman (1974) 11 Cal.3d 542 to support his equal
protection argument is misplaced. The Brown
court distinguished Kapperman, and although defendant considers the
distinction identified in Brown to be “irrelevant,†we do not. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
III. Disposition
The
judgment and the post-judgment order denying additional credit are affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
appeals be considered together.
references are to the Penal Code.
