P. v. Conwright
Filed 10/23/12 P. v. Conwright CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
REGINALD CONWRIGHT,
Defendant
and Appellant.
E054032
(Super.Ct.No.
RIF10005561)
OPINION
APPEAL
from the Superior Court
of
County. Albert J.
Wojcik, Judge. Affirmed with directions.
Ava
R. Stralla, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Reginald Conwright, is
serving nine years in prison after a jury found him guilty of
misdemeanor resisting arrest (§ 148,
subd. (a)) and the court found true several prior conviction allegations,
including that he had been convicted of an attempted burglary that qualified as
both a serious felony and a strike.
Defendant argues in this appeal that he is entitled to additional
presentence custody credits under the
version of section 4019 that became effective October 1, 2011.
As discussed below, defendant’s contention on this point has no
merit. However, we do order the abstract
of judgment corrected to reflect the trial court’s oral pronouncement in two
other respects.
and Procedure
On
October 29, 2010, a Riverside couple called 911 to report a burglary in
progress at a neighbor’s house. A police
helicopter and several police officers were dispatched to the scene. Three men were observed running away from the
house and the vehicle that the couple had observed in front of the house drove
away. Defendant was taken into custody
after a foot chase through the neighborhood.
Defendant did not stop attempting to run away until he was tasered. Defendant had in his possession a necklace
belonging to a resident of the house that was burglarized. A camera belonging to the resident was found
on the ground near where defendant was taken into custody. The woman who drove the vehicle away from the
house testified that defendant was one of the three men who had broken into the
house.
On
January 18, 2011, the People filed an amended information charging defendant
with first degree burglary, receiving stolen property, and misdemeanor
resisting arrest. The People also
alleged defendant had suffered a prior prison term (§ 667.5, subd. (b)), and
had both a serious felony prior and a strike prior (§§ 667, subd. (a), 667,
subds. (c)-(e)(1) & 1170.12, subds. (c)(1).)
On
May 9, 2011, a jury found defendant guilty on all three counts.
On
July 14, 2011, the trial court found each of the alleged priors to be true and
sentenced defendant to nine years as follows:
the low term of two years for the burglary, doubled as a second strike,
plus five years for the serious felony prior.
The trial court stayed the sentence for receiving stolen property
pursuant to section 654, imposed 180 concurrent days in jail for the resisting
arrest, and imposed but then struck the one year enhancement for the prior
prison term. The court awarded defendant
259 days of actual credit plus 128 days of conduct credit under section 4019,
for a total of 387 days of pre-sentence custody credit. This appeal followed.
1.
Defendant
argues his presentence custody credits should be calculated under the more
generous, one-for-one
name="_ftnref2" title="">[2] version of section 4019 that became effective
October 1, 2011, despite the statute’s express language (at subd. (h)) that it
applies only to defendants who committed their current crimes on or after
October 1, 2011. This is because,
defendant contends, failing to apply the changes retroactively would violate
his constitutional right to equal protection of the laws (U.S. Const., 14th Amend.,
Cal. Const., art. I, § 7).
“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation]
Accordingly, “‘[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups in an
unequal manner.’†[Citation] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.’â€â€
(People v. Brown (2012) 54
Cal.4th 314, 328 (Brown), citing
Cal.4th 228, 253.)
In support of his
argument, defendant relies on In re
Kapperman (1974) 11 Cal.3d 542 (Kapperman),
and urges that we ignore or distinguish In
re Strick (1983) 148 Cal.App.3d 906 (Strick). We disagree, as explained below.
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, supra, 11 Cal.3d
at pp. 544-545.) However,
credits under section 2900.5, 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.
Section 4019’s
primary purpose is to motivate good conduct.
(People v. Brown (2004) 33
Cal.4th 382 at p. 405; People v. Dieck
(2009) 46 Cal.4th 934, 939.) As our
Supreme Court recently explained when it examined a prior amendment to section
4019 (that also increased conduct credits)
commit their crimes before and after this most recent amendment to section 4019
took effect are not similarly situated because they could not have changed
their behavior in response to the changes.
(See Brown, supra, 54 Cal.4th
314, 328-329.) Accordingly, because
defendant is not similarly situated with prisoners who commit their crimes on
or after October 1, 2011, the prospective application of section 4019 does not
violate his right to equal protection of the laws.
Further, given our
Supreme Court’s explicit approval of prospective-only increases in and
availability of conduct credits under section 4019, we are able to neither
ignore nor distinguish Strick, supra,
148 Cal.App.3d 906, as defendant urges.
We
also note that this conclusion that this most recent amendment to section 4019
does not violate equal protection is in accord with two recent decisions from
other appellate courts, People v. Ellis
(2012) 207 Cal.App.4th 1546 and People v.
Kennedy (2012) 209 Cal.App.4th 385.
2.
Defendant contends,
the People concede, and this court agrees, that the following changes should be
made to the abstract of judgment to accurately reflect the trial court’s
judgment and sentence. First, the prior
prison term enhancement pursuant to section 667.5, subdivision (b), should be
deleted from the abstract of judgment because it was first imposed but then
stricken by the trial court, and the Abstract of Judgment form itself directs
“DO NOT LIST ANY STRICKEN ENHANCEMENTS.â€
Second, section 14 of the abstract of judgment indicates defendant
received 128 days of presentence conduct credit under section 2933.1. This should be changed to correctly reflect
that defendant received these credits under section 4019. This court has the authority to order the
abstract of judgment corrected to conform to the trial court’s oral
pronouncement of judgment. (
380, 385-386.)
Disposition
The superior court
clerk is directed to correct the abstract of judgment as follows: 1) delete
from section 3 the reference to the section 667.5, subdivision (b) enhancement;
and 2) change section 14 to reflect that defendant received the presentence
custody credits under section 4019. The
clerk is further directed to forward a certified copy of the corrected abstract
of judgment to the Department of Corrections and Rehabilitation. (§§ 1213 & 1216.) In all other respects the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
MILLER
J.
name="_ftn1" title=""> [1] All
section references are to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] The legislation (enacted at Stats. 2011-2012,
1st Ex.Sess., c. 12 (A.B. 17)) also provides that the one-for-one credits are
available to defendants, like defendant in this case, who have a prior serious
felony conviction or a “strike†conviction.
