P. v. Fisher

















Filed 5/22/13 P. v. Fisher 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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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 CALIFORNIA>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. VINCENT BURL FISHER, Defendant and Appellant.

E056288 (Super.Ct.No. FMB1100478) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Bernardino
County. Daniel W.
Detienne, Judge. Affirmed.

Sachi
Wilson, 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, Sabrina Lane Erwin and
James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

Pursuant
to a plea agreement, defendant and appellant Vincent Burl Fisher pled guilty to
one count of possession of a controlled
substance for sale (Health & Saf. Code, § 11378) and admitted that
he had served one prior prison term (Pen. Code, § 667.5, subd. (b)).href="#_ftn1" name="_ftnref1" title="">^[1] The crime occurred on September 4, 2011. The trial
court sentenced defendant to four years in state prison and awarded him 255
actual credits and 126 conduct credits, for a total of 381 presentence href="http://www.mcmillanlaw.com/">custody credits. The court also imposed a $240 victim
restitution fine and a $240 parole revocation restitution fine (stayed pending
successful completion of parole).

On
appeal, defendant contends: (1) the
trial court’s imposition of $240 for a restitution fine and a parole revocation
restitution fine under sections 1202.4 and 1202.45 violated the ex post facto
clause; and (2) defendant is entitled to day-for-day conduct credits for his
jail time on and after October 2011. We
affirm.

FACTUAL BACKGROUND

Defendant
pled guilty to possession of a controlled
substance for sale. A police officer
recognized defendant from previous contacts and asked him if he was on
parole. Defendant said yes, and the
officer conducted a parole compliance check.
As the officer was searching defendant for weapons, he felt a bulge in
his pocket that felt like rock salt in a bag.
The officer removed the item from defendant’s pocket. The bag taken from defendant’s pocket
contained 54.10 grams of methamphetamine.

ANALYSIS

I. The Trial Court’s Imposition of $240 For
the Restitution and Parole Revocation Restitution Fines Was a Proper Exercise
of Discretion

Defendant
claims that when the court imposed restitution and parole revocation
restitution fines in the amount of $240, it applied the version of section
1202.4 that had become effective on January 1,
2012. However, since defendant committed his crime
three months before this amended law took effect, the fines are an ex post
facto violation and should be reduced to $200 each. He further claims that his failure to object
to the fines did not forfeit the issue on appeal because the fines were
unauthorized. We disagree.

When
defendant committed his offense in September 2011, the minimum restitution fine
under section 1202.4, former subdivision (b), was $200. Section 1202.4 was amended effective January 1, 2012, and the minimum fine was increased to $240. Defendant argues that the $240 restitution
and parole revocation restitution fines were not authorized by the version of
sections 1202.4 and 1202.45 that were in effect at the time of his crime. However, the trial court had the discretion
to impose a restitution fine ranging from $200 to $10,000 in 2011, and the $240
fine was well within that range. (Former
§ 1202.4.) Thus, while the
prohibition against ex post facto laws applies to restitution fines (>People v. Valenzuela (2009) 172
Cal.App.4th 1246, 1248), the trial court could have imposed a $240 restitution
fine in 2011. Thus, it was not an
unauthorized sentence.

Furthermore,
defendant raised no objection in the trial court to the amount of the
fines. Defendant claims that even though
his trial counsel did not object, the error is cognizable on appeal because the
imposition of the fines was unauthorized.
However, as discussed, the $240 amount was authorized; thus, defendant
forfeited his right to challenge the $240 restitution amount by failing to
object below. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)

II. Defendant Is Not Entitled to Additional
Presentence Custody Credits

On May 15, 2012, the court awarded defendant a total of 381 days of
presentence conduct credit, consisting of 255 actual days and 126 conduct
days. The court based its calculation on
the version of section 4019 that was in effect prior to October 1, 2011, since defendant committed his offense on September 4, 2011. The most
recent amendment to section 4019, effective October 1,
2011,
increased the conduct credit accrual rate.
(§ 4019, subd. (f).)
Defendant argues that he is entitled to the higher rate for the
presentence days he served on and after October 1, 2011, as a matter of href="http://www.mcmillanlaw.com/">statutory construction and equal protection.
We disagree.

A. The Legislature Expressly Indicated Its
Intent That the Increased Rate Applies to Defendants Who Committed Crimes After
October 1, 2011

A
defendant is entitled to actual custody credit for “all days of custody” in
county jail and residential treatment
facilities, including partial days.
(§ 2900.5, subd. (a); People
v. Smith (1989) 211 Cal.App.3d 523, 526.)
Section 4019 provides that a criminal defendant may earn additional
presentence credit against his or her sentence for performing assigned labor (§
4019, subd. (b)), and for complying with applicable rules and regulations
of the local facility (§ 4019, subd. (c)).
These presentence credits are collectively referred to as conduct
credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.)

Section
4019 has been amended several times in recent years. Before January 25, 2010, defendants were
entitled to two days for every four days of actual time served in presentence
custody, or one-for-two conduct credits.
(Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp.
4553, 4554.) Effective January 25, 2010,
the Legislature amended section 4019 to provide that prisoners, with some
exceptions, earned two days of conduct credit for every two days in custody, or
one-for-one credits. (Stats. 2009, 3d
Ex. Sess. 2009-2010, ch. 28, § 50.)
Effective September 28, 2010, the Legislature amended section 4019
again. Subdivisions (b) and (g) restored
the one-for-two presentence conduct credit calculation that had been in effect
prior to the January 25, 2010, amendment.
(Stats. 2010, ch. 426, §§ 1, 2, 5.)

Most recently,
the Legislature amended section 4019 to provide for up to two days credit for
each four-day period of confinement in local custody. (§ 4019, subds. (b) & (c).) This scheme reflects the Legislature’s intent
that if all days are earned under section 4019, a term of four days will be
deemed to have been served for every two days spent in actual custody. (§ 4019, subd. (f).) As relevant here, section 4019, subdivision
(h), provides: “The changes to this section enacted by
the act that added this subdivision shall apply prospectively and shall apply
to prisoners who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior law.”

The
first sentence of section 4019, subdivision (h) states: “The changes to this section . . . shall
apply prospectively and shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime committed on or after October 1, 2011.” (Italics added.) By the first sentence’s plain language, the
changes to section 4019 would not apply to defendant because he committed his
crime prior to October 1, 2011.
Thus, the first sentence leads unmistakably to the conclusion defendant
is not entitled to conduct credit at the enhanced rate. (See People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 51 (Rajanayagam).)

The second sentence in section
4019, subdivision (h) provides: “Any
days earned by a prisoner prior to October 1, 2011, shall be calculated at the
rate required by the prior law.” (§
4019, subd. (h).) Defendant states that
this sentence “suggests” that any days earned by a defendant after
October 1, 2011, should be calculated at the rate required by the current law
(one-for-one credits). Accordingly, he
claims he is entitled to additional conduct credits for the days he spent in
custody on and after October 1, 2011.

“‘“It is an elementary rule of
construction that effect must be given, if possible, to
every word, clause and sentence of a statute.”
A statute should be construed so that effect is given to >all its provisions, so that no part will
be inoperative or superfluous, void or insignificant, and so that one section
will not destroy another unless the provision is the result of obvious mistake
or error.’” (Rodriguez v. Superior
Court (1993) 14 Cal.App.4th 1260, 1269 (Rodriguez),
italics added.) As discussed >ante, subdivision (h)’s first sentence
reflects the Legislature’s intent that the enhanced conduct credit provision to
apply only to those defendants who committed their crimes on or after October
1, 2011. “Subdivision (h)’s second
sentence does not extend the enhanced conduct credit provision to any other
group, namely those defendants who committed offenses before October 1, 2011,
but are in local custody on or after October 1, 2011. Instead, subdivision (h)’s second sentence
attempts to clarify that those defendants who committed an offense before
October 1, 2011, are to earn credit under the prior law.” (Rajanayagam,
supra, 211 Cal.App.4th at
p. 52.) Moreover, we cannot read
the second sentence to imply that any days earned by a defendant after
October 1, 2011, must be calculated at the enhanced conduct credit rate for an
offense committed before October 1, 2011, since that would render the first
sentence superfluous. (Id. at
p. 51; see also, Rodriguez, >supra, 14 Cal.App.4th at p. 1269.)

We
conclude that the enhanced conduct credit provision applies
only to those defendants who
committed their crimes on or after October 1, 2011. (Rajanayagam, supra, 211
Cal.App.4th at p. 52.) Thus, it
does not apply to defendant.

B. Defendant Is Not Entitled to Additional
Conduct Credits Based on Equal Protection

Defendant
further contends that applying the current version of section 4019 to
defendants whose offenses were committed after October 1, 2011, but not to
those, such as defendant, who were sentenced after October 1, 2011 for crimes
committed before October 1, 2011, violates equal protection principles. We disagree.

In
order to succeed on an equal protection claim, defendant must first show that
the state has adopted a classification scheme that affects two or more
similarly situated groups in an unequal manner.
(People v. Hofsheier (2006) 37
Cal.4th 1185, 1199.) For purposes of the
equal protection clause, we do not inquire “‘whether persons are similarly
situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.”’
[Citations.]” (>Id. at pp. 1199-1200.) “If the first prerequisite is satisfied, we
proceed to judicial scrutiny of the classification. Where, as here, the statutory distinction at
issue neither touches upon fundamental interests nor is based on gender, there
is no equal protection violation if the challenged classification bears a
rational relationship to a legitimate state purpose. [Citations.]”
(Rajanayagam, >supra, 211 Cal.App.4th at p. 53; see
also People v. Wilkinson (2004) 33
Cal.4th 821, 838 [the rational basis test applies to equal protection
challenges based on sentencing disparities].)
“Under the rational relationship test, a statutory classification that
neither proceeds along suspect lines nor infringes fundamental href="http://www.mcmillanlaw.com/">constitutional rights must be upheld
against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. [Citation.]”
(Rajanayagam, at p. 53.)

Even
if we were to agree that defendant was similarly situated to other defendants
who committed their crimes after October 1, 2011, we conclude there was no
equal protection violation, since the challenged classification bears a
rational relationship to a legitimate state purpose. The 2011 amendment was enacted as part of the
legislation addressing the state’s fiscal emergency, by effectuating an earlier
release of persons committing offenses on or after October 1, 2011, thus
relieving the state of the cost of their continued incarceration and also
alleviating overcrowding in county jails.
(See Stats. 2011, ch. 12, § 35, pp. 5976-5977; Stats 2011, ch. 15, §
482, pp. 497-498.) We perceive a
legitimate legislative purpose for limiting the extension of additional conduct
credits to persons in local custody for crimes committed on or after October 1,
2011, but not before. We first note that
“the California Supreme Court has stated equal protection
of the laws does not forbid statutes and statutory amendments to have a
beginning and to discriminate between rights of an earlier and later time. [Citation.]”
(Rajanayagam, >supra, 211 Cal.App.4th at p. 55.)

Furthermore,
the Legislature could have determined that the nature and scope of the state’s
fiscal emergency required granting additional conduct credits only to persons
in local custody for crimes committed on or after October 1, 2011, but not
before, in order to strike a balance between the state’s fiscal and
jail-overcrowding problems, on the one hand, and public safety concerns, on the
other. (People v. Verba (2012) 210 Cal.App.4th 991, 997; >Rajanayagam, supra, 211 Cal.App.4th at p. 55.)

We
note defendant’s reliance on In re
Kapperman (1974) 11 Cal.3d 542 (Kapperman),
in support of his claim. >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.
(Rajanayagam, >supra, 211 Cal.App.4th at
p. 56.)

In
sum, a rational basis exists for applying the 2011 amendment to section 4019 to
defendants who committed crimes on or after October 1, 2011, but not to those
who committed crimes before October 1, 2011.
Thus, defendant’s equal protection rights were not violated.



DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



HOLLENHORST

Acting
P. J.





We concur:





RICHLI

J.





MILLER

J.