P. v. Hollowell
Filed 6/5/13 P. v. Hollowell CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TROY JASON HOLLOWELL,
Defendant and Appellant.
C072075
(Super. Ct. No. 11F06405)
Defendant
Troy Jason Hollowell appeals from a judgment after he pled no contest to
intent to defraud (Pen. Code, § 475, subd. (c))
and identity theft with a prior identity
theft conviction (§ 530.5, subd. (c)(2)), and admitted one strike
(§§ 667, subds. (b)-(i), 1170.12) and five prior prison term
(§ 667.5, subd. (b)) allegations.
On appeal,
defendant contends the trial court’s failure to award additional conduct
credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment
Act) (Stats. 2011, ch. 15, § 482) deprived him of equal protection
under the law. We disagree and affirm
the judgment.
FACTS
Defendant
committed the crimes for which he was convicted on September 15, 2011. On July
2, 2012, the trial court sentenced defendant to serve nine years in
state prison and awarded 435 days of presentence credit, consisting of 291
actual days and 144 days of conduct credit.
The trial
court calculated defendant’s conduct credits under the September 28, 2010, revision of the
presentence custody credit law. Under that version, a defendant with a
current or prior serious or violent felony conviction was entitled to two days
of conduct credit for every four days of presentence custody. (Former §§ 2933, 4019 (Stats. 2010,
ch. 426, § 2).)
DISCUSSION
Operative
October 1, 2011, the Realignment Act amended section 4019 to enhance the
rate at which defendants could earn conduct credits from two days for every
four days actually served (former § 4019) to two days for every two days
actually served (amended § 4019, subd. (f)). The Realignment Act also added subdivision
(h) to section 4019, which 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 [specified facilities] 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.â€
On appeal,
defendant contends he is entitled to have his presentence conduct credits
calculated at the enhanced rate provided by the Realignment Act for his days in
custody from October 1, 2011, to July 2, 2012. He argues that for defendants who committed
offenses prior to October 1, 2011, principles of equal protection compel
the application of section 4019 to defendants in presentence custody from
October 1, 2011, to the date of sentencing. Consistent with the reasoning of other
appellate courts, we reject defendant’s equal protection argument.
In
314 at pages 318-322 (Brown), our
Supreme Court held that under general rules of statutory construction a prior
amendment to section 4019 must be read prospectively only, even though the
Legislature did not expressly so state, and even though this meant “prisoners
whose custody overlapped the statute’s operative date . . . earned
credit at two different rates.†(
p. 322.) The court reasoned that
“the important correctional purposes of a statute authorizing incentives for
good behavior [citation] are not served by rewarding prisoners who served time
before the incentives took effect and thus could not have modified their
behavior in response. That prisoners who
served time before and after former section 4019 took effect are not similarly
situated necessarily follows.†(
896, 906, fn. 9.)
Defendant
argues that unlike the defendant in Brown,
he is similarly situated for purposes of conduct incentives to other defendants
who are in presentence custody on or after October 1, 2011. Defendant contends there are two groups of
similarly situated prisoners: those in
presentence custody on or after October 1, 2011, for crimes committed
before that date and those in presentence custody on or after October 1,
2011, for crimes committed on or after that date. He next argues there is no rational basis to
deny enhanced presentence custody credits
to those who committed crimes before October 1, 2011, and who are in
presentence custody after this date because it is not reasonably related to a
legitimate public purpose.
Two
appellate courts, relying on Brown’s
reasoning, have rejected the equal protection argument defendant raises as to
the October 1, 2011, amendment to section 4019. (Ellis,
supra, 207 Cal.App.4th at pp. 1551-1553; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-399 (
of Brown, supra, 54 Cal.4th 314
applies with equal force to the current version of section 4019.
Even
assuming the two groups of defendants are similarly situated for purposes of
the October 1, 2011, amendment to section 4019, we conclude the
classifications bear a rational relationship to a legitimate state
purpose. Like the appellate courts in
that applied the equal protection rational basis test, there are several
legitimate reasons for making the enhanced presentence conduct credits
applicable only to those who commit their crimes on or after October 1, 2011,
including cost savings measured against public safety (Verba, supra, 210 Cal.App.4th at pp. 996-997;
maintaining the desired deterrent effect of penal laws by carrying out the
punishment in effect at the time defendants commit their offenses (
p. 398, Verba, supra, 210
Cal.App.4th at p. 997), and the Legislature’s right to control the risk of new
legislation by limiting its application (Verba,
supra, 210 Cal.App.4th at p. 997).
For these
reasons, we reject defendant’s equal protection argument.
DISPOSITION
The
judgment is affirmed.
HOCH , J.
We concur:
RAYE , P. J.
HULL , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2]
Defendant does not make a statutory construction argument based on the language
in subdivision (h) of section 4019.
Thus, we do not need to address this argument. However, we note two appellate decisions have
rejected this statutory construction argument.
(See People v.
211 Cal.App.4th 42 (Rajanayagam).)
