P. v. Robinson
Filed 8/12/13 P. v. Robinson 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opinion has not been certified for publication or ordered published for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.
JULIUS JAY ROBINSON,
Defendant and
Appellant.
H037743, H038460
(Monterey
County
Super. Ct.
No. SS111497A)
Pursuant to
a plea agreement, Julius Robinson (appellant) pleaded no contest to one count
of possession of cocaine for sale
(Health & Saf. Code, § 11351), admitted that he had a prior drug conviction
within the meaning of Health and Safety Code section 11370.2,
and that he had a prior strike conviction for
(c)(1)). In exchange for his plea,
appellant was promised a seven year prison term. Appellant filed a timely
hearing. However, while that appeal was
pending, counsel filed a motion for an order "correcting the erroneous
computation of presentence credits."
That motion was denied; thereafter appellant filed a notice of appeal
from that denial on June 14, 2012.
name="_ftnref2" title="">[2]
As the sole
issue on appeal concerns the award of presentence custody credits, the facts
underlying appellant's case are not relevant to the appeal. However, briefly, we set forth the
proceedings from the sentencing hearing
that occurred on December 8, 2011, the hearing on appellant's motion to correct
his custody credits, and other pertinent facts.
Facts and Proceedings Below
The crime
to which appellant entered his no contest plea was alleged to have occurred on
August 9, 2011.
When the
court imposed the agreed upon seven year prison term, the court awarded
appellant 181 days of presentence credit consisting of 121 actual days and 60
days of conduct credits. According to
the probation officer's report, appellant committed his offense on August 9,
2011; he was arrested on August 10, 2011.
The probation officer calculated appellant's actual days in custody as
121 days and calculated his presentence conduct credits at the rate of 33
percent.
As noted,
subsequently, appellant filed a motion to correct his
amendment to Penal Code section 4019 that became operative on October 1, 2011,
had to be applied to all his presentence custody by virtue of the equal
protection clauses of the state and federal Constitutions; alternatively,
appellant argued that amendments to Penal Code sections 2933 and 4019 should be
applied to all the days he was in custody after October 1, 2011.
When the
trial court denied the motion to correct appellant's custody credits, the court
indicated that since a notice of appeal had been filed, it lacked jurisdiction
to hear appellant's request to correct his custody credits. However, the court stated that even if it had
jurisdiction, it would deny the motion.
On appeal,
appellant argues that pursuant to principles of statutory construction and
equal protection, he is entitled to additional presentence conduct credits for
the period of custody he served on or after October 1, 2011.
Before we
address this issue, we note that appellant spends several pages belatedly
arguing that this issue is cognizable on appeal. As we shall explain, we find many reasons for
concluding that this issue is cognizable on appeal.
"There
is no constitutional right of appeal from a judgment or order in criminal
cases; rather the right of appeal is statutory.
[Citations.]" (People v.
Connor (2004) 115 Cal.App.4th 669, 677.)
Penal Code section 1237, subdivision (a) permits a defendant to appeal
"[f]rom a final judgment of conviction except as provided in Section
1237.1 . . . ." In turn, Penal Code
section 1237.1 provides: "No appeal shall be taken by the defendant from a
judgment of conviction on the ground of an error in the calculation of
presentence custody credits, unless the defendant first presents the claim in
the trial court at the time of sentencing, or if the error is not discovered
until after sentencing, the defendant first makes a motion for correction of
the record in the trial court."
However that statute "does not require defense counsel to file [a]
motion to correct a presentence award of credits in order to raise that
question on appeal when other issues are litigated on appeal"; if there
are no other issues, however, "the filing of a motion in the trial court
is a prerequisite to raising a presentence credit issue on appeal." (People v. Acosta (1996) 48
Cal.App.4th 411, 427–428, fn. omitted.)
Of course, in this case appellant did file a motion to
"correct" his presentence custody credits, which was denied. Even if appellant had not filed that motion,
"Penal Code section 1237.1 does not preclude a defendant from raising, as
the sole issue on an appeal, a claim his or her presentence custody credits
were calculated pursuant to the wrong version of the applicable
statute." (People v. Delgado (2012) 210
Cal.App.4th 761, 763.)
Furthermore, a trial court's failure
to award the correct amount of presentence
custody credit due to miscalculation
or legal error is a jurisdictional defect that renders the sentence an
unauthorized sentence. (People v.
Taylor (2004) 119 Cal.App.4th 628, 647.)
It is settled that an unauthorized sentence is "subject to judicial
correction whenever the error [comes] to the
attention of the trial court or a reviewing court. [Citations.]" (People v. Serrato (1973) 9 Cal.3d
753, 763, italics added, disapproved on other grounds in People v. Fosselman
(1983) 33 Cal.3d 572; see People v. Karaman (1992) 4 Cal.4th 335,
345-346, fn. 11 [even after jurisdiction has expired, trial court may
v. Fares (1993) 16 Cal.App.4th 954, 958 [no time limit to seek
Cal.App.3d 816, 818-819 [trial court had jurisdiction to correct
improper calculation of conduct credits long after time
for filing appeal had expired].)
Moreover, an order declining to
in the present case affects appellant's
substantial rights and is appealable under Penal Code
section 1237, subdivision (b).
That being said, we note that when
appellant changed his plea, he executed a "WAIVER OF RIGHTS PLEA OF GUILTY
NO CONTEST" form in which he acknowledged that he waived and gave up
"all rights regarding state and federal writs and appeals" including
"the right to appeal [his] conviction, the judgment, and any other orders
previously issued by this court."
In addition, he agreed "not to file any collateral attacks on [his]
conviction or sentence at any time in the future."
Nevertheless, appellant is not
barred from challenging an alleged misapplication of conduct credits on appeal
where, as here, the plea agreement and waiver of appellate rights made no
mention of conduct credits. (People
v. Vargas (1993) 13 Cal.App.4th 1653, 1662–1663; accord People v.
Panizzon (1996) 13 Cal.4th 68, 85 [waiver will not be construed to bar the
appeal of sentencing errors occurring subsequent to plea especially when the
defendant is attempting to appeal sentencing issues left unresolved by the
particular plea agreement].)
Discussion
A criminal
defendant is entitled to accrue both actual presentence custody credits under
section 2900.5
title="">[3] and
conduct credits under section 4019 for a period of incarceration prior to
sentencing. Conduct credits may be
earned under 4019 by performing additional labor (§ 4019, subd. (b)) and by an
inmate's good behavior. (§ 4019, subd.
(c).) In both instances, the section
4019 credits are collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th
934, 939, fn. 3.) The court is charged
with awarding such credits at sentencing.
(§ 2900.5, subd. (a).)
Before
January 25, 2010, conduct credits under section 4019 could be accrued at the
rate of two days for every four days of actual time served in pre-sentence
custody. (Stats. 1982, ch. 1234, § 7, p.
4554 [former § 4019, subd. (f)].)
Effective January 25, 2010, the Legislature amended section 4019 in an
extraordinary session to address the state's ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18
amended section 4019 such that defendants could accrue custody credits at the
rate of two days for every two days actually served, twice the rate as before
except for those defendants required to register as a sex offender, those
committed for a serious felony (as defined in § 1192.7), or those who had a
prior conviction for a violent or serious felony. (Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§
50, 62 [former § 4019, subds. (b), (c), & (f)].)
Effective
September 28, 2010, section 4019 was amended again to restore the presentence
conduct credit calculation that had been in effect prior to the January 2010
amendments, eliminating one-for-one credits.
(Stats. 2010, ch. 426, § 2.) By
its express terms, the newly created section 4019, subdivision (g), declared
these September 28, 2010 amendments applicable only to inmates confined for a
crime committed on or after that date, expressing legislative intention that
they have prospective application only.
(Stats. 2010, ch. 426, § 2.)
The current
version of section 4019 (hereafter October 1 amendment) was in effect and
operative beginning October 1, 2011, and at the time of sentencing in this case
on December 8, 2011. (Stats. 2011-2012,
1st Ex. Sess., ch. 12, § 35, pp. 5976-5977, eff. Sept. 21, 2011, operative
Oct. 1, 2011.)
title="">[4] That section states in pertinent part
"if all days are earned under this section, a term of four days will be deemed
to have been served for every two days spent in actual custody." (§ 4019, subd. (f); see § 4019,
subds. (b)-(e).) This award of custody
credits is sometimes referred to as one-for-one credits. Nevertheless, subdivision (h) of section 4019
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 [hereafter, the first sentence]. Any days earned by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior
law." (Hereafter, the second
sentence.)
The trial
court calculated appellant's conduct credits under the September 28, 2010
revision of the presentence custody credit law; as noted, that version was in
effect when appellant committed his crime.
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).)
name="_ftnref5" title="">[5]
With this
background in mind we turn to appellant's contentions on appeal.
Statutory Construction
Appellant
argues that in terms of statutory construction the current version of section
4019 must be construed as applying to defendants who serve their custody on or
after October 1, 2011.
Appellant
concedes that the first sentence of subdivision (h) of section 4019 indicates
that the October 1 amendment is to apply only to crimes committed after October
1, 2011, but argues that the second sentence is inconsistent with this
construction, thus creating an ambiguity.
We are not persuaded that appellant's arguments are correct.
"[I]n
reviewing the text of a statute, [courts] must follow the fundamental rule of
statutory construction that requires every part of a statute be presumed to
have some effect and not be treated as meaningless unless absolutely necessary. 'Significance should be given, if possible,
to every word of an act.
[Citation.] Conversely, a
construction that renders a word surplusage should be avoided. [Citations.]'
[Citations.]" (
180.) In addition, "[w]hen a
statute is capable of more than one construction, ' "[w]e must
. . . give the provision a reasonable and commonsense interpretation
consistent with the apparent purpose and intention of the lawmakers, practical
rather than technical in nature, which upon application will result in wise
policy rather than mischief or absurdity." ' [Citations.]" (In re
Reeves (2005) 35 Cal.4th 765, 771, fn. 9.)
Finally, "under the traditional 'rule of lenity,' language in a
penal statute that truly is susceptible of more than one reasonable construction
in meaning or application ordinarily is construed in the manner that is more
favorable to the defendant.
[Citation.]" (
1277.)
"When
construing a statute, our primary task is to ascertain the Legislature's
intent. [Citation.] We begin our task by determining whether the
language of the statute is ambiguous.
[Citation.] A statutory provision
is ambiguous if it is susceptible of two reasonable interpretations. [Citation.]
' "If there is no ambiguity in the language, we presume the
Legislature meant what it said and the plain meaning of the
[Citation.]' [Citation.]" (People
v. Dieck, supra, 46 Cal.4th at
pp. 939-940.)
In
1546 (review den. Oct. 31, 2012), with respect to subdivision (h) of section
4019, the Fifth District Court of Appeal concluded: "[T]he Legislature's
clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits. So
read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant's crime is
committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced."
title="">[6] (Id.
at p. 1553.)
The Court
of Appeal, Fourth District, Division 3, agrees with Ellis. In
Cal.App.4th 42 (Rajanayagam) (review
denied Feb. 13, 2013), the court rejected an argument that the second sentence
of section 4019, subdivision (h), "implies any days earned by a defendant
calculated at the rate required by the current law, regardless of when the offense was committed." (Id.
at p. 51.) The court concluded that such
an interpretation would render meaningless the language in the first sentence (
to the accrual of presentence conduct credit "shall apply prospectively
and shall apply to prisoners who are confined to a county jail . . .
for a crime committed on or after October 1, 2011." (§ 4019, subd. (h).) Accordingly, the court concluded that adopting
the defendant's interpretation would violate an elementary rule requiring
courts, if possible, ascribe meaning to every word, phrase, and sentence of a
statute and to avoid interpretations that render some words superfluous. (Rajanayagam,
supra, 211 Cal.App.4th at p. 51.)
The
"[S]ubdivision (h)'s first sentence reflects the Legislature intended 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. However
inartful the language of subdivision (h), we read the second sentence as
reaffirming that defendants who committed their crimes before October 1, 2011,
still have the opportunity to earn conduct credits, just under prior law. [Citation.]
To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local
custody after the effective date reads too much into the statute and ignores
the Legislature's clear intent in subdivision (h)'s first sentence." (Id.
at p. 52, fn. omitted.)
Certainly,
"[i]t is a settled principle of statutory construction, that courts should
'strive to give meaning to every word in a statute and to avoid constructions
that render words, phrases, or clauses superfluous.' [Citations.]
We harmonize statutory provisions, if possible, giving each provision
full effect. [Citation.]" (In re
C.H. (2011) 53 Cal.4th 94, 103.)
On the
other hand, appellate courts may not
"rewrite the clear language of [a] statute to
broaden the statute's application." (In re David (2012) 202 Cal.App.4th
675, 682; See People v. Statum (2002) 28 Cal.4th 682, 692 [a court may
not rewrite a statute to conform to
a presumed intent that is not expressed].)
As
confirmed by the Supreme Court in People
v. Brown (2012) 54 Cal.4th 314, 322, footnote 11, the first sentence means
just what it says, but the necessary corollary of that sentence is that it does
not apply to crimes committed prior to October 1, 2011; and the necessary
implication is that for crimes committed prior to October 1, 2011, the
statutory scheme that was displaced by the new terms of section 4019 continues
to apply. It is axiomatic that since the
new credit scheme applies prospectively (per the first sentence), everyone in
jail prior to October 1, 2011, is there for a crime committed prior to that
date, and subject to whatever credit scheme was operating at the time. However, to hold that appellant is entitled to
the benefit of the October 1 amendment for days spent in custody after October
1, 2011, would require that we write an entire sentence into section 4019. That is, after the first sentence, we would
have to add—However, if a defendant has not been sentenced by October 1, 2011,
for a crime he or she committed before October 1, 2011, he or she is entitled
to one-for-one credits for any time spent in custody after that date up to and
including the date of sentencing. As
confirmed by the Supreme Court in Brown,
the critical date in the statute is the date of the offense, and not the date
when the presentence custody is served.
(Id. at p. 322, fn. 11.)
A number of
courts, including this one, have concluded that as to crimes committed before
October 1, 2011, the current version of section 4019 is not applicable and
former law governs calculation of conduct credit. (People
v. Hul (2013) 213 Cal.App.4th 182, 186-187; Rajanayagam, supra, 211
Cal.App.4th at p. 51; People v. Verba
(2012) 210 Cal.App.4th 991, 993; People
v. Ellis, supra, 207 Cal.App.4th
at p. 1553; see also People v. Kennedy
(2012) 209 Cal.App.4th 385, 400 (Kennedy).) Again, we reach the same conclusion. In so doing, we reject appellant's claim that
as a matter of statutory construction, he is entitled to the enhanced
one-for-one credits for the time he spent in custody after October 1, 2011, up
to and including the day he was sentenced.
Equal Protection
Appellant
argues that in terms of an equal protection analysis our Supreme Court's
decisions in People v. Brown, supra, 54
Cal.4th 314 (Brown) and
additional credits.
In
version of section 4019 effective on January 25, 2010, must be held to apply
retroactively, in part because prospective application would violate the equal
protection clauses of the state and federal Constitutions. (Brown,
supra,
54 Cal.4th at p. 319.) The court
stated:
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." '
[Citation.]" (
court went on to say, "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." (Id. at pp. 328-329, italics added.)
In
a footnote that the same equal protection analysis applies to the current
version of section 4019. (
the Lara court noted, "prisoners
who serve their pretrial detention before such a law's effective date, and
those who serve their detention thereafter, are not similarly situated with
respect to the law's purpose. [Citation.]" (Ibid.)
Appellant
contends that in finding that defendants "who serve their detention
defendant's who serve their time after
that law's effective date are
similarly situated because they will be motivated to engage in productive work
and maintain good behavior so that they can take advantage of the opportunity
to earn enhanced credits. Since the
question of motivation formed the lynch pin for the high court's resolution of
the similarly situated prong of the equal protection issue, it follows that
defendants who are in custody after
the law's effective date and ipso facto are
motivated to earn the increased credits are constitutionally entitled to the
additional credits unless there is a rational basis for their disparate
treatment even when a credit enhancing law operates prospectively."
Appellant asserts that there is no rational basis for depriving him of the
enhanced credits for custody he served on or after October 1, 2011. We disagree.
prisoners confined in a county jail after October 1, 2011, for crimes committed
before October 1, 2011, they are similarly situated to prisoners who committed
their crimes after October 1, 2011, and are confined in a county jail, but
determined there was a rational basis for the classifications. (People v. Verba, supra, 210
Cal.App.4th at pp. 995–997 (Verba);
Rajanayagam, supra, 211 Cal.App.4th at pp. 53–55 [the two groups are
serving time together in local presentence custody thus the two groups are
similarly situated].)
Even
assuming the two groups of defendants who are in custody together—those who
committed their crimes before October 1, 2011, and those who committed their
crimes after October 1, 2011—are similarly situated for purposes of the October
1, 2011, amendment to section 4019, we conclude again, as we have done in the
past (Kennedy, supra, 209 Cal.App.4th at pp. 398-400)
the classifications bear a rational relationship to a legitimate state
purpose. Similar to the courts in Verba,
supra,
210 Cal.App.4th 991, 995–997 and Rajanayagam, supra, 211 Cal.App.4th at
pp. 54–55, we conclude that 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; Rajanayagam, supra, 211 Cal.App.4th at
p. 55), maintaining the desired deterrent effect of penal laws by carrying out
the punishment in effect at the time defendants commit their offenses (Kennedy,
supra, 209 Cal.App.4th at 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).
Accordingly,
we reject appellant's equal protection challenge to the current version of
section 4019.
title="">[11]
In
conclusion, for the reasons outlined ante,
we reject appellant's claim that he is entitled to have the current version of
section 4019 applied to his presentence custody for all days he was in jail
from October 1, 2011, until the day he was sentenced.
Disposition
The
judgment is affirmed.
________________________________
ELIA,
J.
WE CONCUR:
____________________________
RUSHING, P. J.
____________________________
PREMO, J.
name="_ftn1" title="">[1] Health and Safety Code section 11370.2
provides that any defendant who is convicted of certain drug offenses,
including violating Health and Safety Code section 11351, with respect to a
substance containing cocaine where the substance exceeds one kilogram, shall in
addition to any other punishment authorized by law have their sentence enhanced
with an additional three years. (Stats.
1998, ch. 936, § 1, eff. Sept. 28, 1998.)
name="_ftn2" title="">[2] On July 11, 2012, this court ordered
that both appeals be considered together for the purposes of briefing, oral
argument and decision. The issue set
forth in the first notice of appeal—use of appellant's prior strike conviction
to enhance his sentence—is not presented in appellant's opening brief. Accordingly, we must assume that appellant
has abandoned that issue.
