P. v. Spence




Filed 4/21/11 P. v. Spence 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TIMOTHY DAVID SPENCE, Defendant and Appellant.

E050746 (Super.Ct.No. FWV900013) OPINION

APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed.
Victoria Matthews, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal raises two wrinkles on a familiar issue: entitlement to additional Penal Code section 4019[1] credits. In this case, judgment was final prior to the effective date of an amendment of section 4019,[2] but defendant and appellant Timothy David Spence contends equal protection requires he receive additional credits, and that the applicable standard of scrutiny is strict scrutiny. We affirm.
BACKGROUND
On July 17, 2009, defendant pled no contest to willfully inflicting a corporal injury to his spouse. (§ 273.5, subd. (a).) Pursuant to his plea agreement, he was sentenced forthwith to the midterm, a three-year state prison sentence, and granted credit for 194 actual days of custody and 97 days of conduct credit under former section 4019. Defendant did not appeal.
On April 14, 2010, the trial court denied defendant’s application for additional credits because defendant’s judgment was final. This appeal is from the order denying the application.
DISCUSSION
Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to credits for actual time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) This is because “section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody.” (People v. Brown (2004) 33 Cal.4th 382, 405.) Section 4019 credits are awarded or withheld “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310; see also People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Duesler (1988) 203 Cal.App.3d 273, 277.) Under the version of section 4019 in effect at the time of defendant’s sentencing, former section 4019, he was awarded “two days of conduct credit for every four days [he was] in actual presentence custody.” After defendant’s judgment became final, section 4019 was amended to provide for the accrual of two days of conduct credit for every two days of presentence custody for certain defendants. (Amended § 4019, subd. (f).)
Whether the amendment of section 4019 was an ameliorative act that entitled all defendants whose cases were not yet final to the retroactive benefit of the increased custody credits is an issue that has split our sister Courts of Appeal and is pending review in our Supreme Court.[3] We held that the amendment was prospective only and did not retroactively benefit defendants who had been sentenced prior to the effective date of the amendment but whose judgments were not yet final. (People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314.) Because defendant’s judgment was final prior to the effective date of the amendment, his claimed entitlement to the additional credits is based only upon equal protection grounds. Of the decisions finding the amendment prospective only, many have subjected the amendment to rational basis scrutiny and rejected equal protection challenges because the fact that conduct cannot be influenced retroactively provides a rational basis. (See, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724.) However, defendant contends his equal protection challenge subjects the amendment to strict scrutiny because the issue “involves the fundamental interest of liberty.” We hold that a rational basis test is appropriate and a rational basis justifies the temporal distinction between persons sentenced before and after amended section 4019 became operative.
“It is a fundamental principle that, ‘[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] ‘In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]’ [Citations.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 836; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 571 [“equal protection provisions in the California Constitution ‘have been generally thought . . . to be substantially equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution’ ”].) “[P]ersonal liberty is an interest which is entitled to the same protection as other fundamental interests.” (People v. Olivas (1976) 17 Cal.3d 236, 251 (Olivas) [holding youthful misdemeanants in the control of the youth authority in excess of the maximum jail term implicates the liberty interest and, under strict scrutiny, is a denial of equal protection].) “A defendant, however, ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ ” (Wilkinson, at p. 838.) Thus, “the rational basis test applies to equal protection challenges based on sentencing disparities. [Citations.]” (People v. Ward (2008) 167 Cal.App.4th 252, 258.) In particular, “ ‘[e]qual protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.] The only requirement is that “classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose.” [Citations.]’ ” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.)
Defendant was sentenced prior to the effective date of the amendment of section 4019, which increased the amount of credits that may be awarded for good behavior in local custody. He was awarded full conduct credits under the version of section 4019 in effect at the time of his sentencing. His contention is that he is similarly situated to, but receiving sentence that is disparate from, convicts sentenced after the amendment of section 4019 became operative because his term of imprisonment will be longer because he was awarded fewer conduct credits. Because defendant’s equal protection challenge concerns a mere sentencing disparity, we conduct a rational basis review. (People v. Ward, supra, 167 Cal.App.4th at p. 258.)
As noted ante, “section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody.” (People v. Brown (2004) 33 Cal.4th 382, 405.) “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette, supra, 94 Cal.App.3d 800, 806.) Accordingly, applying the amendment of section 4019 retroactively would not serve the purposes of section 4019. Thus, a legitimate public purpose exists for treating convicts sentenced before and after the amendment of section 4019 differently, and defendant’s right to equal protection has not been violated.
Defendant relies on People v. Caruso (1984) 161 Cal.App.3d 13, 17 (Caruso) (applying strict scrutiny to reject equal protection challenge to disparate credits for persons detained in local custody under section 4019 and persons detained in prison under section 2933), People v. Saffell (1979) 25 Cal.3d 223, 228, 235 (Saffell) (applying strict scrutiny to reject equal protection challenge to denial of prison conduct credits for persons committed under the mentally disordered sex offenders act), and People v. Sage (1980) 26 Cal.3d 498, 507-508 (Sage) (finding no “rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons” while awarding it to detainee/misdemeanants) for the proposition that he has a liberty interest at stake that requires a strict scrutiny review.
However, Caruso and Saffell relied on Olivas, and Sage in turn relied on Saffell. (Sage, supra, 26 Cal.3d at pp. 506-507; Saffell, supra, 25 Cal.3d at pp. 228-229; Caruso, supra, 161 Cal.App.3d at pp. 17-18.) Subsequently, our Supreme Court has noted that Olivas should not be broadly read for the proposition that the application of strict scrutiny is required “whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’ of the affected individuals.” (People v. Wilkinson, supra, 33 Cal.4th at p. 837.) Instead, the language of Olivas “requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained.” (Id. at pp. 837-838.)
Furthermore, Caruso applied strict scrutiny in express disagreement with In re Bender (1983) 149 Cal.App.3d 380 (prospective only application of new prison conduct credits subjected to rational basis review and upheld). (Caruso, supra, 161 Cal.App.3d at p. 17.) In addition to limiting the application of Olivas, our Supreme Court has since favorably cited Bender for the proposition that “ ‘punishment-lessening statutes given prospective application do not violate equal protection.’ ” (People v. Floyd (2003) 31 Cal.4th 179, 189 (Floyd).)
Defendant again relies on Sage, as well as relying on In re Kapperman (1974) 11 Cal.3d 542, 544, in support of his ultimate contention that equal protection mandates he be provided the increased credits from amended section 4019. Neither Kapperman nor Sage is applicable here.
Kapperman held that an express prospective limitation upon the statute creating presentence credits for the actual time spent in presentence custody was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because there is a legitimate reason for excluding those already sentenced from receiving increased presentence conduct credits. As discussed above, the reason is that the presentence behavior of those already sentenced cannot be influenced by the increased incentive of receiving additional conduct credits. (In re Stinnette, supra, 94 Cal.App.3d at p. 806.)
In Sage, the Supreme Court considered a previous version of section 4019, which denied presentence conduct credit to a detainee eventually sentenced to prison, although credit was given to detainees sentenced to county jail (misdemeanants) and to felons who served no presentence time. (Sage, supra, 26 Cal.3d at p. 507.) The Supreme Court held that the failure of section 4019 to provide presentence credits for felon detainees when it provided such credits for misdemeanant detainees violated equal protection. (Sage, at pp. 506-509.) Sage is distinguishable on the ground that the purported equal protection violation at issue in the instant case is temporal, rather than based on the defendant’s status as a misdemeanant or a felon. Equal protection does not forbid distinguishing “ ‘between the rights of an earlier and later time.’ ” (Floyd, supra, 31 Cal.4th at p. 191.)
Accordingly, the cases upon which defendant relies are not persuasive. A rational basis review is appropriate and, under that level of scrutiny, defendant’s right to equal protection has not been violated.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:


MILLER
J.


CODRINGTON
J.

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