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In Re Randy Kemp

January 27, 2011

IN RE RANDY KEMP, ON HABEAS CORPUS.


(Super. Ct. Nos. 09F06912, 10F01017)

The opinion of the court was delivered by: Raye, P. J.

CERTIFIED FOR PUBLICATION

ORIGINAL PROCEEDING. Petition granted.

INTRODUCTION

In this petition for a writ of habeas corpus filed by Randy Kemp (petitioner), we conclude that irrespective of the date a prisoner's judgment became final, federal and state constitutional principles of equal protection require that the amendments to Penal Code section 4019*fn1 provided by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), effective January 25, 2010 (January 25 amendment), and Senate Bill No. 76 (2009-2010 Reg. Sess.) (Sen. Bill No. 76) (see Stats. 2010, ch. 426), effective September 28, 2010 (September 28 amendment), which increase the rate at which a specified class of prisoners earns conduct credits, must be applied retroactively.

PROCEDURAL HISTORY

On October 20, 2009, petitioner pled no contest in the Sacramento County Superior Court to one count of battery on a spouse or cohabitant (§ 273.5, subd. (a)), and on November 17, 2009, he was sentenced to state prison for two years. At the time of sentencing, section 4019 provided that conduct credits, i.e., credits for prisoners who performed labor and followed the institutional rules of the facility wherein they were confined, could be earned at the rate of two days for every four days served. (Former § 4019, subds. (b), (c).) Petitioner received credits of 68 days for actual custody served and 34 days for good conduct, which was the maximum amount provided under the statute.*fn2 Petitioner did not appeal.

The Legislature enacted Senate Bill No. 3X 18, which amended section 4019 effective January 25, 2010, to essentially double the rate at which a specified class of prisoners (eligible prisoners) could earn conduct credits. (§ 4019, subds. (b)(1), (c)(1) as amended by Stats. 2009, ch. 28, § 50.) Eligible prisoners are those who were neither required to register as sex offenders, nor were committed for serious felonies (§ 1192.7), nor had been convicted of serious or violent felonies (§ 667.5). (§ 4019, subds. (b)(2), (c)(2).)*fn3

On February 8, 2010, petitioner, an eligible prisoner, filed a petition for writ of habeas corpus in the Sacramento County Superior Court seeking the retroactive application of the additional presentence conduct credits provided by the January 25 amendment. The court denied the petition on March 30 on grounds that Kemp's judgment became final prior to the effective date of the amendment and principles of equal protection were not applicable.

On April 26, 2010, petitioner filed a habeas corpus petition in this court, contending, inter alia, that notwithstanding the finality of his judgment prior to January 25, 2010, federal and California principles of equal protection require that the January 25 amendment be retroactively applied to him. Relying on In re Stinnette (1979) 94 Cal.App.3d 800 (Stinnette) and In re Strick (1983) 148 Cal.App.3d 906 (Strick), the People countered that the January 25 amendment was intended, at least in part, to further encourage good conduct; it is impossible to influence behavior after it has occurred, and thus a prisoner whose judgment has become final is not entitled to the benefit of the new amendment.*fn4 The People also contend that even if the January 25 amendment is retroactive, the separation of powers doctrine constitutes a rational basis for not applying the amendment to those whose judgments were final prior to the effective date of the amendment. For reasons to follow, we disagree with the People.

DISCUSSION Equal Protection

"The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in a similar fashion." (People v. Leng (1999) 71 Cal.App.4th 1, 11.) In analyzing an equal protection challenge, "'[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.' [Citations.] 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.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley).) "'In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law . . . .'" (Castro v. State of California (1970) 2 Cal.3d 223, 229, quoting Williams v. Rhodes (1968) 393 U.S. 23, 30 [21 L.Ed.2d 24, 31].)

The Two Groups at Issue are Similarly Situated for the Purpose of Senate Bill No. 3X 18

The enhanced rate of credit accrual provided by section 4019 applies to prisoners who are neither required to register as sex offenders nor committed for serious felonies or previously convicted of serious or violent felonies. Within this larger group are two subgroups of eligible prisoners: prisoners whose judgments of conviction became final prior to January 25, 2010, and prisoners whose judgments were either pending or became final on or after that date.*fn5 Abstractly speaking, the two groups are similarly situated. Nothing ...


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