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In Re Jeffrey Stuard

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


September 9, 2011

IN RE JEFFREY STUARD, ON HABEAS CORPUS.

(Super. Ct. No. WHC980)

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

In re Stuard

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On June 7, 2004, the court sentenced defendant Jeffrey Stuard (petitioner) to seven years eight months in prison based upon his no contest pleas to conspiracy to distribute a controlled substance, transportation of a controlled substance, hit and run with injury, evading a police officer by means of a high speed chase, and his admission of a prior narcotics-related offense. The court suspended execution of the sentence and placed petitioner on formal probation for five years.

On October 21, 2008, petitioner admitted violating conditions of his probation; the court revoked his probation and imposed the previously stayed seven-years-eight-months sentence. Although the court awarded petitioner credit for actual time served and for conduct, the calculations are incorrect, a matter we will address at the conclusion of this opinion. At this point it is sufficient to note the court credited petitioner with conduct credits under the formula in existence at the time of sentencing.*fn1 Petitioner did not appeal.

Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18,*fn2 which amended Penal Code section 4019 (the new amendment) to provide two days of conduct credit for every two days actually served in presentence custody to a class of prisoners (eligible prisoners) deemed safe for early release from prison. This class consists of prisoners who were neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies.

Petitioner, an eligible prisoner, filed a habeas corpus petition in the superior court seeking retroactive application of the new amendment under equal protection principles. The court denied relief, concluding the new amendment did not apply to judgments that became final prior to January 25, 2010.

Petitioner then filed a petition in this court, renewing his argument. In response, the People argue that equal protection was not violated because the statute seeks to encourage good conduct by prisoners awaiting final sentencing and thus excludes prisoners whose judgments are final; hence, the two groups are not similarly situated. The People also propose a rational basis for the disparate treatment, viz: that retroactive application of the new amendment to final judgments would violate the separation of powers doctrine.*fn3 We reject the People's contentions and conclude the new amendment is retroactive to all eligible prisoners irrespective of the date their judgments became final.

EQUAL PROTECTION

"The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in similar fashion." (People v. Leng (1999) 71 Cal.App.4th 1, 11.) We first ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) If groups are similarly situated but treated differently, the state must then provide a rational justification for the disparity. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.)

The People's justification for the new amendment, to wit, to encourage good behavior, does not comport with the Legislature's stated purpose, and we are bound by the latter. (People v. Butler (1996) 43 Cal.App.4th 1224, 1234.) The purpose of the new amendment, as expressly stated in Senate Bill No. 3X 18, was to aid the state in addressing the "fiscal emergency" declared by the Governor in December 2008,*fn4 rather than to encourage good behavior as asserted by the People. (Stats. 2009, ch. 28, § 62.) The new amendment accomplishes this fiscal purpose by identifying a class of prisoners deemed safe for early release and increasing the rate at which they earn presentence conduct credits, thereby reducing the cost of their incarceration. Dividing the class of eligible prisoners into two groups based on the date their judgments became final bears no rational relationship to either their dangerousness or their cost of incarceration. (Cf. In re Kapperman (1974) 11 Cal.3d 542, 544-550 (Kapperman) [finality of judgment does not constitute rational basis for disparate treatment between groups of prisoners equally situated].) Consequently, the new amendment applies to all eligible prisoners regardless of when their judgments became final.

SEPARATION OF POWERS

Nor does retroactive application of the new amendment to prisoners whose judgments were final prior to January 25, 2010, violate the separation of powers doctrine by interfering with judgments already final, as urged by the People. The awarding of additional conduct credits is nothing more than a ministerial act and does not constitute a resentencing or a material interference with the judgment previously imposed. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 117-118; People v. Sage (1980) 26 Cal.3d 498, 508-509; Kapperman, supra, 11 Cal.3d at pp. 548-550.)

ODD NUMBERED DAYS

Effective September 28, 2010, the Legislature amended Penal Code section 2933*fn5 to give eligible prisoners for whom a state prison sentence was executed one day of conduct credit for each day actually served in presentence custody, thereby eliminating the loss of a single day occasioned by the January 25, 2010, amendment when the defendant served an odd number of days. For the same reasons we found the January 25, 2010, amendment was retroactive irrespective of the date of finality of judgment, we conclude the same is true of the September 28 amendment.

CALCULATION OF CREDITS

On October 21, 2008, after accepting petitioner's admission to a violation of probation petition, the trial court imposed the sentence of seven years eight months and awarded him "429 days of actual time, 50 days of conduct credits, for a total of 579 days' credit," rather than 479 days, which is correct. This error was repeated in the abstract of judgment. The petition for revocation of probation sets forth petitioner's presentence credits -- 429 days actually served plus 50 days of good conduct, for a total of 479 days. The court simply misspoke when it stated the sum was 579.

However, the above mathematical error is not the only problem with the custody credits. The petition for revocation of probation cites six entries for days actually served:

Placer Co. Jail 08/05/03 to 09/04/03 31 days

EMP 09/15/03 to 02/20/04 159 days

Placer Co. Jail 09/16/04 to 11/08/04 54 days

EMP 05/26/05 to 07/04/05 40 days

Placer Co. Jail 07/05/05 to 07/21/05 17 days

EMP 07/22/05 to 11/26/05 128 days

Beneath these entries is the statement, "Defendant entitled to day for day credit while on EMP [electronic monitoring program]."

This statement is not necessarily true. While petitioner is entitled to custody and conduct credit for the 102 days spent in jail, a prisoner is not entitled to custody credit for actual time spent on EMP unless the statute under which the prisoner was sentenced mandates a minimum period of time in jail. (People v. Anaya (2007) 158 Cal.App.4th 608, 611-614; Pen. Code, § 2900.5, subd. (f).) None of petitioner's convictions mandate service of a minimum period of time in jail. Hence, petitioner was not entitled to the 327 (159 40 128) days' credit he received for time actually served on EMP.

Awarding the petitioner such credits resulted in an unauthorized sentence, which may be corrected whenever discovered. (People v. Taylor (2004) 119 Cal.App.4th 628, 647; People v. Jack (1989) 213 Cal.App.3d 913; In re Williams (2000) 83 Cal.App.4th 936, 944-945.) The error now has been discovered and will be corrected.

In sum, petitioner is entitled to 102 days actually served in county jail plus 102 days of conduct credit, for a total of 204 days of credits. He is not entitled to either actual or conduct credit for the time he spent on EMP.

DISPOSITION

The original award of 579 days for actual and conduct credit is vacated. The matter is remanded to the superior court with directions to prepare an amended abstract of judgment reflecting that petitioner is entitled to 102 days of actual custody credit plus 102 days for conduct credit, for a total of 204 days of credit, and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation.

We concur: BLEASE , J. HULL , J.


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