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In Re David Bell

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


September 20, 2011

IN RE DAVID BELL, ON HABEAS CORPUS.

(Super. Ct. Nos. 08F05973, 08F00451)

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

In re Bell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 July 17, 2009, petitioner David Bell was sentenced to state prison for an aggregate term of six years eight months based upon convictions for four counts of sale of methamphetamine in case No. 08F05973 and possession of marijuana for sale and possession of a controlled substance with a firearm enhancement in case No. 08F00451. At the time of sentencing, Penal Code section 4019*fn1 provided that conduct credits could be earned at the rate of two days for every four days served. (§ 4019, former subds. (b), (c).) Petitioner received presentence custody credits totaling 583 days (case No. 08F05973 -- 361 actual plus 180 conduct; case No. 08F00451 -- 28 actual plus 14 conduct). Petitioner did not appeal.

Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18,*fn2 which amended section 4019 (the new amendment) to provide essentially 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, and that equal protection principles were not applicable.

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 judgment became final.

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.) 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, 3d Ex. Sess., 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 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

In case No. 08F05973, petitioner received 361 days' credit for actual custody plus 180 days for conduct, a total of 541 days. In case No. 08F00451, he received 28 days' credit for actual custody plus 14 days for conduct, a total of 42 days. Pursuant to the September 28, 2010, amendment, petitioner is entitled to an additional 181 days of conduct credit in case No. 08F05973, and to an additional 14 days of conduct credit in case No. 08F00451, a total for both cases of 195 additional days. The total number of presentence custody credits is, therefore, 778 days.

DISPOSITION

The matter is remanded to the superior court with directions to award petitioner the additional 195 days of conduct credit as calculated above.

We concur: BLEASE , J. HULL , J.


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