IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
October 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRUCE WAYNE WHITE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06CR10400)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. White
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal is brought pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
On August 14, 2009, defendant Bruce Wayne White pleaded no contest to four counts of diverting construction funds and two counts of embezzlement by a contractor and admitted allegations that he took over $50,000 and over $100,000, in exchange for a promise of no state prison at the outset. (Pen. Code, §§ 484, subd. (b), 506, 186.11, subd. (a)(1); former Pen. Code, § 12022.6, subd. (a)(1); see Stats. 1998, ch. 454, § 2, p. 3231.) Defendant, an experienced licensed contractor, began building a restaurant for the victims in 2003, pursuant to an oral agreement. However, he diverted money and failed to pay subcontractors he had hired to perform work on the restaurant. The plea bargain stipulated that he would pay $210,000 in restitution.
On October 13, 2009, the trial court imposed a six-year prison sentence but suspended execution of sentence and placed defendant on probation, with conditions including 365 days in jail with credit for three days of actual presentence custody. Defendant did not file a timely appeal from the judgment (order granting probation), which became final 60 days later for state law purposes.
On February 11, 2010, defendant moved to modify the judgment to increase his custody credits, pursuant to amendments to Penal Code section 4019, effective January 25, 2010, enacting a more generous conduct credit formula. (See Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.) The trial court denied the motion, finding defendant's conviction was final before the effective date of the amendments.
Defendant filed a timely notice of appeal from the order denying the modification.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case regarding defendant's motion to modify the judgment and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we received no communication from defendant.
We requested supplemental briefing based on In re Kemp (2011), formerly at 192 Cal.App.4th 252 (Kemp), in which we held that a defendant is entitled to the additional credits under equal protection principles, regardless of when her or his conviction was final. After the parties filed their briefs, the California Supreme Court granted review in Kemp. (In re Kemp, rev. granted Apr. 13, 2011, S191112.)
We adhere to the reasoning expressed in Kemp, which we briefly summarize here.
"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 two classes are similarly situated with respect to the law in question, but treated differently. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
The new credit formula applies to persons who are neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies (if pleaded and proven). Within this larger group are two subgroups: persons whose judgments became final prior to January 25, 2010, and persons whose judgments became final on or after that date. The purpose of the new formula was to address a "fiscal emergency" by reducing incarceration costs. (Stats. 2009, 3d Ex.Sess., ch. 28, § 62.) Where the Legislature has expressed the purpose of an enactment, we will not speculate about other possible legislative motives. The amendment identifies a class of persons deemed safe for early release by virtue of increased credits, and that saves money regardless of when a given qualified person's judgment became final. Thus, both groups are similarly situated with respect to the law in question.
We see no rational reason justifying this disparate treatment. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.) The finality of the judgment itself does not provide a rational basis for distinguishing between the two groups. (See In re Kapperman (1974) 11 Cal.3d 542, 544-550.)
We also see no separation of powers violation in the new credit formula, even when applied retrospectively. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 115-118.)
Accordingly, we conclude prisoners whose judgments became final before January 25, 2010, are entitled to have their conduct credits calculated under the new formula.
The Attorney General asserts that defendant's appeal is untimely because it was filed more than 60 days after the judgment. We disagree. This appeal was taken from the denial of defendant's motion to modify his credit award. That was an "order made after judgment, affecting the substantial rights of the party" and therefore was an appealable order. (Pen. Code, § 1237, subd. (b).) Defendant's notice of appeal was filed on March 15, 2010, less than 60 days from the date of the order. Therefore we reject the Attorney General's contention that this appeal is untimely.
Defendant's supplemental brief concedes that even under the equal protection holding expressed in Kemp, the current record does not support an award of additional credits. We reject this concession.
Defendant notes that the record shows he served three days in custody, and correctly states that Penal Code section 4019, as effective on January 25, 2010, provided that for each "four-day period" served, a person could earn two days of conduct credit. (Former Pen. Code, § 4019, subds. (b)(1) & (c)(1); Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.) But he overlooks subdivision (f) of that statute: "It is the intent of the Legislature that 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[,]" with exceptions not here relevant. (Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.)
In People v. Bobb (1989) 207 Cal.App.3d 88 (Bobb), we construed an earlier version of Penal Code section 4019, which provided for two days of conduct credit "for each six-day period" of presentence custody, and provided that "a term of six days will be deemed to have been served for every four days spent in actual custody." (Former Pen. Code, § 4019, subds. (b), (c) & (f); Stats. 1982, ch. 1234, § 7, pp. 4553-4554.)
Bobb, like defendant herein, had served three days of presentence custody, and Bobb sought conduct credits. (Bobb, supra, 207 Cal.App.3d at p. 97.) We concluded that until a person served four days, the person could not be deemed to have served a six-day period of custody and therefore was not entitled to any conduct credits. (Id. at pp. 97-98, disapproved on another ground by People v. Barton (1995) 12 Cal.4th 186, 198-199, fn. 7.) We later explained that this conclusion precluded "rounding up" in making conduct credit awards. (People v. Smith (1989) 211 Cal.App.3d 523, 527.)
The version of Penal Code section 4019 at issue here states a "four-day period" of custody entitles a defendant to earn up to two days of conduct credit, and provides that "a term of four-days will be deemed to have been served for every two days" of actual custody. (Former Pen. Code, § 4019, subds. (b)(1), (c)(1) & (f).) Thus, for every two days of actual custody, a person is deemed to have served four days, and may earn up to two days of credit for good conduct.
The Attorney General does not contend that defendant behaved poorly or refused work orders while in presentence custody. Because defendant served one two-day period of actual custody, he is deemed to have served four days, and is entitled to two days of presentence conduct credit.
Defendant asserts that he may have been denied additional conduct credits while serving his probationary term, and asks that we treat this appeal as a petition for writ of habeas corpus and remand the cause to the superior court with directions to "develop the record . . . to properly evaluate his claim." We decline the request, because nothing in the record supports the contention that defendant was not given all other credits he was due.
Effective September 28, 2010, the Legislature amended Penal Code section 2933 to provide that, with exceptions not relevant, each person sentenced to state prison "for whom the sentence is executed" can accrue one day of conduct credit for each day of actual custody. (Pen. Code, 2933, subd. (e); Stats. 2010, ch. 426, § 1.) Assuming equal protection would give prisoners credit for this new formula regardless of the finality of their judgments, such conclusion would not benefit defendant, because execution of his sentence was suspended.
Having undertaken an examination of the entire record pertaining to defendant's post-judgment request for modification of credits, we find no other arguable error.
The post-judgment order denying defendant's request for additional time credits is reversed with directions to the trial court to award defendant two days of presentence conduct credit.
We concur: NICHOLSON , J. MAURO , J.
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