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In Re Mark Allen Kempton On Habeas Corpus.


November 30, 2011


(Super. Ct. No. CM031125)

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

In re Kempton



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 December 9, 2009, petitioner Mark Allen Kempton was sentenced to state prison for two years for possession of a controlled substance, plus one year for having served a prison term. At the time of petitioner's sentencing, Penal Code section 4019 provided that conduct credits could be earned at the rate of two days for every four days served. (§ 4019, former subds. (b), (c).)*fn1 Petitioner received credits of 163 days for actual time served and 80 days for conduct, a total of 243 days' credit for presentence custody. Petitioner did not appeal, and his judgment became final on February 8, 2010.

Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18, which amended section 4019 (the January 25 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.*fn2 This class consisted of prisoners who were neither required to register as sex offenders nor committed for serious felonies, or who had no prior convictions for serious or violent felonies.

On October 21, 2010, petitioner filed a petition for writ of habeas corpus in the Butte County Superior Court seeking retroactive application of the January 25 amendment under the principle of equal protection. On October 27 the court denied the petition because the issue could have been raised on appeal and petitioner failed to establish an excuse for not so raising it.

On November 29, 2010, petitioner filed a habeas petition in this court renewing his equal protection argument. Petitioner also alleged, under penalty of perjury, that he "is not required to register as a sex offender" and that "[t]his case does not involve any prior convictions for serious or violent felony offenses." On March 2, 2011, we issued an order to show cause.

The People filed their return, in which they not only challenged petitioner's equal protection claim, but also asserted, in argument III, that petitioner is ineligible for the January 25 amendment credits because he has been convicted of two prior serious felonies.

In petitioner's traverse, although petitioner's counsel has "re-allege[d] all allegations" of the petition filed by petitioner in this court, which include his denial of having been convicted of two serious prior felony convictions, his sole argument on the point is that the convictions may not be used because they were not pleaded and proven.


The issue of whether petitioner incurred one or more prior serious felony convictions has been joined by the return, which asserts that he was convicted of a prior serious felony, and the traverse, which claims he has no such conviction. In habeas corpus proceedings, "[o]nce the issues have been joined in this way, the court must determine whether an evidentiary hearing is needed. If the written return admits allegations in the petition that, if true, justify the relief sought, the court may grant relief without an evidentiary hearing. [Citations.] Conversely, consideration of the written return and matters of record may persuade the court that the contentions advanced in the petition lack merit, in which event the court may deny the petition without an evidentiary hearing. [Citations.] Finally, if the return and traverse reveal that petitioner's entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing." (People v. Romero (1994) 8 Cal.4th 728, 739-740, italics added.)

Rule 8.386(f)(1) of the California Rules of Court provides: "An evidentiary hearing is required if, after considering the verified petition, the return, any traverse, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact."

Here, the factual issue in dispute is whether petitioner was convicted of one or more serious felonies. If petitioner was so convicted, he is ineligible for the increased rate for earning conduct credits provided by the January 25 amendment and there is no need for this court to address his arguments further.

In support of the People's claim that petitioner was convicted of two serious prior felonies, the People have attached to their return a certified copy of an abstract of judgment dated December 27, 2005. This abstract is for "Mark Allen Kempton" with a birth date of "3-24-68" and shows convictions for "ATTEMTED [sic] 2ND DEG ROBBERY" pursuant to sections "664/211" and "GRAND THEFT FIREARM" pursuant to section "487(d)(2)," each of which is a serious felony. (See § 1192.7, subds. (c)(19), (c)(39), (c)(26).) The certified copy of the abstract of judgment provided by petitioner to show his presentence custody credits bears the same full name and birth date as that which is on the abstract provided by the People.

"'[O]fficial government records clearly describing a prior conviction presumptively establish that the conviction in fact occurred, assuming those records meet the threshold requirements of admissibility. [Citation.] Some evidence must rebut this presumption before the authenticity, accuracy, or sufficiency of the prior conviction records can be called into question.' [Citation.]" (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) "As an out-of-court declaration, admitted for the truth of the information contained therein, the abstract is hearsay, but it is nonetheless presumptively admissible for its truth, as a report of the conviction it summarizes, under various exceptions to the hearsay rule." (Id. at p. 1071.)

Here, petitioner's traverse realleges his assertion in the petition that "[t]his case does not involve any prior convictions for serious or violent felony offenses," and "[t]herefore, there are no statutory exceptions barring application" of the new credit formula. Petitioner offers no declaration or affidavit stating that he is not the individual described in the abstract of judgment offered by the People, or that the abstract is inaccurate for any reason, or that the abstract was inadmissible or could not be proven if pleaded. In other words, he offers no reason whatsoever as to why he would prevail in a hearing to determine whether he was convicted of two serious felonies.

Consequently, on this state of the record, we conclude there is no "reasonable likelihood" that petitioner would prevail in an evidentiary hearing on this issue and we need not order an evidentiary hearing.


The petition for a writ of habeas corpus is denied. The order to show cause, having served its purpose, is discharged.

We concur: BLEASE , J. HULL , J.

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