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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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