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The People v. Mark Verba

October 31, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK VERBA, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County. David B. Gelfound, Judge. (Los Angeles County Super. Ct. No. PA068543)

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

CERTIFIED FOR PUBLICATION

Affirmed.

Defendants who committed their crimes on or after October 1, 2011 are eligible for presentence conduct credits calculated on the basis of two days of conduct credit for every two days of actual custody. (Pen. Code, § 4019, subds. (b), (c) & (f).)*fn1 Defendants who committed their crimes prior to October 1, 2011 are eligible for conduct credits at the previous rate of two days for every four days in custody. (§ 4019, subd. (h).) Appellant, who committed his crime in April 2010, contends that affording him a lower level of conduct credits solely because he committed his crime prior to October 1, 2011 violates his constitutional right to the equal protection of the laws. We conclude that the right to equal protection does not prevent the Legislature from limiting the increased level of presentence conduct credits to detainees who committed their crimes on or after the October 1, 2011 operative date of the statute. We therefore uphold appellant's sentence.

FACTS AND PROCEEDINGS BELOW

In August 2011, the trial court sentenced Mark Verba for the crime of failing to register as a sex offender in April 2010. A defendant is entitled to accrue presentence custody credits under section 2900.5 and conduct credits under section 4019, subdivisions (b) and (c), for the period of incarceration prior to sentencing. In sentencing Verba, the trial court awarded him two days of conduct credit for every four days he spent in presentence custody under section 4019, subdivisions (b) and (c), as amended by Senate Bill No. 76 which became effective in September 2010. (Stats. 2010, ch. 426, §§ 2, 5.) Under this formula, Verba received 182 days of presentence custody credit consisting of 122 actual days in custody and 60 days of conduct credit.*fn2

While Verba was in presentence custody, the Legislature amended section 4019, subdivisions (b) and (c), to provide that "a term of four days will be deemed to have been served for every two days spent in actual custody." (§ 4019, subd. (f).) The statute containing this amendment became effective on June 30, 2011 (Stats. 2011, ch. 39, §§ 53, 73) but the amendment was expressly made operative only as to "prisoners who are confined . . . for a crime committed on or after October 1, 2011." (§ 4019, subd. (h), added by A.B. No. 117, Stats. 2011, ch. 39, § 53; referred to hereafter as the "October 1 amendment.") Because Verba committed his crime in April 2010, he was not entitled to the new level of conduct credit.

Verba contends that making the new level of conduct credit operative on a date after the effective date of the statute violates his right to the equal protection of the laws as guaranteed by the Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution. To remedy this constitutional infirmity, he argues, the new level of conduct credit should apply to all defendants who were inmates on the statute's effective date, June 30, 2011.

DISCUSSION

I. VERBA'S CHALLENGE TO THE OCTOBER 1 AMENDMENT IS NOT BARRED BY SECTION 1237.1

We disagree with the Attorney General's contention that section 1237.1 bars Verba's challenge to the constitutionality of the October 1 amendment. Section 1237.1 states in relevant part: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing[.]"

Section 1237.1 does not apply here. Verba does not contend that the court erred in calculating his custody credits under the version of section 4019 in effect at the time.

II. THE OCTOBER 1 OPERATIVE DATE OF THE STATUTE DOES NOT VIOLATE VERBA'S RIGHT TO THE EQUAL PROTECTION OF THE LAWS

Under the October 1 amendment, if A commits a crime on September 30, 2011 and B commits a crime on October 2, 2011, A will receive a lower level of conduct credits than B, even if their time in custody begins on the same day, e.g. October 3, 2011, because A committed his crime before October 1, 2011 and B committed his crime "on or after ...


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