Opinion
E051764
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAYMOND ORTIZ, Defendant and Appellant.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent. On October 13, 2009, a judgment imposing a 28-month prison term was entered against defendant and appellant Michael Raymond Ortiz. He did not appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF029261)
OPINION
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
On October 13, 2009, a judgment imposing a 28-month prison term was entered against defendant and appellant Michael Raymond Ortiz. He did not appeal.
An amendment to Penal Code section 4019 became effective January 25, 2010. (See Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28.)
Undesignated statutory references are to the Penal Code.
On August 18, 2010, the trial court denied defendant's motion to adjust his sentencing credits to provide him the increased credits of the amendment.
Defendant contends equal protection requires he receive the additional credits.We affirm.
Defendant's initial opening brief contended the amendment was retroactive so as to entitle him to its benefit pursuant to In re Estrada (1965) 63 Cal.2d 740. The issue of whether Estrada renders the January 25, 2010 amendment to section 4019 retroactive is currently pending before our Supreme Court. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) However, regardless of the outcome of that issue, the Estrada rule cannot apply to defendant because the amendment became effective after his judgment became final. (See Estrada, at p. 744.) Defendant's supplemental opening brief raised the issue of equal protection in response to a now unciteable decision by one of our sister Courts of Appeal on equal protection grounds.
DISCUSSION
The facts underlying defendant's conviction are not relevant to the issue on appeal.
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Section 4019 permits defendants to earn credit toward their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to credits for actual time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) This is because "section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody." (People v. Brown (2004) 33 Cal.4th 382, 405.) Section 4019 credits are awarded or withheld "[a]t the time of sentencing." (Cal. Rules of Court, rule 4.310; see also People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Duesler (1988) 203 Cal.App.3d 273, 277.) Under the pre-January 25, 2010 version of section 4019, in effect at the time of defendant's sentencing, he was awarded "two days [of conduct credit] for every four days [he was] in actual presentence custody." (Duff, at p. 793.) The January 25, 2010 amendment to section 4019 provided for the granting of two days of conduct credit for every two days of presentence custody for certain defendants. (Former § 4019, subd. (f).)
While defendant raises the issue of equal protection, he is not clear as to what standard of scrutiny should apply. We hold that a rational basis test is appropriate, and that a rational basis justifies the temporal distinction between persons sentenced before and after the amendment became operative.
"It is a fundamental principle that, '[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] 'In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 571 ["equal protection provisions in the California Constitution 'have been generally thought . . . to be substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution' "].) "[P]ersonal liberty is an interest which is entitled to the same protection as other fundamental interests." (People v. Olivas (1976) 17 Cal.3d 236, 251 (Olivas) [holding youthful misdemeanants in the control of the Department of Youth Authority in excess of the maximum jail term implicates the liberty interest and, under strict scrutiny, is a denial of equal protection].) "A defendant, however, 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' " (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Thus, "the rational basis test applies to equal protection challenges based on sentencing disparities. [Citations.]" (People v. Ward (2008) 167 Cal.App.4th 252, 258.) In particular, " '[e]qual protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.] The only requirement is that "classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose." [Citations.]' " (In re Stinnette (1979) 94 Cal.App.3d 800, 806; see also People v. Hofsheier (2006) 37 Cal.4th 1185, 1201 [The inquiry ends if there are plausible reasons for the classification].)
Defendant was sentenced prior to the effective date of the amendment of section 4019 that increased the amount of credits that may be awarded for good behavior in local custody. He was awarded full conduct credits under the pre-January 25, 2010 version of section 4019 in effect at the time of his sentencing. His contention is that he is similarly situated to, but receiving a sentence that is disparate from, convicts sentenced after the January 25, 2010 amendment became operative because his term of imprisonment will be longer because he was awarded fewer conduct credits. Because defendant's equal protection challenge concerns a mere sentencing disparity, we conduct a rational basis review. (People v. Ward, supra, 167 Cal.App.4th at p. 258.)
As quoted above, "section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody." (People v. Brown, supra, 33 Cal.4th at p. 405.) "Reason dictates that it is impossible to influence behavior after it has occurred." (In re Stinnette, supra, 94 Cal.App.3d at p. 806.) Accordingly, applying the amendment of section 4019 retroactively would not serve the purposes of section 4019. Thus, a legitimate public purpose exists for treating convicts sentenced before and after the amendment of section 4019 differently, and defendant's right to equal protection has not been violated.
Defendant relies on In re Kapperman (1974) 11 Cal.3d 542, 544, in support of his contention that equal protection mandates he be provided the increased credits from amended section 4019. Kapperman held that an express prospective limitation upon the statute creating presentence credits for the actual time spent in presentence custody was a violation of equal protection because there was no legitimate purpose served by excluding those already delivered to prison. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because there is a legitimate reason for excluding those already sentenced from receiving increased presentence conduct credits. As discussed ante, the reason is that the presentence behavior of those already sentenced cannot be influenced by the increased incentive of potentially receiving a greater amount of conduct credits. (In re Stinnette, supra, 94 Cal.App.3d at p. 806.) In Kapperman the temporal distinction was not sufficient. However, unlike the present case, because credit for actual custody was at issue, there was no rational basis justifying the temporal distinction.
Accordingly, after a rational basis review, defendant's right to equal protection has not been violated.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
RICHLI
J.