THE PEOPLE v. JASON CHANDLER GILBERT

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JASON CHANDLER GILBERT, Defendant and Appellant.

F059705

Decided: March 30, 2011

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

* Before Levy, Acting, P.J., Gomes, J., and Vortmann, J.†

† Judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Pursuant to a plea agreement, appellant, Jason Chandler Gilbert, pled no contest to assault with a deadly weapon (Pen.Code, § 245, subd. (a)) 1 and admitted a section 422.75, subdivision (a) hate crime enhancement allegation in exchange for, inter alia, a stipulated sentence of four years and the dismissal of other felony counts and enhancement allegations.   The court imposed a prison term of four years, consisting of the three-year middle term on the instant offense and one year on the hate crime enhancement, and awarded appellant 207 days of presentence credit, consisting of 139 days of actual time credit and 68 days of conduct credit.

Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).

Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record.  (People v. Wende (1979) 25 Cal.3d 436.)   Appellant has not responded to this court's invitation to submit additional briefing.

Pursuant to this court's “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010 (Supplemental Briefing Order) discussed in greater detail below we deem to be raised the contention that appellant is entitled to additional conduct credit under the January 25, 2010 amendment to section 4019 (January 2010 amendment).   We will affirm.

The report of the probation officer states that according to a Fresno Police Department crime report, on August 30, 2008, officers responding to a report of a “stabbing” went to a bar in Fresno and made contact with “the victim, Martin, an African American,” who told them the following:  Martin had just walked out of the bar when appellant and two other persons approached him.   Appellant stated, “ ‘This is a white bar, mother fucker.’ ”   Martin said he “had a right to be there,” and “walked away to call his friend, John Sola.”

Sola arrived shortly thereafter, and he and Martin entered the bar.   At that point, appellant “brandished a pair of scissors and tried stabbing ․ Martin.”   Martin “push[ed] [appellant] away,” and stated he was leaving.   Appellant “then called Sola a ‘nigger lover’ and ․ stabbed Sola in the upper back shoulder area.”   Sola was bleeding, and he went to a hospital, but grew tired of waiting and left without receiving treatment.

DISCUSSION

Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).)  In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).  These forms of section 4019 presentence credit are called, collectively, conduct credit.  (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

The court sentenced appellant on January 11, 2010, and calculated appellant's conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody.  (Former § 4019.)   However, the Legislature amended section 4019 effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody.

This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the January 2010 amendment, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles.   We deem these contentions raised here.2  As we explain below, they are without merit.

Under section 3, it is presumed that a statute does not operate retroactively “ ‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].  [Citation.]’  [Citation.]”  (People v. Alford (2007) 42 Cal.4th 749, 753.)   The Legislature neither expressly declared, nor does it appear by “ ‘clear and compelling implication’ ” from any other factor(s), that it intended the January 2010 amendment to operate retroactively.  (Ibid.) Therefore, that amendment applies prospectively only.

We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively.   However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the January 2010 amendment to section 4019.

We conclude further that prospective-only application of the amendment does not violate appellant's equal protection rights.   Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement;  and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose.  (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].) 3

Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FN2. We assume without deciding that, as indicated in the report of the probation officer, appellant is not required to register as a sex offender and has not suffered a prior conviction of a serious or violent felony..  FN2. We assume without deciding that, as indicated in the report of the probation officer, appellant is not required to register as a sex offender and has not suffered a prior conviction of a serious or violent felony.

FN3. The issue of whether the January 2010 amendment applies retroactively is currently before the California Supreme Court in a number of cases, including this court's decision in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808..  FN3. The issue of whether the January 2010 amendment applies retroactively is currently before the California Supreme Court in a number of cases, including this court's decision in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.

THE COURT *