THE PEOPLE v. JEROMY ONEAL MACK

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JEROMY ONEAL MACK, Defendant and Appellant.

F060272

Decided: August 25, 2011

Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Appellant Jeromy Oneal Mack appeals from an order terminating probation and sentencing him to three years in state prison.   In his original opening brief, appellant contends the trial court abused its discretion in terminating probation and in imposing a $30 court facilities assessment.   In his supplemental brief,1 appellant contends he is entitled to additional presentence conduct credit under the January 25, 2010 amendment to Penal Code section 4019,2 as well as the September 28, 2010 amendment to section 2933.   We modify the judgment to strike the court facilities assessment and to award additional section 4019 credits for days appellant spent in custody prior to January 25, 2010.   In all other respects, the judgment is affirmed.

On September 14, 2007, appellant was charged by information with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1);  count 1), and misdemeanor spousal abuse (§ 243, subd. (e)(1);  count 2.) On November 5, 2007, appellant pled no contest to count 1, and count 2 was dismissed.   The trial court ordered appellant to serve 36 months of formal probation.   One of the terms of probation was that appellant “[e]nroll and complete the year-long Batterers' Treatment Program.”

On August 19, 2008, the probation department filed a probation violation affidavit alleging that appellant:  (1) failed to report to his probation officer;  (2) failed to obey all laws by violating section 243, subdivision (e)(1);  and (3) failed to successfully complete domestic violence counseling.   On August 25, 2008, appellant admitted the second allegation and the remaining allegations were withdrawn.   Probation was reinstated and appellant was ordered to serve a 30–day jail term.

On January 7, 2009, a second probation violation affidavit was filed, alleging that appellant:  (1) failed to complete the batterers' treatment program;  and (2) failed to notify his probation officer of a change in residence.   On February 27, 2009, appellant admitted both allegations, probation was reinstated, and appellant was ordered to serve a 90–day jail term.

On June 2, 2009, a third probation violation affidavit was filed, alleging that appellant made contact with a known probationer.   On June 4, 2009, appellant admitted the allegation, probation was reinstated, and appellant was released from jail, having already been in custody for eight days.

On July 24, 2009, a fourth probation violation affidavit was filed, alleging appellant:  (1) failed to enroll in the batterers' treatment program;  (2) failed to report to his probation officer;  and (3) failed to notify his probation officer of a change of residence.   On December 15, 2009, appellant admitted all three allegations, probation was reinstated, and a 90–day jail term was imposed with credit for 25 days already served.

An amendment to section 4019 became effective January 25, 2010.  (See Stats.2009–2010, 3d Ex.Sess.2009, ch. 28.) 3

On March 25, 2010, a fifth probation violation affidavit was filed, alleging appellant:  (1) failed to enroll in the batterers' treatment program;  and (2) failed to report to his probation officer.

On April 23, 2010, appellant admitted that he failed to enroll in the batterers' treatment program, and the other allegation was withdrawn.   After finding appellant had not performed satisfactorily on probation and was not amenable to further probation, the trial court terminated appellant's probation.

On May 14, 2010, the trial court imposed the previously suspended mid-term sentence of three years, and imposed fines and fees, including a $30 court facilities assessment (Gov.Code, § 70373).

The trial court also awarded appellant 373 days of presentence custody credit, including 239 days of actual credit and 134 days of conduct credit.   In doing so, the court denied appellant's request to calculate all of his conduct credits under amended section 4019, and instead applied amended section 4019 only to the period of time appellant spent in custody after January 25, 2010, and applied former section 4019 to the periods of time appellant spent in custody before January 25, 2010.4

DISCUSSION

I. Termination of Probation

Appellant contends the trial court abused its discretion in terminating his probation because there was no substantial evidence that his failure to enroll in the batterers' program was willful.   We find no abuse of discretion because appellant admitted the probation violation allegation and waived a contested hearing on the issue.

A. Background

During the hearing on April 23, 2010, defense counsel argued in favor of reinstating probation, suggesting that appellant's failure to enroll in the batterers' treatment program was due solely to financial hardship.   Defense counsel asserted that appellant had a newborn son appellant was providing for and suggested that appellant was being asked unfairly to choose between providing for his son or paying for the batterers' treatment program.   Defense counsel urged the trial court to give appellant additional time to “get a job” and become “a contributing member of society” and “not send a ․ 22–year–old father ․ to prison when he's never been there before.”

The prosecutor disputed defense counsel's characterization of appellant, arguing:  “It's not a matter of poverty or anything.   It's simply he doesn't want to comply, so we're at the point now where, I guess, we put on a hearing and we have the judge decide.”   Among other things, the prosecutor noted that appellant had four previous opportunities to comply with the probation condition and had not done so.   The prosecutor also noted that the asserted fact that appellant had an infant son did not make it any less important that appellant complete the court-ordered batterers' treatment program.

After the attorneys argued, appellant admitted the allegation that he violated the terms of his probation by failing to enroll in the batterers' treatment program, and expressly waived the right to a contested hearing on the issue.

After accepting appellant's admission and waiver, the trial court terminated probation and imposed the suspended three-year sentence.   In doing so, the court explained:

“Mr. Mack, this is a fifth VOP. You know, the arguments that have been made are not convincing.   You've had 2–1/2 years to try and do this program and you put other matters in priority over avoiding a prison sentence or avoiding additional jail time and at some point in time there has to be a day of reckoning and today is that day.”

B. Analysis

An appellant challenging a probation revocation order has the burden of affirmatively demonstrating an abuse of discretion.  (People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977–978.)   In considering an abuse of discretion claim, an appellate court will intervene in the trial court's exercise of discretion only when it concludes, under all the circumstances, viewed most favorably in support of the trial court's action, no judge could have reasonably reached the challenged result.  (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)   A trial court's sentencing choice will constitute an abuse of discretion only when it is clearly shown that the sentencing choice “exceeds the bounds of reason or disregards uncontradicted evidence.”  (In re Lugo (2008) 164 Cal.App.4th 1522, 1535.)

Probation is an act of clemency and may be withdrawn if the privilege is abused.  (People v. Griffith (1984) 153 Cal.App.3d 796, 798.)  “Once a probation violation occurs, the trial court has broad discretion in deciding whether to continue or revoke probation.”  (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.)   If the interest of justice so requires, the court may revoke probation when it has reason to believe the person has violated any of the conditions of his or her probation. (§ 1203.2, subd. (a).)

Appellant has failed to demonstrate that the trial court abused its discretion by revoking his probation.   As noted above, appellant expressly waived the right to a contested hearing and admitted he violated the terms of his probation by failing to enroll in the batterers' treatment program.   In other words, despite the opportunity to do so, appellant presented no evidence to support his attorney's assertions regarding his supposed inability to pay for the program and instead admitted the probation violation allegation, thereby obviating the need for an evidentiary hearing on the issue.5

Appellant tries to avoid this conclusion by asserting his admission of the probation violation was inadequate.   However, the case he relies on to support this assertion is inapposite.  (See e.g., People v. Zaring (1992) 8 Cal.App.4th 362, 377–379 [probation revocation constituted abuse of discretion where trial court accepted appellant's explanation for being 22 minutes late to court;  appellant was confronted with last-minute unforeseen circumstances involving her parental responsibility, and nothing in record supported conclusion her conduct was result of irresponsibility, contumacious behavior, or disrespect for court's orders].)   Here, there is no indication the trial court accepted counsel's unsubstantiated explanation for appellant's failure to enroll in the batterers' treatment program and then arbitrarily or unreasonably disregarded it in ruling to terminate probation.

In light of appellant's admission that he was in violation of probation and his decision to waive an evidentiary hearing on the issue, appellant has failed to show the trial court abused its discretion by accepting appellant's admission and revoking his probation.

II. The Court Facilities Assessment

Appellant contends, and respondent concedes, that the $30 assessment for the construction of court facilities set forth in Government Code section 70373 should not have been imposed because he was convicted before the statute's January 1, 2009, effective date.   We agree and will strike the assessment.   (People v. Davis (2010) 185 Cal.App.4th 998 [Gov.Code, § 70373 applies only where the conviction occurs on or after its effective date;  order imposing assessment reversed].)

III. Section 4019

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 actual credits for 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 (Duff ).)   Prior to January 25, 2010, section 4019 provided for “two days [of conduct credit] for every four days the defendant is in actual presentence custody.”  (Duff, supra, 50 Cal.4th at p. 793.)   The January 25, 2010 amendment provided for the granting of two days of conduct credit for every two days of presentence custody.  (Amended § 4019, subd. (f).) 6

Appellant contends the trial court erred when it calculated his conduct credits at sentencing by applying amended section 4019 only to the period of time he spent in custody after the January 25, 2010 effective date of the statute.   Respondent contends the court did not err because amended section 4019 applies prospectively only.   We hold that, because amended section 4019 was in effect at the time of sentencing, the trial court should have awarded conduct credits for the entirety of appellant's presentence custody pursuant to the terms of amended section 4019.  (See People v. Sandoval (2007) 41 Cal.4th 825, 845 [“a change in procedural law is not retroactive when applied to proceedings that take place after its enactment”];  see also People v. Grant (1999) 20 Cal.4th 150, 157 [“A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its effective date’ ”].)

“Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct.  [Citations.]  Persons detained in a specified city or county facility, or under equivalent circumstances elsewhere ․ ‘prior to the imposition of sentence’ may also be eligible for good behavior credits․  ‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing,’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment.  [Citations.]”  (People v. Buckhalter (2001) 26 Cal.4th 20, 30, fn. omitted.)   This responsibility is to be performed “[a]t the time of sentencing.”  (Cal. Rules of Court, rule 4.310.)  “[B]efore a sentencing court may withhold conduct credits, the defendant is entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and (2) present any mitigating factors.   [Citation.]”  (People v. Duesler (1988) 203 Cal.App.3d 273, 277 (Duesler ).)

Section 4019 conduct credits are neither earned per segment, e.g., per four- or two-day period, nor available “ ‘ “all or nothing.” ’ ”  (People v. Johnson (1981) 120 Cal.App.3d 808, 813–814 (Johnson ).)   Instead, they are “credited to the defendant's term of imprisonment ‘in the discretion of the court imposing the sentence.’  [Citation.]  It is the duty of the sentencing court to determine ‘the total number of days to be credited ․’ for presentence custody.  [Citations.]  [¶] Although the sheriff is authorized to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition of probation, his role with respect to presentence custody credit is to provide the sentencing court with information, records and recommendations.  [Citations.]  The sheriff or the People have the burden to show that a defendant is not entitled to Penal Code section 4019 credits.   [Citation.]”  (Duesler, supra, 203 Cal.App.3d at p. 276.)  “If the record fails to show that defendant is not entitled to such credits ․ he shall be granted them.”  (Johnson, supra, 120 Cal.App.3d at p. 815.)   Thus, section 4019 credits are either withheld or granted at sentencing.   It follows then, that the calculation of credits is based upon the law in effect at the time of sentencing.

Amended section 4019 contains no provision for a two-tiered division of presentence custody credits, and it was the only version of section 4019 operative at the time of appellant's sentencing.   Thus, the trial court's discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because appellant had been in custody while the former version of section 4019 had provided a lesser amount of credits.   Because “the record fails to show that [appellant] is not entitled [to conduct credits], he shall be granted them” (Johnson, supra, 120 Cal.App.3d at p. 815) as provided for in the version of section 4019 in effect at the time of sentencing.

Accordingly, because appellant had served a total of 239 days in local custody prior to sentencing, and there was no showing he was not entitled to conduct credits, he was entitled to 238 days of section 4019 credit.

IV. Section 2933

Effective September 28, 2010, the Legislature enacted Senate Bill No. 76, which amended section 2933 regarding worktime credit for prisoners confined in state prison, to give such prisoners, to the extent they qualify, one day of presentence conduct credit for each day of actual presentence confinement served.  (Sen. Bill No. 76, § 1;  § 2933, subd. (e)(1), (2), (3).)   Although he was sentenced before the September 28, 2010 effective date, appellant contends he is retroactively entitled to the benefits of the amendment to section 2933.   The arguments appellant advances in support of his contention are similar to those this court has previously considered and rejected in connection with the claim that amended section 4019 should be applied retroactively to award additional conduct credits to defendants sentenced before the January 25, 2010 effective date.  (See e.g., People v. Rodriguez (2010) 183 Cal.App.4th 1, rev. granted June 9, 2010, S181808.)   We similarly reject appellant's arguments concerning the amendment to section 2933.

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].”  (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 amendment to operate retroactively.  (Ibid.) Therefore, the 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 amendment to section 2933.

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].)

DISPOSITION

The judgment is modified to strike the $30 court facilities assessment and to award appellant a total of 477 days of presentence credits (239 days actual, plus 238 days conduct credit).   The trial court is directed to amend the abstract of judgment and forward it to the appropriate agencies.   In all other respects, the judgment is affirmed.

HILL, P.J.

WE CONCUR:

CORNELL, J.

DAWSON, J.

FOOTNOTES

FN1. In an order for supplemental briefing filed on April 11, 2011, this court asked the parties to address the following question:  “Is appellant entitled to additional presentence credits under the January 25, 2010 amendments to Penal Code section 4019 ․ for time served before January 25, to which the trial court applied the former version of section 4019?  (See e.g., People v. Zarate (2011) 192 Cal.App.4th 939 ․ [ (rev. granted May 18, 2011, S191676) ].)”.  FN1. In an order for supplemental briefing filed on April 11, 2011, this court asked the parties to address the following question:  “Is appellant entitled to additional presentence credits under the January 25, 2010 amendments to Penal Code section 4019 ․ for time served before January 25, to which the trial court applied the former version of section 4019?  (See e.g., People v. Zarate (2011) 192 Cal.App.4th 939 ․ [ (rev. granted May 18, 2011, S191676) ].)”

FN2. Further statutory references are to the Penal Code unless otherwise specified..  FN2. Further statutory references are to the Penal Code unless otherwise specified.

FN3. Section 4019 was amended again effective September 28, 2010.   (Stats.2009–2010, Reg. Sess., ch.   426 (S.B.76), § 2.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.   Because the latest version of the statute applies only to crimes committed after its effective date, it does not affect our resolution of the issues in this case.  (See current § 4019, subd. (f).)  We note that, on April 4, 2011, section 4019 was yet again amended.  (Stats.2011–2012, ch. 15, § 482.)   However, the operation of this latest amendment is conditional on the creation and funding of a community corrections grant program.  (Id. at § 636.).  FN3. Section 4019 was amended again effective September 28, 2010.   (Stats.2009–2010, Reg. Sess., ch.   426 (S.B.76), § 2.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.   Because the latest version of the statute applies only to crimes committed after its effective date, it does not affect our resolution of the issues in this case.  (See current § 4019, subd. (f).)  We note that, on April 4, 2011, section 4019 was yet again amended.  (Stats.2011–2012, ch. 15, § 482.)   However, the operation of this latest amendment is conditional on the creation and funding of a community corrections grant program.  (Id. at § 636.)

FN4. The record reflects that appellant was not in custody on January 25, 2010, when amended section 4019 went into effect..  FN4. The record reflects that appellant was not in custody on January 25, 2010, when amended section 4019 went into effect.

FN5. Thus, this case is distinguishable from People v. Buford (1974) 42 Cal.App.3d 975, a case on which appellant relies for the proposition that the prosecution has the burden of proving a willful violation of probation at a probation revocation hearing..  FN5. Thus, this case is distinguishable from People v. Buford (1974) 42 Cal.App.3d 975, a case on which appellant relies for the proposition that the prosecution has the burden of proving a willful violation of probation at a probation revocation hearing.

FN6. The amendment's increase does not apply “[i]f the prisoner is required to register as a sex offender ․ was committed for a serious felony ․ or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.”   (Amended § 4019, subds. (b)(2) & (c)(2)..  FN6. The amendment's increase does not apply “[i]f the prisoner is required to register as a sex offender ․ was committed for a serious felony ․ or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.”   (Amended § 4019, subds. (b)(2) & (c)(2).