THE PEOPLE v. QUAN BUTCH JAMES III

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. QUAN BUTCH JAMES, III, Defendant and Appellant.

B227921

Decided: October 28, 2011

Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Quan Butch James, III challenges the judgment finding him in violation of probation and revoking probation.   He argues the trial court erred in denying him enhanced presentence custody credits under Penal Code section 4019 1 because the prosecutor did not plead and prove that he had suffered a prior serious felony conviction.2  He also claims a violation of equal protection.   We conclude there is no requirement that the prior strike conviction which rendered appellant ineligible for enhanced presentence custody credits be pleaded and proved.   We also find no equal protection violation.

FACTUAL AND PROCEDURAL SUMMARY

Pursuant to a plea agreement in September 2009, on the People's motion, count 5 was added to the amended information, charging appellant with simple possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a).   Appellant withdrew his not guilty plea to count 1 and pled nolo contendere to counts 1 and 5. The court found him guilty on those counts.   Appellant did not admit the strike prior.   The remaining counts were dismissed pursuant to the plea bargain.   Appellant was given five years formal probation on count 5. The judge warned that a violation of probation would result in a five-year prison sentence on count 1 and “[s]entencing on count 1[was] continued until September 28th, 2012.”

Appellant was arrested in February 2010 for a violation of Health and Safety Code section 11351.5 and other charges.   On September 2, 2010, following a probation violation hearing, the trial court found appellant in violation of probation and sentenced him to five years in state prison on count 1 under the 2009 sentence.   He was given 237 days of presentence credit, including 158 actual days and 79 days of conduct credit.   Appellant filed a timely appeal.

DISCUSSION

I

Appellant argues the trial court erred in restricting the award of presentence credit under Penal Code section 4019, subdivisions (b) and (c), which provide that a defendant with a strike prior is not eligible for enhanced presentence custody credit.

Prior to January 25, 2010, a defendant who remained in custody in county jail prior to sentencing would earn six days' credit for every four days actually served.  (Former § 4019, subds. (b), (c), & (f).)  Effective January 25, 2010, section 4019 was amended to grant some prisoners four days' credit for every two days served, a two-to-one ratio.  (Former § 4019, subds, (b), (c), & (f), Stats.2009, 3d Ex.Sess., ch. 28, § 50.)   Under the 2009 amendments, a prisoner who “ha[d] a prior conviction, for a serious felony, as defined in section 1192.7” was not eligible for the enhanced credit.  (Id., subds.(b), (c).) 3

Section 4019 was amended again, effective September 28, 2010, to restore the previous formula for presentence credit to three days for every two days served.  (Stats.2010, ch. 426, § 2.) That amendment applies only prospectively, to offenses committed after its adoption.  (Id., subd. (g).)  Appellant was sentenced in September 2010 before that amendment went into effect and is therefore governed by the 2009 amendment to section 4019.

Appellant argues he was entitled to the full enhanced presentence custody credit under section 4019 because the prosecutor did not plead and prove the disqualifying 1978 strike prior.   He reasons that the limitation of his credit increased his punishment, citing the discussion of People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero ) in In re Varnell (2003) 30 Cal.4th 1132, 1140 (Varnell ).   The Varnell court noted that in Lo Cicero, it had recognized an implied pleading and proof requirement in a former statute which prohibited probation for any defendant convicted of certain narcotics offenses if the defendant had a prior narcotics conviction.   The statute did not contain an express requirement that the prior be pleaded and proved.   (Id. at p. 1140.)

The Supreme Court in Varnell distinguished Lo Cicero, concluding that the case before it did not present a situation where the prior conviction absolutely denied a defendant the opportunity for probation as it had in Lo Cicero.   It found People v. Dorsch (1992) 3 Cal.App.4th 1346 (Dorsch ) more closely applicable.   In that case, the applicable general rule made a person in defendant's situation ineligible for probation, with an exception where the court found probation was warranted in the interests of justice.   The court found that the provision before it made probation less likely and not the equivalent of an increase in penalty.  (Dorsch, supra, 3 Cal.App.4th at p. 1350.)   The Supreme Court ruled:  “ ‘The court [in Dorsch ] also observed, in words equally applicable here, that ‘when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement.’ ”   (Varnell, supra, 30 Cal.4th at p. 1141, quoting Dorsch, supra, 3 Cal.App.4th at p. 1350.)   Based on this reasoning, no pleading and proof requirement was found to be necessary in Dorsch.  (Ibid.) In Varnell, the Supreme Court concluded that an accusatory pleading need not allege a defendant's ineligibility for mandatory probation and drug treatment under section 1210.1.  (Id. at p. 1143.)

Appellant argues that his prior strike conviction increased his punishment because it reduced his conduct credits, denying him the opportunity to receive additional conduct credits.   A similar argument was rejected in People v. Garcia (2004) 121 Cal.App.4th 271.   In that case, the defendants challenged section 2933.1, subdivision (c) which provides that a defendant convicted of a violent felony may not accrue presentence conduct credits greater than 15 percent of his or her actual period of confinement.   The court rejected the argument that the jury was required to make a special finding that the current offense is a violent felony, concluding that for the purpose of calculating presentence credit, the determination is part of the trial court's traditional sentencing function.  (Id. at p. 274.)   The Garcia court concluded that the “limitation on presentence conduct credits is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary.  [Citation.]  Rather, the provisions for presentence conduct credits function as a sentence ‘reduction’ mechanism outside the ambit of Apprendi [v. New Jersey (2000) ] 530 U.S. [466,] 468–469.”  (Id. at p. 277, citing Varnell, supra, 30 Cal.4th at p. 1142, italics added.)

We agree with respondent that under Varnell, supra, 30 Cal.4th at pp. 1142–1143 and People v. Garcia, supra, 121 Cal.App.4th at p. 277 the prosecutor was not required to plead and prove the prior felony conviction which rendered appellant ineligible for enhanced presentence conduct credits under section 4019 because it did not constitute an increase in his punishment.

II

Appellant also argues that denial of enhanced presentence conduct credits under section 4019 is a violation of his right to equal protection because under section 2933, had he not been detained in custody pending trial, he could have been awarded 100 percent of conduct credit even if he had a strike prior.   He contends this distinction is not rational and that there is no compelling state reason to treat a felon who was detained before sentencing differently from a felon who was not.   Appellant cites People v. Saffell (1979) 25 Cal.3d 223, which found that good time conduct credits are intended to encourage good behavior and satisfactory work performance by prison inmates.   (Id. at p. 233.)

“ ‘ “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’   [Citations.]  This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’  [Citation.]” '[Citations.]” (People v. Jeha (2020) 187 Cal.App.4th 1063, 1073, quoting People v. McKee (2010) 47 Cal.4th 1172, 1218–1219.)

Respondent contends that appellant cannot satisfy this requirement because his argument assumes that all defendants delivered to the California Department of Corrections and Rehabilitation will earn the full good time credits on which appellant bases his argument.   Respondent cites section 2933, subdivision (c) which states:  “[Worktime] credit is a privilege, not a right.  [Worktime] credit must be earned and may be forfeited pursuant to the provisions of Section 2932.”  (See People v. Buckhalter (2001) 26 Cal.4th 20, 31 (Buckhalter ) [recognizing that worktime credits under section 2933 “can be earned, if at all, under specified conditions and that they may be forfeited for prison disciplinary violations] italics added.)   The Buckhalter court emphasized the distinct purposes of presentence and postsentence systems for awarding term-shortening credits.   It held:  “[T]he pre and postsentence credit systems serve disparate goals and target persons who are not similarly situated.   The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.   By contrast, the worktime credit scheme for persons serving prison terms emphasizes penological considerations, including the extent to which certain classes of prisoners, but not others, deserve or might benefit from incentives to shorten their terms through participation in rehabilitative work, education, and training programs operated by the Department of Corrections.  [Citations.]”  (Id. at pp. 36–37.)

Appellant thus cannot satisfy the threshold requirement that his equal protection argument be based on comparison of similarly situated groups.   We find no equal protection violation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code unless otherwise indicated..  FN1. Statutory references are to the Penal Code unless otherwise indicated.

FN2. This issue is before the Supreme Court in People v. Lara (2010) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784..  FN2. This issue is before the Supreme Court in People v. Lara (2010) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784.

FN3. Both appellant and respondent agree that the issue of the retroactivity of the 2009 amendments, an issue before the Supreme Court in a number of cases, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, does not apply here because appellant was sentenced on September 2, 2010..  FN3. Both appellant and respondent agree that the issue of the retroactivity of the 2009 amendments, an issue before the Supreme Court in a number of cases, including People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, does not apply here because appellant was sentenced on September 2, 2010.

MANELLA, J. SUZUKAWA, J.