THE PEOPLE v. JAVIER ALEJANDRO FRANCO (2011)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JAVIER ALEJANDRO FRANCO, Defendant and Appellant.

2d Crim. No. B228121

Decided: June 29, 2011

Javier Alejandro Franco appeals from the judgment after he was convicted by plea for rape of an unconscious person (count 1; Pen.Code, § 261, subd. (a)(4)) 1, rape of a drugged person (count 2; § 261, subd. (a)(3)), and four misdemeanor counts of loitering about a toilet to solicit lewd acts (§ 647, subd. (d)). The trial court sentenced appellant to six years state prison on count 1 (rape of an unconscious person), a concurrent six year term on count 2 (rape of a drugged person), and concurrent six month terms on the misdemeanor counts. Appellant claims sentencing error. We modify the judgment to stay the six year sentence on count 2 (rape of a drugged person) pursuant to section 654 and affirm the judgment as modified. The felony change of plea is based on a preliminary hearing transcript and probation report which reflect the following: On the evening of December 27, 2008, appellant, Jessica P., Anthony Rodriguez, and Arlene Lopez visited a nightclub. Jessica drank quite a bit and did not recall leaving the club. Appellant had sexual intercourse with Jessica without her consent as she drifted in and out of consciousness in the back seat of a car. When Rodriguez and Arlene returned to the car, they found appellant inside the car with Jessica. Jessica heard Lopez yell, woke up, and punched appellant in the face. The next day, Jessica reported the rape to the police. Laboratory tests confirmed the presence of the drug GHB in Jessica's system. Section 654 Stay of Sentence on Count 2 Appellant argues, and the Attorney General agrees, that the trial court erred in not staying the sentence on count 2 pursuant to section 654. The counts for rape of an unconscious person and rape of a drugged person refer to the same sexual assault which was prosecuted as a single act. (See e.g., People v. Hicks (1993) 6 Cal.4th 784, 790; People v. Siko (1985) 45 Cal.3d 820, 823–825.) When the change of plea was entered, the prosecution stated that section 654 applied. The trial court indicated that the maximum sentence for both counts would be eight years (i.e., the high term for one count of rape) but misspoke when it imposed a concurrent sentence on count two. (People v. Deloza (1998) 18 Cal.4th 585, 592.) We modify the judgment to stay the sentence on count 2 pursuant to section 654. Presentence Conduct Credits Appellant was sentenced on September 23, 2010, and awarded 633 actual days and 316 days conduct credit. He argues that the trial court erred in not awarding one-for-one presentence conduct credits based on the January 25, 2010 and September 28, 2010 amendments to sections 4019 and 2933. The January 25, 2010 amendment to section 4019, also known as Senate Bill 18(SB), (Stats.2009–2010, 3d Ex.Sess., ch 28, § 5) increases the rate at which certain qualifying prisoners earn presentence conduct credits. SB 18 provides that appellant is not eligible to receive enhanced one-for-one conduct credits because he was committed to state prison for a serious felony (rape) and is required to register as a sex offender. (Former § 4019, subds. (c)(1), (c)(2); see In re Kemp (2011) 192 Cal.App.4th 252, 256.) On September 28, 2010, as an urgency measure, the Legislature enacted SB 76, which amended section 2933 regarding presentence conduct credits for defendants sentenced to state prison. (Stats.2010, ch. 426, § 2.) The amendment provides that eligible prisoners will receive one day presentence conduct credit for each day of actual presentence confinement served. (§ 2933, subd. (e)(1).) If, however, the prisoner is committed for a serious felony or is required to register as a sex offender, 4019 controls and the prisoner does not receive one-for-one presentence conduct credits. (§ 2933, subd. (e)(3).) SB 76 also amends section 4019 to reduce the amount of presentence conduct credits to the rate that existed prior to SB 18, i.e., two days conduct credit for every four days actually served. (§ 4019, subds.(b)-(c).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant claims that he is entitled to one-for-one presentence custody credits based on SB 76 but was sentenced five days before the September 28, 2010 operative date. As amended, section 4019 is prospective and applies to prisoners confined to a county jail “for a crime committed on or after the effective date ” of the amendment, i.e., September 28, 2010. (§ 4019, subd. (g), emphasis added.) Appellant committed the rape on December 28, 2008.

The January 25, 2010 and September 28, 2010 amendments to section 4019 further provide that a prisoner who is committed for a serious felony or required to register as a sex offender is not eligible to receive one-for-one presentence conduct credits, but instead receives two days conduct credit for every four days in actual custody. (§ 4019, subds.(b)-(c); former § 4019, subds. (b)(2)-(c)(2).) Regardless of whether SB 76 or SB 18 applies, appellant only receives two days presentence conduct credit for every four days in actual custody, which is what the trial court awarded.

Equal Protection

Appellant claims that he has an equal protection right to one-for-one credits because SB 76 provides that prisoners not eligible to receive one-for-one presentence conduct credits under section 4019, earn the equivalent of one-for-one postsentence conduct credit after they are sentenced to prison. (§ 2933, subd. (b).) He argues: “This denial of credits limited to periods of confinement in jail denie[s] them equal protection, because such persons will end up serving a longer sentence than similarly-situated individuals who have not served a significant period of pre-sentence confinement in jail prior to their sentence to state prison.” He also argues that, 1. prior cases are no longer persuasive because they are based on the rationale that postsentence conduct credits are a privilege not a right, and must be earned and 2. postsentence conduct credits are “automatic” under the 2010 amendments because credits may not be denied to prisoners who are willing to work but lack the opportunity to do so. (§ 2933, subd. (b).) ² He relies on People v. Sage (1980) 26 Cal.3d 498 which involved a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons. (Id., at p. 508.) The California Supreme Court concluded there was no “rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Ibid.)

Appellant's equal protection challenge fails for several reasons. As amended, section 2933, subdivision (c) provides that postsentence conduct credits are “a privilege, not a right” and “must be earned.” The cases finding no equal protection violation in this context are based not only on the fact that postsentence conduct credits must be earned, but also because “the state's interest in rehabilitation and the difficulty in establishing prison-style work programs in county jails justify the disparate application of presentence and postsentence work credits. [Citation.]” (People v. DeVore, supra, 218 Cal.App.3d at p. 1320, citing People v. Waterman (1986) 42 Cal.3d 565, 570; see People v. Buckhalter (2001) 26 Cal.4th 20, 36 [“the pre and postsentence credit systems serve disparate goals and target persons who are not similarly situated.”]; see People v. Poole (1985) 168 Cal.App.3d 516, 524–526; People v. Ross (1985) 165 Cal.App.3d 368, 377.)

Here the legislative justification for the differential treatment of prisoners is based on the state's interest in rehabilitating prisoners committed for serious felonies and prisoners required to register as sex offenders. These prisoners are a greater threat to public safety and a greater rehabilitation problem. Assuming they go straight to prison they may benefit immediately from the rehabilitation that education, work, and training programs in prison offer. (People v. Buckhalter, supra, 26 Cal.4th at p. 36.)

Appellant counters that the public policy argument is not persuasive because every prisoner who remains in county jail after sentencing gets one-for-one credits prior to being actually transferred to state prison. This transitional period is generally brief and does not result in an equal protection violation. The Legislature ostensibly wanted to treat all prisoners awaiting transfer the same, so they do not languish in jail. It is not disparate treatment. If anything, it is a windfall to appellant but it can be forfeited if appellant misbehaves. (§§ 2933, subd. (c); 2932.)

Such a legislative purpose is rational where, as here, the prisoner is committed for a serious felony, is required to register as a sex offender, is a danger to public safety, and requires rehabilitation services not generally available in county jail. “Unlike Sage, the challenged classification herein is not neatly divided between those who can afford bail and those who cannot.” (People v. DeVore, supra, 218 Cal.App.3d at p. 1320.) Appellant is only entitled to the credits he was awarded.

The judgment of conviction is affirmed with directions to stay the sentence on count 2 (rape of a drugged person) pursuant to section 654. The trial court is directed to prepare and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

Superior Court County of Ventura

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.

FOOTNOTES

FN2. Section 2933, subdivision (b) now provides: “For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration.”. FN2. Section 2933, subdivision (b) now provides: “For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration.”

GILBERT, P.J. PERREN, J. Kevin G DeNoce, Judge

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