PEOPLE v. BRANTLEY (1995)

I. INTRODUCTION

This case presents multiple issues under the legislative version of California's new “Three Strikes” law (Pen.Code,1 § 667, subds. (b)–(i)).   Nathaniel Jimmy Brantley, a second strike offender, received a middle term two-year sentence, doubled to four years under the Three Strikes law, for receiving stolen property (§ 496).   We hold:  (1) any error by the judge in concluding that he lacked discretion to dismiss a prior strike allegation or to sentence a “wobbler” offense as a misdemeanor was harmless in light of his decision to impose the middle term rather than the lower term;  (2) the Three Strikes law does not deny equal protection by imposing greater punishment on a recidivist who commits a nonserious/nonviolent offense after a strike offense than on a recidivist who commits such offenses in converse order, because the two offenders are not similarly situated;  and (3) the Three Strikes law's 20 percent limitation on accumulation of prison conduct credits does not extend to presentence detainees and does not deny equal protection through disparate treatment of presentence detainees and prison inmates, because the two are not similarly situated.

II. BACKGROUND

Sometime between 5 p.m. on May 15, 1994, and 9 a.m. the next day, a Toyota Camry was stolen from an automobile dealership in Antioch.   On the morning of Monday, May 16, a deputy sheriff saw the Camry parked in an unpopulated area some five miles from the dealership.   The officer had driven by that location several times earlier that night and had not seen the car.   After checking its license and learning that the car had been stolen, the officer approached and discovered Brantley asleep in the fully reclined driver's seat.   The car key was in the ignition and the radio was missing.

A jury convicted Brantley of receiving stolen property (§ 496) and unlawfully driving or taking a vehicle without the owner's consent (Veh.Code, § 10851, subd. (a)), and the court found he had a prior strike conviction for rape (§ 667, subd. (d)) and had served two prior prison terms (§ 667.5, subd. (b)).  The court imposed the middle term of two years for receiving stolen property, doubled this term to four years under the Three Strikes law, stayed the punishment for unlawfully driving or taking a vehicle, and struck the prior prison term enhancements.

III. DISCUSSION

A. Exercise of Discretion to Dismiss a Strike Allegation or to Sentence a Wobbler as a Misdemeanor

 Brantley contends the trial judge erred by concluding he lacked discretion to dismiss the prior strike allegation or to impose misdemeanor sentencing for receiving stolen property, which is a wobbler.   We held in People v. Casillas (Dec. 12, 1995, A068210) ––– Cal.App.4th ––––, 47 Cal.Rptr.2d 734 that the Three Strikes law does not abrogate existing trial court authority to dismiss an allegation of a prior serious or violent felony conviction in the furtherance of justice under section 1385, subdivision (a), and thus trial judges retain discretion to dismiss, on their own motion, a prior strike allegation under the Three Strikes law.   Other appellate courts have held that the Three Strikes law does not abrogate judicial discretion to sentence a wobbler as a misdemeanor.  (E.g., People v. Vessell (1995) 36 Cal.App.4th 285, 294–295, 42 Cal.Rptr.2d 241.)

The record in the present case does not indicate how the trial judge perceived the law on these points.   Counsel argued these issues, but the judge was silent, other than to comment that he was not permitted to grant probation.

 Nevertheless, assuming the judge erred in believing he lacked discretion to dismiss the strike allegation or to impose misdemeanor sentencing, we must conclude the error was harmless and does not require remand for resentencing.   Under these circumstances, resentencing is unnecessary if the record clearly indicates that the judge would not have exercised such discretion even if he had been aware that he had it.  (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, 193 Cal.Rptr. 882, 667 P.2d 686.)   That is the situation here, because the judge chose to impose the doubled middle term of four years.   In making this sentence choice, the judge determined that the circumstances did not justify the doubled lower term of two years and eight months.  (§ 1170, subd. (b).)  Dismissal of the strike allegation or misdemeanor sentencing would have resulted in even lesser sentences—two years in prison or no more than one year in county jail, respectively.   The judge having determined that the circumstances did not justify the mitigated doubled term, it is not even remotely possible that, had he perceived his sentencing discretion differently, he would have made sentencing choices resulting in even more lenient punishment.   His sentencing choice demonstrates that he necessarily would have (and perhaps in fact) concluded that the circumstances did not justify an exercise of discretion to dismiss the prior strike allegation or to impose misdemeanor sentencing.

B. Equal Protection

 1. Order of Offenses

Brantley asserts two separate arguments why the Three Strikes law violates the constitutional guarantee of equal protection.   His first argument goes to the entire Three Strikes law:  he contends it denies equal protection (and thus substantive due process as well) because it imposes greater punishment on a recidivist who commits a nonserious/nonviolent offense after a strike offense than on a recidivist who commits such offenses in converse order, with the irrational result that an offender who exhibits a de-escalating pattern of criminality (committing the serious/violent felony less recently) is punished more severely than an offender who exhibits an escalating pattern of criminality (committing the serious/violent felony more recently).

 The threshold prerequisite to an equal protection claim, however, is unequal treatment of persons who are similarly situated (People v. Jerez (1989) 208 Cal.App.3d 132, 138–139, 256 Cal.Rptr. 31), which is absent here.   A recidivist previously convicted of a serious or violent felony is dissimilar from a recidivist previously convicted of a minor felony, in that the former has previously demonstrated a much greater danger to society than the latter.   It may seem anomalous to impose more severe punishment on the de-escalating recidivist, but that is a matter of policy, and it is not our function to second-guess the wisdom of that approach.  (Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099, 282 Cal.Rptr. 841, 811 P.2d 1025.)   It raises no equal protection issue.

 2. Conduct Credits

Brantley's second equal protection argument goes to a provision that the Attorney General calls “a centerpiece” of the Three Strikes law, imposing a 20 percent limitation on the accumulation of prison conduct credits.

Subdivision (c)(5) of section 667 states:  “The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.”   Brantley contends that because this 20 percent limitation on conduct credits does not apply to time spent in presentence custody, it is unconstitutional because it results in irrationally disparate treatment of offenders depending on how much time they spent in presentence custody, with more serious offenders who wait longer to get to trial receiving more total presentence and prison conduct credit than less serious offenders.

The Attorney General does not address the merits of this equal protection argument, but instead takes the untenable position that the Three Strikes law actually extends its 20 percent limitation to presentence custody and thus treats presentence and prison custody identically.   This argument flaunts the plain language of subdivision (c)(5), which explicitly refers only to the provisions of the Penal Code applicable to prison conduct credits, commencing with section 2930.   Presentence conduct credits are conferred under different parts of the Penal Code—sections 2900.5 and 4019—which are not referenced in subdivision (c)(5).   Thus, in clear and precise language, the Three Strikes law says only that prison conduct credits shall be limited to 20 percent.   It does not extend this limitation to presentence conduct credits.

The Attorney General claims the Legislature really intended such extension, as indicated by the statutory expression of overall legislative intent “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (§ 667, subd. (b).)  According to the Attorney General, the absence of such extension is “a mere oversight,” which we should correct by supplying the missing references to sections 2900.5 and 4019—that is, by rewriting subdivision (c)(5).

 It is well settled, however, that in construing a statutory provision, a court is not permitted to rewrite the statute to conform to an assumed intent that does not appear from its language.  (Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381, 267 Cal.Rptr. 569, 787 P.2d 976.)   There is simply no indication in the language of the Three Strikes law that the Legislature intended to extend the 20 percent limitation to presentence custody credits.   To the contrary, the language of subdivision (c)(5) is quite precise in limiting its provisions to prison credits:  it refers only to the prison conduct credit statutes, and it applies the 20 percent limitation only to “the total term of imprisonment ” (italics added), which under section 2900, subdivision (a), “commences to run only upon the actual delivery of the defendant into the custody of the Director of Corrections․”  (The concluding phrase of subdivision (c)(5), that the referenced credits “shall not accrue until the defendant is physically placed in the state prison,” brings subdivision (c)(5) in line with the similar provision in section 2900, subdivision (a).)   Absent any hint of Legislative intent to extend the 20 percent limitation to presentence custody credits, we may not rewrite the Three Strikes law to do so.

A similar conclusion appears in People v. Hill (1995) 37 Cal.App.4th 220, 44 Cal.Rptr.2d 11 (pet. for review filed Sept. 8, 1995 (S048812)), where the Attorney General urged a different interpretation of the Three Strikes law as completely eliminating entitlement to presentence conduct credits.   Like us, the court in Hill construed subdivision (c)(5) as plainly limiting prison credits but leaving presentence credits untouched, thus precluding any rewriting of the statute.  (Id. at pp. 224–226, 44 Cal.Rptr.2d 11.)

The court in Hill did not address the equal protection issue, evidently because the defendant did not raise it.   That issue is raised here for the first time.   However, we conclude it has no merit.

 Brantley relies on People v. Sage (1980) 26 Cal.3d 498, 506–508, 165 Cal.Rptr. 280, 611 P.2d 874, which “found an equal protection violation in the disparity resulting from denial of conduct credits to pretrial felony detainees which were afforded by statute to postconviction prison inmates and pretrial misdemeanant detainees.”  (People v. Heard (1993) 18 Cal.App.4th 1025, 1030, 22 Cal.Rptr.2d 684.)   But Sage did not establish a rule that that different classes of detainees are entitled to identical conduct credits.   To the contrary, “[n]umerous cases have found that different classes of detainees are not similarly situated for equal protection purposes, and, consequently, are not entitled to the same conduct credit (or the same ratio of conduct credit) for time spent in custody or detention.  [Citations.]”  (People v. Eddy (1995) 32 Cal.App.4th 1098, 1109, 38 Cal.Rptr.2d 563, original italics.)

 For example, there is no equal protection violation in affording greater conduct credit to nonstrike prison inmates than to pretrial detainees.  (E.g., People v. Heard, supra, 18 Cal.App.4th at p. 1030, 22 Cal.Rptr.2d 684;  People v. DeVore (1990) 218 Cal.App.3d 1316, 1320, 267 Cal.Rptr. 698.)  “Pretrial felony detainees and state prison inmates are not similarly situated with respect to the purposes of the custody credit statutes.   While state prison inmates are conclusively guilty and presumptively in need of rehabilitation, pretrial felony detainees are presumptively innocent and may not require rehabilitation.  [Citations.]  The difficulty of establishing prison-style work programs in county jails for pretrial detainees—who may make bail, or have work programs interrupted by court appearances and other obligations—further distinguishes pretrial detainees from state prisoners and justifies the slightly disparate scheme for awarding conduct credit to the former class.  [Citation.]”  (People v. Heard, supra, 18 Cal.App.4th at pp. 1030–1031, 22 Cal.Rptr.2d 684.)

 Likewise, strike prison inmates and pretrial detainees are not similarly situated, but for a different reason.   Whereas nonstrike prison inmates are “presumptively in need of rehabilitation” (id. at p. 1030, 22 Cal.Rptr.2d 684), strike prison inmates have been legislatively determined to be deserving of “longer prison sentences and greater punishment.”  (§ 667, subd. (b).)  For strike prison inmates, the rehabilitative element of incarceration is overshadowed by the punishment element, calling for a longer period of incarceration.   Thus, strike prison inmates receive less conduct credit than pretrial detainees, not more as is the case with nonstrike prison inmates.   This aggravated status makes strike prison inmates very different from pretrial detainees who are still presumptively innocent.   The two classes are not similarly situated (though the situation is converse to that which results in dissimilarity of nonstrike prison inmates and pretrial detainees).   Dissimilar treatment in affording conduct credits to strike prison inmates and pretrial detainees does not violate the constitutional guarantee of equal protection.

C. Conviction for Receiving and Driving the Stolen Car **

IV. DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise noted, all section references are to the Penal Code..  FN1. Unless otherwise noted, all section references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.