Filed 6/20/13 P. v. Espiritu CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061931
Plaintiff and Respondent,
v. (Super. Ct. No. SCE307352)
THOMAS REYES ESPIRITU,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P.
Brannigan, Judge. Affirmed in part, reversed in part, and modified in part.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie F.
Fraser, Deputy Attorneys General, for Plaintiff and Respondent. INTRODUCTION
A jury convicted Thomas Reyes Espiritu of gross vehicular manslaughter while
intoxicated (Pen. Code,1 § 191.5, subd. (a); count 1), driving under the influence causing
injury (Veh. Code, § 23153, subd. (a); count 2), and driving with a measurable blood
alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and
3, the jury also found true allegations Espiritu had a blood alcohol concentration of 0.15
percent or more (Veh. Code, § 23578) and personally inflicted great bodily injury
(§ 12022.7, subd. (a)).
The court sentenced Espiritu to six years in state prison for count 1 and, at the
parties' request, stayed the convictions for counts 2 and 3 under section 654. The court
additionally awarded him 200 days of presentence credit, consisting of 134 actual days
and 66 conduct days under section 4019.
Espiritu appeals, contending the court prejudicially erred by admitting an
irrelevant and unduly inflammatory autopsy photograph, admitting irrelevant and
unsupported expert accident reconstruction testimony, excluding relevant evidence of the
victim's narcotics use, and refusing to give a requested pinpoint instruction on the
definition of gross negligence. Additionally, he contends the cumulative prejudicial
impact of these errors deprived him of due process and a fair trial. He also contends we
must reverse his convictions for counts 2 and 3 because they are lesser included offenses
1 Further statutory references are to the Penal Code unless otherwise stated.
2 of count 1, and he is entitled to additional presentence conduct credit under the current
version of section 4019.
The People concede and we agree we must reverse his convictions for counts 2
and 3. In all other respects, we affirm the judgment.
BACKGROUND
On an evening in December 2010, Espiritu and his fiancée attended a Christmas
party where Espiritu drank vodka and whiskey. After the party, Espiritu's fiancé, who
had not been drinking, drove them to her home. About 15 minutes after they arrived,
Espiritu left in his vehicle to pick up his daughter. At trial, Espiritu's fiancée testified she
did not think he was too impaired to drive; however, that night she told a police officer
the opposite.
Sometime after leaving his fiancée's home, Espiritu passed a car in which Jeffrey
Smith was a passenger. Smith saw Espiritu weave in and out of traffic and estimated
Espiritu was driving at least 70 miles per hour. Espiritu's car was moving so fast it had a
body roll and its tires were folding under it. After Espiritu passed Smith, Smith lost sight
of Espiritu's car. About a minute later and a mile or two down the road, Smith saw debris
in the roadway and a body lying in the center of the road. He also saw Espiritu's now
damaged car a bit farther ahead.
A community service officer who responded to the scene asked Espiritu if he had
been in a accident with a motorcycle. Espiritu did not respond. When the officer asked
him again whether he had been in an accident, Espiritu told him a motorcycle had
committed a hit and run. A bystander then informed the officer a motorcycle and rider
3 were down. The officer went to where the rider, David Dickinson, was lying on the
ground. Dickinson was alive, but nonresponsive.
Dickinson later died at the hospital. The medical examiner noted he had scrapes
and bruising around his face and bleeding around his brain. His brain had swelled, his
spinal cord was bruised, and his neck, the base of his skull, and two locations along his
spine were fractured. He also had a scrape across his abdomen and chest, multiple rib
fractures, and multiple organ injuries. He died from multiple blunt force injuries.
A police officer with expertise in conducting driving under the influence (DUI)
evaluations noticed Espiritu smelled of alcohol, had bloodshot and watery eyes, slurred
speech, and an unsteady gait. The officer performed a series of field sobriety tests on
Espiritu. The officer also had Espiritu blow into a preliminary alcohol screening device
two times. The first time produced a reading of 0.169 percent blood alcohol content and
the second time produced a reading of 0.166 percent blood alcohol content. Based on the
results of the field sobriety tests and the preliminary alcohol screening, the officer formed
the opinion Espiritu was under the influence of alcohol, arrested him, and transported him
to the police station.
At the station, the officer administered two breath tests to Espiritu, which
produced readings of 0.15 percent blood alcohol content and 0.16 percent blood alcohol
content. The officer also had Espiritu's blood drawn.
A criminalist performed two tests on the blood drawn from Espiritu. The first test
showed he had a blood alcohol content of 0.135 percent and the second showed he had a
blood alcohol content of 0.136 percent. From the results of the breath and blood tests, the
4 criminalist calculated Espiritu's blood alcohol content at the time of the collision was
between 0.15 and 0.17 percent. According to the criminalist, a person with a 0.15 blood
alcohol content level would have pronounced physical and mental impairments. Based
on the results of the scientific tests, the field sobriety tests, and Espiritu's reported driving
behavior, the criminalist opined he was under the influence at the time of the collision.
A tow truck operator drove up to the scene, noticed Dickinson's motorcycle lying
on its side, and picked it up and put it on its stand. The tow truck operator noticed the
rear wheel of the motorcycle was heavily damaged.
A motorcycle maintenance expert subsequently inspected Dickinson's motorcycle.
The right side of the motorcycle was heavily damaged. The rear was also heavily
damaged from what appeared to be a very large, direct impact. At the time of the
collision, the motorcycle was in third gear. In third gear, the motorcycle can go between
20 and 70 miles per hour, with a comfortable cruising speed of 30 to 45 miles per hour.
The right side of the motorcycle's engine had grind marks indicating the engine
had slid on the ground for a time. There was plastic imbedded in the motorcycle's
muffler. An officer opined the plastic came from the headlight housing on Espiritu's
vehicle.
An accident reconstruction expert studied the data from the event data recorder in
Espiritu's car. The expert determined the vehicle was going between 86 to 95 miles per
hour in the period between 4.3 and 2.3 seconds before the impact. Immediately before
the impact, the car's speed dropped to between 76 and 85 miles per hour as Espiritu took
his foot off the accelerator and stepped on the brake pedal. There was no evidence, such
5 as skids marks, indicating either Espiritu's car or the motorcycle were braking hard at the
time of the collision.
Based on the presence of corresponding impact scuff marks, El Cajon police
officer and traffic collision investigator Joshua Pittsley opined the back of Dickinson's
helmet had impacted the "A" pillar of Espiritu's vehicle. Additionally, the front tire of
Espiritu's car was pushed back into the wheel well to the point the tire would not roll, and
the entire front end of the vehicle was collapsed two to three feet. Espiritu's vehicle also
impacted a curb.
The officer opined Espiritu had been trying to flatten out a corner turn when his
car drifted out of the right lane, straddled the right and left lanes, and struck the rear of
Dickinson's motorcycle, which was traveling in the right third of the left lane. The
impact carried Dickinson on Espiritu's vehicle for 120 feet before Dickinson slid another
57 feet to the ground. Dickinson's motorcycle was carried 360 feet on Espiritu's vehicle
before it slid to the ground and eventually ended up 414 feet from the point of impact.
Espiritu's vehicle ended up 735 feet from the point of impact.
DISCUSSION
I
Admission of Autopsy Photograph
A
Before trial, the prosecutor sought admission of a single autopsy photograph of
Dickinson's face showing abrasions and bruising on his forehead, left eye, nose, upper
lip, lip, chin, and left cheek. The prosecutor argued the photograph was admissible
6 because it corroborated the medical examiner's testimony, illustrated the nature of
Dickinson's injuries, and supported the theory Espiritu's unreasonable speed launched
Dickinson 177 feet.
Defense counsel objected to the admission of the photograph under Evidence
Code section 352, arguing neither Dickinson's identity nor the fact of his death were at
issue and viewing the photograph would be upsetting to a layperson. After viewing the
photograph, the court found it was relevant and its prejudicial effect did not outweigh its
probative value.
B
Espiritu contends the court prejudicially erred in admitting the autopsy
photograph. To evaluate the merit to this contention, we first consider whether the trial
court abused its discretion in determining the photograph was relevant. (People v.
Ramirez (2006) 39 Cal.4th 398, 453; People v. Carter (2005) 36 Cal.4th 1114, 1166.)
" ' "Relevant evidence" means evidence . . . having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.'
(Evid. Code, § 210.)" (People v. Ramirez, supra, at p. 453.) " ' "The test of relevance is
whether the evidence tends ' "logically, naturally, and by reasonable inference" to
establish material facts such as identity, intent, or motive.' " ' " (People v. Carter, supra,
at p. 1166.)
In this case, the prosecutor had to prove Espiritu acted with gross negligence
resulting in the death of another. To meet this burden, the prosecutor presented accident
7 reconstruction evidence indicating Espiritu collided with the rear of Dickinson's
motorcycle at a high rate of speed, causing Dickinson to be thrown from his motorcycle
and slide across the roadway before coming to rest 177 feet from the point of impact.
The medical examiner's testimony corroborated the accident reconstruction evidence and
established the cause of Dickinson's death. The autopsy photograph also corroborated the
accident reconstruction evidence and illustrated part of the medical examiner's testimony.
Accordingly, the court did not abuse its discretion in determining the photograph was
relevant. (People v. Virgil (2011) 51 Cal.4th 1210, 1248 [photographs are relevant to
illustrate a forensic expert's testimony]; People v. Howard (2010) 51 Cal.4th 15, 33
[autopsy photographs are admissible to clarify the testimony of prosecution witnesses
regarding the crime scene and the autopsy].)
Although Espiritu contends the photograph was irrelevant because it was probative
only of undisputed issues, "autopsy and crime scene photographs are not made
inadmissible because they are offered to prove an issue not in dispute." (People v.
Watson (2008) 43 Cal.4th 652, 684; People v. Crittenden (1994) 9 Cal.4th 83, 132-133.)
Moreover, even if the photograph was cumulative to the testimonial evidence, " 'this . . .
does not demonstrate the trial court abused its broad discretion. "[P]rosecutors . . . are
not obliged to prove their case with evidence solely from live witnesses; the jury is
entitled to see details of the victims' bodies to determine if the evidence supports the
prosecution's theory of the case." ' " (People v. Garcia (2008) 168 Cal.App.4th 261, 294;
accord, People v. Lewis (2009) 46 Cal.4th 1255, 1282.)
8 2
We next consider whether the court abused its discretion in determining the
probative value of the photograph outweighed its prejudicial effect. " 'The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue prejudice . . . .'
[Citation.] 'The jury can, and must, be shielded from depictions that sensationalize an
alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an
accurate depiction of the charged crimes that does not unnecessarily play upon the
emotions of the jurors.' [Citation.] We review the trial court's ruling under Evidence
Code section 352 for abuse of discretion [citation], and . . . will reverse a trial court's
exercise of discretion to admit crime scene or autopsy photographs only when 'the
probative value of the photographs clearly is outweighed by their prejudicial effect.' "
(People v. Watson, supra, 43 Cal.4th at pp. 683-684; accord, People v. McKinzie (2012)
54 Cal.4th 1302, 1351.)
Admission of an autopsy photograph is only unduly prejudicial if the photograph
" 'uniquely tends to evoke an emotional bias against a party as an individual, while
having only slight probative value with regard to the issues.' " (People v. Virgil (2011)
51 Cal.4th 1210, 1248.) The photograph at issue here is a close-up of Dickinson's face
with his eyes closed. The photograph has a yellow tinge and was taken as Dickinson's
body lay on a metal table with a covering up to his chin. The photograph does not show
any open or bleeding wounds. Of the bruises and abrasions shown, only one, a deep,
dark red bruise on the tip of Dickinson's nose, stands out. While unquestionably
9 unpleasant, the photograph cannot be fairly characterized as sensational or unduly
gruesome. We, therefore, cannot conclude the prejudicial effect of the photograph
clearly outweighed its probative value such that the court abused its discretion in
admitting it.
Even if the court had abused its discretion in admitting the photograph, the
photograph did not provide the jury with any additional or more graphic information than
the medical examiner's testimony. Thus, admission of the photograph was harmless
under both Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956)
46 Cal.2d 818, 836-837. (People v. Cole (2004) 33 Cal.4th 1158, 1199.)
II
Admission of Accident Reconstruction Expert Testimony
Espiritu contends the court erred by admitting Pittsley's expert accident
reconstruction testimony because the testimony was based on two false premises: (1)
Dickinson was an experienced motorcycle rider, and (2) Dickinson was sober at the time
of the accident. We review a court's decision to admit expert testimony for abuse of
discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
"[A]n expert's opinion based on assumptions of fact without evidentiary support
[citation], or on speculative or conjectural factors [citation], has no evidentiary value
[citation] and may be excluded from evidence." (Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; accord, People v. Richardson (2008)
43 Cal.4th 959, 1008.) In this case, however, the record does not show Pittsley's trial
testimony was based on unsupported assumptions.
10 Espiritu has not identified nor have we located any place in the record indicating
Pittsley based his trial testimony on the assumption Dickinson was sober.2 In addition,
while Pittsley testified experienced motorcycle riders tend to ride in a particular place in
the roadway and he believed the collision occurred in this place, he did not base his belief
on the assumption Dickinson was an experienced rider. He acknowledged he did not
know anything about Dickinson's experience or ability riding motorcycles. Rather, he
based his belief solely on the physical evidence at the collision scene. Accordingly,
Espiritu has not established the court abused its discretion in admitting Pittsley's
testimony. Given this conclusion, we need not address the People's assertion that Espiritu
forfeited this contention by failing to object to Pittsley's testimony below.
III
Exclusion of Evidence of Dickinson's Drug Use
Before trial, defense counsel sought to admit and the prosecutor sought to exclude
under Evidence Code section 352 evidence of Dickinson's narcotics use. Defense
counsel argued the court should allow admission of the evidence as it was relevant to
2 At the preliminary hearing, during cross-examination by defense counsel, Pittsley testified the collision in this case was not consistent with the scenario of Dickinson's motorcycle having cut off Espiritu's car. He based this opinion in part on the assumption Dickinson was maintaining his lane and a consistent speed at the time of the accident. He acknowledged an intoxicated person would have a difficult time doing either. He also acknowledged blood tests showed there were controlled substances in Dickinson's system at the time of the accident and there was a possibility Dickinson was impaired. However, he further testified this information did not change his opinion that Dickinson was not at fault for the accident.
11 Dickinson's cause of death because methamphetamine use increases hemorrhaging,
which caused him to bleed more and faster, leading to his death. The prosecutor
responded that the medical examiner determined the cause of death to be multiple blunt
force trauma, not methamphetamine use. The court found the evidence irrelevant and
excluded it.
During trial, defense counsel renewed her request to admit evidence of Dickinson's
narcotics use, arguing the evidence was necessary to counter Pittsley's assumption
Dickinson was riding in the right third of the left lane at the time of the accident because
that is what an experienced, sober motorcycle rider would do. In response, the prosecutor
pointed out Pittsley's opinions had more to do with where the physical evidence placed
Dickinson than with any assumption about the behavior of an experienced motorcycle
rider. Therefore, the prosecutor argued admission of the evidence of Dickinson's
narcotics use would be far more prejudicial than probative. The court agreed with the
prosecutor's position, particularly absent the existence of any evidence indicating
Dickinson was driving in an erratic manner before the collision, and reaffirmed its
pretrial ruling excluding the evidence.
Espiritu contends the court prejudicially erred in excluding the evidence because
its admission was necessary for him to counter Pittsley's assumption Dickinson was sober
at the time of the accident. We review a trial court's ruling on the admissibility of
evidence for abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)
12 As we noted in part II, ante, nothing in the record indicates Pittsley based his
opinions about how the collision occurred on the assumption Dickinson was sober. To
the contrary, the record shows Pittsley knew Dickinson was possibly impaired at the time
of the collision. Consequently, Espiritu has not established the evidence of Dickinson's
narcotics use was probative, much less more probative than prejudicial, and we cannot
conclude the court abused its discretion in excluding it.
IV
Refusal of Pinpoint Gross Negligence Instruction
To instruct the jury on the crime of gross vehicular manslaughter while
intoxicated, the court used a tailored version of CALCRIM No. 590. The instruction
informed the jury, "Gross negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with gross negligence when: [¶]
1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;
[¶] [and] [¶] 2. A reasonable person would have known that acting in that way would
create such a risk. [¶] In other words, a person acts with gross negligence when the way
he or she acts is so different from the way an ordinarily careful person would act in the
same situation that his or her act amounts to disregard for human life or indifference to
the consequences of that act. [¶] The combination of driving a vehicle while under the
influence of an alcoholic beverage and violating a traffic law is not enough by itself to
establish gross negligence. In evaluating whether the defendant acted with gross
13 negligence, consider the level of the defendant's intoxication, if any; the way the
defendant drove; and any other relevant aspects of the defendant's conduct."
Defense counsel requested the court also give the jury a pinpoint instruction on the
definition of gross negligence. The proposed instruction read: " 'Gross negligence'
requires more than ordinary carelessness, inattention or mistake in judgment. [¶] 'Gross
negligence' means conduct which is more than ordinary negligence. Ordinary negligence
is the failure to exercise ordinary or reasonable care. [¶] 'Gross negligence' refers to a
negligent act which is aggravated, reckless or flagrant and which is such a departure from
what would be the conduct of an ordinarily prudent, careful person under the same
circumstances as to be contrary to a proper regard for danger to human life or to
constitute indifference to the consequences of those acts. [¶] The facts must be such that
the consequences of the negligent act could reasonably have been foreseen and it must
appear that the death or danger to human life was not the result of inattention, mistaken
judgment or misadventure but the natural and probable result of an aggravated, reckless
or flagrantly negligent act."3
The prosecution objected to the pinpoint instruction, arguing the definition of
gross negligence was adequately covered by CALCRIM No. 590 and the pinpoint
instruction might confuse the jury. The court agreed CALCRIM No. 590 adequately
covered the definition and declined to give the pinpoint instruction.
3 In his opening brief, Espiritu states the proposed pinpoint instruction was based on language in People v. Penny (1955) 44 Cal.2d 861, People v. Bennett (1991) 54 Cal.3d 1032, People v. Costa (1953) 40 Cal.2d 160, and CALJIC No. 3.36. 14 B
Espiritu contends the proposed pinpoint instruction expanded on CALCRIM No.
590 and clarified the distinction between ordinary and gross negligence by: (1) adding
"aggravated" and "flagrant" to the definition, (2) requiring the consequences of the
negligence to be reasonably foreseen, and (3) informing the jury gross negligence is "not
the result of inattention, mistaken judgment or misadventure." As the pinpoint
instruction supported his defense theory (i.e., he acted with ordinary negligence rather
than gross negligence), he contends the court was obliged to give the instruction and
prejudicially erred by refusing to do so.
The propriety of a decision to give or refuse any particular instruction in any
particular case involves a mixed question of law and fact. As the question is a
predominantly legal one, we independently review it. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
" ' "[A] defendant has a right to an instruction that pinpoints the theory of the
defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction
offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or
potentially confusing [citation], or if it is not supported by substantial evidence.' "
(People v. Burney (2009) 47 Cal.4th 203, 246; accord, People v. Bivert (2011) 52 Cal.4th
96, 120; People v. Canizalez (2011) 197 Cal.App.4th 832, 856–857.)
In this case, the pattern instruction the court used adequately covered each of the
points for which Espiritu sought the pinpoint instruction. The pattern instruction
conveyed the need for grossly negligent conduct to be "aggravated" and "flagrant" by
15 informing the jury the conduct had to create "a high risk of death or great bodily injury"
and had to be "so different from the way an ordinarily careful person would act in the
same situation" that it amounted to "disregard for human life or indifference to the
consequences" of the conduct. (CALCRIM No. 590.) The pattern instruction conveyed
the need for the consequences of the grossly negligent conduct to be reasonably foreseen
by informing the jury "[a] person acts with gross negligence when: [¶] . . . [¶] [a]
reasonable person would have known that acting in that way would create such a risk."
(CALCRIM No. 590.) Finally, the pattern instruction clarified that gross negligence is
"not the result of inattention, mistaken judgment or misadventure" by informing the jury
gross negligence "involves more than ordinary carelessness, inattention, or mistake in
judgment." (CALCRIM No. 590.) A court is not required to give a pinpoint instruction
on a matter adequately covered by another instruction. (People v. Clark (2011) 52
Cal.4th 856, 975.) Accordingly, we conclude the court did not err by failing to give
Espiritu's requested pinpoint instruction on gross negligence.
Even if the court should have given a pinpoint instruction, the error was harmless.
Defense counsel's closing argument fully presented the defense theory that Espiritu's
conduct amounted to only ordinary negligence and nothing in the court's instructions
precluded the jury from so finding. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th
1083, 1144-1145.)
16 V
Cumulative Error
Espiritu contends we must reverse his convictions because the cumulative effect of
the above claimed errors prejudiced him. We reject this argument as "[w]e have found
no error that, either alone or in conjunction with others, prejudiced [him]." (People v.
Williams (2013) 56 Cal.4th 165, 201.)
VI
Dismissal of Counts 2 and 3 as Lesser Included Offenses
Espiritu contends, the People concede, and we agree we must reverse Espiritu's
convictions for counts 2 and 3 because they are lesser included offenses of count 1. A
defendant may not be convicted of both a greater and a lesser included offense. (People
v. Medina (2007) 41 Cal.4th 685, 701.) Thus, when a jury finds a defendant guilty of
both a greater and a lesser included offense and there is substantial evidence to support
the conviction for the greater offense, the greater offense controls and the lesser included
offense must be reversed. (Id. at pp. 701-702; People v. Moran (1970) 1 Cal.3d 755,
763.)
VII
Custody Credits
Espiritu was initially confined December 19, 2010, was released the same day,
was confined again on January 11, 2011, and released on January 12, 2011, and was
confined again on December 22, 2011. The court subsequently sentenced him on
April 30, 2012. The court awarded him 200 days of presentence custody credit,
17 consisting of 134 days of actual custody credit and 66 days of conduct credit. Based on
amendments to section 4019, which took effect on October 1, 2011, Espiritu contends he
is entitled to additional presentence conduct credit for the time he served after that date.
He further contends failure to award him additional presentence conduct credit for this
time deprives him of equal protection of the law. We disagree.
Section 4019, which specifies the rate of presentence conduct credit an inmate in
local custody may earn, had undergone numerous revisions in the past several years.
(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-50 (Rajanayagam) [detailing the
history of recent amendments]; People v. Garcia (2012) 209 Cal.App.4th 530, 533-540
[same].) At the time of Espiritu's offense, section 4019 allowed an inmate in local
custody to earn up to six days of conduct credit for every four days of actual custody.
(Former § 4019, subds. (b), (c), & (f), Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010;
People v. Ellis (2012) 207 Cal.App.4th 1546, 1549.) As of October 1, 2011, section 4019
allows an inmate in local custody to earn up to four days of conduct credit for every two
days of actual custody. (Amended § 4019, subds. (b), (c), & (f), Stats. 2011, ch. 15,
§ 482, eff. Apr. 4, 2011, operative Oct. 1, 2011; Stats. 2011, ch. 39, § 53, eff.
June 30, 2011, operative Oct. 1, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, eff.
Sept. 21, 2011, operative Oct. 1, 2011; People v. Ellis, supra, at pp. 1549-1550.)
Of pertinence here, subdivision (h) of amended section 4019 states, "The changes
to this section . . . shall apply prospectively and shall apply to prisoners who are confined
to a county jail . . . for a crime committed on or after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
18 law." According to Espiritu, the latter sentence creates an ambiguity, which should be
interpreted to allow him to earn credits for local time served after October 1, 2011, even
though he committed his crime before then.
However, as the Rajanayagam court explained, "subdivision (h)'s first sentence
reflects the Legislature intended the enhanced conduct credit provision to apply only to
those defendants who committed their crimes on or after October 1, 2011. Subdivision
(h)'s second sentence does not extend the enhanced conduct credit provision to any other
group, namely those defendants who committed offenses before October 1, 2011, but are
in local custody on or after October 1, 2011. Instead, subdivision (h)'s second sentence
attempts to clarify that those defendant's who committed an offense before October 1,
2011, are to earn credit under the prior law. However inartful the language of
subdivision (h), we read the second sentence as reaffirming that defendants who
committed their crimes before October 1, 2011, still have the opportunity to earn conduct
credits, just under prior law. [Citation.] To imply the enhanced conduct credit provision
applies to defendants who committed their crimes before the effective date but served
time in local custody after the effective date reads too much into the statute and ignores
the Legislature's clear intent in subdivision (h)'s first sentence." (Rajanayagam, supra,
211 Cal.App.4th at p. 52, fn. omitted; see also, People v. Ellis, supra, 207 Cal.App.4th
at p. 1553 ["The second sentence does not extend the enhanced rate to any other group,
but merely specifies the rate at which all others are to earn conduct credits"]; People v.
Garcia, supra, 209 Cal.App.4th at p. 541 [the language of amended section 4019 does
19 not entitle a defendant who was sentenced after its effective date but whose crimes
occurred prior to its effective date to additional conduct credit].)
This interpretation and its application to Espiritu does not deprive him of equal
protection of the law because, assuming he is similarly situated to inmates who
committed their offenses after the effective date of amended section 4019, the Legislature
nonetheless had a rational basis for treating the latter inmates differently. Amended
section 4019 was part of larger legislation whose purpose was to "to reduce recidivism
and improve public safety, while at the same time reducing corrections and related
criminal justice spending.' " (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) "[I]n
choosing October 1, 2011, as the effective date of [amended section 4019], the
Legislature took a measured approach and balanced the goal of cost savings against
public safety. The effective date was a legislative determination that its stated goal of
reducing corrections costs was best served by granting enhanced conduct credits to those
defendants who committed their offenses on or after October 1, 2011. To be sure,
awarding enhanced conduct credits to everyone in local confinement would have
certainly resulted in greater cost savings than awarding enhanced conduct credits to only
those defendants who commit an offense on or after the amendment's effective date. But
that is not the approach the Legislature chose in balancing public safety against cost
savings. [Citation.] Under the very deferential rational relationship test, we will not
second-guess the Legislature and conclude its stated purpose is better served by
increasing the group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced
20 conduct credit to only those defendants who committed their offenses on or after
October 1, 2011." (Rajanayagam, at pp. 55-56.)
DISPOSITION
The convictions for counts 2 and 3 are reversed. The trial court is directed to
modify the abstract of judgment accordingly and to send a copy of the amended abstract
of judgment to the Department of Corrections and Rehabilitation. In all other respects,
the judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.