Filed 7/24/13 P. v. Thornton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056701
v. (Super.Ct.No. SWF1101168)
SHAUN LAYJEWEL THORNTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Shaun Layjewel Thorton is serving a second-strike sentence of five
years in prison after a jury convicted him of four counts related to using and possessing
1 heroin and possessing a switchblade knife. In this appeal, defendant argues: 1) the trial
court abused its discretion when it declined to dismiss his prior strike conviction; and 2)
he is entitled to the one-for-one pre-sentence custody credits for his time in custody after
October 1, 2011, even though his current crimes occurred before that date. As discussed
below, we reject both arguments and affirm the conviction.
FACTS AND PROCEDURE
On the evening of November 22, 2010, Murrieta police officers responded to the
parking lot of a condominium complex where it was reported that a person in a parked
vehicle was acting strangely. Officers found defendant in the driver seat of a pickup
truck and a female in the passenger seat. Defendant appeared to be under the influence.
Defendant gave consent to search the truck and his person. The search revealed an empty
syringe in defendant’s pocket and a syringe containing a brown liquid behind the driver
seat. The keychain in the truck had attached to it a small metal container which was
found to contain 0.08 grams of a substance containing heroin. The officers found on
defendant’s person a “butterfly” knife, which opens with a flip of the wrist. Defendant
tested positive for methamphetamine, opiates and marijuana.
On May 9, 2012, a jury convicted defendant of four counts: heroin possession
(Health & Saf. Code, § 11350), possessing a switchblade knife (Pen. Code, § 653, subd.
(k)),1 being under the influence of a controlled substance (Health & Saf. Code, § 11550),
and possessing a syringe (Bus. & Prof. Code, § 4140). The jury acquitted defendant of
1 All section references are to the Penal Code unless otherwise indicated.
2 possessing narcotic paraphernalia (Health & Saf. Code, § 11364). Defendant admitted
that he had a prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1))
and a prison prior (§ 667.5, subd. (b)).
Prior to trial, defendant filed a motion asking the trial court to exercise its
discretion under section 1385 to dismiss the strike prior in the interest of justice.2 The
trial court heard the matter and denied the motion. Defendant filed another such motion.
The People filed their opposition. After trial, each party filed supplemental papers. The
court again heard the matter as part of the sentencing hearing on July 13, 2012. After
hearing argument from both parties, the court again denied the motion.
The trial court sentenced defendant to five years as follows: the midterm of two
years for possessing heroin, doubled to four years for the strike prior, plus one year for
the prison prior. The terms for the other counts were to run concurrent. The court gave
defendant credit for 224 days of actual custody and 112 days of good conduct credit
2 The motion set forth defendant’s criminal history, as supplemented by the People’s later sentencing memorandum and the probation report: 2001 - syringe possession – diversion program granted/terminated 15 days jail 2001 - under the influence – diversion program granted/terminated 3 years probation 2001 - drug possession, drug paraphernalia, under the influence - 3 years probation 2002 - under the influence - 3 years probation 2003 - drug possession – 3 years probation 2003 - robbery, petty theft – 3 years probation (First Strike – took a bicycle from a 12-year-old boy) 2003 - drug possession – 3 years state prison 2003 - drug possession (in prison) 2008 - drug use - 3 years probation, six months custody 2009 - spousal abuse – 3 years probation, 6 months jail In addition, defendant was on probation when he committed the current crimes and had violated parole three times.
3 under section 4019 for a total of 336 days of credit. Credits were later corrected to 259
actual days and 128 conduct days for a total of 387 days of credit, to reflect that
defendant’s sentencing hearing had been postponed from June 8, 2012. This appeal
followed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion Under Three Strikes
Defendant argues the trial court abused its discretion when it declined to dismiss
his prior strike conviction. Specifically, defendant contends because his crimes stem
from his untreated drug addiction, he should be allowed to seek treatment rather than
spend five years in prison. As discussed below, we find the trial court correctly exercised
its discretion.
The “Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) The trial court’s discretion to
strike a qualifying strike is therefore guided by “established stringent standards” designed
to preserve the legislative intent behind the Three Strikes law. (People v. Carmony
(2004) 33 Cal.4th 367, 376 (Carmony).) “[T]he court . . . must consider whether, in light
of the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
4 A court’s refusal to dismiss a prior strike conviction is reviewed for an abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 374.) The court will abuse its discretion
only if its refusal to dismiss the prior strike “is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) However, a reviewing court will find an
abuse of discretion when the factual findings critical to the trial court’s decision have no
support in the evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The
defendant has the burden of demonstrating that the court’s decision was irrational or
arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) This is a very difficult standard for a
defendant to overcome generally; more so in view of this defendant’s extensive criminal
record and lack of prospects for improvement.
Here, the trial court stated that it was denying defendant’s motion to dismiss the
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 7/24/13 P. v. Thornton CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056701
v. (Super.Ct.No. SWF1101168)
SHAUN LAYJEWEL THORNTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Shaun Layjewel Thorton is serving a second-strike sentence of five
years in prison after a jury convicted him of four counts related to using and possessing
1 heroin and possessing a switchblade knife. In this appeal, defendant argues: 1) the trial
court abused its discretion when it declined to dismiss his prior strike conviction; and 2)
he is entitled to the one-for-one pre-sentence custody credits for his time in custody after
October 1, 2011, even though his current crimes occurred before that date. As discussed
below, we reject both arguments and affirm the conviction.
FACTS AND PROCEDURE
On the evening of November 22, 2010, Murrieta police officers responded to the
parking lot of a condominium complex where it was reported that a person in a parked
vehicle was acting strangely. Officers found defendant in the driver seat of a pickup
truck and a female in the passenger seat. Defendant appeared to be under the influence.
Defendant gave consent to search the truck and his person. The search revealed an empty
syringe in defendant’s pocket and a syringe containing a brown liquid behind the driver
seat. The keychain in the truck had attached to it a small metal container which was
found to contain 0.08 grams of a substance containing heroin. The officers found on
defendant’s person a “butterfly” knife, which opens with a flip of the wrist. Defendant
tested positive for methamphetamine, opiates and marijuana.
On May 9, 2012, a jury convicted defendant of four counts: heroin possession
(Health & Saf. Code, § 11350), possessing a switchblade knife (Pen. Code, § 653, subd.
(k)),1 being under the influence of a controlled substance (Health & Saf. Code, § 11550),
and possessing a syringe (Bus. & Prof. Code, § 4140). The jury acquitted defendant of
1 All section references are to the Penal Code unless otherwise indicated.
2 possessing narcotic paraphernalia (Health & Saf. Code, § 11364). Defendant admitted
that he had a prior strike conviction (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1))
and a prison prior (§ 667.5, subd. (b)).
Prior to trial, defendant filed a motion asking the trial court to exercise its
discretion under section 1385 to dismiss the strike prior in the interest of justice.2 The
trial court heard the matter and denied the motion. Defendant filed another such motion.
The People filed their opposition. After trial, each party filed supplemental papers. The
court again heard the matter as part of the sentencing hearing on July 13, 2012. After
hearing argument from both parties, the court again denied the motion.
The trial court sentenced defendant to five years as follows: the midterm of two
years for possessing heroin, doubled to four years for the strike prior, plus one year for
the prison prior. The terms for the other counts were to run concurrent. The court gave
defendant credit for 224 days of actual custody and 112 days of good conduct credit
2 The motion set forth defendant’s criminal history, as supplemented by the People’s later sentencing memorandum and the probation report: 2001 - syringe possession – diversion program granted/terminated 15 days jail 2001 - under the influence – diversion program granted/terminated 3 years probation 2001 - drug possession, drug paraphernalia, under the influence - 3 years probation 2002 - under the influence - 3 years probation 2003 - drug possession – 3 years probation 2003 - robbery, petty theft – 3 years probation (First Strike – took a bicycle from a 12-year-old boy) 2003 - drug possession – 3 years state prison 2003 - drug possession (in prison) 2008 - drug use - 3 years probation, six months custody 2009 - spousal abuse – 3 years probation, 6 months jail In addition, defendant was on probation when he committed the current crimes and had violated parole three times.
3 under section 4019 for a total of 336 days of credit. Credits were later corrected to 259
actual days and 128 conduct days for a total of 387 days of credit, to reflect that
defendant’s sentencing hearing had been postponed from June 8, 2012. This appeal
followed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion Under Three Strikes
Defendant argues the trial court abused its discretion when it declined to dismiss
his prior strike conviction. Specifically, defendant contends because his crimes stem
from his untreated drug addiction, he should be allowed to seek treatment rather than
spend five years in prison. As discussed below, we find the trial court correctly exercised
its discretion.
The “Three Strikes initiative, as well as the legislative act embodying its terms,
was intended to restrict courts’ discretion in sentencing repeat offenders.” (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 528.) The trial court’s discretion to
strike a qualifying strike is therefore guided by “established stringent standards” designed
to preserve the legislative intent behind the Three Strikes law. (People v. Carmony
(2004) 33 Cal.4th 367, 376 (Carmony).) “[T]he court . . . must consider whether, in light
of the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
4 A court’s refusal to dismiss a prior strike conviction is reviewed for an abuse of
discretion. (Carmony, supra, 33 Cal.4th at p. 374.) The court will abuse its discretion
only if its refusal to dismiss the prior strike “is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at p. 377.) However, a reviewing court will find an
abuse of discretion when the factual findings critical to the trial court’s decision have no
support in the evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) The
defendant has the burden of demonstrating that the court’s decision was irrational or
arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) This is a very difficult standard for a
defendant to overcome generally; more so in view of this defendant’s extensive criminal
record and lack of prospects for improvement.
Here, the trial court stated that it was denying defendant’s motion to dismiss the
strike prior because defendant: 1) was on probation when he committed the current
crimes; 2) had violated parole three times; 3) continued taking drugs and breaking the law
numerous times; and 4) had failed a diversion program twice. Further, the trial court
concluded that, based on defendant’s criminal history, his prospects for maintaining a
crime-free lifestyle in the future, and the current charges (for which he could be
sentenced to three years even without considering his priors), the court found that
defendant falls “right smack in the middle of” the scheme of the three strikes law,
regardless of defendant’s drug problem. Based on our review of each of the factors that
the trial court cited in support of its decision, especially with regard to his extensive
criminal history as summarized in footnote two of this opinion, and his prospects for
5 rehabilitation considering his long-term drug addiction, we cannot conclude that trial
court’s decision is so irrational or arbitrary that no reasonable person could agree with it.
2. Pre-Sentence Conduct Credits
Defendant also argues he should have received one-for-one conduct credits for the
time he spent in jail awaiting trial after these increased credits became effective for
crimes committed on or after October 1, 2011. Defendant spent three days in jail after
being arrested in 2010. He then spent 256 days in jail between November 1, 2011 and his
sentencing on July 13, 2012. As discussed below, we reject defendant’s contention based
on clear precedent.
A defendant is entitled to actual custody credit for “all days of custody” in county
jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a);
People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 provides that a criminal
defendant may earn additional presentence credit against his or her sentence for
performing assigned labor (§ 4019, subd. (b)), and for complying with applicable rules
and regulations of the local facility (§ 4019, subd. (c)). These presentence credits are
collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.)
Section 4019 has been amended multiple times. Before January 25, 2010,
defendants were entitled to one-for-two conduct credits, which is two days for every four
days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended
by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) Effective January 25, 2010, the
Legislature amended section 4019 to provide that prisoners, with some exceptions,
earned one-for-one conduct credits, which is two days of conduct credit for every two
6 days in custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Effective
September 28, 2010, the Legislature again amended section 4019. (Stats. 2010, ch. 426,
§§ 1, 2, 5.) Subdivisions (b) and (g) restored the one-for-two presentence conduct credit
calculation that had been in effect prior to the January 25, 2010, amendment.
Most recently, the Legislature amended section 4019 to provide for up to two days
credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) &
(c).) This scheme reflects the Legislature’s intent that if all days are earned under section
4019, a term of four days will be deemed to have been served for every two days spent in
actual custody. (§ 4019, subd. (f).) This version of section 4019 became operative on
October 1, 2011 (Stats. 2011, ch. 39, § 53), and by its terms applies to “prisoners who are
confined . . . 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
law.” (§ 4019, subd. (h).) The second sentence of subdivision (h) can be read to
contradict the first sentence. That is, the first sentence clearly states the new, more
generous rule applies only to prisoners who committed their crime prior to October 1,
2011. The second sentence could be read to mean that any days earned on or after
October 1, 2011, are earned at the new, more generous rate, seemingly regardless of
when the prisoner committed their crime. Defendant urges we resolve this ambiguity in
favor of granting the more generous calculation for all time served on or after October 1,
2011.
The function of statutory construction is to ascertain the intent of the Legislature
in order to effectuate the purpose of the law. (Mejia v. Reed (2003) 31 Cal.4th 657, 663.)
7 If the language of the statute is ambiguous, a court will turn to the rules of statutory
construction or to extrinsic sources to ascertain the Legislature’s intent. (Id. at p. 664.)
Here, we agree that subdivision (h) is ambiguous. However, we disagree with
defendant’s proposed construction.
The first sentence of subdivision (h) unambiguously states that the new calculation
of conduct credits applies only to prisoners confined for an offense committed on or after
October 1, 2011. The second sentence, “Any days earned by a prisoner prior to October
1, 2011, shall be calculated at the rate required by the prior law,” could arguably be
interpreted to mean that while the credits earned before October 1, 2011 are calculated at
the prior rate, credits earned on or after October 1, 2011 are to be calculated at the new
rate, regardless of when the offense was committed. That interpretation, however, is
untenable because it renders the first sentence meaningless.
“‘“It is an elementary rule of construction that effect must be given, if possible, to
every word, clause and sentence of a statute.” A statute should be construed so that effect
is given to all its provisions, so that no part will be inoperative or superfluous, void or
insignificant, and so that one section will not destroy another unless the provision is the
result of obvious mistake or error.’ [Citation.]” (Rodriguez v. Superior Court (1993) 14
Cal.App.4th 1260, 1269 (Rodriguez).) Accordingly, we cannot read the second sentence
to imply that any credits earned by a defendant on or after October 1, 2011, shall be
calculated at the enhanced conduct credit rate, even if the offense for which he or she is
confined was committed before October 1, 2011, because that would render the first
sentence superfluous.
8 Instead, we rely on another well-established rule of statutory construction to
resolve the ambiguity. “‘A statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. Consequently, each part or section should
be construed in connection with every other part or section so as to produce a harmonious
whole. Thus, it is not proper to confine interpretation to the one section to be construed.’
[Citation.]” (Rodriguez, supra, 14 Cal.App.4th at p. 1268.) Subdivision (h)’s first
sentence unambiguously reflects the Legislature’s intent to apply the enhanced conduct
credit provision only to those defendants who committed their crimes on or after October
1, 2011. Because the second sentence cannot be read to extend the enhanced conduct
credit provision to any other group, namely those defendants in local custody who
committed offenses before October 1, 2011, without vitiating the first sentence, we
conclude that subdivision (h)’s second sentence is intended to clarify that those
defendants who committed an offense before October 1, 2011, are to earn credit, but only
as calculated under the prior law. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1553
(Ellis).) To interpret the second sentence otherwise ignores the Legislature’s clear intent,
as expressed in the first sentence of subdivision (h). Accordingly, defendant is not
entitled to additional credit for the time he was confined in county jail on and after
October 1, 2011.
Defendant contends that applying the current version of section 4019 to
defendants whose offenses were committed after October 1, 2011, but not to those, such
as defendant, who served presentence time in custody after October 1, 2011 for crimes
committed before October 1, 2011, also violates equal protection principles.
9 However, California appellate courts have held that awarding conduct credits at
different rates to defendants in presentence custody on or after October 1, 2011, based on
whether they committed their offenses before that date or on or after that date, does not
violate their equal protection rights. (People v. Rajanayagam (2012) 211 Cal.App.4th 42,
55 (Rajanayagam); Ellis, supra, 207 Cal.App.4th at pp. 1552-1553.) The Rajanayagam
court reasoned in part: “[T]he 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 conduct credit to only those defendants who
committed their offenses on or after October 1, 2011.” (Rajanayagam, supra, 211
Cal.App.4th at pp. 55-56.)
We agree with the Rajanayagam court that applying the current version of section
4019 only to defendants who committed offenses on or after October 1, 2011, “bear[s] a
10 rational relationship to cost savings.” (Rajanayagam, supra, 211 Cal.App.4th at p. 55.)
We therefore reject defendant’s equal protection challenge to the prospective-only
application of the most recent amendments to section 4019.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J.
CODRINGTON J.