People v. Garcia CA4/2

Opinion

Filed 12/18/23 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079889

v. (Super.Ct.No. FWV18001720)

VACA ARNULFO GARCIA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Affirmed with directions.

Arielle Bases, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Christopher Beesley and

Britton B. Lacy, Deputy Attorney Generals, for Plaintiff and Respondent.

1 A jury found defendant and appellant Vaca Arnulfo Garcia guilty of attempted

kidnapping and misdemeanor sexual battery. The trial court sentenced defendant to

credit for time served, but left remaining custody credits unused. On appeal, defendant

contends that the trial court was required to apply the excess credits to his parole term,

and failure to do so resulted in an unauthorized sentence. The People concede that the

excess credits must be applied to defendant’s term. The People, however, contend that

the court miscalculated defendant’s custody credits. For the reasons set forth post, we

hold that the trial court properly calculated defendant’s custody credits, and the court’s

failure to apply excess credits to defendant’s parole term resulted in an unauthorized

sentence.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On February 9, 2022, a first amended information charged defendant with assault

with intent to commit a sexual offense under Penal Code1 section 220, subdivision (a)(1)

(count 1); attempted kidnapping under sections 664 and 207 (count 2); and misdemeanor

battery under section 243.4, subdivision (e)(1) (count 3). As to counts 1 and 2, the

information also alleged that the offenses were violent felonies under section 667.5,

subdivision (c). Moreover, as to count 2, the information alleged that the offense was a

serious felony under section 1192.7.

1 All further statutory references are to the Penal Code unless otherwise specified.

2 On August 26, 2022, a jury found defendant guilty of counts 2 (attempted

kidnapping) and 3 (misdemeanor sexual battery), but could not reach a verdict on count 1

(assault with intent to commit a sexual offense). The trial court declared a mistrial as to

count 1.

At the sentencing hearing on September 2, 2022, the trial court dismissed count 1,

and sentenced defendant to the middle term of two years six months on count 2; and 180

days on count 3, to be served consecutively. The court also imposed a three- to four-year

period of parole. The court and counsel agreed that defendant had accrued 1,817 total

credits; the court deemed defendant’s time served and ordered him to report to parole.

On September 26, 2022, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY

On May 7, 2018, Jane Doe, who was 18 years old, was working alone at her

mother’s salon and beauty supply store. Defendant, posing as a window cleaner, came

into the salon and asked if Doe wanted the windows cleaned. Defendant had previously

visited the store on two occasions preceding the incident to offer the same service; he was

turned away by Doe’s mother. When Doe declined defendant’s offer, he continued to

insist. Doe admitted that her mother was not at the salon.

Defendant then asked Doe to go outside so he could show her dust on the store’s

window. Once outside, defendant stood behind Doe and pressed his penis against her

buttocks, and placed one hand on Doe’s waist and the other on her vagina. Defendant

asked Doe if her vagina was small. Doe then pushed defendant off, told him to get off

her, and screamed for help.

3 Defendant grabbed Doe’s arm and dragged her inside the store, towards the back

where they were no longer visible to passersby. Defendant then grabbed the back of

Doe’s neck with his hand and pushed her head forward over a hairstylist’s chair, again

pressing his erect penis against her buttocks. Defendant then suddenly pulled away and

ran out of the store.

After defendant left, Doe called her mother, who was pulling up to the store as

they spoke. The mother saw defendant running toward another store and attempted to

confront him. The mother heard defendant yelling, “I didn’t do it,” or something similar.

Doe’s Mother called the police and law enforcement arrived. An officer described Doe’s

demeanor as “Crying, distraught, symptoms of shock that I’ve experienced. Typical of

someone that went through something traumatizing.”

DISCUSSION

A. THE TRIAL COURT IMPOSED AN UNAUTHORIZED SENTENCE

On appeal, defendant contends that his “excess credits should be applied to his

parole term. The trial court’s failure to do so resulted in an unauthorized sentence that

must be remedied.” The People agree that defendant’s “sentence is unauthorized due to

the trial court’s failure to apply excess credits to his parole term.”

Any sentence that fails to award a defendant all credits to which he is entitled is

unauthorized. (See, e.g., People v. Taylor (2004) 119 Cal.App.4th 628, 647.) Sections

2900.5 and 1170 mandate that any credits in excess of the confinement period be applied

towards a defendant’s parole term. (§§ 2900.5, subds. (a) & (c), 1170, subd. (a)(3).)

4 Section 2900.5, subdivision (a), requires that credits apply first to one’s “term of

imprisonment” before being credited towards any base fines that have been imposed, and

parole is explicitly defined as a term of imprisonment under section 2900.5, subdivision

(c).

Section 1170, subdivision (a)(3), authorizes courts to deem a defendant’s parole

period served when his custody credits equal or exceed his total sentence. (See In re

Sosa (1980) 102 Cal.App.3d 1002, 1005 [“Section 1170 explicitly declares that

presentence credit applies against both the imprisonment and the parole portion of the

sentence”].)

Courts have agreed that section 2900.5 mandates that excess credits apply toward

parole terms. (People v. Lamoureux (2020) 57 Cal.App.5th 136, 143; see People v.

Steward (2018) 20 Cal.App.5th 407, 414.) Where courts have declined to apply credits

towards the supervisory portion of a sentence, the cases dealt with post-release

community supervision and resentencing under Proposition 47. (§ 1170.18; People v.

Morales (2016) 63 Cal.4th 399, 406-407; People v. Espinoza (2014) 226 Cal.App.4th

635, 638-640.)

Defendant’s case, however, is governed by section 2900.5. Here, the court

imposed a period of parole, not post-release community supervision, and defendant is

appealing from his initial sentencing, not a resentencing.

In this case, at the sentencing hearing on September 2, 2022, the trial court denied

probation and ordered that defendant’s sentence be followed by a period of parole. The

parties agreed that defendant had accrued 1,580 actual credits and 237 conduct credits,

5 which totaled 1,817 credits. The court then applied defendant’s credits, deemed his time

served, and ordered him to report to parole by September 9, 2022.

Thereafter, at a hearing on September 26, 2022, the trial court expressly found that

count 2 (misdemeanor sexual battery) constituted a Tier 1 offense, and accordingly,

extended defendant’s period of parole to three to four years.

During both the September 2 and September 26 hearings, the trial court,

prosecutor, and defense counsel failed to address the excess credits—the number of

credits remaining after application of defendant’s 1,817 credits to his custodial

sentence—accrued by defendant. Defense counsel, therefore, did not argue that the court

should apply defendant’s excess credits to his parole term.

Hence, because the trial court failed to apply defendant’s excess credits to his

parole term, failure to do so resulted in a legally unauthorized sentence. (§ 2900.5, subds.

(a) & (c); § 1170, subd. (a)(3); People v. Taylor, supra, 119 Cal.App.4th at p. 647.)

B. THE TRIAL COURT PROPERLY CALCULATED DEFENDANT’S

CUSTODY CREDITS

Although the People concede that defendant’s extra credits should be applied to

defendant’s parole term, the People argue that the court miscalculated defendant’s

credits. “This is because pretrial custody in the state hospital due to incompetency affects

custody and conduct credits differently.”

“Historically, ‘section 4019 has provided that defendants confined in specific

facilities and various settings may earn conduct credit for performing assigned labor and

for complying with applicable rules and regulations.’ ” (People v. Shkrabak (2023) 89

6 Cal.App.5th 943, 947-948 (Shkrabak).) Defendants who were treated in state hospitals or

other facilities were not statutorily eligible for conduct credit. (People v. Yang (2022) 78

Cal.App.5th 120, 125 (Yang), citing Peter v. Waterman (1986) 42 Cal.3rd 565, 568-571.)

Effective January 1, 2019, Senate Bill 1187 amended former section 4019, which

added subdivision (a)(8). Subdivision (a)(8) provided that prisoners undergoing

competency restoration treatment in county jail facilities would be eligible for conduct

credits. (Stats. 2018, ch. 1008, § 5.) In Yang, the court noted: “[T]he legislative history

confirms, Senate Bill 1187 was enacted to ensure that [incompetent to stand trial]

defendants being held and treated in county jail would be entitled to earn conduct credits

just as other jail inmates. (Assem. Com. On Pub. Safety, Rep. on Sen. Bill No. 1187

(2017–2018 Reg. Sess.) as amended May 25, 2018, p. 5.) Although legislative analyses

reflected the Legislature’s express awareness that [incompetent to stand trial] defendants

in a state hospital were not statutorily or constitutionally entitled to conduct credit under

[former] section 4019, the analyses disclosed no explanation why the Legislature—at that

point—declined to similarly extend the availability of conduct credit to such defendants.

(See, e.g., ibid.; Off. of Assem. Floor Analyses, 3d reading analysis of Sen. Bill No. 1187

(2017–2018 Reg. Sess.) as amended Aug. 23, 2018, p. 4; Sen. Com. on Public Safety,

Rep. on Sen. Bill No. 1187 (2017–2018 Reg. Sess.) as amended Feb. 15, 2018, pp. 4–5.)”

(Yang, supra, 78 Cal.App.5th at pp. 126-127.)

In 2021, Senate Bill 317 expanded section 4019, subdivision (a)(8), to provide that

prisoners receiving competency treatment in a state hospital could also receive conduct

credits. (Stats. 2021, ch. 599, § 3, eff. Jan. 1, 2022.) “The legislative history indicates

7 the bill was meant to ‘ensure[] incompetent defendants are eligible for the same conduct

credit as their competent counterparts, while receiving treatment in any treatment facility

or as an outpatient, not just . . . county jail treatment.’ ” (Yang, supra, 78 Cal.App.5th at

p. 127, quoting Assem. Com. on Appropriations, Rep. on Sen. Bill No. 317 (2021–2022

Reg. Sess.) as amended July 12, 2021, p. 2.)

Here, from the date of defendant’s arrest on May 7, 2018, and up to and including

his sentencing hearing on September 2, 2022, defendant spent 1,580 days in pretrial

custody. During this period, defendant spent somewhere between 141 to 149 days in the

hospital due to his incompetency to stand trial. The People, therefore, argue that the time

spent by defendant at the hospital should be excluded from defendant’s custody credits.

Defendant, however, makes an equal protection argument. Defendant contends

that because “Defendants committed to a state hospital for competency treatment after

Senate Bill 1187 went into effect are similarly situated to those defendants receiving

competency treatment in county jail,” and he “was ordered to receive competency

treatment in a state hospital in March of 2019—after Senate Bill 1187 went into effect.”

“To establish a meritorious claim under the equal protection clause, a defendant

must show ‘ “ that the state has adopted a classification that affects two or more similarly

situated groups in an unequal manner.’ ” [Citations.] ‘[A]n equal protection claim

cannot succeed, and does not require further analysis unless there is some showing that

the two groups are sufficiently similar with respect to the purpose of the law in question

that some level of scrutiny is required in order to determine whether the distinction is

justified.’ [Citation.] The inquiry is not whether groups are similarly situated for all

8 purposes, but whether they are similarly situated with respect to the legitimate purpose of

the particular law challenged.” (Shkrabak, supra, 89 Cal.App.5th at p. 948.)

Two cases “have considered whether defendants receiving competency treatment

in state hospitals are similarly situated to those receiving treatment in county jails. In

People v. Orellana (2022) 74 Cal.App.5th 319, . . . the Sixth District Court of Appeal

rejected an equal protection challenge similar to that in the current case, holding the two

groups were not similarly situated. The Orellana court reviewed our Supreme Court’s

decision in People v. Brown (2012) 54 Cal.App.4th 314, which considered whether a

legislative change that increased the rate at which prisoners could earn conduct credits

applied to defendants who had served their time before the change, as well as to those

who had served their time after the change.” (Shkrabak, supra, 89 Cal.App.5th at pp.

948-949.)

In Brown, 54 Cal.App.4th 314, the “Supreme Court found the two groups were not

similarly situated, stating: ‘ “the important correctional purposes of a statute authorizing

incentives for good behavior [citation] are not served by rewarding prisoners who served

time before the incentives took effect and thus could not have modified their behavior in

response. That prisoners who served time before and after former section 4019 took

effect are not similarly situated necessarily follows.” ’ [Citation.] The Orellana court

read this passage to ‘effectively preclude[] the court from deeming two groups similarly

situated for purposes of earning conduct credits when the time in custody preceded the

availability of incentive based credits.’ ” (Shkrabak, supra, 89 Cal.App.5th at p. 949.)

9 However, “[t]he First District Court of Appeal reached a different conclusion in

Yang, . . . holding that defendants in both state hospitals and county jails are subject to

the same standards and procedures and receive treatment for the same purpose.

[Citation.] While the groups are placed in different locations, the Yang court concluded

they are sufficiently similar to qualify for ‘ “some level of scrutiny’ ” under equal

protection principles. [Citation.] The court distinguished Brown, concluding, ‘Unlike the

situation in Brown, defendant here is not advocating the position that [incompetent to

stand trial] defendants whose confinement for competency treatment predated Senate Bill

1187’s effective date are similarly situated to [incompetent to stand trial] defendants

whose confinement postdated the law’s effective date. Instead, the instant case concerns

the disparate treatment of two groups of [incompetent to stand trial] defendants whose

confinement for competency treatment postdated a statutory amendment that authorizes

conduct credits only for those committed to a jail facility but not for those committed to a

state hospital.’ ” (Shkrabak, supra, 89 Cal.App.5th at p. 949.)

After the court found “incompetent to stand trial defendants confined in state

hospitals similarly situated to incompetent to stand trial defendants confined in county

jails, the Yang court applied strict scrutiny to section 4019. The court reviewed the

California Supreme Court decisions in People v. Saffell (1979) 25 Cal.3d 223, . . . People

v. Sage (1980) 26 Cal.3rd 498, . . . and People v. Caruso (1984) 161 Cal.App.3rd 13, . . .

each of which applied strict scrutiny to analyze disparate treatment for the award of

conduct credits, and concluded the same standard should apply there. [Citation.] The

10 Yang court also rejected the Attorney General’s argument that rational basis review

should apply.” (Shkrabak, supra, 89 Cal.App.5th at pp. 949-950.)

Applying the strict scrutiny test, the court in Yang “concluded the state could not

establish it had a ‘ “compelling interest which justifies the law and then demonstrate that

the distinctions drawn by the law are necessary to further that purpose.” ’ [Citation.] As

in the present case, the Attorney General proffered two possible justifications for the law:

(1) conduct credit creates an incentive for good behavior, and such incentives are

unnecessary in state hospitals [citation], and (2) county jail treatment is an interim

measure before transfer to a state hospital, and defendants who are confined in county

jails ‘are not so ill and disoriented that they are incapable of responding to credit

incentives’ ” (Shkrabak, supra, 89 Cal.App.5th at p. 950.)

The Yang court, however, rejected both arguments by observing that “state

hospitals—like jails—are structured environments governed by various rules.

[Citations.] Thus, the same interest in incentivizing good behavior appears equally

reasonable and workable for defendants receiving competency treatment in a state

hospital where patients with varying issues and/or criminal histories or proclivities are

housed” (Yang, supra, 78 Cal.App.5th at p. 136.)

The court went on to note that “Senate Bill No. 317 recently extended the

availability of conduct credit to state hospital defendants, undermining the Attorney

General’s purported rationale for distinguishing the two groups.” (Shkrabak, supra, 89

Cal.App.5th at p. 950.)

11 In addition, the Yang court stated that “Every defendant found incompetent to

stand trial meets the same standard for commitment [citation], and . . . may be committed

to either a jail facility or a state hospital depending on the availability of a bed.” (Yang,

supra, 78 Cal.App.5th at p. 137.) Therefore, the court found that it did not “make sense

to draw a distinction between the two groups based on the extent of their impairments.

[Citation.] Accordingly, the court concluded the defendant was entitled to conduct credit

for the time he was in Napa State Hospital receiving treatment to restore him to

competency.” ’ ” (Shkrabak, supra, 89 Cal.App.5th at p. 950.)

Recently, in Shkrabak, after discussing the differences between Yang and

Orellana, the Third District Court of Appeal found “the analysis in Yang more persuasive

than Orellana.” (Shkrabak, supra, 89 Cal.App.5th at p. 950.) The Shkrabak court stated:

“Orellana viewed ‘Brown as compelling the conclusion that [incompetent to stand trial]

defendants receiving competency treatment in a jail facility and [incompetent to stand

trial] defendants receiving competency treatment in a state hospital are not similarly

situated because the former group was incentivized to earn conduct credit after Senate

Bill 1187’s enactment while the latter group was not.’ [Citation.] As Yang notes,

however, ‘the disparate treatment between these two groups of [incompetent to stand

trial] defendants is precisely what is being challenged as unjustified.’ [Citation.]

Defendant’s ability to make a claim based on disparate treatment should not be

contingent on a legislative distinction between two groups if the distinction itself is the

target of the claim. Thus, the two groups are sufficiently similarly situated to apply equal

protection principles.” (Shkrabak, at pp. 950-951.)

12 We find the reasoning of Shkrabak and Yang more persuasive than that of

Orellana. We agree with Shkrabak and Yang that prisoners undergoing competency

treatment in a state hospital are similarly situated with those prisoners undergoing

competency treatment in a county jail facility. (Shkrabak, supra, 89 Cal.App.5th at pp.

950-951; Yang, supra, 78 Cal.App.5th at p. 129.)

At the sentencing hearing in this case, the trial court properly awarded defendant

1,817 credits, which included the time defendant spent in the state hospital. The trial

court, therefore, properly calculated defendant’s custody credits.

DISPOSITION

The trial court is directed to apply defendant’s excess custody credits toward

defendant’s term of imprisonment, including his period of parole. The trial court is

directed to update the abstract of judgment and forward a certified copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

CODRINGTON J.

FIELDS J.