Filed 9/6/13 P. v. Clarkebey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E054547
v. (Super.Ct.No. SWF10000120)
RICHARD EUGENE CLARKEBEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.
Affirmed as modified.
Richard L. Fitzer, 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, Steve Oetting and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Richard Eugene Clarkebey appeals after he was
convicted at his first trial of battery on a police officer (Pen. Code, § 243, subd. (b)); and
1 at his second trial of driving under the influence of alcohol and causing injury to another
person (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level above 0.08
percent (Veh. Code, § 23153, subd. (b)). Defendant contends that the trial court erred in
declining to exercise its discretion to dismiss defendant‟s strike prior; the abstract of
judgment should be corrected to show a stayed sentence on one of the counts; the court
improperly stayed, rather than striking, a prior prison term enhancement; and defendant
should be awarded additional days of presentence conduct credits. We reject the
contentions with respect to dismissal of defendant‟s strike prior and the award of
additional conduct credits. However, we order the sentence modified to strike the prison
term prior, and we order the abstract of judgment corrected to reflect a stay of the
sentence on count 2. With these minor modifications, the judgment is otherwise
affirmed.
FACTS AND PROCEDURAL HISTORY
On January 2, 2010, defendant was driving his truck in Hemet. Angela Selby and
Graciela Garcia were passengers in defendant‟s truck. Defendant drove through a red
light and collided with an SUV driven by Michelle Padilla. Defendant was driving at
such a high rate of speed that the force of the impact spun his truck around; defendant‟s
truck then collided with another car, driven by Charles Jefferson, and finally struck a
third car driven by Anthony Valdez.
Another motorist who witnessed the accident, Jessica Henderson, called for
emergency services. Valdez, whose car had been struck, got to defendant‟s truck within
five seconds. He saw defendant in the driver‟s seat. Padilla, whose SUV had been struck
2 first, saw defendant slumped over the steering wheel of his truck. Padilla‟s passenger,
Colleen Patterson-Musser, also saw defendant behind the steering wheel of the truck. A
community service officer who responded found defendant seated in the driver‟s seat of
the truck.
Emergency personnel took defendant to the hospital. At the hospital, Hemet
police officer Eric Goodwyn spoke to defendant. Officer Goodwyn asked defendant if he
had been driving the truck. Defendant stated, “Yeah, look at my nose.” Defendant had a
cut on the bridge of his nose. Defendant claimed that another car had collided with him.
During the interview, Officer Goodwyn smelled alcohol on defendant‟s breath, and
noticed that defendant‟s eyes were bloodshot and watery. Officer Goodwyn asked
defendant if he had been drinking. Defendant admitted to drinking one beer.
Defendant agreed to a breathalyzer test. The first reading showed a blood-alcohol
level of 0.223 percent, and the second reading showed 0.231 percent. A blood test
showed a blood-alcohol level of 0.23 percent. A forensic toxicologist testified that a
person‟s ability to make decisions and the reaction time to stimuli are severely impaired
at that level of intoxication; a person intoxicated at that level would be unable to operate
a motor vehicle safely.
Defendant was asleep or passed out when his blood was drawn by the
phlebotomist. A nurse later approached defendant to take another blood sample.
Defendant yelled, “You‟re not taking my blood,” and began to swing his arms violently.
3 Officer Goodwyn and another officer each grabbed one of defendant‟s arms to restrain
him. Defendant bit Officer Goodwyn‟s hand.1
Angela Selby, a passenger in defendant‟s truck, sustained some bruising to her
elbow and leg from the collisions. Her elbow and leg hurt for about two weeks after the
accident. It hurt her to extend her elbow, and it hurt “just a little bit” to walk.
Padilla, the driver of the SUV defendant struck, suffered several injuries. Padilla,
a registered nurse, had difficulty performing some of her duties after the accident because
of pain in her right arm. Some of the fingers on her right hand were numb and she had
difficulty raising her right arm. The numbness in Padilla‟s hand lasted six to eight weeks.
The pain in her shoulder persisted for about three months. The remainder of the pain in
her arm lasted approximately six months. She still had residual effects at the time of trial,
and needed to relax her hand occasionally during the day.
Padilla‟s daughter Marissa was a passenger in the SUV. After the accident,
Marissa had low back pain after sleeping or standing for more than about one minute.
Her neck was also sore for three to six months after the collision. Turning her neck was
painful, which made driving difficult. She also had pain in her knee and limped for
several weeks after the accident.
Colleen Patterson-Musser, another passenger in Padilla‟s SUV, had pain in her
shoulder for about two months after the collision. The shoulder was bruised, swollen,
1 The evidence described in this paragraph was presented at defendant‟s first trial, which resulted in his conviction of battery on a peace officer. No evidence concerning that offense was admitted at defendant‟s second trial on the main charges.
4 and tender to the touch. She also sustained a lump on the back of her head and suffered
from headaches for a couple of days after the accident.
Charles Jefferson, the driver of the second vehicle struck by defendant, had pain in
his neck for about a month after the accident. He received physical therapy treatments.
He also had back pain from standing after the collision. Although he had taken
medication for back pain prior to the accident, his neck and back had not bothered him
immediately before the collision.
Anthony Valdez was not injured in the accident, but defendant‟s truck dented the
door of his car.
After these events, defendant was charged by a first amended information with
one count of driving under the influence of alcohol causing injury (count 1), one count of
driving with a blood-alcohol level over 0.08 percent (count 2), resisting an officer with
force or violence (count 3), and battery of a police officer (count 4). As to count 1, the
information alleged that defendant had injured five additional victims.2 (Veh. Code,
§ 23558.) As to count 2, it alleged that defendant had a blood-alcohol concentration of
0.15 or greater. (Veh. Code, § 23578.) The information further alleged that defendant
had suffered four prior prison terms, and one prior strike conviction.
The first trial took place in April 2011. The first jury found defendant guilty of
battery on a police officer (biting Officer Goodwyn). It was unable to reach verdicts on
2 The trial court later dismissed the allegation as to one of the five additional victims.
5 any of the other charges. The trial court declared a mistrial on counts 1, 2 and 3, and then
dismissed count 3 (resisting a police officer) in the interests of justice.
In August 2011, a second jury convicted defendant of the two remaining charges
in counts 1 and 2. The jury also found true the allegations of injury to the four additional
victims, and the allegation that defendant was driving with a blood-alcohol level of 0.15
percent or higher. Defendant also admitted the prior conviction allegations (prior prison
terms and strike prior) to the court.
Defendant asked the court to exercise its discretion to dismiss his strike prior
under Penal Code section 1385. The trial court declined to do so, finding that defendant
came within the spirit of the three strikes law.
The court sentenced defendant to the middle term of two years on count 1 (DUI
with injury), doubled to four years as a second striker. The court added three years (one
year for each of three victim-injury enhancements). The court imposed a concurrent term
of one year in the county jail on count 4 (battery on a police officer). The court also
added three one-year prison term priors. The court stayed sentence as to count 2, stayed
sentence as to the fourth victim-injury enhancement on count 1, and stayed the fourth
prior prison term enhancement. Defendant‟s total prison sentence was 10 years. The
court awarded defendant 933 days of presentence custody credits, consisting of 623
actual days in custody plus 310 days of conduct credits. The court imposed a $500
restitution fine, a $500 parole revocation fine, $120 in court security fees, and $90 in
conviction assessments.
Defendant now appeals.
6 ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss Defendant‟s
Strike Prior
Defendant asked the trial court to exercise its discretion to dismiss the strike prior,
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504. The trial
court declined to dismiss the strike prior, expressing some concern that defendant took no
responsibility for his actions, as well as noting that although defendant‟s record consisted
mostly of substance abuse related offenses, he did have difficulty staying out of trouble,
and had been returned to custody numerous times.
Defendant now urges that the court abused its discretion in refusing to dismiss the
strike prior, because it gave insufficient consideration to all the relevant factors, including
defendant‟s “obvious” mental illness.
Defendant points to information in the probation report indicating that he suffers
from a bipolar disorder and scoliosis. Defendant had been prescribed several
medications, including antipsychotic drugs used to treat bipolar disorder, and
antidepression medications. Defendant stopped taking his prescribed medications in
2003. Defendant instead began to self-medicate with alcohol and illegal drugs.
Defendant‟s only strike offense—an arson conviction in 1983—was over 25 years old by
the time he had committed the current offenses. When defendant pleaded guilty in the
arson case, he had been granted probation.
In the intervening 25 years since his strike conviction, defendant had not
committed another serious or violent felony. All but one of the convictions he suffered
7 after the strike conviction were drug- or alcohol-related. Defendant was 53 years old at
the time of sentencing. Defendant had been free from custody for almost three years at
the time of the accident leading to his current convictions.
Appellate counsel also points to defendant‟s unusual behavior in court during
these proceedings. In the first trial, defendant was briefly removed from the courtroom
when he interrupted the proceedings. While a community service officer was testifying,
defendant burst out, “They [are] trying to send me to prison for 16 years over a fender
bender!” He then accused all the witnesses of lying, saying that they were just trying to
collect insurance money.
Defendant also made several motions to substitute counsel (People v. Marsden
(1970) 2 Cal.3d 118) or to represent himself (Faretta v. California (1975) 422 U.S. 806
[95 S.Ct. 2525, 45 L.Ed.2d 562]). Ultimately, defendant surrendered his right to
represent himself, and the public defender was appointed. During one of the Marsden
hearings, defendant informed the court that his theory of the defense was that the two
passengers in his truck had kidnapped him, and that he was not driving at the time of the
accident. In his postconviction interview with the probation department, defendant
maintained that his passengers had “set [him] up.” They knew defendant was drunk, but
got him dressed and put him in the back of the truck. One of the women was driving the
truck when the accident happened. At the scene, someone told defendant, “Move your
truck.” Defendant, worried about his truck, told his passenger to move over, and only
then did he get into the driver‟s seat. He claimed he cut his nose on the edge of the door
when he got into the front seat. That was why defendant was sitting in the driver‟s seat
8 when police arrived. Defendant told the probation officer that he was the victim of a
conspiracy. Defendant said that Officer Goodwyn intimidated all the witnesses into
testifying falsely that defendant was driving at the time of the accident. Defendant also
told the probation officer that Officer Goodwyn had planted evidence. Defendant
claimed that his lawyer was protecting the police.
Defendant urges that the trial court abused its discretion by failing to properly
weigh all of the relevant factors: “[S]ince all discretionary authority is contextual, those
factors that direct similar sentencing decisions are relevant, including „the nature and
circumstances of the offense, the defendant‟s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.‟
[Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) The
Alvarez court also indicated that, “[w]hen appropriate, judges should also consider the
general objectives of sentencing . . . .” (Ibid.) California Rules of Court, rule 4.410,
describes the general objectives of sentencing: “(a)(1) Protecting society; [¶]
(2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding
life in the future and deterring him or her from future offenses; [¶] (4) Deterring others
from criminal conduct by demonstrating its consequences; [¶] (5) Preventing the
defendant from committing new crimes by isolating him or her for the period of
incarceration; [¶] (6) Securing restitution for the victims of crime; and [¶]
(7) Achieving uniformity in sentencing. [¶] (b) Because in some instances these
objectives may suggest inconsistent dispositions, the sentencing judge must consider
which objectives are of primary importance in the particular case. The sentencing judge
9 should be guided by statutory statements of policy, the criteria in these rules, and the
facts and circumstances of the case.”
Defendant suggests that the trial court failed to conduct the proper balancing
between the defendant‟s constitutional rights, including guaranties against
disproportionate punishment under the Eighth Amendment, and society‟s legitimate
interests, including the fair prosecution of properly charged crimes. (See People v.
Marshall (1990) 50 Cal.3d 907, 938; People v. Williams (1998) 17 Cal.4th 148, 160;
People v. Superior Court (Romero), supra, 13 Cal.4th 497, 530.) “Specifically,”
defendant urges the court “failed to give any credence to the fact that none of the present
offenses are serious or violent; that no one suffered great bodily injury as a result of the
accident; that [defendant] clearly has a drug and alcohol problem; that [defendant]
unquestionably suffers from mental illness; that he has not taken his prescription psych
medications since 2003; and that [defendant‟s] punishment can be relatively severe even
without a second strike sentence—a maximum sentence of eleven years at fifty percent
for a drunk driving accident where no one died or even suffered great bodily injury is
severe. Surely, such a lengthy non-strike sentence for a fifty-three year old man who
suffers from mental illness and drug/alcohol addiction is more than sufficient to protect
society.”
We are not persuaded. The trial court properly exercised its discretion in declining
to dismiss defendant‟s strike prior. The strike prior was for the arson of an inhabited
dwelling, for which he was convicted in 1984. Defendant also had a 1995 conviction for
assault with a deadly weapon. Aside from these two convictions, however, defendant‟s
10 prior convictions related to drug or alcohol abuse. The court considered the instant
offense a “kind of a hybrid,” involving both substance abuse and conduct that presented
an active danger to the community. The court also noted that defendant had performed
poorly when out of custody or on parole. Defendant evidently had “a difficult time
staying out of trouble,” and he had “numerous returns to custody” for parole violations.
The court stated, “In balance . . . and upon reflection, at this time I cannot say that I find
that [defendant] falls without the spirit of the three-strikes law. He is your classic
recidivist, and it would seem to me that at least at this point, even if I were inclined to
grant the motion, I don‟t think I could make findings that would survive an appeal by the
People in this matter.”
Penal Code section 1385 authorizes a trial court to strike factual allegations related
to sentencing; this authority extends to prior felony convictions, including prior felony
strike convictions. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)
The court‟s power to dismiss a strike under Penal Code section 1385 is not absolute, but
is rather limited. (People v. Carmony (2004) 33 Cal.4th 367, 377-378.) In determining
whether to dismiss a strike conviction “in furtherance of justice” (Pen. Code, § 1385,
subd. (a)), the court should consider the nature and circumstances of the present offenses,
any prior serious or violent felony, and a defendant‟s background, character and
prospects, in order to determine whether or not the defendant should be deemed to fall
outside the spirit of the three strikes law. (People v. Williams, supra, 17 Cal.4th at
p. 161.) Only in a rare or extraordinary case could a career criminal be deemed to fall
outside the spirit of the three strikes recidivist sentencing scheme. (Carmony, at p. 378.)
11 A court will not be found to have abused its discretion unless its decision is so irrational
or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)
Defendant here has identified no such extraordinary circumstances placing him
outside the spirit of the three strikes law. All the circumstances to which defendant
points were brought out in the probation report and in the papers filed urging the court to
dismiss the strike prior. The court fully considered both documents. This is not a case in
which the trial court mistakenly misunderstood its discretion, or mistakenly believed that
it had no discretion to dismiss the strike prior. (See, e.g., People v. Banks (1997) 59
Cal.App.4th 20, 23-24.)
The court did address the age of defendant‟s strike prior, recognizing that it had
occurred a number of years earlier. However, it found the circumstances of the strike
prior “pretty horrible.” Defendant had become “fed up” with his relatives taking money
or personal property from him, or using his personal property in a manner he found
insulting; in retaliation, he smashed the car window of one relative, and set the back
porch of his mother‟s residence on fire. Defendant was living in the house with other
family members at that time.
In 1995, defendant had committed another assaultive crime, attacking a man at a
bus stop with a pipe. Defendant was sentenced to prison for three years for that offense.
When defendant was released on parole, his parole was revoked and he was returned to
custody three times. He was finally discharged from parole in 2005, about 10 years after
the conviction.
12 Defendant had difficulty on parole and probation in connection with intervening
offenses, and was also returned to custody several times before finally being discharged
in 2007.
Although defendant was 53 years old at the time of sentencing in this case, he still
lacked maturity or impulse control. Prior incarcerations had done little to stem the
commission of new crimes. Defendant had twice entered drug treatment programs to
address his drug and alcohol problems, but he was terminated from both programs for
assaultive behavior. Defendant‟s background, character and prospects were poor, and did
not place him outside the letter or spirit of the three strikes law. Defendant had not
benefited from leniency, guidance, treatment, supervision, or punishment in the past.
It was a mere fortuity that defendant‟s conduct in the instant case had not caused
grievous injury or death. He was severely alcohol-impaired when he ran a red light and
collided with three other vehicles. Defendant‟s conduct was reckless in the extreme,
showing a callous disregard for the safety of others.
At the hospital after the accident, defendant was forthright enough when Officer
Goodwyn asked if he had been driving the truck: defendant replied, “look at my nose.”
When Officer Goodwyn asked defendant if he had been drinking, defendant claimed he
had drunk only one beer. Although defendant could not very well deny that he had
consumed any alcohol, he attempted to minimize his culpability. His later claims that he
had been framed, or that he was a victim of collusion and conspiracy, were created long
after the fact. Defendant‟s outburst at the first trial could have been as well deliberately
calculated to taint the trial as the product of mental illness. All in all, the circumstances
13 bespeak defendant‟s willingness to lie, minimize, misdirect, and otherwise deflect any
responsibility for his actions from himself.
Defendant has failed to carry his burden of demonstrating that the trial court‟s
decision, declining to dismiss defendant‟s strike prior, was arbitrary or irrational.
(People v. Carmony, supra, 33 Cal.4th 367, 376.) “[C]ircumstances must be
„extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls once he commits a strike as part of a long
and continuous criminal record . . . .‟” (Id. at p. 378.) Defendant has shown no such
circumstances here. Defendant is, in fact, a career criminal who has repeatedly shown
himself unable to refrain from committing crimes. Although he has only one prior
conviction for assault, he has a lengthy history of assaultive behavior. He is precisely the
kind of person to whom the three strikes law was intended to apply. The trial court‟s
determination not to dismiss the strike prior is not a decision with which no reasonable
person would agree. (Id. at p. 377.)
II. The Abstract of Judgment Should Be Corrected to Reflect That the Sentence on
Count 2 Was Stayed Under Penal Code Section 654
As defendant notes, Penal Code section 654 prohibits the imposition of multiple
sentences for the same criminal act. Here, defendant was convicted in count 1 of driving
under the influence causing injury and in count 2 of driving with a blood-alcohol level of
0.08 percent or greater. Both these convictions are based on the same act of drunk
driving. Imposition of sentence on both counts violates Penal Code section 654. The
parties and the court recognized that the sentence on count 2 should be stayed, and the
14 court expressly stated that it ordered the sentence on count 2 to be stayed. However, the
abstract of judgment indicates that the court imposed a concurrent sentence on count 2.
This court may order the correction of this clerical error in the abstract of
judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) We direct that the
minutes of the sentencing hearing and the abstract of judgment be corrected to reflect that
the trial court stayed the sentence imposed as to count 2, pursuant to Penal Code section
654.
III. The Trial Court Should Have Stricken, Rather Than Stayed, the Imposition of a One-
year Prior Prison Term Enhancement
The information charged defendant with four enhancements for prior prison terms.
All the allegations were found true. The trial court imposed one-year enhancements for
three of the prison term priors, but purported to stay imposition of a one-year term on the
fourth prison term prior.
Defendant points out, and the People agree, that an enhancement under Penal
Code section 667.5 may not be stayed. If the allegation has been found true, it must be
either imposed or stricken. (See People v. White Eagle (1996) 48 Cal.App.4th 1511,
1521.) Staying a prior prison term enhancement is an unauthorized sentence, which this
court may correct on appeal. (Ibid.)
The record here makes clear that the trial court did not intend to impose sentence
on the fourth prison term prior. Accordingly, we order that term stricken, rather than
stayed, and order the abstract of judgment amended accordingly.
15 IV. Defendant Is Not Entitled to Additional Presentence Conduct Credits
Penal Code section 4019 has been amended numerous times in recent years.
Before January 25, 2010, inmates were able to earn two days of conduct credits for every
four days of actual custody during presentence confinement in local custody. (Former
Pen. Code, § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.)
Effective January 25, 2010, the Legislature amended Penal Code section 4019 to provide
that, with a few exceptions, most inmates would be able to earn two days of conduct
credits for each two days of actual custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28,
§ 50.) Nine months later, effective September 28, 2010, the Legislature again amended
Penal Code section 4019, restoring the six-for-four credits previously provided pre-
January 25, 2010. (Stats. 2010, ch. 426, §§ 1, 2, 5.)
Most recently, the Legislature again amended Penal Code section 4019, to provide
for two days credit against each four-day period of confinement in local custody. (Pen.
Code, § 4019, subds. (b), (c).) The Legislature expressed its intent that, if all days are
earned under Penal Code section 4019, a term of four days will be deemed to have been
served for each two days in actual custody. (Pen. Code, § 4019, subd. (f).) This version
of Penal Code section 4019 became operative on October 1, 2011. (Stats. 2011, ch. 39,
§ 53.)
Penal Code section 4019, subdivision (h), provides expressly that, “The changes to
this section enacted by the act that added this subdivision shall apply prospectively and
shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days earned by a
16 prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” The gravamen of defendant‟s equal protection claim is that, if the new credit
provisions are given only prospective effect, the scheme would result in impermissible
disparate treatment of similarly situated inmates, simply based on the date of their
respective offenses.
Defendant committed the instant offenses on January 2, 2010. At that time, Penal
Code section 4019 provided two days of conduct credits could be earned for each four
days of actual presentence custody served. All the amendments described above took
place after the date that defendant committed his crimes. The most recent amendment,
effective October 1, 2011, provides that two days of conduct credits may be earned for
each two days of actual presentence custody and, as noted, expressly provides that the
new version shall apply only to those inmates who committed their crimes on or after the
effective date of October 1, 2011. The issue is whether the prospective-only application
of the statute is violative of Equal Protection principles.
“ „The right to equal protection of the laws is guaranteed by the Fourteenth
Amendment to the federal Constitution and article I, section 7 of the California
Constitution. The “first prerequisite” to an equal protection claim is “ „a showing that
“the state has adopted a classification that affects two or more similarly situated groups in
an unequal manner.” ‟ . . . .” [Citation.] [¶] “Equal protection applies to ensure that
persons similarly situated with respect to the legitimate purpose of the law receive like
treatment; equal protection does not require identical treatment. [Citation.]” [Citation.]
The state “may adopt more than one procedure for isolating, treating, and restraining
17 dangerous persons; and differences will be upheld if justified. [Citations.] Variation of
the length and conditions of confinement, depending on degrees of danger reasonably
perceived as to special classes of persons, is a valid exercise of power.” ‟ [Citation.]”
(People v. McKee (2012) 207 Cal.App.4th 1325, 1334-1335.)
The People argue here that defendant has failed to show that the two classes of
offenders affected—those who committed their crimes before October 1, 2011, and those
who committed their crimes on and after that date—are in fact similarly situated. “ „This
initial inquiry is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.” ‟ ” (People v. Brown
(2012) 54 Cal.4th 314, 328.)
In Brown, the California Supreme Court considered the equal protection question
with respect to the earlier amendment of the presentence custody credits of January 25,
2010. The California Supreme Court in Brown held, analogously to the situation here,
that the purposes of a statute authorizing incentives for good behavior “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 [Penal Code] section 4019 took effect are not similarly situated necessarily
follows. On this point we find the decision in [In re] Strick [(1983)] 148 Cal.App.3d 906,
persuasive. In that case . . , the Court of Appeal rejected the claim that an expressly
prospective law increasing conduct credits violated equal protection unless applied
retroactively to prisoners who had previously earned conduct credits at a lower rate. „The
obvious purpose of the new section,‟ the court reasoned, „is to affect the behavior of
18 inmates by providing them with incentives to engage in productive work and maintain
good conduct while they are in prison.‟ (Strick, at p. 913.) „[T]his incentive purpose has
no meaning if an inmate is unaware of it. The very concept demands prospective
application.‟ (Ibid.) „Thus, inmates were only similarly situated with respect to the
purpose of [the new law] on [its effective date], when they were all aware that it was in
effect and could choose to modify their behavior accordingly.‟ (Ibid.)” (People v.
Brown, supra, 54 Cal.4th at pp. 328-329.)
In re Kapperman (1974) 11 Cal.3d 542, on which defendant relies, is
distinguishable. There, the California Supreme Court held a new statute that provided for
presentence custody credits for prison inmates must be applied retroactively to avoid
violating equal protection guaranties. However, credit for time actually served is not the
same as credit for good behavior. (See People v. Brown, supra, 54 Cal.4th at p. 330.)
In People v. Ellis (2012) 207 Cal.App.4th 1546, the Court of Appeal found “no
reason Brown’s conclusions and holding with respect to the January 25, 2010,
amendment should not apply with equal force to the October 1, 2011, amendment. (See
People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9 [144 Cal.Rptr.3d 169, 281 P.3d 72].)
Accordingly, we reject defendant‟s claim he is entitled to earn conduct credits at the
enhanced rate provided by current [Penal Code] section 4019 for the entire period of his
presentence incarceration.” (Id. at p. 1552.)
For the same reasons, we also reject defendant‟s claim here that he should be
awarded additional presentence conduct credits.
19 DISPOSITION
The minutes of the sentencing hearing and the abstract of judgment must be
corrected to reflect that the court ordered the sentence on count 2 to be stayed, pursuant
to Penal Code section 654. Further, the abstract of judgment should be amended to strike
the fourth prison term prior, inasmuch as the trial court clearly indicated its intent not to
impose sentence as to that enhancement. A copy of the abstract of judgment as corrected
shall be forwarded to the California Department of Corrections and Rehabilitation. With
the exception of these minor corrections to defendant‟s sentence, we reject otherwise
defendant‟s contentions and we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
HOLLENHORST Acting P. J.
MILLER J.