P. v. Frausto CA4/1 ( 2013 )

Filed 4/4/13 P. v. Frausto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061739
Plaintiff and Respondent,
v. (Super. Ct. No. SCD236566)
JUAN FRAUSTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kerry
Wells, Judge. Affirmed in part, reversed in part and remanded.
A jury convicted Juan Frausto of assault by means likely to produce great bodily
injury. (Pen. Code, § 245, subd. (a).)1 The court suspended imposition of sentence and
placed Frausto on probation for three years with terms and conditions, including that he
could not knowingly "be within two blocks of any proscribed area (an area of gang or
criminal activity)." On appeal, Frausto contends the court erred by imposing a vague and
1 Statutory references are to the Penal Code unless otherwise specified.
overbroad probation condition. Frausto also contends the statutory construction of
section 4019 and principles of equal protection demand he be given additional
presentence custody credits. We conclude the imposed probation condition should be
modified to avoid unconstitutional vagueness and overbreadth. We also conclude that
under the rules of statutory construction the enhanced conduct credit provision of section
4019 applies only to defendants who committed their crimes on or after October 1, 2011,
and section 4019 does not violate principles of equal protection. (U.S. Const. 14th
Amend.; Cal. Const., art. I, § 7, subd. (a).)
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2011, Frausto and several other individuals identified as
members of the Eastside gang assaulted Guillermo Lazzaro outside his San Diego
residence. During the melee, Lazzaro was struck with a scooter and fell to the ground.
The gang members also threw pieces of wood and a brick at Lazzaro and his friends.
San Diego Police arrived and detained Frausto and several others. After a
curbside line-up, during which he was identified as one of the individuals who threw
punches during the assault, Frausto was arrested. Police later found his fingerprints on a
piece of wood at the crime scene.
Frausto was in county jail awaiting trial on October 1, 2011, when the 2011
amendments to section 4019 became operative.2 (Stats. 2011-2012, 1st Ex. Sess., ch. 12,
2 Section 4019 was amended in 2011 in conjunction with the 2011 Realignment
Legislation, which addressed public safety. (Stats. 2011, ch. 15, § 1; see § 1170, subd.
(h).)
2
§ 35.) On February 10, 2012, the jury convicted Frausto of assault by means likely to
produce great bodily injury. The court suspended imposition of sentence and placed
Frausto on probation for three years with terms and conditions, including the condition
that he serve 285 days in county jail. The court awarded Frausto a total of 285 days of
presentence custody credit consisting of 191 days for actual days served (§ 2900.5, subd.
(a)), plus 94 days of conduct credits under section 4019, subdivision (c). The order for
probation contained condition number 12.h., which provided: "Do not knowingly be
within two blocks of any proscribed area (an area of gang or criminal activity). 'Gang'
means any 'criminal street gang' as defined by Pen. Code 186.22(e) and (f)."
DISCUSSION
A. Forfeiture
The People do not address Frausto's claim that a probationer may challenge a
probation condition for the first time on appeal. "Ordinarily, a criminal defendant who
does not challenge an assertedly erroneous ruling of the trial court in that court has
forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal. 4th
875, 880 (Sheena K.).) Generally, the forfeiture rule also applies in the context of
sentencing; where a trial court fails to make or articulate a discretionary sentencing
choice, the defendant must object to preserve the issue on appeal. (Id. at p. 881; People
v. Scott (1994) 9 Cal. 4th 331, 351-354; People v. Tillman (2000) 22 Cal. 4th 300, 302-
303.)
However, although claims involving a discretionary sentencing choice or
unreasonable probation condition require analysis of facts and circumstances specific to
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the individual case, constitutional challenges to probation conditions require only "the
review of abstract and generalized legal concepts--a task that is well suited to the role of
an appellate court. Consideration and possible modification of a challenged condition of
probation, undertaken by the appellate court, may save the time and government
resources that otherwise would be expended in attempting to enforce a condition that is
invalid as a matter of law." (Sheena K., supra, 40 Cal.4th at p. 885.) Whenever a "facial
challenge is made to the constitutionality of a probation condition, there is no need to
preserve the claim by an objection in the [trial] court." (In re R.P. (2009) 176
Cal. App. 4th 562, 566; see Sheena K., at p. 889). Frausto did not forfeit his challenge to
the constitutionality of his probation condition even though he did not object at the time
the court imposed the condition.
Frausto did, however, forfeit his appellate claim of entitlement to additional
conduct credits. At sentencing, immediately after awarding him 94 conduct credits, the
court asked both parties if there was anything it had "missed." Frausto's counsel did not
object to the conduct credit award at that time. By not objecting to the award of conduct
credits, Frausto forfeited the right to challenge on appeal any error in the court's award
amount. (People v. Myers (1999) 69 Cal. App. 4th 305, 312 [defendant forfeited any claim
of error in presentence credits by stipulating to amount awarded].) Nevertheless, to avert
a claim of ineffective assistance of counsel, we address the merits of his statutory
construction and equal protection arguments concerning the award of conduct credits.
(See, e.g., People v. Norman (2003) 109 Cal. App. 4th 221, 230 [court examined sentence
to determine if cruel and unusual despite defendant's waiver of argument].)
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B. Standard of Review
"[W]hen a facial challenge is made to the constitutionality of a probation
condition," "fairness and efficiency considerations weigh in favor of an appellate court's
de novo review of a facial constitutional challenge." (In re R.P., supra, 176 Cal.App.4th
at p. 566.) Likewise, because Frausto's claim to additional conduct credits involves
issues of statutory interpretation and constitutionality-- pure questions of law--we apply a
de novo standard of review, and exercise our independent judgment without deference to
the trial court's ruling. (Ghirardo v. Antonioli (1994) 8 Cal. 4th 791, 799-801.)
C. The Constitutionality of Probation Conditions Imposed by the Trial Court
Frausto challenges the constitutionality of the probation condition prohibiting him
from knowingly being within two blocks of any area of gang or criminal activity. He
claims the condition is both vague and overbroad, and therefore should be modified to
require notice by the probation officer of specific prohibited locations.
"Probation is generally reserved for convicted criminals whose conditional release
into society poses minimal risk to public safety and promotes rehabilitation. [Citations.]
The primary goal of probation is to ensure '[t]he safety of the public . . . through the
enforcement of court-ordered conditions of probation.' " (People v. Carbajal (1995) 10
Cal. 4th 1114, 1120; §§ 1203.1, 1202.7; People v. Welch (1993) 5 Cal. 4th 228, 233.)
Under section 1203.1, subdivision (j), the Legislature has granted a trial court the
authority to impose reasonable conditions of probation "as it may determine are fitting
and proper to the end that justice may be done, that amends may be made to society for
the breach of the law, for any injury done to any person resulting from that breach, and
5
generally and specifically for the reformation and rehabilitation of the probationer . . . ."
(§ 1203.1, subd. (j).) Under that section, a trial court has broad discretion to determine
whether an eligible defendant is suitable for probation and may impose reasonable
conditions to foster rehabilitation of the probationer, protect public safety and make
amends to society and to the victim of the probationer's crime. (People v. Leon (2010)
181 Cal.App 4th 943, 948; People v. Smith (2007) 152 Cal. App. 4th 1245, 1249-1250;
Welch, at p. 233.)
The court's broad discretion to impose probation conditions is not without limits.
"[T]he authority is wholly statutory; the statute furnishes and limits the measure of
authority . . . the court may thus exercise [citations]." (In re White (1979) 97 Cal. App. 3d
141, 146 (White).) Where constitutional rights are restricted, the judicial discretion to set
conditions of probation are "circumscribed by constitutional safeguards. Human liberty
is involved. A probationer has the right to enjoy a significant degree of privacy, or
liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution
[citations]." (Id. at p. 146.) Probation conditions that limit constitutional rights are valid
"only if narrowly drawn to serve the important interests of public safety and
rehabilitation, and if they are 'specifically tailored to the individual probationer.' "
(People v. Smith, supra, 152 Cal.App.4th at p. 1250.)
We first note the probation condition imposed on Frausto restricts his
constitutional right to intrastate travel. (People v. Smith, supra, 152 Cal.App.4th at
p. 1250; White, supra, 97 Cal.App.3d at p. 148.) "[T]he right to intrastate travel (which
includes intramunicipal travel) is a basic human right protected by the United States and
6
California Constitutions as a whole. Such a right is implicit in the concept of a
democratic society and is one of the attributes of personal liberty under common law."
(White, at p. 148.) Moreover, the right to travel underpins many other fundamental
rights, including the right to free speech, free assembly and free association. (Id. at
p. 149.) "It is simply elementary in a free society. Freedom of movement is basic in our
scheme of values." (Ibid.; Kent v. Dulles (1958) 357 U.S. 116, 126.)
Given the possible impingement of so many fundamental rights, a restriction
regarding travel "should be regarded with skepticism. If available alternative means exist
. . . less violative of the constitutional right and . . . narrowly drawn so as to correlate
more closely with the purposes contemplated, those alternatives should be used
[citations]." (White, supra, 97 Cal.App.3d at p. 150.) Consequently, probation
conditions placing restrictions on travel have frequently been held vague or overbroad.
(E.g., In re Victor L. (2010) 182 Cal. App. 4th 902, 913-919 [holding condition of
prohibiting entry in areas known for gang-related activity overbroad and vague] (Victor
L.); White, at pp. 147-152 [remanding for modification of probation condition prohibiting
prostitute from entering into specific high-prostitution areas of Fresno, because it
interfered with her constitutional right to intrastate travel]; People v. Beach (1983) 147
Cal. App. 3d 612, 619-623 [probation condition requiring elderly widow convicted of
involuntary manslaughter to relocate was held to be overbroad and in violation of her
constitutional rights]; but see U.S. v. Watson (9th Cir. 2009) 582 F.3d 974, 977, 983-985
[upholding probation condition prohibiting parolee who previously lived in San Francisco
from entering the City and County of San Francisco].)
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1. Vagueness of the Imposed Probation Conditions
" ' "No one may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as to what the State
commands or forbids." [Citations.] The operative corollary is that "a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law." ' " (People v. Lopez (1998) 66 Cal. App. 4th 615, 630;
People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090.) "[T]he underpinning of a
vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40
Cal.4th at p. 890.) The rule of fair warning consists of the due process principles of
preventing arbitrary or discriminatory application by policemen, judges and juries as well
as providing adequate notice to those who must observe its strictures. (Ibid.; In re H.C.
(2009) 175 Cal. App. 4th 1067, 1070.) "A probation condition 'must be sufficiently
precise for the probationer to know what is required of him, and for the court to
determine whether the condition has been violated,' if it is to withstand a challenge on the
ground of vagueness. [Citation.] A probation condition that imposes limitations on a
person's constitutional right must closely tailor those limitations to the purpose of the
condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., at
p. 890.)
Probation conditions should be given the meaning that would appear reasonable to
an objective reader. (People v. Bravo (1987) 43 Cal. 3d 600, 606.) Frausto asserts that
absent a directive requiring the probation officer to provide notice of prohibited specific
8
locations, the probation condition is impossibly vague to an objective reader. The People
respond that the plain meaning of the probation condition implies the probation officer
will notify Frausto of the prohibited areas. Certainly as both parties agree, a court may
" 'leave to the discretion of the probation officer the specification of the many details that
invariably are necessary to implement the terms of probation.' " (Victor L., supra, 182
Cal.App.4th at p. 919.) The court's discretionary power to delegate specific terms of
implementation to the probation officer derives from section 1202.8, subdivision (a),
which provides: "[p]ersons placed on probation by a court shall be under the supervision
of the county probation officer who shall determine both the level and type of supervision
consistent with the court-ordered conditions of probation."
However, the People go too far when stating that because of the implied meaning
of the probation condition, logically the probation officer must communicate the
proscribed areas to Frausto before he can violate the condition. Nothing in the probation
order states the probation officer must specify to Frausto the specific areas he should
know to be areas of gang or criminal activity. Instead, the plain meaning of the probation
condition requires only that Frausto knowingly be within two blocks of an area of gang
activity but does not specify from where the source of that knowledge must issue.
Presumably, Frausto, as a gang member, has ample personal knowledge of numerous
areas of local gang activity. However, an arrest under these conditions would lead to an
arbitrary and subjective evaluation as to whether he had sufficient personal knowledge to
violate the condition of his probation. However, an "appellant's waiver of his . . . rights
must be interpreted on the basis of an objective test." (People v. Bravo, supra, 43 Cal. 3d
9at p. 606.) To avoid an improper subjective analysis of Frausto's personal knowledge as
to whether a specific location constituted an area of gang activity, he should be
forewarned, as a condition of his probation, which areas are specifically proscribed to
him. But, "[t]o require the judge in each probation order to specify exactly which areas
are forbidden to the individual gang member would impose an undue burden on the
judiciary. . . . [T]he probation officer is in a better position to identify the forbidden
areas . . . ." (Victor L., supra, 182 Cal.App.4th at p. 917.) For that reason, we elect to
modify the probation condition to require the probation officer to identify the forbidden
areas, and notify both Frausto and the trial court as to the areas he must avoid.
2. Breadth of the Imposed Probation Conditions
The overbreadth doctrine merely requires the imposed probation conditions that
impinge on constitutional rights be carefully tailored and reasonably related to the
compelling state interest in reformation and rehabilitation. (Victor L., supra, 182
Cal.App.4th at p. 910; Sheena K., supra, 40 Cal.4th at p. 890.) "Probation by its very
nature is intended to be tailored to the needs of society and the individual defendant.
Unlike the purpose of imprisonment which is punishment, the purpose of probation is
rehabilitation. The manifest goals of probation and the need for individualistic treatment
compels the imposition of special probation conditions framed to meet the particular
needs of each individual case. Particularized conditions of probation should be directed
toward rehabilitation rather than reliance upon some general condition which utilizes a
mechanized mass treatment approach." (White, supra, 97 Cal.App.3d at pp. 150-151.)
10
However, condition 12.h, about which Frausto complains, is contained within a
mechanized form used for all probationers. Without further clarification, condition 12.h
is impermissibly broad in scope. In some instances, an area with "gang activity" might
be an entire district or town. (In re H.C., supra, 175 Cal.App.4th at p. 1072.)
Presumably, "[c]ity buses, the Greyhound bus and taxicabs pass through [these] areas.
Technically, being engaged in a passive activity such as being a mere passenger in public
transportation or private transportation would be a violation of the condition." (White,
supra, 97 Cal.App.3d at p. 147.) Moreover, the record is silent as to whether Frausto
lives, works, or attends school in an area of "gang activity." A blanket travel restriction
may be proper for some probationers, and the same restriction "may be overbroad for one
who lives, works or goes to school within the area." (In re Pedro Q. (1989) 209
Cal. App. 3d 1368, 1373.) The condition as written would afford the probation officer
significant discretionary power--" 'that is, the power to banish him. It has frequently been
held that a sentencing court does not have this power.' " (People v. O'Neil (2008) 165
Cal. App. 4th 1351, 1358.) "Indeed, the 'gang-related activity' restriction appears to have
been intentionally designed to banish . . . gang members from a broad category of
locations, not simply areas where gang members 'meet' or 'get together,' which are the
focus of a separate proscription. Gang membership and 'participat[ion] in any gang
activity' are also separately forbidden. A separate clause also prohibits both one-to-one
and group association with gang members. [Citation.] Therefore, the 'gang-related
activity' condition appears to have been intended to prevent . . . close contact with gang
members, even short of voluntary association or participation in their activities. Since
11
another condition commands [the defendant] to obey all laws, this condition also bans his
presence in gang-related locations, even though his conduct there would otherwise be
lawful." (Victor L., supra, 182 Cal.App.4th at p. 915.)
Generally, "a court may dictate the basic policy of a condition of probation,
leaving specification of details to the probation officer." (Victor L., supra, 182
Cal.App.4th at p. 919.) "However, the court's order cannot be entirely open-ended. It is
for the court to determine the nature of the prohibition placed on a defendant as a
condition of probation . . . ." (People v. O'Neil, supra, 165 Cal.App.4th at p. 1359.)
However, where the probation condition contains "no such standard by which the
probation department is to be guided, the condition is too broad and must either be
stricken or rewritten to provide the necessary specificity." (Ibid.) Although the court
may have expected the probation officer to designate the "specific" proscribed locations
of gang or criminal activity, the court's probation order should not be left to implication.
As Frausto suggests, probation condition 12.h should be modified to replace "area" with
"specific location" and the condition should be further modified to require the probation
officer to provide Frausto and the court with a list of specifically proscribed locations.
Only by providing Frausto and the court with specific locations can the scope of the
imposed condition be adequately determined. If Frausto then disagrees with the breadth
of the probation officer's list, he can move in the trial court to modify the condition of
probation.
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D. Claim to Additional Conduct Credits
Frausto claims that despite committing his offenses before the October 1, 2011,
operative date of the amendment to section 4019, he is entitled to additional presentence
conduct credits at the enhanced rate of the new version of section 4019. Under section
4019, defendants are entitled to earn additional credit toward their sentences by
performing additional labor (§ 4019, subd. (b)) and for good behavior (§ 4019 subd. (c)).
To differentiate from credits earned by actual time spent in custody, these additional
credits are referred to as conduct credits. (People v. Duff (2010) 50 Cal. 4th 787, 793.)
Before October 1, 2011, persons who, like Frausto, had been convicted of a serious or
violent felony were entitled to only two days of conduct credits for every four days
actually served. (Former Pen. Code, § 4019, subd. (f); Stats. 2010, ch. 426, § 2.)
However, on October 1, 2011, when Frausto was in local custody awaiting sentencing,
the Legislature amended section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.),
as part of the Realignment Act. The amendment, which became operative October 1,
2011, increased the amount of conduct credits earned by prisoners in local custody to one
day of conduct credit for each day spent in actual custody. (§ 4019, subd. (f); Stats. 2011,
ch. 39, § 53.) As relevant here, section 4019, subdivision (h), provides:
"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 prisoner prior to October 1, 2011, shall be calculated at
the rate required by the prior law."
13
Frausto committed his offense on September 15, 2011. At sentencing, the court applied
the former version of section 4019 in effect at the time Frausto committed his crime.
Frausto contends any applicable conduct credits he accrued after the operative date of the
amendment to section 4019 on October 1, 2011, should have been calculated using the
more generous amended rate. He asserts the award of only 94 days of conduct credits
violated both the terms of section 4019 as amended and his right to equal protection.
1. Statutory Construction
Frausto asserts that under the rules of statutory construction, section 4019 as
amended requires the court to grant one-for-one conduct credits for all time spent in local
custody after October 1, 2011. He contends the second sentence of section 4019,
subdivision (h), suggests that days earned by a prisoner after October 1, 2011, must be
calculated at the rate established by the new law.
The language in section 4019, subdivision (h), that "[a]ny days earned . . . prior to
October 1, 2011, shall be calculated at the rate required by the prior" law could be read to
mean that any days earned by a defendant after that date should be calculated using the
amended rate, regardless of the date the offense was committed. (People v. Rajanayagam
(2012) 211 Cal. App. 4th 42, 52.) However, to do so would invalidate the immediately
preceding sentence of section 4019, which explicitly limits the benefits of the new accrual
rate to those defendants who committed their crimes after October 1, 2011.
(Rajanayagam, at p. 52.) Frausto's proffered interpretation would "defy the Legislature's
clear intent in subdivision (h)'s first sentence and contradict well settled principles of
statutory construction." (Ibid.) Interpretations that lead to absurd results or
14
consequences the Legislature could not have intended must be avoided. (People v.
Thomas (1992) 4 Cal. 4th 206; see People v. Tanner (1979) 24 Cal. 3d 514.)
For that same reason, Frausto cannot avail himself of the rule of lenity, which
"generally requires that 'ambiguity in a criminal statute should be resolved in favor of
lenity, giving the defendant the benefit of every reasonable doubt on questions of
interpretation.' " (In re M.M. (2012) 54 Cal. 4th 530, 545.) However, the rule of lenity
only applies "if two reasonable interpretations of the statute stand in relative equipoise."
(People v. Anderson (2002) 28 Cal. 4th 767, 780.) Frausto's interpretation, however,
would lead to a nonsensical interpretation and "ambiguities are not interpreted in the
defendant's favor if such an interpretation would provide an absurd result, or a result
inconsistent with apparent legislative intent." (People v. Cruz (1996) 13 Cal. 4th 764,
783; see also In re Michael D. (2002) 100 Cal. App. 4th 115, 125.)
Moreover, absent a clearly manifested intent to the contrary, there is a legal
presumption that all statutes operate prospectively. (Evangelatos v. Superior Court
(1988) 44 Cal. 3d 1188, 1208-1209.) Statutes ambiguous with respect to retroactive
application are to be construed as unambiguously prospective. (Ibid.; People v. Brown
(2012) 54 Cal. 4th 314 (Brown); see also Lindh v. Murphy (1997) 521 U.S. 320, 328, fn. 4
[statute applied retroactively only where statutory language is "so clear that it could
sustain only one interpretation"].) One noted exception to the presumption of prospective
application exists where the Legislature reduces the punishment for a particular offense.
(In re Estrada (1965) 63 Cal. 2d 740, 748.) However, because section 4019 addresses
future conduct, but does not alter the penalty for any particular crime, that exception is
15
not applicable here. (People v. Ellis (2012) 207 Cal. App. 4th 1546, 1551; see also Brown,
supra, 54 Cal.4th at p. 325).
Although section 4019 could have been drafted more artfully, "the Legislature's
clear intent was to have the enhanced rate apply only to those defendants who committed
their crimes on or after October 1, 2011. [Citation.] 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. Ellis, supra, 207 Cal.App.4th at p. 1553;
see also People v. Rajanayagam, supra, 211 Cal.App.4th at p. 52 [§ 4019, subd. (h)
merely reaffirms that defendants who committed their crimes before October 11, 2011,
can still earn conduct credits, just under the prior law].) The Legislature's clear and
explicit intent to apply the new custody credit formula only prospectively cannot be
overridden by an implied interpretation of the second sentence in the statute. Frausto's
argument that statutory construction requires modification of his conduct credit award
has no merit.
2. Equal Protection
Frausto also invokes the basic guarantees of equal protection embodied in the
Fourteenth Amendment to the United States Constitution and article I, section 11 of the
California Constitution to support his contention. (Hayes v. Superior Court (1971) 6
Cal. 3d 216, 223; In re King (1970) 3 Cal. 3d 226, 232.) Frausto asserts that, were section
4019 interpreted to apply only to crimes committed on or after October 1, 2011, it would
violate equal protection principles.
16
To succeed on a claim under the equal protection clause, Frausto must first show
the state has adopted a classification that affects two or more similarly situated groups in
an unequal manner. (People v. Hofsheier (2006) 37 Cal. 4th 1185, 1199; see also People
v. Wilkinson (2004) 33 Cal. 4th 821, 836-837 (Wilkinson); Manduley v. Superior Court
(2002) 27 Cal. 4th 537, 571.) For purposes of section 4019 there are two classes of
incarcerated inmates: (1) those in jail on or after October 1, 2011, having committed a
crime on or after October 1, 2011; and (2) those in jail on or after October 1, having
committed the same offense before October 1, 2011.
The primary purpose of awarding conduct credits is to reward those defendants
who perform additional work and behave, and to act as a threat to withhold conduct
credits from those who would otherwise misbehave. Indeed, the "very purpose of
conduct credits is to foster constructive behavior in prison by reducing punishment."
(People v. Lara (2012) 54 Cal. 4th 896, 906.)
Frausto contends that because inmates from both groups have committed the same
crime, are in custody at the same time, and are earning conduct credits for the same
positive behavior, they are similarly, if not identically, situated. However, as the
Supreme Court noted, "prisoners who served time before the incentives took effect . . .
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." (Brown, supra, 54 Cal.4th at pp. 328-329 [examining applicability of
retroactivity to § 4019]; see also People v. Kennedy (2012) 209 Cal. App. 4th 385, 396-
17
397.) Although Brown examined whether section 4019 should be applied retroactively to
all prisoners, the logic is nonetheless applicable here.
Additionally, even were we to hold that both groups have a similar incentive to
work and behave, we do not believe both groups have the same inducement. Although
the type of incentive--additional conduct credits--may be the same as between the groups,
the amount of that incentive is not the same. Those prisoners who commit crimes and
serve time after the incentives take effect have a greater incentive to alter their behavior
than those who committed crimes before the later-enacted incentive. Thus, contrary to
Frausto's claims, the two groups are not similarly situated and, as a result, any analysis of
his equal protection claims does not proceed to the next step of the level of review.
Although we need not decide the appropriate level of review, we believe rational
basis review is the proper level of scrutiny. In considering whether state legislation
violates equal protection, " 'we apply different levels of scrutiny to different types of
classifications. At a minimum, a statutory classification [affecting similarly situated
individuals] must be rationally related to a legitimate governmental purpose. [Citations.]
Classifications . . . affecting fundamental rights . . . are given the most exacting
scrutiny.' " (Wilkinson, supra, 33 Cal.4th at p. 836; see also Manduley v. Superior Court,
supra, 27 Cal.4th at p. 571.) When a statutory classification infringes on either a
fundamental interest or right, the law or policy must be justified by a compelling interest
and the distinctions drawn by the law must be necessary to further this interest. (People
v. Olivas (1976) 17 Cal. 3d 236, 251.) In all other instances, rational basis review is the
default level of review; the state is only required to make a showing that "the legislative
18
classification bears a rational relation to some independent and legitimate legislative
end." (Romer v. Evans (1996) 517 U.S. 620, 621.)
Contrary to Frausto's argument, there is no fundamental interest at stake with
regard to conduct credits. The argument could be made that to limit a prisoner's
opportunity to earn conduct credits is to increase punishment, because it "substantially
alters the consequences attached to a crime already completed, and therefore changes 'the
quantum of punishment.' " (Weaver v. Graham (1981) 450 U.S. 24, 33). After all, "a
person who is released a day early is punished a day less." (People v. Lara, supra, 54
Cal.4th at pp. 905-906.) As Frausto notes, courts have in the past reached different
conclusions as to the applicable test for incongruities resulting from statutes involving
time credits. (See, e.g., People v. Austin (1981) 30 Cal. 3d 155, 166 [compelling interest];
People v. Sage (1980) 26 Cal. 3d 498, 508 [same]; People v. Caruso (1984) 161
Cal. App. 3d 13, 17-18 [same]; People v. Jacobs (1984) 157 Cal. App. 3d 797, 801 [same];
In re Kapperman (1974) 11 Cal. 3d 542, 544-546 [rational relationship]; People v. Silva
(1994) 27 Cal. App. 4th 1160, 1168 [same]; People v. King (1992) 3 Cal. App. 4th 882, 885
[same].) However, those cases holding there is a compelling interest no longer stand for
the proposition Frausto claims. As our Supreme Court held, the cases they relied on
should not be so broadly read as to require strict scrutiny "whenever one challenges upon
equal protection grounds a penal statute or statutes that authorize different sentences for
comparable crimes." (Wilkinson, supra, 33 Cal.4th at p. 837.) Since those cases were
decided, the Supreme Court has favorably cited In re Bender (1983) 149 Cal. App. 3d 380for the proposition that " 'punishment-lessening statutes given prospective application do
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not violate equal protection.' " (People v. Floyd (2003) 31 Cal. 4th 179, 189, quoting
Bender, at p. 388.)
Personal liberty is not at stake in cases of conduct credits as "section 4019 does
not alter the penalty for any crime; a prisoner who earns no conduct credits serves the full
sentence originally imposed. Instead of addressing punishment for past criminal conduct,
the statute addresses future conduct in a custodial setting by providing increased
incentives for good behavior." (Brown, supra, 54 Cal.4th at p. 325.) The proper test for
issues concerning conduct credits is rational basis review.
Assuming the state adopted a classification that affected two or more similarly
situated groups in an unequal manner, the next step would be to determine whether those
classifications bear a rational relationship to a legitimate state purpose. The rational
relationship test is highly deferential. (People v. Turnage (2012) 55 Cal. 4th 62, 77 ["[a]
classification is not arbitrary or irrational simply because there is an 'imperfect fit
between means and ends' "].) Under the rational relationship test, a statutory
classification is constitutionally sound if there are any reasonably conceivable facts that
could provide a rational basis for the classification. (People v. Hofsheier, supra, 37
Cal.4th at p. 1200.)
Frausto asserts that because the purpose of both the Realignment Act and the
amendment to section 4019 was to address the state's fiscal emergency by more cost-
effectively managing prison populations, the arbitrary date of October 1, 2011, has no
legitimate or rational public purpose. However, all changes, additions or deletions to the
code must have a beginning date. Equal protection of the law "does not forbid statutes
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and statutory changes to have a beginning, and thus to discriminate between rights of an
earlier and later time." (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505;
see also People v. Floyd, supra, 31 Cal.4th at p. 188 ["[d]efendant has not cited a single
case, in this state or any other, that recognizes an equal protection violation arising from
the timing of the [operative] date of a statute lessening the punishment for a particular
offense"].)
The stated goal of the Legislature is achieved by the amendment, as the fiscal
crisis is ameliorated to a degree by awarding additional conduct credits to those prisoners
who committed their crimes on or after October 1, 2011. Although awarding enhanced
credits retroactively would have produced greater cost savings, the Legislature did not
choose this approach. Nonetheless, the approach the Legislature did choose bears a
rational relationship to cost savings.
"[T]he Legislature could rationally have believed that by making the
2011 amendment to section 4019 have application determined by the
date of the offense, they were preserving the deterrent effect of the
criminal law as to those crimes committed before that date. To
reward appellant with the enhanced credits of the 2011 amendment
to section 4019, even for time he spent in custody after October 1,
2011, weakens the deterrent effect of the law as it stood when
appellant committed his crimes. We see nothing irrational or
implausible in a legislative conclusion that individuals should be
punished in accordance with the sanctions and given the rewards
(conduct credits) in effect at the time an offense was committed."
(People v. Kennedy, supra, 209 Cal.App.4th at p. 399.)
Although the amendment to section 4019 may result in the two classifications obtaining
different conduct credit totals, under the rational relationship test the Legislature is
permitted to "experiment individually with various therapeutic programs related to
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criminal charges or convictions" (In re Huffman (1986) 42 Cal. 3d 552, 561), so as "to
control the risk of new legislation by limiting its application" (People v. Lynch (2012)
209 Cal. App. 4th 353, 361) and determine what works and what does not. (Warden v.
State Bar (1999) 21 Cal. 4th 628, 649 [reform measures can be implemented one step at a
time].) Because the deferential nature of the rational basis test does not afford us the
power to second guess the Legislature and determine the most effective manner to
achieve that legitimate state interest, we hold the classifications established in section
4019 bear a rational relationship to a legitimate state interest.
DISPOSITION
The judgment is affirmed in part, reversed in part and remanded. Accordingly, we
order that the gang-area condition (condition 12h) be modified to read as follows: "Do
not knowingly visit or remain in any specific location the probation officer informs you
and the court is an area of criminal-street-gang-related activity."
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
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