In re Mallard , 7 Cal. App. 5th 1220 ( 2017 )

Filed 1/27/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D071345
In re KEVIN DWAYNE MALLARD on
Habeas Corpus. (Super. Ct. No. SCD249817)
Original proceeding on a petition for a writ of habeas corpus. Relief denied.
Randy Mize, Chief Deputy Public Defender and Michael Begovich, Deputy Public
Defender for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Respondent.
In 2014, the voters approved Proposition 47, adding section 1170.18 to the Penal
Code (The Safe Neighborhoods and Schools Act), and allowing qualifying felony
offenders to seek reclassification of their offenses to misdemeanors, on a retroactive
basis. (Pen. Code,1 § 1170.18, subd. (a).) Under Proposition 47, Kevin Dwayne Mallard
sought and received a reclassification of his felony conviction of possession of
concentrated cannabis. (Health & Saf. Code, § 11357, subd. (a).) He seeks his
immediate release from county jail on the grounds he is being incarcerated illegally. To
1 Statutory references are to the Penal Code unless otherwise specified.
this end, he argues that this reclassification prohibits the application of section 2933.1,
which imposes a 15 percent conduct credit limitation on his sentence. He also contends
that the application of section 2933.1 to his sentence violates federal and state equal
protection clauses.
We determine that Mallard's arguments lack merit. In doing so, we conclude
when a consecutive felony term is subject to a 15 percent conduct credit limitation under
section 2933.1, that felony term being resentenced to a misdemeanor term under
Proposition 47 does not change the credit limitation imposed by section 2933.1.
Accordingly, we deny the requested relief.
FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2013, Mallard entered the visitor's area on the sixth floor of the county
jail with 3.6 grams of marijuana. On August 13, 2013, in case No. SCD249817, Mallard
pled guilty to possession of concentrated cannabis (marijuana, Health & Saf. Code, §
11357, subd. (a)). The trial court granted Proposition 36 (§ 1210.1) probation for three
years and gave Mallard 14 actual days' credit and 14 days' conduct credit under section
4019.
On September 18, 2013, Mallard pulled a woman out of her parked SUV and
drove away. On September 10, 2014, in case No. SCD253209, Mallard was convicted of
carjacking (§ 215, subd. (a)).
On October 8, 2014, the trial court sentenced Mallard to prison for three years for
the carjacking conviction. On the same date, with Mallard's probation for the possession
of marijuana conviction having been revoked, the trial court imposed eight months, one-
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third the middle term, for that conviction, to run consecutively to the three-year
carjacking term. As to the possession of marijuana conviction, the trial court gave 14
actual days' credit and two days' conduct credit, the latter of which was limited to 15
percent of the actual days' credit under section 2933.1, based on the carjacking
conviction. Mallard was ordered delivered to the California Department of Corrections
and Rehabilitation (CDCR).
On March 10, 2015, the superior court granted a petition under Proposition 47
filed by Mallard as to the possession of marijuana conviction, recalled the eight-month
felony sentence for that crime, and imposed a misdemeanor term for that crime of 240
days to run consecutively to the three-year prison term for carjacking. The superior court
also released Mallard from parole on the possession of marijuana conviction. The
superior court did not change the prior order as to credits.
On August 1, 2016, Mallard, having completed his prison term for carjacking, was
transferred from CDCR to the South Bay Detention Facility to serve his misdemeanor
consecutive term of 240 days for possession of marijuana. Mallard's projected release
date was set for February 4, 2017.
On August 23, 2016, Mallard filed a motion to receive 50 percent conduct credits
under section 4019 for his possession of marijuana jail term, and not to be limited to 15
percent conduct credits under section 2933.1 based on the carjacking conviction. The
prosecution opposed the motion.
3
On September 15, 2016, the superior court held a hearing on the motion and
denied it. In denying the motion, the superior court found People v. Hamlin (2009) 170
Cal.App.4th 1412 (Hamlin) instructive.
On November 2, 2016, Mallard filed a notice of appeal. About two weeks later,
Mallard filed the instant petition and a motion to consolidate his petition with his appeal
in case No. D071295.
This court issued an order to show cause, gave the People the option to file a
return within 15 days of the order, gave Mallard the option to file a traverse within 10
days of the filing of the return, and denied Mallard's motion to consolidate the instant
petition and the appeal.
The People subsequently filed a return, and Mallard then filed a traverse.
DISCUSSION
The issue presented here is a pure question of law. Does section 2933.1 apply to
Mallard's sentence after his felony conviction for possession of marijuana was
reclassified as a misdemeanor under Proposition 47? For the reasons discussed below,
we answer this question in the affirmative.
A defendant in a felony or misdemeanor case is entitled to actual custody credit
for time served in county jail before sentencing for the same conduct, including partial
days. (§ 2900.5, subd. (a);2 People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).)
2 Section 2900.5, in relevant part, states: "(a) In all felony and misdemeanor
convictions . . . when the defendant has been in custody, . . . all days of custody of the
defendant . . . credited to the period of confinement pursuant to Section 4019, . . . shall be
4
This credit for "actual days" served is also known as "credit for time served." (People v.
Jacobs (2013) 220 Cal.App.4th 67, 77 (Jacobs).)
A defendant in a felony or misdemeanor case may also earn additional presentence
credits against his or her sentence, called "conduct credits," for performing assigned labor
(§ 4019, subd. (b)), and for complying with applicable rules and regulations (§ 4019,
subd. (c)). (Buckhalter, supra, 26 Cal.4th at p. 30; People v. Saibu (2011) 191
Cal.App.4th 1005, 1011.) The purpose of conduct credits is to encourage good behavior
by incarcerated defendants before sentencing. (People v. Guzman (1995) 40 Cal.App.4th
691, 695.)
For a crime committed on or after October 1, 2011, a defendant accrues conduct
credits at a rate of two days for every four days in actual custody. (§ 4019, subds. (b),
(c), (f); People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358-1360.) All of the
presentence credits, actual and conduct, are credited against the defendant's imposed term
of imprisonment. (§ 2900.5, subd. (a); People v. Sage (1980) 26 Cal.3d 498, 502.)
In contrast, once a defendant begins serving his or her felony prison sentence, the
defendant is governed by an entirely different scheme for earning credits to shorten the
period of incarceration. (Buckhalter, supra, 26 Cal.4th at p. 31.) For every six months of
continuous incarceration of a determinate sentence served in state prison, most prisoners
receive six months of "worktime credit" toward their terms in prison. (§ 2933, subd. (b);
credited upon his or her term of imprisonment . . . . If the total number of days in custody
exceeds the number of days of the term of imprisonment to be imposed, the entire term of
imprisonment shall be deemed to have been served."
5
Buckhalter, supra, 26 Cal.4th at p. 31.) However, under section 2933.1,3 if a person is
convicted of a violent felony listed in section 667.5, subdivision (c) and is sentenced to
state prison, the person's presentence conduct credits and postsentence worktime credits
are both limited to 15 percent. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.)
Specifically, conduct credits cannot exceed 15 percent of the "actual period of
confinement." (§ 2933.1, subd. (c); Jacobs, supra, 220 Cal.App.4th at p. 79.) The
purpose of section 2933.1 is to " ' "protect the public from dangerous repeat offenders
who otherwise would be released." ' " (People v. Marichalar (2003) 144 Cal.App.4th
1331, 1337.) Because section 2933.1 applies to the offender and not the offense, the
statute limits a violent felon's conduct credits for all counts of conviction that encompass
the entire prison term, regardless of whether each count falls under section 667.5.
(Valenti, supra, at p. 1184; Jacobs, supra, at p. 85.)
3 Section 2933.1 provides: "(a) Notwithstanding any other law, any person who is
convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933. [¶] (b) The 15-
percent limitation provided in subdivision (a) shall apply whether the defendant is
sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or
sentenced under some other law. However, nothing in subdivision (a) shall affect the
requirement of any statute that the defendant serve a specified period of time prior to
minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for
credit be eligible for credit pursuant to this section. [¶] (c) Notwithstanding Section 4019
or any other provision of law, the maximum credit that may be earned against a period of
confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city
jail, industrial farm, or road camp, following arrest and prior to placement in the custody
of the Director of Corrections, shall not exceed 15 percent of the actual period of
confinement for any person specified in subdivision (a). [¶] (d) This section shall only
apply to offenses listed in subdivision (a) that are committed on or after the date on which
this section becomes operative."
6
In Hamlin, supra, 170 Cal.App.4th 1412, the appellate court addressed the
application of section 2933.1 when a defendant also is sentenced for a misdemeanor. In
that case, the trial court sentenced the defendant to life in prison for torture, imposed and
stayed determinate terms for four other felony convictions, and sentenced the defendant
to three consecutive terms of 180 days for three counts of misdemeanor child abuse.
(Hamlin, supra, at p. 1421.) The defendant's torture conviction was a violent felony
subject to the 15 percent limitation under section 2933.1. (Hamlin, supra, at pp. 1476-
1477.) At sentencing, the trial court applied the 15 percent limitation to the three
consecutive 180-day misdemeanor terms and to the life sentence for torture (after service
of the minimum seven years). (Id. at p. 1477.) On appeal the defendant argued it was
error for the trial court to apply the 15 percent limitation to the time deemed served on
the misdemeanors. (Ibid.)
In analyzing the applicability of section 2933.1 to the defendant's misdemeanor
terms, the appellate court concluded:
"There is nothing in the statute that restricts application of the 15
percent limit when some portion of the presentence jail time will
ultimately be applied to satisfy jail terms on misdemeanor
convictions sentenced contemporaneously with the felony conviction
that triggers the application of section 2933.1. The statute simply
says that when a person is convicted of a qualifying felony,
worktime/conduct credits for any time served in jail from arrest to
sentencing shall not exceed 15 percent, period. Thus, the statute
does not compel, or even support, the result defendant advocates."
(Hamlin, supra, 170 Cal.App.4th at p. 1478.)
Here, the People argue that the holding in Hamlin, supra, 170 Cal.App.4th 1412applies to Mallard's sentence. They note that Mallard's consecutive eighth-month felony
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term for possession of marijuana was imposed contemporaneously with the three-year
term for carjacking, the felony conviction that triggered the 15 percent conduct credit
limitation under section 2933.1. The People acknowledge that Mallard's eight-month
term for possession of marijuana was subsequently reduced to a misdemeanor under
Proposition 47. Nevertheless, they maintain this reduction does not impact the
application of section 2933.1. The People emphasize that, under Hamlin, if the
possession of marijuana conviction had been a misdemeanor when the contemporaneous
sentencing for the carjacking occurred, the 15 percent credit limitation found in section
2933.1 would still apply.
In contrast, Mallard insists Hamlin, supra, 170 Cal.App.4th 1412 is not helpful to
the People's argument. First, he attempts to distinguish Hamlin from the instant matter
factually. He points out that the defendant in Hamlin received a life sentence plus three
180-day consecutive sentences for three misdemeanors that he was convicted of along
with torture and other felonies. In regard to the instant matter, Mallard states he already
served his felony prison term of three years with the 15 percent credit limitation of
section 2933.1 and his misdemeanor is a probation violation. Mallard, however, does not
explain why these factual differences are significant. We find that the underlying facts
here involving the type of crime committed and when the crime was committed do not
adequately distinguish the instant matter from Hamlin. Mallard's argument overlooks
that he was contemporaneously sentenced for his carjacking and possession of marijuana
offenses. Moreover, he fails to address the fact that his carjacking felony is listed as a
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violent felony under section 667.5. In short, the factual differences between Hamlin and
the instant matter do not lead us to conclude that Hamlin is not applicable here.
Next, Mallard focuses on the court's analysis of section 2933.1, subdivision (c) in
Hamlin, supra, 170 Cal.App.4th 1412 and argues that the court failed to consider
subdivisions (a) and (d). He, however, fails to explain why this omission matters here.
Section 2933.1, subdivision (a) states, "[n]otwithstanding any other law, any person who
is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933." It is undisputed
that Mallard was convicted of a felony offense listed in section 667.5, subdivision (c).)
Thus, it is unclear how subdivision (a) supports Mallard's position.
Likewise, Mallard's reliance on section 2933.1, subdivision (d) is equally puzzling.
That subdivision provides, "[t]his section shall only apply to offenses listed in
subdivision (a) that are committed on or after the date on which this section becomes
operative." Mallard does not argue that he committed his carjacking offense before the
date on which section 2933.1 became operative. Again, Mallard does not explain why
subdivision (d) renders Hamlin, supra, 170 Cal.App.4th 1412 inapplicable here.
Mallard's real argument against the application of section 2933.1 to the remainder
of his sentence is that section 2933.1 does not apply when a defendant has already served
his or her prison term and is back in local custody serving a term based on a
misdemeanor. We reject this contention. As we discuss above, the court in Hamlin,
supra, 170 Cal.App.4th 1412 determined that the custody limitation in section 2933.1
applies when a defendant is convicted of a violent felony under section 667.5,
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subdivision (c) and contemporaneously sentenced to consecutive sentences for the violent
felony as well as other offenses, even if the other offenses are misdemeanors. (Hamlin,
supra, at p. 1478.) Put differently, if Mallard's offense of possession of marijuana had
been a misdemeanor at the time Mallard was originally sentenced, under Hamlin, section
2933.1 would have applied. There is nothing compelling us to find section 2933.1
inapplicable after Mallard successfully petitioned the superior court, under Proposition
47, to reclassify his felony possession offense to a misdemeanor.
Additionally, contrary to Mallard's contentions, nothing in Proposition 47
necessitates a different result. "Proposition 47 makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors). Proposition 47 (1)
added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5,
490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a,
496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (People v.
Rivera (2015) 233 Cal.App.4th 1085, 1091.)
"Proposition 47 also created a new resentencing provision—section 1170.18.
Under section 1170.18, a person 'currently serving' a felony sentence for an offense that
is now a misdemeanor under Proposition 47, may petition to recall that sentence and
request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria
shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless
the court, in its discretion, determines that resentencing the petitioner would pose an
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unreasonable risk of danger to public safety.' (Id., subd. (b).)" (People v. Lynall (2015)
233 Cal.App.4th 1102, 1109.)
Here, it is undisputed that Mallard properly received a reclassification of his
felony conviction for possession of marijuana to a misdemeanor under Proposition 47. In
addition, there is no argument that it was not proper for the superior court to sentence
Mallard to serve his remaining 240 days in a local jail. However, Mallard insists because
his felony was reclassified under Proposition 47, his reclassified possession of marijuana
offense must be treated as a "misdemeanor for all purposes" under section 1170.18,
subdivision (k). Mallard thus contends that he is entitled to section 40194 credits because
his offense is now a misdemeanor for all purposes. In support of his position, he relies on
Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro N.).
In Alejandro N., supra, 238 Cal.App.4th 1209, we held that Proposition 47 applies
to juvenile defendants, that Alejandro N. was entitled to have his second degree burglary
conviction reclassified as a misdemeanor, and that he was entitled to have his DNA
records retained as a consequence of his conviction (§ 296) expunged from the database
(§ 299), "unless there [was] another basis to retain it apart from his mere commission of
the reclassified misdemeanor offense." (Alejandro N., supra, at p. 1217.) Mallard's
reliance on Alejandro N. is misplaced because, in that case, without a felony conviction,
the state had no right to retain Alejandro N.'s DNA. In other words, the offense that
4 Section 4019 provides that certain misdemeanants meeting specific qualifications
can receive 50 percent custody credits while confined in a or committed to a county jail,
industrial farm, road camp, or city jail. (§ 4019, subds. (b), (c); see People v. Whitaker,
supra, 238 Cal.App.4th at p. 1358.)
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allowed the state to retain Alejandro N.'s DNA no longer existed. In contrast, Mallard's
reclassified misdemeanor offense was not the offense that required the application of the
credit limitation of section 2933.1. Mallard's carjacking offense was the violent felony
that triggered section 2933.1; thus, unlike the reclassification of Alejandro N.'s felony
offense to a misdemeanor, the reclassification of Mallard's felony possession of
marijuana offense to a misdemeanor did not impact section 2933.1 whatsoever.
Therefore, Alejandro N. is not instructive here.
Nevertheless, Mallard asserts that section 2933.1 cannot apply to his misdemeanor
offense because at the time his felony was reclassified, he had finished his prison term for
carjacking. In support of his position, he cites In re Reeves (2005) 35 Cal.4th 765(Reeves) and In re Tate (2006) 135 Cal.App.4th 756 (Tate).
Reeves is of no help to Mallard. There, the defendant received concurrent
sentences, not consecutive sentences like Mallard. Indeed, our high court noted the
difference between consecutive and concurrent sentences, observing that "[w]e may
confidently assume that an offender serving a sentence that combines consecutive terms
for violent and nonviolent offenses is subject to the credit restriction imposed by section
2933.1[, subdivision] (a) for the entire sentence." (Reeves, supra, 35 Cal.4th at p. 772;
italics omitted.) Thus, if anything, Reeves actually undermines Mallard's petition here.
Similarly, Tate, supra, 135 Cal.App.4th 756 is not useful to Mallard. In that case,
the petitioner received a prison sentence for a violent felony offense, which triggered
section 2933.1. During his imprisonment, he committed a nonqualifying offense. He
received a consecutive sentence for the latter offense, but service of this sentence was not
12
to commence until he had served his sentence for the qualifying offense. The Court of
Appeal concluded the fully consecutive sentence for the nonqualifying offense was not
subject to section 2933.1, subdivision (a). (Tate, supra, at pp. 763-766.) The instant
matter does not concern such a sentence; therefore, we find Tate unhelpful to our instant
analysis.5
Finally, we are not persuaded by Mallard's argument that allowing the state to
impose the 15 percent custody credit limitation for his misdemeanor sentence violates the
federal and state equal protection clauses. Here, Mallard claims he was treated
differently than a person who committed a misdemeanor before the enactment of
Proposition 47. Not so. There is no equal protection violation because Mallard was
treated the same under section 2933.1 as a person who had been convicted of and
sentenced to consecutive sentences, based in part on a misdemeanor, along with a
qualifying felony under section 2933.1, before the enactment of Proposition 47. As such,
Mallard cannot show the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th
821, 836.) His equal protection claim thus fails.
5 We also summarily reject Mallard's contention that the rule of lenity entitles him
to relief. The rule of lenity applies where there is ambiguity and two reasonable
interpretations of a statute stand in relative equipoise. (People v. Osuna (2014) 225
Cal.App.4th 1020, 1035.) Here, we find no such circumstance exists. Section 2933.1
applies to Mallard, and section 1170.18 does not alter its application.
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DISPOSITION
The petition is denied.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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