P. v. Moats CA4/1 ( 2013 )

Filed 3/18/13 P. v. Moats CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061406
Plaintiff and Respondent,
v. (Super. Ct. No. SCD233864)
ANTHONY ERIC MOATS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Margie G.
Woods, Judge. Affirmed.
Anthony Eric Moats appeals a judgment sentencing him to two years in prison
after he pleaded guilty to one count of possessing a controlled substance. (Health & Saf.
Code, § 11350, subd. (a).) Moats contends the statutory construction of Penal Code1
section 4019 and principles of equal protection entitle him to additional presentence
1 All further statutory references are to the Penal Code unless otherwise specified.
custody credits. We 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. We further conclude section 4019 does not violate
principles of equal protection of the federal or state Constitutions (U.S. Const., 14th
Amend.; Cal. Const., art. I, § 7, subd. (a)), and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2011, the police conducted a fourth amendment waiver search of
Moats's residence. In Moats's bedroom the police discovered one hydrocodone pill, three
morphine pills, and two hydromorphone pills. A used syringe and three narcotics
smoking devices were also found. The police arrested Moats and he was charged with
three counts of possessing a controlled substance, and possessing narcotics paraphernalia
(Health & Saf. Code, §§ 11350, subd. (a), 11364).
Moats 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,
§ 35.) Moats then pleaded guilty to one count of possessing a controlled substance and,
following a motion by the prosecution, the court dismissed the remaining charges and
enhancement allegations. On December 21, 2011, the court sentenced Moats to prison
for the middle term of two years. The court awarded him a total of 338 days of custody
credits consisting of 226 days for actual time spent in local custody awaiting trial and
2 Section 4019 was amended in 2011 in conjunction with the 2011 Realignment
Legislation (Realignment Act), which addressed public safety. (Stats. 2011, ch. 15, § 1;
see § 1170, subd. (h).)
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sentencing (§ 2900.5, subd. (a)), and 112 days of conduct credits for good behavior
(§ 4019, subd. (c)).
DISCUSSION
Under section 4019, defendants are entitled to earn additional credit towards 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 Moats, 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 Moats 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."
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Moats committed his offenses on April 21, 2011. At sentencing, the court applied
the former version of section 4019 in effect at the time Moats committed his crime.
Moats 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 argues the award of only 112 days of conduct
credits violated both the terms of section 4019 as amended and his right to equal
protection.
Before examining issues of statutory construction or equal protection, we note that
Moats forfeited any argument of entitlement to additional conduct credits. At sentencing,
immediately after awarding Moats 112 days of conduct credits, the court asked both
parties if they wished to be heard on the matter. Moats's counsel did not object to the
conduct credit award at that time. By not objecting to the award of conduct credits,
Moats 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 Moats's statutory
construction and equal protection arguments. (See, e.g., People v. Norman (2003) 109
Cal. App. 4th 221, 229-230 [court examined sentence to determine if cruel and unusual
despite defendant's waiver of argument].)
A. Statutory Construction
Moats 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
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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
imply 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 (Rajanayagam).) 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. (Ibid.) Moats'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.)
Moreover, California follows the time-honored legal principle that 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.)
Therefore, statutes ambiguous with respect to retroactive application are to be construed
as unambiguously prospective. (Ibid.; 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
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particular offense. (In re Estrada (1965) 63 Cal. 2d 740, 748.) However, section 4019
merely addresses future conduct; it does not alter the penalty for any particular crime and
thus that exception is not applicable here. (People v. Ellis (2012) 207 Cal. App. 4th 1546,
1551; see also People v. Brown (2012) 54 Cal. 4th 314, 325 (Brown)).
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 Rajanayagam, supra, 211 Cal.App.4th at p. 52 [§ 4019, subd. (h) merely
reaffirms that defendants who committed their crimes before October 1, 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. Thus, Moats's argument that
statutory construction requires modification of his conduct credit award is not persuasive.
B. Equal Protection
Moats 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.) Moats asserts that were section
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4019 interpreted to apply only to crimes committed on or after October 1, 2011, it would
violate equal protection principles.
1. Classes Not Similarly Situated
To succeed on a claim under the equal protection clause, Moats 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; 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.
Moats asserts the primary purpose of awarding conduct credits is to reward those
defendants who perform additional work and behave. However, 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). Although the end result may be that
prisoners are indeed rewarded for performing additional work and behaving, the primary
reason section 4019 was enacted is to encourage good behavior, not simply to reward it.
Relying on Rajanayagam, Moats also contends that even if the primary purpose of
awarding conduct credits is to provide an incentive to work and behave, both classes have
an incentive to work and behave but a defendant who committed a crime before the
operative date is rewarded less. (Rajanayagam, supra, 211 Cal.App.4th at pp. 52-53.)
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Therefore, Moats believes section 4019 necessarily creates a classification that affects
two similarly situated groups in an unequal manner. 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." (People v.
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, 396-397.) Although
Brown examined whether section 4019 should be applied retroactively to all prisoners,
the logic is nonetheless applicable here.
Additionally, even were we to conclude 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 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 incentives. Contrary to
Moats's claims, the two groups are not similarly situated and, as a result, the analysis of
his equal protection claims does not proceed to the next step of the level of review.
2. Rational Basis Review is the Proper Level of Scrutiny
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
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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.' " (People v. 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 that the distinctions drawn by the law are 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 classification bears a rational relation to some independent and legitimate
legislative end." (Romer v. Evans (1996) 517 U.S. 620, 621.)
In his reply brief Moats argues the appropriate standard of analysis in a case
involving conduct credit is the strict scrutiny test because liberty is a fundamental
interest. Having concluded the two groups are not similarly situated, we need not
determine whether a strict scrutiny or rational basis test applies. Further, although Moats
raised an equal protection claim in his opening brief, he did not argue or discuss the
specific issue of the appropriate standard to be applied. Thus, discussion of the level of
review in his reply brief is not timely. (People v. Baniqued (2000) 85 Cal. App. 4th 13,
29; Utz v. Aureguy (1952) 109 Cal. App. 2d 803, 807-808.)
However, contrary to Moats'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
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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 Moats 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, these cases no longer stand for the proposition Moats 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." (People v. Wilkinson,
supra, 33 Cal.4th at p. 837.)
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
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incentives for good behavior." (People v. Brown, supra, 54 Cal.4th at p. 325.) The
proper test for issues concerning conduct credits is rational basis review.
3. A Rational Relationship to a Legitimate State Purpose Exists
Assuming the state had 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. We must note
that 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.)
Moats argues that because one of the purposes of both the Realignment Act and
the amendment to section 4019 was to more cost-effectively manage 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 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 (2003)
31 Cal. 4th 179, 188 ["[d]efendant has not cited a single case, in this state or any other,
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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 earning results, under the rational relationship test, the
Legislature is permitted to "experiment individually with various therapeutic programs
related to 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
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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 conclude the classifications
established in section 4019 bear a rational relationship to a legitimate state interest.
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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