Filed 2/27/13 P. v. Paris 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E056096

v.                                                                       (Super.Ct.No. SWF1101895)

PAUL ERIC PARIS,                                                         OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.

(Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         John F. Schuck, 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, Melissa Mandel, and Meredith S.

White, Deputy Attorneys General, for Plaintiff and Respondent.



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       Defendant and appellant Paul Eric Paris appeals following a guilty plea, asserting

that the trial court abused its discretion in imposing the upper term on the principal count

and that he is entitled, as a matter of equal protection, to presentence conduct credits at

the two-for-two rate provided for in the current version of Penal Code section 4019.

       We find no abuse of discretion, and we reject defendant’s equal protection

argument.

                                PROCEDURAL HISTORY

       Defendant was charged with willful infliction of corporal injury on a spouse or

cohabitant, resulting in traumatic condition (Pen. Code, § 273.5, subd. (a); count 1);1

evading a peace officer (Veh. Code, § 2800.2; count 2); and criminal threats (§ 422;

count 3). The information also alleged one prison prior. (§ 667.5, subd. (b).)

       A jury trial commenced on January 23, 2012. Following the testimony of the

victim, Jane Doe, defendant informed his attorney that he wished to plead guilty. Despite

failing to reach a plea bargain with the prosecutor, defendant chose to plead guilty on all

counts and to admit the prison prior.

       The court referred the case to the probation department for a report and set a

sentencing date. At the sentencing hearing, the court sentenced defendant to the upper

term of four years on count 1, a consecutive term of eight months on count 2, and a

consecutive one-year term for the prison prior. The court imposed a concurrent term of


       1 All further statutory citations refer to the Penal Code unless another code is
specified.


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eight months on count 3 and stayed it pursuant to section 654. The court awarded

presentence credits and ordered victim restitution as determined by the probation

department. It imposed appropriate fines, assessments and fees.

       Defendant filed a timely notice of appeal and obtained a certificate of probable

cause to challenge the sentence as violative of his state and federal constitutional rights.

                                           FACTS

       On August 10, 2011, defendant was living with Jane Doe, his fiancée. They went

to the home of a neighbor, Curtis Hartwell. They had a drink or two while visiting with

Hartwell and then returned home. Doe and defendant drank most of a bottle of vodka

and two quarts of beer while playing dominoes. An argument started when defendant

wanted to go somewhere but Doe wanted to stay home. The argument escalated, and

defendant sought to restrain Doe from leaving. He put his hands on her and perhaps hit

her. Doe eventually ran to Hartwell’s house. She told Hartwell that defendant had hit her

and asked if she could come in.

       A few minutes later, defendant came to Hartwell’s house and asked if he could

come in. Defendant was initially conciliatory toward Doe. He brought a burrito and tried

to get her to eat. When she refused, defendant became enraged and began choking her.

Hartwell pulled defendant off her, and Doe ran into the bedroom and closed the door.

Defendant entered the bedroom and grabbed Doe. She fell to the floor, and he began

kicking her and stomping her in the back.




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       At some point during the altercation, Hartwell called 911. He also intervened

again and got defendant away from Doe.

       When the police arrived, Doe, defendant and Hartwell were all standing outside

Hartwell’s house. Hartwell told the officer that defendant had “jumped” Doe and slapped

her and “choked her out.” Defendant walked away, ignoring the officer’s order to stop.

He got into a car and drove away. Another police unit pursued defendant with overhead

lights illuminated, but defendant did not stop, running four stop signs during the pursuit.

Defendant returned to the street on which Hartwell lived and turned the vehicle toward

Hartwell, Doe and the officer. He accelerated toward them, but lost control of the

vehicle, hit the curb and then collided with a brick planter. When defendant was taken

into custody, officers found a large kitchen knife in his possession.

       As a result of the altercation, Doe had bruises on her neck, arms and back.




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                                    LEGAL ANALYSIS

                                              1.

   IMPOSITION OF THE UPPER TERM ON COUNT 1 WAS NOT AN ABUSE OF

                                        DISCRETION

       Defendant contends that the trial court abused its discretion in imposing the upper

term of four years on count 1. He contends that the aggravating factors identified in the

probation report are either inapplicable or unsupported by the evidence, and that the court

failed to take into account defendant’s expression of remorse as a mitigating factor.

       The Attorney General first contends that defendant forfeited his right to challenge

the court’s exercise of sentencing discretion because he did not object at the sentencing

hearing to the factors the court relied upon. Such a claim may be forfeited by failure to

object, but only “when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the

court intends to impose and the reasons that support any discretionary choices’ [citation],

and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to

errors in the sentence. The parties are given an adequate opportunity to seek such

clarifications or changes if, at any time during the sentencing hearing, the trial court

describes the sentence it intends to impose and the reasons for the sentence, and the court

thereafter considers the objections of the parties before the actual sentencing.” (People v.

Gonzalez (2003) 31 Cal.4th 745, 752.) “It is only if the trial court fails to give the parties

any meaningful opportunity to object that the Scott[2] rule becomes inapplicable.” (Ibid.)

       2   People v. Scott (1994) 9 Cal.4th 331.


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Here, the trial court did not announce its tentative sentencing choice at the outset of the

hearing or allow further argument once it did announce its intention to impose the upper

term as recommended by the probation report. Consequently, defendant did not forfeit

this claim for appeal.

       Nevertheless, the claim is without merit. Subject to certain prohibitions not

pertinent here, trial courts have broad discretion in identifying and applying factors in

aggravation. An exercise of legal discretion which is grounded on reasoned judgment

and guided by the applicable legal principles and policies must be upheld on appeal. An

abuse of discretion occurs if the court relies upon circumstances that are not relevant to

the decision or otherwise constitute an improper basis for decision. (People v. Sandoval

(2007) 41 Cal.4th 825, 847.)

       “‘The burden is on the party attacking the sentence to clearly show that the

sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a

showing, the trial court is presumed to have acted to achieve legitimate sentencing

objectives, and its discretionary determination to impose a particular sentence will not be

set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th

968, 977-978.) Defendant has not met that burden. An aggravating circumstance is a

fact “that makes the offense ‘distinctively worse than the ordinary.’ [Citations.]”

(People v. Black (2007) 41 Cal.4th 799, 817.) Even if we assume that defendant is

correct that several of the factors in aggravation listed in the probation report were

inappropriate under the specific circumstances of this case, it is by no means an abuse of



                                              6
discretion to consider defendant’s abuse of Jane Doe distinctively worse than ordinary

instances of spousal or cohabitant abuse. Under section 273.5, subdivision (a), the

element of willful infliction of corporal injury resulting in a traumatic condition is

satisfied when a “direct application of force” by the defendant on the victim causes

injury. (People v. Jackson (2000) 77 Cal.App.4th 574, 577-578.) A single slap to the

face resulting in even a minor injury suffices. (See People v. Abrego (1993) 21

Cal.App.4th 133, 137-138 [Fourth Dist., Div. Two].) Here, defendant choked Doe,

resulting in bruising to her neck, and kicked and stomped her repeatedly, resulting in

bruising to her arms and back. This goes far beyond what is necessary to constitute a

violation of section 273.5, subdivision (a). A single valid aggravating factor may be

deemed sufficient to outweigh any potentially mitigating factor. (People v. Osband

(1996) 13 Cal.4th 622, 728.) Accordingly, imposition of the upper term on the basis of

that aggravating factor was not an abuse of discretion.

       Defendant also contends that the court abused its discretion by failing to consider

mitigating factors, including defendant’s “dire financial and physical problems,” his

intoxication at the time of the offenses and his remorse, as expressed by his decision to

plead guilty after seeing how upset Jane Doe was by the events and by having to testify.

However, these potentially mitigating factors were brought to the court’s attention, and in

the absence of any explicit statement by the court to the contrary, it is assumed that the

court properly exercised its legal duty to consider all possible mitigating and aggravating

factors in determining the appropriate sentence. (People v. Oberreuter (1988) 204



                                              7
Cal.App.3d 884, 888;3 People v. Kelley (1997) 52 Cal.App.4th 568, 582.) Defendant has

failed to persuade us that it was an abuse of discretion to give greater weight to the

aggravated nature of the offense in count 1 than to any or all of these mitigating factors.

                                              2.

   APPLYING SECTION 4019 SOLELY TO DEFENDANTS WHOSE OFFENSES

  WERE COMMITTED AFTER OCTOBER 1, 2011 DOES NOT VIOLATE EQUAL

                               PROTECTION PRINCIPLES

       A defendant is entitled to actual custody credit for “all days of custody” in county

jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a);

People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 provides that a criminal

defendant may earn additional presentence credit against his or her sentence for

performing assigned labor (§ 4019, subd. (b)), and for complying with applicable rules

and regulations of the local facility (§ 4019, subd. (c)). These presentence credits are

collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.)

       Section 4019 has been amended multiple times. Before January 25, 2010,

defendants were entitled to one-for-two conduct credits, which is two days for every four

days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended

by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) Effective January 25, 2010, the


       3 People v. Oberreuter, supra, 204 Cal.App.3d 884 was disapproved on an
unrelated point in People v. Walker (1991) 54 Cal.3d 1013, 1022. People v. Walker was
itself overruled on the same ground, unrelated to the issue in this case, in People v.
Villalobos (2012) 54 Cal.4th 177, 183.


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Legislature amended section 4019 to provide that prisoners, with some exceptions,

earned one-for-one conduct credits, which is two days of conduct credit for every two

days in custody. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) Effective

September 28, 2010, the Legislature again amended section 4019. (Stats. 2010, ch. 426,

§§ 1, 2, 5.) Subdivisions (b) and (g) restored the one-for-two presentence conduct credit

calculation that had been in effect prior to the January 25, 2010, amendment.

       Most recently, the Legislature amended section 4019 to provide for up to two days

credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) &

(c).) This scheme reflects the Legislature’s intent that if all days are earned under section

4019, a term of four days will be deemed to have been served for every two days spent in

actual custody. (§ 4019, subd. (f).) This version of section 4019 became operative on

October 1, 2011. (Stats. 2011, ch. 39, § 53.)

       Defendant contends that applying the current version of section 4019 to

defendants whose offenses were committed after October 1, 2011, but not to those, such

as defendant, who were sentenced after October 1, 2011 for crimes committed before

October 1, 2011, violates equal protection principles.4

       In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court

addressed contentions that the version of section 4019 effective on January 25, 2010,




       4   Defendant’s offenses took place on or about August 10, 2011.



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must be held to apply retroactively, in part because prospective application would violate

the equal protection clauses of the state and federal Constitutions. The court stated:5

       “The concept of equal protection recognizes that persons who are similarly

situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]

Accordingly, ‘“[t]he first prerequisite to a meritorious claim under the equal protection

clause is a showing that the state has adopted a classification that affects two or more

similarly situated groups in an unequal manner.”’ [Citation.] ‘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.”’ [Citation.]

       “. . . [T]he important correctional purposes of a statute authorizing incentives for

good behavior [citation] are not served by rewarding prisoners who served time before

the incentives took effect and thus could not have modified their behavior in response.

That prisoners who served time before and after former section 4019 took effect are not

similarly situated necessarily follows.” (Brown, supra, 54 Cal.4th at pp. 328–329, italics

added.)

       The court rejected the argument that its decision in People v. Sage (1980) 26

Cal.3d 498 (Sage) required a contrary conclusion. (Brown, supra, 54 Cal.4th at pp. 329–

330.) The version of section 4019 at issue in Sage authorized presentence conduct credit

for misdemeanants who later served their sentence in county jail, but not for felons who


       5
       The discussion of Brown which follows is excerpted, with minor alterations,
from People v. Ellis (2012) 207 Cal.App.4th 1546, 1551-1552.


                                             10
ultimately were sentenced to state prison. The Sage court found this unequal treatment

violative of equal protection, as it found no “rational basis for, much less a compelling

state interest in, denying presentence conduct credit to” felons. (Sage, at p. 508.)

       Brown acknowledged that one practical effect of Sage “was to extend presentence

conduct credits retroactively to detainees who did not expect to receive them, and whose

good behavior therefore could not have been motivated by the prospect of receiving

them.” (Brown, supra, 54 Cal.4th at p. 329.) Nevertheless, it declined to read Sage in

such a way as to foreclose a conclusion “that prisoners serving time before and after

incentives are announced are not similarly situated.” (Brown, at p. 330.) Brown

explained: “The unsigned lead opinion ‘by the Court’ in Sage does not mention the

argument that conduct credits, by their nature, must apply prospectively to motivate good

behavior. A brief allusion to that argument in a concurring and dissenting opinion

[citation] went unacknowledged and unanswered in the lead opinion. As cases are not

authority for propositions not considered [citation], we decline to read Sage for more than

it expressly holds.” (Brown, at p. 330.)

       Finally, Brown rejected the notion the case before it was controlled by In re

Kapperman (1974) 11 Cal.3d 542 (Kapperman), the case on which defendant relies in

this case. In Kapperman, the court held that equal protection required retroactive

application of a statute granting credit to felons for time served in local custody before

sentencing and commitment to state prison, despite the fact that the statute was expressly

prospective. (Brown, supra, 54 Cal.4th at p. 330.) Brown found Kapperman



                                             11
distinguishable: “Credit for time served is given without regard to behavior, and thus

does not entail the paradoxical consequences of applying retroactively a statute intended

to create incentives for good behavior. Kapperman does not hold or suggest that

prisoners serving time before and after the effective date of a statute authorizing conduct

credits are similarly situated.” (Brown, at p. 330.)

       In People v. Ellis, supra, 207 Cal.App.4th 1546, the court found Brown’s equal

protection reasoning applicable to the current version of section 4019.6 (People v. Ellis,

supra, at p. 1552.) We agree with that court’s analysis. Accordingly, we reject

defendant’s claim that he is entitled to additional conduct credits at the rate provided for

by current section 4019.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                McKINSTER
                                                                                               J.


We concur:

HOLLENHORST
          Acting P. J.

CODRINGTON
                           J.

       6 In People v. Lara (2012) 54 Cal.4th 896, the California Supreme Court noted in
a footnote that the same equal protection analysis applies to the current version of section
4019. (People v. Lara, supra, at p. 906, fn. 9.) This statement is dictum, in that no equal
protection claim under the current version of section 4019 was raised in that case.


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