Filed 2/20/14 P. v. Quintana CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064486
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10900047)
                   v.

JIMMY ZAPATA QUINTANA,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
         Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren
K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Jimmy Zapata Quintana was sentenced to four years eight months in prison after
being convicted of three crimes as a result of beating his wife.1 The sentence was stayed
and Quintana was placed on probation. Approximately one year after the sentencing
hearing, the probation department filed a petition alleging Quintana violated the terms
and conditions of his probation. After a contested hearing, the trial court agreed,
terminated Quintana’s probation, and ordered him to complete his sentence in prison.
This appeal is from that order.
       Quintana claims two errors occurred, which we must remedy. First, he presents
two theories to support his argument that the trial court erred when it imposed the four-
year eight-month sentence. We conclude we do not have jurisdiction to consider these
arguments because Quintana did not appeal in a timely manner from the judgment that
imposed the sentence.
       Second, Quintana contends his right to equal protection of the laws was violated
because he was not given custody credits for the time spent in jail at the rate provided for
in Penal Code section 40192 at the time he was sent to prison, but instead was awarded
custody credits at the lower rate provided for in section 4019 at the time his crime was
committed. When section 4019 was amended, the Legislature included a provision
limiting application of the increased credits to those defendants who had committed
crimes on or after the effective date of the amendment. We conclude, as have the other
courts that have considered the issue, that this distinction does not violate the Fourteenth
Amendment. Accordingly, we will affirm the judgment.




       1Quintana  and the victim were married on August 21, 2010; the beating was
inflicted in 2009. We will refer to the victim as “wife” or “victim” to ease the reader’s
task.
       2All   statutory references are to the Penal Code unless otherwise stated.



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                     FACTUAL AND PROCEDURAL SUMMARY
        A detailed recitation of the facts leading to the charges against Quintana is
unnecessary to resolve this appeal. It is sufficient to note the information charged
Quintana with inflicting corporal injury to a spouse (§ 273.5, subd. (a)), battery causing
serious bodily injury (§ 243, subd. (d)), and making criminal threats (§ 422). The charges
resulted from a beating inflicted by Quintana on his wife when she informed him she
wanted to terminate their relationship. A jury found Quintana guilty of inflicting corporal
injury on a spouse, not guilty of battery causing serious bodily injury but guilty of the
lesser included offense of battery, and guilty of making a criminal threat.
        On January 11, 2011, Quintana was sentenced to four years for infliction of
corporal injury and eight months for making criminal threats, for a total prison term of
four years eight months. He was sentenced to time served on the battery count. The
sentence was stayed and Quintana was placed on probation for five years, the terms of
which included 365 days in jail, enrollment in a batterer’s treatment program, and an
order prohibiting any contact between Quintana and the victim. The trial court also
informed Quintana that he had the right to appeal the judgment and orders of the court,
and informed him that if he chose to appeal, any notice of appeal must be filed within 60
days.
        On February 24, 2012, Quintana was found to be in violation of his probation for
missing a court hearing and having contact with the victim. The trial court lifted the stay
on the prison sentence, revoked probation, and ordered Quintana to serve four years eight
months in prison.
                                       DISCUSSION
I.      Section 654 and the Merger Doctrine
        Quintana first argues the trial court erred when it imposed sentence on the
infliction of corporal injury on a spouse and the battery counts. He asserts that battery is
a lesser included offense of infliction of corporal injury on a spouse and therefore the two

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counts merged. In the alternative, he contends section 654 required any sentence on the
battery count be stayed.
       The People point out the time to appeal this error, if any error occurred, was in an
appeal from the original judgment, not from the violation of probation order. To support
their argument, the People cite California Rules of Court, rule 8.308, which requires a
notice of appeal to be filed within 60 days after rendition of judgment, and Penal Code
section 1237, subdivision (a), which provides that a defendant may take an appeal from a
final judgment of conviction, and also provides that an order granting probation is
deemed to be a final judgment.
       The People also cite People v. Mendez (1999) 19 Cal.4th 1084, 1094 (Mendez),
which holds that the failure to file a timely notice of appeal divests the appellate court of
jurisdiction: “A timely notice of appeal, as a general matter, is ‘essential to appellate
jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in
the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual:
The delay cannot be waived, it cannot be cured by a nunc pro tunc order, and the
appellate court has no power to give relief, but must dismiss the appeal on motion or on
its own motion.’ [Citation.] The purpose of the requirement of a timely notice of appeal
is, self-evidently, to further the finality of judgments by causing the defendant to take an
appeal expeditiously or not at all.”
       Quintana did not address this issue in his opening brief. In his reply brief he
argues the sentence can be challenged at any time, regardless of the failure to file a timely
notice of appeal because the trial court was without jurisdiction to impose the sentence it
did.
       Quintana’s argument reflects a misunderstanding of the term “jurisdiction.” He
relies on People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653
(American Contractors) to support his argument, yet the explanation of jurisdiction given
in the case clearly explains why he is wrong.

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               “The term ‘jurisdiction,’ ‘used continuously in a variety of
       situations, has so many different meanings that no single statement can be
       entirely satisfactory as a definition.’ [Citation.] Essentially, jurisdictional
       errors are of two types. ‘Lack of jurisdiction in its most fundamental or
       strict sense means an entire absence of power to hear or determine the case,
       an absence of authority over the subject matter or the parties.’ [Citation.]
       When a court lacks jurisdiction in a fundamental sense, an ensuing
       judgment is void, and ‘thus vulnerable to direct or collateral attack at any
       time.’ [Citation.]

               “However, ‘in its ordinary usage the phrase “lack of jurisdiction” is
       not limited to these fundamental situations.’ [Citation.] It may also ‘be
       applied to a case where, though the court has jurisdiction over the subject
       matter and the parties in the fundamental sense, it has no “jurisdiction” (or
       power) to act except in a particular manner, or to give certain kinds of
       relief, or to act without the occurrence of certain procedural prerequisites.’
       [Citation.] ‘“[W]hen a statute authorizes [a] prescribed procedure, and the
       court acts contrary to the authority thus conferred, it has exceeded its
       jurisdiction.”’ [Citation.] When a court has fundamental jurisdiction, but
       acts in excess of its jurisdiction, its act or judgment is merely voidable.
       [Citations.] That is, its act or judgment is valid until it is set aside, and a
       party may be precluded from setting it aside by ‘principles of estoppel,
       disfavor of collateral attack or res judicata.’ [Citation.] Errors which are
       merely in excess of jurisdiction should be challenged directly, for example
       by motion to vacate the judgment, or on appeal, and are generally not
       subject to collateral attack once the judgment is final unless ‘unusual
       circumstances were present which prevented an earlier and more
       appropriate attack.’ [Citations.]” (American Contractors, supra, 33
       Cal.4th at pp. 660-661.)
       For this argument to prevail, Quintana would have to establish the trial court acted
without “jurisdiction in its most fundamental or strict sense,” which means the trial court
must not have had jurisdiction over the parties or the subject matter. (American
Contractors, supra, 33 Cal.4th at p. 660.) This is where the argument fails because the
trial court had jurisdiction over both Quintana, who appeared at trial, and the subject
matter of the action, a serious felony committed by Quintana in Fresno County. Thus, the
judgment was not void. If there is merit to Quintana’s argument, an issue we do not
address, it was subject to an attack on a timely appeal. (Id. at p. 661.) Quintana’s failure



                                              5.
to pursue a timely appeal divests this court of jurisdiction, requiring us to dismiss the
appeal on this issue. (Mendez, supra, 19 Cal.4th at p. 1094.)
II.    Equal Protection and Conduct Credits
       Factual Summary
       Quintana attacked the victim on December 20, 2009. He quickly posted bail and
remained out of custody until the jury returned with a verdict on September 8, 2010. He
remained in custody until he was sentenced on January 11, 2011, at which time he was
credited with 128 days in custody.
       On January 9, 2012, Quintana failed to appear at a hearing, and a bench warrant
was issued for his arrest. He was placed in custody shortly thereafter where he remained
until February 24, 2012, at which time the trial court held the violation of probation
hearing and sentencing. His time in custody was calculated to be 171 days by the
probation department.
       Amendments to section 4019
       Section 4019 allows individuals in local custody to earn additional credit for time
served if they have good behavior and if they are willing to perform work at the direction
of the jail staff. The effect of these credits, which we will refer to as custody credits, is to
reduce the amount of time a defendant convicted of a crime is incarcerated.
       At the time Quintana attacked his victim (December 20, 2009), section 4019
provided that a defendant in jail would earn custody credits at the rate of two days for
every four days of actual time in custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former
§ 4019, subd. (f)].) Effective January 25, 2010, a special session of the Legislature
amended section 4019 to aid the state in addressing a fiscal crisis (special session
amendment). This amendment increased the amount of custody credits earned by most
defendants, but did not apply to various categories of defendants, including defendants
convicted of a serious felony as defined by section 1192.7. (Stats. 2009 3d Ex. Sess.
2009-2010, ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c) & (f)].) Since Quintana was

                                               6.
convicted of a serious felony, this amendment did not change the number of custody
credits he earned.
       Effective September 28, 2010, section 4019 was amended (2010 amendment) to
restore custody credits to the same level they were before the special session amendment.
(Stats. 2010, ch. 426, § 2.) This amendment added subdivision (g) to section 4019, which
provided that the change in custody credits applied only to those defendants incarcerated
for crimes committed on or after the effective date of the amendment.
       The next amendment was the change that forms the basis for Quintana’s argument.
Operative October 1, 2011, section 4019 was amended to provide custody credits at the
rate of two days credit for every two days served in custody (2011 amendment). (Stats.
2011, ch. 15, § 482.) This amendment retained subdivision (g) so that the changes
applied only to defendants who committed crimes on or after October 1, 2011.
       Quintana’s Argument
       When Quintana was convicted, section 4019 subdivisions (b) and (c) differentiated
between defendants convicted of certain felonies. Because Quintana was convicted of a
serious felony (§ 422), he earned two days custody credit for every four days in custody.
(Stats. 2009 3d Ex. Sess. 2009-2010, ch. 28, § 50 [former § 4019, subds. (b)(2), (c)(2) &
(f).) He was incarcerated under this formula until he was released to the in-patient
treatment program.3
       The 2011 amendment was effective when Quintana was incarcerated for violating
probation. Because Quintana committed his crimes in 2009, however, he continued to
earn custody credit at the less favorable rate of two days for every four days spent in




       3Quintana earned credit for the time he spent in the in-patient treatment program.
(§ 2900.5.) Section 4019 does not apply to such programs, however, so no additional
custody credit was earned.



                                             7.
custody. This disparity, according to Quintana, violates his right to equal protection of
the laws as guaranteed by the Fourteenth Amendment to the United States Constitution.
       Analysis
       We conclude there is no equal protection violation.
       People v. Rajanayagam (2012) 211 Cal.App.4th 42 held that granting the
enhanced credits of the 2011 amendment to section 4019 only to those defendants who
committed their offenses on or after October 1, 2011, bears a rational relationship to the
Legislature’s legitimate state purpose of reducing costs. The Rajanayagam court
explained that in choosing October 1, 2011, as the effective date of the amended statute,
“the Legislature took a measured approach and balanced the goal of cost savings against
public safety.” (Id. at p. 55.) It continued, “Under the very deferential rational
relationship test, we will not second-guess the Legislature and conclude its stated purpose
is better served by increasing the group of defendants who are entitled to enhanced
conduct credits when the Legislature has determined the fiscal crisis is best ameliorated
by awarding enhanced conduct credit to only those defendants who committed their
offenses on or after October 1, 2011.” (Id. at p. 56.)
       There is a second rational basis for the classification at issue. In People v.
Kennedy (2012) 209 Cal.App.4th. 385, the appellate court determined the Legislature
rationally could have believed that by making the application of the amendments to
section 4019 dependent on the date of the crime, the deterrent effect of the criminal law
as to the crimes committed before that date was being preserved. (Kennedy, at pp. 398-
399.) The Kennedy court explained: “To reward appellant with the enhanced credits of
the [October] 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



                                              8.
given the rewards (conduct credits) in effect at the time an offense was committed.” (Id.
at p. 399.)
                                    DISPOSITION
       The judgment is affirmed.

                                                               _____________________
                                                                  CORNELL, Acting P.J.


WE CONCUR:


 _____________________
DETJEN, J.


 _____________________
FRANSON, J.




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