Filed 4/10/13 P. v. Lee CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062096

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS251030)

ANDRE SHAMONE LEE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed with directions.



                                                             I.

                                                 INTRODUCTION

         On April 3, 2012, Andre Shamone Lee pled guilty to one count of domestic

violence with corporal injury (Pen. Code, § 273.5, subd. (a))1 (count 1), and admitted

having suffered a prior strike conviction within the meaning of section 667, subdivisions

1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
(b) through (i), and section 668. That same day, the trial court sentenced Lee to a

stipulated sentence of six years in state prison. The trial court awarded Lee a total of 313

days of custody credits, including 209 days of actual custody credits, and 104 days of

conduct credits. The trial court also imposed a restitution fine in the amount of $240, and

imposed and stayed a parole revocation restitution fine in the same amount.

       On appeal, Lee contends that the trial court violated the ex post facto clauses of

the state and federal constitutions in imposing the restitution and parole revocation

restitution fines. Lee also claims that he is entitled to additional conduct credits for jail

time served after October 1, 2011, pursuant to an amendment to section 4019. We reject

Lee's claims and affirm the judgment.

                                                II.

                    FACTUAL AND PROCEDURAL BACKGROUND

       Lee pled guilty to one count of willfully and unlawfully inflicting corporal injury

upon his live-in girlfriend (§ 273.5) (count 1). The offense occurred on or about August

23, 2011.

       At sentencing, the trial court imposed a stipulated six-year sentence, as follows:

            "On count 1 you will be sentenced to the mid-term of three years in
            state prison, which is double[d] because of the strike to six years."

       The court also awarded custody credits, and imposed a restitution fine and a parole

revocation restitution fine, as follows:

            "Your credits . . . are 209 actual, 104 [section] 2933 [, subdivision]
            (e)(3) credits for total credits of 313 days. [¶] There [is] a restitution
            fine of $240, [and] an additional restitution fine of $240 stayed
            pending successful completion of parole . . . ."

                                                2
                                             III.

                                       DISCUSSION

A.     The trial court did not violate the ex post facto clause of either the state or federal
       constitution by imposing a $240 restitution fee and imposing and staying a parole
       revocation restitution fine in the same amount

       Lee claims that the trial court violated the ex post facto clauses of the state and

federal constitutions by imposing a $240 restitution fee and imposing and staying a $240

parole revocation restitution fine in the same amount.

       1.     Governing law

              a.     Ex post facto principles

       The United States Constitution bars the passage of ex post facto laws by state

governments (U.S. Const., art. I, § 10, cl. 1). The California Constitution, article I,

section 9 also bars the Legislature from enacting ex post facto laws. The ex post facto

analysis is the same under both Constitutions. (See In re Vicks (2013) 56 Cal.4th 274.)

       "A statute violates the ex post facto clause[s] when, on its face or as applied, it

retroactively ' "increase[s] the punishment for criminal acts." ' Thus[,] the prohibition on

ex post facto laws prevents the government from changing the punishment for a criminal

act after the act has been performed." (People v. Callejas (2000) 85 Cal.App.4th 667,

670 (Callejas), fns. omitted.) In Callejas, the Court of Appeal noted, "[C]ourts have

consistently held restitution fines qualify as 'punishment' for purposes of the ex post facto

clause." (Ibid.)




                                              3
       b.      The applicable fines at the time of the offense

       At the time of Lee's commission of the August 23, 2011 offense, former section

1202.4 provided:

            "(b) In every case where a person is convicted of a crime, the court
            shall impose a separate and additional restitution fine, unless it finds
            compelling and extraordinary reasons for not doing so, and states
            those reasons on the record.

            "(1) The restitution fine shall be set at the discretion of the court and
            commensurate with the seriousness of the offense, but shall not be
            less than two hundred dollars ($200), and not more than ten
            thousand dollars ($10,000), if the person is convicted of a
            felony . . . ." (Stats. 2011, ch. 45, § 1.)

       At the time of the offense, former section 1202.45 provided:

            "In every case where a person is convicted of a crime and whose
            sentence includes a period of parole, the court shall at the time of
            imposing the restitution fine pursuant to subdivision (b) of Section
            1202.4, assess an additional parole revocation restitution fine in the
            same amount as that imposed pursuant to subdivision (b) of Section
            1202.4. . . ." (Stats. 2007, ch. 302, § 15.)

       Prior to the time of Lee's sentencing, the Legislature amended section 1202.4,

subdivision (b)(1) to provide in relevant part, "The restitution fine shall be set at the

discretion of the court and commensurate with the seriousness of the offense, [but] shall

not be less than two hundred forty dollars ($240) starting on January 1, 2012 . . . ."

(Stats. 2011, ch. 358, § 1, italics added.) Section 1202.45 remained the same in all

material respects.




                                                4
       2.     Application

       We assume for purposes of this decision that the ex post facto clauses of the state

and federal constitutions prohibit a trial court from imposing fines pursuant to sections

1202.4 or 1202.45 that are greater than those authorized pursuant to the applicable statute

at the time of the defendant's commission of the offense as to which the fine is imposed.2

However, in imposing a $240 restitution fine and a $240 parole revocation restitution

fine, the trial court imposed fines that are well within the range of fines authorized at the

time of the Lee's commission of the August 23, 2011 offense. (See former § 1202.4,

subd. (b)(1) [authorizing a fine of "not less than two hundred dollars ($200), and not

more than ten thousand dollars ($10,000)"]; former § 1202.45 [authorizing the imposition

of a parole revocation fine in the "same amount" as the fine imposed pursuant to section

1202.4, subd. (b)(1)].)

       Although Lee is correct that the trial court imposed a $240 restitution fine—an

amount equal to the new minimum fine under the amended version of section 1202.4,

subdivision (b)(1), there is nothing in the record to support Lee's contention that the trial

court imposed the $240 restitution fine "pursuant to the most recent version of Penal

Code section 1202.4." The trial court merely imposed a $240 restitution fine, without

comment. Because the $240 restitution fine was authorized by the statute that was in

effect at the time of Lee's commission of the offense (former § 1202.4, subd. (b)(1)), and




2      The People do not contend otherwise in their brief.
                                              5
there is nothing in the record indicating that the trial court imposed the fine pursuant to

the amended version of the statute, Lee's ex post facto claim fails.

B.     Lee is not entitled to additional conduct credits for jail time served after
       October 1, 2011

       Lee claims that he is entitled to additional conduct credits for jail time served after

October 1, 2011, pursuant to an amendment to section 4019.

       1.       Relevant factual and procedural background

       Lee committed the offense on or about August 23, 2011. Prior to sentencing, Lee

served 209 days in local custody. On April 3, 2012, Lee pled guilty to count 1 and

admitted to having suffered a prior strike. That same day, the trial court sentenced Lee to

state prison.

       2.       Relevant law

                a.     The statutory scheme applicable at the time of Lee's commission
                       of the offense

       At the time of Lee's commission of the offense, former section 4019 provided for

various presentence conduct credits that a prisoner could earn while awaiting sentencing.

The statute provided in relevant part:

            "(f) It is the intent of the Legislature that if all days are earned under
            this section, a term of six days will be deemed to have been served
            for every four days spent in actual custody." (Italics added.) (Stats.
            2010, ch. 426, § 2.)3


3      Although at the time of Lee's commission of the offense, certain defendants could
earn enhanced presentence custody conduct credits while in custody in local jails (former
§ 2933, subd. (e)), it is undisputed that Lee is not eligible for such credits because he has
suffered a prior strike conviction. (See former § 2933, subd, (e)(3) ["Section 4019, and
not this subdivision, shall apply if the prisoner . . . has a prior conviction for a serious
                                                6
             b.    The amended statutory scheme

        Operative October 1, 2011, the Legislature amended section 4019 to increase the

rate at which conduct credits could be earned. The amended statute provides in relevant

part:

             "(f) It is the intent of the Legislature that if all days are earned under
             this section, a term of four days will be deemed to have been served
             for every two days spent in actual custody.

             "[¶] . . . . [¶]

             "(h) The changes to this section enacted by the act [Stats. 2011, ch.
             15] 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. (Stats.
             2011-2012, 1st Ex. Sess., ch. 12, § 35.)

        3.        Lee is not entitled to additional conduct credits pursuant to the text
                  of section 4019

        Lee contends that he is entitled to conduct credits at the enhanced rate under the

amended version of section 4019, for all of the days he served in custody after October 1,

2011. Lee suggests that the second sentence of section 4019, subdivision (h) implies that

credits earned by all prisoners after October 1, 2011 are to be calculated at the enhanced

rate. We are not persuaded.

        Under the version of section 4019 that was in effect at the time Lee committed his

offenses (Aug. 23, 2011), a prisoner confined in a county jail prior to sentencing who

earned all possible conduct credits was entitled to credit for six days for every four days

felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5"].)
(Stats. 2010, ch. 426, § 1.)
                                                 7
spent in actual custody. (Former § 4019, subd. (f).) By amendments that became

operative October 1, 2011, the amount of credit for such prisoners was increased to four

days for every two days spent in actual custody. (Ibid.) However, the amended statutes

provide that the enhanced credits "shall apply prospectively and shall apply to prisoners

who are confined to a county jail . . . for a crime committed on or after October 1, 2011."

(§ 4019, subd. (h), italics added.) Thus, "[t]his favorable change in the law does not

benefit [Lee] because it expressly applies only to prisoners who are confined to a local

custodial facility 'for a crime committed on or after October 1, 2011.' [Citation.]"

(People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.)

       Recent decisions of the Court of Appeal confirm that defendants like Lee, who

committed their crimes before October 1, 2011 but were in presentence custody after that

date, are not entitled to receive credits at the increased rate prescribed by the current

version of section 4019. The Fifth District court held that in enacting subdivision (h) of

section 4019, "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 (2012)

207 Cal.App.4th 1546, 1553 (Ellis).) Following Ellis, and contrary to Lee's interpretation

of the statute, Division Three of this court "read the second sentence [of section 4019,

subdivision (h)] as reaffirming that defendants who committed their crimes before

October 1, 2011, still have the opportunity to earn conduct credits, just under prior law."

(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 52 (Rajanayagam).)

                                              8
       We agree with these holdings and reject Lee's claim that he is entitled to conduct

credits at the increased rate contained in the amended version of section 4019 for the time

he spent in county jail after October 1, 2011.

       4.     The equal protection clauses of the state and federal constitutions
              do not require that Lee receive additional conduct credits pursuant to
              section 4019

       Lee also argues that failing to apply the current version of section 4019 for days

served after October 1, 2011, violates his right to "the equal protection of the laws."

(U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7, subd. (a).)

       The United States Supreme Court has held that the Fourteenth Amendment "does

not forbid statutes and statutory changes to have a beginning, and thus to discriminate

between the rights of an earlier and later time." (Sperry & Hutchinson Co. v. Rhodes

(1911) 220 U.S. 502, 505.) The California Supreme Court similarly has held that

applying a statutory change prospectively only does not violate equal protection

guaranties. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 188–191 [rejecting equal

protection challenge to prospective-only application of proposition that lessened

punishment for offense].)

       Relying in part on this line of cases, California appellate courts have held that

awarding conduct credits at different rates to defendants in presentence custody on or

after October 1, 2011, based on whether they committed their offenses before that date or

on or after that date, does not violate their equal protection rights. (Rajanayagam, supra,

211 Cal.App.4th at p. 55; People v. Kennedy (2012) 209 Cal.App.4th 385, 398

(Kennedy).) The Rajanayagam court reasoned in part:

                                              9
          "[T]he Legislature took a measured approach and balanced the goal
          of cost savings against public safety. The effective date was a
          legislative determination that its stated goal of reducing corrections
          costs was best served by granting enhanced conduct credits to those
          defendants who committed their offenses on or after October 1,
          2011. To be sure, awarding enhanced conduct credits to everyone in
          local confinement would have certainly resulted in greater cost
          savings than awarding enhanced conduct credits to only those
          defendants who commit an offense on or after the amendment's
          effective date. But that is not the approach the Legislature chose in
          balancing public safety against cost savings. [Citation.] Under the
          very deferential rational relationship test,[4] 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." (Rajanayagam, supra, at pp. 55-56.)

       We agree with the Rajanayagam court that applying the current version of section

4019 only to defendants who committed offenses on or after October 1, 2011, "bear[s] a

rational relationship to cost savings." (Rajanayagam, supra, 211 Cal.App.4th at p. 55.)

We also agree with the Kennedy court's observation that there is "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." (Kennedy, supra, 209 Cal.App.4th at p. 399.) We therefore reject Lee's

equal protection challenge to the prospective-only application of the most recent

amendments to section 4019.



4     Contrary to Lee's contention that the "strict scrutiny" standard applies in this
context, California courts have concluded that the rational relationship test applies.
(Rajanayagam, supra, 211 Cal.App.4th at p. 54; Kennedy, supra, 209 Cal.App.4th at p.
397.)
                                            10
C.     The abstract of judgment shall be amended to properly state the trial court's
       sentence on count 1

       The trial court sentenced Lee to a stipulated term of six years on count 1,

consisting of the mid-term of three years, doubled on account of Lee's prior strike

conviction. Lee notes that the abstract of judgment does not reflect the court's imposition

of the mid-term sentence and requests that an amended abstract be prepared. The People

have no objection to Lee's request.

       Accordingly, the abstract of judgment should be amended to reflect the imposition

of a mid-term sentence on count 1, doubled due to the strike prior.

                                            IV.

                                      DISPOSITION

       The judgment is affirmed. The trial court is directed to prepare an amended

abstract of judgment as described in part III.C., ante, and to forward the amended abstract

of judgment to the Department of Corrections and Rehabilitation.



                                                                                AARON, J.

WE CONCUR:


       McDONALD, Acting P. J.


                   O'ROURKE, J.




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