THE PEOPLE,
A162703 (Del Norte County Super. Ct. No. CRF189173)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 4/29/22
CERTIFIED FOR PARTIAL PUBLICATION*
Defendant Jimmy Yang appeals from a judgment after he pled no contest to assault by means of force likely to produce great bodily injury (
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part D of the Discussion.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2018, the People charged defendant with one count of assault with a deadly weapon (
On April 9, 2018, the trial court suspended proceedings pursuant to
In late August 2019, defendant pled no contest to an amended count of assault by means of force likely to produce great bodily injury (
At his May 13, 2021 sentencing hearing, defendant noted that the probation department had recommended he receive only actual time credit and no conduct credit for the time he spent receiving competency treatment in Napa State Hospital. He argued, on equal protection grounds, that because
DISCUSSION
Defendant contends, on equal protection grounds, that he should receive conduct credit under
A. Legal Background: Conduct Credit for IST Defendants Receiving Treatment for Restoration of Competency
Since its enactment in 1976,
In the past, IST defendants were treated in state hospitals or other treatment facilities (
In 2007, the statutory landscape began to change with the enactment of
As pertinent here,
First, in 2018, Senate Bill 1187 amended
Second, in 2021, Senate Bill 317 expanded
These legislative changes give rise to the following questions. First, does Senate Bill 317, which became effective on January 1, 2022, apply retroactively to defendant? If so, then defendant is eligible for the conduct credit he claims. Second, if Senate Bill 317 does not apply retroactively, then do equal protection principles nevertheless require that defendant be afforded the same opportunity for conduct credit that Senate Bill 1187 extended to IST defendants receiving treatment in a county jail facility? If so, then defendant is eligible for the conduct credit he claims, but only starting from the effective date of Senate Bill 1187, January 1, 2019.
B. Senate Bill 317: Retroactivity Analysis
Defendant argues that Senate Bill 317 should apply retroactively to him under In re Estrada (1965) 63 Cal.2d 740 (Estrada). This argument fails under People v. Brown (2012) 54 Cal.4th 314 (Brown). (See also People v. Orellana (2022) 74 Cal.App.5th 319, 334–338 (Orellana).)
In Brown, the California Supreme Court considered a defendant‘s argument that a more generous but ultimately short-lived 2009 amendment to
In light of Brown, we conclude that Senate Bill 317 does not apply retroactively to defendant under Estrada. While we acknowledge the Supreme Court has, in recent years, expanded the retroactivity rule of Estrada beyond what was described in Brown (see Orellana, supra, 74 Cal.App.5th at p. 335, fn. 8), we are constrained by Brown‘s holding that without an express statutory declaration of retroactivity, amendments to
C. Senate Bill 1187: Equal Protection Analysis
1. Similarly Situated
“The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution both prohibit the denial of equal protection of the laws. ‘The equal protection guarantees of [both Constitutions] are substantially equivalent and analyzed in a similar fashion.’ ” (People v. Cruz (2012) 207 Cal.App.4th 664, 674 (Cruz).) “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.” ’ ” (Brown, supra, 54 Cal.4th at p. 328.)
Pursuant to Senate Bill 1187, which became effective January 1, 2019, IST defendants became eligible for conduct credits for the time they spent receiving competency treatment in a county jail facility. This eligibility, however, did not extend to IST defendants receiving competency treatment in a state hospital. The People assume without conceding that the two groups of IST defendants are similarly situated for purposes of assessing the law‘s conduct credit disparity, but they proceed to argue—as will be discussed below—that rational basis review applies and that a rational basis supports the disparate treatment.3
We agree the two groups are similarly situated for purposes of evaluating the conduct credit disparity created by Senate Bill 1187. One purpose of the bill was to “[a]uthorize[] a person committed to a facility pending the restoration of mental competence to earn credits,” though the bill ultimately only authorized defendants treated in jail facilities and not in state hospitals to such credit. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1187 (2017–2018 Reg. Sess.) as amended May 25, 2018, p. 3.) But both groups of defendants are subject to the same IST standards and procedures. (
In reaching this conclusion, we acknowledge that our colleagues in the Sixth District recently rejected a similar equal protection argument in Orellana, supra, 74 Cal.App.5th 319. In Orellana, the defendant had been committed to a state hospital and spent time undergoing treatment for restoration of competency after Senate Bill 1187 took effect. (Orellana, at pp. 322–323, fn. 3.) There the defendant argued that “by righting the disparity in entitlement to section 4019 credits that remained under Senate Bill 1187, Senate Bill 317 upended the notion that there was any rational basis, let alone compelling state interest, for withholding conduct credits from inmates who receive competency treatment in state hospitals while allowing credits to be earned by their county jail facility counterparts.” (Orellana, at p. 339, fn. omitted.) Orellana rejected that argument, explaining that the Supreme Court‘s decision in Brown, supra, 54 Cal.4th 314, “rejected an equal protection challenge to the denial of custody credits at the increased rate under review for individuals who had served their time before enactment of the changes to section 4019” and considered “the forward-looking incentive of custody credits . . . the decisive factor.” (Orellana, at p. 339.) In sum, Orellana characterized Brown as holding that “entitlement to conduct credits is directed at ‘future conduct in a custodial setting’ [citation] and effectively precludes the court from deeming two groups similarly situated for purposes of earning conduct credits when the time in custody preceded the availability of incentive based credits.” (Orellana, at p. 341, italics omitted.)
We respectfully disagree with Orellana to the extent it finds that Brown‘s similarly situated analysis forecloses an equal protection argument based on Senate Bill 1187. In holding that the prospective-only application of the 2009 amendment did not violate equal protection principles, Brown was essentially rejecting the defendant‘s attempt to make an end-run around the amendment‘s non-retroactive application: “[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.)
Unlike the situation in Brown, defendant here is not advocating the position that IST defendants whose confinement for competency treatment predated Senate Bill 1187‘s effective date are similarly situated to IST defendants whose confinement postdated the law‘s effective date. Instead, the instant
Orellana fails to address this distinction, and, in our view, reads Brown too broadly. Orellana seems to view Brown as compelling the conclusion that IST defendants receiving competency treatment in a jail facility and IST defendants receiving competency treatment in a state hospital are not similarly situated because the former group was incentivized to earn conduct credit after Senate Bill 1187‘s enactment while the latter group was not. (See Orellana, supra, 74 Cal.App.5th at p. 341.) But the disparate treatment between these two groups of IST defendants is precisely what is being challenged as unjustified. We cannot agree with Orellana‘s conclusion that IST defendants confined in a state hospital are not similarly situated and so cannot even invoke equal protection because Senate Bill 1187 did not apply to them, even though their behavior might otherwise have qualified for conduct credit under the legislation. Again, in deciding whether persons are similarly situated, we look to whether “ ‘ “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” ’ ” (Brown, supra, 54 Cal.4th at p. 328, italics added.)
In sum, we conclude the two groups of IST defendants are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between them justify the unequal treatment. We proceed to scrutinize the disparity.
2. The Equal Protection Standard of Scrutiny
In considering whether a law violates equal protection, courts apply different levels of scrutiny to different types of classifications. (People v. Wilkinson (2004) 33 Cal.4th 821, 836 (Wilkinson).) “ ‘[I]n cases involving “suspect classifications” or touching on “fundamental interests” . . . courts . . . subject[] the classifications to strict scrutiny.’ ” (Warden v. State Bar (1999) 21 Cal.4th 628, 641Ibid.) “[W]here the law challenged neither draws a suspect classification nor burdens fundamental rights, the question we ask is different. We find a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.” (People v. Chatman (2018) 4 Cal.5th 277, 288–289.)
Defendant contends his equal protection challenge is subject to strict scrutiny because conduct credit eligibility impacts the length of one‘s incarceration, and thus personal liberty. Conversely, the People contend rational basis review applies.
“ ‘[P]ersonal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.’ As unambiguous as this statement is, determining which level of scrutiny applies is not always straightforward where a penal provision is claimed to touch upon a criminal offender‘s liberty interest.” (Cruz, supra, 207 Cal.App.4th at p. 676.) “[C]ourts have
For the reasons that follow, we are persuaded by the Saffell, Sage, and Caruso decisions that strict scrutiny should apply.
In Saffell, a defendant convicted of sex offenses was found to be a mentally disordered sex offender (MDSO) amenable to treatment under the former Mentally Disordered Sex Offenders Act and was committed to a state hospital rather than being sentenced to prison. (Saffell, supra, 25 Cal.3d at pp. 225, 227–228.) He argued he was denied equal protection because he would earn zero conduct credits while committed, whereas he could earn conduct credits if sentenced to prison. (Id. at pp. 227–228.) The Saffell court rejected this, but only after finding a compelling state interest underlying treatment of MDSOs that justified the “legislative determination not to expand the application of ‘good time’ procedures to MDSO commitments.” (Id. at pp. 233–235.)
In Sage, the defendant had also been committed as an MDSO, but he was later sentenced to state prison after being found unamenable to MDSO treatment. (Sage, supra, 26 Cal.3d at p. 501.) Although the Sage court relied on Saffell in rejecting defendant‘s equal protection challenge to the denial of
In Caruso, the defendant contended that conduct credit for his presentence time should be calculated using the “more generous” postsentence formula set out in
The strict scrutiny applied in Saffell, Sage, and Caruso aligns with Waterman, which referenced the compelling state interest test in holding that IST defendants confined for treatment were not entitled to conduct credit like offenders committed to the California Rehabilitation Center for drug addiction. (See Waterman, supra, 42 Cal.3d at pp. 569–571.) Indeed, when determining whether equal protection required the defendant‘s receipt of conduct credit under
In Ward, a defendant challenged the disparity between sentencing for possession of cocaine base and sentencing for possession of powder cocaine. (Ward, supra, 167 Cal.App.4th at pp. 257–258.) Ward applied rational basis review based on the California Supreme Court‘s decision in Wilkinson, supra, 33 Cal.4th 821, which had cautioned that strict scrutiny is not always applicable to equal protection challenges concerning sentencing disparities. (Ward, at p. 258.) Wilkinson, in turn, concerned a similar challenge to a sentencing disparity related to crimes involving battery on a custodial officer and applied rational basis review because “[a] defendant . . . ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ ” (Wilkinson, at pp. 832, 838.) Notably, the Wilkinson court concluded that applying strict scrutiny to the challenged sentencing disparity would be “incompatible with the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment.” (Id. at p. 838.)
Perhaps at a general level, Ward and Wilkinson might be read as providing some fodder for the People‘s position. But Ward and Wilkinson did not concern conduct credit laws, nor did those cases discuss, criticize, or overturn cases like Sage and Saffell, which applied strict scrutiny in the context of conduct credits. Unlike the claims at issue in Ward and Wilkinson, defendant is not pressing some right to a specific sentence for his crime, and resolution of this case does not encroach upon the Legislature‘s power to define crimes and specify punishment. Rather, defendant‘s claim rests on the fact that he faces a longer period of confinement than a hypothetical defendant charged with the same exact crime and found incompetent under the same exact standard, based on variables such as bed availability. (Cal. Code Regs., tit. 9,
As for Rajanayagam, that case concerned an equal protection challenge to prior versions of
Kennedy, supra, 209 Cal.App.4th 385, is similar to Rajanayagam in that it also concerned a defendant relying on equal protection principles in seeking retroactive application of a 2011 amendment to
citing People v. Hofsheier, supra, 37 Cal.4th 1185 and Ward, supra, 167 Cal.App.4th 252.) Like Rajanayagam, Kennedy seemed unaware of Saffell, Sage, and Waterman.
Having concluded that strict scrutiny applies, we proceed to apply that standard.
To reiterate, under strict scrutiny, “ ‘ “the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.” ’ ” (Saffell, supra, 25 Cal.3d at p. 228.)
In this case, the People make no attempt to justify the disparate treatment with a compelling state interest, nor do they contend that the distinctions drawn by the law are narrowly tailored. Instead, having pressed for application of rational basis review, the People tender arguments only under the rational basis standard. Examining the People‘s proffered justifications, we conclude the People have not carried their burden of establishing a compelling state interest that justifies the challenged disparity and the necessity of the distinctions drawn to further that interest.
The People first attempt to justify the law‘s disparate treatment by contending that the availability of conduct credit is an appropriate incentive for IST defendants undergoing competency treatment in a county jail facility but not for IST defendants undergoing treatment in a state hospital. That is, the availability of conduct credit properly incentivizes IST defendants in a jail facility to conform to jail rules, such as refraining from assaultive conduct, but such credit serves no purpose and is unnecessary for IST defendants in a state hospital who have no contact with general population prisoners. We are not convinced.
To begin with, denying conduct credit to IST defendants in a state hospital is not necessary to incentivizing the good behavior of IST defendants in a jail facility. More to the point, state hospitals—like jails—are structured environments governed by various rules. (
The People‘s second proffered justification for the law‘s disparate treatment rests on the circumstance that in 2007, Senate Bill No. 568 authorized county jails as permissible locations for some competency treatment as an “interim” measure until defendants could be admitted to
“Even under deferential rational basis review, a statutory classification must be ‘ “rationally related to [a] ‘realistically conceivable legislative purpose[],’ ” ’ not a ‘ “fictitious purpose[] that could not have been within the contemplation of the Legislature” ’ but is simply invented by the court.” (People v. Yanez, supra, 42 Cal.App.5th at p. 100.) It may be true that in 2007, the Legislature envisioned county jail treatment as an interim measure when it initially permitted jails to administer antipsychotic medication. (See Assem. Com. On Pub. Safety, Rep. on Sen. Bill No. 1187 (2017–2018 Reg. Sess.) as amended May 25, 2018, p. 5.) But that circumstance is not evidence that the Legislature still regarded county jail treatment as an interim measure when it later expanded the role of county jails in treating IST defendants and gave the Department of State Hospitals jurisdiction over county jail treatment facilities under contract to provide competency restoration services. (
The suggestion that the Legislature continues to regard county jail treatment as an interim measure, or that defendants receiving competency treatment in county jail “are not so ill and disoriented that they are incapable of responding to credit incentives,” also seems to ignore the circumstance that, leading up to the time Senate Bill 1187 was passed, there was a long-standing problem with bed availability in state hospitals for treating IST defendants. (See Stiavetti v. Clendenin (2021) 65 Cal.App.5th 691, 699–701, 708–711; see also Off. of Assem. Floor Analyses, 3d reading analysis of Sen. Bill No. 1187 (2017–2018 Reg. Sess.) as amended Aug. 23, 2018, p. 4 [“ ‘The number of incompetent defendants being treated in California‘s state hospitals, developmental centers, and, more recently, county jails has increased steadily over recent decades. . . . Wait lists for placement in state operated treatment facilities continue to grow, impacting the operation of county jails . . . .”]; Assem. Com. on Appropriations, Rep. on Sen. Bill No. 1187 (2017–2018 Reg. Sess.) as amended Aug. 6, 2018, p. 1.) Every defendant found incompetent to stand trial meets the same standard for commitment (
D. Section 2933.1
In their appellate brief, the People contended the amount of credit defendant was awarded should be reduced pursuant to
DISPOSITION
The matter is remanded for resentencing. The trial court is instructed to recalculate defendant‘s credits, and to award conduct credits pursuant to
Fujisaki, J.
WE CONCUR:
Tucher, P. J.
Petrou, J.
A162703
People v. Yang (A162703)
Trial Court: Del Norte Superior Court
Trial Judge: Hon. Robert F. Cochran
Attorneys:
David A. Kaiser, under appointment by Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Ashley Harlan, Deputy Attorneys General, for Plaintiff and Respondent.