Filed 1/12/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Petitioner, E061292
v. (Super.Ct.No. CR57387)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
LEONARD JOSEPH RANGEL,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of prohibition/mandate. Edward
D. Webster, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) The petition is denied.
Paul E. Zellerbach, District Attorney, Michael A. Hestrin, District Attorney, and
Emily R. Hanks, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
1
Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public
Defender, for Real Party in Interest.
In this petition for extraordinary relief the People challenge an order of the
superior court declining to place real party in interest Leonard Joseph Rangel on
“community supervision” (Pen. Code, § 3451,1 subd. (a))2 following his release from
prison. We agree with the trial court’s decision and will deny the petition.
STATEMENT OF FACTS
In 1996, real party in interest (Rangel) was convicted of felon in possession
(former § 12021, subd. (a)(1)) and two misdemeanors. As a “third striker” (former § 667,
subds. (b) & (e)), he received an indeterminate sentence of 25 years to life.
In 2012 the electorate, by initiative measure (Proposition 36), amended section 667
so that many of those defendants who have two prior strikes but whose current conviction
is not for a “serious and/or violent felony” are subject only to a doubled base term
sentence (§ 667, subd. (e)(1)) rather than the minimum 25-to-life terms reserved for more
serious current violators. (§ 667, subd. (e)(2)(A)(ii).) At the same time, the electorate
added section 1170.126 as a mechanism by which inmates sentenced as “third strikers”
under the old law could seek to be resentenced under the new provisions, if they would
1 All subsequent statutory references are to the Penal Code.
2 Real party in interest filed a Request for Judicial Notice with this court on
June 10, 2015. We hereby grant said request.
2
have been subject only to the lesser term had they been sentenced under the new law and
met specified other requirements.
In November 2012 Rangel filed such a request, which the court granted on April 9,
2014. Rangel was resentenced to the upper term of three years for the weapons offense,
doubled to six years, plus three additional prior prison term enhancements (§ 667.5,
subd. (b)) for a total of nine years.
This order is not in dispute.3 Due to the nature of his current conviction, Rangel
would normally have been subject upon release to a period of “community supervision”
under section 3451, part of the “Postrelease Community Supervision Act of 2011” (the
Act). That statute provides that except for more serious offenders, as described, inmates
released from prison on or after October 1, 2011, are subject to a new program of
community supervision for a period not to exceed three years. (§ 3451, subd. (a).)
Serious offenders remain subject to the existing system of parole governed by
sections 3000 ff. The trial court here offered Rangel the choice of whether to participate
in the community supervision program, but Rangel declined.4
3 The court’s records do not reflect that any notice of appeal was filed from the
order.
4The trial court explained to Rangel the benefits of supervision, including the
possibility of referrals to counseling and substance abuse assistance as well as job finding
help. It also pointed out that if Rangel did not comply with the conditions of supervision,
he could be returned to custody. Rangel declined.
3
The trial court’s remarks reflected its belief that having served over 18 years in
custody, Rangel had in essence completed both his new term and any period of
postconviction supervision to which he might otherwise be subject. Section 2900.5,
subdivision (a), provides generally that all periods of time spent in confinement by a
convicted defendant are to be “credited upon his or her term of imprisonment.” “Term of
imprisonment” is then defined to include “any term of imprisonment, including any
period of imprisonment prior to release on parole and any period of imprisonment and
parole, prior to discharge . . . .” Hence, if an inmate accrues excess credits stemming
from actual confinement, the excess is applied to reduce the maximum statutory period of
parole. (See In re Ballard (1981) 115 Cal.App.3d 647, 649 (Ballard).) The court
therefore presumably applied Rangel’s excess credits to wipe out any period of
community supervision, which could not exceed three years. (§ 3455, subd. (e).)
It cannot be disputed that community supervision and parole serve precisely the
same purpose—to facilitate the successful reintegration into society of those released
from prison, while protecting the public by active supervision of the former inmate.
(§§ 3000, subd. (a)(1) [parole], 3450, subd. (b)(5) [community supervision].) Indeed, the
express purpose of the Act was simply to shift the responsibility for supervising certain
released inmates to local jurisdictions. Mandated conditions for community supervision
mirror those typically imposed on parolees, such as warrantless searches, waiver of
extradition, and weapons and travel restrictions. (§ 3453, subd. (h).) Both programs of
supervision are limited to three years for most offenders. (§§ 3000, subd. (b)(2)(A),
4
3455, subd. (e).) Former inmates under both programs may be returned to custody for
violating the conditions of release. (§§ 3057, subd. (a), 3455, subd. (a)(1).) Several
statutes, indeed, apply equally to both sets of offenders and treat them as equivalent.
(E.g., § 3015, subd. (d) [authorizing participation in a “reentry court” program by both
groups].)
The People’s challenge to the trial court’s failure to place Rangel under
community supervision was based on the theory that such supervision is by statute
mandatory, which is not disputed, to the extent that parole is also mandatory. The People
also pointed out that section 2900.5, subdivision (a), as quoted above, does not include
the term of community supervision as one which may be reduced by excess credits,
although it does expressly include the period of parole.5
Defendant Rangel in this case casts the problem in terms of a violation of the equal
protection clause. He asserts that he is similarly situated with those released from prison
who are subject to parole, and that there is no rational basis for applying excess credits to
a parole term but not a community supervision term. We agree.
To the extent that Rangel argues that the enactment of section 1170.126 created a
new class of defendants/inmates in the “excess credits” situation—that is, “third strikers”
who obtained resentencing after serving many years in prison but who would be subject to
5 Section 2900.5 was amended in 2011 to include periods spent on home detention
as credits, but was not amended to address the creation of the community supervision
program.
5
postrelease community supervision rather than parole6—the proposed class is too
narrow.7 While it is probably true that the resentencing provisions of section 1170.126
will substantially increase the number of former inmates with excess credits, “third
strikers” are not a distinct group from those who have gained credits through correction
of errors, or who have simply served more presentence time than the length of the
sentence they ultimately receive.8 It is from this perspective that we analyze the equal
protection argument: are parolees and those subject to community supervision similarly
6 Because only those “third strikers” whose most recent offense is relatively minor
can seek resentencing, and such offenders are also subject to community supervision
rather than parole.
7 It is hard to disagree with the trial court’s view that a period of supervision and
assistance would be of benefit to real party in interest Rangel after his extended
incarceration. Arguably a provision denying the application of “excess credits” to a
community supervision claim would be logical for inmates who had served lengthy terms
before being resentenced. However, section 2900.5 does not create subclasses of “excess
credits” inmates subject to community supervision, and we do not decide whether such
subclasses could properly be created by the Legislature. We also note that not all inmates
sentenced as third strikers and later resentenced will have served terms substantially
longer than that to which they are resentenced; this depends on the timing of the
conviction as well as the sentence eventually imposed. Thus, a “bright line” might well
be difficult to draw.
8 Acting upon a hint from our Supreme Court, and with the concurrence of the
Attorney General, this court recently vacated a defendant’s conviction for the substantive
gang felony described in section 186.22, subdivision (a). The defendant had acted alone,
and in People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court held that the
statute could only be violated if the defendant acted in association with at least one other
gang member. Hence, the defendant’s conduct did not constitute a crime and the
conviction had to be vacated. (See People v. Mutch (1971) 4 Cal.3d 389.) Given the
uncertainty prior to Rodriguez, a considerable number of defendants convicted of
violating section 186.22, subdivision (a), may eventually wind up with “excess credits”
after successfully attacking the conviction.
6
situated, and if so, may “excess credits” be applied to parole terms but not to the period to
be served on community supervision?
We have pointed out above some of the obvious similarities between parole and
community supervision both with respect to function and intent. The People summarize
the bases for distinguishing between those subject to parole and those eligible for
community supervision (primarily the type of conviction offense) and note some of the
distinctions between the two programs, e.g., that parolees, but not those subject to
community supervision, may be returned to prison.9 These arguments are unpersuasive.
In our view all forms of postrelease supervision that subject inmates to
substantially comparable restrictions, control, and potential re-incarceration are
equivalent for analytical purposes and persons subject to the types of postrelease
supervision discussed are similarly situated. The next question is whether the distinction
for which the People argue may be lawfully drawn.10
9 As noted above, the latter group may also be returned to custody, but in city or
county facilities. Among the other distinctions cited is that while community supervision
may be terminated early by the court (§ 3456, subd. (a)), “the court does not have the
authority to terminate parole early.” This is a specious argument; although courts cannot
terminate parole early, a parolee’s good behavior for a specified period triggers automatic
early termination of parole unless the Board of Parole Hearings determines that parole
should be continued. (See, e.g., § 3001, subd. (a)(1).) Thus, early termination is
available to both groups.
10 In People v. Espinoza (2014) 226 Cal.App.4th 635, Division Six of the Second
District held that inmates subject to community supervision were not entitled to apply
excess credits against that period. Although the discussion is in part framed in terms of
“equal protection,” the court’s analysis focuses on the permissibility of distinguishing
between inmates sentenced before the Act (and thus subject to parole) and those
[footnote continued on next page]
7
The Constitution11 does not forbid uneven treatment of persons or groups. The
essence of an equal protection claim is that two groups, similarly situated with respect to
the law in question, are treated differently. (Grossmont Union High School Dist. v. State
Dept. of Education (2008) 169 Cal.App.4th 869, 892.) While most classifications will be
upheld if there is a “rational basis” for drawing distinctions, a law that interferes with a
fundamental constitutional right or involves a suspect classification is subject to strict
scrutiny and must be justified by a compelling state interest. (People v. Lynch (2012) 209
Cal.App.4th 353, 358.)
Numerous cases uphold the prospective application of statutes reducing the
punishment for an offense by applying the “rational basis” test and finding prospective
application of the law to be justified. In such cases the courts must uphold legislation if
any reasonably conceivable set of facts could supply justification for the distinctions.
(People v. Turnage (2012) 55 Cal.4th 62, 74.) However, other cases apply the “strict
scrutiny” test to laws that result in different periods of custody for those in the same time
frame. (See cases collected in People v. Cruz (2012) 207 Cal.App.4th 664, 676-679;
[footnote continued from previous page]
sentenced thereafter (and thus subject to community supervision). We have no quarrel
with the court’s view that the ex post facto clause does not bar drawing such a distinction.
Therefore, there is no need to express any view on the correctness of the result in
Espinoza. The same is true for the decision in People v. Tubbs (2014) 230 Cal.App.4th
578, 584-586, which follows Espinoza without considering an equal protection claim.
11Fourteenth Amendment to the United States Constitution; Article I, section 7,
subdivision (a) of the California Constitution.
8
cf. People v. Turnage, supra, at p. 74.) In our view a distinction that frees one offender
from postrelease supervision while imposing potentially onerous and invasive restrictions
on the other does impact a fundamental right. However, under either standard the
distinction affected here cannot withstand examination.
Here the People attempt to justify the distinction by arguing that parole is “more
onerous” than community supervision, focusing on the potential return to state prison and
the possibility that parole may “far exceed three years.” But we have noted that persons
subject to community supervision may also be returned to custody; and for the majority of
parolees, the standard parole term is three years. We have also noted that parole may be
terminated early, contrary to the People’s assertion. Thus, the argument that the
Legislature may have rationally considered that allowing parolees to apply their excess
credits to the “more onerous” parole while refusing this remedy to those under community
supervision does not hold water. Both programs are currently designed to release inmates
from formal supervision as soon as reasonably possible, depending on their behavior and
consistent with public safety, and there is no statutory restriction on the conditions that
may be imposed on those under community supervision—other than those which also
apply to parole conditions.12 The policy considerations applicable to the two groups are
identical and offer no basis for unequal treatment.
12 Section 3454, subdivision (a), allows the “supervising county agency” to
impose conditions of supervision in addition to those required by section 3453, so long as
these discretionary conditions are “reasonably related to the underlying offense . . . or to
the offender’s risk of recidivism, and the offender’s criminal history.” This is generally
[footnote continued on next page]
9
Another consideration is that if there were a reason to distinguish between the two
groups with respect to excess credits, the more logical distinction would be to afford a
reduced or eliminated period of supervision to those released after relatively minor
convictions. But compared to those subject to community supervision, parolees have in
general suffered the more serious recent convictions, and therefore arguably are more in
need of supervision. Yet under the People’s approach, these parolees are entitled to apply
excess credits to the parole term, while those subject to community supervision after less
serious offenses are not.
The People’s argument is also undercut by the fact that the benefits of
section 1170.126 are not available to the most violent offenders13 and inmates found by
the court to “pose an unreasonable risk . . . to public safety” may not be resentenced.
(§ 1170.126, subd. (f).) That is, resentencing (and thus community supervision) is
reserved for inmates deemed minimal risks for violent recidivism. On the other hand, the
only inmates currently subject to parole are serious or violent felons, those who have been
[footnote continued from previous page]
consistent with the requirement that conditions of parole are valid unless they relate to
conduct not itself criminal, has no relationship to the crime of which the parolee was
convicted, and requires or forbids conduct which is not reasonably related to future
criminality. (See People v. Lent (1975) 15 Cal.3d 481, 486.)
13 Pursuant to subdivision (e)(3) of section 1170.126 and its cross-reference to
section 667, subdivision (e)(2)(C)(iv), inmates are ineligible if they have been convicted
of violent sex offenses, specified child sex offenses, any homicide or solicitation to
commit murder, assaults with a machine gun on a police officer or firefighter, possession
of a weapon of mass destruction, or any other felony punishable by life imprisonment or
death.
10
sentenced as “third strikers,” high risk sex offenders, and mentally ill offenders. (§ 3451,
subd. (b).)
To summarize, the most recent conviction or convictions of all inmates subject
to community supervision are relatively minor, and inmates resentenced under
section 1170.126 have never been convicted of egregiously violent offenses; they have
further been currently found not to present undue risk to the public. By contrast, inmates
subject to parole all fall into one or more categories of serious and obvious risk. Yet the
latter can use excess credits to reduce or wipe out parole supervision, while under the
People’s approach inmates subject to community supervision cannot so use their excess
credits. Even under the “rational basis” test, the distinction drawn by the People is simply
unreasonable.14
When a court determines, as we do, that a statutory classification violates the
constitutional guarantee of equal protection of the laws, it has a choice of remedies. It
may either withdraw the benefits of a statute from the favored group, or extend the benefit
to the excluded class, and may also invalidate a statute or expand its reach. (People v.
Hofsheier (2006) 37 Cal.4th 1185, 1207; Burnham v. Public Employees’ Retirement
System (2012) 208 Cal.App.4th 1576, 1588.) In this case the choice is relatively simple.
In enacting subdivision (a) of section 2900.5, the Legislature clearly recognized that
14 It may be suggested that inmates released to parole have the opportunity to
participate in prerelease transitional programs not available to inmates such as petitioner
whose release was not predictable so that parole might be less essential for their success
after release. There is no evidence in the record to this effect.
11
persons who have served time in excess of that to which they were eventually sentenced
should receive credit for that time against postrelease periods of restriction and control.
We would extend that rule to those facing community supervision. Hence, real party in
interest Rangel was not subject to such supervision.
DISPOSITION
The petition is denied.
CERTIFIED FOR PUBLICATION
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
12