Filed 10/6/20 P. v. Higareda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079521
Plaintiff and Respondent,
(Super. Ct. No. 18CR-05346)
v.
JESSICA HIGAREDA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Stephanie-Louise Jamieson for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Meehan, J. and DeSantos, J.
Defendant Jessica Higareda was released to a pretrial electronic monitoring
program. At sentencing, she was given no conduct credits for her time on pretrial
electronic monitoring. On appeal, she contends that the denial of conduct credits for
pretrial electronic monitoring violated constitutional equal protection principles. The
People agree. We accept the People’s concession, remand the matter to the trial court to
award full conduct credits for defendant’s pretrial electronic monitoring, and affirm in all
other respects.
PROCEDURAL SUMMARY
On October 5, 2018, the Merced County District Attorney charged defendant with
residential burglary (Pen. Code, §§ 459, 462, subd. (a);1 count 1), and four counts of
receiving stolen property (§ 496, subd (a); counts 2, 3, 4 & 5).
On December 5, 2018, the trial court released defendant on a pretrial electronic
monitoring program (§ 1203.018).
On March 21, 2019,2 defendant pled no contest to count 1 and the court dismissed
counts 2 through 5 on the prosecutor’s motion.
On April 16, defendant filed a motion for an award of conduct credits for her time
served on pretrial electronic monitoring. She argued that since persons in postsentence
electronic monitoring receive conduct credits, equal protection required that persons in
pretrial electronic monitoring also receive conduct credits.
On May 16, the trial court denied defendant’s motion, deciding that it would
award actual custody credits but deny conduct credits for defendant’s time served on
pretrial electronic monitoring. On the same date, the trial court sentenced defendant to
three years on felony probation, required her to serve one year in jail as a condition of
probation, and continued the matter for a hearing on calculation of credits.
1 All further statutory references are to the Penal Code unless otherwise stated.
2 All further dates refer to the year 2019.
2.
On June 12, the trial court awarded 205 days of actual credit for the time spent in
jail and on pretrial electronic monitoring and 64 days of conduct credit for the time
served in jail.
On June 20, defendant filed a notice of appeal.
DISCUSSION3
Defendant argues that, because participants in pretrial and postsentence home
detention programs are similarly situated for purposes of conduct credit eligibility, and
because participants in postsentence home detention programs are awarded conduct
credits, it is a violation of constitutional equal protection principles for participants in
pretrial home detention to not also receive conduct credits. The People agree, as do we.
We begin with the constitutional guarantees of equal protection of the laws.
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ ‘ “[N]o person or class of persons
shall be denied the same protection of the laws which is enjoyed by other persons or other
classes in like circumstances in their lives, liberty and property and in their pursuit of
happiness.” [Citations.]’ ” (People v. Yanez (2019) 42 Cal.App.5th 91, 95 (Yanez).)
Similarly situated persons may “ ‘not be treated differently unless the disparity is
justified.’ ” (Ibid.) A defendant advancing an equal protection claim must therefore
establish that he or she is similarly situated to a class of persons receiving better
treatment and that the better treatment is not justified. (Ibid.)
Pretrial and postsentence home detention programs are governed by different
statutes. “Section 1203.018 authorizes counties to offer a program under which pretrial
detainees being held in a county jail or correctional facility may participate in a home
detention program under specified conditions.” (Yanez, supra, 42 Cal.App.5th at p. 93;
accord § 1203.018, subd. (b).) “Section 1203.016, by contrast, governs home detention
3 Because defendant raises only sentencing issues, the facts underlying the offenses
are not relevant and are omitted from this opinion.
3.
postsentencing. It authorizes counties to create electronic home detention programs in
which certain inmates may be placed ‘during their sentence,’ under specified conditions,
‘in lieu of confinement in a county jail or other county correctional facility or program.’ ”
(Yanez, at p. 94, quoting § 1203.016, subd. (a).) The conditions for participation in
pretrial and postsentence home detention programs are virtually identical. (Compare
§ 1203.016, subd. (b)(1)–(4) with § 1203.018, subd. (d)(1)–(4); Yanez, at p. 94.)4
Despite the similarities between the statutes, as defendant correctly notes, only
postsentence home detainees are awarded conduct credits pursuant to section 4019.
(§ 4019, subd. (a)(7) [authorizing awarding of custody credits for postsentence detainees
pursuant to § 1203.016 but making no mention of pretrial detainees under § 1203.018].)
The court in Yanez considered this issue and concluded that pretrial and
postsentence detainees are similarly situated for purposes of eligibility for conduct credits
(Yanez, supra, 42 Cal.App.5th at p. 98), yet are disparately treated without a “legitimate,
much less a compelling, reason” for the difference in treatment (Id. at p. 100). (See
generally id. at pp. 95–101.) We agree. “ ‘[U]nder the current statutory framework, a
pre[ ]trial jail detainee and post[ ]sentence jailed convict both receive conduct credits’ ”
(id. at p. 100; § 4019, subd. (a)(1), (4), & (6)), whereas a pretrial home detainee receives
no conduct credits, but a postsentence home detainee does receive conduct credits (Yanez,
at p. 100; § 4019, subd. (a)(7)). “ ‘There is no legitimate reason for this to be so.’ ”
(Yanez, at p. 100.) Defendant must be awarded the same conduct credits for pretrial
home detention that would be awarded to a postsentence home detainee.
4 Both statutes require a participant to “remain within the interior premises of his or
her residence during” designated hours (§§ 1203.016, subd. (b)(1); 1203.018,
subd. (d)(1)), “admit any person … designated by the correctional administrator into his
or her residence at any time” for compliance checks (§§ 1203.016, subd. (b)(2);
1203.018, subd. (d)(2)), use “electronic monitoring … devices” (§§ 1203.016,
subd. (b)(3); 1203.018, subd. (d)(3)), and agree to serve any remaining sentence in a
correctional facility if the defendant is not in compliance with various participation
conditions (§§ 1203.016, subd. (b)(4); 1203.018, subd. (d)(4)).
4.
DISPOSITION
We remand the matter for the trial court to calculate the amount of conduct credit
for which defendant is entitled under section 4019. The trial court is directed to issue a
minute order reflecting the amended credits calculation and forward a copy to the
appropriate entities. In all other respects, the judgment is affirmed.
5.