Filed 2/27/13 P. v. Paris CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056096
v. (Super.Ct.No. SWF1101895)
PAUL ERIC PARIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge.
(Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Meredith S.
White, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Paul Eric Paris appeals following a guilty plea, asserting
that the trial court abused its discretion in imposing the upper term on the principal count
and that he is entitled, as a matter of equal protection, to presentence conduct credits at
the two-for-two rate provided for in the current version of Penal Code section 4019.
We find no abuse of discretion, and we reject defendant’s equal protection
argument.
PROCEDURAL HISTORY
Defendant was charged with willful infliction of corporal injury on a spouse or
cohabitant, resulting in traumatic condition (Pen. Code, § 273.5, subd. (a); count 1);1
evading a peace officer (Veh. Code, § 2800.2; count 2); and criminal threats (§ 422;
count 3). The information also alleged one prison prior. (§ 667.5, subd. (b).)
A jury trial commenced on January 23, 2012. Following the testimony of the
victim, Jane Doe, defendant informed his attorney that he wished to plead guilty. Despite
failing to reach a plea bargain with the prosecutor, defendant chose to plead guilty on all
counts and to admit the prison prior.
The court referred the case to the probation department for a report and set a
sentencing date. At the sentencing hearing, the court sentenced defendant to the upper
term of four years on count 1, a consecutive term of eight months on count 2, and a
consecutive one-year term for the prison prior. The court imposed a concurrent term of
1 All further statutory citations refer to the Penal Code unless another code is
specified.
2
eight months on count 3 and stayed it pursuant to section 654. The court awarded
presentence credits and ordered victim restitution as determined by the probation
department. It imposed appropriate fines, assessments and fees.
Defendant filed a timely notice of appeal and obtained a certificate of probable
cause to challenge the sentence as violative of his state and federal constitutional rights.
FACTS
On August 10, 2011, defendant was living with Jane Doe, his fiancée. They went
to the home of a neighbor, Curtis Hartwell. They had a drink or two while visiting with
Hartwell and then returned home. Doe and defendant drank most of a bottle of vodka
and two quarts of beer while playing dominoes. An argument started when defendant
wanted to go somewhere but Doe wanted to stay home. The argument escalated, and
defendant sought to restrain Doe from leaving. He put his hands on her and perhaps hit
her. Doe eventually ran to Hartwell’s house. She told Hartwell that defendant had hit her
and asked if she could come in.
A few minutes later, defendant came to Hartwell’s house and asked if he could
come in. Defendant was initially conciliatory toward Doe. He brought a burrito and tried
to get her to eat. When she refused, defendant became enraged and began choking her.
Hartwell pulled defendant off her, and Doe ran into the bedroom and closed the door.
Defendant entered the bedroom and grabbed Doe. She fell to the floor, and he began
kicking her and stomping her in the back.
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At some point during the altercation, Hartwell called 911. He also intervened
again and got defendant away from Doe.
When the police arrived, Doe, defendant and Hartwell were all standing outside
Hartwell’s house. Hartwell told the officer that defendant had “jumped” Doe and slapped
her and “choked her out.” Defendant walked away, ignoring the officer’s order to stop.
He got into a car and drove away. Another police unit pursued defendant with overhead
lights illuminated, but defendant did not stop, running four stop signs during the pursuit.
Defendant returned to the street on which Hartwell lived and turned the vehicle toward
Hartwell, Doe and the officer. He accelerated toward them, but lost control of the
vehicle, hit the curb and then collided with a brick planter. When defendant was taken
into custody, officers found a large kitchen knife in his possession.
As a result of the altercation, Doe had bruises on her neck, arms and back.
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LEGAL ANALYSIS
1.
IMPOSITION OF THE UPPER TERM ON COUNT 1 WAS NOT AN ABUSE OF
DISCRETION
Defendant contends that the trial court abused its discretion in imposing the upper
term of four years on count 1. He contends that the aggravating factors identified in the
probation report are either inapplicable or unsupported by the evidence, and that the court
failed to take into account defendant’s expression of remorse as a mitigating factor.
The Attorney General first contends that defendant forfeited his right to challenge
the court’s exercise of sentencing discretion because he did not object at the sentencing
hearing to the factors the court relied upon. Such a claim may be forfeited by failure to
object, but only “when the trial court ‘clearly apprise[s]’ the parties ‘of the sentence the
court intends to impose and the reasons that support any discretionary choices’ [citation],
and gives the parties a chance to seek ‘clarification or change’ [citation] by objecting to
errors in the sentence. The parties are given an adequate opportunity to seek such
clarifications or changes if, at any time during the sentencing hearing, the trial court
describes the sentence it intends to impose and the reasons for the sentence, and the court
thereafter considers the objections of the parties before the actual sentencing.” (People v.
Gonzalez (2003) 31 Cal.4th 745, 752.) “It is only if the trial court fails to give the parties
any meaningful opportunity to object that the Scott[2] rule becomes inapplicable.” (Ibid.)
2 People v. Scott (1994) 9 Cal.4th 331.
5
Here, the trial court did not announce its tentative sentencing choice at the outset of the
hearing or allow further argument once it did announce its intention to impose the upper
term as recommended by the probation report. Consequently, defendant did not forfeit
this claim for appeal.
Nevertheless, the claim is without merit. Subject to certain prohibitions not
pertinent here, trial courts have broad discretion in identifying and applying factors in
aggravation. An exercise of legal discretion which is grounded on reasoned judgment
and guided by the applicable legal principles and policies must be upheld on appeal. An
abuse of discretion occurs if the court relies upon circumstances that are not relevant to
the decision or otherwise constitute an improper basis for decision. (People v. Sandoval
(2007) 41 Cal.4th 825, 847.)
“‘The burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977-978.) Defendant has not met that burden. An aggravating circumstance is a
fact “that makes the offense ‘distinctively worse than the ordinary.’ [Citations.]”
(People v. Black (2007) 41 Cal.4th 799, 817.) Even if we assume that defendant is
correct that several of the factors in aggravation listed in the probation report were
inappropriate under the specific circumstances of this case, it is by no means an abuse of
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discretion to consider defendant’s abuse of Jane Doe distinctively worse than ordinary
instances of spousal or cohabitant abuse. Under section 273.5, subdivision (a), the
element of willful infliction of corporal injury resulting in a traumatic condition is
satisfied when a “direct application of force” by the defendant on the victim causes
injury. (People v. Jackson (2000) 77 Cal.App.4th 574, 577-578.) A single slap to the
face resulting in even a minor injury suffices. (See People v. Abrego (1993) 21
Cal.App.4th 133, 137-138 [Fourth Dist., Div. Two].) Here, defendant choked Doe,
resulting in bruising to her neck, and kicked and stomped her repeatedly, resulting in
bruising to her arms and back. This goes far beyond what is necessary to constitute a
violation of section 273.5, subdivision (a). A single valid aggravating factor may be
deemed sufficient to outweigh any potentially mitigating factor. (People v. Osband
(1996) 13 Cal.4th 622, 728.) Accordingly, imposition of the upper term on the basis of
that aggravating factor was not an abuse of discretion.
Defendant also contends that the court abused its discretion by failing to consider
mitigating factors, including defendant’s “dire financial and physical problems,” his
intoxication at the time of the offenses and his remorse, as expressed by his decision to
plead guilty after seeing how upset Jane Doe was by the events and by having to testify.
However, these potentially mitigating factors were brought to the court’s attention, and in
the absence of any explicit statement by the court to the contrary, it is assumed that the
court properly exercised its legal duty to consider all possible mitigating and aggravating
factors in determining the appropriate sentence. (People v. Oberreuter (1988) 204
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Cal.App.3d 884, 888;3 People v. Kelley (1997) 52 Cal.App.4th 568, 582.) Defendant has
failed to persuade us that it was an abuse of discretion to give greater weight to the
aggravated nature of the offense in count 1 than to any or all of these mitigating factors.
2.
APPLYING SECTION 4019 SOLELY TO DEFENDANTS WHOSE OFFENSES
WERE COMMITTED AFTER OCTOBER 1, 2011 DOES NOT VIOLATE EQUAL
PROTECTION PRINCIPLES
A defendant is entitled to actual custody credit for “all days of custody” in county
jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a);
People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 provides that a criminal
defendant may earn additional presentence credit against his or her sentence for
performing assigned labor (§ 4019, subd. (b)), and for complying with applicable rules
and regulations of the local facility (§ 4019, subd. (c)). These presentence credits are
collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.)
Section 4019 has been amended multiple times. Before January 25, 2010,
defendants were entitled to one-for-two conduct credits, which is two days for every four
days of actual time served in presentence custody. (Former § 4019, subd. (f), as amended
by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) Effective January 25, 2010, the
3 People v. Oberreuter, supra, 204 Cal.App.3d 884 was disapproved on an
unrelated point in People v. Walker (1991) 54 Cal.3d 1013, 1022. People v. Walker was
itself overruled on the same ground, unrelated to the issue in this case, in People v.
Villalobos (2012) 54 Cal.4th 177, 183.
8
Legislature amended section 4019 to provide that prisoners, with some exceptions,
earned one-for-one conduct credits, which is two days of conduct credit for every two
days in custody. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.) Effective
September 28, 2010, the Legislature again amended section 4019. (Stats. 2010, ch. 426,
§§ 1, 2, 5.) Subdivisions (b) and (g) restored the one-for-two presentence conduct credit
calculation that had been in effect prior to the January 25, 2010, amendment.
Most recently, the Legislature amended section 4019 to provide for up to two days
credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) &
(c).) This scheme reflects the Legislature’s intent that if all days are earned under section
4019, a term of four days will be deemed to have been served for every two days spent in
actual custody. (§ 4019, subd. (f).) This version of section 4019 became operative on
October 1, 2011. (Stats. 2011, ch. 39, § 53.)
Defendant contends that applying the current version of section 4019 to
defendants whose offenses were committed after October 1, 2011, but not to those, such
as defendant, who were sentenced after October 1, 2011 for crimes committed before
October 1, 2011, violates equal protection principles.4
In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court
addressed contentions that the version of section 4019 effective on January 25, 2010,
4 Defendant’s offenses took place on or about August 10, 2011.
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must be held to apply retroactively, in part because prospective application would violate
the equal protection clauses of the state and federal Constitutions. The court stated:5
“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.”’ [Citation.]
“. . . [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.)
The court rejected the argument that its decision in People v. Sage (1980) 26
Cal.3d 498 (Sage) required a contrary conclusion. (Brown, supra, 54 Cal.4th at pp. 329–
330.) The version of section 4019 at issue in Sage authorized presentence conduct credit
for misdemeanants who later served their sentence in county jail, but not for felons who
5
The discussion of Brown which follows is excerpted, with minor alterations,
from People v. Ellis (2012) 207 Cal.App.4th 1546, 1551-1552.
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ultimately were sentenced to state prison. The Sage court found this unequal treatment
violative of equal protection, as it found no “rational basis for, much less a compelling
state interest in, denying presentence conduct credit to” felons. (Sage, at p. 508.)
Brown acknowledged that one practical effect of Sage “was to extend presentence
conduct credits retroactively to detainees who did not expect to receive them, and whose
good behavior therefore could not have been motivated by the prospect of receiving
them.” (Brown, supra, 54 Cal.4th at p. 329.) Nevertheless, it declined to read Sage in
such a way as to foreclose a conclusion “that prisoners serving time before and after
incentives are announced are not similarly situated.” (Brown, at p. 330.) Brown
explained: “The unsigned lead opinion ‘by the Court’ in Sage does not mention the
argument that conduct credits, by their nature, must apply prospectively to motivate good
behavior. A brief allusion to that argument in a concurring and dissenting opinion
[citation] went unacknowledged and unanswered in the lead opinion. As cases are not
authority for propositions not considered [citation], we decline to read Sage for more than
it expressly holds.” (Brown, at p. 330.)
Finally, Brown rejected the notion the case before it was controlled by In re
Kapperman (1974) 11 Cal.3d 542 (Kapperman), the case on which defendant relies in
this case. In Kapperman, the court held that equal protection required retroactive
application of a statute granting credit to felons for time served in local custody before
sentencing and commitment to state prison, despite the fact that the statute was expressly
prospective. (Brown, supra, 54 Cal.4th at p. 330.) Brown found Kapperman
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distinguishable: “Credit for time served is given without regard to behavior, and thus
does not entail the paradoxical consequences of applying retroactively a statute intended
to create incentives for good behavior. Kapperman does not hold or suggest that
prisoners serving time before and after the effective date of a statute authorizing conduct
credits are similarly situated.” (Brown, at p. 330.)
In People v. Ellis, supra, 207 Cal.App.4th 1546, the court found Brown’s equal
protection reasoning applicable to the current version of section 4019.6 (People v. Ellis,
supra, at p. 1552.) We agree with that court’s analysis. Accordingly, we reject
defendant’s claim that he is entitled to additional conduct credits at the rate provided for
by current section 4019.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
6 In People v. Lara (2012) 54 Cal.4th 896, the California Supreme Court noted in
a footnote that the same equal protection analysis applies to the current version of section
4019. (People v. Lara, supra, at p. 906, fn. 9.) This statement is dictum, in that no equal
protection claim under the current version of section 4019 was raised in that case.
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