Opinion
A144611
03-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JOSEPH HILLMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. SCR647850, SCR647851, SCR647853, SCR650513)
Defendant Daniel Joseph Hillman appeals after the trial court granted his petition to recall his sentence pursuant to Penal Code section 1170.18 and resentenced him. He contends the court erred in imposing full sentences for three misdemeanors, to run consecutively with a felony sentence. We shall affirm.
All statutory references are to the Penal Code.
I. BACKGROUND
Defendant was charged with multiple offenses in four cases. He entered a consolidated plea of no contest to one count of felony grand theft in case number SCR647850 (§ 487, subd. (a)), one count of second degree commercial burglary in case number SCR647851 (§ 459), two counts of felony second degree commercial burglary in case number SCR647853 (§ 459), and one count of second degree commercial burglary in case number SCR650513 (§ 459). The trial court sentenced him to county jail pursuant to section 1170, subdivision (h) as follows: in case number SCR647850, the midterm of two years; in case number SCR647851, a consecutive term of eight months (one-third the midterm); in case number SCR647853, a consecutive eight-month term (one-third the midterm), and a concurrent two-year term; and in case number SCR650513, a consecutive term of eight months (one-third the midterm), for an aggregate term of four years.
After the passage of Proposition 47, the Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014), defendant petitioned to have his felony convictions reduced to misdemeanors. (§ 1170.18.) The trial court denied the request as to case number SCR647850 because the value of the stolen goods exceeded $950, but granted the petitions as to the other counts, reducing them to shoplifting. (§ 459.5.) In addition to the original two-year term for grand theft, the court resentenced defendant to consecutive six-month terms for each of the misdemeanors that had originally carried consecutive terms, for an aggregate term of three years, six months.
II. DISCUSSION
Defendant contends that the imposition of consecutive full terms for the misdemeanor offenses deprived him of his constitutional right to equal protection. Section 1170.1, subdivision (a) provides, when a person has been convicted of two or more felonies and receives consecutive sentences, the principal term "shall consist of the greatest term of imprisonment imposed by the court for any of the crimes," and "[t]he subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed." Where the subordinate terms are misdemeanors, however, the defendant may be sentenced to full consecutive terms. (People v. Erdelen (1996) 46 Cal.App.4th 86, 91 (Erdelen).) Defendant argues that he is similarly situated to those convicted only of felonies and that he was deprived of equal protection when he was sentenced to the full term, rather than one-third the midterm, for the subordinate offenses.
This division has recently explained: "To establish an equal protection claim, a defendant must show 'that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]' [Citation.] The level of judicial scrutiny brought to bear on the challenged treatment depends on the nature of the distinguishing classification. [Citation.] Unless the distinction 'touch[es] upon fundamental interests' or is based on gender, it will survive an equal protection challenge 'if the challenged classification bears a rational relationship to a legitimate state purpose.' [Citations.] [¶] . . . 'The "similarly situated" prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.' [Citation.]" (People v. Descano (2016) 245 Cal.App.4th 175, 181-182.) Moreover, " '[p]ersons convicted of different crimes are not similarly situated for equal protection purposes. [Citations.]' [Citation.] ' "[I]t is one thing to hold . . . that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally." [Citation.]' [Citation.]" (Id. at p. 182.)
The contention that the disparate methods of calculating subordinate terms for felonies and misdemeanors violates equal protection has been rejected. In In re Valenti (1986) 178 Cal.App.3d 470, 475, the court explained: "Petitioner contends that misdemeanants and felons are similarly situated in that both classes of inmates are punished for crimes that they have committed. [Citation.] There is little doubt that in terms of confinement, at least from the vantage point of the prisoner, the loss of liberty is equally drastic regardless of one's being an inmate of a county jail or an inmate of a state prison. [Citation.] There is, however, a significant difference in the quality and duration of punishment, as well as in resultant long-term effects, which are brought about by a conviction for a felony as opposed to that for a misdemeanor. [Citation.] [¶] When a misdemeanant has finished serving his sentence, he leaves with neither further obligation nor disability. The conviction for a misdemeanor involves no further loss of civil rights. [Citation.] Not so for the typical felon: he will generally spend the three years following his release from prison in the 'constructive' custody of the Department of Corrections [citations] and may be reimprisoned were he to violate the terms of parole. [Citations.] [¶] A felon is uniquely burdened by a diverse collection of statutorily imposed disabilities long after his release from prison. [Citations.] For example, he is denied the right to vote during the period of his parole. [Citations.] Moreover, a felon may not '. . . engage in certain businesses [citation]; must register with local law enforcement authorities if his offense is related to certain sex charges [citations]; loses the right to possess arms [citation]; and, if he testifies in court, may be impeached on the basis of his prior felony conviction [citation] . . .' [Citation.]" (See also People v. Ansell (2001) 25 Cal.4th 868, 872-873 and People v. Moreno (2014) 231 Cal.App.4th 934, 942 [discussing collateral effects of felony conviction].)
In Erdelen, the appellate court once again rejected an equal protection challenge to the imposition of full consecutive terms for misdemeanors. The defendant there was sentenced to the upper term for a felony and a 12-month consecutive term for a misdemeanor. (Erdelen, supra, 46 Cal.App.4th at p. 90.) On appeal, he contended the imposition of the full consecutive misdemeanor term violated his right to equal protection. He relied on People v. Murray (1994) 23 Cal.App.4th 1783 (Murray), which held that the "double-the-base-term" limitation of former subdivision (g) of section 1170.1 applied when jail terms for misdemeanors were imposed consecutively to a prison term. (Erdelen, 46 Cal.App.4th at p. 91.) The court rejected this contention. It explained first that "the Murray court noted that subdivision (g) was not expressly limited to felonies as was subdivision (a) of section 1170.1. (23 Cal.App.4th at pp. 1789-1790.) The court apparently recognized its holding regarding subdivision (g) was not necessarily applicable to the sentencing provisions of subdivision (a)." (Erdelen, 46 Cal.App.4th at p. 91.) To the extent Murray could be understood to support an argument that misdemeanors must be sentenced under the provisions of subdivision (a) of section 1170.1 when a misdemeanor term was imposed consecutive to a prison term, the court in Erdelen disagreed: the Legislature had clearly indicated its intent that the sentencing provisions of section 1170.1, subdivision (a) applied only to felonies, and serving a jail term for misdemeanor convictions did not subject an offender to the additional penalties applicable to a felony conviction. (Erdelen, 46 Cal.App.4th at p. 92.)
At the time, section 1170.1, subdivision (g) provided that, with certain exceptions, " '[t]he term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term . . . .' " The issue before the court in Murray was whether this limitation applied to an aggregate sentence composed of mixed felony and misdemeanor sentences. (Murray, supra, 23 Cal.App.4th at p. 1787.)
Murray distinguished In re Valenti on the ground that, unlike the petitioner in Valenti, the defendant in Murray received an aggregate sentence greater than he would have received had he been convicted only of felonies. (Murray, supra, 23 Cal.App.4th at p. 1792.) Here, defendant received shorter terms for the misdemeanors than he had received when they were treated as felonies.
Defendant contends the rule of In re Valenti and Erdelen is no longer persuasive in the circumstances of this case after passage of the Criminal Justice Realignment Act of 2011. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1 (the Realignment Act).) "The [Realignment] Act shifted responsibility for housing and supervising certain felons from the state to the individual counties. Thus, . . . the [Realignment] Act provides that, once probation has been denied, felons who are eligible to be sentenced under realignment will serve their terms of imprisonment in local custody rather than state prison. . . . the [Realignment] Act does not change the length of term or sentencing triad for any offense." (People v. Cruz (2012) 207 Cal.App.4th 664, 671, fn. omitted; see also § 1170, subd. (h).) A felon sentenced under this scheme is not subject to a state parole period after serving a prison term. (Cruz, 207 Cal.App.4th at pp. 671-672.)
Because he was sentenced to imprisonment in local custody rather than state prison and will not be subject to parole, defendant argues, he is similarly situated to those who have been convicted of multiple felonies and are also serving their sentence in local custody. We reject this contention. Felons are distinct from misdemeanants both in the duration of punishment and in a variety of long-term consequences other than the location of their imprisonment.
A related issue arose in People v. Brown (2016) 247 Cal.App.4th 1430. The defendant there argued that where a sentence was imposed under section 1170, subdivision (h) for aggregated felony/misdemeanor terms, the sentencing limitations of section 1170.1, subdivision (a)—with subordinate terms of one-third the midterm—should be applied. (247 Cal.App.4th at pp. 1434, 1436.) To do otherwise, he contended, would result in the anomalous result that a consecutive misdemeanor sentence could be greater than a consecutive felony sentence. (Id. at p. 1436.) The appellate court rejected this argument, stating, "The Legislature is presumed to be aware of judicial interpretations of a statute. [Citation.] If the Legislature amends or reenacts the statute without changing the interpretation placed on that statute by the courts, ' "the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute. [Citation.]" ' [Citation.] The fact that courts have held at least since 1979 that section 1170.1(a)'s limitation on the length of consecutive sentences applies in adult cases only to felony sentences leads us to infer that if the Legislature had intended a different result when it amended section 1170.1(a), when it enacted the Realignment Act in 2011, it would have said so." (Ibid.) We agree with the Brown court that the statutory scheme does not contemplate that misdemeanors will be sentenced under subdivision (a) of section 1170.1, and we also conclude that those convicted only of felonies are not similarly situated to those convicted of misdemeanors.
We are not persuaded otherwise by defendant's argument that the purpose of Proposition 47 is to reduce punishment for low-level offenders. A defendant who is resentenced under Proposition 47 may not receive a term longer than the original sentence. (§ 1170.18, subd. (e).) Defendant received the benefit of this provision.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.