gno.law

People v. White CA4/1

California Court of Appeal · D061507 · 2013-02-28 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCN296460SCD231738
Trial judge
K. Michael Kirkman
Outcome
modified — Affirmed as modified with directions.
Area
criminal
Panel
Patricia D. Benke (author), Richard D. Huffman, Sr., Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:58Z · confidence high

The trial court sentenced the defendant to prison for burglary and petty theft, and separately revoked probation for robbery, imposing new restitution and parole revocation fines. On appeal, the court affirmed the custody credit calculation but modified the judgment to strike unauthorized fines and reduce the parole revocation fine to the statutory maximum.

Ruling reviewedStandardThe courtThe model
Award of 115 actual days and 56 conduct days credit (total 171 days) under Penal Code section 4019.
“We reject these contentions for the reasons stated in People v. Ellis (2012) 207 Cal.App.4th 1546; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-400 and People v. Rajanayagam (2012) 211 Cal.App.4th 42.”
de novocorrectagree with court
agree with court
Imposition of a $600 restitution fine and a $600 parole revocation fine upon revocation of probation.
“Respondent correctly concedes the $600 restitution fine is unauthorized and must be stricken (People v. Perez (2011) 195 Cal.App.4th 801, 804-805), and the $600 parole revocation fine must be reduced to $200 (§ 1202.45).”
de novoerror (statutory interpretation)agree with court
agree with court
Suspension of the $200 probation revocation fine originally imposed.
“Additionally, the suspension of the $200 probation revocation fine must be lifted. (§ 1202.44; People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)”
de novoerror (statutory interpretation)agree with court
agree with court

Authorities

  • relied: People v. Ellis (2012) 207 Cal.App.4th 1546 — Interpretation of Penal Code section 4019 conduct credit calculations for crimes committed after October 1, 2011.
  • relied: People v. Kennedy (2012) 209 Cal.App.4th 385 — Interpretation of Penal Code section 4019 conduct credit calculations.
  • relied: People v. Rajanayagam (2012) 211 Cal.App.4th 42 — Interpretation of Penal Code section 4019 conduct credit calculations.
  • relied: People v. Perez (2011) 195 Cal.App.4th 801 — A restitution fine imposed at the time of probation revocation is unauthorized if it exceeds the amount originally imposed or statutory limits.
  • relied: People v. Guiffre (2008) 167 Cal.App.4th 430 — Upon revocation of probation, the suspended probation revocation fine becomes due.
  • relied: In re Chavez (2003) 30 Cal.4th 643 — Appellate courts lack jurisdiction to review issues in cases where no notice of appeal was filed.

The appellate opinion: sound — The court correctly applied the prospective application of the amended conduct credit statute and relied on controlling precedent to reject the equal protection argument. It accurately identified the statutory limits on fines imposed upon probation revocation, citing specific authorities to support the modification of the judgment.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The trial court sentenced White to four years for burglary in case No. SCN296460, awarding 115 actual and 56 conduct days of presentence credit, and on revocation of probation in case No. SCD231738 imposed a concurrent term with a new $600 restitution fine and $600 parole revocation fine. The Court of Appeal rejected White's claim to additional conduct credit under the October 1, 2011 amendment to section 4019, but struck the $600 restitution fine, reduced the parole revocation fine to $200, lifted the suspension of the $200 probation revocation fine, declined to reach a fine in a case not appealed, and otherwise affirmed as modified.

Ruling reviewedStandardThe courtThe model
Calculation of presentence conduct credit under Penal Code section 4019 at the pre-October 1, 2011 rate for the entire custody period (56 conduct days on 115 actual days), rejecting White's statutory-interpretation and equal protection arguments for enhanced credit for days served after October 1, 2011.
“We reject these contentions for the reasons stated in People v. Ellis”
de novocorrectagree with court
Section 4019, subdivision (h) expressly limits the enhanced rate to prisoners confined for crimes committed on or after October 1, 2011; White's crime was committed September 13, 2011. Ellis, Kennedy and Rajanayagam are published decisions rejecting exactly these statutory and equal protection arguments, and they rest on the Supreme Court's reasoning in People v. Brown (2012) 54 Cal.4th 314 that conduct-credit amendments operate prospectively and that prisoners serving time before and after an amendment are not similarly situated. The result is correct, though the opinion disposes of the issue by bare citation.
Imposition at the post-revocation prison sentencing in case No. SCD231738 of a $600 restitution fine (§ 1202.4, subd. (b)) and a $600 parole revocation fine (§ 1202.45), where a $200 restitution fine and a $200 suspended probation revocation fine had already been imposed when probation was granted.
“the $600 parole revocation fine must be reduced to $200 (§ 1202.45).”
de novoerror (law misapplied)agree with court
A restitution fine imposed when probation is granted survives revocation, so a second, higher restitution fine at the prison sentencing is an unauthorized sentence correctable on appeal (People v. Perez). Because the parole revocation fine under section 1202.45 must equal the restitution fine, it must be $200. Section 1202.44 makes the previously suspended probation revocation fine due upon revocation, so lifting the suspension (People v. Guiffre) was required even though it operated against the appellant. The People conceded the error and the modification follows the statutes.
Restitution fine imposed in case No. SCE302712 after revocation of probation (challenged by White as exceeding the original fine).
“we are without jurisdiction to grant him any”
de novonot reachedagree with court
A timely notice of appeal is a jurisdictional prerequisite; White filed no notice of appeal in case No. SCE302712, so the court properly declined to consider the fine in that case under In re Chavez and rule 8.304.

Authorities

  • relied: People v. Ellis (2012) 207 Cal.App.4th 1546 — The October 1, 2011 amendment to section 4019 applies only to crimes committed on or after that date; a defendant whose crime predates it earns credit at the prior rate for the entire custody period, and this does not violate equal protection.
  • relied: People v. Kennedy (2012) 209 Cal.App.4th 385 — Prospective-only application of the 2011 section 4019 amendment to defendants whose crimes predate October 1, 2011 is compelled by subdivision (h) and survives equal protection scrutiny.
  • relied: People v. Rajanayagam (2012) 211 Cal.App.4th 42 — Section 4019, subdivision (h) denies enhanced conduct credit for custody after October 1, 2011 when the offense was committed before that date, and the classification has a rational basis.
  • relied: People v. Perez (2011) 195 Cal.App.4th 801 — A restitution fine imposed as a condition of probation survives revocation; a second restitution fine imposed at the subsequent prison sentencing is unauthorized and must be stricken.
  • relied: People v. Guiffre (2008) 167 Cal.App.4th 430 — Upon revocation of probation the previously suspended probation revocation fine under section 1202.44 becomes due, and the appellate court may correct the omission.
  • relied: In re Chavez (2003) 30 Cal.4th 643 — A timely notice of appeal is jurisdictional; absent one the appellate court lacks power to grant relief.
  • missed: People v. Brown (2012) 54 Cal.4th 314 — Amendments increasing section 4019 conduct credit apply prospectively only, and prisoners who served time before and after the effective date are not similarly situated for equal protection purposes; this is the binding Supreme Court authority underlying the Court of Appeal cases the opinion cites.

The appellate opinion: sound with gaps — The result on each issue follows directly from the statutory text, the People's concession, and published authority, and the court correctly declined jurisdiction over the unappealed case. The credits discussion, however, is disposed of by bare citation to Court of Appeal decisions without analysis and without citing the controlling Supreme Court decision in People v. Brown (2012) 54 Cal.4th 314.

How this analysis was made · dispute it

Opinion

Filed 2/28/13 P. v. White CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061507

Plaintiff and Respondent, v. (Super. Ct. Nos. SCN296460 & SCD231738) LATRELL KENNETH WHITE, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed as modified with directions.

In case No. SCN296460, a jury found Latrell Kenneth White guilty of burglary (Pen.

Code, § 459)1 and petty theft (§ 484). White admitted having a prior petty theft conviction (§ 666, subd. (b)(1)) and a strike (§ 667, subds. (b)-(i)). The court sentenced him to four years in prison (twice the middle term) for burglary, with a stayed sentence for petty theft with a prior theft conviction (§ 654). The court imposed a concurrent prison term in case No.

SCD231738, having earlier revoked probation in that case. White appeals, contending he is 1 All further statutory references are to the Penal Code. entitled to additional presentence custody credit in case No. SCN296460 and the restitution fine and parole revocation fine in case No. SCD231738 must be reduced.2 We agree with the latter contention.

BACKGROUND

Case No. SCD231738 On January 7, 2011, the victim got off a bus and began walking. White followed him and asked to use his cellular telephone. As the victim removed his telephone from his pocket, White grabbed the telephone from the victim's hand and ran away. White pleaded guilty to robbery (§ 211). On March 30, the court placed him on three years' probation.

Case No. SCN296460 On September 13, 2011, White entered a store, grabbed three or four large shopping bags by a cash register. He went to the aisle where baby products were displayed and put 42 to 44 cans of baby formula into a shopping cart. He went to a different part of the store and put the cans in the bags. He left the store with the formula and did not pay for it. Later that day, White followed the same procedure at another store with approximately 24 cans of formula, but did not take the merchandise with him when he left the store.

DISCUSSION

Credits In case No. SCN296460, White was in custody from the date of his arrest (September 13, 2011) through the date of sentencing (January 5, 2012), a total of 115 days. The court 2 White also contends the restitution fine in case No. SCE302712 must be reduced to the amount ordered when he was originally placed on probation in that case. Because White did not file a notice of appeal in case No. SCE302712, we are without jurisdiction to grant him any relief in that case. (In re Chavez (2003) 30 Cal.4th 643, 650; Cal. Rules of Court, rule 8.304.) 2 awarded White 115 actual days' credit and 56 days' conduct credit (§ 4019), for a total of 171 days' credit.

Effective October 1, 2011, the Legislature amended section 4019 to provide for two days' conduct credit for each four days served. (§ 4019, subd. (f).) "The changes to this section enacted by the act that added this subdivision shall apply prospectively and shall apply to prisoners who are confined to [jail] for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (Id., subd. (h).) White contends principles of statutory interpretation compel the conclusion he is entitled to an additional 48 days' conduct credit under this formula for his days of custody beginning October 1, 2011, and any other interpretation would violate equal protection guarantees. We reject these contentions for the reasons stated in People v. Ellis (2012) 207 Cal.App.4th 1546; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-400 and People v. Rajanayagam (2012) 211 Cal.App.4th 42.

Fines In case No. SCD231738, when the court placed White on probation in 2011, it imposed a $200 restitution fine (§ 1202.4, subd. (b)) and suspended a $200 probation revocation fine (§ 1202.44). When the court sentenced him to prison in 2012, it imposed a $600 restitution fine and a $600 parole revocation fine (§ 1202.45). Respondent correctly concedes the $600 restitution fine is unauthorized and must be stricken (People v. Perez (2011) 195 Cal.App.4th 801, 804-805), and the $600 parole revocation fine must be reduced to $200 (§ 1202.45).

Additionally, the suspension of the $200 probation revocation fine must be lifted. (§ 1202.44;

People v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)

3 DISPOSITION

The judgment in case No. SCD231738 is modified as follows: The $600 restitution fine (§ 1202.4, subd. (b)) and the $600 parole revocation fine (§ 1202.45) are stricken. The $200 restitution fine originally imposed remains. The $600 parole revocation fine is replaced with a $200 parole revocation fine. The $200 probation revocation fine (§ 1202.44) is now due. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

Cites, in this corpus