Filed 4/4/13 P. v. Obannon CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

VINCENT EARL OBANNON, 

Defendant and Appellant. 

 H037481 

 (Santa Clara County 

 Super. Ct. No. BB943129) 

 In this appeal, Vincent Obannon (appellant) challenges the denial of his motion to 

reconsider a Romero ruling,1

 argues the lower court erred in ordering him to pay direct 

victim restitution to Best Buy in the amount of $2,643.36, and contends, on equal 

protection grounds, that he is entitled to increased presentence custody credits under the 

current version of Penal Code section 4019. For reasons that follow, we agree that the 

restitution order to Best Buy cannot stand. Accordingly, we will strike the order. As so 

modified, the judgment is affirmed. 

Facts and Proceedings Below 

 We take the facts from the probation officer's report in this case. In turn, those 

facts were derived from Mountain View Police case number 09-005642 reports. 

 

1

 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). 
2 

Counts One and Two 

 On August 1, 2009, appellant went into two Beverages and More stores and 

attempted to use an altered credit card in each store to purchase a bottle of tequila valued 

at $81.99 and two $500 gift cards. At both stores the clerks expressed suspicion about 

the transactions and appellant grabbed the card and left the stores without the 

merchandise. 

Count Three 

 On August 22, 2009, appellant entered another Beverages and More store and 

filled out an application for a "BevMo" card. Thereafter, he purchased a bottle of tequila 

valued at $81.99 with cash. After purchasing the tequila he attempted to purchase two 

$500 gift cards. Since the numbers on the credit card did not match the numbers on the 

receipt, appellant was not permitted to purchase the gift cards. He took the credit card 

and left the store. After this incident, the store clerk sent an email alert to other 

Beverages and More stores. 

Count Four

 On June 19, 2009, appellant entered the Blossom Hill Beverages and More store 

and purchased three $500 gift cards using an altered credit card. Officers were not able 

to locate the owner of this card. 

Counts Five and Six 

 On May 9, 2009, using the name Anthony Young, appellant purchased an Apple 

Macbook and accessories using a stolen credit card belonging to Gilgent Peng. The total 

for the purchase was $2,643.56. The purchases were made at a San Francisco Best Buy 

store. Shortly thereafter, appellant made a $30.77 purchase at an Olympian gas station. 

 During the course of an investigation into these incidents police discovered that 

when appellant applied for the BevMo card, the social security number used belonged to 
3 

both appellant and Anthony Young. A record check revealed that appellant was a sex 

offender and on parole for identity theft. 

 Police contacted appellant's parole officer and requested GPS tracking 

information; the GPS tracking information revealed that appellant was at Best Buy, the 

Olympian gas station and at each of the Beverages and More stores on the dates of, and 

within minutes of, the fraudulent transactions. 

 Appellant was arrested on September 10, 2009, at the office of his parole officer. 

During a search of appellant's wallet, officers found a folded piece of paper on which 

were listed the items required to make a counterfeit credit card. After being given 

Miranda advisements,2

 appellant said that he had information on an ongoing decade old 

"operation,"3

 but refused to provide more details without some assurance that his charges 

would be reduced. 

 On January 21, 2011, the Santa Clara County District Attorney filed an 

information in which appellant was charged with five felony counts of second degree 

burglary (Pen. Code, § 459, 460, subd. (b), counts one through five) and one count of 

using Gilgent Peng's personal identifying information without authorization. (§ 530.5, 

subd. (a), count six).4

 The information contained allegations that appellant had two prior 

strike convictions (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison 

terms within the meaning of section 667.5, subdivision (b). 

 On June 6, 2011, appellant entered an open plea5

 of guilty to all counts and 

admitted each of the prior conviction and prior prison term allegations. 

 

2

 Miranda v. Arizona (1966) 384 U.S. 436. 

3

 Although the probation officer's report does not provide more details, we assume 

that the operation to which the report refers was a counterfeiting operation. 

4

 All unspecified statutory references are to the Penal Code. 

5

 An open plea is one under which a defendant is not made any promises in 

exchange for entering his plea. (People v. Williams (1998) 17 Cal.4th 148, 156.) 
4 

 On July 25, 2011, appellant filed a motion pursuant to Romero, supra, 13 Cal.4th 

497, asking the court to strike his two prior strike convictions for purposes of sentencing 

him. On August 22, 2011, the court (Judge Southard) denied the motion as to count one, 

but granted the motion to dismiss both the prior strike convictions as to counts two 

through six.6

 The court dismissed the three prior prison term allegations. The court 

indicated that appellant's sentence would be 28 years, four months in state prison; the 

court stated that it was willing to go forward with sentencing immediately. On the 

request of defense counsel the matter was continued for sentencing. Judge Southard 

informed appellant that he would soon be retiring and sought appellant's waiver of his 

right to be sentenced by him, which appellant gave. 

 Subsequently, it appears that appellant asked Judge Kumli, to whom the case had 

been assigned, to reconsider Judge Southard's Romero ruling. On October 17, 2011, 

Judge Kumli made a record of prior off the record matters. According to Judge Kumli, 

the parties had met on September 16th to discuss the case and the matter was continued, 

over the People's objection, for appellant to provide additional information; Judge Kumli 

went on to say that "the ruling of the Romero hearing was in the estimation of this Court 

binding upon this Court, and that the indicated sentence given by Judge Southard back on 

August 22nd would be imposed." Judge Kumli went on to say that the matter was back 

before the court for the third time for imposition of sentence. 

 Accordingly, after noting that the court had read and considered the probation 

officer's report and supplemental declarations, which had been submitted in support of 

striking the serious felony priors, the court sentenced appellant to 28 years four months to 

life in state prison.7

 The court calculated appellant's presentence custody credits at 768 

 

6

 Without the dismissal of the prior strike conviction allegations as to counts two 

through six, appellant faced a prison term of 150 years to life. 

7

 The court denied another request from defense counsel to continue the matter so 

that she could submit more documentation to the court. 
5 

actual days plus 384 days of conduct credits for a total of 1152 days. Relevant to this 

appeal, the court ordered that appellant pay $2,643.36 to Citibank and to Best Buy. 

 Appellant filed a notice of appeal the same day he was sentenced. 

Discussion 

Failure to Reconsider the Romero Motion 

 Appellant contends that the lower court abused its discretion and violated due 

process when Judge Kumli concluded that he had no authority to re-open the Romero

motion in light of "relevant new evidence." 

 The "new evidence" to which appellant refers consists of a letter from a Ms. 

Victoria Shepard, the sister of the mother of appellant's children, a purported affidavit 

from the mother of appellant's children—Linda Hollingsworth,8

 a letter from Kathy 

Gordon a former instructor with Milpitas Adult Education at the Elmwood Correctional 

Facility (Elmwood) and a letter from appellant. 

 As noted Judge Kumli stated that "the ruling of the Romero hearing [is] . . . 

binding upon this Court." Subsequently, the prosecutor asked Judge Kumli "not just to 

indicate that [the court] feels bound by Judge Southard's ruling but that's the appropriate 

ruling under the three strikes law itself as well as the court cases that have interpreted the 

application of three strikes. And Judge Southard actually stated on the record that 

unfortunately Mr. Obannon was the poster boy for three strikes and found it sad to say 

that in light of the fact that Mr. Obannon seemed to be a charming, intelligent man, but 

that the Court must set aside the sympathy it had for Mr. Obannon and follow the law. 

And that in [sic] Judge Southard's view of the decision to strike the strike of all counts. 

[¶] So I ask the Court not to only follow the ruling but also to embrace it." 

 Judge Kumli responded, "All right. Let me be clear. The Court doesn't feel that it 

needs to editorialize or comment one way or the other with regard to the reasons for the 

 

8

 Although entitled a "General Affidavit" the document is not notarized. It contains 

only the signature of the affiant—the mother of appellant's children. 
6 

Romero hearing and the ruling of Judge Southard in this case. [¶] I will say that - - and 

this may be a distinction without a difference, but the Court feels bound to the ruling on 

the Romero motion by Judge Southard . . . ." 

 Appellant asserts that the lower court erroneously believed that it had no authority 

to reconsider the Romero motion. 

 Under section 1385, subdivision (a), a "judge . . . may, either on his or her own 

motion or upon the application of the prosecuting attorney, and in furtherance of justice, 

order an action to be dismissed." In Romero, supra, 13 Cal.4th 497, our Supreme Court 

held that a trial court may strike or vacate an allegation or finding under the Three Strikes 

law that a defendant has previously been convicted of a serious and/or violent felony, on 

its own motion, in furtherance of justice pursuant to section 1385, subdivision (a). (Id. at 

p. 504.) The Romero court held that a court's discretionary decision to dismiss or to 

strike a sentencing allegation under section 1385 is reviewable for abuse of discretion. 

(Ibid.) Similarly, "a court's failure to dismiss or strike a prior conviction allegation is 

subject to review under the deferential abuse of discretion standard." (People v. Carmony

(2004) 33 Cal.4th 367, 374.) 

 We start from the premise that " '[i]t is presumed that official duty has been 

regularly performed' and scores of appellate decisions, relying on this provision, have 

held that 'in the absence of any contrary evidence, we are entitled to presume that the trial 

court . . . properly followed established law.' [Citation.]" (Ross v. Superior Court (1977) 

19 Cal.3d 899, 913.) 

 Accordingly, we must presume that Judge Kumli was aware that the general rule 

that one superior court judge may not reconsider the previous ruling of another superior 

court judge is subject to an exception where the first judge is unavailable to decide a 

motion for reconsideration (People v. Goodwillie (2007) 147 Cal.App.4th 695, 713); and 

that one of the factors to consider in deciding whether to modify another judge's ruling is 
7 

whether there has been a change in circumstances since the previous order was made. 

(People v. Riva (2003) 112 Cal.App.4th 981, 992.) 

 The record is at best ambiguous as to whether Judge Kumli refused to reconsider 

the motion because he believed that he did not have authority so to do, or refused to 

exercise his discretion under section 1385. We must keep in mind that the law does not 

require the trial court to specify the reasons for denying a Romero motion to strike prior 

strikes. (In re Large (2007) 41 Cal.4th 538, 546, fn. 6.) 

 It is possible as appellant suggests that Judge Kumli did not believe he had 

authority to rehear the motion, but it is equally possible that Judge Kumli declined to 

exercise his discretion under section 1385. We are mindful that "[a] defendant has no 

right to make a motion, and the trial court has no obligation to make a ruling, under 

section 1385. (People v. Carmony, supra, 33 Cal.4th at p. 375.) 

 As noted, "[i]t is a basic presumption indulged in by reviewing courts that the trial 

court is presumed to have known and applied the correct statutory and case law in the 

exercise of its official duties. (Evid. Code, § 664; [citations].)" (People v. Mack (1986) 

178 Cal.App.3d 1026, 1032.) Accordingly, absent unambiguous evidence to the 

contrary, that presumption justifies a finding in this case that Judge Kumli knew the 

scope of the section 1385 discretion available to him and failed to exercise it in 

appellant's favor because to do so would have been a manifest abuse of his discretion. 

 Even if we were to assume for the sake of argument that Judge Kumli 

misunderstood the scope of his discretion in this case, we would not return the matter to 

the trial court because it would be an abuse of discretion for Judge Kumli to strike the 

priors as to all counts. (See, People v. Askey (1996) 49 Cal.App.4th 381, 389, fn. 3; 

People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055.) 

 When Judge Southard made his decision to strike the priors as to count one he 

made a thorough and detailed record of his decision. Specifically, he noted "With respect 

to the prior convictions I have to note that the one prior conviction out of San Francisco 
8 

for rape was particularly onerous.9

 I realize it happened a long time ago. Mr. Obannon 

was a very young man. I want to point out however . . . since I am talking about 

proportionality, if that crime had occurred at least in Santa Clara County today he would 

be looking at virtually life in prison for that offense today, and all these other crimes that 

have happened in the last 30 years would have never happened, but it happened 

someplace else at a different time under different circumstances, but it was as severe a 

strike prior as one can imagine. [¶] Likewise, the other strike prior conviction was also a 

crime of violence. It was robbery of the standard variety, and it happened while he was 

literally just out of custody for that other offense. Since that time Mr. Obannon has had 

virtually no period in which he was not either incarcerated, on parole or on probation. He 

has done poorly notwithstanding his personal charm and intelligence as one might guess 

given the kind of record he's consistently fallen back upon crime as a means of 

supporting himself. [¶] It is [sic] great importance to note the fact that the last time he 

was charged with multiple counts, many counts of identity theft and fraud on virtually the 

same type of method of operation in this case, he was given the benefit of a two strikes 

sentence, received an 8 year term and then in this particular case not even two months out 

of custody on parole he is doing the same thing on a professional criminal level again."10 

 The probation officer's report prepared in this case indicated that appellant's 

criminal history includes four felony offenses and six misdemeanor convictions for an 

array of offenses including rape, robbery, second degree burglary and petty theft. 

Appellant had three parole violations and was on parole at the time of his most current 

 

9

 A copy of the preliminary hearing transcript from the 1981 rape by force was 

before the court and is in the record. The record shows that during a residential burglary 

appellant raped a young woman in her home at gunpoint within earshot of her husband, 

who was being held at gunpoint on the floor a few feet away by a codefendant. 

10 In the case out of Los Angeles County appellant was convicted of one count of 

second degree burglary (§ 459) one count of identity theft (§ 530.5) and three counts of 

grand theft of personal property (§ 487, subd. (a)). 
9 

offenses. The probation officer noted that appellant said that he had a substance abuse 

problem in that he uses drugs to cope with life.11 

 Against this background, the four additional pieces of "evidence" that were 

presented to the court—a letter from Ms. Shepard—explained that appellant had 

"grow[n] up without a positive role model" and that he had been held back in his efforts 

"to provide for himself and his family [due to] social injustices . . . neighborhood 

violence, a sense of hopelessness, and lack of self-esteem" Ms. Shepard confirmed that 

appellant had turned to drugs and she believed that he would be a productive citizen if he 

were granted leniency and received some community support. 

 Ms. Hollingsworth wrote that appellant was the father of her two children and he 

had a long history of drug use. She confirmed that appellant had been neglected as a 

child, during which time he had no contact with his father and lost his mother. Ms. 

Hollingsworth asserted that appellant's inability to provide for his family had driven him 

to feel hopeless and that his children hoped the court would give him an opportunity to 

turn his life around. 

 The letter from Ms. Gordon the former education instructor at Elmwood explained 

that in the time appellant was in Elmwood he delved deeply into the jail's substance abuse 

program and made great strides in understanding his addiction and the poor choices he 

made as a result. Ms. Gordon believed that appellant was sincerely remorseful for the 

pain his actions caused others. Ms. Gordon pledged to provide appellant housing free of 

drugs, alcohol and crime. She offered to assist appellant in obtaining employment and 

continuing his education toward becoming a drug and alcohol counselor. 

 Finally, in a letter to the court, appellant stated that he had been taking substance 

abuse classes while in jail, which he had never had the opportunity to do before, and he 

 

11 The probation officer's report from appellant's case out of Los Angeles County 

indicates that appellant denied using or abusing drugs or alcohol. 
10 

was seeking mental health treatment. He said he was highly remorseful and vowed to 

live a productive and crime-free life. 

 This record establishes that it would have been a manifest abuse of the trial court's 

limited discretion to strike appellant's prior felony conviction allegations "in furtherance 

of justice" under section 1385 as to the one count that Judge Southard left intact. As the 

prosecutor argued in her written motion opposing the original Romero motion, "[t]he 

defendant has simply failed to present a single compelling factor as it relates to his 

background, character, or prospects, which would justify the exercise of [the court]'s 

discretion to dismiss his remaining strike prior conviction. As natural as it is to feel some 

sympathy for the defendant, and the life he has clearly wasted, it would be improper to 

use this emotion in evaluating the defendant's personal and criminal history, the current 

offense, and his future prospects." 

 As our Supreme Court observed in People v. Williams (1998) 17 Cal.4th 148 

(Williams), a case where the defendant was convicted of driving under the influence four 

times (id at p. 152) and had a lengthy criminal history (id. at p. 154), " 'the existence of 

such convictions reveals that [he] had been taught, through the application of formal 

sanction, that [such] criminal conduct was unacceptable -- but had failed or refused to 

learn his lesson.' " (Id. at p. 163.) The defendant in Williams had had a substance abuse 

problem since he was nine years of age; he apparently recognized the fact and stated a 

desire to change; but he did not follow through in efforts to bring the situation under 

control. The defendant was unemployed; he lived alone although he had cohabited with a 

woman for five or six years, and had two children with her, one of whom was disabled; 

and he wished to receive probation in order to help care for this child. (Id. at p. 155.) 

 The Williams' court observed: "there is little favorable about [the defendant]'s 

background, character, or prospects. We do not ignore the fact that he apparently had had 

a stable living arrangement with a woman, had expressed a desire to help care for their 

disabled child, and was still loved, and supported, by his family. But neither can we 
11 

ignore the fact that he was unemployed and did not follow through in efforts to bring his 

substance abuse problem under control. Certainly, that he happened to pass about 13 

years between his prior serious and/or violent felony convictions and his present felony, 

and proceeded from about 20 years of age to 32, is not significant. He did not refrain 

from criminal activity during that span of time, and he did not add maturity to age. Quite 

the contrary. In those years, he was often in prison or jail; when he was not, he violated 

parole and, apparently, probation, and committed the offenses that resulted in his 

convictions . . . ." (Williams, supra, 17 Cal.4th at p. 163.) 

 Appellant argues that the letters and affidavits that the defense asked Judge Kumli 

to consider supported his position that he should not be sentenced to a life term based on 

his background, character and prospects. Unfortunately, for appellant Williams teaches 

us otherwise. 

 By this court's calculation appellant has spent the majority of the last 31 years 

incarcerated and/or on parole. Significant by its absence is any conviction for a drug 

offense. 

 Regardless of the trial court's beliefs in its authority to strike the alleged prior 

felony convictions, appellant has suffered no prejudice. It would have been a manifest 

abuse of the court's discretion to have exercised it on this record. 

Direct Victim Restitution to Best Buy 

As noted, in sentencing appellant, the court ordered that appellant pay direct 

victim restitution of $2,643.36 to Citibank and to Best Buy. Specifically, the court 

ordered appellant "to pay restitution in an amount including but not limited to $2,643.36 

Citibank" and "to pay restitution including but not limited to . . . $2,643.36 to Best Buy." 

 Appellant argues that the lower court erred in ordering him to pay direct restitution 

to Best Buy without any evidence to support the order. 

 Section 1202.4, subdivision (f), states in relevant part, "in every case in which a 

victim has suffered economic loss as a result of the defendant's conduct, the court shall 
12 

require that the defendant make restitution to the victim or victims in an amount 

established by court order, based on the amount of loss claimed by the victim or victims 

or any other showing to the court." 

 "A restitution order is reviewed for abuse of discretion and will not be reversed 

unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found 

where there is a rational and factual basis for the amount of restitution ordered." (People 

v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).) The trial court may consider 

almost any kind of information in calculating restitution. (People v. Phu (2009) 179 

Cal.App.4th 280, 283–284.) " 'Further, the standard of proof at a restitution hearing is by 

a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' 

[Citation.]" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) " 'If the 

circumstances reasonably justify the [trial court's] findings,' the judgment may not be 

overturned when the circumstances might also reasonably support a contrary finding." 

(People v. Baker (2005) 126 Cal.App.4th 463, 469 (Baker); see also Gemelli, supra, 161 

Cal.App.4th at p. 1542.) In reviewing the evidence, we do not reweigh or reinterpret it; 

we determine only whether there is sufficient evidence to support the inference drawn by 

the trier of fact. (Baker, supra, 126 Cal.App.4th at p. 469.) 

 Appellant points out that the probation officer's report includes the following 

information concerning restitution to Best Buy and Citibank. 

 "On July 7, 2011, this officer contacted Best Buy and spoke to the store operation 

manager, Joey I., who indicated he does not know if Best Buy suffered any losses. The 

company's bookkeeping system can only go back to the last fiscal year. He stated he 

would contact this officer if he had additional information. Should any information be 

received prior to sentencing, it will be forwarded to Court. According to the police 

report, the defendant successfully obtained $2,643.36 in merchandise. This amount is 

recommended pending further information. [¶] On June 30, 2011, this officer contacted 

Citibank fraud investigator, Diana Lindstrom who indicated Citibank representatives will 
13 

not attend sentencing. She indicated Citibank reimbursed victim Peng for the fraudulent 

charges, but she did not indicate reimbursing the two victim business[es], Best Buy or 

Olympian. They are requesting restitution in the amount of $2,643.36, which is 

recommended. [¶] This officer attempted to contact victim Peng at the telephone 

number[s] listed in the police report; however, one of the number[s] is no longer in 

service and the other number no longer belongs to the victim." 

 After the court ordered appellant to pay $2,643.36 to Citibank and Best Buy and 

finished imposing other fines and fees, the prosecutor asked the court, "with respect to 

the restitution order of 2,643.36, could the Court order that to Citibank? There was a 

specific request from Citibank who had indicated to probation that they reimbursed 

victim [Peng] for the charges." The court responded, "That order will be submitted at 

this time. That restitution in that matter will be paid directly to Citibank." 

 Both the minute order from the sentencing hearing and the abstract of judgment 

reflect that appellant is to pay $2,643.36 to Citibank and to Best Buy. 

 Respondent asserts appellant has forfeited any challenge to the restitution order by 

failing to challenge it below. In support of this assertion respondent cites to People v. 

Brasure (2008) 42 Cal.4th 1037. 

 However, as this court explained in In re K. F. (2009) 173 Cal.App.4th 655, 

"Sufficiency of the evidence has always been viewed as a question necessarily and 

inherently raised in every contested trial of any issue of fact, and requiring no further 

steps by the aggrieved party to be preserved for appeal. [Citations.]" (Id. at p. 660.) 

"Respondent's implicit assertion of a contrary rule appears to rest entirely on People v. 

Brasure (2008) 42 Cal.4th 1037, 1075 . . . (Brasure). That was a capital murder case in 

which the court dealt with at least a dozen major contentions before reaching the one 

relevant here, which was that a restitution order in favor of the victim's mother was 

' "inappropriate" because of evidence (not introduced at trial) that [she] had sought a 

restraining order against her son and because [her] economic loss was not shown by 
14 

documentation or sworn testimony.' (Ibid.) The court held that 'by his failure to object, 

defendant forfeited any claim that the order was merely unwarranted by the evidence, as 

distinct from being unauthorized by statute. [Citations.]' [Citation.]" (Ibid.) 

 We went on to say, "Respondent apparently reads Brasure as a repudiation or 

abandonment of the rule noted above, i.e., that no predicate objection is required to 

challenge the sufficiency of the evidence on appeal. We cannot join in this reading. The 

Supreme Court itself explicitly reaffirmed the stated rule in People v. Butler (2003) 31 

Cal.4th 1119, 1126 . . . . Nor is a contrary rule suggested by [People v. Smith (2001) 24 

Cal.4th 849], 852. . . . the one decision cited on this point in Brasure, supra, 42 Cal.4th at 

page 1075 . . . . The court in Smith listed a number of decisions imposing a forfeiture of 

objections going to defects of form or procedure, such as a failure to state reasons for a 

sentence choice or to make a required finding. [Citation.] It did not purport to hold that a 

party may similarly forfeit an objection to the sufficiency of the evidence. Brasure cannot 

be understood to have adopted such a rule." (In re K.F., supra, at p. 661.) 

 Accordingly, we will address appellant's contention.12 

 As described in the probation officer's report, count five was based on appellant 

using a stolen credit card to make a $2,643.36 purchase of a computer and accessories 

from a Best Buy store.13 The record shows that Citibank received a claim of 

unauthorized use of a credit card from their customer and sustained a financial loss 

connected with that transaction. We glean from this Citibank absorbed the loss from the 

fraudulent transaction. Notwithstanding the probation officer's recommendation that the 

court award restitution to Best Buy, no evidence was presented by Best Buy that they 

 

12 In so doing, we need not address appellant's alternative claim that counsel was 

ineffective in failing to object to the restitution award to Best Buy. 

13 The amount of the transaction is described as $2,643.56 in one part of the 

probation officer's report and $2,643.36 in another. In a letter from Citibank that is 

attached to the probation officer's report, the bank claimed that their loss was $2,643.56. 

However, since $2,643.36 was the amount the court awarded to Best Buy, for the sake of 

clarity we will use this amount as the amount of the fraudulent transaction. 
15 

sustained any loss. To the contrary, the evidence showed that they had no idea if they 

sustained a loss. 

 Citing People v. Birkett (1999) 21 Cal.4th 226, 246 (Birkett) and People v. 

Hamilton (2003) 114 Cal.App.4th 932, 944 (Hamilton), respondent argues that a court 

must order restitution to a victim who has suffered economic loss regardless of that 

victim's reimbursement from other sources. In general, we do not disagree with this 

contention. In Birkett, the Court of Appeal had upheld a trial court order that split a 

mandatory probationary restitution award for the full amount of certain direct victim 

losses between the victims themselves and the insurers who had partially reimbursed 

them. (Id. at p. 229.) The issues before the Supreme Court were whether the 1994 laws 

governing mandatory restitution as a condition of adult probation gave insurers a right to 

restitution insofar as they had reimbursed their insureds for crime-related losses, and if 

not, whether trial courts nonetheless had discretion to allocate mandatory probationary 

restitution awards between insurers and insureds to reflect such reimbursements. (Id. at 

p. 228.) Our Supreme Court held that restitution could not be awarded to insurers that 

partially reimbursed the direct victims for their losses, nor could the court divide the full 

amount of restitution between the victims and their insurers. (Id. at p. 246.) The Birkett

court noted that "the criminal restitution scheme should always require the offender to 

pay the full cost of his crime, receiving no windfall from the fortuity that the victim was 

otherwise reimbursed, but that the rights of reimbursing third parties, aside from the 

state's own Restitution Fund, should be resolved in other contexts." (Ibid.) In contrast to 

this case, there was no question in Birkett that the victims had suffered an economic loss; 

the court had held a restitution hearing at which the court took evidence about the amount 

of the victims' losses. (Id. at p. 229.) Such is not the case here. 

Hamilton, supra, 114 Cal.App.4th 932, involved the shooting of a person who was 

working for the defendant and the defendant's mother. When the victim sued them in a 

civil action, the mother's insurer settled the claim on her behalf. (Id. at p. 935.) The 
16 

Court of Appeal held that the victim restitution orders imposed in the criminal actions 

could not be offset by settlement payments in the civil action because the defendant did 

not procure the insurance policies or pay the insurance premiums. (Id. at p. 942.) 

 The crucial difference between this case and Hamilton is that the defendant in 

Hamilton was not being asked to pay for a loss for which there was no evidence to 

support the award. Rather, he was being asked to pay for the actual loss he caused even 

though the victim had received an insurance settlement. The value of the loss appellant 

caused in this case was $2,643.36; either Citibank or Best Buy sustained that loss. 

Citibank provided evidence that they had sustained such a loss, Best Buy did not. There 

is no authority allowing imposition of a restitution order for which there is no supporting 

evidence.14 

 Accordingly, we will strike the restitution order as it pertains to Best Buy. 

Presentence Custody Credits under Section 4019

 When appellant was sentenced in October 2011 for crimes he committed in July 

2009, the court awarded him 768 days of presentence custody credits and 384 days of 

conduct credits. Appellant was arrested on September 10, 2009, and he remained in 

custody until he was sentenced to state prison on October 17, 2011. 

 Appellant argues on equal protection grounds that he was entitled to the enhanced 

conduct credits provided by an amendment to section 4019 that became operative on 

October 1, 2011. 

 Prior to sentencing, a criminal defendant may earn credits while in custody to be 

applied to his or her sentence by performing assigned labor or for good behavior. Such 

 

14 The rational inferences to be drawn from the evidence that Citibank sustained the 

loss are that either Peng was reimbursed for the loss by Citibank or Best Buy was 

reimbursed for their loss. If Peng was reimbursed by Citibank for the loss, Peng must 

necessarily have paid the credit card bill otherwise Peng would not have sustained a loss 

for which Citibank needed to provide reimbursement. Either way, Best Buy was paid for 

the computer and accessories. 
17 

credits are collectively referred to as "conduct credit." (People v. Dieck (2009) 46 

Cal.4th 934, 939 & fn. 3.) 

 Before January 25, 2010, conduct credits under section 4019 could be accrued at 

the rate of two days for every four days of actual time served in presentence custody 

(sometimes referred to a one third time or credits calculated at 33 percent). (Stats.1982, 

ch. 1234, § 7, p. 4553 [former § 4019, subd. (f) ]; People v. Dieck, supra, 46 Cal.4th at p. 

939 [section 4019 provides a total of two days of conduct credit for every four-day period 

of incarceration].) 

 Between January 25 and September 28, 2010, a defendant could accrue 

presentence conduct credit at a rate of two days for every two days spent in actual 

custody (sometimes called one-for-one credits) except for those defendants required to 

register as a sex offender, those committed for a serious felony (as defined in § 1192.7), 

or those who had a prior conviction for a violent or serious felony such as appellant. 

(Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [the January 2010 amendment to § 

4019, subds. (b), (c), & (f) ].)15 

 Effective September 28, 2010, section 4019 was amended again to restore the 

presentence conduct credit calculation that had been in effect prior to the January 2010 

amendments, eliminating the enhanced credits. (Stats. 2010, ch. 426, § 2.) By its express 

terms, the newly created section 4019, subdivision (g), declared these September 28, 

2010 amendments applicable only to prisoners confined for a crime committed on or after 

that date, expressing legislative intention that they have prospective application only. 

(Stats. 2010, ch. 426, § 2.) 

 

15 For those defendants required to register as a sex offender, those committed for a 

serious felony (as defined in § 1192.7), or those who had a prior conviction for a violent 

or serious felony conduct credits continued to be calculated at two days for every four 

days of actual custody. (Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [the January 

2010 amendment to § 4019, subds. (b), (c), & (f)].) 
18 

 This brings us to legislative changes made to section 4019 in 2011 as relevant to 

appellant's equal protection challenge. These statutory changes, among other things, 

reinstituted one-for-one conduct credits and made this change applicable to crimes 

committed on or after October 1, 2011, the operative date of the amendments, again 

expressing legislative intent for prospective application only.16 (§ 4019, subds. (b), (c), & 

(h).) With the October 2011 amendment, all defendants sentenced to jail or prison for 

crimes committed on or after October 1, 2011 may earn presentence conduct credit at that 

rate. (§ 4019, subds.(b), (c), & (f); Stats.2011, ch. 15, § 482; Stats.2011, ch. 39, § 53.) 

That is, the amendment to section 4019 deleted conduct credit restrictions imposed on 

defendants with prior serious or violent felony convictions, those committed for serious 

felonies, and persons required to register as sex offenders. 

 Notwithstanding the express legislative intent that the changes to section 4019, 

operative October 1, 2011, (hereafter the October 2011 amendment) are to have 

prospective application only —i.e. to crimes committed on or after the operative date of 

the statute, appellant contends that the October 2011 amendment to section 4019 violates 

the equal protection clauses of the federal and California Constitutions if it is not applied 

retroactively. 

 Preliminarily, we note that to succeed on an equal protection claim, a defendant 

must first show that the state has adopted a classification that affects two or more 

similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th 

821, 836–837.) 

 Appellant contends that In re Kapperman (1974) 11 Cal.3d 542 and People v. 

Sage (1980) 26 Cal.3d 498 support his equal protection argument. 

 

16 These changes took place by two separate amendments. (Stats. 2011, ch. 15, § 

481; Stats. 2011, ch. 39, § 53.) Section 4019 was also amended a third time in 2011, in 

respects not relevant here. (Stats. 2011, 1st Ex. Sess., ch. 12, § 35.) 
19 

 In Kapperman, supra, 11 Cal.3d 542, our Supreme Court reviewed a provision 

(then-new Penal Code section 2900.5) that made actual custody credits prospective, 

applying only to persons delivered to the Department of Corrections after the effective 

date of the legislation. (Id. at pp. 544–545.) The court concluded that this limitation 

violated equal protection because there was no legitimate purpose to be served by 

excluding those already sentenced, and extended the benefits retroactively to those 

improperly excluded by the Legislature. (Id. at p. 545.) In our view, Kapperman is 

distinguishable from the instant case because it addressed actual custody credits, not 

conduct credits. Conduct credits must be earned by a defendant, whereas custody credits 

are constitutionally required and awarded automatically on the basis of time served. 

 Our Supreme Court recently confirmed, "[c]redit for time served is given without 

regard to behavior, and thus does not entail the paradoxical consequences of applying 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." (People v. Brown (2012) 54 Cal.4th 

314, 330 (Brown).) 

 Although the Supreme Court in Brown was concerned with the January 2010 

amendment to section 4019 (Brown, supra, 54 Cal.4th at p. 318), the reasoning of Brown 

applies with equal force to the prospective-only application of the current version of 

section 4019. 

 As can be seen, in Brown, our Supreme Court expressly determined that 

Kapperman does not support an equal protection argument, at least insofar as conduct 

credits are concerned. (Brown, supra, 54 Cal.4th at pp. 328–330.) In rejecting the 

defendant's argument that the January 2010 amendments to section 4019 should apply 

retroactively, the Supreme Court explained "the 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 
20 

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, at pp. 328–329.) 

 More importantly, in Brown, the Supreme Court confirmed that the October 2011 

amendments to Penal Code section 4019 have prospective application only. The court 

noted that the defendant had filed a supplemental brief in which he contended that he was 

entitled to retroactive presentence conduct credits under the 2011 amendment to Penal 

Code section 4019. The Supreme Court stated that this legislation did not assist the 

defendant because the "changes to presentence credits expressly 'apply prospectively . . . 

to prisoners who are confined to a county jail [or other local facility] for a crime 

committed [on] or after October 1, 2011.' (§ 4019, subd. (h), added by Stats. 2011, ch. 

15, § 482, and amended by 2011, ch. 39, § 53.) Defendant committed his offense in 

2006." (Brown, supra, 54 Cal.4th at p. 322, fn. 11.) Similarly, here, appellant committed 

his offenses in 2009. 

Sage is similarly inapposite because it involved a prior version of section 4019 

which allowed presentence conduct credits to misdemeanants, but not felons. (Sage, 

supra, 26 Cal.3d at p. 508.) Our Supreme Court found that there was neither "a rational 

basis for, much less a compelling state interest in, denying presentence conduct credit to 

detainee/felons." (Ibid.) The purported equal protection violation at issue here is 

temporal, rather than based on the defendant's status as a misdemeanant or felon. In 

Brown, supra, 54 Cal.4th at page 329, the Supreme Court acknowledged that "one 

practical effect of [the Sage decision] 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." However, 

the Supreme Court declined to read Sage as implicitly holding that prisoners serving time 

before and after a conduct credit statute takes effect are similarly situated for purposes of 

equal protection, because that proposition was not considered in the case. (Id. at p. 330.) 
21 

 Finally, for equal protection purposes, even if we were to agree that the time that 

appellant spent in county jail between October 1, 2011 and the time he was sentenced on 

October 17, 2011, appellant was similarly situated to other defendants who committed 

their crimes after October 1, and were in presentence custody, where, as here, the 

statutory distinction at issue neither "touch[es] upon fundamental interests" nor is based 

on gender, there is no equal protection violation "if the challenged classification bears a 

rational relationship to a legitimate state purpose. [Citations.]" (People v. Hofsheier

(2006) 37 Cal.4th 1185, 1200; see also People v. Ward (2008) 167 Cal.App.4th 252, 258 

[rational basis review applicable to equal protection challenges based on sentencing 

disparities].) 

 We perceive such a plausible reason in this case as to the period of time defendant 

was in custody after October 1, 2011. 

 As our Supreme Court has acknowledged, "statutes lessening the punishment for a 

particular offense" may be made prospective only without offending equal protection 

principles. (Kapperman, supra, 11 Cal.3d at p. 546.) In Kapperman, the court wrote that 

the Legislature may rationally adopt such an approach, "to assure that penal laws will 

maintain their desired deterrent effect by carrying out the original prescribed punishment 

as written." (Ibid.)

17 

 In People v. Floyd (2003) 31 Cal.4th 179 (Floyd ), the defendant sought to 

invalidate a provision of Proposition 36 barring retroactive application of its provisions 

for diversion of nonviolent drug offenders. (Id. at pp. 183–184.) The court reiterated that 

the Legislature may preserve the penalties for existing offenses while ameliorating 

punishment for future offenders in order to " 'assure that penal laws will maintain their 

desired deterrent effect by carrying out the original prescribed punishment as written.' " 

(Id. at p. 190.) The statute before the court came within this rationale because it 

 

17 In Kapperman, the court found that rationale inapplicable to the issue before the 

court. (Kapperman, supra, 11 Cal.3d at p. 546.) 
22 

"lessen[ed] punishment for particular offenses." (Ibid.) As the Floyd court noted, " '[t]he 

Fourteenth Amendment does not forbid statutes and statutory changes to have a 

beginning, and thus to discriminate between the rights of an earlier and later time.' 

[Citation.]" (Id. at p. 191.) 

 "The very purpose of conduct credits is to foster constructive behavior in prison by 

reducing punishment." (People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme 

Court accepted in Brown, supra, 54 Cal.4th 314, "to increase credits reduces 

punishment." (Id. at p. 325, fn. 15.) 

 We gather that the rule acknowledged in Kapperman and Floyd is that a statute 

ameliorating punishment for particular offenses may be made prospective only without 

offending equal protection, because the Legislature will be supposed to have acted in 

order to optimize the deterrent effect of criminal penalties by deflecting any assumption 

by offenders that future acts of lenity will necessarily benefit them. 

 Defendant committed his crimes in 2009. At that time, his ability to earn conduct 

credit was limited to two days for every four days of actual time served in presentence 

custody. (Stats. 1982, ch. 1234, § 7.) 

 Although the statute at issue here does not ameliorate punishment for a particular 

offense, it does, in effect, ameliorate punishment for all offenses committed after a 

particular date. By parity of reasoning to the rule acknowledged by both the Kapperman

and Floyd courts, the Legislature could rationally have believed that by making the 2011 

amendment to section 4019 have application determined by the date of the offense, they 

were preserving the deterrent effect of the criminal law as to those crimes committed 

before that date. To reward appellant with the enhanced credits of the October 2011 

amendment to section 4019, even for time he spent in custody after October 1, 2011, 

weakens the deterrent effect of the law as it stood when appellant committed his crimes. 

We see nothing irrational or implausible in a legislative conclusion that individuals 
23 

should be punished in accordance with the sanctions and given the rewards (conduct 

credits) in effect at the time an offense was committed. 

 Finding no equal protection violation, we affirm appellant's custody credit award. 

Disposition 

 We modify the judgment by striking the restitution order awarding Best Buy 

$2,643.36. The clerk of the court is directed to amend the abstract of judgment 

accordingly and forward a copy to the Department of Corrections and Rehabilitation. As 

so modified the judgment is affirmed. 

 _______________________________ 

 ELIA, Acting P. J. 

 WE CONCUR: 

 ____________________________________ 

 BAMATTRE-MANOUKIAN, J. 

 ____________________________________ 

 MÁRQUEZ, J.