Filed 4/4/13 P. v. Obannon CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 am ount of $2,643.36, and contends, on equal protection grounds, that he is entitled to in creased 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. Ac cordingly, 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 ca se. 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 in to two Beverages a nd 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 th e card and left the stores without the
merchandise. Count Three On August 22, 2009, appellant entere d 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 purchasin g 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, th e 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 Anth ony Young, appellant purchased an Apple Macbook and accessories using a stolen credit card belonging to Gilg ent 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 in to these incidents police discovered that when appellant applied for the BevMo card, the social security number used belonged to3 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 rev ealed that appellant was at Best Buy, the Olympian gas station and at each of the Beve rages and More stores on the dates of, and within minutes of, the fra udulent transactions. Appellant was arrested on September 10, 20 09, at the office of his parole officer. During a search of appellant's wallet, office rs found a folded piece of paper on which were listed the items require d to make a counterfeit credit card. After being given Miranda advisements, 2 appellant said that he had info rmation on an ongoing decade old "operation," 3 but refused to provide more details w ithout some assurance that his charges would be reduced. On January 21, 2011, the Santa Clara County District At torney filed an information in which appellant was charged with five felo ny 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 withou t authorization. (§ 530.5, subd. (a), count six). 4 The information contained allega tions that appellant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) and had serv ed three prior prison terms within the meaning of section 667.5, subdivision (b). On June 6, 2011, appella nt entered an open plea 5 of guilty to all counts and admitted each of the prio r conviction and prior pr ison 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 de fendant 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, th e court (Judge Southard) denied the motion as to count one, but granted the motion to dismiss both the pr ior strike convictions as to counts two through six. 6 The court dismissed the three prior prison term allegations. The court indicated that appellant's sent ence would be 28 years, four months in state prison; the court stated that it was willi ng to go forward with senten cing immediately. On the request of defense counsel the matter was c ontinued for sentencing. Judge Southard informed appellant that he would soon be re tiring and sought appellant's waiver of his right to be sentenced by hi m, 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 reco rd of prior off the record matte rs. According to Judge Kumli, the parties had met on Septembe r 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 es timation of this Court binding upon this Court, and that the indicated sentence given by Ju dge 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 tim e for imposition of sentence. Accordingly, after noting that the cour t 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 pr ison term of 150 years to life. 7 The court denied another request from de fense counsel to con tinue the matter so that she could submit more documentation to the court.5 actual days plus 384 days of conduct credits fo r a total of 1152 days. Relevant to this appeal, the court ordered that ap pellant 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 cour t 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 th at's the appropriate ruling under the three strikes law itself as well as the court ca ses that have interpreted the application of three strikes. And Judge So uthard 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 asid e 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 follo w 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 th e 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 Judg e Southard in this case. [¶] I will say that - - and this may be a distinction without a differen ce, but the Court feels bound to the ruling on
the Romero motion by Judge Southard . . . ." Appellant asserts that the lower court e rroneously 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 prosecu ting 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 conv icted of a serious and/or violent felony, on its own motion, in furtherance of justice pur suant to section 1385 , subdivision (a). ( Id . at p. 504.) The Romero court held that a court's discre tionary decision to dismiss or to strike a sentencing allegation u nder section 1385 is reviewable for abuse of discretion. ( Ibid. ) Similarly, "a court's failure to dismi ss or strike a prior conviction allegation is subject to review under the deferentia l 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 th is provision, have held that 'in the absence of any contrary evid ence, we are entitled to presume that the trial court . . . properly followed esta blished 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 reconsid er the previous ruling of another superior court judge is subject to an exception wher e 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 decidi ng whether to modify another judge's ruling is7 whether there has been a change in circumst ances 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 s ection 1385. We must keep in mind that the law does not require the trial court to sp ecify the reasons for denying a Romero motion to strike prior strikes. ( In re Large (2007) 41 Cal.4th 5 38, 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 th at 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 cour t 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 indulg ed in by reviewing courts that the trial court is presumed to have known and applie d the correct statutory and case law in the exercise of its official duties. (E vid. Code, § 664; [citations].)" ( People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Accordingl y, absent unambigu ous evidence to the contrary, that presumption justifies a finding in this case that Judge Kumli knew the scope of the section 1385 di scretion available to him a nd 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 th e sake of argument that Judge Kumli misunderstood the scope of his discretion in th is 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.4t h 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 de cision. Specifically, he noted "With respect to the prior convictions I have to note that the one prior conviction out of San Francisco8 for rape was particularly onerous. 9 I realize it happened a lo ng time ago. Mr. Obannon was a very young man. I want to point out however . . . sin ce 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 wo uld have never happened, but it happened someplace else at a different time under different circumstan ces, but it was as severe a strike prior as one can imagine. [¶] Likewi se, the other strike prior conviction was also a crime of violence. It was robbery of the st andard variety, and it happened while he was literally just out of custody for that other o ffense. Since that time Mr. Obannon has had virtually no period in which he was not either in carcerated, on parole or on probation. He has done poorly notwithsta nding his personal char m 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 fa ct 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 cas e, 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 doi ng the same thing on a profe ssional 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 mi sdemeanor convictions for an array of offenses including rape, robbery, second degree burglary and petty theft. Appellant had three parole viol ations and was on parole at the time of his most current

9 A copy of the preliminary hearing tran script from the 1981 rape by force was before the court and is in th e record. The record shows th at during a residential burglary appellant raped a young woman in her home at gunpoint within ears hot of her husband, who was being held at gunpoint on the floor a few feet aw ay by a codefendant. 10 In the case out of Los Angeles County appellant was convicted of one count of second degree burglary (§ 459) on e 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 ap pellant 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 th at he had been held back in his efforts "to provide for himself and hi s family [due to] social in justices . . . neighborhood violence, a sense of hopelessne ss, 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 recei ved some community support. Ms. Hollingsworth wrote that appellant wa s the father of her two children and he had a long history of drug use. She confirmed that appella nt had been neglected as a child, during which time he had no contact w ith his father and lost his mother. Ms. Hollingsworth asserted that appellant's inability to provide for his fa mily had driven him to feel hopeless and that his children hoped th e court would give him an opportunity to
turn his life around. The letter from Ms. Gordon the former e ducation instructor at Elmwood explained that in the time appellant was in Elmwood he delved deeply in to the jail's substance abuse program and made great strides in understand ing 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 appe llant housing free of drugs, alcohol and crime. She offered to assist appellant in obt aining employment and continuing his education toward becomi ng 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 neve r had the opportunity to do before, and he

11 The probation officer's report from appe llant's case out of Los Angeles County indicates that appellant denied us ing or abusing dr ugs or alcohol.10 was seeking mental health treatment. He sa id 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 singl e compelling factor as it relates to his background, character, or prospects, which w ould justify the exercise of [the court]'s discretion to dismiss his remaining strike prior co nviction. As natural as it is to feel some sympathy for the defendant, and the life he ha s 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 thro ugh in efforts to bring the situation under control. The defendant was une mployed; he lived alone altho ugh he had cohabited with a woman for five or six years, and had two ch ildren 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 desi re to help care for their disabled child, and was still loved, and sup ported, by his family. But neither can we11 ignore the fact that he was unemployed and di d not follow through in efforts to bring his substance abuse problem under control. Cert ainly, that he happened to pass about 13 years between his prior serious and/or violen t felony convictions and his present felony, and proceeded from about 20 year s 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 co mmitted the offenses that resulted in his convictions . . . ." ( Williams , supra , 17 Cal.4th at p. 163.) Appellant argues that the letters and affi davits that the defense asked Judge Kumli to consider supported his position that he shou ld not be sentenced to a life term based on his background, character and prospect s. 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 stri ke 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 c ourt ordered that appellant pay direct victim restitution of $2,643.36 to Citibank and to Best Buy. Specifically, the court ordered appellant "to pay res titution in an amount including but not limited to $2,643.36 Citibank" and "to pay re stitution 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 evid ence to support the order. Section 1202.4, subdi vision (f), states in relevant pa rt, "in every case in which a victim has suffered economic lo ss as a result of the defendant's conduct, the court shall12 require that the defendant make restitution to the victim or victims in an amount established by court order, base d on the amount of loss claime d by the victim or victims or any other showing to the court." "A restitution order is reviewed for abus e of discretion and w ill not be reversed unless it is arbitrary or capricious. [Citati on.] No abuse of discretion will be found where there is a rational and factual basis for the amount of re stitution ordered." ( People v. Gemelli (2008) 161 Cal.Ap p.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.) " 'Fur ther, the standard of proof at a restitution hearing is by a preponderance of the eviden ce, 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 rewe igh or reinterpret it; we determine only whether there is sufficien t 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 probati on officer's report includes the following information concerning restituti on to Best Buy and Citibank. "On July 7, 2011, this officer contacte d 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 ca n only go back to the last fiscal year. He stated he would contact this officer if he had additi onal information. Should any information be received prior to sentencing, it will be forw arded to Court. Ac cording 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 will13 not attend sentencing. She indicated Citib ank 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; howev er, one of the number[s] is no longer in service and the other number no lo nger belongs to the victim." After the court ordered appellant to pa y $2,643.36 to Citibank and Best Buy and finished imposing other fines and fees, the pr osecutor asked the court, "with respect to the restitution order of 2,643.3 6, could the Court order that to Citibank? There was a specific request from Citibank who had indicated to proba tion that they reimbursed victim [Peng] for the charges." The cour t 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 $2,6 43.36 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 Ca l.App.4th 655, "Sufficiency of the evidence has always be en 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 pr eserved for appeal. [Citations.]" ( Id . at p. 660.) "Respondent's implicit assertion of a cont rary 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 contenti ons before reaching the one relevant here, which was that a restitution or der in favor of the victim's mother was ' "inappropriate" because of evidence (not intr oduced at trial) that [she] had sought a restraining order against her son and beca use [her] economic loss was not shown by14 documentation or sworn testimony.' ( Ibid. ) The court held that ' by his failure to object, defendant forfeited any claim th at the order was merely unwa rranted 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 predic ate objection is required to challenge the sufficiency of the evidence on appeal. We cannot join in this reading. The Supreme Court itself explicitly r eaffirmed 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 d ecision 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 C itibank received a claim of
unauthorized use of a credit card from their customer and sustained a financial loss connected with that tr ansaction. We glean from this Citibank absorbed the loss from the fraudulent transaction. Notwithstanding th e probation officer's recommendation that the court award restitution to Best Buy, no evidence was presen ted by Best Buy that they

12 In so doing, we need not address appe llant's alternative claim that counsel was ineffective in failing to object to th e restitution award to Best Buy. 13 The amount of the transaction is de scribed 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, th e bank claimed that their loss was $2,643.56. However, since $2,643.36 was the amount the cour t 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 evid ence 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 ha s 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 restitu tion award for the full amount of certain direct victim losses between the victims th emselves and the insurers who had partially reimbursed them. ( Id . at p. 229.) The issues before the Su preme Court were whether the 1994 laws governing mandatory restitution as a conditi on of adult probation gave insurers a right to restitution insofar as they had reimbursed thei r insureds for crime-related losses, and if not, whether trial courts nonetheless had discretion to allocate mandatory probationary restitution awards between insurers and insu reds to reflect such reimbursements. ( Id. at p. 228.) Our Supreme Court held that restitu tion could not be awarded to insurers that partially reimbursed the direct victims for thei r 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 su ffered 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 th e shooting of a person who was working for the defendant and the defendant's mother. When the vic tim sued them in a civil action, the mother 's insurer settled the claim on her behalf. ( Id. at p. 935.) The16 Court of Appeal held that the victim restitu tion orders imposed in the criminal actions could not be offset by settleme nt payments in the civil ac tion 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 lo ss for which there was no evidence to support the award. Rather, he was being aske d to pay for the actual loss he caused even though the victim had receive d an insurance settlement. Th e 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 lo ss, Best Buy did not. There is no authority allowing impos ition of a restitution order fo r which there is no supporting evidence. 14 Accordingly, we will strike the restituti on order as it pertains to Best Buy. Presentence Custody Credits under Section 4019 When appellant was sentenced in Octobe r 2011 for crimes he committed in July 2009, the court awarded him 768 days of pr esentence 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 st ate prison on October 17, 2011. Appellant argues on equal protection grou nds that he was entitle d 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 fro m the evidence that Citibank sustained the loss are that either Peng was reimbursed for the loss by Citiban k or Best Buy was reimbursed for their loss. If Peng was re imbursed by Citibank for the loss, Peng must necessarily have paid the cr edit card bill otherwise Peng woul d not have sustained a loss for which Citibank needed to provide reimbursement. Eith er 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 ever y four days of actual time se rved in presentence custody (sometimes referred to a one th ird 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 tota l of two days of conduct cred it 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 tw o 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 fo r a serious felony (as defined in § 1192.7), or those who had a prior conviction for a viol ent or serious felony such as appellant. (Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [the Ja nuary 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, su bdivision (g), declared these September 28, 2010 amendments applicable only to prisoners confined fo r a crime committed on or after that date, expressing legislative intention th at they have prospect ive 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 th ose who had a prior conviction for a violent or serious felony conduct cred its 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 ch allenge. These statutory ch anges, among other things,
reinstituted one-for-one conduct credits and made this chan ge applicable to crimes committed on or after October 1, 2011, the operative date of the amendments, again expressing legislative intent fo r 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 ma y earn presentence conduct credit at that rate. (§ 4019, subds.(b), (c), & (f); Stats.201 1, ch. 15, § 482; Stat s.2011, ch. 39, § 53.) That is, the amendment to section 4019 dele ted conduct credit restrictions imposed on defendants with prior serious or violent fe lony convictions, those committed for serious felonies, and persons required to register as sex offenders. Notwithstanding the express legislative in tent 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 Octo ber 2011 amendment to section 4019 violates the equal protection clauses of the federal a nd 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 Ca l.3d 542 and People v. Sage (1980) 26 Cal.3d 498 support hi s equal protection argument.

16 These changes took place by two separate amendments. (Stats. 2011, ch. 15, § 481; Stats. 2011, ch. 39, § 53.) Section 40 19 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 deliv ered to the Department of Co rrections 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 senten ced, and extended the benef its retroactively to those improperly excluded by the Legislature. ( Id. at p. 545.) In our view, Kapperman is distinguishable from the instan t case because it addressed actual custody credits, not conduct credits. Conduct credits must be earn ed by a defendant, whereas custody credits are constitutionally required and awarded au tomatically 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 enta il the paradoxical consequences of applying a
statute intended to create in centives 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 ar e 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. 31 8), the reasoning of Brown applies with equal force to the prospective- only application of th e current version of section 4019. As can be seen, in Brown, our Supreme Court expressly determined that Kapperman does not support an equal protection ar gument, at least in sofar 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 beha vior [citation] are not served by rewarding prisoners who served time before the incen tives took effect and thus could not have20 modified their behavior in response. That prisoners who served time before and after former section 4019 took effect are not si milarly situated nece ssarily follows." ( Brown,

supra, at pp. 328–329.) More importantly, in Brown , the Supreme Court confirmed that the October 2011 amendments to Penal Code se ction 4019 have prospective ap plication only. The court noted that the defendant had filed a supplementa l brief in which he contended that he was entitled to retroactive presente nce conduct credits under th e 2011 amendment to Penal Code section 4019. The Suprem e Court stated that this le gislation did not assist the defendant because the "changes to presentence credits expressly 'appl y 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, su bd. (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 i nvolved 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 protectio n 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 Supr eme 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 e ffect are similarly situ ated for purposes of equal protection, because th at proposition was not cons idered in the case. ( Id . at p. 330.)21 Finally, for equal protection purposes, even if we were to agr ee 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 defendant s 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 pr otection violation "if the cha llenged classification bears a rational relationship to a legitimat e state purpose. [Citations.]" ( People v. Hofsheier (2006) 37 Cal.4th 1 185, 1200; see also People v. Ward (2008) 167 Cal.App.4th 252, 258 [rational basis review applicable to equa l protection challenge s based on sentencing disparities].) We perceive such a plausible reason in th is case as to the period of time defendant was in custody after October 1, 2011. As our Supreme Court has acknow ledged, "statutes lessening the punishment for a particular offense" may be made prospec tive 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 carry ing 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 barri ng retroactive application of its provisions for diversion of nonviole nt 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 th at penal laws will maintain their desired deterrent effect by carrying out the or iginal prescribed punis hment as written.' " ( Id. at p. 190.) The statute before the cour t came within this rationale because it

17 In Kapperman, the court found that rationale inap plicable 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 stat utes and statutory changes to have a beginning, and thus to discri minate 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 in crease 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 offens es may be made prospective only without offending equal protection, be cause the Legislature will be supposed to have acted in order to optimize the deterrent effect of criminal penaltie s by deflecting any assumption by offenders that future acts of le nity 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 no t ameliorate punishment for a particular offense, it does, in effect, ameliorate puni shment for all offenses committed after a particular date. By parity of reasoni ng to the rule acknow ledged by both the Kapperman and Floyd courts, the Legislature could rationally have believed that by making the 2011 amendment to section 4019 have application de termined by the date of the offense, they were preserving the deterrent effect of th e 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, ev en for time he spen t 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 individuals23 should be punished in accordance with the sanctions and given the rewards (conduct credits) in effect at the tim e an offense was committed. Finding no equal protection vi olation, we affirm appellant's custody credit award. Disposition We modify the judgment by striking th e 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 Correc tions and Rehabilitation. As so modified the judgme nt is affirmed.

_______ ____________ ____________ ELIA, Acting P. J.

WE CONCUR:

_______________ _____________________ BAMATTRE-MANOUKIAN, J.

_______________ _____________________ MÁRQUEZ, J.