Filed 9/18/13 P. v. Moore CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. KEITH ANTHONY MOORE, Defendant and Appellant. F064794 (Super. Ct. No. BF134548A )


### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kern Co unty. Michael B. Lewis, Judge. Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorn eys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P.J., Gomes, J., and Detjen, J.2 Defendant, Keith Anthony Moore, challenge s the total amount of conduct credits that he was awarded for time spent in coun ty jail prior to commencement of his prison sentence. Defendant asserts that changes to Penal Code section 4019 1 permitting additional custody credits which occurred afte r his offense and while he was in local custody should apply to him and failure to do so violates the equal protection clauses of the Constitutions of California and the United St ates. We find no error and affirm the trial court’s judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged in an information f iled on February 1, 2011, with corporal injury to his child’s parent, a felony (§ 273 .5, subd. (a), count 1), feloniously making a criminal threat (§ 422, count 2), and fel ony evasion of a peace officer (Veh. Code, § 2800.2, count 3). The information further alleged two prior seri ous felony convictions within the meaning of the th ree strikes law and a prior prison term enhancement. The offenses allegedly occurred on November 13, 2010. On January 13, 2012, defe ndant entered into a plea agreement and executed a felony advisement of rights, waiver, and plea fo rm. In the plea form and at the change of plea hearing, defendant acknowledged the cons equences of his plea, waived his rights under Boykin / Tahl, 2 and plead no contest to count 3, and admitted the two prior serious felony allegations. The prosecutor agreed to dismiss the remaining allegations in exchange for a stipulated prison sentence of six years. The court exercised its discretion under People v

. Superior Court ( Romero ) (1996) 13 Cal.4th 497 to strike one of the prior serious felony allegations.

1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Boykin v

. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.3 Defendant was arrested and remained in custody until he wa s sentenced on March 1, 2012. The court sentenced defendant to the upper term of three years, which was doubled to six years pursuant to the three strikes law. The court further imposed various fines, fees, and penalties. Purs uant to section 4019, in effe ct at the time of his arrest, defendant was given presentence custody credits of 459 days and conduct credits at the rate of two days for every four days of actual confinement, or 228 days. 3 Defendant received total custody cr edits of 687 days. On appeal, defendant contends the curre nt version of section 4019, properly interpreted, entitles him to two days of pr esentence conduct credits for every two-day period of confinement and to interpret it ot herwise violates his e qual protection rights. DISCUSSION Statutory Construction The interpretation of a statute and the determination of its constitutionality are questions of law. In analyzing these questi ons appellate courts ap ply a de novo standard of review. ( Valov v. Department of Motor Vehicles (2005) 132 Cal.Ap p.4th 1113, 1120.) Section 4019 governs credit to be given to a defendant convicted of a felony for time spent in county jail “from th e date of arrest to the date on which the serving of the sentence commences ....” (§ 40 19, subd. (a)(1).) Prior to Ja nuary 25, 2010, presentence conduct credits under section 4019 accrued at a rate of two days for every four days of actual time served in pr esentence custody. ( People v. Kennedy (2012) 209 Cal.App.4th 385, 395 ( Kennedy ); Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) An amendment effective from January 25, 2010, to September 28, 2010, increased the rate,

3 Under the formula applied to defendant , the actual number of custody days are divided by four, the remainder if any is dropped, and the re sulting whole number quotient is multiplied by two to obtain th e number of conduct credits. ( People v

. Culp (2002) 100 Cal.App.4th 1278, 1283.)4 so that custody credits accrued at a rate of two days of credit for every two days actually served. 4 ( Kennedy, supra , 209 Cal.App.4th at p. 395; Stats. 2009, 3d Ex. Sess. 2009– 2010, ch. 28, §§ 50, 62.) The Legislature amended section 4019 ag ain in September 2010 with Senate Bill No. 76 (SB 76) that made changes to sections 4019 and 2933. These changes restored the original version of section 4 019, granting presentence custody credits at a rate of two days for every four days of actual time in custody. (§ 4019, subd. (f), effective September 28, 2010, through September 30, 2011.) The applicability of SB 76 was expressly prospective. By amendments that becam e operative on October 1, 2011, the Legislature enacted the current version of the statute, und er which two days of conduct credit may be earned for each two days of actual cu stody. (§ 4019, subds. (b), (c); People v. Verba (2012) 210 Cal.App.4th 991, 993 ( Verba ); Kennedy , supra , 209 Cal.App.4th at pp. 395- 396.) The current version of the statute prov ides that it applies prospectively, “to prisoners who are confined to a county jail ... for a crime committed on or after October 1, 2011. Any days earned by a pris oner prior to October 1, 2011, (hereafter the October 1, 2011, amendment) shall be calculat ed at the rate required by the prior law.” (§ 4019, subd. (h).) The former sentence expressly makes th e amended statute applicable when the crime was committed on or after Oc tober 1, 2011. Although the latter sentence is less clearly expressed, we interpret it to mean that conduct credit for other prisoners is governed by prior law.

4 For those defendants required to register as sex offenders, those committed for serious felonies (as defined in § 1192.7), an d those who had prior co nvictions for violent or serious felonies, however, tw o days of conduct credit were earned for every four days spent in actual custody. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.)5 In People v. Ellis (2012) 207 Cal. App.4th 1546 ( Ellis ), we held the October 1, 2011, amendment applies only to eligible pr isoners whose crimes were committed on or after that date, and such prospective-only application neither runs afoul of rules of statutory construction nor violates principles of equal protection. ( Ellis , supra , at p. 1548.) In reaching that c onclusion, we relied heavily on People v

. Brown (2012) 54 Cal.4th 314 ( Brown ), in which the California Suprem e Court held the amendment to section 4019 that became e ffective January 25, 2010 (hereafter th e January 25, 2010, amendment) applied prospectively only. ( Brown , supra , at p. 318; Ellis , supra , at p. 1550.)
Brown first examined rules of statutory constr uction. It observed that “[w]hether a statute operates prospectively or retroactively is , at least in the firs t instance, a matter of legislative intent.” ( Brown , supra , 54 Cal.4th at p. 319.) Wh ere the Legislature’s intent is unclear, Civil Code section 3 and cases c onstruing its provisions require prospectiveonly application, unless it is “‘very clear fro m extrinsic sources’” that the Legislature intended retroactive application. ( Brown , supra , at p. 319.) The high court found no cause to apply the January 25, 2010, amendm ent retroactively as a matter of statutory construction. ( Id . at pp. 320-322.)
Brown also examined In re Estrada (1965) 63 Cal.2d 740 ( Estrada ), which held that when the Legislature amends a statute to reduce punishment for a particular criminal offense, courts will assume, ab sent evidence to the contrary , the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute’s operative date. ( Brown , supra , 54 Cal.4th at p. 323; Estrada , supra , at pp. 742- 748.) Brown concluded Estrada did not apply; former section 4019, as amended effective January 25, 2010, di d not alter the penalty for any particular crime. ( Brown , supra , at pp. 323-325, 328.) Rather than addressing punishment for past criminal6 conduct, Brown explained, section 4019 “addresses future conduct in a custodial setting by providing increased incentiv es for good behavior.” ( Brown , supra , at p. 325.)
In Ellis , we determined Brown ’s reasoning and conclusions apply equally to current section 4019. Accordingly, we he ld the October 1, 2011, amendment does not apply retroactively as a matter of statutory cons truction or pursuant to Estrada . ( Ellis , supra , 207 Cal.App.4th at pp. 1550, 1551.) Equal Protection
In Ellis , we next turned to the equal protection issue. ( Ellis , supra , 207 Cal.App.4th at p. 1551.) In that regard, Brown held prospective-only application of the January 25, 2010, amendment did not violate either the federa l or the state Constitution. ( Brown , supra , 54 Cal.4th at p. 328.) Brown explained: “The concept of equal protection recognizes that persons who are similarly situated with respect to a law’s legitimate purposes must be treated equally. [Citation.] Accordingl y, ‘“[t]he first prerequisite to a meritorious claim under the equal protec tion clause is a showing that the state has adopted a classificati on that affects two or more similarly situated groups in an unequal manner.”’ [Cita tion.] ‘This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.”’ [Citation.] “... [T]he important correctional purposes of a statute authorizing incentives for good behavior [cita tion] are not served by rewarding prisoners who served time before the in centives took effect and thus could not have modified their behavior in response. That prisoners who served time before and after former section 4019 took effect are not similarly situated necessarily follows .” ( Brown , supra , 54 Cal.4th at pp. 328-329, second italics added.) The state high court rejected th e argument that its decision in People v. Sage (1980) 26 Cal.3d 498 compelled a contrary conclusion, declining to read that case as authority for more than it e xpressly held, namely that au thorizing presentence conduct credit for misdemeanants who la ter served their sentences in county jail, but not for felons who ultimately were se ntenced to state prison, violated equal protection. ( Brown ,7 supra , 54 Cal.4th at pp. 329-330; see People v. Sage, supra, 26 Cal.3d at p. 508.) It further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d 542, a case that, because it d ealt with a statute granting cr edit for time serv ed, not good conduct, was distinguishable. ( Brown , supra , at p. 330.) Once again, we found no reason in Ellis why “ Brown ’s conclusions and holding with respect to the January 25, 2010, amendment should not ap ply with equal force to the October 1, 2011, amendment. [Citation.]” ( Ellis , supra , 207 Cal.App.4th at p. 1552.) Accordingly, we reject defenda nt’s equal protection argument. Ellis is dispositive of defendant’s claim of entitlement to enhanced credits. Defendant’s presentence credits were properly calculated. 5
DISPOSITION The judgment is affirmed.

5 In contrast to our Ellis case, the court in People v. Rajanayagam (2012) 211 Cal.App.4th 42 ( Rajanayagam ) found that inmates in defe ndant’s position were similarly situated to inmates who comm itted their offenses on or afte r the effective date of the amended statute. The court in Rajanayagam then analyzed the second prong of equal protection, whether there is a rational basis for the Legislature’s disparate treatment of similarly situated inmates. Rajanayagam concluded that there was a rational basis for similarly situated inmates to be treated differently. ( Id . at pp. 53-56.) Although our opinion in Ellis is contrary to the Rajanayagam court’s holding that all inmates are similarly situated regardless of when they offended and were placed in local custody, we agree with that court’s conclu sion that the Legislature had a rational basis for enacting the October 1, 2011, amendment and would al so reject defendant’s equal protection argument under the second prong of equal protec tion analysis.