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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 Superior Court of Kern County. Michael B. 

Lewis, Judge. 

 Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. 

Martinez, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo-

 

* Before Levy, Acting P.J., Gomes, J., and Detjen, J.
2 

Defendant, Keith Anthony Moore, challenges the total amount of conduct credits 

that he was awarded for time spent in county jail prior to commencement of his prison 

sentence. Defendant asserts that changes to Penal Code section 40191 permitting 

additional custody credits which occurred after 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 States. We find no error and affirm the trial 

court’s judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

 Defendant was charged in an information filed 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 felony evasion of a peace officer (Veh. Code, 

§ 2800.2, count 3). The information further alleged two prior serious felony convictions 

within the meaning of the three strikes law and a prior prison term enhancement. The 

offenses allegedly occurred on November 13, 2010. 

On January 13, 2012, defendant entered into a plea agreement and executed a 

felony advisement of rights, waiver, and plea form. In the plea form and at the change of 

plea hearing, defendant acknowledged the consequences 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 was 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. Pursuant to section 4019, in effect 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 credits of 687 days. 

On appeal, defendant contends the current version of section 4019, properly 

interpreted, entitles him to two days of presentence conduct credits for every two-day 

period of confinement and to interpret it otherwise violates his equal protection rights. 

DISCUSSION

Statutory Construction 

 The interpretation of a statute and the determination of its constitutionality are 

questions of law. In analyzing these questions appellate courts apply a de novo standard 

of review. (Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1120.) 

 Section 4019 governs credit to be given to a defendant convicted of a felony for 

time spent in county jail “from the date of arrest to the date on which the serving of the 

sentence commences ....” (§ 4019, subd. (a)(1).) Prior to January 25, 2010, presentence 

conduct credits under section 4019 accrued at a rate of two days for every four days of 

actual time served in presentence 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 resulting whole number quotient 

is multiplied by two to obtain the 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 again 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 4019, 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 became operative on October 1, 2011, the Legislature 

enacted the current version of the statute, under which two days of conduct credit may be 

earned for each two days of actual custody. (§ 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 provides 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 prisoner prior to October 1, 2011, (hereafter the 

October 1, 2011, amendment) shall be calculated at the rate required by the prior law.” 

(§ 4019, subd. (h).) The former sentence expressly makes the amended statute applicable 

when the crime was committed on or after October 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), and those who had prior convictions for violent 

or serious felonies, however, two 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 prisoners 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 conclusion, we relied heavily on People v. Brown (2012) 54 

Cal.4th 314 (Brown), in which the California Supreme Court held the amendment to 

section 4019 that became effective January 25, 2010 (hereafter the January 25, 2010, 

amendment) applied prospectively only. (Brown, supra, at p. 318; Ellis, supra, at 

p. 1550.) 

Brown first examined rules of statutory construction. It observed that “[w]hether a 

statute operates prospectively or retroactively is, at least in the first instance, a matter of 

legislative intent.” (Brown, supra, 54 Cal.4th at p. 319.) Where the Legislature’s intent 

is unclear, Civil Code section 3 and cases construing its provisions require prospectiveonly application, unless it is “‘very clear from 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, amendment 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, absent 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, did not alter the penalty for any particular crime. (Brown, 

supra, at pp. 323-325, 328.) Rather than addressing punishment for past criminal 
6 

conduct, Brown explained, section 4019 “addresses future conduct in a custodial setting 

by providing increased incentives 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 held the October 1, 2011, amendment does not 

apply retroactively as a matter of statutory construction 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 federal 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.] Accordingly, ‘“[t]he first prerequisite to a 

meritorious claim under the equal protection clause is a showing that the 

state has adopted a classification that affects two or more similarly situated

groups in an unequal manner.”’ [Citation.] ‘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 [citation] are not served by rewarding 

prisoners who served time before the incentives 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 the 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 expressly held, namely that authorizing presentence conduct 

credit for misdemeanants who later served their sentences in county jail, but not for 

felons who ultimately were sentenced 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 dealt with a statute granting credit for time served, 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 apply with equal force to the 

October 1, 2011, amendment. [Citation.]” (Ellis, supra, 207 Cal.App.4th at p. 1552.) 

Accordingly, we reject defendant’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 defendant’s position were similarly 

situated to inmates who committed their offenses on or after 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 conclusion that the Legislature had a rational basis for enacting the 

October 1, 2011, amendment and would also reject defendant’s equal protection 

argument under the second prong of equal protection analysis.