Filed 2/24/15 P. v. Loeza CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

EDUARDO ORTIZ LOEZA,

 Defendant and Appellant.

 G048660

 (Super. Ct. No. 12CF1411)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Thomas M. Goethals, Judge. Affirmed in part, reversed in part, and remanded with 

directions.

Cynthia M. Jones, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and 

Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

INTRODUCTION

A jury found Eduardo Ortiz Loeza guilty under count 1 of attempted 

forcible oral copulation (Pen. Code, §§ 288a, subd. (c)(2), 664, subd. (a)), under count 2 

of sexual battery by restraint (id., § 243.4, subd. (a)), and under count 3 of misdemeanor 

simple assault

1

(id., § 242) as a lesser included offense of the charged offense of assault 

of a minor with the intent to commit a sexual offense (id., § 220, subd. (a)(2)). The trial 

court sentenced Loeza to a term of three years on count 2, with a concurrent term of three 

years on count 1, and suspended imposition of sentence on count 3. 

Loeza argues his conviction for simple assault must be reversed because it 

is a lesser included offense of sexual battery by restraint, for which he was convicted 

under count 2. He also argues he should receive one more day of presentence custody 

credit because Penal Code section 4019, subdivision (f) (section 4019(f)) must be 

interpreted as authorizing one day of presentence conduct credit for each day of actual 

presentence custody. 

We conclude, under the evidence presented, misdemeanor simple assault is 

a lesser included offense of sexual battery by restraint and, therefore, Loeza’s conviction 

under count 3 must be reversed. We also conclude that section 4019(f) authorizes two 

days of presentence conduct credit for every two days of actual custody and, therefore, 

Loeza is not entitled to an additional day of presentence custody credit. Our 

interpretation of section 4019(f), which is based on its plain and unambiguous language, 

does not violate equal protection. 

Accordingly, we reverse the conviction under count 3, remand with 

directions to modify the judgment to award Loeza 414 days of presentence conduct 

credit, and in all other respects affirm.

 

 

1

 The jury verdict found Loeza guilty of “SIMPLE ASSAULT” in violation of Penal 

Code section 242, which defines battery. The jury was instructed on simple assault under 

Penal Code sections 240 and 241, subdivision (a).
3

FACTS

Loeza lived with his girlfriend and their son in her parent’s three-bedroom 

house. Loeza and his girlfriend shared one bedroom. The girlfriend’s sister, M.Q., lived 

in the same house and slept in a different bedroom. 

On May 10, 2012 at 2:30 a.m., while half asleep, M.Q. heard a knock on 

her bedroom door. She got out of bed and opened the door to find Loeza standing 

outside. He told her to let him sleep in her bedroom. When she said no, he put his foot in

the door so she could not close it. He pulled out a knife, forced himself into the room, 

and locked the door behind him. 

With the door locked, Loeza repeatedly told M.Q. he desired her. She told 

him to leave and reminded him that he was her sister’s boyfriend and that he had a son. 

Loeza told M.Q. to sit on the bed. She complied because she was afraid he would hurt 

her. Loeza touched M.Q.’s arms and legs and kissed her. When she tried to push him 

away, he told her, “don’t get me mad” and threatened her with the knife. He began to 

caress her bottom. He lifted M.Q.’s shirt, reached under her bra, and touched her breast. 

M.Q. told Loeza she was having her menstrual cycle and placed a teddy bear on her lap 

to deflect his advances. He tried pulling the teddy bear away and told her he wanted to 

have sex with her. 

Loeza pulled down his pants and exposed his erect penis. He grabbed 

M.Q.’s hand, placed it on his penis, and told her to move her hand back and forth. When

M.Q. tried to pull her hand away, Loeza threatened her by saying, “don’t get me mad.” 

Loeza told M.Q. to put her mouth on his penis. She said no and resisted. 

He grabbed her head and pulled it toward his penis. She kept pushing away until he let 

go of her head. Then, a noise startled Loeza. He pulled his pants up and told M.Q. that if

she told anybody what he had done, “something was going to happen” to her family.
4

DISCUSSION

I.

Misdemeanor Assault Conviction

The jury found Loeza guilty under count 3 of simple assault as a lesser 

included offense of the charged offense of assault of a minor with intent to commit a 

sexual offense. Loeza seeks reversal of that conviction on the ground it was also a lesser 

included offense of count 2 (sexual battery by restraint). 

A defendant cannot be convicted of both an offense and a lesser offense 

necessarily included within that offense based on his or her commission of the identical 

act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) “When a defendant is found guilty 

of both a greater and a necessarily lesser included offense arising out of the same act or 

course of conduct, and the evidence supports the verdict on the greater offense, that 

conviction is controlling, and the conviction of the lesser offense must be reversed.” 

(People v. Sanders (2012) 55 Cal.4th 731, 736.) A lesser offense is necessarily included 

in the charged offense if either the “‘elements’” test or the “‘accusatory pleading’” test is 

met. (People v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test is satisfied if all of 

the elements of the lesser offense are included in the elements of the greater offense. 

(Ibid.) “[I]f a crime cannot be committed without also necessarily committing a lesser 

offense, the latter is a lesser included offense within the former.” (Ibid.)

Simple assault can be a lesser included offense of sexual battery by 

restraint. (People v. Carapeli (1988) 201 Cal.App.3d 589 (Carapeli).) In Carapeli, the 

victim agreed to give the defendant a ride to his home. (Id. at p. 591.) At one point, 

before the car came to a complete stop, the defendant crawled on top of the victim and, 

while she tried to set the emergency brake, tried to kiss her, and placed one hand down 

her blouse and the other hand up her skirt. (Id. at p. 592.) Although the victim resisted, 

the defendant managed to touch her breasts and vaginal area. (Ibid.) The victim ran from 
5

the car and screamed for help. (Ibid.) The defendant ran after her, caught her, threw her 

over his shoulder and carried her to some bushes, where he threw her down and got on 

top of her. (Ibid.) The defendant again touched her breasts and vaginal area. The victim 

asked the defendant to get off her so she could remove a rock pressing against her back. 

(Ibid.) When he lifted up his body, the victim rolled out from under him and ran to the 

car. After a scuffle with the defendant, who had run after her, the victim was able to 

drive away. (Ibid.)

In Carapeli, supra, 201 Cal.App.3d at page 591, the jury convicted the 

defendant of assault with intent to commit rape and sexual battery by restraint

(corresponding to counts 3 and 2, respectively, in this case). On appeal, the defendant 

argued the trial court erred in its response to a jury question asking whether the jury could 

find the defendant guilty of sexual battery, not guilty of assault with intent to commit 

rape, and guilty of simple assault as a lesser included offense. (Id. at p. 595.) The court 

responded that the jury might find the defendant guilty of sexual battery, not guilty of 

assault with intent to commit rape, and not guilty of the lesser included offense of assault 

“‘because in order to find him guilty of the [lesser included offense] assault you have to 

find him not guilty on both counts.’” (Ibid.) The Court of Appeal held that response was 

correct. (Ibid.) If the jury had returned a guilty verdict on simple assault as a lesser 

included offense of assault with intent to commit rape, and a guilty verdict on sexual 

battery, the jury verdicts would violate the rule that multiple convictions are prohibited 

when one offense is necessarily included in the other. (Id. at pp. 595-596.)

Carapeli is analogous except in one respect. Here, whether simple assault

is a lesser included offense of sexual battery by restraint under count 2 depends upon 

which acts were the basis for each count. Count 2 charged Loeza with violation of Penal 

Code section 243.4, subdivision (a), which punishes sexual battery when the accused 

“touches an intimate part of another person while that person is unlawfully restrained” 

for purposes of sexual arousal or gratification. (Italics added.) Loeza and the Attorney 
6

General agree the prosecution elected to base count 2 on two acts of touching an intimate 

part: (1) Loeza touching M.Q.’s breast, and (2) Loeza forcing M.Q. to touch his penis. 

As the basis for the assault alleged in count 3, Loeza argues the prosecution 

elected to rely on all of his acts of touching up to the point when M.Q. said she was 

having her menstrual period. Those acts, Loeza contends, constituted a continuous 

course of conduct that included touching M.Q.’s breast and, therefore, count 3 necessarily 

was included within count 2. The Attorney General argues the prosecution elected to 

base the assault charged in count 3 on only two acts: (1) Loeza kissing M.Q., and 

(2) Loeza caressing M.Q.’s bottom. Since neither of those acts is the same as either act 

alleged as the basis for count 2, the Attorney General argues simple assault under count 3 

is not a lesser included offense of count 2 and “the record shows the offense of simple 

assault arose from conduct that was separate and divisible from the conduct which 

formed the basis for the offense of sexual battery by restraint.” 

The jury was instructed to consider simple assault if it found Loeza not 

guilty on either count 2 or count 3 and that a simple assault occurs when the defendant 

willfully applies “force,” which means “to touch in a harmful or offensive manner.” The 

instruction did not identify any specific acts of touching by Loeza. 

Both Loeza and the Attorney General turn to the prosecutor’s closing 

argument to determine the factual basis for count 3. In closing argument, the prosecutor 

explained that count 2, sexual battery by restraint, required that Loeza had touched an 

intimate part of M.Q. or that she had touched an intimate part of him. The prosecutor 

argued: “M[.Q.] told us he touched her under the bra. And he also forced M[.Q.] to 

touch his penis, and we know that again because both M[.Q.] told us and the defendant 

admitted to it when he was being interviewed by Officer Castro. And we don’t need 

both. We don’t need him to have touched her breast and her to have touched his penis. 

We need one or the other, but in this case we have both.” 
7

In addressing the elements of count 3 (assault of a minor with the intent to 

commit a sexual offense), the prosecutor explained that “application of force” can mean 

“even the slightest bit of touching, as long as that touching was done in an offensive 

manner.” The prosecutor then argued: “I don’t think there’s anything more offensive 

than having a man touch you [who] you don’t want touching you. To touch you on your 

inner thighs. To touch you on your vagina. To touch your breast. To kiss you, caress 

you. To do things to you that you do not want done to you. There is nothing more 

offensive that one can do to touch you. [¶] And he did that act willfully.” 

Loeza argues the above quoted passage establishes the prosecutor elected to 

base count 3 on all the offensive touchings committed against M.Q. The Attorney 

General argues the above quoted passage is only a list of the types of touching that could 

hypothetically constitute the crime of assault of a minor with the intent to commit a 

sexual offense, the offense charged in count 2. 

We conclude the better reading of the prosecutor’s closing argument is the 

description of offensive touchings was not intended to be a hypothetical list of 

possibilities. Rather, the prosecutor was identifying the acts of offensive touching

committed by Loeza, which included touching M.Q.’s breast, kissing her, and caressing

her, which constituted the factual basis for count 3. After describing the offensive 

touchings, the prosecutor stated, “[a]nd he did that act willfully.” (Italics added.) As 

Loeza argues, there was evidence in the record that he touched M.Q.’s vagina over her 

clothing, he kissed M.Q., he touched her thigh, and he touched the parts of M.Q.’s body 

that were swabbed for DNA (which included M.Q.’s front thigh). Those were the acts 

described by the prosecutor in closing argument.

The prosecutor also argued: “And did he know that his actions would 

result in the application of force? Of course he did. He did it. He touched her. He knew 

what he was doing was offensive because she told him it was. She kept saying no. She 

kept pushing his hands away from her body. He knew what he was doing was offensive.” 
8

By referring to Loeza’s “actions” and to M.Q.’s response, this passage supports the 

conclusion the prosecutor based count 3 on all of the offensive touchings. 

The Attorney General argues count 3 was based only on Loeza kissing 

M.Q. and caressing her bottom because the prosecutor stated in closing argument: “He 

kisses her. He caressed her. He tries to seduce her. With a knife sitting right next to 

him. With the knife always in sight. With the knife always readily available. And he 

keeps grabbing the teddy bear that M[.Q.] put in between her legs.” The prosecutor did 

not specify which body parts Loeza “caressed,” and that term could include touching 

M.Q.’s breast. During cross-examination, M.Q. was asked whether Loeza “did caress 

other parts of your body.” She answered yes, “he lifted up my shirt and went under my 

bra.” 

When the prosecutor presented his closing argument on count 3, he was 

arguing for conviction on the charged offense of assault of a minor with the intent to 

commit a sexual offense. The prosecutor acknowledged there were lesser included 

offenses, but argued, “[t]hey don’t apply” because “[t]his isn’t a simple assault.” Thus, 

the prosecutor was not electing specific instances on which to base a charge of 

misdemeanor assault; instead, the prosecutor was arguing Loeza engaged in a course of 

assaultive conduct with the intent to commit a sexual offense on M.Q. The prosecutor’s 

closing argument, viewed as a whole, supports our conclusion the prosecutor did not elect 

to limit count 3 to the acts of kissing M.Q. and caressing her buttocks. 

Based on the evidence presented at trial and the prosecutor’s closing 

argument, the offense of simple assault, as a lesser included offense of count 3, was also 

a lesser included offense of count 2. The conviction under count 3 for misdemeanor 

assault therefore must be reversed. As we are reversing the conviction on count 3, we do 

not address whether the trial court erred in suspending sentence on that count.
9

II.

Presentence Custody Credit

A. Calculating the Number of Days of Presentence Conduct Credit

In calculating Loeza’s presentence custody credit, the trial court relied on 

Penal Code section 2933.1 to limit his accrual of credit to 15 percent of actual time 

served. Loeza was granted 415 actual presentence custody days plus 62 days of 

presentence conduct credit under Penal Code section 4019 (as limited by section 2933.1)

for a total of 477 days. 

Loeza and the Attorney General agree the trial court erred by limiting 

Loeza’s accrual of presentence conduct credit to 15 percent of actual days under Penal 

Code section 2933.1 because he was not convicted of a violent felony under Penal Code 

section 667.5, subdivision (c). Loeza and the Attorney General also agree that 

presentence conduct credit must be calculated under section 4019(f), but they disagree 

over the number of days of conduct credit produced by the statutory formula. Loeza 

argues he is entitled to 415 days of presentence conduct credit based on one day of credit 

for each day served in custody. The Attorney General argues Loeza is entitled to 414 

days of presentence conduct credit based on two days of credit for every two days served 

in custody.

To determine whether Loeza gets one more day of presentence custody 

credit, we must interpret section 4019(f)). Our task is to discern the Legislature’s intent, 

first by considering the language of that statute. (Smith v. Superior Court (2006) 39 

Cal.4th 77, 83.) If the statutory language is unambiguous, the plain meaning controls and 

consideration of extrinsic sources to determine the Legislature’s intent is unnecessary. 

(Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 

919.) 
10

Section 4019(f) states: “It is the intent of the Legislature that if all days are 

earned under this section, a term of four days will be deemed to have been served for 

every two days spent in actual custody.” The statutory language expressly and clearly 

declares the Legislature’s intent that four days will be deemed served for every two days

in actual custody. If the Legislature intended to award one day of credit for each in 

custody—the one-for-one formula argued by Loeza—the Legislature could have said so 

quite easily. Because section 4019(f) is not in the least ambiguous, we need not turn to 

extrinsic sources to aid in our interpretation of it. (Smith v. Superior Court, supra, 39 

Cal.4th at p. 83.)

The two days of presentence conduct credit authorized by section 4019(f) 

are the sum of the one day of credit authorized by Penal Code section 4019, 

subdivision (b) (section 4019(b)) and the one day of credit authorized by section 4019, 

subdivision (c) (section 4019(c)). Section 4019(b) provides that “for each four-day 

period in which a prisoner is confined in or committed to a facility,” one day will be 

deducted from the term of confinement unless the prisoner has refused to satisfactorily 

perform assigned labor. Section 4019(c) provides that “[f]or each four-day period in 

which a prisoner is confined in or committed to a facility,” one day will be deducted from 

the term of confinement unless the prisoner has not satisfactorily complied with rules and 

regulations. As both section 4019(b) and section 4019(c) authorize one day of credit for 

each four-day period of confinement, section 4019(f) must be interpreted to authorize two 

days of credit for each four-day period of confinement. 

In People v. King (1992) 3 Cal.App.4th 882, 885 (King), the Court of 

Appeal interpreted a prior version of section 4019(f) that provided, “‘[i]f all days are 

earned under this section, a term of six days will be deemed to have been served for every 

four days spent in actual custody.’” In King, the defendant had 47 actual days of 

presentence custody credit and was granted 22 days of presentence conduct credit under 

former section 4019(f), for a total of 69 days. (King, supra, at p. 884.) The defendant
11

contended he was entitled to two more days of conduct credit based on a formula in 

which the number of actual custody days is divided by two, adding the product to the 

actual custody days, and rounding up (47 ÷ 2 = 23.5, 47 + 23.5 = 70.5, rounded up to 71). 

(Id. at pp. 884-885.) Another formula, used by some courts, was to multiply by 1.5 the 

actual custody days and rounding up (hence, 47 x 1.5 = 70.5, rounded up to 71). (Id. at 

p. 885.) The Court of Appeal rejected both formulas as inconsistent with the plain 

language of former section 4019(f), under which “[c]redits are given for increments of 

four days” and “[n]o credit is awarded for anything less.” (King, supra, at p. 885.) 

“Thus, for his 47 days of actual custody, defendant is entitled to 22 days of conduct credit 

. . . and no additional credit for the extra 3 days.” (Ibid.; see People v. Guillen (1994) 25 

Cal.App.4th 756, 764 [“[The defendant’s] worktime, good conduct credit is derived by 

dividing the days of actual custody by four, not by rounding up fractional numbers, and 

multiplying the result by two.”].) 

King cited People v. Smith (1989) 211 Cal.App.3d 523 (Smith), in which 

the Court of Appeal addressed the same six-days-for-four-days formula of former 

section 4019(f). The Court of Appeal concluded that “[c]redits are given in increments of 

four days.” (Smith, supra, at p. 527.) The court calculated presentence custody credit by 

dividing the 211 actual custody days by four, which “is the equivalent to fifty-two sets of 

four days, with three extra.” (Ibid.) The court multiplied 52 by two, to produce 104 days 

of conduct credit. (Ibid.) The defendant was not entitled to conduct credit for the extra 

three days of actual custody. (Ibid.)

The California Supreme Court, in In re Marquez (2003) 30 Cal.4th 14, 

25-26, approved the Smith method of calculating custody credit under former 

section 4019(f). The Supreme Court explained: “Employing this approach, we take the 

number of actual custody days (4 + 113 + 113 = 230) and divide by 4 (discarding any 

remainder), which leaves 57 (230 ÷ 4 = 57). We then multiply the result by 2 (57 x 2 = 

114), resulting in a total of 114 days of conduct credit. To arrive at the total amount of 
12

credit to which petitioner is entitled (custody plus conduct), we add the custody credit 

(230 days) to the conduct credit (114 days), giving us a total of 344 days (230 + 114).” 

(In re Marquez, supra, at p. 26.)

Current section 4019(f) is drafted in the same format as former 

section 4019(f) and therefore should be interpreted and applied in same way, substituting 

the number “two” for the number “four.” Applying the formula approved by the 

Supreme Court in In re Marquez, we take the number of Loeza’s actual presentence 

custody days (415) and divide by two (discarding the remainder), which is 207 (415 ÷ 2 = 

207.5, rounded down to 207). We then multiply the 207 by two, resulting in a total of 

414 days of conduct credit. To arrive at the total amount of credit to which Loeza is 

entitled, we add the actual custody credit of 415 days to the conduct credit of 414 days, 

producing a total of 829 days.

B. Equal Protection

Under section 4019(f), a defendant with an odd number of presentence 

actual custody days will receive one less day of presentence custody credit than a 

defendant having the next higher even number of presentence actual custody days, and 

the same number of presentence custody credit as a defendant having the next lower even 

number of presentence custody days. For example, Loeza with 415 actual presentence 

custody days, will receive one less day of presentence custody credit than a defendant 

with 416 actual custody days, and the same number of presentence custody credit as a 

defendant having 414 actual custody days. For that reason, Loeza contends 

section 4019(f) denies him equal protection of the laws guaranteed by the Fourteenth 

Amendment to the United States Constitution and article I, section 7 of the California 

Constitution. 

“‘The 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 
13

similarly situated groups in an unequal manner.’ [Citations.] 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.]” (Cooley v. Superior Court

(2002) 29 Cal.4th 228, 253.)

The two similarly situated groups, Loeza argues, are defendants with an 

odd number of actual custody days and defendants with an even number of actual custody 

days. He argues the difference in treatment between those two groups constitutes an 

equal protection violation.

The court in People v. Jacobs (1992) 6 Cal.App.4th 101, 103-104 (Jacobs) 

addressed and rejected a similar equal protection challenge to former section 4019(f). 

The Jacobs court concluded: “Under the Penal Code section 4019 scheme, a detainee is 

not similarly situated to all other presentence detainees, as would be the case if a uniform 

ratio were required for all detainees. Instead, a detainee is similarly situated only to other 

detainees who have served the same number of days in presentence confinement. [¶] 

Defendant received the same treatment under Penal Code section 4019 as any other 

defendant who serves the same number of days in presentence confinement.” (Jacobs, 

supra, at p. 104.)

We agree with Jacobs and conclude Loeza is not similarly situated to 

defendants having an even number of actual custody days. Loeza argues the reasoning of 

Jacobs is “suspect” because in that case the Court of Appeal interpreted former 

section 4019(f) as authorizing custody credit only for four-day increments of 

incarceration. That interpretation of former section 4019(f) was approved, however, by 

the California Supreme Court in In re Marquez, supra, 30 Cal.4th 14. Loeza’s race 

analogy is inapt. In the analogy, the White defendant and the Black defendant are being 

treated differently based on their race, not the number of actual custody days.

Even if defendants with an odd number of actual presentence custody days 

and defendants with an even number of actual presentence custody days are similarly 
14

situated for equal protection purposes, the difference in treatment passes the applicable 

test. “‘In resolving equal protection issues, the United States Supreme Court has used 

three levels of analysis. Distinctions in statutes that involve suspect classifications or 

touch upon fundamental interests are subject to strict scrutiny, and can be sustained only 

if they are necessary to achieve a compelling state interest. Classifications based on 

gender are subject to an intermediate level of review. But most legislation is tested only 

to determine if the challenged classification bears a rational relationship to a legitimate 

state purpose.’” (In re Smith (2008) 42 Cal.4th 1251, 1262-1263.) 

Personal liberty is a fundamental right. (People v. Olivas (1976) 17 Cal.3d 

236, 251.) But personal liberty is not at stake in cases of conduct credit because “[Penal 

Code] section 4019 does not alter the penalty for any crime; a prisoner who earns no 

conduct credit serves the full sentence originally imposed. Instead of addressing 

punishment for past criminal conduct, the statute addresses future conduct in a custodial 

setting by providing increased incentives for good behavior.” (People v. Brown (2012) 

54 Cal.4th 314, 325.) 

The rational relationship test therefore applies here, and it is met. Under 

the rational relationship test, we ask whether the challenged classification bears a rational 

relationship to a legitimate state purpose or, put another way, whether there is any 

reasonably conceivable state of facts that could provide a rational basis for the 

classification. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-482.)

There is a rational basis for the distinction in treatment between defendants 

with an odd number of actual custody days and defendants with an even number of actual 

custody days. In King, supra, 3 Cal.App.4th at page 886, the Court of Appeal, in 

rejecting an equal protection challenge to former section 4019(f), explained: “Assuming 

the equal protection clause applies to pretrial detainees held for multiples of four days 

and those held for periods that are not even multiples of four, we conclude there is a 

rational basis for the four-day increment method of calculation. [Penal Code 
15

s]ection 4019 awards two distinct kinds of credit. Section 4019, subdivision (b) 

authorizes one day of credit for each four-day period of confinement if the prisoner has 

performed assigned labor. Section 4019, subdivision (c) authorizes one day of credit for 

each four-day period of confinement if the prisoner has satisfactorily complied with the 

rules and regulations of the institution. The Legislature apparently determined the 

appropriate ratio for awarding each type of compliant behavior is a reduction of sentence 

by one day for four days of appropriate behavior. The Legislature can rationally reward 

each type of behavior separately and in whole day increments as a reasonable 

accommodation to administrative practicality.” (See People v. Ramos (1996) 50 

Cal.App.4th 810, 824 [section 4019 does not violate equal protection “insofar as it 

awards presentence conduct credits in multiples of four days only”].) 

In other words, if section 4019(f) were interpreted to require one-for-one 

presentence conduct credit, the state would have to award credit under section 4019(b) 

and under section 4019(c), in half-day increments rather than full-day increments, which 

would be impractical in administrating. We agree with King. Section 4019(f) does not 

deny Loeza equal protection.

DISPOSITION

The judgment on count 3 is reversed. The matter is remanded with 

directions to the trial court to modify the judgment to award Loeza 414 days of 

presentence conduct credit, in addition to 415 days of actual time served, for a total of 

829 days of presentence credit. The trial court is directed to prepare an amended abstract
16

of judgment and forward a certified copy of it to the Department of Corrections and 

Rehabilitation. In all other respects, the judgment is affirmed.

FYBEL, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.