Filed 8/9/22 P. v. Hawkins CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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COURT OF APPEAL, FOURH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER HAWKINS,

Defendant and Appellant.

 D079457

 (Super. Ct. No. SCD288450)

APPEAL from a judgment of the Superior Court of San Diego County, 

Peter C. Deddeh, Judge. Remanded with instructions.

Ava R. Stralla, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Charles C. Ragland, Acting Assistant Attorney General, 

Heather B. Arambarri and Steve Oetting, Deputy Attorneys General, for 

Plaintiff and Respondent. 
2

INTRODUCTION

At the time Christopher Hawkins was confined to a state hospital for 

treatment to restore his competence, he was not entitled to earn presentence 

conduct credits, but others receiving the same treatment in a county jail 

facility could earn such credits under then-existing Penal Code section 4019.1 

In October 2021, while this appeal was pending, the Legislature enacted 

Senate Bill No. 317 (2021-2022 Reg. Sess.) (Senate Bill 317) to amend section 

4019 to eliminate that disparity and “ensure[ ] incompetent defendants are 

eligible for the same . . . conduct [credit] as their competent counterparts, 

while receiving treatment in any treatment facility,” including a state 

hospital. (Assem. Com. on Appropriations, Rep. on Sen. Bill 317, as amended 

July 12, 2021, p. 2, italics added.) Here, we conclude Senate Bill 317 does not 

apply retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada). But 

as a matter of equal protection, Hawkins is entitled to conduct credit for time 

confined at the state hospital receiving competency treatment, like other

detainees receiving the same treatment in a county jail facility under thenexisting section 4019. The matter is remanded to the trial court with 

instructions to award Hawkins 48 additional conduct credits pursuant to 

section 4019 and to amend the abstract of judgment accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

In a racist tirade, Hawkins threatened to kill a family of four, punched 

the father in the face (breaking his glasses), and struck the mother in her 

chest when she pleaded for him to stop. He was arrested on August 24, 2019, 

1 All further undesignated statutory references are to the Penal Code.
3

detained in county jail, and charged with four counts of criminal threats 

(§ 422) and two counts of misdemeanor battery (§ 242).2

On September 9, 2019, criminal proceedings were suspended pursuant 

to section 1368 and Hawkins was subsequently found incompetent to stand 

trial. He was committed to Patton State Hospital (Patton) to undergo 

treatment for restoration of competency on January 10, 2020. He remained 

there until February 26, confined for a total of 48 days.3 Hawkins returned 

to county jail and was found competent to stand trial. 

On June 28, 2021, a jury convicted Hawkins as charged. On July 26, 

the trial court sentenced Hawkins to a prison term of 3 years and 8 months.

The court awarded Hawkins a total of 1,357 days of custody credit against his 

sentence, which included 703 days of actual time credit and 654 days of 

conduct credit pursuant to section 4019. He received actual time credit for

the 48 days he was confined at Patton, but he was not awarded conduct credit 

for that time.4 Because his total pre-confinement credits satisfied his 

2 The District Attorney dismissed and refiled the case in December 2020. 

The record on appeal does not contain the earlier dismissed case. We derive 

many of the procedural facts from the Probation Officer’s Report prepared for 

sentencing, filed July 26, 2021. 

3 Although there is no dispute by the parties that Hawkins spent 48 days 

at Patton for competency restoration treatment, we note the only record we 

have of these facts is the Probation Officer’s Report.

4 In the Probation Officer’s Report, probation calculated Hawkins’ 

presentence credits and stated he was “not entitled to [conduct] credits while 

in Patton State Hospital” pursuant to People v. Waterman (1986) 42 Cal.3d 

565 (Waterman). We discuss Waterman, post.
4

sentence, Hawkins was ordered released at sentencing and to report for 

parole supervision.5 

Hawkins timely appealed on September 8, 2021, challenging only the 

trial court’s failure to award him 48 days conduct credit for time spent at the 

state hospital. 

DISCUSSION

I.

Legislative Amendments to Section 4019

Section 4019 offers defendants held in local custody or other specified 

settings the opportunity to earn presentence credit against their sentences 

for good behavior and work performed, commonly referred to as “conduct 

credits.” (See § 4019, subds. (a)–(c).) “Conduct credits encourage prisoners to 

conform to prison regulations, to refrain from criminal and assaultive 

conduct, and to participate in work and other rehabilitative activities.” 

(People v. Brown (2012) 54 Cal.4th 314, 317 (Brown).) At the relevant time 

here, a detainee could earn one day for satisfactory performance of assigned 

labor and one day for good behavior for every four-day period of confinement 

(§ 4019, subds. (b)–(c)), such that “a term of four days will be deemed to have 

been served for every two days spent in actual custody” (id., subd. (f)). 

Section 4019 specifies the categories of detainees who are eligible to earn 

conduct credits. Over time, the Legislature has amended the statute on 

several occasions to expand the categories of eligibility. 

5 This fact does not render the issue presented in the appeal moot. Any 

credit Hawkins should have been given can be applied against his parole 

period. (§ 1170, subd. (a)(3); see In re Strick (1983) 148 Cal.App.3d 906, 910, 

fn. 1; In re Sosa (1980) 102 Cal.App.3d 1002, 1005−1006; id. at p. 1005

[“Section 1170 explicitly declares that presentence credit applies against both 

the imprisonment and the parole portion of the sentence.”].) 
5

In the past, defendants deemed incompetent to stand trial (IST 

defendants) were treated in state hospitals or other treatment facilities, “and 

were not statutorily eligible for conduct credit.” (People v. Yang (2022) 78 

Cal.App.5th 120, 125 (Yang), citing Waterman, supra, 42 Cal.3d at 

pp. 568−571; Waterman, at p. 569 [“The criminal-incompetence statute does 

not expressly allow such conduct credit.”].) In Waterman, the California 

Supreme Court rejected an equal protection challenge to the denial of section 

4019 credits to individuals undergoing treatment for competency restoration. 

(Waterman, at pp. 569, 571, fn. 4.) The Waterman court reasoned that “[t]he 

goal of treatment for incompetence seems particularly inconsistent with an 

incentive-credit system during therapy. The purpose of confinement is to 

restore the mental ability to stand trial” and “that goal would be hindered if 

mere institutional good behavior and participation automatically reduced the 

therapy period.” (Id. at p. 570.) Consequently, the Waterman court held

“[b]ecause pretrial confinement for treatment of incompetence is so different 

from other forms of pretrial detention, . . . equal protection principles do not 

require that [detainees] receive, while confined for treatment, the benefit of 

the limited work-and-conduct credit system available to persons confined in 

jail prior to trial.” (Id. at p. 571, fn. 4.) “This remained the state of the law 

for many years,” as our colleagues in the First Appellate District noted. 

(Yang, at p. 126.)

“In 2007, the statutory landscape began to change with the enactment 

of section 1369.1, providing that a county jail could be a ‘treatment facility’ 

within the context of section 1367 et seq. for the sole purpose of 

administering antipsychotic medication to IST defendants. (Stats. 2007, 

ch. 556, § 3.) Additional legislation in 2012 provided for treatment of IST

defendants in county jails without the limitation pertaining to administering
6

antipsychotic medication. (§ 1369.1, as amended by Stats. 2012, ch. 24, § 25.) 

In 2017, the Legislature gave the State Department of State Hospitals

jurisdiction over any county jail treatment facility under contract to provide

competency restoration services. (Welf. & Inst. Code, § 4100, subd. (g), added 

by Stats. 2017, ch. 17, § 61.)”6 (Yang, supra, 78 Cal.App.5th at p. 126.)

In 2018, the Legislature enacted Senate Bill No. 1187 (2017–2018 Reg. 

Sess.) (Senate Bill 1187), which “rejected in part [the] view” of the Waterman

court that the goal of treatment for incompetence is inconsistent with an 

incentive-credit system during therapy. (People v. Orellana (2022) 74 

Cal.App.5th 319, 332 (Orellana).) Senate Bill 1187 became effective January 

1, 2019, more than a year before Hawkins was committed to Patton. It

“modif[ied] the statutory framework governing conduct credit eligibility 

during incompetency treatment by amending sections 1375.5 and 4019 to 

authorize conduct credits for persons receiving treatment in county jail 

facilities. Section 1375.5, as part of the statutory scheme governing mental 

competence of a defendant to stand trial, addresses the issue of credit for 

time spent by a defendant in a hospital or other facility due to a commitment 

for mental incompetence. As amended, section 1375.5, subdivision (c) states 

that ‘[a] person subject to this chapter shall receive credits pursuant to 

[s]ection 4019 for all time during which he or she is confined in a county jail 

and for which he or she is otherwise eligible.’ (§ 1375.5, subds. (a), (c), as 

6 Section 1369.1 was repealed by Senate Bill No. 184 (2021–2022 Reg. 

Sess.), an omnibus health trailer bill, effective June 30, 2022. (Stats. 2022, 

ch. 47, § 42, effective June 30, 2022.) Section 4019 was further amended by 

Senate Bill No. 184, operative January 1, 2023, to remove the reference to 

now-repealed section 1369.1, but it will continue to provide conduct credits to 

a detainee confined in a county jail treatment facility. (Stats. 2022, ch. 47, 

§ 50, eff. June 30, 2022, operative Jan. 1, 2023.)
7

amended by Stats. 2018, ch. 1008, § 4.)” (Orellana, at pp. 332–333.) The

amendment to section 4019 “matched” the changes to section 1375.5 

(Orellana, at p. 333), by adding a new subdivision (a)(8) to provide that IST 

defendants are eligible for conduct credit while “confined in or committed to a 

county jail treatment facility” for competency treatment pursuant to section 

1367 et seq. (former § 4019, subd. (a)(8), as amended by Stats. 2018, ch. 1008, 

§ 5, effective Jan. 1, 2019, repealed Jan. 1, 2021). 

“Senate Bill 1187 was enacted to ensure that IST defendants being held 

and treated in county jail would be entitled to earn conduct credits just as

other jail inmates. (Assem. Com. on Pub. Safety, Rep. on Sen. Bill No. 1187 

(2017–2018 Reg. Sess.) as amended May 25, 2018, p. 5.) Although legislative 

analyses reflected the Legislature’s express awareness that IST defendants 

in a state hospital were not statutorily or constitutionally entitled to conduct 

credit under section 4019, the analysis disclosed no explanation why the 

Legislature⎯at that point⎯declined to similarly extend the availability of 

conduct credit to such defendants.” (Yang, supra, 78 Cal.App.5th at pp. 126–

127.) 

In October 2021, the Legislature closed that gap. It enacted Senate Bill 

317 to further amend section 4019, subdivision (a)(8), “so that IST defendants 

receiving competency treatment in a state hospital could also receive conduct 

credits. (Stats. 2021, ch. 599, § 3 (effective Jan. 1, 2022).) The legislative 

history indicates the bill was meant to ‘ensure[ ] incompetent defendants are 

eligible for the same time served credit for good conduct as their competent 

counterparts, while receiving treatment in any treatment facility or as an 

outpatient, not just . . . county jail treatment.’ (Assem. Com. on 

Appropriations, Rep. on Sen. Bill No. 317 (2021–2022 Reg. Sess.) as amended 

July 12, 2021, p. 2.)” (Yang, supra, 78 Cal.App.5th at p. 127, italics added.) 
8

“The plain meaning of [Senate Bill 317] is that, as of January 1, 2022, 

defendants undergoing treatment for incompetence in a state hospital are 

eligible for section 4019 conduct credit on the same terms as those confined to 

county jails.” (Orellana, supra, 74 Cal.App.5th at p. 333.) Senate Bill 317 

became effective while Hawkins’ appeal was pending in this court, but after 

he had been restored to competence and completed his sentence.

Based on these legislative changes, Hawkins contends he is entitled to 

conduct credit for the 48 days he was confined at Patton for competency 

treatment, on two grounds: First, he argues Senate Bill 317 must apply 

retroactively to him under the Estrada rule, as set forth in Estrada, supra, 63 

Cal.2d at pages 742 through 745. Second, if it does not apply retroactively, 

equal protection principles nevertheless require that he be afforded the same 

opportunity for conduct credit that Senate Bill 1187 extended to IST

defendants receiving competency treatment in a county jail facility. 

II.

Senate Bill 317 Does Not Apply Retroactively Under Estrada

Hawkins contends Senate Bill 317 applies retroactively to him under

Estrada because it is an ameliorative change to the criminal law that became 

effective before judgment in his case became final. We disagree. Like the 

courts in Yang and Orellana, we conclude that the California Supreme 

Court’s decision in Brown, supra, 54 Cal.4th at page 325 forecloses 

retroactive application of the new law under Estrada. (See Yang, supra, 78 

Cal.App.5th at pp. 127−128; Orellana, supra, 74 Cal.App.5th at pp. 335−336.)

Under the Estrada rule, we presume, absent evidence to the contrary, 

that statutes lessening punishment for criminal conduct apply retroactively 

to all defendants whose sentences are not final on the statute’s operative 

date. (Brown, supra, 54 Cal.4th at p. 323; Estrada, supra, 63 Cal.2d at 
9

pp. 742−745.) In Brown, our high court considered whether “a more generous 

but ultimately short-lived 2009 amendment to section 4019 applied 

retroactively” under Estrada. (Yang, supra, 78 Cal.App.5th at p. 127; see 

Brown, at pp. 323−328.) The Brown court concluded there was “no

justification for applying the rule of Estrada” to a statutory amendment that

increased the rate at which detainees may earn conduct credits. (Brown, at 

p. 328, some italics added; id. at pp. 325−328.) It explained “the rule and 

logic of Estrada is specifically directed to a statute that represents ‘ “a 

legislative mitigation of the penalty for a particular crime” ’ (Estrada, at 

p. 745, italics added) because such a law supports the inference that the 

Legislature would prefer to impose the new, shorter penalty rather than to 

‘ “satisfy a desire for vengeance” ’ (ibid.).” (Brown, at p. 325.) But “[t]he same 

logic does not inform our understanding of a law that rewards good behavior 

in prison,” because such a law “addresses future conduct in a custodial setting 

by providing increased incentives for good behavior.” (Ibid.) 

We are required to follow Brown, which forecloses Hawkins’ claim that 

Senate Bill 317 applies retroactively under Estrada. (Auto Equity Sales, Inc. 

v. Superior Court (1962) 57 Cal.2d 450, 455; see Yang, supra, 78 Cal.App.5th 

at pp. 127−128; Orellana, supra, 74 Cal.App.5th at pp. 335−336.) As in 

Brown, the recent amendments to section 4019 do not include an express 

retroactivity provision. They do not mitigate or lessen punishment for a 

particular crime, but rather allow the accrual of conduct credits by a group 

previously excluded from its provision. (See Orellana, at p. 336.) And there 

is nothing in the legislative history to demonstrate a “ ‘ “clear and 

unavoidable implication” ’ ” the Legislature intended the expanded categories 

of conduct credit eligibility to operate retroactively. (Brown, supra, 54 

Cal.4th at p. 319, citing Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 
10

1208 [requiring “ ‘ “express language or [a] clear and unavoidable implication 

[to] negative[ ] the presumption” ’ ” against retroactivity under Civ. Code,

§ 3]; accord Orellana, at p. 336.) 

Hawkins asserts the rationale of Senate Bill 317 distinguishes his case

from Brown. He argues Brown focused on an amendment to section 4019

that increased the rate of conduct credit award, “such that the Court could 

analyze the question before it as one of increased incentive for future good 

behavior.” The legislative history of Senate Bill 317, he argues, demonstrates 

it was intended to “address[ ] the range and comprehensiveness of treatment 

options and the avoidance of disparity in sentence length between persons 

receiving different treatment options.” Because Senate Bill 317 was intended 

to “correct the unfairness” of the prior law, he argues it “carries a much 

stronger inference of retroactivity than the legislation at issue in Brown.” He 

asserts Senate Bill 317 is “closer” to the legislation considered by the 

California Supreme Court in People v. Sage (1980) 26 Cal.3d 498 (Sage) and 

In re Kapperman (1974) 11 Cal.3d 542 (Kapperman). These same arguments 

were rejected by the court in Orellana, and we see no reason why Hawkins 

would obtain a different result here.

As the Orellana court noted, the Brown court “squarely rejected the 

argument advanced here . . . that courts should infer legislative intent of 

retroactive application from a statute that equalizes credits among different 

groups of defendants.” (Orellana, supra, 74 Cal.App.5th at p. 335, citing 

Brown, supra, 54 Cal.4th at pp. 325−326 & fn. 15.) In rejecting the 

defendant’s claim that Estrada “should be understood to apply more broadly 

to any statute that reduces punishment in any manner,” the Brown court 

accepted the notion that “a convicted prisoner who is released a day early is 

punished a day less.” (Brown, at p. 325.) But it did not accept the 
11

defendant’s “suggest[ion] the Legislature’s desire to reduce punishment 

through former section 4019 can be inferred from its intent to equalize the 

credit-earning ability of state and local prisoners.” (Id. at p. 325, fn. 15.) The 

Brown court explained, “to recognize the Legislature wished to equalize 

credits does not, by itself, provide a logical basis for inferring the Legislature 

wished to do so retroactively.” (Ibid.) Further still, the Brown court rejected 

the comparison to cases involving custody credit, including Kapperman, 

because those could “properly be distinguished as irrelevant” to determining 

the retroactivity of conduct credits.7 (Brown, at p. 326.)

Hawkins argues courts have applied the Estrada inference of 

retroactivity “in a wide variety of other circumstances,” not just to changes in 

the law that reduce jail and prison sentences. Although it is true “the 

California Supreme Court in recent years has expanded the scope of Estrada

beyond the somewhat limited terrain described in Brown,” (Orellana, supra, 

74 Cal.App.5th at p. 335), Brown’s holding that there is no Estrada inference 

of retroactivity from a statutory amendment to section 4019 remains 

“controlling here.” (Orellana, at p. 336; see People v. Esquivel (2021) 11 

Cal.5th 671, 676 [under Brown, a “change to accrual of good behavior credits 

7 Kapperman and Sage are also not helpful to our discussion of Estrada

retroactivity because both cases were decided on equal protection grounds. 

(See Sage, supra, 26 Cal.3d at pp. 504, 506−508 [concluding a former version 

of section 4019 that authorized presentence conduct credits for 

misdemeanants who ultimately served their sentences in county jail but not 

for felons confined in jail awaiting trial violated equal protection]; 

Kapperman, supra, 11 Cal.3d at pp. 544−545 [concluding an expressly 

prospective statute that granted felons credit for time served in local custody 

before sentencing and commitment to state prison must apply retroactively to 

eliminate the discriminatory classification and avoid equal protection 

concerns].)
12

incentivized future conduct rather than altering the penalty for a crime, and 

thus did not ameliorate punishment in the relevant sense”].) As the Orellana

court summed it up: “Section 4019, at issue here, operates in the same 

manner it did when the California Supreme Court examined it in Brown. 

There, . . . the [high] court concluded that because the amendment to section 

4019 addressed forward-looking conduct incentives, it would not presume the 

Legislature intended the amendment to apply retroactively and therefore 

Estrada did not apply. Because the Brown analysis squarely applies here, we 

reach the same conclusion. We hold that Senate Bill 317 does not apply 

retroactively to [Hawkins,] who had completed his restoration to competence 

in the state hospital long before enactment of this legislation.” (Orellana, at 

p. 338; accord Yang, supra, 78 Cal.App.5th at p. 128.)

III.

Hawkins Is Entitled to Conduct Credit as a Matter of Equal Protection

Even if Senate Bill 317 does not apply retroactively, Hawkins contends 

equal protection principles require that he be afforded the same opportunity 

for conduct credit that Senate Bill 1187 extended to IST defendants receiving 

competency treatment in a county jail facility. On a similar equal protection 

claim, the courts in Yang and Orellana reached different conclusions. The 

Orellana court concluded Brown’s constitutional analysis of the forwardlooking nature of the incentive structure of section 4019 “effectively precludes 

the court from deeming two groups similarly situated for purposes of earning 

conduct credits when the time in custody preceded the availability of 

incentive based credits.” (Orellana, supra, 74 Cal.App.5th at pp. 341−342.) 

The Yang court disagreed with this reading of Brown, and instead concluded 

IST defendants confined in a state hospital for competency treatment are 

similarly situated to their counterparts receiving treatment in a jail facility, 
13

and their disparate treatment under section 4019 as amended by Senate Bill 

1187 violated equal protection guarantees. (Yang, supra, 78 Cal.App.5th at 

pp. 129−131.) We agree with Yang and reach the same conclusion here.

A. Similarly Situated

We analyze the equal protection guarantees of the Fourteenth 

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

subdivision (a) of the California Constitution in “a similar fashion,” as they 

are “substantially equivalent.” (People v. Leng (1999) 71 Cal.App.4th 1, 11.) 

“The concept of equal protection recognizes that persons who are similarly 

situated with respect to a law’s legitimate purposes must be treated equally.” 

(Brown, supra, 54 Cal.4th at p. 328.) The threshold question to an equal 

protection claim is “whether two classes that are different in some respects 

are sufficiently similar with respect to the laws in question to require the 

government to justify its differential treatment of these classes under those 

laws.” (People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee).) 

“ ‘ 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 similarly situated groups in an unequal manner.’ ” 

(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “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.’ ” (Ibid.) Equal 

protection does not require absolute equality in classification. (People v. 

Shipman (1965) 62 Cal.2d 226, 232.) “There is always some difference 

between the two groups which a law treats in an unequal manner since an 

equal protection claim necessarily asserts that the law in some way 

distinguishes between the two groups.” (People v. Nguyen (1997) 54 

Cal.App.4th 705, 714.)
14

Hawkins was determined incompetent to stand trial in November 2019 

and ordered committed to a state hospital to receive treatment to restore his 

mental competency. He was subsequently committed to Patton in January 

2020. At the time he was found mentally incompetent, the court could also 

have ordered Hawkins committed to any other authorized treatment facility, 

including a county jail treatment facility, for competency restoration. (See 

§ 1370, subd. (a)(1)(B)(i).8) At this time, section 4019 as amended by Senate 

Bill 1187 had been in effect for well over a year. That version of section 4019, 

in effect at the time of Hawkins’ commitment, entitled IST defendants the 

opportunity to earn conduct credit, but only if confined or committed to a 

county jail treatment facility. (Former § 4019, subd. (a)(8).) It is these two 

groups⎯IST defendants receiving competency treatment at a state hospital 

and IST defendants receiving competency treatment at a county jail facility, 

postdating Senate Bill 1187’s effective date of January 1, 2019⎯that 

Hawkins contends are similarly situated but treated unequally, without 

justification. 

We agree with the Yang court that “the two groups are similarly 

situated for purposes of evaluating the conduct credit disparity created by 

8 Section 1370, subdivision (a)(1)(B)(i) provides: “The court shall order 

that the mentally incompetent defendant be delivered by the sheriff to a 

State Department of State Hospitals facility as defined in Section 4100 of the 

Welfare and Institutions Code, as directed by the State Department of State 

Hospitals, or to any other available public or private treatment facility, 

including a community-based residential treatment system . . . , that will 

promote the defendant’s speedy restoration to mental competence, or placed 

on outpatient status[.]” (Italics added.) Welfare and Institutions Code 

section 4100, subdivisions (a) through (e) specify the five state hospitals, 

including Patton, and subdivision (g) specifies “[a] county jail treatment 

facility under contract with the State Department of State Hospitals to 

provide competency restoration services.”
15

Senate Bill 1187.” (Yang, supra, 78 Cal.App.5th at p. 129.) As the Yang

court explained: “One purpose of the bill was to ‘[a]uthorize[ ] a person 

committed to a facility pending the restoration of mental competence to earn 

credits,’ though the bill ultimately only authorized defendants treated in jail 

facilities and not in state hospitals to such credit. (Sen. Rules Com., Off. of 

Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1187 (2017–2018 

Reg. Sess.) as amended May 25, 2018, p. 3.) But both groups of defendants 

are subject to the same IST standards and procedures. (§ 1367 et seq.) 

Moreover, both groups are committed for treatment aimed at restoration of 

competency so that a trial may proceed. The only apparent difference 

between them is the location where the defendant receives competency 

treatment, which appears dependent on multiple factors, such as whether a 

particular facility has the physical space and resources to accept the 

commitment, the medical needs of the defendant, the security risk the 

defendant poses, and whether the committing county can reasonably and 

timely transport the individual to the proposed facility. (Cal. Code Regs., 

tit. 9, §§ 4710–4717; Welf. & Inst. Code, §§ 7228, 7230.) As such, defendants 

receiving competency treatment in a state hospital are sufficiently similar to 

defendants receiving competency treatment in county jail ‘ “ ‘to merit 

application of some level of scrutiny to determine whether distinctions 

between the two groups justify the unequal treatment.’ ” ’ ” (Yang, at 

pp. 127−128.)

The court in Orellana rejected a similar equal protection claim. There, 

our colleagues in the Sixth Appellate District concluded Brown’s 

constitutional analysis of the forward-looking nature of the incentive 

structure of section 4019 “effectively precludes the court from deeming two 

groups similarly situated for purposes of earning conduct credits when the 
16

time in custody preceded the availability of incentive based credits.” 

(Orellana, supra, 74 Cal.App.5th at pp. 341−342, italics added.) The court 

focused on the Brown court’s observation that “ ‘the important correctional 

purposes of a statute authorizing incentives for good behavior [citation] are 

not served by rewarding prisoners who served time before the incentives took 

effect and thus could not have modified their behavior in response. That 

prisoners who served time before and after former section 4019 took effect are 

not similarly situated necessarily follows.’ ” (Orellana, at p. 340, quoting 

Brown, supra, 54 Cal.4th at pp. 328−329.) From this the court determined 

“Brown held that individuals who had already been sentenced were not 

similarly situated to those who were in custody after the new legislation 

entered into force.” (Orellana, at pp. 339−340, italics added.) It then 

concluded the defendant “is not similarly situated to inmates to whom Senate 

Bill 317 statutorily applies” and thus denial of conduct credits to him does not 

violate equal protection. (Id. at p. 342, italics added.)

But unlike the defendant in Brown, Hawkins does not contend that it is 

the prospective application of the statutory amendment at issue, Senate Bill 

317, that violates equal protection guarantees. (See Brown, supra, 54 Cal.4th 

at p. 328 [“Defendant contends that to apply former section 4019 

prospectively violates the equal protection clauses of the state and federal 

Constitutions.”].) Hawkins does not focus on any temporal distinction 

between IST defendants who received competency treatment in state 

hospitals before and after passage of Senate Bill 317 extending conduct 

credits to that group. He points to Senate Bill 317 not to define the groups 

for equal protection comparison, but to highlight the Legislature’s own 

acknowledgment of the “ ‘perverse outcome’ ” under Senate Bill 1187 and the 

lack of any compelling state interest or a rational basis for treating him 
17

differently than his counterparts in county jails. Thus, like in Yang, he 

challenges “the disparate treatment of two groups of IST defendants whose 

confinement for competency treatment postdated a statutory amendment 

that authorizes conduct credits only for those committed to a jail facility but 

not for those committed to a state hospital.” (Yang, supra, 78 Cal.App.5th at 

pp. 130–131, italics added.) Although Orellana acknowledged this critical 

distinction in the comparison framework, we agree with Yang that it does not 

persuasively resolve it. (Yang, at p. 131; see Orellana, supra, 74 Cal.App.5th

at pp. 340−341.) 

We also agree with Yang that viewing “Brown as compelling the 

conclusion that IST defendants receiving competency treatment in a jail 

facility and IST defendants receiving competency treatment in a state 

hospital are not similarly situated because the former group was incentivized 

to earn conduct credit after Senate Bill 1187’s enactment while the latter 

group was not” is “read[ing] Brown too broadly.” (Yang, supra, 78 

Cal.App.5th at p. 131.) It is illogical to say that IST defendants confined in a 

state hospital are not similarly situated to those confined in a county jail 

treatment facility on the basis they could not have been incentivized to earn 

conduct credit because the law did not apply to them. A defendant’s ability to 

state an equal protection claim cannot be dependent on the Legislature’s own 

choice of classification when it is that very classification that is being 

challenged as unjustified. (See id. at pp. 132−133.)

Similarly relying on Brown’s analysis of the forward-looking nature of 

the incentive structure of section 4019, the Attorney General asserts that 

“even assuming the two groups are similarly situated going forward, it does 

not follow that the two groups were similarly situated at the time the law 

was passed.” And here, “[t]he statutory amendments under section 4019 
18

could not incentivize [Hawkins] to behave while at Patton State Hospital once 

he was no longer interned there.” This assertion overlooks that at the time 

Hawkins was committed to Patton, section 4019 allowed IST defendants to 

earn conduct credit if they were receiving treatment in a county jail facility. 

Again, the only reason Hawkins was not similarly incentivized to earn 

conduct credits was because of the Legislature’s choice to treat him 

differently than detainees confined in a county jail facility. Moreover, since 

conduct credits are calculated at the time of sentence, when else could 

Hawkins have brought an equal protection challenge but after he had been 

restored to competency, released from Patton, criminal proceedings have been 

reinstated, and he is sentenced? Based on the Attorney General’s logic, a 

defendant in Hawkins’ position could never invoke equal protection, even 

though his behavior might otherwise have qualified him for conduct credit 

under existing legislation. Like the Yang court, we cannot agree with this 

conclusion. (Yang, supra, 78 Cal.App.5th at p. 131.)

We conclude Hawkins has met the threshold of demonstrating the two 

groups of IST defendants “are sufficiently similar with respect to the laws in 

question to require the government to justify its differential treatment of 

these classes under those laws.” (McKee, supra, 47 Cal.4th at p. 1202.)

B. Standard of Scrutiny

Once it is determined that two groups are similarly situated for the 

purposes of a statute, we ask whether disparate treatment of the groups is 

justified. (McKee, supra, 47 Cal.4th at p. 1207.) In considering whether a 

state law violates the equal protection clauses of the state and federal 

Constitutions, “ ‘we apply different levels of scrutiny to different types of 

classifications. At a minimum, a statutory classification must be rationally 

related to a legitimate governmental purpose. [Citations.] Classifications 
19

based on race or national origin . . . and classifications affecting fundamental 

rights . . . are given the most exacting scrutiny. Between these extremes of 

rational basis review and strict scrutiny lies a level of intermediate scrutiny, 

which generally has been applied to discriminatory classifications based on 

sex or illegitimacy.’ ” (People v. Wilkinson (2004) 33 Cal.4th 821, 836–837.) 

Under strict scrutiny, “ ‘the state bears the burden of establishing not 

only that it has a compelling interest which justifies the law but that the 

distinctions drawn by the law are necessary to further its purpose.’ ”

(D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17.) But “where

the law challenged neither draws a suspect classification nor burdens 

fundamental rights, . . . [w]e find a denial of equal protection only if there is 

no rational relationship between a disparity in treatment and some 

legitimate government purpose.” (People v. Chatman (2018) 4 Cal.5th 277, 

288–289.) 

Hawkins contends there is no compelling state interest, or even a 

rational basis, for the disparate treatment under section 4019 as amended by 

Senate Bill 1187, but he does not advocate which standard of scrutiny this 

court must apply. The Attorney General has not attempted to justify the 

disparate treatment, so does not even address which standard of scrutiny 

should apply. 

“[C]ourts have reached different conclusions about which test applies 

to incongruities resulting from statutes involving time credits[.]” (People v. 

Applin (1995) 40 Cal.App.4th 404, 409.) A number of courts have applied 

strict scrutiny, also referred to as the compelling state interest test, to 

evaluate disparities in the law concerning credit allowances. 

(See e.g., People v. Saffell (1979) 25 Cal.3d 223, 228, 233, 235 (Saffell); Sage, 

supra, 26 Cal.3d at pp. 506–508 & fn. 6; People v. Caruso (1984) 161
20

Cal.App.3d 13, 16–18; In re Huffman (1986) 42 Cal.3d 552, 559–561; see also 

Waterman, supra, 42 Cal.3d at p. 569.) But other courts have applied 

rational basis review. (See e.g., People v. Rajanayagam (2012) 211 

Cal.App.4th 42, 53, 55; In re Bender (1983) 149 Cal.App.3d 380, 388–389.) 

In Yang, the court applied strict scrutiny to section 4019 as amended 

by Senate Bill 1187 because conduct credit eligibility impacts the length of 

one’s incarceration and thus, personal liberty. (Yang, supra, 78 Cal.App.5th 

at pp. 131−136.) The court thoroughly analyzed the standard of scrutiny

applied to statutes involving time credits in prior cases, and was persuaded

the Supreme Court’s decisions in Saffell, Sage, and Waterman compelled 

strict scrutiny. (Ibid.) We need not repeat the same analyses undertaken by 

the Yang court because we conclude the disparate treatment of IST 

defendants in state hospitals under section 4019 as amended by Senate Bill 

1187 cannot survive even rational basis review.

Under rational basis review, “the legislation survives constitutional 

scrutiny as long as there is ‘ “any reasonably conceivable state of facts that 

could provide a rational basis for the classification.” ’ [Citation.] This 

standard of rationality does not depend upon whether lawmakers ever 

actually articulated the purpose they sought to achieve. Nor must the 

underlying rationale be empirically substantiated. [Citation.] While the 

realities of the subject matter cannot be completely ignored [citation], a court 

may engage in ‘ “rational speculation” ’ as to the justifications for the 

legislative choice [citation]. It is immaterial for rational basis review 

‘whether or not’ any such speculation has ‘a foundation in the record.’ ” 

(People v. Turnage (2012) 55 Cal.4th 62, 74−75.)

Here, the Legislature did articulate the purpose they sought to achieve 

in enacting Senate Bill 317. The Legislature acknowledged “ ‘[e]xisting law 
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provides that incompetent defendants can only receive time served credits for

good conduct when in a county jail treatment facility.’ ” (Sen. 3d Reading

Analysis of Sen. Bill 317, as amended Sept. 1, 2021, p. 1.) Arguments in 

support of Senate Bill 317 included that:

“ ‘Under current law, defendants earn pre-trial custody credits 

against any jail or prison sentence they ultimately receive. 

However, defendants who are deemed incompetent to stand trial 

only receive good time/work time credits for time spent in a jail 

setting and not for time spent involuntarily detained in a 

hospital. As a result, these defendants receive only half as much 

custody credit as other defendants. The perverse outcome is that

defendants who suffer from mental health challenges, once 

restored to competence, are forced to serve longer sentences than 

competent defendants charged with the same offense.’ ”

(Id. at p. 2, italics added.) No arguments in opposition of Senate Bill 317 

were recorded. (Ibid.) Senate Bill 317 was thus enacted to “ ‘ensure[ ]

incompetent defendants are eligible for the same time served credit for good 

conduct as their competent counterparts, while receiving treatment in any 

treatment facility or as an outpatient, not just a county jail treatment.’ ” 

(Ibid.) 

In light of the Legislature’s determination that it is “ ‘perverse’ ” to give 

conduct credits to IST defendants in a county jail facility (and competent 

defendants), but not IST defendants in a state hospital (Sen. 3d Reading 

Analysis of Sen. Bill 317, as amended Sept. 1, 2021, p. 2), we cannot discern a 

rational basis for the disparate treatment of IST defendants confined in a 

state hospital under section 4019 as amended by Senate Bill 1187. We 

therefore conclude Hawkins is entitled to conduct credit for the time he spent 

receiving competency treatment at Patton since the effective date of Senate 

Bill 1187. 
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DISPOSITION

The matter is remanded to the trial court with instructions to award 

Hawkins 48 additional conduct credits pursuant to section 4019 and to 

amend the abstract of judgment accordingly.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.