Filed 4/17/13 P. v. Baulknight CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ERIC BAULKNIGHT, Defendant and Appellant. D061905

(Super. Ct. No. SCD234645)

APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. Eyherabide, Judge. Affirmed.
Defendant Eric Baulknight pled guilty to committing crimes on June 5, 2011. He also admitted he had a prior serious felony conviction and a prior strike conviction. The court imposed a 13-year stipulated sentence. Baulknight's sole appellate contention is that the court erred in calculating his presentence conduct credits. (Pen. Code, 1 § 4019.) Specifically, he argues the trial court

1 All further statutory references are to the Penal Code.2 erred in failing to award him enhanced pr esentence conduct credits under the current version of section 4019. The co ntention is without merit and we affirm the judgment. FACTUAL AND PROCEDURAL SUMMMARY The following factual summary is based on the probation report. On June 5, 2011, Baulknight punched his elde rly mother after she refused to give him money for marijuana, resulting in substan tial injury to his mother's face. La ter that evening, Baulknight was transported to a mental health facility, wh ere he attacked one of the nurses, punching her in the jaw and throat. On February 15, 2012, Baul knight pled guilty to committ ing willful cruelty to an elder adult resulting in great bodily injury an d an assault by force likely to inflict great bodily injury. (§§ 368, su bd. (b)(1), 243, subd. (d).) On April 19, 2012, the court sentenced Baulknight to 13 years, and aw arded him 320 actual da ys and 160 conduct credits. Baulknight was in continuous lo cal custody from the da te he committed the crimes until he was sentenced. DISCUSSION Baulknight contends the c ourt erred in calculating his custody credits based on the prior version of section 4019, ra ther than on the newer versi on of the statute that became operative on October 1, 2011, whil e he was awaiting sentencing. Under section 4019, defenda nts are entitled to earn cred it towards their sentences by performing additional labor (§ 4019, subd. (b)) and for good beha vior (§ 4019, subd. (c)). These credits are referred to as conduct credits. ( People v. Duff (2010) 50 Cal.4th 787, 793.)3 The Legislature has repeatedly ame nded section 4019 regarding the proper calculation of conduct credits. When Baul knight committed his offense in June 2011, individuals who had been convicted of a se rious or violent fel ony were entitled to two days of conduct credits for ev ery four days actually served . (See Former § 4019, subd. (f); Stats. 2010, ch. 426, § 2; former § 2933, subd. (e)(1); see People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-49 ( Rajanayagam ).) However, when Baulknight was in local custody awaiting sentencing, the Legislat ure amended section 4019 as part of the Realignment Act and amended former sectio n 2933. The amendments, which became operative on October 1, 2011, eliminated th e prior felony strike disqualification and increased the amount of conduct credits earned by prisoners in local custody to one day of conduct credit for each day spent in actual cu stody. (§ 4019, subds . (b), (c), (f); Stats. 2011, ch. 39, § 53; see also St ats. 2011-2012, 1st Ex. Sess ., ch. 12, § 35 (Assem. Bill No. 17 (2011-2012 Ex. Sess.).) In awarding 160 conduct credits to Ba ulknight, the court applied the former version of section 4019 in e ffect at the time Baulknight committed his crime. Baulknight contends the applicable conduct credits he accrued after the amendment's operative date (October 1, 2011) should have been calculate d using the more generous amended rate. He argues the reduced conduct credit award for his time serv ed after October 1, 2011 violates section 4019 and hi s equal protection rights. Baulknight forfeited this argument by faili ng to raise the issue in the proceedings below. By not objecting to th e conduct credit calculation, Baulknight waived his right to4 challenge any error in the court's award amount. ( People v. Myers (1999) 69 Cal.App.4th 305, 312.) We also conclude the argument fails on its merits. With respect to the October 1, 2011 amendment, section 4019 , subdivision (h) states: "T he changes to this section enacted by the act that added this subdivision shall apply prospecti vely and shall apply to prisoners who are confined to a county jail, city jail, i ndustrial farm, or road camp for a crime committed on or after October 1, 2011 . Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the ra te required by the prior law." (Italics added.) Baulknight was confined for crimes co mmitted in June 2011 , which is before October 1, 2011. Thus, the amended statut e's new credit calculation rate is expressly inapplicable to Baulknight. Although recognizing that th e first sentence of section 4019, subdivision (h) states that the amendment "shall apply prospectivel y" and "shall apply to prisoners who are confined . . . for a crime comm itted on or after October 1, 2011," Baulknight nonetheless contends he is entitled to take advantag e of the amendment for local time served after October 1, 2011, because the second sentence of section 4019, subdiv ision (h) refers to days earned by a prisoner before the Octobe r 1 date. Baulknight argues that to give meaning to this second sentence, the statute must be interpre ted as providing that days earned by a prisoner after October 1, 2011 must be calculated at the rate established by the new law, even if the crime was committed before the October 1 date. Several courts have rejected th e identical argument. (See, e.g., Rajanayagam,

supra, 211 Cal.App.4th 42; People v. Ellis (2012) 207 Cal.App.4th 1546 ( Ellis ).) The5 Rajanayagam court explained: "[S]ubdivision (h)'s first sentence reflects the Legislature intended the enhanced conduct credit provis ion to apply only to those defendants who committed their crimes on or after October 1, 2011. Subdivision (h )'s second sentence does not extend the enhanced conduct credit pr ovision to any other group, namely those defendants who committed offenses before Oc tober 1, 2011, but ar e in local custody on or after October 1, 2011. In stead, subdivision (h)'s second sentence attempts to clarify that those defendants who committed an offe nse before October 1, 2011, are to earn credit under the prior law. However inartful th e language of subdivision (h), we read the second sentence as reaffirming that defe ndants who committed their crimes before October 1, 2011, still have th e opportunity to earn conduc t credits, just under prior law. . . . To imply the enhanced conduct credit provision applies to defendants who committed their crimes before the effective date but served time in local custody after the effective date reads too much in to the statute and ignores the Legislature's clear intent in subdivision (h)'s first senten ce. [fn. omitted.] [¶] We recognize the Legislature in drafting subdivision (h)'s second sentence used the word 'earne d.' And it is impossible to earn presentence credits for an offense that has not yet been committed. But reading the first and second sentences together, the im plication is the enha nced conduct credit provision applies to defendants who committed crimes before October 1, 2011, but who served time in local custody after that date. To isolate the verbiage of the second sentence would defy the Legislature's clear inte nt in subdivision (h)'s first sentence and contradict well-settled principles of statutory construction. . . . [W]e find the enhanced6 conduct credit provision applies only to those defendants who committed their crimes on or after October 1, 2011." ( Rajanayagam , supra , 211 Cal.App.4th at p. 52.) The Ellis court similarly conclude d: "In our view, the Le gislature's clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after October 1, 2011. [Citation.] The second sentence does not extend the enhanced rate to any other group, but merely sp ecifies the rate at which all others are to earn conduct credits. So read, th e sentence is not meaningless, especially in light of the fact the October 1, 2011, am endment to section 4019, alth ough part of the so-called realignment legislation, applies based on th e date a defendant's crime is committed, whereas section 1170, subdivision (h), which se ts out the basic sentencing scheme under realignment, applies based on the da te a defendant is sentenced." ( Ellis, supra , 207 Cal.App.4th at p. 1553.) We agree with the reasoning of the Rajanayagam and Ellis courts and reach the same conclusion. The plain language of section 4019, subdivision (h) makes clear the amendment's new credit calculation rate applie s only to individuals who are confined for a crime committed on or after October 1, 2011. Reasonably read, the second sentence does not permit a court to ignore this plain language. We thus reject Baulknight's contention he is statutorily entitle d to conduct credits at the in creased rate provided in the amended version of section 4019. We also reject Baulknight's argument th at this interpretation of section 4019 violates his constitutional e qual protection rights.7 To succeed on an equal protection claim, Baulknight must first show the state has adopted a classification that affects two or mo re similarly situated groups in an unequal manner. (See People v. Hofsheier (2006) 37 Cal. 4th 1185, 1199; People v. Wilkinson (2004) 33 Cal.4th 821, 836-837; Manduley v. Superior Court (2002) 27 Cal.4th 537, 571.) Second, Baulknight must show there is no rational basis for the different treatment of similarly situated groups. (See People v. Kennedy (2012) 209 Cal.Ap p.4th 385, 397 [proper test for issues concerning co nduct credits is rational basis review]

. ) Under this highly deferential test, a statutory classificat ion is constitutionally sound if there are any reasonably conceivable facts th at could provide a rational ba sis for the classification. ( Ibid. ; see People v. Turnage (2012) 55 Cal.4t h 62, 74-75.) For purposes of Baulknight's appellate contention, there are two classes of incarcerated inmates: (1) those in jail on or after October 1, 2011, having committed a crime on or after October 1, 2011; and (2) th ose in jail on or after October 1, having committed the same offense before October 1, 2011. Even assuming these groups are similarly situated, the classifications bear a rational relationship to a legitimate state
purpose. One of the objectives of the Realignmen t Act and the amendment to section 4019 was to more cost-effectively mana ge prison populations. (See Rajanayagam, supra , 211 Cal.App.4th at pp. 54-55.) This goal is achi eved by the section 4019 amendment, as the fiscal crisis is ameliorated to a degree by awarding additional conduct credits to those prisoners who committed their crimes on or after October 1, 2011. Although awarding enhanced credits retroactively would have produced greater co st savings, the Legislature8 did not choose this approach. Nonetheless, the approach the Legislature did choose bears a rational relationship to cost savings. Under the rational relationship test, the Legislature is permitted to "experiment individually with various therapeutic programs relate d to criminal charges or convictions" ( In re Huffman (1986) 42 Cal.3d 552, 561), so as "to control the risk of new legislation by limiting its application" ( People v. Lynch (2012) 209 Cal.App.4th 353, 361), and determine what work s and what does not. (See Warden v. State Bar (1999) 21 Cal.4th 628, 649 [reform measur es can be implemented one step at a time].) Because the deferential nature of the rational basis te st does not permit us to second guess the Legislature and determine the most effect ive manner to achieve the legitimate state interest, the classifications established in se ction 4019 bear a rational relationship to a legitimate state interest. Baulknight contends the da te of October 1, 2011 is arbitrary and thus has no legitimate or rational public pu rpose. However, all changes, additions or deletions to the code must have a beginning date . Equal protection of the la w "does not forbid statutes and statutory changes to have a beginning and thus to discriminate between rights of an earlier and later time." ( Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505;

see People v. Floyd (2003) 31 Cal.4th 179, 188 ["[d]efendant has not cited a single case, in this state or any other, that recognizes an equal protection viol ation arising from the timing of the [operative] date of a statute lessening the punishment for a particular offense"].)9 Additionally, the Legislatur e could have rationally be lieved that by making the 2011 amendment to section 4019 apply based on the offense date, it was "preserving the deterrent effect of the criminal law as to those crimes committed before that date. To reward appellant with the enhanced credits of the 2011 amendment to section 4019, even for time he spent in custody after October 1, 2011, weakens the deterrent effect of the law as it stood when appellant committed his crimes. We see nothing irrational or implausible in a legislative conclusion that individuals should be punished in accordance with the sanctions and given the rewards (condu ct credits) in effect at the time an offense was committed." ( People v. Kennedy, supra , 209 Cal.App.4th at p. 399.) DISPOSITION Judgment affirmed.

HALLER, J. WE CONCUR:

BENKE, Acting P. J.

M C DONALD, J.