1 

Filed 2/27/14 P. v. DeConter CA1/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

WILLIAM GREGORY DECONTER, JR., 

 Defendant and Appellant. 

 A135352 

 (Sonoma County 

 Super. Ct. No. SCR600403) 

INTRODUCTION

 Defendant and appellant William Gregory DeConter, Jr., was convicted of driving 

under the influence of alcohol and driving with a blood alcohol content exceeding 0.08 

percent. He contends: no substantial evidence supported the verdict because the 

prosecution did not prove the corpus delicti; the court denied his due process rights by 

instructing the jury on permissive inferences; and the calculation of presentence conduct 

credit under Penal Code section 4019 violated his equal protection rights. We conclude 

these claims are meritless, and affirm the judgment. 

BACKGROUND

 Defendant lived in the same apartment complex as his ex-girlfriend, L.K. On 

March 28, 2011, L.K. was standing outside with Thomas Pepper, whom she was dating at 

the time. Between 8:00 and 8:30 p.m., Pepper saw defendant’s vehicle leave the 

apartment complex and saw defendant drive back into the complex about five minutes 

later. 
2 

 Within “three [or] four minutes” of defendant driving by, Pepper “gave [L.K.] a 

kiss goodnight” and went around the corner to where he had parked his truck. He 

discovered the “right passenger window [of his truck] was shattered, broken,” and he 

could “still hear it crackling.” Pepper went back to L.K.’s apartment, and the two of 

them returned to Pepper’s truck, where he called 911. Pepper immediately suspected 

defendant, who “didn’t seem to apparently like [him] dating . . . his ex-girlfriend.” 

 At about 8:25 p.m., Santa Rosa Police Officer Christopher Mahurin was 

dispatched to a parking lot next to defendant’s apartment complex regarding the possible 

vandalism of Pepper’s truck. Pepper testified it took about 10 minutes for the officer to 

arrive from the time he called 911. Officer Mahurin met with Pepper and L.K., then went 

to defendant’s apartment and made contact with him at about 8:34 p.m. Officer Mahurin 

observed defendant had “watery, glassy eyes, slow and slurred speech, as well as a strong 

odor of alcoholic beverage . . . .” Defendant was having difficulty standing without 

leaning on the door frame and was “swaying back and forth.” When he moved away 

from the door frame, “[h]e was stumbling as he was walking, having a difficult time.” It 

appeared to Officer Mahurin defendant was intoxicated. 

 Officer Mahurin asked defendant if he had broken Pepper’s truck window, and he 

responded “he hadn’t because he had just pulled in two minutes ago.” Defendant told the 

officer he had gone to a liquor store to buy alcohol. When asked whether he was drunk, 

he responded, “Oh, yeah.” Defendant also told him he “hadn’t had anything to drink 

since he had gotten home from the liquor store.” Officer Mahurin initiated five field 

sobriety tests, none of which defendant passed. The tests took about 15 minutes to 

complete, after which Officer Mahurin arrested defendant. 

 Officer Mahurin verified that the vehicle identified as the one defendant had been 

driving was registered to him. He touched the hood of the vehicle and determined “it was 

still warm and looked like it had been recently driven.” Based on the hood temperature 

and his experience, Officer Mahurin testified the vehicle had been operated “definitely 

within a half hour by the warmth of it.” 
3 

 Officer Mahurin told defendant he had a choice between taking a breath or blood 

test, and he chose a blood test. Officer Mahurin transported him to Sutter Hospital. The 

drive to the hospital took seven or eight minutes, and Officer Mahurin could smell 

alcohol on defendant during the trip. A registered nurse drew defendant’s blood sample 

at about 9:45 p.m. The blood alcohol content (BAC) of the blood sample was 0.21 

percent. 

 The Sonoma County District Attorney charged defendant by information with 

driving under the influence of alcohol (Veh. Code, 1 § 23152, subd. (a)) and driving with 

a BAC of 0.08 percent or above. (§ 23152, subd. (b).)2

 As to both counts, there were 

enhancing allegations that defendant’s BAC was 0.20 percent or more (§ 23538, subd. 

(b)(2)) and he had three or more prior convictions for driving under the influence in the 

last 10 years. (§ 23550.) 

 At trial, the criminalist testified there is a five percent error rate in the alcohol 

testing process, which meant defendant’s BAC could have been 0.20 or 0.22 percent. 

The criminalist explained an average 1.25 ounce shot of 80 proof alcohol would raise the 

BAC of a 150-pound man by 0.025 percent. It would take approximately eight shots of 

alcohol to raise the BAC of a 150-pound man to 0.21 percent. The criminalist could not 

determine from the results of the blood test, alone, whether defendant’s BAC was going 

up or down. 

 Following the close of the prosecution’s case at trial, defendant moved for a 

directed verdict on all counts and the section 23538, subdivision (b)(2) enhancements. 

The court granted the motion as to the enhancements for driving with a BAC of 0.20 

percent or more, but denied it as to the remaining counts. The jury found defendant 

 1

All further statutory references are to the Vehicle Code unless otherwise 

indicated. 

2

Violation of subdivision (a) of section 23152 is sometimes called a “generic 

DUI,” while violation of subdivision (b) is known as a “per se DUI.” (People v. McNeal

(2009) 46 Cal.4th 1183, 1193.) 
4 

guilty of both counts, and the court found true the remaining enhancing allegation of 

three prior convictions of driving under the influence. 

 The court sentenced defendant to the aggravated term of three years in state 

prison, and revoked his driver’s license for four years. The court awarded him a custody 

credit of 135 days: 91 actual days and 44 days of local conduct credit. 

DISCUSSION

The Corpus Delicti 

Defendant maintains the prosecution failed to establish the corpus delicti of the 

crimes of which he was convicted. He asserts “no one observed [him] intoxicated until a 

half an hour after he drove his truck,” and the only evidence that would permit the 

inference he was intoxicated while driving was his “uncorroborated statement that he did 

not drink alcohol upon returning from the liquor store.” 

 “ ‘In every criminal trial, the prosecution must prove the corpus delicti, or the 

body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a 

criminal agency as its cause. . . . [T]he prosecution cannot satisfy this burden by relying 

exclusively upon the extrajudicial statements, confessions, or admissions of the 

defendant. [Citations.] Though mandated by no statute, and never deemed a 

constitutional guaranty, the rule requiring some independent proof of the corpus delicti 

has roots in the common law.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 825, citing 

People v. Alvarez (2002) 27 Cal.4th 1161, 1168–1169.) The purpose of the corpus delicti 

rule is to ensure that “the accused is not admitting to a crime that never occurred.” 

(People v. Jennings (1991) 53 Cal.3d 334, 368.) 

 Proof of the corpus delicti “may be circumstantial and need only be a slight or 

prima facie showing ‘permitting the reasonable inference that a crime was committed.’ 

[Citations.]” (People v. Jennings, supra, 53 Cal.3d at p. 364.) “Such independent proof 

may consist of circumstantial evidence [citations], and need not establish the crime 

beyond a reasonable doubt. [Citations.]” [¶] . . .“The amount of independent proof of a 

crime required for this purpose is quite small; we have described this quantum of 

evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a 
5 

prima facie showing ‘ “ ‘permitting the reasonable inference that a crime was 

committed.’ ” ’ [Citations.] The inference need not be ‘the only, or even the most 

compelling, one . . . [but need only be] a reasonable one . . . .’ [Citation.]” (People v. 

Jones (1998) 17 Cal.4th 279, 301–302, original italics, superseded by statute on other 

grounds as noted in People v. Johnson (2013) 222 Cal. App.4th 486, 497.) 

 The evidence established Pepper saw defendant’s vehicle leave sometime between 

8:00 and 8:30 p.m., and observed defendant return about five minutes later. Officer 

Mahurin observed defendant’s highly inebriated condition at approximately 8:34 p.m. 

He thereafter confirmed the hood of defendant’s vehicle was still warm and the vehicle 

looked as though it had just been driven. This evidence amply established the corpus 

delicti and permitted a reasonable inference that defendant had driven while under the 

influence of alcohol. 

 Defendant maintains the trial court’s grant of a directed verdict as to the enhancing 

allegation that he drove with a BAC of 0.20 or higher demonstrates “there was no 

evidence which permitted the expert to determine DeConter’s blood alcohol level for any 

time prior to the arrival of Officer Mahurin . . . .” (Italics added.) In dismissing the 

enhancing allegation, the court stated, “[t]here was just nothing that the expert said that 

could have, in my opinion, have the jury believe that it was 0.20 or over at the time of the 

driving.” The soundness of the trial court’s opinion as to the 0.20 enhancement is, of 

course, not before us. Rather, the issue is whether there was sufficient evidence of the 

corpus delicti of the two charged crimes, driving under the influence and driving with a 

BAC over 0.08 percent, as to which the trial court denied defendant’s motion for a 

directed verdict. 

 Defendant claims he “could have been sober at the time that he was observed 

driving, then consumed alcohol upon returning home from the liquor store,” and 

exhibited signs of inebriation “approximately one half hour later.” Even assuming this 

proffered conclusion is a reasonable one, and we are not suggesting it is, the evidence 

permitted another reasonable conclusion—that defendant had driven under the influence 

and with a BAC exceeding 0.08 percent. As we have recounted, the time between Pepper 
6 

witnessing defendant driving and Officer Mahurin observing defendant’s highly 

intoxicated state was, at most, 29 minutes. The criminalist, in turn, testified it would take 

about eight shots to raise a 150-pound man’s blood alcohol level to 0.21 percent. 

Together, this evidence met the prosecution’s burden of making a “slight or prima facie 

showing” permitting a “reasonable inference” the crimes of driving under the influence 

and with a BAC exceeding 0.08 percent were committed. (See People v. Jones, supra, 17 

Cal.4th at pp. 301–303; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6 [corpus 

delicti rule does not require the prosecutor to “eliminate all other reasonable 

inferences”].)3

Substantial Evidence 

 Defendant further contends that, even if the prosecution proved the corpus delicti, 

there was “insufficient evidence to establish that [he] drove while under the influence of 

alcohol . . . .” He claims the “prosecution failed to present any evidence, circumstantial 

or otherwise, that permits the inference that [he] drove a vehicle while intoxicated.” 

 “ ‘To determine the sufficiency of the evidence to support a conviction, an 

appellate court reviews the entire record in the light most favorable to the prosecution to 

determine whether it contains evidence that is reasonable, credible, and of solid value, 

from which a rational trier of fact could find the defendant guilty beyond a reasonable 

doubt.” ’ (People v. Bolden (2002) 29 Cal.4th 515, 553.) “ ‘The standard of review is 

the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 

“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial 

evidence is susceptible of two interpretations, one of which suggests guilt and the other 

innocence [citations], it is the jury, not the appellate court which must be convinced of 

the defendant’s guilt beyond a reasonable doubt. ‘ “ ‘If the circumstances reasonably 

justify the trier of fact’s findings, the opinion of the reviewing court that the 

 3

Defendant did not raise the corpus delicti issue in the trial court, but maintains he 

may assert it here because the failure to do so constituted ineffective assistance of 

counsel. Because we conclude the prosecution met its burden of proving the corpus 

delicti, the failure to object on that basis did not constitute ineffective assistance of 

counsel. 
7 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant a reversal of the judgment.’ ” [Citations.]’ The conviction shall stand ‘ “unless it 

appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to 

support [the conviction].’ ” ’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500, 

507–508.) 

 The evidence showed defendant was driving between 8:00 and 8:30 p.m. on the 

night of the incident. At 8:34 p.m., Officer Mahurin observed he had “watery, glassy 

eyes, slow and slurred speech, as well as a strong odor of alcoholic beverage.” Defendant 

told Officer Mahurin he had “just pulled in two minutes ago” after going to a liquor store 

to buy alcohol.4

 The hood of his vehicle was still warm. Defendant admitted he was 

drunk and “hadn’t had anything to drink since he had gotten home from the liquor store.”

He failed five field sobriety tests. At 9:45 p.m., his BAC was 0.21 percent. Substantial 

evidence supports the jury’s verdict. 

Jury Instructions 

 Defendant additionally contends the trial court erred in instructing the jury with 

CALCRIM Nos. 2110 and 2111, which he claims violated his due process rights by 

reducing the prosecution’s burden of proof. We review “jury instructions as a whole, in 

light of the trial record, to determine whether it is reasonably likely the jury understood 

the challenged instruction in a way that undermined the presumption of innocence or 

tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a 

reasonable doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) 

 The court instructed the jury as follows: “If the People have proved beyond a 

reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the 

time of the chemical analysis, you may, but are not required, to conclude that the 

 4

Defendant appears to conflate the corpus delicti rule with the substantial evidence 

standard of review. We concluded in the previous section the prosecution had proved the 

corpus delicti without considering evidence of defendant’s statements to Officer 

Mahurin. In contrast, in considering whether substantial evidence supports the verdict, 

we review “the entire record,” including evidence of defendant’s statements to Officer 

Mahurin. (See People v. Bolden, supra, 29 Cal.4th at p. 553.) 
8 

defendant was under the influence of an alcoholic beverage at the time of the alleged 

offense. . . . [¶] If the People have proved beyond a reasonable doubt that a sample of 

defendant’s [blood] was taken within three hours of the defendant’s alleged driving, and a 

chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, 

you may but are not required to conclude that the defendant’s blood alcohol level was 

0.08 percent or more at the time of the alleged offense.” (Italics added.) 

 The instructions given are based on sections 23152 and 23610. Section 23152 

provides in part: “In any prosecution under this subdivision, it is a rebuttable presumption 

that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the 

time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol 

in his or her blood at the time of the performance of a chemical test within three hours 

after the driving.” (§ 23152, subd. (b).) Section 23610 provides in part: “[T]he amount 

of alcohol in the person’s blood at the time of the test as shown by chemical analysis of 

that person’s blood, breath, or urine shall give rise to the following presumptions 

affecting the burden of proof: [¶] . . . [¶] . . . If there was at that time 0.08 percent or 

more, by weight, of alcohol in the person’s blood, it shall be presumed that the person 

was under the influence of an alcoholic beverage at the time of the alleged offense.” 

(§ 23610, subd. (a)(3).) 

 Defendant maintains the “presumptive inference instruction impermissibly 

reduced the prosecution’s burden of proof. . . .” 

 However, “[a]s the United States Supreme Court has explained, ‘The most 

common evidentiary device is the entirely permissive inference or presumption, which 

allows—but does not require—the trier of fact to infer the elemental fact from proof by 

the prosecutor of the basic one . . . .’ ” (People v. Beltran (2007) 157 Cal.App.4th 235, 

240, fn. 4, citing Ulster County Court v. Allen (1979) 442 U.S. 140, 157.) 

“ ‘ “ ‘Permissive presumptions’ are not really presumptions at all. Instead, they are 

simply inferences drawn from evidence. They do not shift the prosecution's burden of 

production, and the jury is not required to abide by them. An instruction about a 

‘permissive presumption’ is really an instructed inference.” ’[Citation.]” (People v. 
9 

Beltran, supra, 157 Cal.App.4th at p. 242) Because a permissive presumption “ ‘leaves 

the trier of fact free to credit or reject the inference and does not shift the burden of proof, 

it affects the application of the “beyond a reasonable doubt” standard only if, under the 

facts of the case, there is no rational way the trier could make the connection permitted 

by the inference.’ ” (People v. Roder (1983) 33 Cal.3d 491, 498, citing Ulster County 

Court v. Allen, supra, 442 U.S. 140, 157.) 

 “[T]he test to be applied in any situation wherein a presumption may be relied 

upon in a criminal case is whether there is a rational connection between the fact proved 

and the fact presumed. . . .[¶] . . . Probably, no fact is more firmly established medically 

than that the ingestion of alcohol in any substantial quantity impairs one’s ability to drive 

a vehicle. The dismal statistic that alcohol is involved in an inordinate percentage of the 

accidents resulting in death, dispels any claim that there is no rational connection 

between the consumption of alcohol by a driver and his driving record.” (People v. 

Schrieber (1975) 45 Cal.App.3d 917, 920.) “The presumption . . . is not based on 

speculation but is founded on the long-recognized and scientifically established 

relationship between blood alcohol level and degree of intoxication. . . . There thus exists 

sufficient rational connection in experience between the preliminary fact proved and the 

ultimate fact presumed to satisfy the requirement of due process of law.” (People v. 

Lachman (1972) 23 Cal.App.3d 1094, 1098.) 

 Relying on People v. Beltran, supra, 157 Cal.App.4th 235, defendant nevertheless 

contends the permissive inference instruction in this case “was not rationally connected to 

an element of the offense.” In Beltran, the defendant was charged with both generic and 

per se driving under the influence. (Id. at p. 239.) Two roadside breath tests taken about 

half an hour after police stopped him for speeding indicated the defendant’s BAC at that 

time was 0.08 percent. (Id. at p. 238.) An intoxilyzer breath test administered about half 

an hour after the roadside breath test indicated a BAC, then, of 0.10 percent. (Id. at p. 

239.) There was testimony at trial, by both the defense and the prosecution expert 

witnesses, that the defendant’s BAC at the time of driving was less than 0.08 percent and 

the breath tests showed the defendant’s BAC was “rising” from the time he was stopped 
10 

until the intoxilyzer tests were administered. (Id. at pp. 239, 246.) The court explained 

“while in isolation either the [roadside breath] tests or the intoxilyzer tests were sufficient 

to allow for the inference permitted by [the jury instruction], together they show that 

[defendant’s] BAC was rising from the time he was stopped until the intoxilyzer tests 

were administered.” (Id. at p. 246.) Thus, the court held giving the permissive inference 

instruction was “constitutional error that improperly lowered the prosecution’s burden of 

proof” because “[t]aken as a whole, the connection between the proved fact (test result 

demonstrating a BAC of 0.08 percent or greater within three hours of driving) and the 

inferred fact (BAC of 0.08 percent or greater at the time of driving) . . . was not 

established . . . .” (Id. at p. 247.) 

Beltran differs significantly from the case at hand. In that case, experts for both 

sides testified it could well have been “that appellant’s BAC was below the legal limit at 

the time he was driving.” (Beltran, supra, 157 Cal.App.4th at p. 239.) This was so 

because the defendant was subjected to two separate and distinct types of breath tests, the 

first a roadside “preliminary alcohol screening” (PAS) test and the second, taken less than 

a half-hour later, an intoxilyzer test. The PAS test indicated a BAC of 0.08 and the 

intoxilyzer showed a significantly increased level of 0.10 percent. (Id. at pp. 238–239.) 

Thus, there was strong evidence the defendant’s BAC was rising at the time he was 

stopped and, thus, even per the prosecution’s expert “assuming the reliability of the 

earlier PAS test results, appellant’s BAC was around 0.068 percent when he was 

stopped.” (Id. at p. 239.) This necessarily meant, as Presiding Justice Ruvolo wrote: 

“Taken as a whole, the connection between the proved fact (test result demonstrating a 

BAC of 0.08 percent or greater within three hours of driving) and the inferred fact (BAC 

of 0.08 percent or greater at the time of driving), which is an element of the charged 

crime, was not established beyond a reasonable doubt.” (Id. at p. 247.) In this case, in 

contrast, there was only one blood alcohol content test result, and there was no evidence 

suggesting defendant’s BAC was either rising or falling at the time of the test. 

Accordingly, the Beltran court’s observation that “in isolation either the [roadside breath] 

tests or the intoxilyzer tests were sufficient to allow for the inference” is apposite and 
11 

there is a rational connection between the preliminary fact proved and the ultimate fact 

which the jury could infer. (Id. at p. 246.) Accordingly, defendant’s due process rights 

were not violated by the instructions. 

Custody Credits Under Penal Code Section 4019 

Defendant asserts he was denied equal protection because the court awarded him 

presentence custody credits under the amended version of Penal Code section 4019 

applicable to crimes committed prior to October 1, 2011.5

 He concedes “[t]he facts 

underlying [his] conviction took place on March 28, 2011” but maintains there is no 

compelling state interest or rational basis for awarding different amounts of custody 

credits to inmates “depending on the date of the offense.” 

 “A criminal defendant is entitled to accrue both actual presentence custody credits 

under Penal Code section 2900.5 and conduct credits under Penal Code section 4019 for 

the period of incarceration prior to sentencing.” (People v. Kennedy (2012) 

209 Cal.App.4th 385, 395 (Kennedy).) Section 4019 has been the subject of multiple 

amendments in recent years. “Before January 25, 2010, conduct credits under Penal 

Code section 4019 could be accrued at the rate of two days for every four days of actual 

time served in presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, 

subd. (f)].) Effective January 25, 2010, the Legislature amended Penal Code 

section 4019 in an extraordinary session to address the state’s ongoing fiscal crisis. 

Among other things, Senate Bill No. 3X 18 . . . amended section 4019 such that 

defendants could accrue custody credits at the rate of two days for every two days 

actually served, twice the rate as before except for those defendants required to register as 

sex offenders, those committed for serious felonies (as defined in § 1192.7), or those who 

had prior convictions for violent or serious felonies. (Stats. 2009, 3d Ex. Sess. 2009–

2010, ch. 28, §§ 50, 62 [Pen. Code former § 4019, subds. (b), (c) & (f)].)” (Kennedy, 

supra, 209 Cal.App.4th at p. 395.) 

 5

Defendant was remanded into custody on February 3, 2012, and sentenced on 

May 3, 2012. 
12 

 “Effective September 28, 2010, Penal Code section 4019 was amended again to 

restore the presentence conduct credit calculation that had been in effect prior to the 

January 2010 amendments, eliminating one-for-one credits (hereafter the September 2010 

amendment; Stats. 2010, ch. 426, § 2). By its express terms, the newly created Penal 

Code section 4019, subdivision (g), declared these September 2010 amendments 

applicable only to inmates confined for crimes committed on or after that date, expressing 

legislative intention that they have prospective application only. (Stats. 2010, ch. 426, 

§ 2.)” [¶] “Thereafter, again, the Legislature amended Penal Code section 4019. These 

statutory changes, among other things, reinstituted one-for-one conduct credits and made 

this change applicable to crimes committed on or after October 1, 2011, the operative 

date of the amendments, expressing legislative intent for prospective application only. 

(Pen. Code, § 4019, subds. (b), (c) & (h).)” (Kennedy, supra, 209 Cal.App.4th at 

pp. 395–396.) 

 Defendant acknowledges the statute is, by its terms, prospective only in 

application, but maintains “the distinction in credit-earning rights” based solely on the 

date of the offense violates equal protection principles. “ ‘Guarantees of equal protection 

embodied in the Fourteenth Amendment of the United States Constitution and article I, 

section 7 of the California Constitution prohibit the state from arbitrarily discriminating 

among persons subject to its jurisdiction. . . .’ [Citation.]” (People v. Chavez (2004) 116 

Cal.App.4th 1, 4.) “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.]” (People v. 

Brown (2012) 54 Cal.4th 314, 328 (Brown).) “The ‘similarly situated’ prerequisite 

simply means that an equal protection claim cannot succeed, and does not require further 

analysis, unless there is some showing that the two groups are sufficiently similar with 
13 

respect to the purpose of the law in question that some level of scrutiny is required in 

order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 

Cal.App.4th 705, 714.) “The analysis will not proceed beyond this stage if the groups at 

issue are not ‘ “similarly situated with respect to the legitimate purpose of the law,” ’ or if 

they are similarly situated, but receive ‘ “like treatment.” ’ Identical treatment is not 

required.” (In re Jose Z. (2004) 116 Cal.App.4th 953, 960.) 

 Courts have disagreed about whether the groups at issue are similarly situated. In 

Kennedy, the defendant was also in presentence custody after October 1, 2011 for a crime 

committed before that date. (Kennedy, supra, 209 Cal.App.4th at pp. 396–397.) The 

court held the disparately-treated groups of defendants were not similarly situated. (Ibid.) 

Nevertheless, it concluded “[e]ven if this court were to agree that during the period of 

time that appellant was in presentence custody after October 1, 2011, he was similarly 

situated to other defendants who committed their crimes after October 1, and were in 

presentence custody, where, as here, the statutory distinction at issue neither ‘touch[es] 

upon fundamental interests’ nor is based on gender, there is no equal protection violation 

‘if the challenged classification bears a rational relationship to a legitimate state purpose. 

[Citations.]’ . . . ‘ “ ‘ “ . . . Where there are ‘plausible reasons’ for [the classification], 

‘our inquiry is at an end.’ ” ’ ” ’ [Citation.]” (Id. at p. 397.) 

 The court in Kennedy concluded there is “such a plausible reason in this case as to 

the period of time appellant was in custody after October 1, 2011.” (Kennedy, supra, 

209 Cal.App.4th at p. 397.) It explained “the Legislature could rationally have believed 

that by making the 2011 amendment to section 4019 have application determined by the 

date of the offense, they were 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 

(conduct credits) in effect at the time an offense was committed. [¶] Finally, . . . over the 
14 

past few years we have seen a series of incremental changes in conduct credit earning 

rates. . . . Overall, the Legislature has tried to strike a delicate balance between reducing 

the prison population during the state's fiscal emergency and protecting public safety. 

Although such an effort may have resulted in comparable groups obtaining different 

credit earning results, under the rational relationship test, the Legislature is permitted to 

engage in piecemeal approaches to statutory schemes addressing social ills and funding 

services to see what works and what does not.” (Kennedy, supra, 209 Cal.App.4th at p. 

399, fn. omitted.) 

 In contrast, the court in People v. Rajanayagam (2012) 211 Cal.App.4th 42 

(Rajanayagam), held the two affected groups were similarly situated. (Id. at p. 53.) The 

court explained, “the two affected classes are . . . (1) those defendants who are in jail on 

and/or after October 1, 2011, who committed an offense on or after October 1, 2011; and 

(2) those defendants who are in jail on and/or after October 1, 2011, who committed the 

same offense before October 1, 2011.” (Ibid.) [¶] . . . “These two groups committed the 

same offenses and are serving time together in local presentence custody but the current 

version of section 4019 treats them differently by awarding them different conduct credits 

based entirely on the dates they committed their offenses. Nothing distinguishes the 

efforts of a prisoner who committed a crime after October 1, 2011, to earn conduct 

credits from the efforts of one who committed the same crime before that date. Both 

classifications of prisoners, pre- and post-October 1, 2011, offense defendants, are aware 

of the conduct credit provision and have an incentive to perform assigned work and 

comply with rules and regulations because both classifications have the opportunity to 

earn conduct credit, just at different rates. To argue that a defendant who committed an 

offense before October 1, 2011, but was in local custody on or after that date was not 

aware of the conduct credit provision and did not have an incentive to work and behave is 

unpersuasive. Both classes have an incentive to work and behave but a defendant who 

committed a crime before the effective date is rewarded less. Thus, based on the facts 

before us, the current version of section 4019 creates a classification that affects two 

similarly situated groups in an unequal manner.” (Id. at pp. 53–54.) 
15 

Rajanayagam concluded there was no equal protection violation, however, 

because “the classification in question does bear a rational relationship to cost savings 

. . . . [T]he California Supreme Court has stated equal protection of the laws does not 

forbid statutes and statutory amendments to have a beginning and to discriminate 

between rights of an earlier and later time. [Citation.] . . . [¶] . . . More importantly, in 

choosing October 1, 2011, as the effective date of Assembly Bill No. 109, the Legislature 

took a measured approach and balanced the goal of cost savings against public safety. 

The effective date was a legislative determination that its stated goal of reducing 

corrections costs was best served by granting enhanced conduct credits to those 

defendants who committed their offenses on or after October 1, 2011. To be sure, 

awarding enhanced conduct credits to everyone in local confinement would have 

certainly resulted in greater cost savings than awarding enhanced conduct credits to only 

those defendants who commit an offense on or after the amendment’s effective date. But 

that is not the approach the Legislature chose in balancing public safety against cost 

savings. (Citation.) . . . Under the very deferential rational relationship test, we will not 

second-guess the Legislature and conclude its stated purpose is better served by 

increasing the group of defendants who are entitled to enhanced conduct credits when the 

Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced 

conduct credit to only those defendants who committed their offenses on or after October 

1, 2011.”6

 (Rajanayagam, supra, 211 Cal.App.4th at pp. 55–56.) 

 Assuming arguendo the two groups of defendants are similarly situated for 

purposes of the statute, we agree with Kennedy and Rajanayagam there is a rational basis 

for the differing treatment of the two groups. Accordingly, the application of 

section 4019 to defendant does not violate principles of equal protection. 

 6

Although defendant maintains the classification affects a fundamental liberty 

interest requiring application of the compelling state interest test, both Kennedy and 

Rajanayagam held the rational basis test applied to the section 4019 classification. 

(Kennedy, supra, 209 Cal.App.4th at p. 397; Rajanayagam, supra, 211 Cal.App.4th at p. 

54.) 
16 

DISPOSITION

The judgment is affirmed. 
17 

 _________________________ 

 Banke, J. 

We concur: 

_________________________ 

Margulies, Acting P. J. 

_________________________ 

Dondero, J.