Filed 2/27/13 P. v. Xiong CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. CHOR XIONG, Defendant and Appellant. F063938 (Super. Ct. No. F11901181)

O P I N I O N

THE COURT  APPEAL from a judgment of the Supe rior Court of Fresno County. Edward Sarkisian, Jr., Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Kathleen A. McKenna and Rebecca Whitfield, Deputy Attorneys Gene ral, for Plaintiff and Respondent. -ooOoo-

 Before Levy, Acting P.J., Ka ne, J., and Poochigian, J.2 A jury convicted appellant, Chor Xiong, of the unlawful taking or driving of a motor vehicle (Veh. Code, § 10 851, subd. (a)), and in two sepa rate proceedings, appellant admitted allegations that he had suffered a “strike,” 1 served two separate prison terms for prior felony convictions (P en. Code, § 667.5, subd. (b)) 2 , and suffered a prior conviction of violating Vehicle Code section 10851 (V eh. Code, § 10851, subd. (e)). The court imposed a prison term of 10 years, cons isting of the four-year upper term on the substantive offense, doubled pursuant to th e three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), for a total of eight ye ars, and one year on each of the two prior prison term enhancements. The court awarde d appellant presentence custody credits of 415 days, consisting of 277 days of actual custody cr edits and 138 days of conduct credits. On appeal, appellant contends the court erred in failing to (1) award him presentence conduct credits under the one-for- one credit scheme of the current iteration of section 4019; (2) conduct an adequate in quiry to determine if appellant needed the assistance of an interpreter; and (3) appoint an interpreter. We affirm. DISCUSSION Denial of Request for Appo intment of an Interpreter Prior to the commencement of trial test imony, appellant requested the appointment of an interpreter. The court denied the reques t. Appellant contends the court abused its discretion in failing to appoint an interpreter, in violation of his rights under the United States and California Constitutions.

1 We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudica tion that subjects a defendant to the increased punishment specified in the three strikes law.
2 Unless otherwise indicated, all further st atutory references are to the Penal Code.3 Background At the outset of trial proceedings, befo re any testimony was taken, the prosecutor informed the court that “[Defense counsel] ad vised Presiding this morning that her client wanted the services of a Hmong interpreter.” The court stated it was aware of appellant’s request for an interpreter, and noted “that th ere’s been 13 minute orders up to today’s date, none of which in cluded or noted the assistance of an interpreter, as well as the preliminary hearing.” Defense counsel did no t dispute this, and confirmed that she and appellant had been communicati ng without the assistance of an interpreter “throughout,” at which point the follo wing colloquy occurred: “THE COURT: ... [¶] So is there anythi ng else you wish to add for the record in terms of that request? “[Defense counsel]: Just before the tr ial [appellant] asked if he could have a Hmong interpreter so he would better understand what was going on at trial. “THE COURT: And it is corre ct that an interpreter hasn ’t been utilized up to this point throughout the case? “[Defense counsel]: That is correct. “THE COURT: ... So at this point all I’ve had is a request standing alone. “[Defense counsel]: Yes, Your Honor.” At that point, the court stated it was “not inclined” to grant the request, and stated: “So unless there’s something else that is brought to the Court’s attention I’m not persuaded an interpreter is going to be appointed.” Defe nse counsel responded, “I understand,” and the court moved to a discussion of other matters. Analysis Under the California Constitution, “A pers on unable to unders tand English who is charged with a crime has a right to an inte rpreter throughout the proceedings.” (Cal. Const., art. I, § 14.) In addition, various rights under the Unite d States Constitution,4 “includ[ing] the right of a defendant to du e process, to confrontation, to effective assistance of counsel, and to be present at tria l” “may be implicated in the right to an interpreter.” ( People v. Rodriguez (1986) 42 Cal.3d 1005, 1011 .) “Regarding the rights to effective assistance of counsel and to effec tive presence at trial, courts frequently have echoed the words of the United States Suprem e Court that a criminal defendant must possess ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” ( People v. Carreon (1984) 151 Cal.App.3d 559, 567 ( Carreon ), quoting Dusky v. United States (1960) 362 U.S. 402.) A court is not required to appoint an interpreter merely because a defendant requests or demands one. ( In re Raymundo (1988) 203 Cal.App.3d 1447, 452-1453 ( Raymundo ).) Rather, “an affirm ative showing of need is required.” ( Id . at p. 1453.) As this court explained in Carreon , supra , 151 Cal.App.3d at pp. 566-567: “Prior to enactment of this constitutional provision [art. I, § 14], courts had deve loped the rule that upon the defendant’s showing of necessity, ap pointment of an interpreter was required as a matter of due process. [¶] In the past, trial courts had b een afforded broad discretion in determining whether a defendant’s comprehe nsion of English was minimal enough to render interpreter services ‘necessary.’ [Cita tions.] Nothing in the new constitutional provision changes this well established requir ement of a finding of necessity by the trial court. Indeed, the provision specifically states that the right to an interpreter is contingent upon a person’s being ‘unable to understand English.’ (Cal. Co nst., art. I, § 14.) Prior to the right being spelled out in the state Cons titution, the court’s fa ilure to appoint an interpreter upon a proper show ing of need was deemed viol ative of fundamental fairness and sometimes required reversal of the defend ant’s conviction. [Citation.]” Thus, “the burden is on the accused to show that his [or her] understanding of English is not sufficient to allow him [or he r] to understand the nature of the proceedings and to intelligently participate in his defense.” ( Raymundo , at p. 1454.)5 The denial of a request for an interpre ter is reviewed for abuse of discretion. ( Raymundo , supra , 203 Cal.App.3d at p. 1456.) “An exercise of discretion by a trial judge may be reversed ‘“‘where no reas onable basis for the action is shown.’”’ [Citation.] ‘“‘[W]here a trial court has disc retionary power to decide an issue, a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitr ary, capricious, or patently absurd determination....’”’ [Citation]” ( Ibid .) “When evaluating a determination as to th e necessity of appoin ting an interpreter, the policy of upholding a lower court’s decision based upon informed discretion is strong. The trial judge is in a unique position to ev aluate the reactions and responses of the accused and to determine whether he or she do es or does not require an interpreter in order to be adequately unders tood or in order to adequate ly understand the proceedings. This exercise of discretion sh ould not be reversed unless ther e is a complete lack of any evidence in the record that the accused does understand English, thereby rendering the decision totally arbitrary.” ( Raymundo , supra , 203 Cal.App.3d at p. 1456.) Here, as indicated earlier, appellant, at the hearing on his request for an interpreter, made virtually no showing of a need for an interpreter. The sum total of the defense showing was defense counsel’s statement that appellant “[had] asked if he could have a Hmong interpreter so he would better unders tand what was going on at trial.” Counsel confirmed that the court had before it only “a request standing alone.” We recognize that “the fact that [a criminal defendant] stat es that he does not understand English and requests an interpreter on that basis may be so me evidence of the fact that the charged individual does not understand English....” ( Raymundo , supra , 203 Cal.App.3d at p. 1453.) However, such a claim and request “canno t be considered conclusive proof of that lack of proficiency in English” ( ibid .) and does not, without more, necessitate the appointment of an interpreter ( id . at pp. 1452-1453). Moreover, defense counsel6 confirmed that she and appellant had communi cated at all times without an interpreter, and appellant did not dispute below, and does not dispute now on appeal, the court’s finding that in 13 previous court appearances a ppellant had not required the services of an interpreter. (See Raymundo , supra , 203 Cal.App.3d at p. 1455 [factors relevant to determination of need for inte rpreter include whether one has previously been provided].) The court’s determination that appellant had not made the requisite showing of need for an interpreter was well with in the court’s discretion. Appellant’s challenge to the court’s denial of his request for an interpreter focuses on how poor a defendant’s un derstanding of English must be to necessitate the appointment of an interpreter. He argues that “even a slight inability of a defendant to understand court proceedings because of a limitation on his or her ability to speak English warrants the appointment of an interpreter.” (Italic s added.) Indeed, appellant suggests that a defendant has a constitutional ri ght to an interpreter unless he or she is able to “understand every word throughout [the] judicial proceedings.” Further, appellant suggests, he made the required showing be low and therefore the court abused its discretion in denying his request for an inte rpreter. These claims are without merit. First, the authorities cited by appellant in th is regard are inapposite. He points to U.S. ex. rel. Negron v. New York (2d Cir. 1970) 434 F.2d 386 ( Negron ) and People v. Aguilar (1984) 35 Cal.3d 785 ( Aguilar ). In Negron , as our Supreme Court explained in Aguilar , “the appellate court found constitutional e rror in the failure of the trial court to provide a Spanish speaking defe ndant with an interpreter not withstanding the fact that a prosecution interpreter pr ovided the accused with periodic summaries of the proceedings.” ( Aguilar , at p. 792.) In the portion of Negron on which appellant relies, which, as appellant notes, the court in Aguilar cited with approval, the court stated: “‘[i]n order to afford Negron his right to confrontation, it was necessary under the circumstances that he be provided with a simu ltaneous translation of what was being said7 for the purpose of communicating with his atto rney to enable the la tter to effectively cross-examine those English-speaking witnesse s to test their cred ibility, their memory and their accuracy of observation in light of Negron’s version of the facts.’” ( Aguilar , at pp. 792-793, quoting Negron .) However, the quoted portion of Negron upon which appellant relies merely states what was constitutionally required where it had been established that the Spanish-speaking defendant “was unable to communicate with his counsel without the use of an interpreter.” ( Aguilar , at p. 792.) It says nothing about what was required to establish that the de fendant lacked the ab ility to communicate in English, and certainly does not suggest that no more than a slight inability to understand English is sufficient to trigger the requirement that an interpreter be appointed. Moreover, given appellant’s failure belo w to do more than simply request an interpreter, in our view, he faile d to establish he had even a slight inability to understand English. Finally, and more fundamentally , the “slight inability” standard appellant proposes is contrary to the principle, discussed above, that a defendant has no constitutional right to an interpreter unless he or she lacks the “‘abilit y to consult with his [or her] lawyer with a reasonable degree of rational understanding.’” ( Carreon , supra , 151 Cal.App.3d at p. 567, italics added .) The requirement, as articulated in Raymundo , that “the burden is on the ac cused to show that his [or he r] understanding of English is not sufficient to allow him [or her] to understand the nature of the proceedings and to intelligently participate in his defense” ( Raymundo , supra , 203 Cal.App.3d at p. 1454), is consistent with this standard. Under this sta ndard, the denial of appellant’s request for an interpreter did not constitute an abuse of discretion. Inquiry into Need for an Interpreter Appellant argues as follows: “[T]he tria l court failed to conduct any meaningful dialogue with appellant to dete rmine why he needed an interp reter. The trial court should have, at a minimum, determined how long a ppellant had been speaking English, his8 native language, and what por tion of the proceedings he ha d failed to understand. The trial court’s failure to conduct this inquiry was error.” Here, as indicated earlier, the record show s the following: afte r being informed by the prosecutor that defense counsel had ear lier indicated that appellant wanted an interpreter, the court invited counsel to place on the record the reasons for that request. Counsel stated only that appellant wanted an interpreter “so he would better understand what was going on at trial.” The court, th rough inquiry, establis hed that appellant and counsel were able to communicate in English, and stated, without contradiction, that numerous previous proceedings had been con ducted without an interpreter. The court then indicated that although a request had been made, no reasons had been offered. Counsel confirmed this. Thus, the court afforded the defense an adequate opportunity to explain why an interpreter should be ap pointed, and no explanation was fo rthcoming. On this record, the court cannot be faulted for not inquiring further. Presentence Custody Credits Under section 2900.5, a pers on sentenced to state prison for criminal conduct is entitled to presentence custody credits for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In ad dition, section 4019 provides for what are commonly called conduct credits, i.e., credits against a prison sentence for w illingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). ( People v. Dieck (2009) 46 Cal.4th 9 34, 939, fn. 3.) Section 4019 has undergone numerous amendm ents in the past few years. Under the version in effect prior to January 25, 10 10, six days would be deemed to have been served for every four days spent in actual custody—a ratio of one day of conduct credit for every two days served (one-for-two cred its). (Former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553- 4554.) Effective January 25, 2010, the9 Legislature amended section 4019 to provide fo r two days of conduct credit for every two days served—one-for-one credits—for certain defendants. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) E ffective September 28, 2010, the Legislature again amended section 4019, this time to restore the less generous one-for-two credits for defendants confined for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426, § 2.) The Legislature next ame nded section 4019 in Assemb ly Bill No. 109 (2011-2012 Reg. Sess.), which was part of the so-called criminal realignment legislation. “[T]he overall purpose of [this legislation] is to reduce recidivism and improve public safety, while at the same time reducing corrections and related criminal justice spending.” ( People v. Cruz (2012) 207 Cal.App.4th 664, 679.) Under the new legislation, to which we refer as the 2011 amendment, defendan ts, including those who had been precluded from enhanced credits under the January 25 , 2010, amendment, can receive one-for-one credits. (§ 4019, subds. (b ), (c), as amended by Stats. 2011, ch. 15, § 482.) The legislation expressly provided that this chan ge “shall apply prospec tively and shall apply to prisoners who are confined to a county jail, city jail, indus trial 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.” (§ 4019, subd. (h), as added by Stats. 2011, ch. 15, § 482 an d amended by Stats. 2011, ch. 39, § 53.) Appellant committed the instant offense on March 1, 2011, approximately seven months prior to the effective date of the 2011 amendment. He acknowledges that his award of custody credits is governed by the on e-for-two scheme of the version of section 4019 that became effective Se ptember 28, 2010, and further, that under this statute, the trial court’s award of conduct credits was corr ect. He argues, however, that under equal protection principles, he is entitled to one-fo r-one credits under the 2011 amendment.10 Specifically, appellant contends the 2011 amendment created “two classes of prison inmates and parolees,” viz., “(1) those who receive additional conduct credits since they committed a crime on or after Oc tober 1, 2011; and (2) those who will not receive additional conduct credits since they committed a crime before October 1, 2011.” These two groups, he argues, relying in large part on In re Kapperman (1974) 11 Cal.3d 542 ( Kapperman ), are “similarly situated with respect to the pur pose of the enhanced credit entitlement.” Further, appe llant, a member of the second group, argues that there is no “rational basis” for denyin g him the enhanced credits un der the current version of section 4019 for the sole reason that he co mmitted his crimes prior to October 1, 2011, and that therefore he was denied his constitu tional guarantee of equal protection of the laws. This “denial of equal protection,” he contends, should be remedied by modifying the judgment to award him one-for-one credit s of 277 days under the 2011 amendment to section 4019 for his entire period of presen tence confinement—March 1, 2011, through the date of sentencing, December 2, 2011—r ather than the one-for-two credits of 138 days awarded by the court under the versio n of section 4019 effective September 28, 2010. We disagree. “The concept of equal protection recogn izes that persons who are similarly situated with respect to a la w’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 classificati on that affects two or more similarly situated groups in an unequal manner.”’ [C itation.] ‘This initial inquiry is not whether persons are similarly si tuated for all purposes, but “whether they are similarly situated for purposes of the law challenged.”’” ( People v. Brown (2012) 54 Cal.4th 314, 328 ( Brown ).) “If the first prerequisite is satisfied, we proceed to judicial scrutiny of the classification.” ( People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53 ( Rajanayagam ).) As the court in Rajanayagam stated in addressing an equal protection challenge to the11 2011 amendment, “Where, as here, the statutor y distinction at issue neither touches 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.” ( Ibid .) “Under the rational relationship test, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citation.]” ( Ibid .) We first consider the question of whet her appellant, who committed the instant offenses prior to October 1, 2011, and person s who were confined fo r offenses for crimes committed after that date are si milarly situated with respect to the purpose of the law. Preliminarily, we note that appellant’s pe riod of presentence custody— March 1, 2011, through December 2, 2011—encompasses tim e both before, on and after October 1. As we explain below, the analysis with respect to time before October 1 and time on or after October 1 may be different.
In Brown , supra , 54 Cal.4th 314, which was de cided after appellant filed his opening brief, our Supreme Court addressed wh ether the amendment to section 4019 that became operative on January 25 , 2010, should be given re troactive effect to permit prisoners, who served time in local custody before that date, to earn conduct credits at the increased rate. Addressing the issue of whethe r defendant was similarly situated to those defendants who served time after the operative date, and rejecting Kapperman -based arguments, the court explained: “As we have already explained, 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 m odified their behavior in response . That prisoners who served time before and after former secti on 4019 took effect are not similarly situated necessarily follows.” ( Brown , at pp. 328–329.)12 Relying on Brown , this court, in People v. Ellis (2012) 207 Cal.App.4th 1546 ( Ellis ), rejected an equal protection challenge to the 2011 amendment virtually identical to that raised by appellant he re: “We can find no reason Brown’s conclusions and holding with respect to the January 25, 20 10, amendment should not apply with equal force to the October 1, 2011, amendment. [Citation.] Accordingly, we reject defendant’s claim he is entitled to earn conduct credits at the enhanced rate provided by current section 4019 for the entire period of his presentence incarceration.” 3 ( Ellis , at p. 1552; accord, People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397 ( Kennedy ).) After Ellis was decided, the court in Rajanayagam , supra , 211 Cal.App.4th 42, addressed an equal protection challenge to the current version section 4019, where, as in Ellis and the instant case, the confinement pe riod straddled October 1. However, the defendant in Rajanayagam effectively conceded he was not entitled to the portion of his presentence confinement that predated Oct ober 1, and therefore the defendant’s claim related only to time served on an d after that date. The court held that the two groups in question—“(1) those defendant s who are in jail on and/or after October 1, 2011, who committed an offense on or afte r October 1, 2011, and (2) those defendants who are in jail on and/or after October 1, 20 11, who committed the same offense before October 1, 2011”—were “similarly situated for purposes of the Octobe r 1, 2011, amendment ....” ( Rajanayagam , at p. 53.) Brown , the court stated, “is inapposite on this point.” ( Rajanayagam , at p. 54.) The court reasoned as follows: “[ Brown ] did not involve a situation where a defendant sought enhanced conduct credit for time served after the amendment’s operative date. Instead, Brown concerned whether the amendment was retroactive, i.e., whether a defendant who served time before the operative date was

3 Like appellant, the defendant in Ellis was confined prior to sentencing both before, on and after October 1.13 entitled to enhanced conduct credits. Here, we are faced with the issue of whether the current version of section 4019 operates pr ospectively as to a defendant who committed an offense before the amendment’s effect ive date. We read the language of Brown , supra , 54 Cal.4th at page 329, ‘[t ]hat prisoners who served tim e before and after former section 4019 took effect are not similarly situ ated necessarily follows ’ as limited to the facts in that case—that ther e is no incentive for defendants who served time before the amendment’s effective date to work and behave. Brown is not instructive on the issue of whether there is an incentive for defendant s who served time af ter the amendment’s effective date to work and behave.” ( Ibid .) This court in Ellis , in finding Brown controlling, did not specifically address the foregoing view of the Brown equal protection analysis of confinement time on and after October 1 . However, we need not reconsid er this court’s conclusion in Ellis on this point. As we explain below, assuming for the sake of argument that the similarly-situated requirement is met for the entire period of ap pellant’s custody, his equal protection claim nonetheless fails because there is a rational basi s for the legislative classification at issue. On this point, we agree with Rajanayagam court’s analysis, from which we quote at length. “With respect to the judicial scrutiny of the classification, we must determine whether there is any reasonably conceivable st ate of facts that could provide a rational basis for the classification. It is undisputed the purpose of section 4019’s conduct credits generally is to affect inmates’ behavior by providing them with in centives to work and behave. ( Brown , supra , 54 Cal.4th at pp. 327–329.) Bu t that was not the purpose of Assembly Bill No. 109, which was part of th e Realignment Act.... [T]he Legislature’s stated purpose for the Realignment Act ‘is to reduce recidivism and improve public safety, while at the same time reducing corrections and related criminal justice spending.’ [Citation.] Section 17.5, subdivision (a)(7), pu ts it succinctly: ‘T he purpose of justice14 reinvestment is to manage and alloca te criminal justice populations more cost-effectively , generating savings that can be reinvested in ev idence-based strategies that increase public safety while holding offenders acco untable.’ (Italics added.)” ( Rajanayagam , supra , 211 Cal.App.4th at pp. 54-55.) Thus, we must determine whether the 2 011 amendment to section 4019 awarding less credits to those defendant s who committed their offenses before October 1, than those defendants who committed their offenses on or after October 1, “bears a rational relationship to the Legislature’s legitim ate state purpose of reducing costs.” ( Rajanayagam , supra , 211 Cal.App.4th at p. 55.) “We are mindful the rational relationship test is highly deferential. ( People v. Turnage (2012) 55 Cal.4th 62, 77 [‘[w]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seem s to have made. A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends”’].)” ( Ibid .) As did the court in Rajanayagam , “We conclude the classi fication in question does bear a rational relationship to cost savings.” ( Rajanayagam , supra , 211 Cal.App.4th at p. 55.) “Preliminarily, we note the California Su preme Court has stated equal protection of the laws does not forbid statutes and statut ory amendments to have a beginning and to discriminate between rights of an earlier and later time. ( People v. Floyd (2003) 31 Cal.4th 179, 188 ( Floyd ) [‘[d]efendant has not cited a sing le case, in this state or any other, that recognizes an equal protecti on violation arising from the timing of the effective date of a statute lessening the puni shment for a particular offense’].) Although Floyd concerned punishment, we discern no ba sis for concluding differently here.” ( Ibid. ; accord, Kennedy , supra , 209 Cal.App.4th at pp. 398-399 [“Although [the 2011 amendment] does not ameliorate punishment fo r a particular offense, it does, in effect, ameliorate punishment for a ll offenses committed after a particular date”].)15 “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 wa s best served by gran ting 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 co st 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 c hose in balancing public safety against cost savings. ( Floyd , supra , 31 Cal.4th at p. 190 [Legislature’s public purpose predominate consideration].) Under the very deferential rational relationship test, we will not secondguess the Legislature and conclude its stated purpose is better serv ed by increasing the group of defendants who are en titled to enhanced conduct cr edits when the Legislature has determined the fiscal crisis is best am eliorated by awarding enhanced conduct credit to only those defendants who committed their offenses on or after October 1, 2011.” ( Rajanayagam , supra , 211 Cal.App.4th at pp. 55-56; accord, Kennedy , supra , 209 Cal.App.4th at p. 399 [in making changes to custody credits earning rates “the Legislature has tried to strike a delicate balance between reducin g the prison population during the state’s fiscal emergency and protec ting public safety,” and “Although such an effort may have resulted in comparable gr oups obtaining different credit earning results, under the rational relationship test, the Legisl ature is permitted to engage in piecemeal approaches to statutory scheme s addressing social ills and fu nding services to see what works and what does not”].) Finally, we find a second rational basis for th e classification at issue. As the court stated in Kennedy : “[T]he Legislature could rationally have believed that by making the 2011 amendment to section 4019 have applicati on determined by the date of the offense,16 they were preserving the deterrent effect of th e criminal law as to those crimes committed before that date. To reward appellant with the enhanced credits of the [October] 2011 amendment to section 4019, ev en for time he spen t 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.” ( Kennedy , supra , 209 Cal.App.4th at p. 399.) For the foregoin g reasons, we conclude appellant’s equal protection rights were not violated. DISPOSITION The judgment is affirmed.