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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 Superior 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, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and 

Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 

 

 Before Levy, Acting P.J., Kane, J., and Poochigian, J. 
2 

 A jury convicted appellant, Chor Xiong, of the unlawful taking or driving of a 

motor vehicle (Veh. Code, § 10851, subd. (a)), and in two separate proceedings, appellant 

admitted allegations that he had suffered a “strike,”1 served two separate prison terms for 

prior felony convictions (Pen. Code, § 667.5, subd. (b))2, and suffered a prior conviction 

of violating Vehicle Code section 10851 (Veh. Code, § 10851, subd. (e)). The court 

imposed a prison term of 10 years, consisting of the four-year upper term on the 

substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 

1170.12, subd. (c)(1)), for a total of eight years, and one year on each of the two prior 

prison term enhancements. The court awarded appellant presentence custody credits of 

415 days, consisting of 277 days of actual custody credits 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 inquiry to determine if appellant needed the 

assistance of an interpreter; and (3) appoint an interpreter. We affirm. 

DISCUSSION 

Denial of Request for Appointment of an Interpreter 

 Prior to the commencement of trial testimony, appellant requested the appointment 

of an interpreter. The court denied the request. 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 adjudication that subjects a defendant to the increased punishment 

specified in the three strikes law.

2 Unless otherwise indicated, all further statutory references are to the Penal Code. 
3 

Background

 At the outset of trial proceedings, before any testimony was taken, the prosecutor 

informed the court that “[Defense counsel] advised 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 there’s been 13 minute orders up to today’s 

date, none of which included or noted the assistance of an interpreter, as well as the 

preliminary hearing.” Defense counsel did not dispute this, and confirmed that she and 

appellant had been communicating without the assistance of an interpreter “throughout,” 

at which point the following colloquy occurred: 

 “THE COURT: ... [¶] So is there anything else you wish to add for the record in 

terms of that request? 

 “[Defense counsel]: Just before the trial [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 correct 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.” Defense counsel responded, “I 

understand,” and the court moved to a discussion of other matters. 

Analysis

 Under the California Constitution, “A person unable to understand English who is 

charged with a crime has a right to an interpreter throughout the proceedings.” (Cal. 

Const., art. I, § 14.) In addition, various rights under the United States Constitution, 
4 

“includ[ing] the right of a defendant to due process, to confrontation, to effective 

assistance of counsel, and to be present at trial” “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 effective presence at trial, courts frequently have 

echoed the words of the United States Supreme 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 affirmative 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 developed the rule that 

upon the defendant’s showing of necessity, appointment of an interpreter was required as 

a matter of due process. [¶] In the past, trial courts had been afforded broad discretion in 

determining whether a defendant’s comprehension of English was minimal enough to 

render interpreter services ‘necessary.’ [Citations.] Nothing in the new constitutional 

provision changes this well established requirement 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. Const., art. I, § 14.) Prior to 

the right being spelled out in the state Constitution, the court’s failure to appoint an 

interpreter upon a proper showing of need was deemed violative of fundamental fairness 

and sometimes required reversal of the defendant’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 her] 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 interpreter 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 reasonable basis for the action is shown.’”’ 

[Citation.] ‘“‘[W]here a trial court has discretionary 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 arbitrary, capricious, or patently absurd 

determination....’”’ [Citation]” (Ibid.) 

“When evaluating a determination as to the necessity of appointing 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 evaluate the reactions and responses of the 

accused and to determine whether he or she does or does not require an interpreter in 

order to be adequately understood or in order to adequately understand the proceedings. 

This exercise of discretion should not be reversed unless there 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 understand 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] states that he does not understand English and 

requests an interpreter on that basis may be some 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 “cannot 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 counsel 
6 

confirmed that she and appellant had communicated 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 appellant 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 interpreter 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 within 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 understanding 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.” (Italics added.) Indeed, appellant 

suggests that a defendant has a constitutional right 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 below and therefore the court abused its 

discretion in denying his request for an interpreter. These claims are without merit. 

First, the authorities cited by appellant in this 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 error in the failure of the trial court to 

provide a Spanish speaking defendant with an interpreter notwithstanding the fact that a 

prosecution interpreter provided 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 simultaneous translation of what was being said 
7 

for the purpose of communicating with his attorney to enable the latter to effectively 

cross-examine those English-speaking witnesses to test their credibility, 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 defendant lacked the ability 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 below to do more than simply request an 

interpreter, in our view, he failed 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 “‘ability 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 accused to show that his [or her] 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 standard, 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 trial court failed to conduct any meaningful 

dialogue with appellant to determine why he needed an interpreter. The trial court should 

have, at a minimum, determined how long appellant had been speaking English, his 
8 

native language, and what portion of the proceedings he had failed to understand. The 

trial court’s failure to conduct this inquiry was error.” 

 Here, as indicated earlier, the record shows the following: after being informed by 

the prosecutor that defense counsel had earlier 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, through inquiry, established that appellant and 

counsel were able to communicate in English, and stated, without contradiction, that 

numerous previous proceedings had been conducted 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 appointed, and no explanation was forthcoming. On this record, the 

court cannot be faulted for not inquiring further. 

Presentence Custody Credits 

Under section 2900.5, a person 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 addition, section 4019 provides for what are commonly called 

conduct credits, i.e., credits against a prison sentence for willingness to perform assigned 

labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). 

(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) 

Section 4019 has undergone numerous amendments in the past few years. Under 

the version in effect prior to January 25, 1010, 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 credits). (Former § 4019, subd. (f), as amended 

by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, the 
9 

Legislature amended section 4019 to provide for 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.) Effective 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 amended section 4019 in Assembly 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, defendants, 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 change “shall apply prospectively and shall apply 

to prisoners who are confined to a county jail, city jail, industrial 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 rate required by the prior law.” (§ 4019, subd. 

(h), as added by Stats. 2011, ch. 15, § 482 and 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 one-for-two scheme of the version of section 

4019 that became effective September 28, 2010, and further, that under this statute, the 

trial court’s award of conduct credits was correct. He argues, however, that under equal 

protection principles, he is entitled to one-for-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 October 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 purpose of the enhanced 

credit entitlement.” Further, appellant, a member of the second group, argues that there is 

no “rational basis” for denying him the enhanced credits under the current version of 

section 4019 for the sole reason that he committed his crimes prior to October 1, 2011, 

and that therefore he was denied his constitutional 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 credits of 277 days under the 2011 amendment to 

section 4019 for his entire period of presentence confinement—March 1, 2011, through 

the date of sentencing, December 2, 2011—rather than the one-for-two credits of 138 

days awarded by the court under the version of section 4019 effective September 28, 

2010. We disagree. 

“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.”’” (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 the 
11 

2011 amendment, “Where, as here, the statutory 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 whether appellant, who committed the instant 

offenses prior to October 1, 2011, and persons who were confined for offenses for crimes 

committed after that date are similarly situated with respect to the purpose of the law. 

Preliminarily, we note that appellant’s period of presentence custody— March 1, 2011, 

through December 2, 2011—encompasses time 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 decided after appellant filed his 

opening brief, our Supreme Court addressed whether the amendment to section 4019 that 

became operative on January 25, 2010, should be given retroactive 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 whether 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 modified their behavior in response. That prisoners who served time 

before and after former section 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 here: “We can find no reason Brown’s conclusions and 

holding with respect to the January 25, 2010, 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 period straddled October 1. However, the 

defendant in Rajanayagam effectively conceded he was not entitled to the portion of his 

presentence confinement that predated October 1, and therefore the defendant’s claim 

related only to time served on and after that date. The court held that the two groups in 

question—“(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”—were “similarly situated for purposes of the October 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 prospectively as to a defendant who committed 

an offense before the amendment’s effective date. We read the language of Brown, 

supra, 54 Cal.4th at page 329, ‘[t]hat prisoners who served time before and after former 

section 4019 took effect are not similarly situated necessarily follows’ as limited to the 

facts in that case—that there 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 defendants who served time after 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 reconsider 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 appellant’s custody, his equal protection claim 

nonetheless fails because there is a rational basis 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 state 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 incentives to work and 

behave. (Brown, supra, 54 Cal.4th at pp. 327–329.) But that was not the purpose of 

Assembly Bill No. 109, which was part of the 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), puts it succinctly: ‘The purpose of justice 
14 

reinvestment is to manage and allocate criminal justice populations more cost-effectively, 

generating savings that can be reinvested in evidence-based strategies that increase public 

safety while holding offenders accountable.’ (Italics added.)” (Rajanayagam, supra, 211 

Cal.App.4th at pp. 54-55.) 

Thus, we must determine whether the 2011 amendment to section 4019 awarding 

less credits to those defendants 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 legitimate 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 seems 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 classification in question does 

bear a rational relationship to cost savings.” (Rajanayagam, supra, 211 Cal.App.4th at p. 

55.) “Preliminarily, we note the 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. (People v. Floyd (2003) 31 

Cal.4th 179, 188 (Floyd) [‘[d]efendant has not cited a single case, in this state or any 

other, that recognizes an equal protection violation arising from the timing of the 

effective date of a statute lessening the punishment for a particular offense’].) Although 

Floyd concerned punishment, we discern no basis for concluding differently here.” 

(Ibid.; accord, Kennedy, supra, 209 Cal.App.4th at pp. 398-399 [“Although [the 2011 

amendment] does not ameliorate punishment for a particular offense, it does, in effect, 

ameliorate punishment for all 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 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. (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 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.” 

(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 reducing the prison population 

during the state’s fiscal emergency and protecting public safety,” and “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”].) 

 Finally, we find a second rational basis for the 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 application determined by the date of the offense, 
16 

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 [October] 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.” (Kennedy, supra, 209 

Cal.App.4th at p. 399.) For the foregoing reasons, we conclude appellant’s equal 

protection rights were not violated. 

DISPOSITION 

The judgment is affirmed.