1 Filed 6/5/13 P. v. Hollowell CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. TROY JASON HOLLOWELL, Defendant and Appellant. C072075 (Super. Ct. No. 11F06405)

Defendant Troy Jason Hollo well appeals from a judgment after he pled no contest to possession of a completed ch eck with the intent to defra ud (Pen. Code, § 475, subd. (c)) 1 and identity theft with a prior identity theft conviction (§ 530.5, subd. (c)(2)), and admitted one strike (§§ 667, subds. (b)-(i), 1170. 12) and five prior pr ison term (§ 667.5, subd. (b)) allegations. On appeal, defendant contends the trial court’s failure to award additional conduct credits pursuant to the Crimin al Justice Realignment Act of 2011 (Realignment Act)

1 Undesignated statutory references are to the Penal Code.2 (Stats. 2011, ch. 15, § 482) deprived him of equal protection under the law. We disagree and affirm the judgment.
FACTS
Defendant committed the crimes for wh ich he was convicte d on September 15, 2011. On July 2, 20 12, the trial court sentenced defendant to serve nine years in state prison and awarded 435 da ys of presentence credit, consis ting of 291 actual days and 144 days of conduct credit. The trial court calculated defendant’s conduct credits under the September 28, 2010, revision of the presentence custody cred it law. Under that version, a defendant with a current or prior serious or violent felony conviction was en titled to two days of conduct credit for every four days of presen tence custody. (Former §§ 2933, 4019 (Stats. 2010, ch. 426, § 2).)
DISCUSSION Operative October 1, 2011, the Realignm ent Act amended section 4019 to enhance
the rate at which defendants c ould earn conduct credits from tw o days for every four days actually served (former § 4019) to two days for every two days actually served (amended § 4019, subd. (f)). The Realignment Act also added subdivision (h) to section 4019, which provides: “The changes to this s ection enacted by the act that added this subdivision shall apply prospectively and sha ll apply to prisoners who are confined to [specified facilities] for a crime committed on or after October 1, 20 11. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” On appeal, defendant cont ends he is entitle d to have his presentence conduct credits calculated at the enhanced rate provi ded by the Realignment Act for his days in custody from October 1, 2011, to July 2, 2012. He argu es that for defendants who committed offenses prior to Oc tober 1, 2011, principles of equal protection compel the3 application of section 4019 to defendants in presentence custody from October 1, 2011, to the date of sentencing. Consistent with the reasoning of other appellate courts, we reject defendant’s equal protection argument. 2
In People v. Brown (2012) 54 Cal.4th 314 at pages 318-322 ( Brown ), our Supreme Court held that under general rules of statut ory construction a prior amendment to section 4019 must be read prospectively only, even though the Legislature did not expressly so state, and even though this meant “prisoners whose cust ody overlapped the statute’s operative date . . . earned credit at two different rates.” ( Brown, supra , 54 Cal.4th at p. 322.) The court reasoned that “the im portant correctional purposes of a statute authorizing incentives fo r good behavior [citation] are not served by rewarding prisoners
who served time before the ince ntives 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, supra, at pp. 328-330; see People v. Lara (2012) 54 Cal.4th 8 96, 906, fn. 9.) Defendant argues that unlike the defendant in Brown , he is similarly situated for purposes of conduct incentives to other defend ants who are in pres entence custody on or after October 1, 2011. Defendant contends there are two groups of similarly situated prisoners: those in presentence custody on or after October 1, 2011, for crimes committed before that date and those in pres entence custody on or af ter October 1, 2011,
for crimes committed on or after that date. He next argues there is no rational basis to deny enhanced presentence custody credits to those who comm itted crimes before

2 Defendant does not make a statutory cons truction argument based on the language in subdivision (h) of section 4019 . Thus, we do not need to address this argument. However, we note two appellate decisions ha ve rejected this statutory construction argument. (See People v. Ellis (2012) 207 Cal.App.4th 1546 ( Ellis ) and People v. Rajanayagam (2012) 211 Cal.App.4th 42 ( Rajanayagam ).)4 October 1, 2011, and who are in presentence custody after this date because it is not reasonably related to a leg itimate public purpose. Two appellate c ourts, relying on Brown’ s reasoning, have rejected the equal protection argument defendant raises as to the October 1, 2011, amendment to section 4019. ( Ellis, supra, 207 Cal.App.4th at pp. 1551-1553; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-399 ( Kennedy) .) 3 We agree with these cases that the reasoning
of Brown, supra, 54 Cal.4th 314 applies with equal fo rce to the current version of section
4019. Even assuming the two groups of defendants are similarly situat ed for purposes of the October 1, 2011, amendment to section 40 19, we conclude the classifications bear a rational relationship to a le gitimate state purpose. Like the appellate courts in Kennedy , Verba , and Rajanayagam that applied the equal protection rational basis test, there are several legitimate reasons for making th e enhanced presentence conduct credits applicable only to those who commit their crimes on or after October 1, 2011, including cost savings measured against public safety ( Verba, supra , 210 Cal.App.4t h at pp. 996- 997; Rajanayagam, supra , 211 Cal.App.4th at p. 55), ma intaining the desired deterrent effect of penal laws by carrying out the p unishment in effect at the time defendants commit their offenses ( Kennedy, supra , 209 Cal.App.4th at p. 398, Verba, supra , 210 Cal.App.4th at p. 997), and the Legislature’s right to control the risk of new legislation by limiting its application ( Verba, supra , 210 Cal.App.4th at p. 997). For these reasons, we reject defe ndant’s equal protection argument.

3 Two appellate cour ts did not rely on Brown in their analysis rejecting an equal protection argument. Both courts concluded the two groups of prisoners are similarly situated for purposes of the October 1, 2 011, amendment and dete rmined there was a rational basis for the classifications. ( People v. Verba (2012) 210 Cal.App.4th 991, 995- 997 ( Verba ); Rajanayagam, supra, 211 Cal.App.4th at pp. 54-55.)5 DISPOSITION The judgment is affirmed.

HOCH , J.

We concur:

RAYE , P. J.

HULL , J.