Filed 6/7/13 P. v. Arnold CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

DOYLE ORLANDO ARNOLD,

Defendant and Appellant.

 H037541 & H038656

 (Santa Clara County

 Super. Ct. Nos. CC817207 & 

 CC775045)

I. STATEMENT OF THE CASE

In H037541, defendant Doyle Orlando Arnold appeals from a judgment entered 

after the court revoked probation and sentenced him in two separate cases to concurrent 

terms of two years. In H038656, defendant appeals from a post-judgment order denying 

his request for additional presentence conduct credit.1 On appeal, he claims that he is 

entitled to additional presentence conduct credit. We disagree and affirm the judgment 

and post-judgment order.

II. BACKGROUND

On August 29, 2007, in superior court case No. CC775045, defendant pleaded 

guilty to possession of a controlled substance, being under the influence of a controlled 

substance, and possession of narcotics paraphernalia, and he admitted a prior prison term 

 

1

 This court ordered the appeals be considered together. 
2

allegation. (Health & Saf. Code, §§ 11350, subd. (a), 11550, subd. (a), 11364; Pen. 

Code, § 667.5, subd. (b).)2 The court suspended imposition of sentence and placed him 

on probation. 

On October 23, 2008, in superior court case No. CC817207, defendant pleaded no 

contest to passing bad checks and admitted a prior prison term allegation. (§ 476a.) 

Again, the court suspended imposition of sentence and granted probation. 

On May 22, 2011, defendant returned to custody due to a probation violation. On 

July 13, 2011, defendant admitted the violation. The court terminated probation and 

sentenced him in both cases to concurrent terms of two years. Concerning credit, the 

court in case No. CC775045 granted him 176 days of presentence custody credit and 

113 days of conduct credit. The conduct credit consisted of 60 days calculated under 

former section 4019 for the 123 days he spent in custody before January 25, 2010; and 

53 days calculated under former section 2933 for the 53 days he spent in custody after 

September 28, 2010. In case No. CC817207, the court granted defendant 300 days of 

presentence custody credit and 175 days of conduct credit. The conduct credit consisted 

of 122 days calculated under former section 4019 for the 247 days he spent in custody 

before January 25, 2010; and 53 days of credit calculated under former section 2933 for 

the 53 days he spent in custody after September 28, 2010. 

After appealing from the judgment (H037541), defendant filed a motion in the 

trial court seeking additional conduct credit. The court denied the motion. In 

August 2012, defendant appealed from the order denying his motion.

 

2

 All unspecified statutory references are to the Penal Code.
3

II. DISCUSSION3

In his post-judgment motion, defendant claimed that former section 2933, 

subdivision (e) (Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010), which provided one-forone conduct credit, applied to all of the presentence custody in both cases and not, as the 

trial court awarded, just to the 53 days he spent in custody before September 28, 2010, 

the effective date of former section 2933, subdivision (e).4 Defendant alternatively 

argued that if the one-for-one formula did not apply to all presentence custody, then he 

was nevertheless entitled to the additional credit under federal constitutional principles of 

equal protection. Thus, in case No. CC775045, defendant sought an additional 63 days of 

conduct credit; and in case No. CC817207, he sought an additional 125 days of credit. 

In his opening brief, defendant acknowledged that Brown, supra, 54 Cal.4th 314 

“essentially forecloses” his claims for additional conduct credit. He reiterates his federal 

equal protection claim to preserve the right to obtain relief in the event that a petition for 

writ of certiorari is filed and granted in Brown. 

We agree that the analyses in Brown foreclose defendant’s claims. In Brown, the 

court explained that “[c]redits are determined and added to the abstract of judgment at the 

time of sentencing, but they are earned day by day over the course of a defendant’s 

confinement as a predefined, expected reward for specified good behavior.” (Brown, 

 

3

 The facts underlying defendant’s offenses and probation violations are not 

relevant to the issues raised on appeal, and therefore, we need not summarize them.

4

 Until January 2010, section 4019 provided that a defendant would receive two 

days of conduct credit for every four days of actual custody. From January 2010 until 

September 2010, section 4019 temporarily increased this to two days of conduct credit 

for every two days of actual custody, but this increase did not apply to a defendant who 

was being committed for a serious felony. (People v. Brown (2012) 54 Cal.4th 314, 317-

318 (Brown ); Stats.2009, 3d Ex.Sess., 2009-2010, ch. 28, § 50.) In September 2010, 

section 4019 was again amended and section 2933 was also amended with regard to 

presentence conduct credit. These statutes also provided that a defendant being 

committed for a serious felony would receive two days of conduct credit for every four 

days of actual custody. (Stats. 2010, ch. 426, §§ 1, 2; former § 2933, subd. (e).)
4

supra, 54 Cal.4th at p. 322.) Thus, credit is accrued and later calculated under the rate 

applicable at the time the period of custody was served, and where a period of custody 

overlaps two different accrual rates, both rates are used to determine the total amount of 

credit. (Ibid.)

The Brown court also rejected a claim that the federal equal protection clause 

required the retroactive application of the more generous accrual rate in an amendment to 

section 4019 to time spent in custody before the amendment became effective. The court 

explained that the purpose of the higher rate was to increase the incentive for good 

behavior while in custody. This purpose of the incentive is served by offering those in 

custody a higher accrual rate. However, the purpose is not served by awarding additional 

credit retroactively for time that has already been served. For this reason, the court 

concluded that persons in custody before and after the increased rate became effective 

were not similarly situated for purposes of an equal protection analysis.

Although Brown addressed an earlier amendment to a different statute and not the 

amendment to section 2933 applicable in this case, its explanation concerning when 

credit is earned and calculated and its equal protection analysis apply here with equal 

force. (See, e.g., People v. Ellis (2012) 207 Cal.App.4th 1546, 1552 [applying Brown in 

different but equivalent legislative context].)

Here, the court properly calculated conduct credit based on the accrual rates 

applicable when defendant was in presentence custody. He received 53 days of conduct 

credit under the one-for-one rate in former section 2933, subdivision (e), which in effect 

during the 53 days he spent in actual custody. He was not entitled to have the one-forone rate applied to the time he spent in custody before that rate became effective.

Defendant’s reliance on In re Kapperman (1974) 11 Cal.3d 542 to support his 

equal protection argument is misplaced. The Brown court distinguished Kapperman, and 

although defendant considers the distinction identified in Brown to be “irrelevant,” we do 

not. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
5

III. DISPOSITION

The judgment and the post-judgment order denying additional credit are affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

 

____________________________________

PREMO, J.

____________________________________

ELIA, J.