Filed 6/20/13 P. v. Espiritu CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. THOMAS REYES ESPIRITU, Defendant and Appellant. D061931

(Super. Ct. No. SCE307352)

APPEAL from a judgment of the Superi or Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed in part, re versed in part, and modified in part.

Stephen M. Hinkle, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, A. Natasha Cortina and Annie F. Fraser, Deputy Attorneys General, for Plaintiff and Respondent.2 INTRODUCTION A jury convicted Thomas Reyes Espiritu of gross vehicular manslaughter while intoxicated (Pen. Code, 1 § 191.5, subd. (a); count 1), dr iving under the influence causing injury (Veh. Code, § 23153, subd. (a); count 2), and driving with a measurable blood alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3). As to counts 2 and 3, the jury also found true allegations Espiritu had a blo od alcohol concentration of 0.15 percent or more (Veh. Code, § 23578) and personally inflicted gr eat bodily injury (§ 12022.7, su bd. (a)). The court sentenced Espiritu to six year s in state prison for count 1 and, at the parties' request, stayed the convictions for counts 2 and 3 under section 654. The court additionally awarded him 200 da ys of presentence credit, c onsisting of 134 actual days and 66 conduct days under section 4019. Espiritu appeals, contending the c ourt prejudicially e rred by admitting an irrelevant and unduly infl ammatory autopsy photograph, admitting irrelevant and unsupported expert accident reconstruction tes timony, excluding relevant evidence of the victim's narcotics use, and refusing to gi ve a requested pinpoint instruction on the definition of gross negligence. Additionall y, he contends the cumulative prejudicial impact of these errors deprived him of due process and a fair trial. He also contends we must reverse his convictions for counts 2 and 3 because they are lesser included offenses

1 Further statutory references are to the Penal Code unless otherwise stated.3 of count 1, and he is entitle d to additional presentence conduct credit under the current version of section 4019. The People concede and we agree we mu st reverse his convictions for counts 2 and 3. In all other respects, we affirm the judgment.
BACKGROUND On an evening in Decembe r 2010, Espiritu and his fi ancée attended a Christmas party where Espiritu drank vodk a and whiskey. After the pa rty, Espiritu's fiancé, who had not been drinking, drove them to her ho me. About 15 minutes after they arrived, Espiritu left in his vehicle to pick up his daugh ter. At trial, Espiritu's fiancée testified she did not think he was too impaired to drive; however, that night she told a police officer the opposite. Sometime after leaving his fiancée's home, Espiritu pa ssed a car in which Jeffrey Smith was a passenger. Smith saw Espiritu we ave in and out of traffic and estimated Espiritu was driving at least 70 miles per hour. Espiritu's car was moving so fast it had a body roll and its tires were fo lding under it. After Espiritu passed Smith, Smith lost sight of Espiritu's car. About a minute later and a mile or two down the road, Smith saw debris in the roadway and a body lyin g in the center of the road. He also saw Espiritu's now damaged car a bit farther ahead. A community service officer who responded to the scene asked Espiritu if he had been in a accident with a motorcycle. Espir itu did not respond. When the officer asked him again whether he had been in an accident, Espiritu told him a motorcycle had committed a hit and run. A bystander then in formed the officer a motorcycle and rider4 were down. The officer went to where th e rider, David Dickinson, was lying on the ground. Dickinson was alive, but nonresponsive. Dickinson later died at the hospital. The medical examiner noted he had scrapes and bruising around his face a nd bleeding around his brain. His brain had swelled, his spinal cord was bruised, and his neck, the ba se of his skull, and two locations along his spine were fractured. He also had a scrape across his abdomen and chest, multiple rib fractures, and multiple organ injuries. He died from multiple bl unt force injuries. A police officer with expertise in condu cting driving under the influence (DUI) evaluations noticed Espiritu smelled of alc ohol, had bloodshot and watery eyes, slurred speech, and an unsteady gait. The officer performed a series of field sobriety tests on Espiritu. The officer also had Espiritu blow into a preliminary alcohol screening device two times. The first time produced a readin g of 0.169 percent blood alcohol content and the second time produced a reading of 0.166 pe rcent blood alcohol content. Based on the results of the field sobriety tests and the prel iminary alcohol screeni ng, the officer formed the opinion Espiritu was under the influence of alcohol, arrested him, and transported him to the police station. At the station, the officer administer ed two breath tests to Espiritu, which produced readings of 0.15 percent blood alco hol content and 0.16 percent blood alcohol content. The officer also ha d Espiritu's blood drawn. A criminalist performed two tests on the blood drawn from Espiritu. The first test showed he had a blood alcohol content of 0. 135 percent and the seco nd showed he had a blood alcohol content of 0.136 pe rcent. From the results of th e breath and blood tests, the5 criminalist calculated Espiritu's blood alco hol content at the time of the collision was between 0.15 and 0.17 percent. According to the criminalis t, a person with a 0.15 blood alcohol content level would have pronounced physical and mental impairments. Based on the results of the scientific tests, the field sobriety tests, and Espi ritu's reported driving behavior, the criminalist opined he was under the influence at the time of the collision. A tow truck operator drove up to the s cene, noticed Dickins on's motorcycle lying on its side, and picked it up and put it on its st and. The tow truck operator noticed the rear wheel of the motorcycle was heavily damaged. A motorcycle maintenance expert subseque ntly inspected Dickin son's motorcycle. The right side of the motorcycle was heav ily damaged. The r ear was also heavily damaged from what appeared to be a very large, direct impact. At the time of the collision, the motorcycle was in third gear. In third gear, the motorcycle can go between 20 and 70 miles per hour, with a comfortable cr uising speed of 30 to 45 miles per hour. The right side of the motorcycle's engi ne had grind marks indicating the engine had slid on the ground for a time. There was plastic im bedded in the motorcycle's muffler. An officer opined the plastic ca me from the headlight housing on Espiritu's vehicle. An accident reconstruction expert studied the data from the even t data recorder in Espiritu's car. The expert determined the vehicle was going between 86 to 95 miles per hour in the period between 4.3 and 2.3 seco nds before the impact. Immediately before the impact, the car's sp eed dropped to between 76 and 85 miles per hour as Espiritu took his foot off the accelerator and stepped on th e brake pedal. There was no evidence, such6 as skids marks, indicating either Espiritu's ca r or the motorcycle were braking hard at the time of the collision. Based on the presence of corresponding impact scuff marks, El Cajon police officer and traffic collision investigator Jos hua Pittsley opined the back of Dickinson's helmet had impacted the "A" p illar of Espiritu's vehicle. Additionally, the front tire of Espiritu's car was pushed back into the wheel well to the point the tir e would not roll, and the entire front end of the vehicl e was collapsed two to three f eet. Espiritu's vehicle also impacted a curb. The officer opined Espiritu had been trying to flatten out a co rner turn when his car drifted out of the right lane, straddled the right and left lanes, and struck the rear of Dickinson's motorcycle, which was traveling in the right third of the left lane. The impact carried Dickinson on Es piritu's vehicle for 120 feet before Dickinson slid another 57 feet to the ground. Dickinson's motorcycle was carried 360 feet on Espiritu's vehicle before it slid to the ground and eventually ended up 414 feet from the point of impact. Espiritu's vehicle ended up 735 feet from the point of impact.
DISCUSSION
I Admission of Autopsy Photograph
A Before trial, the prosecutor sought ad mission of a single autopsy photograph of Dickinson's face showing abrasions and bruisi ng on his forehead, left eye, nose, upper lip, lip, chin, and left cheek . The prosecutor argued the photograph was admissible7 because it corroborated the me dical examiner's testimony, illustrated the nature of Dickinson's injuries, and supported the theo ry Espiritu's unreasonable speed launched Dickinson 177 feet. Defense counsel objected to the admi ssion of the photograph under Evidence Code section 352, arguing neither Dickinson's identity nor the fact of his death were at issue and viewing the photograp h would be upsetting to a la yperson. After viewing the photograph, the court found it was relevant a nd its prejudicial effect did not outweigh its probative value.
B
1 Espiritu contends the court prejud icially erred in admitting the autopsy photograph. To evaluate the me rit to this contention, we fi rst consider whether the trial court abused its discretion in determin ing the photograph was relevant. ( People v. Ramirez (2006) 39 Cal.4th 398, 453; People v. Carter (2005) 36 Cal.4th 1114, 1166.) " ' "Relevant evidence" means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of cons equence to the determination of the action.' (Evid. Code, § 210.)" ( People v. Ramirez , supra , at p. 453.) " ' "The test of relevance is whether the evidence tends ' "logically, na turally, and by reasonable inference" to establish material facts such as id entity, intent, or motive.' " ' " ( People v. Carter , supra , at p. 1166.) In this case, the prosecut or had to prove Espiritu act ed with gross negligence resulting in the death of another. To meet th is burden, the prosecutor presented accident8 reconstruction evidence indicating Espiritu collided with the rear of Dickinson's motorcycle at a high rate of speed, causing Dickinson to be thrown from his motorcycle and slide across the roadway before coming to rest 177 feet from the point of impact. The medical examiner's testim ony corroborated the accident reconstruction evidence and established the cause of Dickinson's death. The autopsy photograph also corroborated the accident reconstruction evidence and illustrated part of the me dical examiner's testimony. Accordingly, the court did not abuse its di scretion in determini ng the photograph was relevant. ( People v. Virgil (2011) 51 Cal.4th 1210, 1248 [p hotographs are relevant to illustrate a forensic expert's testimony]; People v. Howard (2010) 51 Cal.4th 15, 33 [autopsy photographs are admi ssible to clarify the test imony of prosecution witnesses regarding the crime scen e and the autopsy].) Although Espiritu contends the photograph was irrelevant because it was probative only of undisputed issues , "autopsy and crime scene photographs are not made inadmissible because they are offered to prove an issue not in dispute." ( People v.
Watson (2008) 43 Cal.4th 652, 684; People v. Crittenden (1994) 9 Cal.4t h 83, 132-133.) Moreover, even if the photogra ph was cumulative to the testim onial evidence, " 'this . . . does not demonstrate the trial court abused its broad discretion. "[P] rosecutors . . . are not obliged to prove their ca se with eviden ce solely from live witn esses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case." ' " ( People v. Garcia (2008) 168 Cal.App.4th 261, 294; accord, People v. Lewis (2009) 46 Cal.4th 1255, 1282.)9 2 We next consider whether the court a bused its discretion in determining the probative value of the photograph outweighed its prejudicial effect. " 'The court in its discretion may exclude evidence if its probativ e value is substantia lly outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .' [Citation.] 'The jury can, and must, be shie lded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome , but the jury cannot be shielded from an accurate depiction of the ch arged crimes that does not unnecessarily play upon the emotions of the jurors.' [Citation.] We re view the trial court's ruling under Evidence Code section 352 for abuse of discretion [cita tion], and . . . will re verse a trial court's exercise of discretion to admit crime scen e or autopsy photographs only when 'the probative value of the photographs clearly is outweighed by their prej udicial effect.' " ( People v. Watson , supra , 43 Cal.4th at pp. 683-684; accord, People v. McKinzie (2012) 54 Cal.4th 1302, 1351.) Admission of an autopsy photograph is only unduly prejudicial if the photograph " 'uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value w ith regard to the issues.' " ( People v. Virgil (2011) 51 Cal.4th 1210, 1248.) The p hotograph at issue here is a close-up of Dickinson's face with his eyes closed. The photograph has a yellow tinge a nd was taken as Dickinson's body lay on a metal table with a covering up to his chin. The ph otograph does not show any open or bleeding wounds. Of the bruise s and abrasions shown, only one, a deep, dark red bruise on the tip of Dickinson' s nose, stands out. While unquestionably10 unpleasant, the photograph cannot be fairly characterized as sens ational or unduly gruesome. We, therefore, cannot conclude the prejudicial effect of the photograph clearly outweighed its probative value such that the court abused its discretion in admitting it. Even if the court had abused its di scretion in admitting the photograph, the photograph did not provide the jury with any additional or mo re graphic information than the medical examiner's testimony. Thus, admission of the photograph was harmless under both Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818, 836-837. ( People v. Cole (2004) 33 Cal.4th 1158, 1199.)
II Admission of Accident Recons truction Expert Testimony Espiritu contends the court erred by admitting Pittsley's expert accident reconstruction testimony because the testim ony was based on two false premises: (1) Dickinson was an experienced motorcycle rider, and (2) Dickinson was sober at the time of the accident. We review a court's decisi on to admit expert testimony for abuse of discretion. ( People v. Lindberg (2008) 45 Cal.4th 1, 45.) "[A]n expert's opinion based on assumpti ons of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence." ( Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117; accord, People v. Richardson (2008) 43 Cal.4th 959, 1008.) In this case, howeve r, the record does not show Pittsley's trial testimony was based on unsu pported assumptions.11 Espiritu has not identified nor have we located any place in the record indicating Pittsley based his trial testimony on the assumption Dickinson was sober. 2 In addition, while Pittsley testified experience d motorcycle riders tend to ri de in a particular place in the roadway and he believed the collision occurred in this place, he did not base his belief on the assumption Dickinson was an experien ced rider. He acknowledged he did not know anything about Dickinson' s experience or ability riding motorcycles. Rather, he based his belief solely on the physical evid ence at the collision scene. Accordingly, Espiritu has not established the court ab used its discretion in admitting Pittsley's testimony. Given this conclusion, we need not address the Peop le's assertion that Espiritu forfeited this contention by failing to object to Pittsley's testimony below.
III Exclusion of Evidence of Dickinson's Drug Use
A Before trial, defense counsel sought to admit and the prosecutor sought to exclude under Evidence Code section 352 evidence of Di ckinson's narcotics use. Defense counsel argued the court should allow admission of the evidence as it was relevant to

2 At the preliminary hearing, during cro ss-examination by defense counsel, Pittsley testified the collision in this case was not co nsistent with the scenario of Dickinson's motorcycle having cut off Espiritu's car. He based this opinion in part on the assumption Dickinson was maintaining his lane and a consis tent speed at the time of the accident. He acknowledged an intoxicated person would have a difficult time doing either. He also acknowledged blood tests showed there were c ontrolled substances in Dickinson's system at the time of the accident and there was a possibility Dickinson was impaired. However, he further testified this information did not change his opinion that Dickinson was not at fault for the accident.12 Dickinson's cause of death because meth amphetamine use increases hemorrhaging, which caused him to bleed more and faster, leading to his death. The prosecutor responded that the medical examiner determin ed the cause of death to be multiple blunt force trauma, not methamphetamine use. Th e court found the evidence irrelevant and excluded it. During trial, defense counsel renewed her request to admit evid ence of Dickinson's narcotics use, arguing the evidence was ne cessary to counter Pittsley's assumption Dickinson was riding in the right third of the left lane at the time of the accident because that is what an experienced, sober motorcycle rider would do . In response, the prosecutor pointed out Pittsley's opi nions had more to do with wher e the physical evidence placed Dickinson than with any assu mption about the behavior of an experienced motorcycle rider. Therefore, the prosecutor argued admission of the evid ence of Dickinson's narcotics use would be far more prejudicial than probative. The court agreed with the prosecutor's position, particularly absent the existence of any evidence indicating Dickinson was driving in an erratic manner before the co llision, and reaffirmed its pretrial ruling excl uding the evidence.
B Espiritu contends the court prejudicially erred in excluding the evidence because its admission was necessary fo r him to counter Pittsley's assumption Dickinson was sober at the time of the accident. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. ( People v. Scott (2011) 52 Cal.4th 452, 491.)13 As we noted in part II, ante , nothing in the record indicates Pittsley based his opinions about how the collision occurred on the assumption Dickinson was sober. To the contrary, the record shows Pittsley knew Dickinson was possibly impaired at the time of the collision. Consequently , Espiritu has not established the evidence of Dickinson's narcotics use was probative, much less more probative than prejudicial, and we cannot conclude the court abused its discretion in excluding it.
IV Refusal of Pinpoint Gro ss Negligence Instruction
A To instruct the jury on the crime of gross vehi cular manslaughter while intoxicated, the court used a tailored versio n of CALCRIM No. 590. The instruction informed the jury, "Gross ne gligence involves more than ordina ry carelessness, inattention, or mistake in ju dgment. A person acts with gross negligence when: [¶] 1. He or she acts in a reckless way that create s a high risk of death or great bodily injury; [¶] [and] [¶] 2. A reasonabl e person would have known that acting in that way would create such a risk. [¶] In other words, a person acts w ith gross negligen ce when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. [¶] The co mbination of driving a vehicle while under the influence of an alcoholic beverage and viola ting a traffic law is not enough by itself to establish gross negligence. In evaluati ng whether the defendant acted with gross14 negligence, consider the level of the defe ndant's intoxication, if any; the way the defendant drove; and any other relevant as pects of the defendant's conduct." Defense counsel requested the court also gi ve the jury a pinpoint instruction on the definition of gross negligence. The propos ed instruction read: " 'Gross negligence' requires more than ordinary carelessness, inatte ntion or mistake in ju dgment. [¶] 'Gross negligence' means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasona ble care. [¶] 'Gross ne gligence' refers to a negligent act which is aggravat ed, reckless or flagrant and wh ich is such a departure from what would be the conduct of an ordinar ily prudent, careful person under the same circumstances as to be contrary to a pr oper regard for danger to human life or to constitute indifference to the consequences of t hose acts. [¶] The fact s must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the death or dang er to human life was not the re sult of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act." 3 The prosecution objected to the pinpoint instruction, arguing the definition of gross negligence was adequately covered by CALCRIM No. 590 and the pinpoint instruction might confuse the jury. The court agreed CALCRIM No. 590 adequately covered the definition and declined to give the pinpoint instruction.

3 In his opening brief, Espiritu states the proposed pinpoint instruction was based on language in People v. Penny (1955) 44 Cal.2d 861, People v. Bennett (1991) 54 Cal.3d 1032, People v. Costa (1953) 40 Cal.2d 160, and CALJIC No. 3.36.15 B Espiritu contends the proposed pinpoi nt instruction expanded on CALCRIM No. 590 and clarified the distinc tion between ordinary and gross negligence by: (1) adding "aggravated" and "fla grant" to the definition, (2) re quiring the consequences of the negligence to be reason ably foreseen, and (3) informing the jury gro ss negligence is "not the result of inattention, mistaken judgment or misadventure." As the pinpoint instruction supported his defense theory (i.e., he acted with ordinary negligence rather than gross negligence), he contends the cour t was obliged to give the instruction and prejudicially erred by refusing to do so. The propriety of a decision to give or refuse any particular instruction in any particular case involves a mi xed question of law and fact . As the question is a predominantly legal one, we independently review it. ( People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838.) " ' "[A] defendant has a right to an inst ruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court ma y, however, 'properly re fuse an instruction offered by the defendant if it in correctly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.' " ( People v. Burney (2009) 47 Cal.4th 203, 246; accord, People v. Bivert (2011) 52 Cal.4th 96, 120; People v. Canizalez (2011) 197 Cal.App.4th 832, 856–857.) In this case, the pattern instruction the court used adequately covered each of the points for which Espiritu sought the pinpoin t instruction. The pattern instruction conveyed the need for grossly negligent conduct to be "aggravated" and "flagrant" by16 informing the jury the co nduct had to create "a high risk of death or great bodily injury" and had to be "so diffe rent from the way an ordinarily careful person would act in the same situation" that it amount ed to "disregard for human life or indifference to the consequences" of the conduct. (CALCRIM No. 590.) The pa ttern instruc tion conveyed the need for the consequences of the grossly negligent conduct to be reasonably foreseen by informing the jury "[a] person acts with gross negligence when: [¶] . . . [¶] [a] reasonable person would have kn own that acting in that way would create such a risk." (CALCRIM No. 590.) Finally, the pattern instruction clarif ied that gross negligence is "not the result of inattention, mistaken judg ment or misadventure" by informing the jury gross negligence "involves more than ordinary carelessness, inattention, or mistake in judgment." (CALCRIM No. 590.) A court is not required to give a pinpoint instruction on a matter adequately covered by another instruction. ( People v. Clark (2011) 52 Cal.4th 856, 975.) Accordingly, we conclu de the court did not err by failing to give Espiritu's requested pinpoint in struction on gross negligence. Even if the court should have given a pinpo int instruction, the error was harmless. Defense counsel's closing argument fully pres ented the defense theory that Espiritu's conduct amounted to on ly ordinary negligence and noth ing in the court's instructions precluded the jury from so finding. (See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145.)17 V Cumulative Error Espiritu contends we must reverse his co nvictions because the cumulative effect of the above claimed errors prejudiced him. We reject this argument as "[w]e have found no error that, either alone or in conjun ction with others, prejudiced [him]." ( People v. Williams (2013) 56 Cal.4th 165, 201.)
VI Dismissal of Counts 2 and 3 as Lesser Included Offenses Espiritu contends, the People concede, and we agree we must reverse Espiritu's convictions for counts 2 and 3 because they ar e lesser included offenses of count 1. A defendant may not be convicted of both a greater and a lesser included offense. ( People v. Medina (2007) 41 Cal.4th 685, 701.) Thus, when a jury finds a defendant guilty of both a greater and a lesser included offense a nd there is substantia l evidence to support the conviction for the greater offense, the gr eater offense controls and the lesser included offense must be reversed. ( Id. at pp. 701-702; People v. Moran (1970) 1 Cal.3d 755, 763.)
VII Custody Credits Espiritu was initially conf ined December 19, 2010, wa s released the same day, was confined again on January 11, 2011, and released on January 12, 2011, and was confined again on December 22, 2011. The court subsequently sentenced him on April 30, 2012. The court awarded him 2 00 days of presentence custody credit,18 consisting of 134 days of actual custody credit and 66 da ys of conduct credit. Based on amendments to section 4019, which took effect on October 1, 2011, Espiritu contends he is entitled to additional presente nce conduct credit for the time he served after that date. He further contends failure to award him a dditional presentence conduct credit for this time deprives him of equal protec tion of the law. We disagree. Section 4019, which specifies the rate of presentence co nduct credit an inmate in local custody may earn, had undergone numerous revisions in the past several years. ( People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-50 ( Rajanayagam ) [detailing the history of recent amendments]; People v. Garcia (2012) 209 Cal.A pp.4th 530, 533-540 [same].) At the time of Espiritu's offense, section 4019 allowed an inmate in local custody to earn up to six days of conduct credit for every four days of actual custody. (Former § 4019, subds. (b), (c), & (f), Stats. 2010, ch. 426, § 2, eff. Sept. 28, 2010; People v. Ellis (2012) 207 Cal.App.4th 1546, 1549.) As of October 1, 2011, section 4019 allows an inmate in local cust ody to earn up to four days of conduct credit for every two days of actual custody. (Amended § 4019, subds. (b), (c), & (f), Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, oper ative Oct. 1, 2011; Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct. 1, 2011; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011; People v. Ellis , supra , at pp. 1549-1550.) Of pertinence here, subdivision (h) of am ended section 4019 states, "The changes to this section . . . shall appl y prospectively and shall apply to prisoners who are confined to a county jail . . . for a crim e committed on or after Octobe r 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior19 law." According to Espiritu, the latter se ntence creates an ambiguity, which should be interpreted to allow him to earn credits for local time served after October 1, 2011, even though he committed his crime before then. However, as the Rajanayagam court explained, "subdivi sion (h)'s first sentence reflects the Legislature intende d the enhanced conduct credit provision to apply only to those defendants who committed their crimes on or after Oc tober 1, 2011. Subdivision (h)'s second sentence does not extend the enhanced conduct cr edit provision to any other group, namely those defendants who committed o ffenses before October 1, 2011, but are in local custody on or after October 1, 2011. Instead, s ubdivision (h)'s second sentence attempts to clarify that those defendant's who committed an offens e before October 1, 2011, are to earn credit under the prior la w. However inartful the language of subdivision (h), we read th e second sentence as reaf firming that defendants who committed their crimes before Oc tober 1, 2011, still have the opportunity to earn conduct credits, just under prior law. [Citation.] To imply the enhanced conduct credit provision applies to defendants who committed their crim es before the effective date but served time in local custody after the effective date reads too much into the statute and ignores the Legislature's clear intent in s ubdivision (h)'s first sentence." ( Rajanayagam , supra , 211 Cal.App.4th at p. 52, fn. omitted; see also, People v. Ellis , supra , 207 Cal.App.4th at p. 1553 ["The second sent ence does not extend the enhanced rate to any other group, but merely specifies the rate at which all others are to earn conduct credits"]; People v.
Garcia , supra , 209 Cal.App.4th at p. 541 [the la nguage of amended section 4019 does20 not entitle a defendant who was sentenced af ter its effective date but whose crimes occurred prior to its ef fective date to additional conduct credit].) This interpretation and its application to Espiritu does not deprive him of equal protection of the law because, assuming he is similarly situat ed to inmates who committed their offenses after the effective da te of amended section 4019, the Legislature nonetheless had a rational basis for treati ng the latter inmates differently. Amended section 4019 was part of larger legislati on whose purpose was to "to reduce recidivism and improve public safety, while at the sa me time reducing corrections and related criminal justice spending.' " ( Rajanayagam , supra , 211 Cal.App.4th at p. 55.) "[I]n choosing October 1, 2011, as the effective date of [amended section 4019], the Legislature took a measured approach and ba lanced the goal of cost savings against public safety. The effective date was a legi slative 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 ev eryone 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. [Citation.] Under the very defere ntial 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 enha nced conduct credits when the Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced21 conduct credit to only thos e defendants who committed th eir offenses on or after October 1, 2011." ( Rajanayagam , at pp. 55-56.)
DISPOSITION The convictions for counts 2 and 3 are reve rsed. The trial court is directed to modify the abstract of judgment accordingly and to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

M C CONNELL, P. J.
WE CONCUR:

AARON, J.

IRION, J.