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Filed 5/22/13 P. v. Fisher CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

VINCENT BURL FISHER, 

 Defendant and Appellant. 

 E056288 

 (Super.Ct.No. FMB1100478) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. Daniel W. 

Detienne, Judge. Affirmed. 

 Sachi Wilson, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Sabrina Lane Erwin and James D. 

Dutton, Deputy Attorneys General, for Plaintiff and Respondent. 

 Pursuant to a plea agreement, defendant and appellant Vincent Burl Fisher pled 

guilty to one count of possession of a controlled substance for sale (Health & Saf. Code, 
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§ 11378) and admitted that he had served one prior prison term (Pen. Code, § 667.5, 

subd. (b)).1 The crime occurred on September 4, 2011. The trial court sentenced 

defendant to four years in state prison and awarded him 255 actual credits and 126 

conduct credits, for a total of 381 presentence custody credits. The court also imposed a 

$240 victim restitution fine and a $240 parole revocation restitution fine (stayed pending 

successful completion of parole). 

 On appeal, defendant contends: (1) the trial court’s imposition of $240 for a 

restitution fine and a parole revocation restitution fine under sections 1202.4 and 1202.45 

violated the ex post facto clause; and (2) defendant is entitled to day-for-day conduct 

credits for his jail time on and after October 2011. We affirm. 

FACTUAL BACKGROUND

 Defendant pled guilty to possession of a controlled substance for sale. A police 

officer recognized defendant from previous contacts and asked him if he was on parole. 

Defendant said yes, and the officer conducted a parole compliance check. As the officer 

was searching defendant for weapons, he felt a bulge in his pocket that felt like rock salt 

in a bag. The officer removed the item from defendant’s pocket. The bag taken from 

defendant’s pocket contained 54.10 grams of methamphetamine. 

 1 All further statutory references will be to the Penal Code, unless otherwise 

noted. 
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ANALYSIS

I. The Trial Court’s Imposition of $240 For the Restitution and Parole Revocation 

Restitution Fines Was a Proper Exercise of Discretion

 Defendant claims that when the court imposed restitution and parole revocation 

restitution fines in the amount of $240, it applied the version of section 1202.4 that had 

become effective on January 1, 2012. However, since defendant committed his crime 

three months before this amended law took effect, the fines are an ex post facto violation 

and should be reduced to $200 each. He further claims that his failure to object to the 

fines did not forfeit the issue on appeal because the fines were unauthorized. We 

disagree. 

 When defendant committed his offense in September 2011, the minimum 

restitution fine under section 1202.4, former subdivision (b), was $200. Section 1202.4 

was amended effective January 1, 2012, and the minimum fine was increased to $240. 

Defendant argues that the $240 restitution and parole revocation restitution fines were not 

authorized by the version of sections 1202.4 and 1202.45 that were in effect at the time of 

his crime. However, the trial court had the discretion to impose a restitution fine ranging 

from $200 to $10,000 in 2011, and the $240 fine was well within that range. (Former 

§ 1202.4.) Thus, while the prohibition against ex post facto laws applies to restitution 

fines (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1248), the trial court could 

have imposed a $240 restitution fine in 2011. Thus, it was not an unauthorized sentence. 

 Furthermore, defendant raised no objection in the trial court to the amount of the 

fines. Defendant claims that even though his trial counsel did not object, the error is 
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cognizable on appeal because the imposition of the fines was unauthorized. However, as 

discussed, the $240 amount was authorized; thus, defendant forfeited his right to 

challenge the $240 restitution amount by failing to object below. (People v. Garcia

(2010) 185 Cal.App.4th 1203, 1218.) 

II. Defendant Is Not Entitled to Additional Presentence Custody Credits

 On May 15, 2012, the court awarded defendant a total of 381 days of presentence 

conduct credit, consisting of 255 actual days and 126 conduct days. The court based its 

calculation on the version of section 4019 that was in effect prior to October 1, 2011, 

since defendant committed his offense on September 4, 2011. The most recent 

amendment to section 4019, effective October 1, 2011, increased the conduct credit 

accrual rate. (§ 4019, subd. (f).) Defendant argues that he is entitled to the higher rate 

for the presentence days he served on and after October 1, 2011, as a matter of statutory 

construction and equal protection. We disagree. 

 A. The Legislature Expressly Indicated Its Intent That the Increased Rate Applies 

to Defendants Who Committed Crimes After October 1, 2011

 A defendant is entitled to actual custody credit for “all days of custody” in county 

jail and residential treatment facilities, including partial days. (§ 2900.5, subd. (a); 

People v. Smith (1989) 211 Cal.App.3d 523, 526.) Section 4019 provides that a criminal 

defendant may earn additional presentence credit against his or her sentence for 

performing assigned labor (§ 4019, subd. (b)), and for complying with applicable rules 

and regulations of the local facility (§ 4019, subd. (c)). These presentence credits are 

collectively referred to as conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939.) 
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 Section 4019 has been amended several times in recent years. Before January 25, 

2010, defendants were entitled to two days for every four days of actual time served in 

presentence custody, or one-for-two conduct credits. (Former § 4019, subd. (f), as 

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

Legislature amended section 4019 to provide that prisoners, with some exceptions, 

earned two days of conduct credit for every two days in custody, or one-for-one credits. 

(Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Effective September 28, 2010, the 

Legislature amended section 4019 again. Subdivisions (b) and (g) restored the one-fortwo presentence conduct credit calculation that had been in effect prior to the January 25, 

2010, amendment. (Stats. 2010, ch. 426, §§ 1, 2, 5.) 

 Most recently, the Legislature amended section 4019 to provide for up to two days 

credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) & 

(c).) This scheme reflects the Legislature’s intent that if all days are earned under section 

4019, a term of four days will be deemed to have been served for every two days spent in 

actual custody. (§ 4019, subd. (f).) As relevant here, section 4019, subdivision (h), 

provides: “The changes to this section enacted by the act that added this subdivision 

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.” 

 The first sentence of section 4019, subdivision (h) states: “The changes to this 

section . . . shall apply prospectively and shall apply to prisoners who are confined to a 
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county jail, city jail, industrial farm, or road camp for a crime committed on or after 

October 1, 2011.” (Italics added.) By the first sentence’s plain language, the changes to 

section 4019 would not apply to defendant because he committed his crime prior to 

October 1, 2011. Thus, the first sentence leads unmistakably to the conclusion defendant 

is not entitled to conduct credit at the enhanced rate. (See People v. Rajanayagam (2012) 

211 Cal.App.4th 42, 51 (Rajanayagam).) 

 The second sentence in section 4019, subdivision (h) provides: “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).) Defendant states that this sentence “suggests” that any days 

earned by a defendant after October 1, 2011, should be calculated at the rate required by 

the current law (one-for-one credits). Accordingly, he claims he is entitled to additional 

conduct credits for the days he spent in custody on and after October 1, 2011. 

 “‘“It is an elementary rule of construction that effect must be given, if possible, to 

every word, clause and sentence of a statute.” A statute should be construed so that effect 

is given to all its provisions, so that no part will be inoperative or superfluous, void or 

insignificant, and so that one section will not destroy another unless the provision is the 

result of obvious mistake or error.’” (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 

1260, 1269 (Rodriguez), italics added.) As discussed ante, subdivision (h)’s first 

sentence reflects the Legislature’s intent that the enhanced conduct credit provision to 

apply only to those defendants who committed their crimes on or after October 1, 2011. 

“Subdivision (h)’s second sentence does not extend the enhanced conduct credit 

provision to any other group, namely those defendants who committed offenses before 
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October 1, 2011, but are in local custody on or after October 1, 2011. Instead, 

subdivision (h)’s second sentence attempts to clarify that those defendants who 

committed an offense before October 1, 2011, are to earn credit under the prior law.” 

(Rajanayagam, supra, 211 Cal.App.4th at p. 52.) Moreover, we cannot read the second 

sentence to imply that any days earned by a defendant after October 1, 2011, must be 

calculated at the enhanced conduct credit rate for an offense committed before October 1, 

2011, since that would render the first sentence superfluous. (Id. at p. 51; see also, 

Rodriguez, supra, 14 Cal.App.4th at p. 1269.) 

 We conclude that the enhanced conduct credit provision applies only to those 

defendants who committed their crimes on or after October 1, 2011. (Rajanayagam, 

supra, 211 Cal.App.4th at p. 52.) Thus, it does not apply to defendant.

 B. Defendant Is Not Entitled to Additional Conduct Credits Based on Equal 

Protection

 Defendant further contends that applying the current version of section 4019 to 

defendants whose offenses were committed after October 1, 2011, but not to those, such 

as defendant, who were sentenced after October 1, 2011 for crimes committed before 

October 1, 2011, violates equal protection principles. We disagree. 

 In order to succeed on an equal protection claim, defendant must first show that 

the state has adopted a classification scheme that affects two or more similarly situated 

groups in an unequal manner. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) For 

purposes of the equal protection clause, we do not inquire “‘whether persons are similarly 

situated for all purposes, but “whether they are similarly situated for purposes of the law 
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challenged.”’ [Citations.]” (Id. at pp. 1199-1200.) “If the first prerequisite is satisfied, 

we proceed to judicial scrutiny of the classification. 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. [Citations.]” (Rajanayagam, supra, 211 

Cal.App.4th at p. 53; see also People v. Wilkinson (2004) 33 Cal.4th 821, 838 [the 

rational basis test applies to equal protection challenges based on sentencing disparities].) 

“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.]” (Rajanayagam, at p. 53.) 

 Even if we were to agree that defendant was similarly situated to other defendants 

who committed their crimes after October 1, 2011, we conclude there was no equal 

protection violation, since the challenged classification bears a rational relationship to a 

legitimate state purpose. The 2011 amendment was enacted as part of the legislation 

addressing the state’s fiscal emergency, by effectuating an earlier release of persons 

committing offenses on or after October 1, 2011, thus relieving the state of the cost of 

their continued incarceration and also alleviating overcrowding in county jails. (See 

Stats. 2011, ch. 12, § 35, pp. 5976-5977; Stats 2011, ch. 15, § 482, pp. 497-498.) We 

perceive a legitimate legislative purpose for limiting the extension of additional conduct 

credits to persons in local custody for crimes committed on or after October 1, 2011, but 

not before. We first note that “the California Supreme Court has stated equal protection 
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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. [Citation.]” (Rajanayagam, 

supra, 211 Cal.App.4th at p. 55.) 

 Furthermore, the Legislature could have determined that the nature and scope of 

the state’s fiscal emergency required granting additional conduct credits only to persons 

in local custody for crimes committed on or after October 1, 2011, but not before, in 

order to strike a balance between the state’s fiscal and jail-overcrowding problems, on the 

one hand, and public safety concerns, on the other. (People v. Verba (2012) 210 

Cal.App.4th 991, 997; Rajanayagam, supra, 211 Cal.App.4th at p. 55.) 

 We note defendant’s reliance on In re Kapperman (1974) 11 Cal.3d 542 

(Kapperman), in support of his claim. Kapperman is distinguishable because it addressed 

actual custody credits, not conduct credits. Conduct credits must be earned by a 

defendant, whereas custody credits are constitutionally required and awarded 

automatically on the basis of time served. (Rajanayagam, supra, 211 Cal.App.4th at 

p. 56.) 

 In sum, a rational basis exists for applying the 2011 amendment to section 4019 to 

defendants who committed crimes on or after October 1, 2011, but not to those who 

committed crimes before October 1, 2011. Thus, defendant’s equal protection rights 

were not violated. 
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DISPOSITION

 The judgment is affirmed. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

HOLLENHORST 

 Acting P. J. 

We concur: 

RICHLI 

 J. 

MILLER 

 J.