1 Filed 5/22/13 P. v. Fisher CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 Count y. Daniel W. Detienne, Judge. Affirmed. Sachi Wilson, under appo intment 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, 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 substan ce for sale (Health & Saf. Code,2 § 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 actu al credits and 126 conduct credits, for a total of 381 presentenc e custody credits. The court also imposed a $240 victim restitution fine and a $240 paro le revocation restituti on fine (sta yed pending successful completion of parole). On appeal, defendant contends: (1) the trial court’s imposition of $240 for a restitution fine and a parole re vocation 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 af ter October 2011. We affirm.

FACTUAL BACKGROUND Defendant pled guilty to possession of a controlled subs tance for sale. A police officer recognized defendant from previous cont acts 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 w eapons, he felt a bulge in his pocket that felt like rock salt in a bag. The officer removed the item fro m 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.3 ANALYSIS I. The Trial Court’s Imposition of $240 For the Restitution and Parole Revocation Restitution Fines Was a Prope r Exercise of Discretion

Defendant claims that wh en the court imposed restitu tion and parole revocation restitution fines in the amount of $240, it app lied the version of section 1202.4 that had become effective on January 1, 2012. Ho wever, since defendant committed his crime

three months before this amended law took eff ect, 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 b ecause the fines were unauthorized. We disagree.

When defendant committed his offens e 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 revoca tion restitution fines were not authorized by the version of sec tions 1202.4 and 1202.45 that we re 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 fi ne 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 is4 cognizable on appeal because the imposition of the fines wa s unauthorized. However, as discussed, the $240 amount was authoriz ed; 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 Ad ditional Presentence Custody Credits On May 15, 2012, the court awarded defenda nt 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 se ction 4019 that was in effect prior to October 1, 2011,

since defendant committed his offense on Se ptember 4, 2011. The most recent amendment to section 4019, effective Oct ober 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 afte r October 1, 2011, as a matter of statutory construction and equal prot ection. We disagree. A. The Legislature Expressly Indicated It s Intent That the Increased Rate Applies

to Defendants Who Committed Cr imes After October 1, 2011 A defendant is entitled to actual custody cr edit for “all days of custody” in county jail and residential treatment facilities, incl uding 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, su bd. (c)). These presentence credits are collectively referred to as conduct credits. ( People v. Dieck (2009) 46 Cal.4t h 934, 939.)5 Section 4019 has been amende d 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 conduc t 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 provid e 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 Se ptember 28, 2010, the Legislature amended section 4019 again. Subd ivisions (b) and (g) restored the one-fortwo presentence conduct credit calcu lation that had been in effe ct prior to the January 25, 2010, amendment. (Stats. 201 0, ch. 426, §§ 1, 2, 5.) Most recently, the Legislature amended sect ion 4019 to provide for up to two days credit for each four-day period of confinement in local cust ody. (§ 4019, subds. (b) & (c).) This scheme reflects the Legislature’s in tent that if all days are earned under section 4019, a term of four days will be deemed to have been served for ev ery two days spent in actual custody. (§ 4019, subd. (f).) As re levant here, section 4019, subdivision (h), provides: “The changes to th is section enacted by the act that added this subdivision shall apply prospectively and sh all 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 pr ior to October 1, 2011, shall be calculated at the rate required by the prior law.” The first sentence of section 4019, subdivi sion (h) states: “The changes to this section . . . shall apply prospectively and shall apply to prisoners who are confined to a6 county jail, city jail, industrial farm , or road camp for a crime committed on or after October 1, 2011 .” (Italics added.) By the first sent ence’s plain language, the changes to section 4019 would not apply to defe ndant because he committed his crime prior to October 1, 2011. Thus, the first sentence le ads 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, subd ivision (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 “sug gests” that any days earned by a defendant after October 1, 2011, shou ld be calculated at the rate required by the current law (one-for-one credits). Accordi ngly, 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 anothe r 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 de fendants who committed their crimes on or after October 1, 2011. “Subdivision (h)’s second sentence does no t extend the enhanced conduct credit provision to any other group, namely those defendants wh o committed offenses before7 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 Oc tober 1, 2011, are to earn credit under the prior law.” ( Rajanayagam , supra , 211 Cal.App.4th at p. 52.) More over, 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 th e first sentence superfluous. ( Id . at p. 51; see also, Rodriguez , supra , 14 Cal.App.4th at p. 1269.)

We conclude that the enhanced condu ct 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 Ad ditional Conduct Cred its Based on Equal

Protection

Defendant further contends that applying the current ve rsion of section 4019 to

defendants whose offenses were committed afte r October 1, 2011, but not to those, such as defendant, who were sentenced after Oct ober 1, 2011 for crim es committed before October 1, 2011, violates equal pr otection principles. We disagree. In order to succeed on an equal protecti on claim, defendant must first show that the state has adopted a classification scheme th at 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 s ituated for purposes of the law8 challenged.”’ [Citations.]” ( Id . at pp. 1199-1200.) “If the fi rst prerequisite is satisfied, we proceed to judicial scrutiny of the cla ssification. Where, as here, the statutory distinction at issue neither touches upon fu ndamental interests nor is based on gender, there is no equal protection violation if th e challenged classification bears a rational relationship to a legitimate st ate 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 sent encing disparities].) “Under the rational relationship test, a statutor y classification that neither proceeds along suspect lines nor infringes fund amental constitutional rights must be upheld against equal protection challenge if there is any reasona bly conceivable state of facts that could provide a rational basis for the cl assification. [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 cla ssification bears a rational relationship to a legitimate state purpose. The 2011 amendmen t 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 allevi ating overcrowding in county jails. (See Stats. 2011, ch. 12, § 35, pp. 5976-5977; St ats 2011, ch. 15, § 482 , pp. 497-498.) We perceive a legitimate legislative purpose fo r limiting the extension of additional conduct credits to persons in local custody for crim es committed on or after October 1, 2011, but

not before. We first note that “the Califor nia Supreme Court has stated equal protection9 of the laws does not forbid statutes and stat utory amendments to have a beginning and to discriminate between rights of an ear lier 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 granti ng 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 ar e constitutionally required and awarded automatically on the basi s of time served. ( Rajanayagam , supra , 211 Cal.App.4th at p. 56.) In sum, a rational basis exists for applyi ng the 2011 amendment to section 4019 to

defendants who committed crim es on or after October 1, 2011, but not to those who committed crimes before October 1, 2011. Thus, defendant’s e qual protection rights

were not violated.10 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST Acting P. J.

We concur:

RICHLI J.

MILLER J.