Filed 6/25/13 P. v. Johnson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. KENNETH RAY JOHNSON, Defendant and Appellant. H037644 (Monterey County Super. Ct. No. SS102019)

Defendant Kenneth Ray John son pleaded no contest to being a felon on the grounds of a custodial facility, a felony, and to possession of not more than 28.5 grams of marijuana, a misdemeanor. In April 2011, the court placed him on felony probation under various terms and conditions, including the condition that he serve 365 days in county jail. A petition to revo ke defendant’s probation was later sustained in November 2011, and the court imposed an upper term senten ce of three years in prison. In doing so,
the court awarded defendant a total of 123 days of presentence credits (83 days of custody credits and 40 da ys of conduct credits). Defendant argues that in imposing the se ntence, the court improperly considered defendant’s conduct occurring afte r probation was granted. He claims that the failure of his attorney to object to this error below cons tituted ineffective assistance of counsel that was prejudicial. Secondly, he contends th at he is entitled to 24 days of additional
conduct credits under the latest amendment to Penal Code section 4019, which expressly2 provides that it applies to defendants whos e crimes were committe d on or after October 1, 2011. 1 He argues that as a matter of statutor y interpretation, the latest amendment to section 4019 must be applied retroactively. He contends further that prospective application of the amendment to section 4019 woul d violate his cons titutional right to equal protection of the law.
We conclude that defendant’s ineffective assistance of counsel claim has no merit because the trial court did not improperly cons ider defendant’s post -probation conduct in its imposition of the sentence. Furthermore, even if counsel’s performance was deficient, any error was harmless. We also reject de fendant’s claim of entitlement to additional
conduct credits under the October 2011 am endment to section 4019. Last year, in People v. Kennedy (2012) 209 Cal.App.4th 385 ( Kennedy ), we rejected statutory interpretation and equal protection arguments identical to t hose raised by defendant here. We therefore will affirm the judgment.
FACTS 2 On August 21, 2010, defendant visited with a woman incarcerated in county jail. A deputy recognized him as a fo rmer inmate and it was determ ined that he was then on active parole status. Deputies made contact w ith defendant, who admitted that he was on parole. He was then arrested. During a search of his car, a quantity of approximately .08 grams of marijuana was found u nderneath the driver’s seat.
PROCEDURAL BACKGROUND Defendant was charged in a complaint w ith being a felon on the grounds of a custodial facility, a felony (§ 4571), and possession of not more than 28.5 grams of marijuana, a misdemeanor (Hea lth & Saf. Code, § 11357, subd. (b)). It was also alleged

1 Further statutory references are to th e Penal Code unless otherwise stated. 2 The facts underlying the conviction are derived from the report of the probation officer.3 as an enhancement that defendant had suffere d a prior violent or serious felony (i.e., a strike) within the meaning of section 1170.12, subdivisi on (c)(1), namely, voluntary manslaughter with a gang enhancement (§§ 192, subd. (a), 186.22, subd. (a)). Defendant thereafter waived a preliminary hearing and th e parties stipulated that the matter be certified to superior court. On March 9, 2011, defendant pleaded no contest to both
counts and admitted the enhanc ement with the understanding that he would be filing a
motion to strike the enhancement under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. On April 20, 2011 , the court granted defendant’s Romero motion, suspended imposition of sentence, and grante d defendant probation for three years on various terms and conditions, in cluding the condition that he se rve 365 days in the county jail. A petition to revoke defenda nt’s probation was filed one month later. After a formal hearing, the court found defendant to ha ve violated the terms of his probation. On November 18, 2011, the court revoked and te rminated probation, and imposed an upper term sentence of three years in prison. In doing so, the court awarded defendant 83 days of custody credits and 40 days of conduct credits for a to tal of 123 presentence credits. Defendant filed a timely notice of appeal of the sentence. 3 After entry of judgment and in July 2012, defendant filed a motion for an award of additional conduct credits pursu ant to section 4019, claiming an entitlement to additional
conduct credits under the October 2011 amendm ent to section 4019; he sought a total of 137 days of presentence credits (i.e., 81 days of custody cr edits and 57 days of conduct credits). The court dropped the motion from cal endar, indicating that “[t]he original sentence remains.” Defendant filed a separate notice of appeal. An appeal from such a

3 On the date the notice of appeal was filed, defendant’s counsel filed a letter request for an award of additional presentenc e credits, seeking a total of 168 days of credits (84 custody and 84 cond uct credits), which request was denied by the trial court.4 postjudgment order affecting defendant’s substan tial rights is proper. (§ 1237, subd. (b); People v. Hyde (1975) 49 Cal.App.3d 97, 103.)
DISCUSSION I. Claim of Improper Factors Used in Imposing Sentence
A. Background and Contentions At the sentencing hearing on November 18, 2011, the prosecution requested that defendant’s probation be revo ked and that he receive an upper term pris on sentence. Defense counsel indicated that his client di d not want to continue with probation. Accordingly, counsel argued that defendant sh ould receive a lower term sentence because the crime was a nonviolent one, the strike offe nse was over 10 years old, and his history was one of decreasing criminality.
The court indicated that it had reviewed both the probation report of April 2011 and the supplemental November 2011 probation re port. It also noted that it had reviewed
a number of letters submitted on behalf of the defense. The court, after hearing argument of counsel, indicated: “I’m going to impos e the upper term. And I’ll tell you why I’m going to do it. [¶] First of all, the factors in aggravation outwe igh any type of mitigation. [¶] I agree with you, [defense counsel], based on decr easing seriousness but defendant started out pretty high, [ 4 ] so it would be rather difficult to have anything but decreasing seriousness. [¶] I do appreciate he has limited his criminal conduct and behavior, and it is decreasing. However, I do think that he has served two prior prison terms. He was on parole when this [current o ffense] was committed. He has not been successful on a grant of probation or parole, and I do think it outw eighs.” After indicating these reasons, the court continued with the following remarks, which are the basis for defendant’s claim of
error: “The other issue is he was ordered to serve 365 days back in April of this year and

4 The trial court was referring to defendant ’s 1997 felony co nviction of voluntary manslaughter with a gang enhancement (§§ 193, subd. (a); 186.22, subd. (b)(1)).5 he failed to do so, so he really owes the Cour t 365 days. [¶] So the appropriate issue is what is the appropriate sentence for failing to do what the Court ordered him to do? And there has to be a consequence for that. [¶] So probation is denied. I am going to commit you to the California Department of Correcti ons and Rehabilitation for the upper term of three years.” After the court imposed its sentence, defe ndant addressed the court. The court responded that it had read a letter submitted by defendan t’s wife and found it “very moving.” The court then indicated: “I spen t some time on this case yesterday, and the factors, your criminal history, I’m looking at this kind of stuff. And I do appreciate you have made strides. But I think the problem for the Court is the failure to report, the failure to surrender and your behavior and attitude and things that weigh [ sic ] of probation was concerning to the Court. So I am obligated to have some intellectual consistency to follow the factors in aggrava tion and mitigati on, and I just feel in good faith, you got a break by having your strike stri cken. [¶] You had an opportunity to be on probation. I am not holding it against you, but you wish to decline probation. I actually am very okay with that and I don’t take that as a consideration. Bu t once probation is off the table, the Court is obligat ed to go through the factors in mitigation and aggravation, and there’s no way this is a lower term case . [¶] The factors in aggravation clearly outweigh the factors in mitigati on, and I think the appropriate sentence is three years.”
Defendant contends that the court erre d in its imposition of the upper term sentence. He argues that the court relied on a legally impermissible reason—defendant’s
failure to surrender to serv e his jail term that was a condition of the initial grant of probation—in reaching the conclusion that an upper term sentence was proper. He concedes that counsel below failed to object a nd that the claim is therefore forfeited. But he argues, nonetheless, that we should consider the claim of error because his trial attorney’s failure to object constituted prejud icially ineffective assistance of counsel.6 The Attorney General responds that th e trial court did not consider improper factors (i.e., defendant’s post-probation condu ct) in imposing an upper term sentence, and therefore defense counsel’s failure to object di d not constitute ineffective assistance. She argues that the trial court’s remarks con cerning defendant’s pos t-probation conduct, including his failure to surrender to serve his jail term, concerned the court’s justification for revoking probation, and were not related to the imposition of the upper term sentence. The Attorney General asserts fu rther that, even if counsel’s performance was deficient in failing to object, it was not prejudicial because it is not reasonably probable that the court would have imposed a more favorable senten ce in the absence of any assumed error.

B. Analysis of Ineffective Assistance Claim
1. Applicable Law In evaluating defendant’s in effective assistance claim here, we first identify familiar applicable legal principles. A crimin al defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. C onst., art. I, § 15.) This constitutional right
to counsel entitles a defendant no t simply to “bare assistance ,” but rather to effective assistance. ( People v. Jones (1991) 53 Cal.3d 1115, 1134.) This constitutionally adequate assistance requires that the attorn ey diligently and activel y participate in the complete preparation of the client’s case, a nd investigate all defenses of law and fact. ( People v. Pope (1979) 23 Cal.3d 412, 425 ( Pope ), overruled on another ground, People v. Berryman (1993) 6 Cal.4th 1048, 1081 , fn. 10.) Ineffective a ssistance claims may be
asserted in connection with tr ial counsel’s allegedly defici ent performance in connection with sentencing matters as well as allege d failings occurring during trial. (See People v.
Roberts (2011) 195 Cal.App.4th 1106, 1128-1130.)
An ineffective assistance cl aim requires a showing that “counsel’s action was, objectively considered, both deficient un der prevailing professional norms and prejudicial.” ( People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ).) “[T]he burden is on the defendant to7 show (1) trial counsel failed to act in the ma nner to be expected of reasonably competent attorneys acting as diligent a dvocates and (2) it is reasona bly probable that a more
favorable determination would have resulted in the absence of counsel’s failings.” ( People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.) This means that the de fendant “must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that co unsel’s deficient performance re sulted in prejudice to [the]
defendant in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as ha ving produced a just re sult.’ [Citations.]” ( People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland , supra , 466 U.S. at p. 686.) “[T]here is a ‘strong presumption that co unsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” ( People v. Lucas (1995) 12 Cal.4th 415, 437 ( Lucas ), quoting Strickland , supra , 466 U.S. at p. 689; see also People

v. Vines (2011) 51 Cal.4th 830, 876.) The failure of counsel to object to certain evidence is rarely a successful basis for reversal of a conviction on ineffective assistance grounds. ( People v. Boyette (2002) 29 Cal.4th 381, 424 .) The Supreme Court has noted that if “the record on appeal sheds no light on why couns el acted or failed to act in the manner challenged,” we must reject the claim on appeal “unless counsel was asked for an explanation and failed to provide one, or un less there simply could be no satisfactory explanation.” ( Pope , supra , 23 Cal.3d at p. 426.) The “prejudice” element requires a showi ng that “that there is a reasonable probability that, but for counsel’s unprofessional errors, th e result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.” ( In re Ross (1995) 10 Cal.4th 184, 201.) Pr ejudice requires a showing of “a ‘ “demonstrable reality,” not simp ly speculation.’ [Citations.]” ( People v. Fairbank (1997) 16 Cal.4t h 1223, 1241.)8 The defendant bears the burden of establis hing an ineffective assistance claim. ( Lucas , supra , 12 Cal.4th at p. 436; Pope, supra, 23 Cal.3d at p. 425.) “Surmounting
Strickland ’s high bar is never an ea sy task. [Citations.]” ( Padilla v. Kentucky (2010) 559 U.S. 356 [130 S. Ct. 1473, 1485].)
2. Defendant’s Ineffective Assistance Claim Lacks Merit We begin by acknowledging de fendant’s concession that trial counsel’s failure to object to any sentencing error resulted in its fo rfeiture on appeal. It is indeed true that under these circumstances, trial counsel’s fail ure to object constituted a forfeiture of the appellate claim. ( People v. Scott (1994) 9 Cal.4th 331, 353 [forfeiture “doctrine should apply to claims involving the trial court’s fa ilure to properly make or articulate its discretionary sentencing choices”]; see also In re Sheena K. (2007) 40 Cal.4th 875, 881.)
We will therefore review defendant’s cl aim in the context of the two-prong Strickland
standard for a claim of ine ffective assistance of counsel.

a. No Deficient Performance In evaluating whether there was deficient performance by trial counsel, we must first determine whether the court, as claime d by defendant, erred by allegedly improperly considering his post-probation conduct in im posing the upper term sentence. We disagree with defendant that such error occurred. Defendant correctly asserts that upon th e revocation or termination of probation, the court may not consider events occurring after the original grant of probation in selecting the base term for sentencing. (Cal. Rules of Court, rule 4.435(b)(1); see also In re Rodriguez (1975) 14 Cal.3d 639, 652 [“the primary term must reflect the circumstances existing at the time of the offense.”].) 5 The court therefore may not select

5 “On revocation and termination of prob ation under section 1203.2, when the sentencing judge determines that the defendant will be committe d to prison: [¶] (1) If the imposition of sentence was previously suspen ded, the judge must impose judgment and sentence after considering any findings previ ously made and hearin g and determining the (continued)9 a greater sentence based upon the defendant’s conduct following the grant of probation. ( People v. Colley (1980) 113 Cal.App.3d 870, 873 ( Colley ).) We disagree with defendant, however, that the record demonstrat es that the court erred by considering his post-probation conduct in imposing an upper term sentence. The prosecution argued that an upper term senten ce was proper because factors in aggravation substantially outweighed any mitigating factors. It emphasized defendant’s prior imprisonment for voluntary manslaughter w ith a gang enhancement and his continued contacts with gang members. The prosecuti on made no reference to defendant’s postprobation conduct in its argument for imposin g an upper term sentence. Further, the April 2011 report of the probation officer, which the court indicated it had reviewed,
listed no factors in mitigation. In cont rast, the probation officer noted five factors in aggravation in her report, na mely, (1) the charged crime was carried out with planning, sophistication or professionalism; (2) defendant ’s prior convictions were numerous or of increasing seriousness; (3) defe ndant had served two prior pr ison terms; (4) defendant was on parole when he comm itted the charged crime; and (5) defendant’s prior performance on probation or paro le was unsatisfactory. (See Cal. Rules of Court, rule 4.421.) In imposing an upper term sentence, the c ourt noted three times its belief that the factors in aggravation outweighe d those in mitigation, and it identified four of the five factors in aggravation menti oned in the probation officer’s report. In exercising its discretion in imposing a lower, middle, or upper term sentence, “a trial court is free to base an upper term sentence upon any aggr avating circumstance that the court deems

matters enumerated in rule 4.433(c). [¶] The length of the senten ce must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found. ” (Cal. Rules of Court, rule 4.435(b)(1), italics added.)10 significant, subject to specific prohibitions. [Citations.]” ( People v. Sandoval (2007) 41 Cal.4th 825, 848.) And a single factor in ag gravation may justify a trial court’s exercise of its sentencing discretion in imposing the upper term. ( People v. Osband (1996) 13 Cal.4th 622, 730; see also People v. Black (2007) 41 Cal.4th 799, 813.) Here, there were four such factors in aggravation supporting th e trial’s court’s decision to impose an upper

term sentence. An appellate court, “[a]s an aspect of th e presumption that judi cial duty is properly performed, . . . presumes . . . that the [trial ] court knows and applies the correct statutory and case law.” ( People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 10 69, fn. 13.) This general principle applies to a trial court’s se ntencing determinations. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 762 [decision to decline to commit adult to th e youth authority]; People v. Quicke (1964) 61 Cal.2d 155, 159-160 [dec ision to impose death penalty]; People v. Hooton (1959) 53 Cal.2d 85, 88 [determination to impose life sentence].) And “[i]solated or ambiguous remarks by the trial court do not overcome that presumption. The party attacking the judgment must clearly and affirmativel y demonstrate that the trial court relied on improper considerations. [Citation.]” ( People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 835.) Here, the trial court clearly based its se ntencing decision on prop er factors. Its reference to defendant’s post-probation conduct —after it explained that an upper term sentence was proper based upon the factor of aggravation outwei ghing any mitigating factors—cannot be conclusively read to support defendant’s contention that the court relied on such conduct in imposin g an upper term sentence. While we cannot agree with the Attorney General that th e court’s comments regarding defendant’s post-probation conduct were unquestionably an explanation of its reasons for de nying probation, we likewise do not agree with de fendant that such comments reflected improper reliance on such conduct in imposing the upper term. Both positions are sp eculative as to the11 meaning of the “[i]solated or ambiguous re marks by the trial court,” and defendant has failed to overcome the presum ption that the court knew and properly applied the law in making its sentencing determination. ( People v. Superior Court (Du) , supra , 5 Cal.App.4th at p. 835.)
Defendant relies on Colley , supra , 113 Cal.App.3d 870 in su pport of his claim that the trial court relied on an improper sentencing factor. In Colley , the defendant was initially granted probation after pleading guilty to first degree bur glary; he violated probation shortly afterward. Thereafter, th e court initially sentenced him to a middle, three-year prison term, but later recalled th e sentence and reinstated probation. ( Id. at pp. 871-872.) After a second probation violation (resulting fro m a petty theft conviction), the court revoked probation and impos ed an upper term sentence. ( Id. at p. 872.) In doing so, the court unambiguously indicated th at the basis for imposing an upper term sentence was the defendant’s poor performance on probation. ( Ibid. : “I think he’s been asking for the high base term. The court ha s given him every conceivable break. . . [¶] . . . The court’s tried every possible rehabilita tive tool available to it and they have all failed. Perhaps long term custody will succeed where leniency and efforts of the court at rehabilitation have failed.”]) Colley is distinguishable. Unlike in Colley , there were no unambiguous statements by the court that th e reason it imposed an upper te rm sentence was defendant’s poor performance on probation. Here, unlike in Colley , the court relied on appropriate factors in aggravation based upon matters ex isting at the time the crime was committed.
And also unlike in Colley , the court had not imposed and then recalled a prison sentence less severe than the upper term sentence it ultimately imposed after probation was
revoked and terminated.
Defendant also contends that People v. Scott (1984) 150 Cal.App.3d 910 ( Scott ) supports his claim. There, the defendant wa s convicted of robbery and car theft, which included a guilty plea on the form er charge, based upon the understanding th at he would12 receive a maximum three-year prison sentence for both counts; the court imposed a threeyear sentence, suspended it and referred the defendant to Californi a Rehabilitation Center (CRC), and indicated that if he failed at CRC, the court would have the option of sentencing him to a prison sentence of up to five years and eight months. ( Id. at pp. 912- 913.) The defendant was late r returned from CRC because of his violent behavior, and the court imposed a five-year prison sentence. ( Id. at p. 914.) The appellate court held that the imposition of the greater sentence wa s improper because “[once a legal sentence has been pronounced . . . the trial court si mply does not have jurisdiction to impose another, higher sentence at a later time. [Citation.]” ( Id. at p. 918.) The Scott court also held that the trial court, in imposing the la ter, more severe sentence, improperly relied on the defendant’s postconviction behavior at CRC. ( Id. at p. 919.)
Scott presents a very different set of fact s and offers no support for defendant’s position. Here, the court did not impose an in itial sentence, suspend it, and then purport to later impose a more severe sentence. And while in Scott (like Colley ), the trial court clearly based its sentencing decision upon improper consideration of the defendant’s postconviction conduct, the record does not show that the court did so here Accordingly, since defendant has not de monstrated that the court in fact committed sentencing error, he ha s failed to make the concomita nt showing that his trial
counsel was ineffective in fa iling to object below.
b. No Prejudice
Even were defendant to have shown in this appeal that his trial counsel’s performance was deficient because he did not object at the sentencing hearing—which showing we have found defendant has not ma de—he is required to show prejudice in order to prevail on his ineffe ctive assistance claim. ( Strickland , supra , 466 U.S. at p. 687.) This second Strickland element requires a showing that “it is reasonably probable
that a more favorable determination would have resulted in the absence of counsel’s failings.” ( People v. Lewis , supra , 50 Cal.3d at p. 288.)13 As noted, the probation officer identified fi ve factors in aggravation and none in mitigation, and the court specifically id entified four factors in aggravation and specifically found that they “clearly outweigh[ed]” any m itigating factors. The court stated further, in rejecting th e position of defendant’s trial counsel, that “there’s no way this is a lower term case.” And it expressl y acknowledged factors that defendant claimed in mitigation. Those include d defense counsel’s argument th at his client’s more recent crimes were of “decreasing seriousness [ , ] but defendant started out pretty high, so it would be rather difficult to have anything but decreasing seriousness.” The court also “appreciate[d that defendant] ha[d] limited his criminal conduct and behavior, and it [was] decreasing.” 6 From this record, even a ssuming counsel’s performance was deficient, it is not reasonably probable that defe ndant would have received a more favorable sentence had trial counsel asserted an objection below. Having failed to show prejudice, defendant’s
ineffective assistance claim fails.

II. Claim of Additional Conduct Credits Under Section 4019
A. Background Concerning Section 4019 Section 4019 permits a criminal defendan t to earn additional credit prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good

6 The report of the probation officer cont ained a summary of defendant’s criminal convictions that consisted of a 1997 felony conviction of voluntary manslaughter with a gang enhancement (§§ 193, subd. (a); 186.22, subd. (b)(1)); a 1998 misdemeanor conviction of battery (§ 242); 1999 misdemeanor convictions of willful infliction of corporal injury upon a cohabitant or family member and witness intimidation (§§ 273.5, subd. (a); 136.1, subd. (a)); a 2000 fel ony conviction of possession of a controlled substance (Health & Saf. Code, § 11350); a 2003 misdemeanor conviction of battery upon a cohabitant or fam ily member (§ 243.5 , subd. (e)); and a 2004 misdemeanor conviction of contempt of court (§ 166, subd. (a)(4)). The probation officer also reported that defendant had suffered six traffic-re lated misdemeanor convi ctions between 1998 and 2008.14 behavior during detention (§ 4019, subd. (c)(1)). Su ch credits are collectively referred to as “conduct credits.” ( People v. Dieck (2009) 46 Cal.4th 934, 939 , fn. 3.) “The very purpose of conduct credits is to foster c onstructive behavior in prison by reducing punishment.” ( People v. Lara (2012) 54 Cal.4th 896, 906 ( Lara ).) Section 4019 has undergone a series of revisions since 2009. (See generally People v. Garcia (2012) 209 Cal.App.4th 530, 535-540.) Senate Bill No. 18 (2009-2010 3d Ex. Se ss.), enacted in October 2009, amended section 4019, effective January 25, 2010, to enhance the number of presentence conduct credits for certain offenders. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50, p. 4427; the January 2010 amendment.) Under the pre-January 2010 formula for calculating credits under section 4019, a defendant could accrue conduct credit of two days for every four days of actual presentence custody. (Stats. 1982, ch . 1234, § 7, p. 4554 [former § 4019, subd. (f).) Under the January 2010 amendment, a qu alifying defendant—persons other than those required to register as sex offenders, or those being committed to prison for, or who had suffered prior convictions of, serious feloni es as defined in sec tion 1192.7 or violent
felonies as defined in secti on 667.5—could accrue conduct credit of two days for every two days of presentence custody, twice th e previous rate. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, §§ 50, 62 [Pen.Code, former § 4019, su bds. (b), (c), & (f) ].) 7 The statute was again amende d by Senate Bill 76, effectiv e September 28, 2010, to
restore the two-for-four conduct credit calcula tion less favorable to defendants that had been in effect prior to Janua ry 25, 2010 (Stats. 2010, ch. 426, § 2). This amendment applied to persons in local custody for crim es committed on or afte r September 28, 2010,

7 Significantly, defendant here, having suffered a prior conviction of voluntary manslaughter, which constitutes both a seriou s and violent felony, was not a person who qualified for the enhanced conduct credit fo rmula of the January 2010 amendment to section 4019.15 i.e., a date one month after defendant here committed th e charged crimes. (Former § 4019, subd. (g), as ame nded by Senate Bill 76.) And then, as part of the Realignment Act, the Legislature amended section 4019 a third time in Assembly Bill 1 09 (2011-2012 Reg. Sess.; Asse mbly Bill 109). Assembly Bill No. 109, which amended section 4019 effe ctive July 1, 2011, authorized conduct credit for all local prisoners at the rate of two days for every two days spent in local presentence custody. (§ 4019, subds. (b) & (c), as amended by Stats. 2011, ch. 15, § 482.) Like the previous amendment to se ction 4019, the amendm ent in Assembly Bill 109 was to have prospec tive application only. ( Ibid. ) Before July 1, 2011—the operative date of Assembly Bill No. 109—Governor Brown signed Assembly Bill No. 117 (2011- 2012 Reg. Sess.), which retain ed the enhanced conduct cr edit formula but changed the effective date to October 1, 2011. (Former § 4019, subd. (h), as amended by Stats. 2011- 2012, ch. 39, § 53.) On September 20, 2011, Governor Brown signed Assembly B ill No. 1X 17 (2011- 2012 1st Ex. Sess.), the current version of section 4019 (hereafter, the October 2011 amendment), which retains the enhanced con duct credit provision—four days is deemed to have been served for every two days spen t in actual custody. (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35; § 4019, subd. (f).) The statute expressly states that it is to apply prospectively. (§ 4019, subd. (h).) 8

Defendant contends that he is entitled to additional co nduct credits under section
4019. He asserts that he should be awarded a total of 145 days of presentence credits (i.e., 81 days of custody credits plus 64 days of conduct cr edits). He acknowledges that

8 “The changes to this section enacted by the act that added this subdivision shall apply prospectively and shall apply to prisone rs who are confined to a county jail, city jail, industrial farm, or road camp for a cr ime committed on or afte r 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. ” (§ 4019, subd. (h).)16 under former versions of section 4019, his ad mission that he had suffered a prior strike would otherwise compel calcula ting presentence conduct cred it in his case on a “one-fortwo” basis. But he argues that “on both statutory and constitutional grounds,” he is
entitled to the increased level of conduct credits provided und er the October 2011 amendment for all days he spen t in custody after October 1, 2011. We address these two
contentions below.

B. Statutory Construction Claim Defendant claims that as a matter of statutory interpreta tion, he is entitled to the
benefit of one-for-one conduct credits unde r the October 2011 amendment to section 4019 for all days spent in custody after October 1, 2011. He claims that an ambiguity in subdivision (h) of section 40 19 compels this conclusion. 9 He argues: “[S]ection 4019 does contain language declaring that it will ope rate prospectively when it states that it applies ‘to prisoners who are confined . . . fo r a crime committed on or after October 1, 2011.’ (§ 4019, subd. (h).) If the statute did not contain any contradictory language, then the prospective language would control. Ho wever, in the very next sentence of the statute, the Legislature declared, ‘Any days ea rned by a prisoner prio r to October 1, 2011, shall be calculated at the rate required by the prior law.’ (§ 40 19, subd. (h).) This language creates an ambiguity that require s the construction advanced by appellant because a defendant could not possibly earn days in presentenc e confinement on an offense which had not yet been committed. As a result, this latter sentence becomes meaningless surplusage unless the more ge nerous credit scheme applies to crimes
committed before the stated date.”

9 As defendant acknowledges, this “pot ential ambiguity” was discussed, and his argument here is based upon, a case that is now depublished. (See People v. Olague (2012) 205 Cal.App.4th 1126, review granted Aug. 8, 2012, S203298, review dismissed Mar. 20, 2013 ( Olague ).)17 We rejected this argument in Kennedy , supra , 209 Cal.App.4th at pages 399 to 400. “We reiterate that according to the ex plicit language of the statute, the [October]
2011 amendment to Penal Code section 4019 a pplies only to crimes that were ‘committed on or after October 1, 2011.’ (P en.Code, § 4019, subd. (h).)” ( Id. at p. 399.) Similarly,
the court in People v. Rajanayagam (2012) 211 Cal.App.4th 42, 51 ( Rajanayagam ) rejected an argument that the second sentence of section 4019, subdivision (h), “implies any days earned by a de fendant after October 1, 2011, shall be calculated at the rate required by the current law, regardless of when the o ffense was committed.” It concluded that such an interp retation would render meaningle ss the language in the first sentence ( ibid. ), which provides that the changes to the accrual of pr esentence conduct credit “shall apply prospectiv ely and shall apply to prison ers who are confined to a county jail . . . for a crime co mmitted on or after October 1, 2011.” (§ 4019, subd. (h).)
The court in Rajanayagam concluded that adopting the de fendant’s interpretation would violate an elementary rule requiring courts, if possible, to ascribe meaning to every word, phrase, and sentence of a statute and to avoi d interpretations that render some words superfluous. ( Rajanayagam , at p. 51.)
We conclude that defendant is not entitle d to the enhanced presentence conduct credits provided in the October 2011 amendmen t for the time that he was in custody after October 1, 2011 because of any perceived ambi guity in subdivision (h) of section 4019. (Accord, People v. Ellis (2012) 207 Cal.App. 4th 1546, 1552-1553.)
C. Equal Protection Challenge
Defendant contends that the failure to give retroactive application to the October
2011 amendment constitutes a violation of the equal protection clause s of the federal and state Constitutions (U.S. Const., 6th Amend.; Cal. Const., Art. I, § 7). He claims that he,
as a defendant who committed crimes before October 1, 2011, but who was incarcerated after that date, is similarly s ituated to an inmate who is in custody for committing a crime after October 1, 2011, and that there is no ra tional basis to justify the alleged disparate18 treatment between these two grou ps. Therefore, he argues, in order to avoid a violation of equal protection, the October 2011 amendm ent should be given re troactive application
in his case. The first prerequisite for a successful e qual protection argument is “ ‘a showing that the state has adopted a classi fication that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” ( People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 ( Hofsheier ), quoting In re Eric J. (1979) 25 Cal.3d 522, 530.) This inquiry by the court “is not whether persons are simila rly situated for all purposes, but ‘whether they are similarly situated for purposes of the law ch allenged.’ [Citation.]” ( Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) The second requirement is that the challenger establish that there is no rationa l relationship to a legitimate state purpose for the state’s having made a distinction betw een the two similarly situated groups. ( Hofsheier , at pp. 1200-1201.) 10 Last year, our Supreme Court decided in People v. Brown (2012) 54 Cal.4th 314 ( Brown ) that prospective application of the Ja nuary 2010 amendment of section 4019 did not violate equal protection principles, concluding that amendment did not create two similarly situated groups. The Supreme Co urt noted that the “important correctional purposes of a statute authorizing incentives fo r good behavior [citation] are not served by rewarding prisoners who served time before th e incentives took effect and thus could not have modified their behavior in response. That prisoners who served time before and

10 Of course, there are three potentia l standards by which to measure the challenged classifications unde r an equal protection analys is—strict scrutiny, rational basis, and an intermediate level of revi ew applicable to gender classifications. ( Hofsheier , supra , 37 Cal.4th at p. 1200.) However, le gislation is usually subjected to a rational basis analysis. ( Ibid. ) This is the appropriate analysis here.19 after former section 4019 took effect are not similarly situated necessarily follows.” ( Brown , supra , 54 Cal.4th at pp. 328-329.) 11

In Kennedy , supra , 209 Cal.App.4th 385, we a ddressed the identical equal protection challenge to the October 2011 ame ndment to section 4019 raised by defendant here. While we acknowledged that Brown , supra , 54 Cal.4th 314, involved a prior amendment to section 4019 ( Kennedy , at p. 396), we rejected the defendant’s contention that he (Kennedy)—who committed his crime on March 11, 2011 ( id. at p. 388)—was similarly situated with pers ons in jail who had committed cr imes on or after the October 1, 2011 operative date of the challenged amendm ent to section 4019: “[T]he reasoning of

Brown applies with equal force to the prospec tive-only application of the current version of section 4019.” ( Id. at p. 397; but see Rajanayagam , supra , 211 Cal.App. 4th at pp. 53- 54 [distinguishing Brown by finding two groups were simila rly situated with respect to equal protection challenge to October 2011 amendment]; People v. Verba (2012) 210 Cal.App.4th 991, 995-996 ( Verba ) [same].) 12 Furthermore, the California Suprem e Court, one month after deciding Brown , applied Brown ’s analysis involving the January 2010 amendment to a defendant’s argument that the October 2011 amendment should apply retroactively. Although

11 In rejecting the defendant’s equal protection claim, the high court in Brown distinguished In re Kapperman (1974) 11 Cal.3d 542, 545 ( Kapperman ), a case upon which the defendant relied (and upon which defendant here relies). In Kapperman , the court held that former section 2900.5, whic h awarded presentence custody credit only to individuals delivered to the Director of Correc tions by the statute’s effective date, bore no rational relationship to a legitim ate government purpose. The Brown court held that Kapperman was inapposite because it concerned only presentence custody credits, a very different circumstance from conduct credits. ( Brown , supra , 54 Cal.4th at p. 330.) 12 Although the Rajanayagam and Verba courts found that the “similarly situated” prong had been met, the defendants’ e qual protection challenges in both cases nonetheless failed because the courts found th at a rational basis existed for the October 2011 amendment’s disparate treatment of the two groups. ( Rajanayagam , supra , 211 Cal.App.4th at pp. 54-56; Verba , supra , 210 Cal.App.4th at pp. 996-997.)20 addressed only in a footnote, the high court rejected the defendant’s contention that the prospective application of the October 2011 amendment violated equal protection: “Today local prisoners may earn day-for-d ay credit without regard to their prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by Stats. 2011, ch. 15, § 482.) This favorable change in the law does not benefit defendan t because it expressly applies only to prisoners who ar e confined to a local custodial facility ‘ for a crime committed on or after October 1, 2011 .’ (§ 4019, subd. (h), italics adde d.) [¶] Defendant argues the Legislature denied equal protection [citations] by making this change in the law expressly prospective. We recently re jected a similar argument in People v. Brown (2012) 54 Cal.4th 314, 328-330.) . . . Accordingly, pr isoners who serve their pretrial detention before such a law’s effective date, and those who serve their detention thereafter, are not similarly situated with respec t to the law’s purpose. ( Brown , at pp. 328-329.)” ( Lara , supra , 54 Cal.4th at p. 906, fn. 9 .) We thus reject defendant’s equal protection challenge
because he cannot esta blish that he was similarly s ituated with persons who commit crimes on or after October 1, 2011.
Even were we to conclude th at defendant is similarly si tuated with persons in jail
who had committed crimes on or after the October 1, 2011 operative date of the challenged amendment to section 4019, his e qual protection challenge fails. As noted, no equal protection viola tion will be found “if the challenge d classification bears a rational relationship to a legitimate st ate purpose. [Citation.]” ( Hofsheier , 37 Cal.4th at p. 1200.) The court’s inquiry is completed “[w]here there are ‘plausible reasons’ for [the classification].” ( Id. at p. 1201.) As we held in Kennedy, supra, 209 Cal.App.4th at page 397, there is a plausible reason for the st atutory classification challenged here. As we explained in Kennedy : “[O]ur Supreme Court has acknowledged [that] ‘statutes lessening the punishment for a partic ular offense’ may be made prospective only without offending equal protection principles. ( Kapperman , supra , 11 Cal.3d. at p. 546.) . . . [¶] In People v. Floyd (2003) 31 Cal.4th 179 ( Floyd ), the defendant sought to21 invalidate a provision of Proposition 36 barri ng retroactive application of its provisions
for diversion of nonviole nt drug offenders. ( Id. at pp. 183-184.) The court reiterated that the Legislature may preserve the penalties for existing offenses while ameliorating punishment for future offenders in order to ‘ “assure th at penal laws will maintain their desired deterrent effect by carrying out the or iginal prescribed punishment as written.” ’ ( Id. at p. 190.) The statute before the c ourt came within this rationale because it ‘lessen[ed] punishment for particular offenses.’ ( Ibid. ) As the Floyd court noted, ‘ “[t]he
14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.” [Citation.]’ ( Id. at p. 191.) [¶] ‘The very purpose of conduct credits is to foster constructive behavior in prison by reducing punishment.’ ( People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme Court accepted in Brown , supra , 54 Cal.4th 314, ‘to increase credits reduces punishment.’ ( Id. at p. 325, fn. 15.) [¶] We gath er that the rule acknowledged in Kapperman and Floyd is that a statute ameliorating p unishment for particular offenses may be made prospective only without o ffending equal protection, because the Legislature will be supposed to have acted in order to optimize the deterrent effect of criminal penalties by deflecting any assumption by offenders th at future acts of lenity will necessarily benefit them. [¶] . . . [¶] Altho ugh the statute at issue here does not ameliorate punishment for a particular offens e, it does, in effect, ameliorate punishment for all offenses committed after a particular date. By parity of reasoning to the rule acknowledged by both the Kapperman and Floyd courts, the Legislature could rationally have believed that by making the 2011 am endment to section 40 19 have application determined by the date of the offense, they were preserving the deterrent effect of the
criminal law as to those crimes committed befo re that date. . . . We see nothing irrational or implausible in a legislative conclusion that individuals should be punished in accordance with the sanctions and given the re wards (conduct credits ) in effect at the22 time an offense was committed.” ( Kennedy, supra, 209 Cal.App.4th at pp. 398-399, fn. omitted.) Therefore, even had defendant satisfied th e “similarly situated ” requirement for an equal protection claim, his challenge to th e October 2011 amendment nonetheless fails because the classification between pers ons—those committing an offense prior to October 1, 2011, and those committing an offe nse on or after that date—bears a rational relationship to a legitimate state purpose. ( Kennedy, supra, 209 Cal.App.4th at pp. 397- 399; accord, Rajanayagam , supra , 211 Cal.App.4th at pp. 54-56; Verba , supra , 210 Cal.App.4th at pp. 996-997.) 13

13 We note that there are two cases, now depublished, addre ssing the question of retroactivity of the October 2011 amendment to section 4019 that were pending before the Supreme Court when this case was being briefed. In those cases, the high court granted review, issued orders deferring briefing pe nding the finality of its decision in Brown , supra , 54 Cal.4th 314, and thereaft er dismissed review. (See Olague , supra , 205 Cal.App.4th 1126, review granted Aug. 8, 2012, S203298, review dismissed Mar. 20, 2013; People v. Borg (2012) 204 Cal.App.4th 1528, re view granted Jul. 18, 2012, S202328, review dismi ssed Mar. 20, 2013.)23 DISPOSITION The judgment is affirmed.

Márquez, J.

WE CONCUR:

Elia, Acting P.J.

Bammatre-Manoukian, J.