Filed 6/7/13 P. v. Arnold CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037541 & H038656
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. CC817207 &
                                                                     CC775045)
             v.

DOYLE ORLANDO ARNOLD,

         Defendant and Appellant.



                                         I. STATEMENT OF THE CASE
         In H037541, defendant Doyle Orlando Arnold appeals from a judgment entered
after the court revoked probation and sentenced him in two separate cases to concurrent
terms of two years. In H038656, defendant appeals from a post-judgment order denying
his request for additional presentence conduct credit.1 On appeal, he claims that he is
entitled to additional presentence conduct credit. We disagree and affirm the judgment
and post-judgment order.
                                                 II. BACKGROUND
         On August 29, 2007, in superior court case No. CC775045, defendant pleaded
guilty to possession of a controlled substance, being under the influence of a controlled
substance, and possession of narcotics paraphernalia, and he admitted a prior prison term


         1
             This court ordered the appeals be considered together.
allegation. (Health & Saf. Code, §§ 11350, subd. (a), 11550, subd. (a), 11364; Pen.
Code, § 667.5, subd. (b).)2 The court suspended imposition of sentence and placed him
on probation.
      On October 23, 2008, in superior court case No. CC817207, defendant pleaded no
contest to passing bad checks and admitted a prior prison term allegation. (§ 476a.)
Again, the court suspended imposition of sentence and granted probation.
      On May 22, 2011, defendant returned to custody due to a probation violation. On
July 13, 2011, defendant admitted the violation. The court terminated probation and
sentenced him in both cases to concurrent terms of two years. Concerning credit, the
court in case No. CC775045 granted him 176 days of presentence custody credit and
113 days of conduct credit. The conduct credit consisted of 60 days calculated under
former section 4019 for the 123 days he spent in custody before January 25, 2010; and
53 days calculated under former section 2933 for the 53 days he spent in custody after
September 28, 2010. In case No. CC817207, the court granted defendant 300 days of
presentence custody credit and 175 days of conduct credit. The conduct credit consisted
of 122 days calculated under former section 4019 for the 247 days he spent in custody
before January 25, 2010; and 53 days of credit calculated under former section 2933 for
the 53 days he spent in custody after September 28, 2010.
      After appealing from the judgment (H037541), defendant filed a motion in the
trial court seeking additional conduct credit. The court denied the motion. In
August 2012, defendant appealed from the order denying his motion.




      2
          All unspecified statutory references are to the Penal Code.
                                             2
                                      II. DISCUSSION3
       In his post-judgment motion, defendant claimed that former section 2933,
subdivision (e) (Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010), which provided one-for-
one conduct credit, applied to all of the presentence custody in both cases and not, as the
trial court awarded, just to the 53 days he spent in custody before September 28, 2010,
the effective date of former section 2933, subdivision (e).4 Defendant alternatively
argued that if the one-for-one formula did not apply to all presentence custody, then he
was nevertheless entitled to the additional credit under federal constitutional principles of
equal protection. Thus, in case No. CC775045, defendant sought an additional 63 days of
conduct credit; and in case No. CC817207, he sought an additional 125 days of credit.
       In his opening brief, defendant acknowledged that Brown, supra, 54 Cal.4th 314
“essentially forecloses” his claims for additional conduct credit. He reiterates his federal
equal protection claim to preserve the right to obtain relief in the event that a petition for
writ of certiorari is filed and granted in Brown.
       We agree that the analyses in Brown foreclose defendant’s claims. In Brown, the
court explained that “[c]redits are determined and added to the abstract of judgment at the
time of sentencing, but they are earned day by day over the course of a defendant’s
confinement as a predefined, expected reward for specified good behavior.” (Brown,

       3
         The facts underlying defendant’s offenses and probation violations are not
relevant to the issues raised on appeal, and therefore, we need not summarize them.
       4
         Until January 2010, section 4019 provided that a defendant would receive two
days of conduct credit for every four days of actual custody. From January 2010 until
September 2010, section 4019 temporarily increased this to two days of conduct credit
for every two days of actual custody, but this increase did not apply to a defendant who
was being committed for a serious felony. (People v. Brown (2012) 54 Cal.4th 314, 317-
318 (Brown ); Stats.2009, 3d Ex.Sess., 2009-2010, ch. 28, § 50.) In September 2010,
section 4019 was again amended and section 2933 was also amended with regard to
presentence conduct credit. These statutes also provided that a defendant being
committed for a serious felony would receive two days of conduct credit for every four
days of actual custody. (Stats. 2010, ch. 426, §§ 1, 2; former § 2933, subd. (e).)
                                               3
supra, 54 Cal.4th at p. 322.) Thus, credit is accrued and later calculated under the rate
applicable at the time the period of custody was served, and where a period of custody
overlaps two different accrual rates, both rates are used to determine the total amount of
credit. (Ibid.)
       The Brown court also rejected a claim that the federal equal protection clause
required the retroactive application of the more generous accrual rate in an amendment to
section 4019 to time spent in custody before the amendment became effective. The court
explained that the purpose of the higher rate was to increase the incentive for good
behavior while in custody. This purpose of the incentive is served by offering those in
custody a higher accrual rate. However, the purpose is not served by awarding additional
credit retroactively for time that has already been served. For this reason, the court
concluded that persons in custody before and after the increased rate became effective
were not similarly situated for purposes of an equal protection analysis.
       Although Brown addressed an earlier amendment to a different statute and not the
amendment to section 2933 applicable in this case, its explanation concerning when
credit is earned and calculated and its equal protection analysis apply here with equal
force. (See, e.g., People v. Ellis (2012) 207 Cal.App.4th 1546, 1552 [applying Brown in
different but equivalent legislative context].)
       Here, the court properly calculated conduct credit based on the accrual rates
applicable when defendant was in presentence custody. He received 53 days of conduct
credit under the one-for-one rate in former section 2933, subdivision (e), which in effect
during the 53 days he spent in actual custody. He was not entitled to have the one-for-
one rate applied to the time he spent in custody before that rate became effective.
       Defendant’s reliance on In re Kapperman (1974) 11 Cal.3d 542 to support his
equal protection argument is misplaced. The Brown court distinguished Kapperman, and
although defendant considers the distinction identified in Brown to be “irrelevant,” we do
not. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
                                              4
                                 III. DISPOSITION
     The judgment and the post-judgment order denying additional credit are affirmed.

                                      ______________________________________
                                                 RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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