Filed 11/13/13 P. v. Ellis 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H038801
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111413A)

         v.

ANTHONY GLEN ELLIS,

         Defendant and Appellant.



         This case comes before this court for a second time. In this appeal, appellant
challenges the denial of his post judgment motion for additional presentence conduct
credits. Respondent contends that the law of the case doctrine precludes this court from
considering appellant's challenge. For reasons that follow, we affirm.
         Given the issue on appeal it is not necessary to detail the factual background
underlying appellant's conviction.
                                             Procedural Background1
         After his Romero motion2 was denied, pursuant to a negotiated disposition,
Anthony Ellis (appellant) pleaded no contest to one count of infliction of corporal injury
on a spouse or cohabitant (Pen. Code, § 273.5); appellant admitted that he had a prior


1
         We have taken judicial notice of our unpublished opinion in H037958.
2
         People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
strike conviction within the meaning of Penal Code section 1170.12, subdivision (a)(1).
In exchange for his no contest plea, appellant was promised that he would receive a
maximum sentence of six years in state prison and the dismissal of two remaining
charges—assault by means of force likely to produce great bodily injury (§ 245, subd.
(a)(1)),3 and false imprisonment by violence (§§ 236, 237).
       On February 14, 2012, the court sentenced appellant to three years in state prison
doubled due to the prior felony conviction. The court awarded appellant 203 actual days
of custody credit and 100 days of conduct credits for a total of 303 days. Appellant filed
a timely notice of appeal based on the sentence or other matters occurring after the plea.
       Appellant's appointed counsel filed an opening brief in which no issues were
raised and asked this court for an independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel declared that appellant was notified
that no issues were being raised by counsel on appeal and that an independent review
under Wende was being requested.
       On August 10, 2012, we notified appellant of his right to submit written argument
on his own behalf within 30 days. That time passed and we did not receive a response
from appellant.
       However, appellant's counsel suggested the following points to aid our review.
1) The trial court abused its discretion in denying appellant's Romero motion. 2) On
equal protection grounds, the trial court erroneously denied appellant conduct credits
under an amendment to section 4019 that became effective October 1, 2011, for the time
appellant spent in custody between October 1, 2011 and the time he was sentenced on
February 14, 2012.
       Pursuant to Wende, supra, 25 Cal.3d 436, we reviewed the entire record and, with
the exception of the amount of a restitution fine that was reflected in the abstract of


3
       All unspecified statutory references are to the Penal Code.
                                              2
judgment, we concluded there were no arguable issues on appeal, including the issues
that appellant's counsel had suggested to guide our review.
       As to counsel's suggestion that the court erred in denying appellant the enhanced
conduct credits of the October 1, 2011 amendment to section 4019, we noted that
appellant committed his crime before that amendment took effect.4 (People v. Brown
(2012) 54 Cal.4th 314, 322, fn. 11 (Brown) [the changes to presentence credits expressly
apply prospectively to prisoners who are confined to a county jail or other facility for a
crime committed on or after October 1, 2011].)
       We went on to state that for equal protection purposes, even if we agreed that the
time that appellant spent in county jail between October 1, 2011 and the time he was
sentenced in February 2012, appellant was similarly situated to other defendants who
committed their crimes after October 1, and were in presentence custody, because the
statutory distinction at issue neither " 'touch[ed] upon fundamental interests' nor [was]
based on gender, there was no equal protection violation 'if the challenged classification
[bore] a rational relationship to a legitimate state purpose. [Citations.]' (People v.
Hofsheier (2006) 37 Cal.4th 1185, 1200 (Hofsheier ); see also People v. Ward (2008) 167
Cal.App.4th 252, 258 [rational basis review applicable to equal protection challenges
based on sentencing disparities].)"
       We perceived such a plausible reason as to the period of time appellant was in
custody after October 1, 2011.
       We stated "[a]s our Supreme Court has acknowledged 'statutes lessening the
punishment for a particular offense' may be made prospective only without offending
equal protection principles. (In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman.)
In Kapperman, the court wrote that the Legislature may rationally adopt such an




4
       Appellant committed his crime on July 27, 2011.
                                              3
approach, 'to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written.' (Ibid.)"5
       We explained, "[i]n People v. Floyd (2003) 31 Cal.4th 179 (Floyd), the defendant
sought to invalidate a provision of Proposition 36 barring retroactive application of its
provisions for diversion of nonviolent 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 that penal laws will
maintain their desired deterrent effect by carrying out the original prescribed punishment
as written." ' (Id. at p. 190.) The statute before the court 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.)"
       We observed " '[t]he 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 gathered that "the rule acknowledged in Kapperman and Floyd is that a statute
ameliorating punishment for particular offenses may be made prospective only without
offending 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 that future acts of lenity will necessarily benefit them."
       We noted that appellant committed his crime in July 2011. At that time, his ability
to earn conduct credit was limited to two days for every four days of actual time served in


5
       In Kapperman, the court found that rationale inapplicable to the issue before the
court. (Kapperman, supra, 11 Cal.3d at p. 546.)
                                              4
presentence custody. (Stats. 2010, ch. 426, § 2, September 2010 amendment to § 4019.)6
       We found that although the statute at issue did not ameliorate punishment for a
particular offense, it did, 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, we concluded that the Legislature could rationally have
believed that by making the 2011 amendment to section 4019 have application
determined by the date of the offense, they were preserving the deterrent effect of the
criminal law as to those crimes committed before that date. Accordingly, we stated that
to reward appellant with the enhanced credits of the October 2011 amendment to section
4019, even for time he spent in custody after October 1, 2011, weakened the deterrent
effect of the law as it stood when appellant committed his crimes. We saw nothing
irrational or implausible in a legislative conclusion that individuals should be punished in
accordance with the sanctions and given the rewards (conduct credits) in effect at the
time an offense was committed.
       In this appeal, appellant acknowledges that in the Wende appeal we considered
appellate counsel's suggestion that the denial of day for day credits violated appellant's
constitutional rights to equal protection. Nevertheless, appellant argues that the law of
the case doctrine is inapplicable because he was prohibited from claiming additional
presentence credits in his prior appeal and therefore the claim was not litigated.




6
        Two other amendments to section 4019 were made in 2011. (Stats. 2011, ch. 15 §
482, eff. April 4, 2011, operative Oct. 1, 2011; Stats. 2011, ch. 39, § 53, eff. June 30,
2011, operative Oct. 1, 2011.) However, neither of these amendments assisted appellant
because they were not operative until October 1, 2011. At that time they were amended
by the current version of section 4019. "An enactment is a law on its effective date only
in the sense that it cannot be changed except by legislative process; the rights of
individuals under its provisions are not substantially affected until the provision operates
as law." (People v. Henderson (1980) 107 Cal.App.3d 475, 488.)
                                              5
                                         Discussion
Law of the Case
       Under the law of the case doctrine, all principles and rules of law necessary to an
appellate court's decision are binding in a subsequent appeal in the same case. (People v.
Barragan (2004) 32 Cal.4th 236, 246.) "Thus, the law-of-the-case doctrine 'prevents the
parties from seeking appellate reconsideration of an already decided issue in the same
case absent some significant change in circumstances.' [Citation.] The doctrine is one of
procedure, not jurisdiction . . . ." (People v. Boyer (2006) 38 Cal.4th 412, 441.) As such,
it "prevents parties from seeking reconsideration of an issue already decided . . . ."
(People v. Yokely (2010) 183 Cal.App.4th 1264, 1273.)
       In Kowis v. Howard (1992) 3 Cal.4th 888 (Kowis), the California Supreme Court
considered, when, if ever, summary denial of a pretrial petition for extraordinary relief
established the law of the case precluding reconsideration of the issue on appeal
following final judgment. (Id. at p. 891.) The Court of Appeal had denied the pretrial
petition with the following order: " 'The petition for writ of mandate and request for stay
and the opposition have been read and considered by Presiding Justice Kremer and
Justices Wiener and Huffman. The petition is denied. (Carroll v. Abbott Laboratories,
Inc. (1982) 32 Cal.3d 892.)' " (Id. at p. 892.) The Kowis court held that "[a] summary
denial of a writ petition does not establish law of the case whether or not that denial is
intended on the merits or is based on some other reason." (Id. at p. 899.)
       The Kowis court explained that "[i]f a writ petition is given full review by issuance
of an alternative writ, the opportunity for oral argument, and a written opinion, the parties
have received all of the rights and consideration accorded a normal appeal. Granting the
resulting opinion law of the case status as if it had been an appellate decision is [then]
appropriate. But if the denial followed a less rigorous procedure, it should not establish
law of the case." (Kowis, supra, 3 Cal.4th at p. 899.)

                                              6
       Our Supreme Court affirmed its ruling in Kowis in Lewis v. Superior Court (1999)
19 Cal.4th 1232 (Lewis). The Supreme Court noted that "[o]ne of the policy reasons
supporting [its] holding was that a contrary rule would prevent the losing party from
having an opportunity for oral argument on the issues raised in the [writ] petition."
(Lewis, supra, at p. 1259.)
       On the other hand a defendant who seeks and is denied relief after issuance of an
alternative writ would be foreclosed from raising the issue again. This is so because
"[w]hen the appellate court issues an alternative writ, the matter is fully briefed, there is
an opportunity for oral argument, and the cause is decided by a written opinion. The
resultant holding establishes law of the case upon a later appeal from the final judgment."
(Kowis, supra, 3 Cal.4th at p. 894.)
       We recognize that in the overwhelming number of cases where appointed counsel
finds no arguable issue and files a Wende brief, the Courts of Appeal in this state, after
independently reviewing the record, also fail to discover any arguable issue. Generally,
no brief is submitted by the client; the respondent's brief, if any, is a pro forma document;
and no oral argument is presented.
       However, " '[w]hen a California appellate court receives a Wende brief, it assigns
the case to a staff attorney who prepares a memorandum analyzing all possible legal
issues in the case. Typically, the staff attorney then makes an oral presentation to the
appellate panel and explains whether the case presents any arguable issues for appeal.
[Citation.] Thus, as Professor J. Clark Kelso remarked in a report prepared for
California's Appellate Courts Committee, Commission on the Future of the Courts, "the
Wende process duplicates in all relevant aspects the exact process that appellate counsel
must follow in evaluating the merits of the case." [Citation.]' [Citation.]" (People v.
Kelly (2006) 40 Cal.4th 106, 123, fn. 6 (Kelly).)
       Although in the Wende appeal, appellant did not file any brief raising the issue of
presentence custody credits, appellate counsel presented the issue of the award of
                                               7
presentence custody credits to aid our review and the resulting opinion discussed in some
detail why we rejected appellate counsel's position that there was error in the award of
those credits.
       "Although the written decision in a Wende appeal typically will not be certified for
publication in the Official Reports and thus will not establish precedent for future cases,
it [serves] the other significant purposes identified in the constitutional debates—
(1) providing guidance to the parties and the judiciary in subsequent litigation arising out
of the same 'cause,' and (2) promoting a careful examination of each case and a result
supported by law and reason. Having devoted its resources to reviewing the entire
appellate record, the Court of Appeal is well positioned to forestall the unnecessary
expenditure of additional judicial resources by gathering and setting forth in its opinion
the bare information necessary for other courts to recognize which contentions asserted
by the defendant have been considered and found lacking in arguable merit and which
were considered unreviewable due to an inadequate record." (Kelly, supra, 40 Cal.4th at
p. 120, second italics added.)7 The second section of the italicized language implies that
where we have considered an issue it becomes law of the case.
       The fact that counsel filed the original opening brief under Wende confirms that he
did not believe the issues he listed were arguable. If he did think they were arguable, he
could not rely on the Wende procedure and would instead have been obliged to file a brief
that included written argument on those issues. (Cal. Rules of Court, rule 8.204, subd.
(a)(1)(B).) Indeed, if his listing of these issues made his brief something other than a
Wende brief, his failure to provide supporting legal argument would have entitled us to
disregard those issues. (Associated Builders & Contractors, Inc. v. San Francisco


7
       As the Kelly court explained, "when a Court of Appeal affirms a judgment in a
Wende appeal in which the defendant has filed supplemental contentions, the appellate
court necessarily must have considered and rejected those contentions." (Kelly, supra, 40
Cal.4th at p. 120.)
                                             8
Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Barnett (1998) 17 Cal.4th
1044, 1107, fn. 37.)
       Nevertheless, appellant argues that he could not have raised the issue of
presentence custody credits in the former appeal because under section 1237.1, a
defendant may not appeal a judgment of the superior court on the sole ground of denial of
appropriate presentence credits unless he has first moved the superior court for those
credits.
       "Penal Code section 1237.1 does not preclude a defendant from raising, as the sole
issue on an appeal, a claim his or her presentence custody credits were calculated
pursuant to the wrong version of the applicable statute." (People v. Delgado (2012) 210
Cal.App.4th 761, 763.) We note that appellant did not have the benefit of the Delgado
decision when the Wende brief was filed.
       However, a trial court's failure to award the correct amount of presentence custody
credit due to miscalculation or legal error is a jurisdictional defect that renders the
sentence an unauthorized sentence. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
It is settled that an unauthorized sentence is "subject to judicial correction whenever the
error [comes] to the attention of the trial court or a reviewing court. [Citations.]"
(People v. Serrato (1973) 9 Cal.3d 753, 763, italics added, disapproved on other grounds
in People v. Fosselman (1983) 33 Cal.3d 572.)
       Nonetheless, in order to forestall a claim that counsel was ineffective in failing to
raise this issue earlier we will again address the merits of appellant's contention.
Applicable Law
       A criminal defendant is entitled to accrue both actual presentence custody credits
under section 2900.5 and conduct credits under section 4019 for a period of incarceration
prior to sentencing. Conduct credits may be earned under 4019 by performing additional
labor (§ 4019, subd. (b)) and by an inmate's good behavior. (§ 4019, subd. (c).) In both
instances, the section 4019 credits are collectively referred to as conduct credits. (People
                                               9
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The court is charged with awarding such
credits at sentencing. (§ 2900.5, subd. (a).)
       Before January 25, 2010, conduct credits under section 4019 could be accrued at
the rate of two days for every four days of actual time served in pre-sentence custody.
(Stats.1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) Effective January 25,
2010, the Legislature amended section 4019 in an extraordinary session to address the
state's ongoing fiscal crisis. Among other things, Senate Bill No. 3X 18 amended section
4019 such that defendants could accrue custody credits at the rate of two days for every
two days actually served, twice the rate as before except for those defendants required to
register as a sex offender, those committed for a serious felony (as defined in § 1192.7),
or those who had a prior conviction for a violent or serious felony. (Stats.2009–2010, 3d
Ex.Sess., ch. 28, §§ 50, 62 [former § 4019, subds. (b), (c), & (f)].)
       Effective September 28, 2010, section 4019 was amended again to restore the
presentence conduct credit calculation that had been in effect prior to the January 2010
amendments, eliminating one-for-one credits. (Stats. 2010, ch. 426, § 2.) By its express
terms, the newly created section 4019, subdivision (g), declared these September 28,
2010 amendments applicable only to inmates confined for a crime committed on or after
that date, expressing the Legislature's intention that they have prospective application
only. (Stats. 2010, ch. 426, § 2.)
       The current version of section 4019 (hereafter October 1 amendment) was in effect
and operative beginning October 1, 2011, and at the time of sentencing in this case on
February 14, 2012. (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35, pp. 5976-5977, eff.
Sept. 21, 2011, operative Oct. 1, 2011.)8 That section states in pertinent part "if all days

8
       Initially, the 2011 changes to the accrual of conduct credit were made applicable
to prisoners confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15,
§ 482, pp. 497-498, eff. Apr. 4, 2011, operative Oct. 1, 2011 [former § 4019, subd. (h)].)
Further amendments to section 4019 that were enacted before that legislation became
operative made those changes applicable to prisoners confined for crimes committed on
                                                10
are earned under this section, a term of four days will be deemed to have been served for
every two days spent in actual custody." (§ 4019, subd. (f); see § 4019, subds. (b)-(e).)
This award of custody credits is sometimes referred to as one-for-one credits.
Nevertheless, subdivision (h) of section 4019 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 trial court calculated appellant's conduct credits under the September 28, 2010
revision of the presentence custody credit law; that version was in effect when appellant
committed his crime. Under that version, a defendant with a current or prior serious or
violent felony conviction was entitled to two days of conduct credit for every four days of
presentence custody. (Former §§ 2933, 4019 (Stats.2010, ch. 426, § 2).)9
Equal Protection Challenge to the Current Version of Section 4019
       Shortly before we filed our opinion in H037958, two appellate courts concluded
that prisoners confined in a county jail after October 1, 2011, for crimes committed
before October 1, 2011, are similarly situated to prisoners who committed their crimes
after October 1, 2011, and are confined in a county jail, but determined there was a

or after October 1, 2011. (See Stats. 2011, ch. 15, § 636, p. 622, eff. Apr. 4, 2011; Stats.
2011, ch. 39, §§ 53, 68, pp. 1730-1731, 1742, eff. June 30, 2011, operative Oct. 1, 2011;
Stats.2011, ch. 40, § 3, p. 1748, eff. June 30, 2011; Stats. 2011-2012, 1st Ex. Sess., ch.
12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011.)
9
        For a brief period, effective September 28, 2010, section 2933 was amended to
include a subdivision (e), which provided that an eligible defendant sentenced to prison
could receive one day of conduct credit for every day he was in presentence custody.
(Stats. 2010, ch. 426, § 1, p.2087.) However, a defendant who had a prior serious felony
conviction, such as appellant, was not subject to this provision (former § 2933, subd.
(e)(3); Stats.2010, ch. 426, § 1), but was instead awarded conduct credit consisting of two
days credit for every four days of presentence custody (former § 4019; Stats.2011, ch. 39,
§ 53). Section 2933 has since been amended to delete subdivision (e). (Stats.2011–2012,
1st Ex.Sess.2011, ch. 12, § 16, p. 5963.)
                                             11
rational basis for the classifications. (People v. Verba (2012) 210 Cal.App.4th 991, 995–
997 (Verba)10; People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53-55,
(Rajanayagam) (review denied Feb. 13, 2013) [the two groups are serving time together
in local presentence custody thus the two groups are similarly situated].)
        Even assuming the two groups of defendants who are in custody together—those
who committed their crimes before October 1, 2011, and those who committed their
crimes after October 1, 2011—are similarly situated for purposes of the October 1, 2011,
amendment to section 4019, we conclude again, as we have done in the past (People v.
Kennedy (2012) 209 Cal.App.4th 385 398-400 (Kennedy)), that the classifications bear a
rational relationship to a legitimate state purpose. Similar to the courts in Verba, supra,
210 Cal.App.4th 991, 995–997 and Rajanayagam, supra, 211 Cal.App.4th at pages 54–
55, we conclude that there are several legitimate reasons for making the enhanced
presentence conduct credits applicable only to those who commit their crimes on or after
October 1, 2011, including cost savings measured against public safety (Verba, supra,
210 Cal.App.4th at pp. 996–997; Rajanayagam, supra, 211 Cal.App.4th at p. 55),
maintaining the desired deterrent effect of penal laws by carrying out the punishment in
effect at the time defendants commit their offenses (Kennedy, supra, 209 Cal.App.4th at
p. 398, Verba, supra, 210 Cal.App.4th at p. 997), and the Legislature's right to control the
risk of new legislation by limiting its application (Verba, supra, 210 Cal.App.4th at p.
997).
        Accordingly, we reject appellant's equal protection challenge to the current version
of section 4019.




10
      In Verba, the defendant was sentenced before the operative date of the 2011
amendment to section 4019. (Verba, supra, at p. 993.) Accordingly, he was not in
custody after October 1, 2011.
                                             12
Statutory Language
       Appellant argues that the most credible interpretation of the current version of
section 4019 is that it applies equally to the presentence custody of defendants who
committed their crimes before October 1, 2011.
       Section 4019, subdivision (h) states in pertinent part, "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, . . . for a crime committed on or
after October 1, 2011. [The first sentence.] Any days earned by a prisoner prior to
October 1, 2011 shall be calculated at the rate required by the prior law. [The second
sentence.]" (Italics added.)
       Appellant argues that the first sentence, if construed literally, renders the second
sentence superfluous.
       "[I]n reviewing the text of a statute, [courts] must follow the fundamental rule of
statutory construction that requires every part of a statute be presumed to have some
effect and not be treated as meaningless unless absolutely necessary. 'Significance
should be given, if possible, to every word of an act. [Citation.] Conversely, a
construction that renders a word surplusage should be avoided. [Citations.]' [Citations.]"
(People v. Arias (2008) 45 Cal.4th 169, 180.) In addition, "[w]hen a statute is capable of
more than one construction, ' "[w]e must . . . give the provision a reasonable and
commonsense interpretation consistent with the apparent purpose and intention of the
lawmakers, practical rather than technical in nature, which upon application will result in
wise policy rather than mischief or absurdity." ' [Citations.]" (In re Reeves (2005) 35
Cal.4th 765, 771, fn. 9.) Finally, "under the traditional 'rule of lenity,' language in a penal
statute that truly is susceptible of more than one reasonable construction in meaning or
application ordinarily is construed in the manner that is more favorable to the defendant.
[Citation]" (People v. Canty (2004) 32 Cal.4th 1266, 1277.)

                                              13
       "When construing a statute, our primary task is to ascertain the Legislature's
intent. [Citation.] We begin our task by determining whether the language of the statute
is ambiguous. [Citation.] A statutory provision is ambiguous if it is susceptible of two
reasonable interpretations. [Citation.] ' "If there is no ambiguity in the language, we
presume the Legislature meant what it said and the plain meaning of the statute governs."
[Citation.]' [Citation.]" (People v. Dieck, supra, 46 Cal.4th at pp. 939-940.)
       In People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis) (review denied Oct. 31,
2012), with respect to subdivision (h) of section 4019, the Fifth District Court of Appeal
concluded: "[T]he Legislature's clear intent was to have the enhanced rate apply only to
those defendants who committed their crimes on or after October 1, 2011. [Citation.]
The second sentence does not extend the enhanced rate to any other group, but merely
specifies the rate at which all others are to earn conduct credits. So read, the sentence is
not meaningless, especially in light of the fact the October 1, 2011, amendment to section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant's crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced."11 (Id. at p. 1553.)
       The Court of Appeal, Fourth District, Division 3, agrees with Ellis. In
Rajanayagam, supra, 211 Cal.App.4th 42, the court rejected an argument that the second
sentence of section 4019, subdivision (h), "implies any days earned by a defendant after
October 1, 2011, shall be calculated at the rate required by the current law, regardless of
when the offense was committed." (Id. at p. 51.) The court concluded that such an
interpretation would render meaningless the language in the first sentence (ibid.), which
provides that the changes to the accrual of presentence conduct credit "shall apply

11
       Section 1170, subdivision (h)(6), now provides: "The sentencing changes made
by the act that added this subdivision shall be applied prospectively to any person
sentenced on or after October 1, 2011."
                                             14
prospectively and shall apply to prisoners who are confined to a county jail . . . for a
crime committed on or after October 1, 2011." (§ 4019, subd. (h).) Accordingly, the
court concluded that adopting the defendant's interpretation would violate an elementary
rule requiring courts, if possible, ascribe meaning to every word, phrase, and sentence of
a statute and to avoid interpretations that render some words superfluous. (Rajanayagam,
supra, 211 Cal.App.4th at p. 51.)
       The Rajanayagam court concluded: "[S]ubdivision (h)'s first sentence reflects the
Legislature intended 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 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. However inartful the language of
subdivision (h), we read the second sentence as reaffirming that defendants who
committed their crimes before October 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 crimes 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 subdivision (h)'s first sentence." (Id. at p. 52, fn. omitted.)
       Certainly, "[i]t is a settled principle of statutory construction, that courts should
'strive to give meaning to every word in a statute and to avoid constructions that render
words, phrases, or clauses superfluous.' [Citations.] We harmonize statutory provisions,
if possible, giving each provision full effect. [Citation.]" (In re C.H. (2011) 53 Cal.4th
94, 103.)
       On the other hand, appellate courts may not "rewrite the clear language of [a]
statute to broaden the statute's application." (In re David (2012) 202 Cal.App.4th 675,
                                               15
682; People v. Statum (2002) 28 Cal.4th 682, 692 [a court may not rewrite a statute to
conform to a presumed intent that is not expressed].)
       As confirmed by the Supreme Court in Brown, supra, 54 Cal.4th at page 322,
footnote 11, the first sentence means just what it says, but the necessary corollary of that
sentence is that it does not apply to crimes committed prior to October 1, 2011; and the
necessary implication is that for crimes committed prior to October 1, 2011, the statutory
scheme that was displaced by the new terms of section 4019 continues to apply. It is
axiomatic that since the new credit scheme applies prospectively (per the first sentence),
everyone in jail prior to October 1, 2011, is there for a crime committed prior to that date,
and subject to whatever credit scheme was operating at the time. However, to hold that
appellant is entitled to the benefit of the October 1 amendment for days spent in custody
after October 1, 2011, would require that we write an entire sentence into section 4019.
That is, after the first sentence, we would have to add — "However, if a defendant has
not been sentenced by October 1, 2011, for a crime he or she committed before
October 1, 2011, he or she is entitled to one-for-one credits for any time spent in custody
after that date up to and including the date of sentencing." As confirmed by the Supreme
Court in Brown, the critical date in the statute is the date of the offense, and not the date
when the presentence custody is served. (Id. at p. 322, fn. 11.)
       A number of courts, including this one, have concluded that as to crimes
committed before October 1, 2011, the current version of section 4019 is not applicable
and former law governs calculation of conduct credit. (People v. Hul (2013) 213
Cal.App.4th 182, 186-187; Rajanayagam, supra, 211 Cal.App.4th at p. 51; Verba, supra,
210 Cal.App.4th at p. 993; Ellis, supra, 207 Cal.App.4th at p. 1553; see also Kennedy,
supra, 209 Cal.App.4th at p. 400.) Again, we reach the same conclusion. In so doing,
we reject appellant's claim that as a matter of statutory construction, he is entitled to the
enhanced one-for-one credits for the time he spent in custody after October 1, 2011, up to
and including the day he was sentenced.
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                            Disposition
The judgment is affirmed.




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                                  _______________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




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