Filed 4/4/13 P. v. Frausto CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061739

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD236566)

JUAN FRAUSTO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kerry

Wells, Judge. Affirmed in part, reversed in part and remanded.



         A jury convicted Juan Frausto of assault by means likely to produce great bodily

injury. (Pen. Code, § 245, subd. (a).)1 The court suspended imposition of sentence and

placed Frausto on probation for three years with terms and conditions, including that he

could not knowingly "be within two blocks of any proscribed area (an area of gang or

criminal activity)." On appeal, Frausto contends the court erred by imposing a vague and

1        Statutory references are to the Penal Code unless otherwise specified.
overbroad probation condition. Frausto also contends the statutory construction of

section 4019 and principles of equal protection demand he be given additional

presentence custody credits. We conclude the imposed probation condition should be

modified to avoid unconstitutional vagueness and overbreadth. We also conclude that

under the rules of statutory construction the enhanced conduct credit provision of section

4019 applies only to defendants who committed their crimes on or after October 1, 2011,

and section 4019 does not violate principles of equal protection. (U.S. Const. 14th

Amend.; Cal. Const., art. I, § 7, subd. (a).)

                   FACTUAL AND PROCEDURAL BACKGROUND

       On September 15, 2011, Frausto and several other individuals identified as

members of the Eastside gang assaulted Guillermo Lazzaro outside his San Diego

residence. During the melee, Lazzaro was struck with a scooter and fell to the ground.

The gang members also threw pieces of wood and a brick at Lazzaro and his friends.

       San Diego Police arrived and detained Frausto and several others. After a

curbside line-up, during which he was identified as one of the individuals who threw

punches during the assault, Frausto was arrested. Police later found his fingerprints on a

piece of wood at the crime scene.

       Frausto was in county jail awaiting trial on October 1, 2011, when the 2011

amendments to section 4019 became operative.2 (Stats. 2011-2012, 1st Ex. Sess., ch. 12,



2      Section 4019 was amended in 2011 in conjunction with the 2011 Realignment
Legislation, which addressed public safety. (Stats. 2011, ch. 15, § 1; see § 1170, subd.
(h).)
                                                2
§ 35.) On February 10, 2012, the jury convicted Frausto of assault by means likely to

produce great bodily injury. The court suspended imposition of sentence and placed

Frausto on probation for three years with terms and conditions, including the condition

that he serve 285 days in county jail. The court awarded Frausto a total of 285 days of

presentence custody credit consisting of 191 days for actual days served (§ 2900.5, subd.

(a)), plus 94 days of conduct credits under section 4019, subdivision (c). The order for

probation contained condition number 12.h., which provided: "Do not knowingly be

within two blocks of any proscribed area (an area of gang or criminal activity). 'Gang'

means any 'criminal street gang' as defined by Pen. Code 186.22(e) and (f)."

                                       DISCUSSION

        A. Forfeiture

        The People do not address Frausto's claim that a probationer may challenge a

probation condition for the first time on appeal. "Ordinarily, a criminal defendant who

does not challenge an assertedly erroneous ruling of the trial court in that court has

forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th

875, 880 (Sheena K.).) Generally, the forfeiture rule also applies in the context of

sentencing; where a trial court fails to make or articulate a discretionary sentencing

choice, the defendant must object to preserve the issue on appeal. (Id. at p. 881; People

v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Tillman (2000) 22 Cal.4th 300, 302-

303.)

        However, although claims involving a discretionary sentencing choice or

unreasonable probation condition require analysis of facts and circumstances specific to

                                              3
the individual case, constitutional challenges to probation conditions require only "the

review of abstract and generalized legal concepts--a task that is well suited to the role of

an appellate court. Consideration and possible modification of a challenged condition of

probation, undertaken by the appellate court, may save the time and government

resources that otherwise would be expended in attempting to enforce a condition that is

invalid as a matter of law." (Sheena K., supra, 40 Cal.4th at p. 885.) Whenever a "facial

challenge is made to the constitutionality of a probation condition, there is no need to

preserve the claim by an objection in the [trial] court." (In re R.P. (2009) 176

Cal.App.4th 562, 566; see Sheena K., at p. 889). Frausto did not forfeit his challenge to

the constitutionality of his probation condition even though he did not object at the time

the court imposed the condition.

       Frausto did, however, forfeit his appellate claim of entitlement to additional

conduct credits. At sentencing, immediately after awarding him 94 conduct credits, the

court asked both parties if there was anything it had "missed." Frausto's counsel did not

object to the conduct credit award at that time. By not objecting to the award of conduct

credits, Frausto forfeited the right to challenge on appeal any error in the court's award

amount. (People v. Myers (1999) 69 Cal.App.4th 305, 312 [defendant forfeited any claim

of error in presentence credits by stipulating to amount awarded].) Nevertheless, to avert

a claim of ineffective assistance of counsel, we address the merits of his statutory

construction and equal protection arguments concerning the award of conduct credits.

(See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 230 [court examined sentence

to determine if cruel and unusual despite defendant's waiver of argument].)

                                              4
       B. Standard of Review

       "[W]hen a facial challenge is made to the constitutionality of a probation

condition," "fairness and efficiency considerations weigh in favor of an appellate court's

de novo review of a facial constitutional challenge." (In re R.P., supra, 176 Cal.App.4th

at p. 566.) Likewise, because Frausto's claim to additional conduct credits involves

issues of statutory interpretation and constitutionality-- pure questions of law--we apply a

de novo standard of review, and exercise our independent judgment without deference to

the trial court's ruling. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801.)

       C. The Constitutionality of Probation Conditions Imposed by the Trial Court

       Frausto challenges the constitutionality of the probation condition prohibiting him

from knowingly being within two blocks of any area of gang or criminal activity. He

claims the condition is both vague and overbroad, and therefore should be modified to

require notice by the probation officer of specific prohibited locations.

       "Probation is generally reserved for convicted criminals whose conditional release

into society poses minimal risk to public safety and promotes rehabilitation. [Citations.]

The primary goal of probation is to ensure '[t]he safety of the public . . . through the

enforcement of court-ordered conditions of probation.' " (People v. Carbajal (1995) 10

Cal.4th 1114, 1120; §§ 1203.1, 1202.7; People v. Welch (1993) 5 Cal.4th 228, 233.)

Under section 1203.1, subdivision (j), the Legislature has granted a trial court the

authority to impose reasonable conditions of probation "as it may determine are fitting

and proper to the end that justice may be done, that amends may be made to society for

the breach of the law, for any injury done to any person resulting from that breach, and

                                              5
generally and specifically for the reformation and rehabilitation of the probationer . . . ."

(§ 1203.1, subd. (j).) Under that section, a trial court has broad discretion to determine

whether an eligible defendant is suitable for probation and may impose reasonable

conditions to foster rehabilitation of the probationer, protect public safety and make

amends to society and to the victim of the probationer's crime. (People v. Leon (2010)

181 Cal.App 4th 943, 948; People v. Smith (2007) 152 Cal.App.4th 1245, 1249-1250;

Welch, at p. 233.)

       The court's broad discretion to impose probation conditions is not without limits.

"[T]he authority is wholly statutory; the statute furnishes and limits the measure of

authority . . . the court may thus exercise [citations]." (In re White (1979) 97 Cal.App.3d

141, 146 (White).) Where constitutional rights are restricted, the judicial discretion to set

conditions of probation are "circumscribed by constitutional safeguards. Human liberty

is involved. A probationer has the right to enjoy a significant degree of privacy, or

liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution

[citations]." (Id. at p. 146.) Probation conditions that limit constitutional rights are valid

"only if narrowly drawn to serve the important interests of public safety and

rehabilitation, and if they are 'specifically tailored to the individual probationer.' "

(People v. Smith, supra, 152 Cal.App.4th at p. 1250.)

       We first note the probation condition imposed on Frausto restricts his

constitutional right to intrastate travel. (People v. Smith, supra, 152 Cal.App.4th at

p. 1250; White, supra, 97 Cal.App.3d at p. 148.) "[T]he right to intrastate travel (which

includes intramunicipal travel) is a basic human right protected by the United States and

                                               6
California Constitutions as a whole. Such a right is implicit in the concept of a

democratic society and is one of the attributes of personal liberty under common law."

(White, at p. 148.) Moreover, the right to travel underpins many other fundamental

rights, including the right to free speech, free assembly and free association. (Id. at

p. 149.) "It is simply elementary in a free society. Freedom of movement is basic in our

scheme of values." (Ibid.; Kent v. Dulles (1958) 357 U.S. 116, 126.)

       Given the possible impingement of so many fundamental rights, a restriction

regarding travel "should be regarded with skepticism. If available alternative means exist

. . . less violative of the constitutional right and . . . narrowly drawn so as to correlate

more closely with the purposes contemplated, those alternatives should be used

[citations]." (White, supra, 97 Cal.App.3d at p. 150.) Consequently, probation

conditions placing restrictions on travel have frequently been held vague or overbroad.

(E.g., In re Victor L. (2010) 182 Cal.App.4th 902, 913-919 [holding condition of

prohibiting entry in areas known for gang-related activity overbroad and vague] (Victor

L.); White, at pp. 147-152 [remanding for modification of probation condition prohibiting

prostitute from entering into specific high-prostitution areas of Fresno, because it

interfered with her constitutional right to intrastate travel]; People v. Beach (1983) 147

Cal.App.3d 612, 619-623 [probation condition requiring elderly widow convicted of

involuntary manslaughter to relocate was held to be overbroad and in violation of her

constitutional rights]; but see U.S. v. Watson (9th Cir. 2009) 582 F.3d 974, 977, 983-985

[upholding probation condition prohibiting parolee who previously lived in San Francisco

from entering the City and County of San Francisco].)

                                                7
       1. Vagueness of the Imposed Probation Conditions

       " ' "No one may be required at peril of life, liberty or property to speculate as to

the meaning of penal statutes. All are entitled to be informed as to what the State

commands or forbids." [Citations.] The operative corollary is that "a statute which either

forbids or requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application, violates the first

essential of due process of law." ' " (People v. Lopez (1998) 66 Cal.App.4th 615, 630;

People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090.) "[T]he underpinning of a

vagueness challenge is the due process concept of 'fair warning.' " (Sheena K., supra, 40

Cal.4th at p. 890.) The rule of fair warning consists of the due process principles of

preventing arbitrary or discriminatory application by policemen, judges and juries as well

as providing adequate notice to those who must observe its strictures. (Ibid.; In re H.C.

(2009) 175 Cal.App.4th 1067, 1070.) "A probation condition 'must be sufficiently

precise for the probationer to know what is required of him, and for the court to

determine whether the condition has been violated,' if it is to withstand a challenge on the

ground of vagueness. [Citation.] A probation condition that imposes limitations on a

person's constitutional right must closely tailor those limitations to the purpose of the

condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., at

p. 890.)

       Probation conditions should be given the meaning that would appear reasonable to

an objective reader. (People v. Bravo (1987) 43 Cal.3d 600, 606.) Frausto asserts that

absent a directive requiring the probation officer to provide notice of prohibited specific

                                              8
locations, the probation condition is impossibly vague to an objective reader. The People

respond that the plain meaning of the probation condition implies the probation officer

will notify Frausto of the prohibited areas. Certainly as both parties agree, a court may

" 'leave to the discretion of the probation officer the specification of the many details that

invariably are necessary to implement the terms of probation.' " (Victor L., supra, 182

Cal.App.4th at p. 919.) The court's discretionary power to delegate specific terms of

implementation to the probation officer derives from section 1202.8, subdivision (a),

which provides: "[p]ersons placed on probation by a court shall be under the supervision

of the county probation officer who shall determine both the level and type of supervision

consistent with the court-ordered conditions of probation."

       However, the People go too far when stating that because of the implied meaning

of the probation condition, logically the probation officer must communicate the

proscribed areas to Frausto before he can violate the condition. Nothing in the probation

order states the probation officer must specify to Frausto the specific areas he should

know to be areas of gang or criminal activity. Instead, the plain meaning of the probation

condition requires only that Frausto knowingly be within two blocks of an area of gang

activity but does not specify from where the source of that knowledge must issue.

Presumably, Frausto, as a gang member, has ample personal knowledge of numerous

areas of local gang activity. However, an arrest under these conditions would lead to an

arbitrary and subjective evaluation as to whether he had sufficient personal knowledge to

violate the condition of his probation. However, an "appellant's waiver of his . . . rights

must be interpreted on the basis of an objective test." (People v. Bravo, supra, 43 Cal.3d

                                              9
at p. 606.) To avoid an improper subjective analysis of Frausto's personal knowledge as

to whether a specific location constituted an area of gang activity, he should be

forewarned, as a condition of his probation, which areas are specifically proscribed to

him. But, "[t]o require the judge in each probation order to specify exactly which areas

are forbidden to the individual gang member would impose an undue burden on the

judiciary. . . . [T]he probation officer is in a better position to identify the forbidden

areas . . . ." (Victor L., supra, 182 Cal.App.4th at p. 917.) For that reason, we elect to

modify the probation condition to require the probation officer to identify the forbidden

areas, and notify both Frausto and the trial court as to the areas he must avoid.

       2. Breadth of the Imposed Probation Conditions

       The overbreadth doctrine merely requires the imposed probation conditions that

impinge on constitutional rights be carefully tailored and reasonably related to the

compelling state interest in reformation and rehabilitation. (Victor L., supra, 182

Cal.App.4th at p. 910; Sheena K., supra, 40 Cal.4th at p. 890.) "Probation by its very

nature is intended to be tailored to the needs of society and the individual defendant.

Unlike the purpose of imprisonment which is punishment, the purpose of probation is

rehabilitation. The manifest goals of probation and the need for individualistic treatment

compels the imposition of special probation conditions framed to meet the particular

needs of each individual case. Particularized conditions of probation should be directed

toward rehabilitation rather than reliance upon some general condition which utilizes a

mechanized mass treatment approach." (White, supra, 97 Cal.App.3d at pp. 150-151.)



                                               10
       However, condition 12.h, about which Frausto complains, is contained within a

mechanized form used for all probationers. Without further clarification, condition 12.h

is impermissibly broad in scope. In some instances, an area with "gang activity" might

be an entire district or town. (In re H.C., supra, 175 Cal.App.4th at p. 1072.)

Presumably, "[c]ity buses, the Greyhound bus and taxicabs pass through [these] areas.

Technically, being engaged in a passive activity such as being a mere passenger in public

transportation or private transportation would be a violation of the condition." (White,

supra, 97 Cal.App.3d at p. 147.) Moreover, the record is silent as to whether Frausto

lives, works, or attends school in an area of "gang activity." A blanket travel restriction

may be proper for some probationers, and the same restriction "may be overbroad for one

who lives, works or goes to school within the area." (In re Pedro Q. (1989) 209

Cal.App.3d 1368, 1373.) The condition as written would afford the probation officer

significant discretionary power--" 'that is, the power to banish him. It has frequently been

held that a sentencing court does not have this power.' " (People v. O'Neil (2008) 165

Cal.App.4th 1351, 1358.) "Indeed, the 'gang-related activity' restriction appears to have

been intentionally designed to banish . . . gang members from a broad category of

locations, not simply areas where gang members 'meet' or 'get together,' which are the

focus of a separate proscription. Gang membership and 'participat[ion] in any gang

activity' are also separately forbidden. A separate clause also prohibits both one-to-one

and group association with gang members. [Citation.] Therefore, the 'gang-related

activity' condition appears to have been intended to prevent . . . close contact with gang

members, even short of voluntary association or participation in their activities. Since

                                             11
another condition commands [the defendant] to obey all laws, this condition also bans his

presence in gang-related locations, even though his conduct there would otherwise be

lawful." (Victor L., supra, 182 Cal.App.4th at p. 915.)

       Generally, "a court may dictate the basic policy of a condition of probation,

leaving specification of details to the probation officer." (Victor L., supra, 182

Cal.App.4th at p. 919.) "However, the court's order cannot be entirely open-ended. It is

for the court to determine the nature of the prohibition placed on a defendant as a

condition of probation . . . ." (People v. O'Neil, supra, 165 Cal.App.4th at p. 1359.)

However, where the probation condition contains "no such standard by which the

probation department is to be guided, the condition is too broad and must either be

stricken or rewritten to provide the necessary specificity." (Ibid.) Although the court

may have expected the probation officer to designate the "specific" proscribed locations

of gang or criminal activity, the court's probation order should not be left to implication.

As Frausto suggests, probation condition 12.h should be modified to replace "area" with

"specific location" and the condition should be further modified to require the probation

officer to provide Frausto and the court with a list of specifically proscribed locations.

Only by providing Frausto and the court with specific locations can the scope of the

imposed condition be adequately determined. If Frausto then disagrees with the breadth

of the probation officer's list, he can move in the trial court to modify the condition of

probation.




                                             12
       D. Claim to Additional Conduct Credits

       Frausto claims that despite committing his offenses before the October 1, 2011,

operative date of the amendment to section 4019, he is entitled to additional presentence

conduct credits at the enhanced rate of the new version of section 4019. Under section

4019, defendants are entitled to earn additional credit toward their sentences by

performing additional labor (§ 4019, subd. (b)) and for good behavior (§ 4019 subd. (c)).

To differentiate from credits earned by actual time spent in custody, these additional

credits are referred to as conduct credits. (People v. Duff (2010) 50 Cal.4th 787, 793.)

Before October 1, 2011, persons who, like Frausto, had been convicted of a serious or

violent felony were entitled to only two days of conduct credits for every four days

actually served. (Former Pen. Code, § 4019, subd. (f); Stats. 2010, ch. 426, § 2.)

However, on October 1, 2011, when Frausto was in local custody awaiting sentencing,

the Legislature amended section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.),

as part of the Realignment Act. The amendment, which became operative October 1,

2011, increased the amount of conduct credits earned by prisoners in local custody to one

day of conduct credit for each day spent in actual custody. (§ 4019, subd. (f); Stats. 2011,

ch. 39, § 53.) As relevant here, section 4019, subdivision (h), provides:

          "The changes to this section enacted by the act that added this
          subdivision shall apply prospectively and shall apply to prisoners
          who are confined to a county jail, city jail, industrial farm, or road
          camp for a crime committed on or after October 1, 2011. Any days
          earned by a prisoner prior to October 1, 2011, shall be calculated at
          the rate required by the prior law."




                                            13
Frausto committed his offense on September 15, 2011. At sentencing, the court applied

the former version of section 4019 in effect at the time Frausto committed his crime.

Frausto contends any applicable conduct credits he accrued after the operative date of the

amendment to section 4019 on October 1, 2011, should have been calculated using the

more generous amended rate. He asserts the award of only 94 days of conduct credits

violated both the terms of section 4019 as amended and his right to equal protection.

       1. Statutory Construction

       Frausto asserts that under the rules of statutory construction, section 4019 as

amended requires the court to grant one-for-one conduct credits for all time spent in local

custody after October 1, 2011. He contends the second sentence of section 4019,

subdivision (h), suggests that days earned by a prisoner after October 1, 2011, must be

calculated at the rate established by the new law.

       The language in section 4019, subdivision (h), that "[a]ny days earned . . . prior to

October 1, 2011, shall be calculated at the rate required by the prior" law could be read to

mean that any days earned by a defendant after that date should be calculated using the

amended rate, regardless of the date the offense was committed. (People v. Rajanayagam

(2012) 211 Cal.App.4th 42, 52.) However, to do so would invalidate the immediately

preceding sentence of section 4019, which explicitly limits the benefits of the new accrual

rate to those defendants who committed their crimes after October 1, 2011.

(Rajanayagam, at p. 52.) Frausto's proffered interpretation would "defy the Legislature's

clear intent in subdivision (h)'s first sentence and contradict well settled principles of

statutory construction." (Ibid.) Interpretations that lead to absurd results or

                                              14
consequences the Legislature could not have intended must be avoided. (People v.

Thomas (1992) 4 Cal.4th 206; see People v. Tanner (1979) 24 Cal.3d 514.)

       For that same reason, Frausto cannot avail himself of the rule of lenity, which

"generally requires that 'ambiguity in a criminal statute should be resolved in favor of

lenity, giving the defendant the benefit of every reasonable doubt on questions of

interpretation.' " (In re M.M. (2012) 54 Cal.4th 530, 545.) However, the rule of lenity

only applies "if two reasonable interpretations of the statute stand in relative equipoise."

(People v. Anderson (2002) 28 Cal.4th 767, 780.) Frausto's interpretation, however,

would lead to a nonsensical interpretation and "ambiguities are not interpreted in the

defendant's favor if such an interpretation would provide an absurd result, or a result

inconsistent with apparent legislative intent." (People v. Cruz (1996) 13 Cal.4th 764,

783; see also In re Michael D. (2002) 100 Cal.App.4th 115, 125.)

       Moreover, absent a clearly manifested intent to the contrary, there is a legal

presumption that all statutes operate prospectively. (Evangelatos v. Superior Court

(1988) 44 Cal.3d 1188, 1208-1209.) Statutes ambiguous with respect to retroactive

application are to be construed as unambiguously prospective. (Ibid.; People v. Brown

(2012) 54 Cal.4th 314 (Brown); see also Lindh v. Murphy (1997) 521 U.S. 320, 328, fn. 4

[statute applied retroactively only where statutory language is "so clear that it could

sustain only one interpretation"].) One noted exception to the presumption of prospective

application exists where the Legislature reduces the punishment for a particular offense.

(In re Estrada (1965) 63 Cal.2d 740, 748.) However, because section 4019 addresses

future conduct, but does not alter the penalty for any particular crime, that exception is

                                             15
not applicable here. (People v. Ellis (2012) 207 Cal.App.4th 1546, 1551; see also Brown,

supra, 54 Cal.4th at p. 325).

       Although section 4019 could have been drafted more artfully, "the 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." (People v. Ellis, supra, 207 Cal.App.4th at p. 1553;

see also People v. Rajanayagam, supra, 211 Cal.App.4th at p. 52 [§ 4019, subd. (h)

merely reaffirms that defendants who committed their crimes before October 11, 2011,

can still earn conduct credits, just under the prior law].) The Legislature's clear and

explicit intent to apply the new custody credit formula only prospectively cannot be

overridden by an implied interpretation of the second sentence in the statute. Frausto's

argument that statutory construction requires modification of his conduct credit award

has no merit.

       2. Equal Protection

       Frausto also invokes the basic guarantees of equal protection embodied in the

Fourteenth Amendment to the United States Constitution and article I, section 11 of the

California Constitution to support his contention. (Hayes v. Superior Court (1971) 6

Cal.3d 216, 223; In re King (1970) 3 Cal.3d 226, 232.) Frausto asserts that, were section

4019 interpreted to apply only to crimes committed on or after October 1, 2011, it would

violate equal protection principles.



                                             16
       To succeed on a claim under the equal protection clause, Frausto must first show

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

an unequal manner. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199; see also People

v. Wilkinson (2004) 33 Cal.4th 821, 836-837 (Wilkinson); Manduley v. Superior Court

(2002) 27 Cal.4th 537, 571.) For purposes of section 4019 there are two classes of

incarcerated inmates: (1) those in jail on or after October 1, 2011, having committed a

crime on or after October 1, 2011; and (2) those in jail on or after October 1, having

committed the same offense before October 1, 2011.

       The primary purpose of awarding conduct credits is to reward those defendants

who perform additional work and behave, and to act as a threat to withhold conduct

credits from those who would otherwise misbehave. Indeed, 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.)

       Frausto contends that because inmates from both groups have committed the same

crime, are in custody at the same time, and are earning conduct credits for the same

positive behavior, they are similarly, if not identically, situated. However, as the

Supreme Court noted, "prisoners who served time before the incentives took effect . . .

could not have modified their behavior in response. That prisoners who served time

before and after former section 4019 took effect are not similarly situated necessarily

follows." (Brown, supra, 54 Cal.4th at pp. 328-329 [examining applicability of

retroactivity to § 4019]; see also People v. Kennedy (2012) 209 Cal.App.4th 385, 396-



                                             17
397.) Although Brown examined whether section 4019 should be applied retroactively to

all prisoners, the logic is nonetheless applicable here.

       Additionally, even were we to hold that both groups have a similar incentive to

work and behave, we do not believe both groups have the same inducement. Although

the type of incentive--additional conduct credits--may be the same as between the groups,

the amount of that incentive is not the same. Those prisoners who commit crimes and

serve time after the incentives take effect have a greater incentive to alter their behavior

than those who committed crimes before the later-enacted incentive. Thus, contrary to

Frausto's claims, the two groups are not similarly situated and, as a result, any analysis of

his equal protection claims does not proceed to the next step of the level of review.

       Although we need not decide the appropriate level of review, we believe rational

basis review is the proper level of scrutiny. In considering whether state legislation

violates equal protection, " 'we apply different levels of scrutiny to different types of

classifications. At a minimum, a statutory classification [affecting similarly situated

individuals] must be rationally related to a legitimate governmental purpose. [Citations.]

Classifications . . . affecting fundamental rights . . . are given the most exacting

scrutiny.' " (Wilkinson, supra, 33 Cal.4th at p. 836; see also Manduley v. Superior Court,

supra, 27 Cal.4th at p. 571.) When a statutory classification infringes on either a

fundamental interest or right, the law or policy must be justified by a compelling interest

and the distinctions drawn by the law must be necessary to further this interest. (People

v. Olivas (1976) 17 Cal.3d 236, 251.) In all other instances, rational basis review is the

default level of review; the state is only required to make a showing that "the legislative

                                              18
classification bears a rational relation to some independent and legitimate legislative

end." (Romer v. Evans (1996) 517 U.S. 620, 621.)

       Contrary to Frausto's argument, there is no fundamental interest at stake with

regard to conduct credits. The argument could be made that to limit a prisoner's

opportunity to earn conduct credits is to increase punishment, because it "substantially

alters the consequences attached to a crime already completed, and therefore changes 'the

quantum of punishment.' " (Weaver v. Graham (1981) 450 U.S. 24, 33). After all, "a

person who is released a day early is punished a day less." (People v. Lara, supra, 54

Cal.4th at pp. 905-906.) As Frausto notes, courts have in the past reached different

conclusions as to the applicable test for incongruities resulting from statutes involving

time credits. (See, e.g., People v. Austin (1981) 30 Cal.3d 155, 166 [compelling interest];

People v. Sage (1980) 26 Cal.3d 498, 508 [same]; People v. Caruso (1984) 161

Cal.App.3d 13, 17-18 [same]; People v. Jacobs (1984) 157 Cal.App.3d 797, 801 [same];

In re Kapperman (1974) 11 Cal.3d 542, 544-546 [rational relationship]; People v. Silva

(1994) 27 Cal.App.4th 1160, 1168 [same]; People v. King (1992) 3 Cal.App.4th 882, 885

[same].) However, those cases holding there is a compelling interest no longer stand for

the proposition Frausto claims. As our Supreme Court held, the cases they relied on

should not be so broadly read as to require strict scrutiny "whenever one challenges upon

equal protection grounds a penal statute or statutes that authorize different sentences for

comparable crimes." (Wilkinson, supra, 33 Cal.4th at p. 837.) Since those cases were

decided, the Supreme Court has favorably cited In re Bender (1983) 149 Cal.App.3d 380

for the proposition that " 'punishment-lessening statutes given prospective application do

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not violate equal protection.' " (People v. Floyd (2003) 31 Cal.4th 179, 189, quoting

Bender, at p. 388.)

       Personal liberty is not at stake in cases of conduct credits as "section 4019 does

not alter the penalty for any crime; a prisoner who earns no conduct credits serves the full

sentence originally imposed. Instead of addressing punishment for past criminal conduct,

the statute addresses future conduct in a custodial setting by providing increased

incentives for good behavior." (Brown, supra, 54 Cal.4th at p. 325.) The proper test for

issues concerning conduct credits is rational basis review.

       Assuming the state adopted a classification that affected two or more similarly

situated groups in an unequal manner, the next step would be to determine whether those

classifications bear a rational relationship to a legitimate state purpose. The rational

relationship test is highly deferential. (People v. Turnage (2012) 55 Cal.4th 62, 77 ["[a]

classification is not arbitrary or irrational simply because there is an 'imperfect fit

between means and ends' "].) Under the rational relationship test, a statutory

classification is constitutionally sound if there are any reasonably conceivable facts that

could provide a rational basis for the classification. (People v. Hofsheier, supra, 37

Cal.4th at p. 1200.)

       Frausto asserts that because the purpose of both the Realignment Act and the

amendment to section 4019 was to address the state's fiscal emergency by more cost-

effectively managing prison populations, the arbitrary date of October 1, 2011, has no

legitimate or rational public purpose. However, all changes, additions or deletions to the

code must have a beginning date. Equal protection of the law "does not forbid statutes

                                              20
and statutory changes to have a beginning, and thus to discriminate between rights of an

earlier and later time." (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505;

see also People v. Floyd, supra, 31 Cal.4th at p. 188 ["[d]efendant has not cited a single

case, in this state or any other, that recognizes an equal protection violation arising from

the timing of the [operative] date of a statute lessening the punishment for a particular

offense"].)

       The stated goal of the Legislature is achieved by the amendment, as the fiscal

crisis is ameliorated to a degree by awarding additional conduct credits to those prisoners

who committed their crimes on or after October 1, 2011. Although awarding enhanced

credits retroactively would have produced greater cost savings, the Legislature did not

choose this approach. Nonetheless, the approach the Legislature did choose bears a

rational relationship to cost savings.

           "[T]he 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. To
           reward appellant with the enhanced credits of the 2011 amendment
           to section 4019, even for time he spent in custody after October 1,
           2011, weakens the deterrent effect of the law as it stood when
           appellant committed his crimes. We see 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."
           (People v. Kennedy, supra, 209 Cal.App.4th at p. 399.)

Although the amendment to section 4019 may result in the two classifications obtaining

different conduct credit totals, under the rational relationship test the Legislature is

permitted to "experiment individually with various therapeutic programs related to


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criminal charges or convictions" (In re Huffman (1986) 42 Cal.3d 552, 561), so as "to

control the risk of new legislation by limiting its application" (People v. Lynch (2012)

209 Cal.App.4th 353, 361) and determine what works and what does not. (Warden v.

State Bar (1999) 21 Cal.4th 628, 649 [reform measures can be implemented one step at a

time].) Because the deferential nature of the rational basis test does not afford us the

power to second guess the Legislature and determine the most effective manner to

achieve that legitimate state interest, we hold the classifications established in section

4019 bear a rational relationship to a legitimate state interest.

                                       DISPOSITION

       The judgment is affirmed in part, reversed in part and remanded. Accordingly, we

order that the gang-area condition (condition 12h) be modified to read as follows: "Do

not knowingly visit or remain in any specific location the probation officer informs you

and the court is an area of criminal-street-gang-related activity."




                                                                             McDONALD, J.

WE CONCUR:


McCONNELL, P. J.


BENKE, J.




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