Filed 7/25/13 P. v. Baca CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A136662
v.
THEODORE GUY BACA,                                                       (Alameda County
                                                                         Super. Ct. No. H51043)
         Defendant and Appellant.


         Defendant Theodore Guy Baca was confined to county jail as a condition of
probation and awarded conduct credit for time served in custody between his arrest and
disposition. (Pen. Code, § 4019.)1 Under the current statutory provision, which was in
effect at the time defendant was awarded credits, the rate at which conduct credits are
awarded is determined by the date a crime is committed with a higher rate applied to
crimes committed on or after October 1, 2011. (§ 4019, subd. (h); Stats. 2011-2012, 1st
Ex. Sess., ch. 12, § 35.) Defendant’s crime was committed before this date, making him
ineligible for enhanced credits. He contends that this disparate treatment violates
constitutional guarantees of equal protection and due process. (U.S. Const., 5th & 14th
Amends.) With some misgivings, we reject the contention and shall affirm the order.

                                        STATEMENT OF FACTS
         On July 22, 2011, defendant tried to purchase a motorcycle with a forged check.
He pleaded no contest to forgery (§ 470, subd. (d)) and admitted serving a prior prison

1
    All further section references are to the Penal Code except as noted.


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term (§ 667.5). In exchange for his plea, other charges were dismissed and defendant was
granted probation. Defendant was arrested a year later on suspicion of unlawfully taking
a motor vehicle (Veh. Code, § 10851) and charged with violating his probation.
Defendant admitted the probation violation and probation was reinstated on condition
that he serve nine months in county jail. Defendant was awarded custody credit of 27
days and conduct credit of 13 days for time served between his arrest on July 21, 2012,
and disposition on August 16, 2012.

                                      DISCUSSION
       Operative October 1, 2011, the Realignment Act amended section 4019 to enhance
the rate at which defendants may earn conduct credits from two days for every four days
in custody to two days for every two days in custody. (See People v. Rajanayagam
(2012) 211 Cal.App.4th 42, 48-49 [describing statutory amendments].) The Legislature
expressly stated that the amendment “shall apply prospectively” to inmates confined to
jail “for a crime committed on or after October 1, 2011.” (§ 4019, subd. (h).)
       Defendant claims the statutory amendment creates two groups of people similarly
situated yet disparately treated: (1) those jailed after October 1, 2011, for crimes
committed before that date; and (2) those jailed after October 1, 2011, for crimes
committed on or after that date. He contends the distinction lacks a rational basis because
the purpose of conduct credits is to encourage good behavior, which applies equally to all
inmates regardless of the date on which the underlying crime was committed. Defendant
maintains that “tying an inmate’s entitlement to pre-sentence conduct credits to the date
of his or her crime(s) rather than the dates the custody is served, bears no rational
relationship to the legislative object of encouraging good conduct by inmates” and, thus,
violates both equal protection and due process guarantees.
       “ ‘ “The constitutional guaranty of equal protection of the laws under the federal
and state Constitutions ‘ “compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.” ’
[Citation.] Where the statutory distinction at issue neither ‘touch[es] upon fundamental


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interests’ nor is based on gender, there is no equal protection violation ‘if the challenged
classification bears a rational relationship to a legitimate state purpose. [Citations.]’
[Citation.] That is, where there are plausible reasons for the classification, our inquiry
ends.” ’ [Citation.] Accordingly, to sustain an equal protection challenge . . . it must be
shown that the classification scheme is irrational.” (D.M. v. Department of Justice (2012)
209 Cal.App.4th 1439, 1450, fn. omitted.) A due process challenge faces a similar test.
(People v. Aguiar (1968) 257 Cal.App.2d 597, 602.)
       We agree with defendant that all persons in local custody after October 1, 2011,
are similarly situated for the purpose of determining conduct credits regardless of the
offense date. (People v. Rajanayagam, supra, 211 Cal.App.4th at pp. 53-54.) “Under the
equal protection clause, we do not inquire ‘whether persons are similarly situated for all
purposes, but “whether they are similarly situated for purposes of the law challenged.” ’ ”
(People v. Hofsheier (2006) 37 Cal.4th 1185, 1199-1200.)
       The difficult question is whether the Legislature’s distinction among defendants
based on the offense date bears a rational relationship to a legitimate state purpose. The
standard in making this determination is exceptionally deferential: “whether there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.” (People v. Rajanayagam, supra, 211 Cal.App.4th at p. 54; People v.
Hofsheier, supra, 37 Cal.4th at pp. 1200-1201.) Several courts have considered the
question and under this deferential standard have found legitimate reasons for the
distinction and upheld section 4019 against constitutional challenges. (People v.
Rajanayagam, supra, at pp. 52-56; People v. Verba (2012) 210 Cal.App.4th 991, 995-
997; People v. Kennedy (2012) 209 Cal.App.4th 385, 397-399.)
       Although other reasons have been given, the most common is based on the
pronouncement of the California Supreme Court that “ ‘[t]he Legislature may specify that
such statutes [lessening punishment for a criminal offense] are prospective only, to assure
that penal laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.’ ” (People v. Floyd (2003) 31 Cal.4th 179, 188.) Thus,
in Kennedy the court stated: “[T]he Legislature could rationally have believed that by


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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
October 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.)
       One may question how applying an increased good conduct credit against the
confinement period for past crimes can affect future deterrence. If one assumes that the
length of prescribed confinement affects the disposition to commit future crimes, it is the
prescription that will apply prospectively that will affect one’s conduct, not whether the
prescription was or was not applied to confinement for the commission of past crimes.
That is, adopting the somewhat unrealistic assumption that increased conduct credits
makes the commission of criminal acts more likely, it would seem that it is the
prospective award of increased credits against confinement for future crimes that reduces
the deterrent effect of punishment, not the fact that increased conduct credit has been
awarded to those confined for crimes already committed. Nonetheless, given that this
rationale has its roots in the holding of our Supreme Court, which we are bound to follow
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450) and thus far has been
adopted by all appellate courts that have considered the question, we shall, with
reservations, follow these precedents in concluding that defendant’s constitutional rights
to equal protection and due process were not violated.




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                              DISPOSITION
     The order is affirmed.




                                       _________________________
                                       Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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