Filed 9/25/13 P. v. Alvarado CA4/1

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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



THE PEOPLE,                                                         D062347

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD237395)

DANIEL ALVARADO,

         Defendant and Appellant.



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

Laura W. Halgren, Judge. Affirmed.

         Kristine M. Watkins, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
      Daniel Alvarado pleaded guilty to grand theft of personal property.1 (Pen.

Code,2§ 487, subd. (a).) The court found Alvarado had a strike prior conviction for

assault with a deadly weapon. (§ 245, subd. (a)(2).)

      The court sentenced him to prison for four years, and awarded him 254 days of

actual custody credit and 126 days of conduct credit, for a total of 380 days of

presentence custody credit.

      Alvarado appeals, contending the statutory construction of section 4019 and

principles of equal protection entitle him to an additional 128 days conduct credit.

We conclude the enhanced conduct credit provision of section 4019 applies only to

defendants who committed their crimes on or after October 1, 2011. Further, we

conclude section 4019 does not violate principles of equal protection. Accordingly,

we affirm the judgment.




1     Alvarado was charged with various crimes that occurred between December
2008 and April 2011. The grand theft of personal property occurred on December 2,
2008, and Alvarado was not in custody until November 8, 2011.

2     Statutory references are to the Penal Code unless otherwise specified.
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                                    DISCUSSION3

                                                I

                                 STANDARD OF REVIEW

      Alvarado's claim to additional conduct credits involves issues of statutory

interpretation and constitutionality--pure questions of law--and we apply a de novo

standard of review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801.) Thus, we

exercise our independent judgment without deference to the trial court's ruling. (Ibid.)

                                                II

                                   CONDUCT CREDITS

      Alvarado contends he is entitled to increased presentence conduct credits for

the time he was in presentence custody after October 1, 2011. He further contends

that the second sentence of section 4019, subdivision (h) adds ambiguity to the statute

because it fails to explain how to calculate conduct credits for a third group of

defendants: those who committed a crime before October 1, 2011, but served

presentence custody on or after October 1, 2011. We disagree.

      A defendant is entitled to accrue both actual presentence custody credits under

section 2900.5 and conduct credits under section 4019 for the period of incarceration

before sentencing. Conduct credits may be earned under section 4019 by performing




3     Because the facts of the underlying offense are not relevant to the issues in this
appeal, we omit the traditional statement of facts.
                                            3
additional labor (§ 4019, subd. (b)) and by an inmate's good behavior. (§ 4019,

subd. (c).)

       Section 4019 has been amended a number of times. Historically, the statute

entitled defendants to "one-for-two conduct credits, which is two days for every four

days of actual time served in presentence custody." (People v. Rajanayagam (2012)

211 Cal.App.4th 42, 48 (Rajanayagam).) Operative October 1, 2011, section 4019

was amended to provide a formula of four days' credit for every two days served.

(§ 4019, subd. (f); Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, §§ 35, 46;

Rajanayagam, supra, at p. 49.) Alvarado committed the crime on December 2, 2008,

before the effective date of this amendment. However, he was in presentence custody

from November 8, 2011 to July 18, 2012, after the effective date of this amendment.

       The first sentence of section 4019, subdivision (h) states: "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 . . . for a crime committed on

or after October 1, 2011."4 This sentence is clear and straightforward. Because the

changes to the statute are prospective and Alvarado committed his crime before

October 1, 2011, he is not entitled to conduct credit at the enhanced rate.




4      As part of the Realignment Act, the Legislature amended section 4019 to
enhance the rate at which defendants could earn presentence conduct credits. (§ 4019,
subd. (f), as amended by Stats. 2011, ch. 15, § 482.) The Legislature added
subdivision (h) to section 4019 to clarify that the changes to conduct credits apply to
offenses committed on or after October 1, 2011.
                                            4
       The second sentence of section 4019, subdivision (h) provides: "Any days

earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required

by the prior law." Arguably, this sentence implies any days earned by a defendant

after October 1, 2011, are to be calculated at the rate required by the current law,

without regard for when the offense was committed.

       However, reading the second sentence in this manner renders the first sentence

meaningless, and ignores the first sentence's express direction that the amendment is

to apply prospectively. "A statute is passed as a whole and not in parts or sections and

is animated by one general purpose and intent. Consequently, each part or section

should be construed in connection with every other part or section so as to produce a

harmonious whole." (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260,

1268.) Alvarado's proffered interpretation would "defy the Legislature's clear intent

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

construction." (Rajanayagam, supra, 211 Cal.App.4th at p. 52.)

       This interpretation is not unique. "[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 defendants who committed an offense before

                                             5
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." (Rajanayagam, supra, 211 Cal.App.4th at

p. 52; see also People v. Ellis (2012) 207 Cal.App.4th 1546, 1553 (Ellis).) Because

Alvarado committed his crime before October 1, 2011, amended section 4019's

enhanced conduct credit calculation does not apply. Therefore, the court properly

calculated Alvarado's conduct credits under the prior law. (§ 4019, subds. (f), (h).)

                                                III

                                   EQUAL PROTECTION

      Alvarado next argues that were section 4019 interpreted to apply only to crimes

committed on or after October 1, 2011, it would violate equal protection principles.

We disagree.

      The first inquiry in an equal protection claim is whether the state has adopted a

classification that applies different treatment to two or more groups that are similarly

situated for purposes of the challenged law. (People v. Hofsheier (2006) 37 Cal.4th

1185, 1199.) 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, 2011, having

committed the same offense before October 1, 2011.



                                            6
      In the context of section 4019 credits, courts are split on whether the two

classes of incarcerated inmates are similarly situated. Three appellate courts have

held the two classes of incarcerated inmates are not similarly situated in that they are

not similarly encouraged to alter their behavior because the plain language of section

4019, subdivision (h) makes clear the new credit calculation rate applies only to

individuals who committed a crime on or after October 1, 2011. (Ellis, supra, 207

Cal.App.4th at pp. 1551-1553; People v. Garcia (2012) 209 Cal.App.4th 530, 541;

People v. Kennedy (2012) 209 Cal.App.4th 385, 395-399.) Two other appellate courts

have held the current version of section 4019 creates a classification that affects two

similarly situated groups in an unequal manner. (See People v. Verba (2012) 210

Cal.App.4th 991, 995-996 (Verba); Rajanayagam, supra, 211 Cal.App.4th at p. 53.)

      We agree with Alvarado that the two groups of incarcerated inmates are

similarly situated and are treated differently with respect to section 4019, subdivision

(h). Defendants who committed offenses and earned conduct credit before October 1,

2011, are treated more harshly than those who committed the same crimes and earned

conduct credit on or after October 1, 2011. "The two groups are similarly situated in

the sense that they committed the same offenses but are treated differently in terms of

earning conduct credit based solely on the dates their crimes were committed. For

purposes of receiving conduct credit, nothing distinguishes the status of a prisoner

whose crime was committed after October 1, 2011, from one whose crime was

committed before that date." (Verba, supra, 210 Cal.App.4th at pp. 995-996.)

                                            7
       Although unequal treatment exists, Alvarado must also show there is no

rational basis for applying amended section 4019, subdivision (h) only to those crimes

committed on or after October 1, 2011. Assuming the state had 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 Legislature's stated purpose for

passing the Realignment Act was "to reduce recidivism and improve public safety,

while at the same time reducing corrections and related criminal justice spending."

(People v. Cruz (2012) 207 Cal.App.4th 664, 679; § 17.5.) We conclude that the

classification regarding conduct credits is rationally related to the Legislature's stated

goal of cost savings. The effective date of the Realignment Act was a" legislative

determination that its stated goal of reducing corrections costs was best served by

granting enhanced conduct credits to those defendants who committed their offenses

on or after October 1, 2011." (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) While

the same goal could have been met by awarding additional conduct credits to

defendants in Alvarado's position, the Legislature is entitled to establish an effective

date for statutory amendments and "to discriminate between rights of an earlier and

later time." (Ibid.)

       "Under the very deferential rational relationship test, we will not second-guess

the Legislature and conclude its stated purpose is better served by increasing the

group of defendants who are entitled to enhanced conduct credits when the

                                             8
Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced

conduct credit to only those defendants who committed their offenses on or after

October 1, 2011." (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) We agree with

the decisions in Rajanayagam and Ellis, supra, 207 Cal.App.4th 1546, that the

enhanced conduct credits established in amended section 4019, subdivision (h) do not

apply to crimes committed before October 1, 2011, and this classification is not a

violation of equal protection. Consequently, Alvarado is not entitled to additional

presentence conduct credits.

                                    DISPOSITION

      The judgment is affirmed.




                                                                        HUFFMAN, J.

WE CONCUR:



             McCONNELL, P. J.


                McDONALD, J.




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