Filed 9/18/13 P. v. Moore CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F064794

         Plaintiff and Respondent,                                            (Super. Ct. No. BF134548A)

                   v.                                                                    OPINION
KEITH ANTHONY MOORE,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael B.
Lewis, Judge.
         Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo- 


*        Before Levy, Acting P.J., Gomes, J., and Detjen, J.
       Defendant, Keith Anthony Moore, challenges the total amount of conduct credits
that he was awarded for time spent in county jail prior to commencement of his prison
sentence. Defendant asserts that changes to Penal Code section 40191 permitting
additional custody credits which occurred after his offense and while he was in local
custody should apply to him and failure to do so violates the equal protection clauses of
the Constitutions of California and the United States. We find no error and affirm the trial
court’s judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged in an information filed on February 1, 2011, with corporal
injury to his child’s parent, a felony (§ 273.5, subd. (a), count 1), feloniously making a
criminal threat (§ 422, count 2), and felony evasion of a peace officer (Veh. Code,
§ 2800.2, count 3). The information further alleged two prior serious felony convictions
within the meaning of the three strikes law and a prior prison term enhancement. The
offenses allegedly occurred on November 13, 2010.
       On January 13, 2012, defendant entered into a plea agreement and executed a
felony advisement of rights, waiver, and plea form. In the plea form and at the change of
plea hearing, defendant acknowledged the consequences of his plea, waived his rights
under Boykin/Tahl,2 and plead no contest to count 3, and admitted the two prior serious
felony allegations. The prosecutor agreed to dismiss the remaining allegations in
exchange for a stipulated prison sentence of six years. The court exercised its discretion
under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one of the prior
serious felony allegations.



1      All further statutory references are to the Penal Code unless otherwise indicated.
2      Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.


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       Defendant was arrested and remained in custody until he was sentenced on March
1, 2012. The court sentenced defendant to the upper term of three years, which was
doubled to six years pursuant to the three strikes law. The court further imposed various
fines, fees, and penalties. Pursuant to section 4019, in effect at the time of his arrest,
defendant was given presentence custody credits of 459 days and conduct credits at the
rate of two days for every four days of actual confinement, or 228 days.3 Defendant
received total custody credits of 687 days.
       On appeal, defendant contends the current version of section 4019, properly
interpreted, entitles him to two days of presentence conduct credits for every two-day
period of confinement and to interpret it otherwise violates his equal protection rights.
                                       DISCUSSION
Statutory Construction
       The interpretation of a statute and the determination of its constitutionality are
questions of law. In analyzing these questions appellate courts apply a de novo standard
of review. (Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1120.)
       Section 4019 governs credit to be given to a defendant convicted of a felony for
time spent in county jail “from the date of arrest to the date on which the serving of the
sentence commences .…” (§ 4019, subd. (a)(1).) Prior to January 25, 2010, presentence
conduct credits under section 4019 accrued at a rate of two days for every four days of
actual time served in presentence custody. (People v. Kennedy (2012) 209 Cal.App.4th
385, 395 (Kennedy); Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019, subd. (f)].) An
amendment effective from January 25, 2010, to September 28, 2010, increased the rate,


3      Under the formula applied to defendant, the actual number of custody days are
divided by four, the remainder if any is dropped, and the resulting whole number quotient
is multiplied by two to obtain the number of conduct credits. (People v. Culp (2002) 100
Cal.App.4th 1278, 1283.)


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so that custody credits accrued at a rate of two days of credit for every two days actually
served.4 (Kennedy, supra, 209 Cal.App.4th at p. 395; Stats. 2009, 3d Ex. Sess. 2009–
2010, ch. 28, §§ 50, 62.)
        The Legislature amended section 4019 again in September 2010 with Senate Bill
No. 76 (SB 76) that made changes to sections 4019 and 2933. These changes restored the
original version of section 4019, granting presentence custody credits at a rate of two
days for every four days of actual time in custody. (§ 4019, subd. (f), effective
September 28, 2010, through September 30, 2011.) The applicability of SB 76 was
expressly prospective.
        By amendments that became operative on October 1, 2011, the Legislature
enacted the current version of the statute, under which two days of conduct credit may be
earned for each two days of actual custody. (§ 4019, subds. (b), (c); People v. Verba
(2012) 210 Cal.App.4th 991, 993 (Verba); Kennedy, supra, 209 Cal.App.4th at pp. 395-
396.)
        The current version of the statute provides that it applies prospectively, “to
prisoners who are confined to a county jail … for a crime committed on or after
October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, (hereafter the
October 1, 2011, amendment) shall be calculated at the rate required by the prior law.”
(§ 4019, subd. (h).) The former sentence expressly makes the amended statute applicable
when the crime was committed on or after October 1, 2011. Although the latter sentence
is less clearly expressed, we interpret it to mean that conduct credit for other prisoners is
governed by prior law.


4      For those defendants required to register as sex offenders, those committed for
serious felonies (as defined in § 1192.7), and those who had prior convictions for violent
or serious felonies, however, two days of conduct credit were earned for every four days
spent in actual custody. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.)


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       In People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis), we held the October 1,
2011, amendment applies only to eligible prisoners whose crimes were committed on or
after that date, and such prospective-only application neither runs afoul of rules of
statutory construction nor violates principles of equal protection. (Ellis, supra, at
p. 1548.) In reaching that conclusion, we relied heavily on People v. Brown (2012) 54
Cal.4th 314 (Brown), in which the California Supreme Court held the amendment to
section 4019 that became effective January 25, 2010 (hereafter the January 25, 2010,
amendment) applied prospectively only. (Brown, supra, at p. 318; Ellis, supra, at
p. 1550.)
       Brown first examined rules of statutory construction. It observed that “[w]hether a
statute operates prospectively or retroactively is, at least in the first instance, a matter of
legislative intent.” (Brown, supra, 54 Cal.4th at p. 319.) Where the Legislature’s intent
is unclear, Civil Code section 3 and cases construing its provisions require prospective-
only application, unless it is “‘very clear from extrinsic sources’” that the Legislature
intended retroactive application. (Brown, supra, at p. 319.) The high court found no
cause to apply the January 25, 2010, amendment retroactively as a matter of statutory
construction. (Id. at pp. 320-322.)
       Brown also examined In re Estrada (1965) 63 Cal.2d 740 (Estrada), which held
that when the Legislature amends a statute to reduce punishment for a particular criminal
offense, courts will assume, absent evidence to the contrary, the Legislature intended the
amended statute to apply to all defendants whose judgments are not yet final on the
statute’s operative date. (Brown, supra, 54 Cal.4th at p. 323; Estrada, supra, at pp. 742-
748.) Brown concluded Estrada did not apply; former section 4019, as amended
effective January 25, 2010, did not alter the penalty for any particular crime. (Brown,
supra, at pp. 323-325, 328.) Rather than addressing punishment for past criminal



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conduct, Brown explained, section 4019 “addresses future conduct in a custodial setting
by providing increased incentives for good behavior.” (Brown, supra, at p. 325.)
       In Ellis, we determined Brown’s reasoning and conclusions apply equally to
current section 4019. Accordingly, we held the October 1, 2011, amendment does not
apply retroactively as a matter of statutory construction or pursuant to Estrada. (Ellis,
supra, 207 Cal.App.4th at pp. 1550, 1551.)
Equal Protection
       In Ellis, we next turned to the equal protection issue. (Ellis, supra, 207
Cal.App.4th at p. 1551.) In that regard, Brown held prospective-only application of the
January 25, 2010, amendment did not violate either the federal or the state Constitution.
(Brown, supra, 54 Cal.4th at p. 328.) Brown explained:

              “The concept of equal protection recognizes that persons who are
       similarly situated with respect to a law’s legitimate purposes must be
       treated equally. [Citation.] Accordingly, ‘“[t]he first prerequisite to a
       meritorious claim under the equal protection clause is a showing that the
       state has adopted a classification that affects two or more similarly situated
       groups in an unequal manner.”’ [Citation.] ‘This initial inquiry is not
       whether persons are similarly situated for all purposes, but “whether they
       are similarly situated for purposes of the law challenged.”’ [Citation.]

              “… [T]he important correctional purposes of a statute authorizing
       incentives for good behavior [citation] are not served by rewarding
       prisoners who served time before the incentives took effect and thus 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,
       second italics added.)
       The state high court rejected the argument that its decision in People v. Sage
(1980) 26 Cal.3d 498 compelled a contrary conclusion, declining to read that case as
authority for more than it expressly held, namely that authorizing presentence conduct
credit for misdemeanants who later served their sentences in county jail, but not for
felons who ultimately were sentenced to state prison, violated equal protection. (Brown,

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supra, 54 Cal.4th at pp. 329-330; see People v. Sage, supra, 26 Cal.3d at p. 508.) It
further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d
542, a case that, because it dealt with a statute granting credit for time served, not good
conduct, was distinguishable. (Brown, supra, at p. 330.)
       Once again, we found no reason in Ellis why “Brown’s conclusions and holding
with respect to the January 25, 2010, amendment should not apply with equal force to the
October 1, 2011, amendment. [Citation.]” (Ellis, supra, 207 Cal.App.4th at p. 1552.)
Accordingly, we reject defendant’s equal protection argument.
       Ellis is dispositive of defendant’s claim of entitlement to enhanced credits.
Defendant’s presentence credits were properly calculated.5
                                      DISPOSITION
       The judgment is affirmed.




5      In contrast to our Ellis case, the court in People v. Rajanayagam (2012) 211
Cal.App.4th 42 (Rajanayagam) found that inmates in defendant’s position were similarly
situated to inmates who committed their offenses on or after the effective date of the
amended statute. The court in Rajanayagam then analyzed the second prong of equal
protection, whether there is a rational basis for the Legislature’s disparate treatment of
similarly situated inmates. Rajanayagam concluded that there was a rational basis for
similarly situated inmates to be treated differently. (Id. at pp. 53-56.) Although our
opinion in Ellis is contrary to the Rajanayagam court’s holding that all inmates are
similarly situated regardless of when they offended and were placed in local custody, we
agree with that court’s conclusion that the Legislature had a rational basis for enacting the
October 1, 2011, amendment and would also reject defendant’s equal protection
argument under the second prong of equal protection analysis.


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