Filed 5/17/13 P. v. Johnson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                         D061792

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD227468
                                                                                  & SCD235413)
HAROLD ERNEST JOHNSON,

         Defendant and Appellant.


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

O'Neill, Judge. Affirmed, and remanded with directions.



         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Steve Oetting, Laura A. Glennon, Deputy Attorneys General for the

Plaintiff and Respondent.
       The San Diego County District Attorney filed two indictments against Harold

Ernest Johnson (Super. Ct. San Diego County, 2012, Nos. SCD227468 & SCD 235413),

each charging him with selling cocaine base, and possession/purchase of cocaine base for

sale (Health & Saf. Code, § 11352, subd. (a); count 1) and selling/furnishing a controlled

narcotic substance (Health & Saf. Code, § 11351.5; count 2.) The People also alleged in

each indictment, as an enhancement to count 1, that he sold cocaine base (Pen. Code,1

§ 123.073, subd. (b)(7)), and he had suffered several previous convictions for drug-

related offenses. Johnson pleaded guilty to all counts in both indictments.

       The court sentenced Johnson to eight years four months in prison, imposed a $240

restitution fine (§ 1202.4, subd. (b)) and stayed the $240 parole revocation fine

(§ 1202.45). The court awarded Johnson custody credits of 205 actual days and 102

conduct credits under section 4019.

       On appeal, Johnson contends (1) the trial court violated the ex post facto clauses

of the state and federal Constitutions in imposing the $240 restitution fine and the $240

parole revocation fine; (2) he is entitled to additional conduct credits under an

amendment to section 4019 and constitutional guarantees of equal protection; and (3) the

case should be remanded for clarification of his initial confinement date. We affirm the

judgment, but remand for the limited purpose of clarifying Johnson's initial confinement

date and determining custody credits.




1      All statutory references are to the Penal Code unless otherwise specified.
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                                     BACKGROUND

       We omit a detailed recitation of the facts because this appeal involves only

sentencing issues. It suffices to say that, on May 5 and May 6, 2011, Johnson possessed

and sold cocaine base to an undercover officer.

                                       DISCUSSION

                                              I.

       Johnson contends the court violated the ex post facto provisions of the state and

federal Constitutions when it imposed both the restitution and parole revocation fines in

the amount of $240 each instead of $200 each, which was the prescribed minimum under

section 1202.4, subdivision (b) at the time he committed the offenses.

       Johnson forfeited his claim by failing to challenge imposition of the fines at trial.

(People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gamache (2010) 48 Cal.4th 347,

409.) During the pendency of this appeal, the California Supreme Court ruled in an

analogous case, whose logic applies equally here, that "a defendant who does nothing to

put at issue the propriety of imposition of a booking fee forfeits the right to challenge the

sufficiency of the evidence to support imposition of the booking fee on appeal, in the

same way that a defendant who goes to trial forfeits his challenge to the propriety of

venue by not timely challenging it." (People v. McCullough (Cal. April 22, 2013,

No. S192513) 2013 Cal. LEXIS 3330.)

       To avoid an ineffective assistance of counsel challenge, we nevertheless address

the claim on the merits, and conclude it fails. When Johnson committed the offenses in

May 2011, the minimum restitution fine was $200, and the maximum was $10,000 under

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section 1202.4, subdivision (b). This statute was amended effective January 1, 2012,

increasing the minimum fine to $240. We conclude the sentencing court did not violate

the constitutional prohibitions against ex post facto laws because the $240 fine it imposed

is well within the statutory range in effect at the time the crimes were committed.

                                              II.

       Johnson contends that under the most recent amendment to section 4019, he was

entitled to receive additional conduct credits in an amount equal to his actual credit ("day

for day credit"), despite the fact that his crimes were committed before the amendment's

effective date: October 1, 2011. He argues constitutional principles of equal protection

apply for two reasons: "(1) defendants serving time in prison after October 1, 2011,

receive day for day custody credits; and (2) defendants who committed crimes after

October 1, 2011, receive day for day credits for time spent in county jail and [he] is

similarly situated to those individuals for purpose of awarding custody credits." We

disagree.

       "Pursuant to the October 1, 2011, amendment . . . subdivision (h) of section 4019

presently states: 'The changes to this section . . . 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. Any days earned by a prisoner prior to October 1, 2011, shall be

calculated at the rate required by the prior law.' " (People v. Ellis (2012) 207 Cal.App.4th

1546, 1549-1550 (Ellis).) Since the Legislature has expressly stated that this latest

amendment applies prospectively only, "the October 1, 2011, amendment does not apply

retroactively as a matter of statutory construction." (Ellis, at p. 1550.)

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       "The concept of equal protection recognizes that persons who are similarly

situated with respect to a law's legitimate purposes must be treated equally." (People v.

Brown (2012) 54 Cal.4th 314, 328 (Brown) [addressing the amendment to section 4019

that became operative on January 25, 2010].) To succeed on a claim under the equal

protection clause, Johnson 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.) 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.

       In Brown, the California Supreme Court held that under general rules of statutory

construction, a prior amendment to section 4019 must be read prospectively only, even

though the Legislature did not expressly so state, and even though this meant that

"prisoners whose custody overlapped the statute's operative date . . . earned credit at two

different rates." (Brown, supra, 54 Cal.4th at p. 322.) The court reasoned that "the

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, at pp. 328-329; see People v. Lara (2012) 54

Cal.4th 896, 906, fn. 9.)



                                             5
       Three appellate courts, relying on Brown's reasoning, have rejected the equal

protection argument Johnson raises as to the October 1, 2011, amendment to section

4019. (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.) We

agree with these cases. Johnson recognizes we are bound by Brown under the authority

of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, but he raises this

claim to "preserve his right to request the Supreme Court to reconsider [Brown] and to

pursue any federal remedies available to him." We conclude equal protection principles

do not require us to apply the current version of section 4019 to Johnson and he is not

entitled to additional presentence conduct credits.

       Finally, California courts have consistently rejected the argument that the

difference in the potential award of conduct credits to pretrial detainees and prison

inmates violates equal protection. (See In re Martinez (2003) 30 Cal.4th 29, 36; People

v. Buckhalter (2001) 26 Cal.4th 20, 36-37; People v. Heard (1993) 18 Cal.App.4th 1025,

1030; People v. Johnson (2004) 32 Cal.4th 260, 268.) "A pretrial detainee is not

similarly situated to a state prison inmate." (In re Martinez, at p. 36.) As the California

Supreme Court has explained, the "pre- and postsentence credit systems serve disparate

goals and target persons who are not similarly situated. The presentence credit scheme,

section 4019, focuses primarily on encouraging minimal cooperation and good behavior

by persons temporarily detained in local custody before they are convicted, sentenced,

and committed on felony charges. By contrast, the worktime credit scheme for persons

serving prison terms emphasizes penological considerations, including the extent to

                                             6
which certain classes of prisoners, but not others, deserve or might benefit from

incentives to shorten their terms through participation in rehabilitative work, education,

and training programs operated by the Department of Corrections." (Buckhalter, at

pp. 36-37; In re Martinez, at p. 35.) To survive an equal protection challenge of the

nature presented here, a classification need only bear a rational relationship to a

legitimate state purpose. Where there are plausible reasons for a classification, our

inquiry is at an end. (People v. Hofsheier, supra, 37 Cal.4th at pp. 1200-1201; People v.

Jeha (2010) 187 Cal.App.4th 1063, 1074.) Such is the case here.

                                             III.

       The People concede and we agree the record is unclear as to which date Johnson

was arrested, and thus when he began accruing custody credits. A February 10, 2012

probation report states Johnson was confined on June 16, 2011. However, an August 31,

2012 supplemental probation report states his confinement started on July 28, 2011. We

remand for the trial court to verify and correct this discrepancy and calculate the custody

credits.




                                              7
                                      DISPOSITION

       The judgment is affirmed. The matter is remanded for the trial court to verify

Johnson's initial confinement date and calculate custody credits accordingly, amend the

abstract of judgment to reflect the calculation, and forward a certified copy of the

amended abstract of judgment to the Department of Corrections and Rehabilitation.



                                                                             O'ROURKE, J.

WE CONCUR:


HALLER, Acting P. J.


McDONALD, J.




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