Filed 8/27/13 P. v. Hermosillo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037917
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1070962)

         v.

JOSE HORACE HERMOSILLO,

         Defendant and Appellant.


         Defendant Jose Horace Hermosillo entered a negotiated plea of guilty to three
counts related to a burglary and vandalism of a vehicle committed in November 2010, six
counts related to a burglary of Valley Medical Center committed in March 2010, and one
count of false application for a driver’s license committed in January 2008. And, after a
court trial, the trial court found true an allegation for purposes of the Three Strikes law
and nine prior-prison-term allegations for purposes of sentence enhancements. It
sentenced defendant to 13 years and eight months in prison. On appeal, defendant
contends that (1) the trial court erred by sentencing him to a term in excess of the plea
bargain, (2) his 16-month consecutive sentence for vandalism constitutes improper
multiple punishment (Pen. Code, § 654),1 (3) he received ineffective assistance of
counsel because his counsel failed to object to the consecutive sentence for vandalism,
and (4) he is entitled to additional presentence custody credits via retroactive application


         1
             Further unspecified statutory references are to the Penal Code.
of the October 2011 amendment to section 4019, which facially applies to defendants
who committed their crimes after October 1, 2011. We disagree and affirm the judgment.
                                       BACKGROUND
       Defendant’s counsel announced the terms of the plea bargain as follows: “Your
Honor, he is going to plead . . . to everything and admit the priors conditionally. [¶] We
are going to have a court trial on that at some point. And he’ll waive his right to a jury
trial as to that. [¶] . . . [¶] And for that he’s going to receive a top of eight years, eight
months. [¶] . . . [¶] Also, he’s going to be out of custody on bond for 90 days but with the
proviso with a Cruz[2] waiver he has to show up here every 30 days. And the Court will
continue it again. But the Court wants to have some handle on him and not just out of
custody for the 90 days without the Court having some control on him. [¶] . . . [¶] And
we’ve agreed that the two counts on the ID impersonating somebody, and also the perjury
are [section] 654 which gives him a maximum 22 years, four months.”
       The trial court then asked defendant whether he understood the proposed
disposition, and defendant responded “I do.” The trial court thereafter specified: “Now,
you need to understand if you fail to appear at sentencing or at any of these 30-day
periods that I set, the plea bargain will not be in effect. And I will be able to impose any
sentence authorized by law.” To this, defendant replied, “I understand.” The trial court
then obtained waivers of defendant’s constitutional rights and accepted defendant’s guilty
pleas. It ordered defendant to appear in 30 days for a court trial and sentencing. And it
reminded defendant that “the maximum term you could get in this case under the pleas
that you’ve entered is 22 years and four months.” To this, defendant replied, “I
understand.”



       2
         People v. Cruz (1988) 44 Cal.3d 1247, 1250 (waiver of right to withdraw plea if
trial court imposes sentence in excess of plea-bargained sentence) (Cruz).


                                                2
       Defendant failed to appear as ordered, the trial court issued a bench warrant, and
defendant was apprehended. At a court trial on the prior-conviction allegations, the trial
court found the allegations true.
       At sentencing, defendant’s counsel acknowledged that defendant had failed to
appear as ordered but offered that he had “medical records” that defendant “was--went
down to be treated” to show “the court that he was in custody at that time.” He asked the
trial court to “be lenient in this case” and “grant the eight-year four-month that he pled
to.” The People replied that defendant was “a one-man crime wave” who had been
released on a Cruz waiver over the People’s objection and not only failed to appear but
also “picked up a new case in the meantime.” They noted that the probation department
was recommending 16 years and eight months. Defendant then apologized for missing
the court date and explained: “I didn’t handle the stress well and I reverted to drug use
and had a relapse. [¶] My life spun out of control very quickly. I was in a state of
oblivion. And I missed the court date all together. I was down at Valley Medical being
treated for a prostate issue. I didn’t realize I had missed court until the bail bondsman
showed up at my home to arrest me. I realize that addiction is the core for every legal
problem. And I realize I need help. I failed the court in my commitment. I failed my
family. And also I failed myself. And I am truly sorry for the bad choices I have made
up to this point.”
       The trial court explained as follows: “In 2009 you apparently had the opportunity
of a lifetime when Judge Brock struck your priors and sentenced you to 16 months on
three different cases which had a total of 11 counts. And within six months of that
sentence you were committing these offenses. [¶] So while you--you have a drug
problem, clearly there has to have been at some point during the past 36 years when
you’ve been using drugs, that you could have taken some positive steps towards
overcoming that drug use. And you haven’t done that. [¶] And, consequently, I think
that--[¶] And, in addition, I want to point out when you were out of custody on the VMC

                                              3
cases you then committed the burglary of the automobile case. So you had your chances
and you just haven’t ever taken advantage of them. And I’m sorry that you haven’t. But
I think that the sentence that I have indicated to counsel of three [sic] years, eight months
is appropriate. [¶] So under--at this time--the court will deny probation. [¶] And the
defendant will be committed to the California Department of Corrections and
Rehabilitation for 13 years and eight months.”
                       TERM EXCEEDING THE PLEA BARGAIN
       “Under section 1192.5, if a plea agreement is accepted by the prosecution and
approved by the court, the defendant ‘cannot be sentenced on the plea to a punishment
more severe than that specified in the plea.’ ” (People v. Masloski (2001) 25 Cal.4th
1212, 1217.) The statute further provides that, if the trial court approves a plea bargain, it
must inform the defendant before the plea that its approval is not binding, that the court
may withdraw its approval in light of further consideration and that, if it does, “ ‘the
defendant shall be permitted to withdraw his or her plea if he or she desires to do so. . . .’
” (Cruz, supra, 44 Cal.3d at p. 1250, italics omitted.)
       In Cruz, the defendant pleaded guilty pursuant to an agreement which provided
that he would receive the lower term of imprisonment or probation with local custody, at
his option. The trial court, however, did not admonish him in accordance with section
1192.5. The defendant failed to appear for sentencing. When he eventually appeared for
sentencing, the trial court rejected his attempt to withdraw his guilty plea and sentenced
him to the middle term of imprisonment. The Court of Appeal affirmed the judgment,
but the Supreme Court reversed, holding that “[t]he imposition of an additional or
enhanced sentence for a separately charged offense without the benefit of a trial on that
charge, and in the absence of a knowing and intelligent waiver, is clearly offensive to the
principles of due process.” (Cruz, supra, 44 Cal.3d at p. 1253.) In reaching this
conclusion, the court rejected the idea that failing to appear breached an implied term of
the plea bargain that relieved the trial court of the restrictions of section 1192.5. Such

                                              4
failure to appear is, rather, a separate offense that may be punished in a separate
proceeding.
       The court in Cruz also stated, however, that a defendant, under specified
circumstances, could give up the protections of section 1192.5: “We do not mean to
imply . . . that a defendant fully advised of his or her rights under section 1192.5 may not
expressly waive those rights, such that if the defendant willfully fails to appear for
sentencing the trial court may withdraw its approval of the defendant’s plea and impose a
sentence in excess of the bargained-for term. Any such waiver, of course, would have to
be obtained at the time of the trial court’s initial acceptance of the plea, and it must be
knowing and intelligent.” (Cruz, supra, 44 Cal.3d at p. 1254, fn. 5.)
       Such a waiver is commonly called a “Cruz waiver.” (See People v. Masloski,
supra, 25 Cal.4th at p. 1222; People v. Vargas (2007) 148 Cal.App.4th 644, 646.)
       Defendant contends that the trial court erred by imposing a sentence greater than
that agreed upon in the plea agreement. He initially describes the supposed error as the
trial court’s failure to (1) give him the admonitions required by section 1192.5, and (2)
elicit from him a knowing and intelligent Cruz waiver. But we agree with the People that
defendant’s failure to obtain a certificate of probable cause is fatal to his attempt to
challenge the sufficiency of the section 1192.5 admonitions and Cruz waiver.
       “A defendant who has pleaded guilty or nolo contendere to a charge in the
superior court, and who seeks to take an appeal from a judgment of conviction entered
thereon” must fully comply with section 1237.5 and rule 8.304(b) of the California Rules
of Court, which require that the defendant secure a certificate of probable cause in order
to challenge the validity of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1088.)
In the absence of full compliance and a certificate of probable cause, the reviewing court
may not reach the merits of any issue challenging the validity of the plea, but must order
dismissal of the appeal. (Id. at p. 1099.) The California Supreme Court has expressly



                                               5
disapproved the practice of applying the rule loosely in order to reach issues that would
otherwise be precluded. (Id. at pp. 1098-1099.)
       In determining whether section 1237.5 applies to a challenge of a sentence
imposed after a plea of guilty or no contest, we must look to the substance of the appeal.
The crucial issue is what the defendant is challenging, not the time or manner in which
the challenge is made. Therefore, we focus on whether the defendant’s challenge to the
sentence is in substance a challenge to the validity of the plea, thus rendering the appeal
subject to the requirements of section 1237.5. (People v. Buttram (2003) 30 Cal.4th 773,
781-782.)
       Here, defendant’s plea bargain unquestionably included a Cruz waiver. But
whether defendant received adequate statutory warnings concerning his plea bargain and
gave a knowing and intelligent Cruz-waiver are questions that go to the validity of the
proceedings in which the plea was taken, not any issue that arose after entry of the plea.
These questions are within the scope of section 1237.5 and require a certificate of
probable cause before they may be raised on appeal. (Cf. People v. Panizzon (1996) 13
Cal.4th 68, 76, fn. 6 [inadequate admonishment regarding waiver of appellate rights in
plea agreement subject to § 1237.5].) Since defendant did not obtain the requisite
certificate of probable cause, we will not consider the questions.
       Defendant, however, also describes the supposed error as a violation of Cruz
because his failure to appear was not willful. In essence, this aspect of defendant’s
challenge accepts the validity of the plea agreement and his Cruz waiver but contests the
evidence justifying a sentence in excess of the plea bargain sentence.
       A certificate of probable cause is not required where a defendant does not
challenge the original validity of the plea but asserts that errors were committed in
proceedings subsequent to the plea for the purpose of determining the penalty to be
imposed. (People v. Kaanehe (1977) 19 Cal.3d 1, 8.)
       On the merits, however, defendant cannot prevail.

                                             6
       In analogous bail forfeiture cases, a defendant’s failure to appear “is
presumptively without sufficient excuse.” (People v. Beverly Bail Bonds (1982) 134
Cal.App.3d 906, 911.) It was therefore defendant’s burden to prove that his failure to
appear was not willful. (Id. at pp. 911-913.)
       “We generally apply the familiar substantial evidence test when the sufficiency of
the evidence is at issue on appeal. Under this test, ‘ “we are bound by the established
rules of appellate review that all factual matters will be viewed most favorably to the
prevailing party [citations] and in support of the judgment . . . . ‘In brief, the appellate
court ordinarily looks only at the evidence supporting the successful party, and
disregards the contrary showing.’ [Citation.] All conflicts, therefore, must be resolved
in favor of the respondent.” ’ [Citation.]
       “But this test is typically implicated when a defendant contends that the plaintiff
succeeded at trial in spite of insufficient evidence. In the case where the trier of fact has
expressly or implicitly concluded that the party with the burden of proof did not carry the
burden and that party appeals, it is misleading to characterize the failure-of-proof issue as
whether substantial evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1) the evidence supporting
the party who had no burden of proof, and (2) the trier of fact’s unassailable conclusion
that the party with the burden did not prove one or more elements of the case (Oldenburg
v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733, 742 [trier of fact is the exclusive
judge of the credibility of the evidence and can reject evidence as unworthy of credence];
Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [trial court is entitled to reject in toto the
testimony of a witness, even if that testimony is uncontradicted]).
       “Thus, where the issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a

                                                7
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-
1528.)
         Here, the case is the ordinary one posing evidentiary conflicts. Defendant had the
burden to prove that his failure to appear was not willful. The trial court concluded that
plaintiff failed to carry this burden. That is the end of our inquiry. We decline
defendant’s invitation to address whether he “did not intend to miss the trial on the priors
. . . because he was being treated for a medical condition.” It is not our function to retry
the case.
                                 MULTIPLE PUNISHMENT
         The evidence as to count 9 (automobile burglary) and count 10 (automobile
vandalism) was as follows: defendant walked up to the victim’s vehicle, cut a hole in the
convertible top, and reached inside; defendant then walked to the other side of the
vehicle, cut another hole in the top, and reached inside; defendant then left the scene
when a witness began walking in his direction; the witness left the area to look for the
car’s owner; when he returned with the owner, he saw defendant with his arm inside the
vehicle.
         In arriving at defendant’s sentence, the trial court imposed a sentence of one year
and four months for the automobile burglary and, consecutive to that term, one year and
four months for vandalism of the vehicle.
         Defendant contends that his consecutive sentence for vandalism should have been
stayed under section 654 because the burglary and vandalism “were part of an indivisible
transaction involving the intent to steal.” We disagree with defendant’s analysis.
         Section 654 provides in part, “(a) An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. . . .”

                                               8
       “[I]t is well settled that section 654 applies not only where there was but one act in
the ordinary sense, but also where there was a course of conduct which violated more
than one statute but nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the intent and objective of the
actor.” (People v. Perez (1979) 23 Cal.3d 545, 551.) If all the offenses were incident to
one objective, the defendant may not be punished for more than one, e.g., a defendant
who attempts murder by setting fire to the victim’s bedroom could not be punished for
both arson and attempted murder, because his primary objective was to kill, and the arson
was the means of accomplishing that objective and thus merely incidental to it. (Ibid.)
“On the other hand, if the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely incidental to each other,
he may be punished for the independent violations committed in pursuit of each objective
even though the violations were parts of an otherwise indivisible course of conduct.”
(Ibid.) For example, the objectives to drive while intoxicated and to drive with a
suspended license were separately punishable, though they occurred simultaneously. (Id.
at p. 552.) The purpose of the protection against multiple punishment is to insure that the
defendant’s punishment will be commensurate with his criminal culpability. (Id. at p.
552, fn. 4.)
       “A trial court’s implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is supported by substantial
evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
       Here, the trial court specifically found that the burglary and vandalism were
divisible: “Count nine--pardon me--is the burglary of the automobile. I am finding that
that was a separate occasion from count 10. The [vandalism] of the automobile at the
time of the [offense] [was] when the convertible top was initially cut into. That will be
the [vandalism]. The defendant did try to find property in there. He was observed by a
witness. [¶] He left the area when the witness came back with the owner of the car. They

                                             9
found the defendant again with his hand inside the ripped convertible top, so I believe
that is the separate--that makes the [burglary] a separate occasion. [¶] And I will impose
16 months consecutive on count nine. [¶] 16 months consecutive on count 10.”
       The evidence supports that defendant cut into the convertible top on one occasion,
left the scene, returned on another occasion, and put his hand inside the vehicle.
Defendant’s point that there was a single objective to steal is simply a view of the
evidence at odds with the evidence supporting the judgment.
                      INEFFECTIVE ASSISTANCE OF COUNSEL
       When a defendant is sentenced on multiple felony counts under the Three Strikes
law because he or she has previously been convicted of one or more serious or violent
felony offenses, the trial court must impose consecutive sentences for all the current
convictions that were committed on the same occasion and arose from the same set of
operative facts. (§§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).) The trial court
retains discretion to impose either concurrent or consecutive sentences for crimes
committed on the same occasion or arising from the same set of operative facts. (§§ 667,
subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).)
       Defendant contends that he received ineffective assistance of counsel because his
trial counsel failed to object to the trial court’s imposition of the consecutive sentence for
count 10. According to defendant, the trial court’s “stated grounds for imposing
consecutive sentences . . . indicate that it believed” that a mandatory consecutive sentence
was compelled but that its articulated reason for imposing a consecutive sentence (the
burglary and vandalism were separate occasions) indicates that a consecutive sentence
was not mandatory. Defendant concludes that, had trial counsel objected to the
consecutive sentence on the ground that a consecutive sentence was discretionary, the
trial court would have exercised its discretion to impose a concurrent sentence for count
10. There is no merit to defendant’s contention.



                                                  10
         “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.) But the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S.
1, 8.)
         “To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696.) ‘When a defendant on appeal makes a claim
that his counsel was ineffective, the appellate court must consider whether the record
contains any explanation for the challenged aspects of representation provided by
counsel. “If the record sheds no light on why counsel acted or failed to act in the manner
challenged, ‘unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ [citation], the contention must
be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
         Defendant bears a burden that is difficult to carry on direct appeal. (People v.
Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make
every effort to avoid the distorting effects of hindsight and to evaluate the challenged
conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561;
Strickland v. Washington, supra, 466 U.S. at p. 689.) In evaluating whether trial
counsel’s representation was deficient “we accord great deference to the tactical
decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling

                                              11
vigorous advocacy by tempting counsel “to defend himself [or herself] against a claim of
ineffective assistance after trial rather than to defend his [or her] client against criminal
charges at trial.” ’ ” (In re Fields (1990) 51 Cal.3d 1063, 1069.) A court must indulge a
strong presumption that counsel’s acts were within the wide range of reasonable
professional assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart
(1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of
speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246
Cal.App.2d 343, 356.) As to failure to object in particular, “[a]n attorney may choose not
to object for many reasons, and the failure to object rarely establishes ineffectiveness of
counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) This is the case especially when
trial counsel might reasonably have concluded that an objection would be futile. (People
v. Price (1991) 1 Cal.4th 324, 387.)
       There is ample reason why trial counsel may have concluded that objecting to
imposition of the consecutive sentence was futile.
       Most obviously, the trial court nowhere explicitly states that it was imposing a
mandatory consecutive sentence. Contrary to defendant’s premise, it is ambiguous
whether the trial court imposed a mandatory or discretionary consecutive sentence. In the
context of the trial court’s articulated desire to impose a consecutive sentence, trial
counsel could have interpreted the separate-occasion statements as reflective of the trial
court’s belief that defendant’s vandalism offense was worthy of a consecutive sentence,3
not that a consecutive sentence was mandatory. Given that the trial court did not address
the second, independent requirement for a mandatory consecutive sentence (separate
operative facts), we presume that the trial court imposed a discretionary consecutive


       3
         Under California Rules of Court, rule 4.425, criteria affecting the discretion to
sentence consecutively or concurrently include whether the crimes were committed at
different times.


                                              12
sentence. (People v. Jacobo (1991) 230 Cal.App.3d 1416, 1430 [an appellate court
presumes that the trial court knew and applied the correct statutory and case law]; cf.
People v. Alvarez (1996) 49 Cal.App.4th 679, 695 [an appellate court will not conclude
that the trial court misunderstood the scope of its sentencing discretion “in the absence of
some affirmative showing that it misunderstood its discretion”].) Objection was therefore
futile.
          In any event, had trial counsel believed that the trial court was erroneously
imposing a mandatory consecutive sentence, counsel could nevertheless have reasonably
refrained from objecting after concluding that, upon objection, the trial court would likely
(1) overrule the objection and clarify that it was imposing a discretionary consecutive
sentence, or (2) sustain the objection and impose a discretionary consecutive sentence by
reiterating its already-expressed separate-occasion justification. (Ante, fn. 3.)
          Defendant simply fails to affirmatively demonstrate ineffective assistance of
counsel.
                            PRESENTENCE CUSTODY CREDITS
          Defendants who committed their crimes on or after October 1, 2011, are eligible
for presentence conduct credits calculated on the basis of two days of conduct credit for
every two days of actual custody. (§ 4019, subds. (b), (c) & (f).) Defendants who
committed their crimes before October 1, 2011, are eligible for conduct credits at the
previous rate of two days for every four days in custody. (Id. subd. (h).)
          Notwithstanding the express legislative intent that the changes to section 4019,
operative October 1, 2011 (hereafter the October 2011 amendment), are to have
prospective application only--i.e., to crimes committed on or after the effective date of
the statute--defendant contends that the October 2011 amendment to section 4019
violates the equal protection clauses of the federal and California Constitutions if it is not
applied retroactively because it treats a defendant who committed a crime before October
1, 2011, differently than if he or she committed the same crime after the statute’s

                                               13
effective date. Defendant cites In re Kapperman (1974) 11 Cal.3d 542, 544-545
(Kapperman) and People v. Sage (1980) 26 Cal.3d 498, 507-508 in support of his equal
protection argument. He seeks an additional 178 days of presentence credit.
       To succeed on an equal protection claim, “a defendant must first show that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.” (People v. Kennedy (2012) 209 Cal.App.4th 385, 396 (Kennedy).)
       In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court
expressly determined that neither Kapperman nor Sage supports an equal protection
argument, at least insofar as conduct credits are concerned. (Id. at pp. 329-330.) In
rejecting an inmate’s argument that January 2010 amendments to section 4019 should
apply retroactively, the court explained “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, supra, at pp.
328-329.)
       Addressing the inmate’s equal protection claims, the court distinguished
Kapperman on the grounds that it addressed custody credits, rather than conduct credits.
(Brown, supra, 54 Cal.4th at p. 330.) Conduct credits must be earned by a defendant,
whereas custody credits are constitutionally required and awarded automatically on the
basis of time served. “Credit for time served is given without regard to behavior, and
thus does not entail the paradoxical consequences of applying retroactively a statute
intended to create incentives for good behavior. Kapperman does not hold or suggest
that prisoners serving time before and after the effective date of a statute authorizing
conduct credits are similarly situated.” (Ibid.)
       Concerning Sage, the court acknowledged that “one practical effect of [that
decision] was to extend presentence conduct credits retroactively to detainees who did

                                             14
not expect to receive them, and whose good behavior therefore could not have been
motivated by the prospect of receiving them.” (Brown, supra, 54 Cal.4th at p. 329.)
However, it declined to read Sage as implicitly holding that prisoners serving time before
and after a conduct credit statute takes effect are similarly situated for purposes of equal
protection, because that proposition was not considered in the case. (Ibid.)
       Defendant’s reliance on People v. Frye (1966) 221 N.E.2d 262 (Frye), cited in a
footnote in Kapperman, supra, 11 Cal.3d at page 547, footnote 6, is also erroneous. This
Illinois case, similar to Kapperman, dealt with actual custody, and not the presentence
conduct credits that we are concerned with here. Moreover, the date that was considered
potentially arbitrary or fortuitous in the equal protection analysis was the date of
conviction, a date out of a defendant’s control, and not the date on which the crime was
committed. (Frye, supra, at pp. 264-265.)
       The Brown court finally resolved the equal protection issue by concluding that,
“equal protection does not require former section 4019 to be applied retroactively.”
(Brown, supra, 54 Cal.4th at p. 330.)
       Although the Brown decision concerned the January 2010 version of section 4019,
we recently held that there is no reason why the reasoning and holding in Brown cannot
be extended to the October 2011 amendment to section 4019. (Kennedy, supra, 209
Cal.App.4th at pp. 396-397; accord, People v. Ellis (2012) 207 Cal.App.4th 1546, 1552.)
       Moreover, in observing that the October 2011 amendment to section 4019 has
prospective application only, the Brown court noted that the defendant had filed a
supplemental brief in which he contended that he was entitled to retroactive presentence
conduct credits under the 2011 amendment. It then observed that the amendment did not
assist the defendant because the “changes to presentence credits expressly ‘apply
prospectively . . . to prisoners who are confined to a county jail [or other local facility] for
a crime committed on or after October 1, 2011.’ [Citation.] Defendant committed his



                                              15
offense in 2006.” (Brown, supra, 54 Cal.4th at p. 323, fn. 11.) Similarly, here, defendant
committed his offenses in 2008 and 2010.
      The right to equal protection does not prevent the Legislature from limiting the
increased level of presentence conduct credits to detainees who committed their crimes
on or after October 1, 2011. We therefore reject defendant’s equal protection challenge
to the October 2011 amendment of section 4019.
      Alternatively, defendant seeks an additional 75 days of presentence custody credit
(from October 1, 2011, until his sentencing on January 13, 2012) on the theory that the
October 2011 amendment applies to prisoners confined after October 1, 2011, for crimes
committed before October 1, 2011. But he cites no authority for the proposition.
                                     DISPOSITION
      The judgment is affirmed.




                                                             Premo, J.


      WE CONCUR:




             Rushing, P.J.




             Elia, J.




                                           16
