Filed 5/30/13 P. v. Hale 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H037877
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1079349)

         v.

JAMES A. HALE,

         Defendant and Appellant.


                                                INTRODUCTION
         In September 2011, defendant James A. Hale pleaded guilty to second degree
burglary (Pen. Code, §§ 459, 460, subd. (b)),1 fraudulent use of an access card (§§ 484g,
subd. (a), 487), possessing a forged driver’s license (§ 470b), using personal identifying
information without authorization (§ 530.5, subd. (a)), false personation (§ 529), and
misdemeanor falsely identifying himself to a peace officer (§ 148.9). The offenses took
place on or about June 8, 2010. Defendant also admitted that he had a prior strike
(§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5,
subd. (b)). In December 2011, the trial court denied defendant’s Romero motion2 and
sentenced him to prison for six years. The court granted defendant 835 days of custody
credits, consisting of 557 actual days plus 278 days conduct credit.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
       On appeal, defendant contends that he is entitled to additional presentence conduct
credit pursuant to the version of section 4019 operative October 1, 2011. For reasons that
we will explain, we will affirm the judgment.
                                    BACKGROUND
       In 2010, defendant was charged by information with second degree burglary
(§§ 459, 460, subd. (b); count 1), fraudulent use of an access card (§§ 484g, subd. (a),
487; count 2), possessing a forged driver’s license (§ 470b; count 3), using personal
identifying information without authorization (§ 530.5, subd. (a); count 4), false
personation (§ 529; count 5), and misdemeanor falsely identifying himself to a peace
officer (§ 148.9; count 6). The offenses allegedly took place on or about June 8, 2010.
The information further alleged that defendant had a prior strike (§§ 667, subds. (b)-(i),
1170.12) and had served five prior prison terms (§ 667.5, subd. (b)).
       In September 2011, defendant pleaded guilty to all counts and admitted the prior
strike allegation and four prior prison term allegations. The remaining prior prison term
allegation was stricken on motion of the People. Defendant entered his pleas and
admissions with the understanding that he would receive a “six year sentence top” and
that he could bring a Romero motion.
       Defendant thereafter filed a Romero motion, requesting that the trial court strike
his strike. The People filed opposition to the motion. On December 16, 2011, the court
denied the motion and sentenced defendant to prison for six years. The sentence consists
of four years (double the middle term) on count 1, and concurrent terms of four years
(double the middle term) each on counts 2 through 4, plus consecutive terms of one year
each for two prison priors. The court stayed the term on count 5 pursuant to section 654,
and struck the punishment for the two remaining prison priors. The court granted
defendant 835 days of custody credits, consisting of 557 actual days plus 278 days
conduct credit. Regarding count 6, the court imposed a one-year jail term, which was
deemed satisfied by credit for time served.

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       Defendant filed multiple notices of appeal from the judgment. While the appeal
was pending, defendant filed a motion in the trial court seeking additional presentence
conduct credit. The People filed opposition to the motion. The court denied the motion
without prejudice, believing the court lacked jurisdiction due to the pending appeal.
       Defendant thereafter filed a “renewed” motion in the trial court seeking additional
presentence conduct credit. The People filed opposition to the motion. In October 2012,
the court denied the motion, stating that the court did not have jurisdiction to rule on the
motion and that, even if the court did, defendant was not entitled to additional
presentence custody credits. Defendant filed a notice of appeal from the court’s order.
                                      DISCUSSION
       Defendant was in presentence custody before and after the operative date of the
current version of section 4019. For his time in presentence custody during the latter
time period, defendant contends that the trial court should have used the current version
of section 4019 to calculate his conduct credit. Under that version, defendant argues that
he is entitled to an additional 38 days conduct credit.
       The Attorney General contends that defendant is not entitled to any additional
conduct credit.
       The current version of section 4019 became operative on October 1, 2011.
(People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1550 (Ellis).) This version generally
provides that a defendant may earn conduct credit at a rate of two days for every two-day
period of actual custody. (§ 4019, subds. (b), (c) & (f).) Unlike some prior versions of
the statutes addressing conduct credit, the current version of section 4019 does not
exclude a defendant with a current serious felony conviction, or a prior serious or violent
felony conviction, from the specified conduct credit rate. (See Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28, § 50, eff. Jan. 25, 2010 [former section 4019, subds. (b)(2) & (c)(2)];
Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010 [former section 2933, subd. (e)(3)]; People v.
Lara (2012) 54 Cal.4th 896, 899, 906, fn. 9.) However, the current version of

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section 4019 states: “The changes to this section [regarding two-for-two credits]
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. Any days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.” (§ 4019, subd. (h).)
       In this case, defendant committed his offenses on or about June 8, 2010, prior to
the October 1, 2011 operative date of the current version of section 4019. Defendant
acknowledges that his conduct credit was “correctly calculated” under prior law for his
time in actual custody from the date of arrest to September 30, 2011. However, for his
time in actual custody on and after October 1, 2011, he contends that the October 2011
version of section 4019 should be used to calculate his conduct credit. In other words, his
conduct credit should be calculated using two different rates.
       In support of his argument that the October 2011 version of section 4019 should
be used to calculate a portion of his conduct credit, defendant quotes part of the following
language from People v. Brown (2012) 54 Cal.4th 314 (Brown), which addressed a prior
amendment to section 4019 operative January 25, 2010: “To apply former section 4019
prospectively necessarily means that prisoners whose custody overlapped the statute’s
operative date (Jan. 25, 2010) earned credit at two different rates.” (Brown, supra, at
p. 322.) Defendant contends that, although the Brown court’s statement did not pertain to
the October 2011 version of section 4019, “there is no reason why the same analysis
would not apply.” Defendant’s reliance on Brown is unpersuasive. As explained in
People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam): “Brown, supra, 54
Cal.4th at page 322, includes language that supports the conclusion the Supreme Court
approved earning conduct credits at two different rates and thus the date when a
defendant committed an offense is not dispositive. But in Brown the Legislature did not
expressly declare whether the January 25, 2010, amendment was to apply retroactively or
prospectively. (Id. at p. 320.) Here, the Legislature did expressly state the current

                                              4
version of section 4019 is to apply prospectively only to defendants who commit their
offenses on or after October 1, 2011.” (Rajanayagam, supra, at p. 52, fn. 4.)
       Defendant also relies on the following language in subdivision (h) of section 4019
to support his argument that the current version should be used to calculate his conduct
credit for time in actual custody on and after October 1, 2011: “The changes to this
section [regarding two-for-two credits] 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. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” (Id., subd. (h).) According to defendant, “[t]his second sentence is significant
because, if the first sentence intended to limit the statute’s application to only those
inmates whose crimes occurred after October 1, 2011, then the second sentence would
not be necessary,” and a statute should be construed to avoid rendering portions of it
superfluous.
       In support of this argument in his opening brief, defendant relied on dicta from
this court’s decision in People v. Olague (2012) 205 Cal.App.4th 1126, review granted
August 8, 2012, S203298, review dismissed and cause remanded March 20, 2013. As the
California Supreme Court granted review and ultimately dismissed review, the opinion
may no longer be relied on or cited. (People v. Kennedy (2012) 209 Cal.App.4th 385,
400 (Kennedy); Cal. Rules of Court, rules 8.1105(e)(1), 8.528(b)(3), 8.1115(a).)
       In his reply brief, defendant acknowledges that his statutory interpretation
argument was rejected in Ellis, supra, 207 Cal.App.4th 1546 and in Rajanayagam, supra,
211 Cal.App.4th 42. He contends that both cases were wrongly decided.
       In Ellis, the appellate court held that the October 1, 2011 version of section 4019
“applies only to eligible prisoners whose crimes were committed on or after that date.”
(Ellis, supra, 207 Cal.App.4th at p. 1548.) The Ellis court held that because the
Legislature specified that the amendment applied “prospectively” (§ 4019, subd. (h)), its

                                              5
“clear intent was to have the enhanced rate apply only to those defendants who
committed their crimes on or after October 1, 2011. [Citation.]” (Ellis, supra, at
p. 1553.) The Ellis court declined to find that the second sentence of section 4019,
subdivision (h) extends “the enhanced rate to any other group.” (Ellis, supra, at p. 1553.)
Rather, that sentence “merely specifies the rate at which all others are to earn conduct
credits.” (Ibid.)
       In Rajanayagam, a different appellate court similarly concluded that the conduct
credit rate provided by the October 2011 version of section 4019 “applies only to those
defendants who committed their crimes on or after October 1, 2011.” (Rajanayagam,
supra, 211 Cal.App.4th at p. 52.) The Rajanayagam court determined that the “plain
language” of the first sentence of section 4019, subdivision (h) “leads unmistakably to the
conclusion” that the October 2011 version of section 4019 does not apply to a defendant
whose crime was committed prior to October 1, 2011. (Rajanayagam, supra, at p. 51.)
Further, the second sentence of section 4019, subdivision (h) “cannot [be] read . . . to
imply any days earned by a defendant after October 1, 2011, shall be calculated at the
enhanced conduct credit rate for an offense committed before October 1, 2011, because
that would render the first sentence superfluous.” (Rajanayagam, supra, at p. 51.)
Construing each sentence “ ‘ “to produce a harmonious whole,” ’ ” the Rajanayagam
court reasoned that “[s]ubdivision (h)’s second sentence does not extend the enhanced
conduct credit provision to any other group . . . . Instead, subdivision (h)’s second
sentence attempts to clarify that those defendants who committed an offense before
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. [Citation.] To imply the enhanced conduct credit provision
applies to defendants who committed their crimes before the effective date but served
time in local custody after the effective date reads too much into the statute and ignores

                                             6
the Legislature’s clear intent in subdivision (h)’s first sentence.” (Id. at p. 52, fn.
omitted.)
       This court’s decision in Kennedy, supra, 209 Cal.App.4th 385 is in accord with the
decisions in Ellis and Rajanayagam regarding the statutory interpretation of section 4019.
(Kennedy, supra, at p. 399 [“according to the explicit language of the statute, the 2011
amendment to Penal Code section 4019 applies only to crimes that were ‘committed on
or after October 1, 2011’ ”].) As we are not persuaded by defendant’s argument that Ellis
and Rajanayagam were wrongly decided in this regard, we determine that the
October 2011 version of section 4019 applies only to those defendants whose crimes
were committed on or after October 1, 2011. Because defendant committed his crimes
prior to that date, we conclude that he is not entitled to additional conduct credit under
the October 2011 version of section 4019.




                                               7
                                  DISPOSITION
     The judgment is affirmed.




                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




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