Filed 1/30/14 P. v. Sands CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C073808

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F04461)

         v.

ARIC RAYMOND SANDS,

                   Defendant and Appellant.




         Appointed counsel for defendant Aric Raymond Sands has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has filed a supplemental
brief seeking additional credit. We shall affirm the judgment.
                                                 BACKGROUND
         On or around June 20, 2011, defendant drove a pickup truck without the owner’s
consent or permission. Defendant was charged with driving or taking of a motor vehicle


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(Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code,1 § 496d, subd.
(a)) with a prior strike and four prior prison term allegations (§§ 1170.12, 667.5, subd.
(b)).
        Defendant pleaded no contest to unlawful driving or taking of a motor vehicle and
admitted four prior prison terms, with the remaining charge and strike allegation
dismissed in the interests of justice. Pursuant to the plea agreement, defendant received a
sentence of eight years in state prison; the trial court stayed execution of the sentence and
placed defendant on five years of formal probation subject to various terms and
conditions including completing a residential drug treatment program.
        Defendant subsequently admitted to violating his probation by failing to
successfully complete the program. The trial court executed the eight-year term and
awarded 523 days of presentence credit (383 actual and 140 conduct). It subsequently
amended the award to 573 days (383 actual and 190 conduct) and again to reflect 48 days
spent in the program, for an award of 621 days (431 actual and 190 conduct).
        Defendant appeals. He did not obtain a certificate of probable cause.
                                       DISCUSSION
        Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant filed a supplemental brief contending he is
entitled to the application of a more favorable conduct credit formula under the principals
of equal protection. We disagree.
        “The essence of an equal protection claim is that two groups, similarly situated
with respect to the law in question, are treated differently. [Citations.]” (Grossmont
Union High School Dist. v. State Dept. of Education (2008) 169 Cal.App.4th 869, 892.)




1   Further undesignated statutory references are to the Penal Code.

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       In People v. Brown (2012) 54 Cal.4th 314, our Supreme Court held that 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 “prisoners whose custody
overlapped the statute’s operative date . . . earned credit at two different rates.” (Brown,
supra, at p. 322.) Brown 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.” (Id. at p. 328.)
       Following Brown’s lead, two appellate courts have concluded that persons who
commit crimes before and after the October 1, 2011, effective date of the new credit
formula are not similarly situated, and therefore those on the “wrong” side of the dateline
have not suffered an equal protection violation. (See People v. Ellis (2012) 207
Cal.App.4th 1546, 1550-1552 (Ellis); People v. Kennedy (2012) 209 Cal.App.4th 385,
396-397.)
       And although two other appellate courts have found the two groups to be similarly
situated, those courts have held that treating those two groups differently is subject to
rational-basis scrutiny--not “strict” scrutiny as defendant seeks to apply herein--and that
the disparate treatment caused by legislative line-drawing regarding accrual of
presentence credits survives such scrutiny. (See People v. Verba (2012) 210 Cal.App.4th
991, 995-997 (Verba); People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53-56
(Rajanayagam).)
       Like the Verba court: “We see nothing irrational or implausible in a legislative
conclusion that individuals should be punished in accordance with the sanctions and
given the rewards in effect at the time they committed their offense.” (Verba, supra,
210 Cal.App.4th at p. 997.) Accordingly, even if we found the two groups similarly



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situated, we would find a rational basis for the disparate treatment, and therefore
defendant has not established an equal protection violation in this case.
       Defendant adds that he is entitled to retroactive application of the amendment to
section 4019 under the rule of lenity. Under the rule of lenity, “California [courts] will
‘ “construe a penal statute as favorably to the defendant as its language and the
circumstances of its application may reasonably permit . . . .” ’ [Citation.]” (In re
Michael D. (2002) 100 Cal.App.4th 115, 125.) “However, application of the rule of
lenity is inappropriate unless, after consideration of the intent of the statute, the canons of
statutory construction, and an analysis of the legislative history, the statute is still
ambiguous.” (Ibid.)
       Section 4019, subdivision (h) provides: “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 [specified facilities] 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.” While the first sentence of subdivision (h) expresses the
Legislature’s intent that application of the enhanced conduct credits are limited to
defendants whose crimes are committed on or after October 1, 2011, the second sentence
of the subdivision arguably implies any days earned by a defendant on or after October 1,
2011, should be calculated at the rate required by the current law.
       Two appellate courts have addressed this ambiguity and interpreted section 4019,
subdivision (h) to give effect to both sentences, such that neither sentence will be
rendered inoperative, superfluous, void, or insignificant. In Ellis, the court concluded:
“In our view, the Legislature’s clear intent was to have the enhanced rate apply only to
those defendants who committed their crimes on or after October 1, 2011. [Citation.]
The second sentence does not extend the enhancement rate to any other group, but merely




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specifies the rate at which all others are to earn conduct credits. So read, the sentence is
not meaningless, especially in light of the fact the October 1, 2011, amendment to section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant’s crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced.” (Ellis, supra, 207 Cal.App.4th at p. 1553.)
       In Rajanayagam, the court concluded: “[W]e cannot read the second sentence 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, 211 Cal.App.4th
at p. 51.) The appellate court explained its reasoning: “[S]ubdivision (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
the Legislature’s clear intent in subdivision (h)’s first sentence.” (Id. at p. 52.)
       We agree with the reasoning of Ellis and Rajanayagam. Because the ambiguity
cited by defendant has been properly resolved by statutory construction of subdivision
(h), the rule of lenity is not applicable.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.




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                                 DISPOSITION
     The judgment is affirmed.



                                               DUARTE   , J.



We concur:



     BLEASE             , Acting P. J.



     NICHOLSON          , J.




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