Filed 5/9/13 P. v. Lopez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H037735 & H038136
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS101249)

             v.

ENRIQUE ARGUETA LOPEZ,

         Defendant and Appellant.



         Defendant Enrique Argueta Lopez appeals a judgment of conviction following his
plea of guilty to two counts of possession of stolen rifles (Pen. Code, § 12020,
subd. (a)(1)),1 and admission that one of those counts was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)).
         Defendant was awarded 385 days of total custody credit, consisting of 257 days of
actual credit, and 128 days of conduct credit. On appeal he asserts he is entitled to an
additional 128 conduct credits pursuant to the October 1, 2011 amendments to section
4019.




         1
             All statutory references are to the Penal Code.
                                 STATEMENT OF THE CASE2
       H037735
       In May 2010, defendant was charged with four counts of possession of stolen
rifles (§ 12020, subd. (a)(1)), six counts of receiving or concealing stolen property (§ 496,
subd. (a)), and one count of making a false police report (§ 148.3). The information also
contained an allegation that defendant committed one count of possession of stolen rifles
and one count of receiving or concealing stolen property for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)).
       In June 2010, defendant pleaded guilty to two counts of possession of stolen rifles
(§ 12020, subd. (a)(1)), and admitted one of the gang allegations, in exchange for an
agreement that he would be granted probation, and would be ordered to serve 180 days in
jail. The remaining charges and the gang allegation were dismissed pursuant to the plea
agreement.
       During the period between August 2010, and August 2011, the district attorney
brought four separate petitions alleging defendant violated his probation. Defendant
admitted all the violations.
       On November 1, 2011, defendant was sentenced to five years in state prison. The
court awarded defendant 385 days of total custody credit, consisting of 257 days of actual
credit, and 128 days of conduct credit.
       In December 2011, defendant filed a notice of appeal.
       H038126
       On March 20, 2012, defendant brought a motion in the trial court requesting an
additional 128 custody credits pursuant to a retroactive application of the October 2011



       2
           The underlying facts are omitted because they are not relevant to the issues on
appeal.
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amendments to section 4019. The court denied the motion, and defendant filed a notice
of appeal.
       On May 3, 2012, defendant moved to consolidate H037735 and H038126 for
appeal. This court denied the motion, but ordered the cases would be considered together
for briefing, oral argument, and disposition.
                                        DISCUSSION
       Defendant raises two arguments on appeal to support his contention that he is
entitled to additional conduct credits under the amendments to section 4019. First, he
asserts “a harmonized construction of the conflicting language in the October 1, 2011
amendment” to section 4019 requires a one-for-one calculation of conduct credits.
Defendant’s actual custody credit in this case was 257 days, 225 days served before
October 1, 2011, and 32 days served after October 1, 2011. Defendant argues that
pursuant to dicta in this court’s opinion in People v. Olague (2012) 205 Cal.App.4th 1126
(Olague) (review granted Aug. 8, 2012, S203298), he is statutorily entitled to the
increased credits provided in the 2011 amendment for the 32 days he spent in custody on
and after October 1, 2011.
       We reject this argument as we did in People v. Kennedy (2012) 209 Cal.App.4th
385, 395-396 (Kennedy). “The Supreme Court has granted review in Olague (review
granted Aug. 8, 2012, S203298). An opinion is no longer considered published if the
Supreme Court grants review (Cal. Rules of Court, rule 8.1105(e)(1)) and may not be
relied on or cited. (Cal. Rules of Court, rule 8.1115(a).)” (Id. at p. 400.)
       Defendant’s second argument on appeal is that federal and state equal protection
principles require that the more favorable conduct credit scheme set forth in the
amendment to section 4019 effective October 1, 2011, be applied to him notwithstanding
that he committed the crimes prior to October 1, 2011.



                                                3
        The current version of section 4019 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).) However, as defendant acknowledges, the current version of
section 4019 states that the conduct credit rate “shall apply prospectively and shall apply
to prisoners who are confined to a county jail [or other local facility] 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 crimes in April 2010, prior to the
amendment that went into effect on October 1, 2011. Defendant was sentenced on
November 1, 2011. Thus the October 2011 version of section 4019, which provides for
prospective application, does not apply to defendant. (§ 4019, subd. (h); People v. Brown
(2012) 54 Cal.4th 314, 322, fn. 11 (Brown); Kennedy, supra, 209 Cal.App.4th at pp. 395-
396.)
        In Kennedy, we were faced with an equal protection challenge to the prospective
application of the 2011 amendment similar to the one raised by defendant in this case.
Relying on Brown, supra, 54 Cal.4th 314, we concluded that applying the 2011
amendment to section 4019 (with its one-for-one conduct credit formula) prospectively to
persons who committed crimes on or after October 1, 2011, did not violate principles of
equal protection. We explained that “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. [Citation.]” (Kennedy, supra, 209
Cal.App.4th at p. 396.) We concluded that defendants who committed crimes before
October 1, 2011, and defendants who committed crimes on or after October 1, 2011, are
not similarly situated for purposes of earning presentence conduct credits. (Id. at
pp. 396-397; accord, People v. Ellis (2012) 207 Cal.App.4th 1546, 1551-1552 ( review

                                              4
den. Oct. 31, 2012, S205334.)
       We noted in Kennedy that “[a]lthough the Supreme Court in Brown was concerned
with the January 2010 amendment to section 4019 (Brown, supra, 54 Cal.4th at p. 318),
the reasoning of Brown applies with equal force to the prospective-only application of the
current [October 1, 2011] version of section 4019.” (Kennedy, supra, 209 Cal.App.4th at
pp. 396-397.) And we then explained that “[i]n rejecting the defendant’s argument that
the January 2010 amendments to section 4019 should apply retroactively, the California
Supreme 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.’ [Citation.]” (Id. at p. 397.) In
accordance with our decision in Kennedy, we again conclude that defendants who
committed crimes before October 1, 2011, and defendants who committed crimes on or
after October 1, 2011, are not similarly situated for purposes of earning presentence
conduct credits.
       Defendant’s reliance on In re Kapperman (1974) 11 Cal.3d. 542, is misplaced. As
we held in Kennedy, relying on the Supreme Court’s reasoning in Brown, supra, 54
Cal.4th at page 326: “In Kapperman, the Supreme Court reviewed a provision (then new
Penal Code § 2900.5) that made actual custody credits prospective, applying only to
persons delivered to the Department of Corrections after the effective date of the
legislation. [Citation] The court concluded that this limitation violated equal protection
because there was no legitimate purpose to be served by excluding those already
sentenced, and extended the benefits retroactively to those improperly excluded by the
Legislature. [Citation].” (Kennedy, supra, 209 Cal.App.4th at p. 396.) Accordingly,
“Kapperman is distinguishable from the instant case because it addressed actual custody

                                              5
credits, not conduct credits. Conduct credits must be earned by a defendant, whereas
custody credits are constitutionally required and awarded automatically on the basis of
time served.” (Ibid.)
      We reject defendant’s equal protection challenge to the prospective application of
the October 1, 2011 amendment to section 4019. Defendant, who pleaded guilty to
crimes he committed was convicted of a burglary committed in April 2010, is not entitled
to one-for-one presentence conduct credit under the 2011 amendment, because that
amendment is expressly applicable only to defendants who commit crimes on or after
October 1, 2011.
                                         DISPOSITION
      In H037735, the judgment is affirmed.
      In H038126, the order appealed from is affirmed.


                                         ______________________________________
                                                    RUSHING, P.J.



WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA J.




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