Filed 1/22/14 P. v. Patterson 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.



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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C071346

                   Plaintiff and Respondent,                                   (Super. Ct. No. P11CRF0133)

         v.

JOSEPH ANTONE PATTERSON,

                   Defendant and Appellant.




         Defendant Joseph Antone Patterson pleaded guilty to first degree burglary (Pen.
Code, § 459; statutory references that follow are to the Penal Code), five counts of receipt
of stolen property (§ 496, subd. (a)), felon in possession of a firearm (§ 12021, subd. (a))
and admitted two prior prison term allegations (§ 667.5, subd. (b)). The trial court
imposed a stipulated term of 10 years in state prison and awarded 387 days of
presentence credit, consisting of 259 actual days and 128 days of conduct credit. The




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trial court subsequently rejected two pro per motions from defendant seeking additional
presentence credits.
       On appeal, defendant contends he is entitled to additional conduct credits as a
matter of equal protection because similarly situated defendants who post bail are entitled
to earn conduct credits at a higher rate in state prison and because the trial court did not
retroactively apply the conduct credit provisions of the Criminal Justice Realignment Act
of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482). We affirm the judgment.

                                        DISCUSSION

       We will forego a discussion of the facts of defendant’s crimes as they are
unnecessary to resolve this appeal.
       Defendant committed his crimes in February and March 2011. Under the law in
effect at the time, defendant, who was convicted of first degree burglary, a serious felony
(§1192.7, subd. (c)(18)), was entitled to earn two days of conduct credit for every four
days of presentence custody. (Former §§ 2933, 4019 (Stats. 2010, ch. 426).)
       Defendant contends that “[d]ue to the most recent changes to credits calculations
in the Code, effective October 1, 2011, appellant will receive day for day credits for the
time he spends in prison. (§ 2933, subd. (b).)” According to defendant, had he been freed
on bail, “he could receive 257 days of conduct credits for the 257 days he instead spent in
jail because he could not post bail, and therefore ea[r]ned only 128 days of conduct
credits.” Defendant claims the conduct credit provisions applying to state prison (§ 2933)
and presentence custody (§ 4019) serve the same purpose, “to encourage good behavior
of those in custody.” This, he concludes violates equal protection as there is no rational
basis for the disparate treatment of defendants who can and cannot make bail.
       As we understand defendant’s argument, had he been able to make bail, he would
not have begun his period of incarceration until the date of sentencing, that is,
November 28, 2011. From that time forward he will receive day for day credits,


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effectively reducing his time in incarceration in half. But, since he was not able to post
bail, he was incarcerated for 257 days more than his sentenced time, for which he will
only receive 128 days credit. Put simply, because he was not able to post bail, he will
have to serve his sentence in prison plus 128 days, unlike a presentence detainee who was
able to post bail.
       “ ‘The equal protection guarantees of the Fourteenth Amendment and the
California Constitution are substantially equivalent and analyzed in a similar fashion.
[Citations.]’ [Citation.] We first ask whether the two classes are similarly situated with
respect to the purpose of the law in question, but are treated differently. [Citation.] If
groups are similarly situated but treated differently, the state must then provide a rational
justification for the disparity. [Citation.] However, a law that interferes with a
fundamental constitutional right or involves a suspect classification, such as race or
national origin, is subject to strict scrutiny requiring a compelling state interest.
[Citation.]” (People v. Lynch (2012) 209 Cal.App.4th 353, 358.)
       Section 2933, subdivision (b) states: “For every six months of continuous
incarceration, a prisoner shall be awarded credit reductions from his or her term of
confinement of six months. A lesser amount of credit based on this ratio shall be
awarded for any lesser period of continuous incarceration. Credit should be awarded
pursuant to regulations adopted by the secretary. Prisoners who are denied the
opportunity to earn credits pursuant to subdivision (a) of Section 2932 shall be awarded
no credit reduction pursuant to this section. Under no circumstances shall any prisoner
receive more than six months’ credit reduction for any six-month period under this
section.”
       As defendant correctly points out, this provision entitles a state prisoner to earn
one additional day of credit for each day of incarceration. This “[c]redit is a privilege,
not a right,” which “must be earned and may be forfeited pursuant to the provisions of



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Section 2932.” (§ 2933, subd. (c).) However, defendant errs in stating this is a result of
any recent change to the law.
       Defendant’s statement that this is a result of recent changes in the calculation of
presentence conduct credits effective October 1, 2011 is not correct. The Legislature did
change the calculation of conduct credits, effective October 1, 2011, through the
Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482).
The Realignment Act amended the law, entitling defendants to two days of conduct credit
for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).) The award of
credits is not reduced by a defendant’s prior conviction for a serious or violent felony.
This provision applies prospectively to defendants serving presentence incarceration for
crimes committed on or after October 1, 2011. (§ 4019, subd. (h).)
       The Realignment Act also changed section 2933 by deleting a provision governing
the calculation of presentence conduct credits. (See § 2933, subd. (e); former § 2933,
subd. (e) (Stats. 2010, ch. 426).) The provision upon which defendant relies, subdivision
(b) of section 2933 was not changed by the Realignment Act or any other provision
effective October 1, 2011. The ability of state prisoners to earn day for day conduct
credits was in the initial version of section 2933 that was passed in 1982. (See former
§ 2933, subd. (a) (Stats. 1982, ch.1234, § 4) [“For every six months of full-time
performance in a credit qualifying program, as designated by the director, a prisoner shall
be awarded worktime credit reductions from his term of confinement of six months. A
lesser amount of credit based on this ratio shall be awarded for any lesser period of
continuous performance”].) The current version of subdivision (b) was enacted in 2009,
with an effective date of January 25, 2010. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 38.)
       In spite of this error, defendant has nonetheless identified a potential equal
protection claim. As he points out, a convicted criminal who is in every other respect in
the same situation as defendant except that he makes bail could spend less total time in
confinement than defendant -- the prisoner who makes bail serves the entire confinement

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in state prison earning credits at a one for one rate, while defendant earns credits at the
two for four rate in presentence custody. However, this is not a new issue. Before the
Legislature initiated the series of changes regarding presentence conduct credits in 2010,
section 4019 awarded conduct credits at a two for four days rate (see People v. Brown
(2012) 54 Cal.4th 314, 318 and fn. 4 (Brown)), while section 2933 allowed prisoners to
earn credits at the one for one ratio.
       California courts uniformly rejected equal protection challenges to the different
ratios for the calculation of credits used in sections 4019 and 2933: “Numerous cases
have held that various classes of detainees are not similarly situated with respect to the
award of conduct credits. In a context very similar to the one before us, for example, a
nonviolent felon earns fewer conduct credits during presentence confinement in a local
detention facility (§[§] 2900.5, 4019) than he or she does once sentenced to state prison
and enrolled in a qualifying work program (§ 2933). The courts have uniformly rejected
equal protection claims challenging this disparity, finding that pretrial detainees and state
prison inmates are not similarly situated for purposes of the statutes [citations], or
alternatively that the disparate treatment is justified by the state’s interest in rehabilitating
convicted felons. [Citations]” (People v. Ramos (1996) 50 Cal.App.4th 810, 822
(Ramos), see also People v. Caddick (1984) 160 Cal.App.3d 46, 53; In re Cleaver (1984)
158 Cal.App.3d 770, 773-774; People v. Rosaia (1984) 157 Cal.App.3d 832, 845,
disapproved on other grounds in People v. Horn (1989) 213 Cal.App.3d 701, 708; People
v. Davis (1984) 154 Cal.App.3d 253, 255; People v. DeVore (1990) 218 Cal.App.3d
1316, 1319-1320; People v. Poole (1985) 168 Cal.App.3d 516, 524-526; People v. Ross
(1985) 165 Cal.App.3d 368, 377; People v. Valladares (1984) 162 Cal.App.3d 312, 320-
321; People v. Caruso (1984) 161 Cal.App.3d 13, 19-20.)
       As the Court of Appeal noted in Ramos: “ ‘While state prison inmates are
conclusively guilty and presumptively in need of rehabilitation, pretrial felony detainees
are presumptively innocent and may not require rehabilitation. [Citations.] The

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difficulty of establishing prison-style work programs in county jails for pretrial detainees-
-who may make bail, or have work programs interrupted by court appearances and other
obligations--further distinguishes pretrial detainees from state prisoners and justifies the
slightly disparate scheme for awarding conduct credits to the former class.’ [Citations.]”
(Ramos, supra, 50 Cal.App.4th at p. 822.)
       Defendant relies primarily on People v. Sage (1980) 26 Cal.3d 498, which held
that a version of former section 4019 authorizing conduct credits for pretrial detainee
misdemeanants but not for pretrial detainee felons violated equal protection. (Id. at pp.
507-508.) Sage was distinguished in Ramos and the other decisions rejecting the equal
protection challenge to former section 4019. (Ramos, supra, 50 Cal.App.4th at pp. 822-
823.) In Brown, the California Supreme Court “decline[d] to read Sage for more than it
expressly holds,” and found defendants serving time before and after the effective date to
changes in section 4019 were not similarly situated. (Brown, supra, 54 Cal.4th at p. 330.)
Like the Supreme Court in Brown, we decline to extend Sage to the different treatment of
pretrial detainees and state prisoners.
       Defendant’s claim is indistinguishable from the previously rejected claims
attacking the disparate treatment of pretrial detainees and state prisoners. In addition, the
United States Supreme Court has rejected an equal protection challenge to New York law
denying “good time” credit to presentence detainees while “permitting credit up to the
full period of ultimate incarceration for state prisoners who were released on bail prior to
sentencing[.]” (McGinnis v. Royster (1973) 410 U.S. 263, 264-265 [35 L.Ed.2d 282,
285-286].) Following the overwhelming weight of authority, we find defendant is not
similarly situated to state prisoners released on bail before sentencing, and accordingly
reject his claim.
       As previously noted, the Realignment Act changed the law so that defendant
would be entitled to earn presentence conduct credit at the two for two rate in spite of his
being convicted of a serious felony. This change in the law does not apply to defendant,

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who committed his crime before the effective date of the Realignment Act, October 1,
2011. (§ 4019, subd. (h).) Defendant contends the failure to apply this change
retroactively violates equal protection as he is similarly situated to prisoners who commit
their crimes on or after the effective date of the Realignment Act.
       Our high court recently rejected an equal protection claim regarding conduct
credits awarded under the Realignment Act in People v. Lara (2012) 54 Cal.4th 896, 906,
fn. 9. Reiterating its reasoning in Brown, the court stated, “ ‘ “[t]he obvious purpose” ’ of
a law increasing conduct credits ‘ “is to affect the behavior of inmates by providing them
with incentives to engage in productive work and maintain good conduct while they are
in prison.” [Citation.] “[T]his incentive purpose has no meaning if an inmate is unaware
of it. The very concept demands prospective application.” ’ (Brown, at p. 329, quoting
In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve their detention
thereafter, are not similarly situated with respect to the law’s purpose. (Brown, at pp.
328-329.)” (Lara, supra, 54 Cal.4th at p. 906, fn. 9.)
       Brown and Lara apply here. Consequently, we reject defendant’s claim.




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                                  DISPOSITION
     The judgment is affirmed.



                                                HULL   , J.



We concur:



     RAYE               , P. J.



     HOCH               , J.




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