Filed 6/27/13 P. v. Schlaick 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038758
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS082642A,
                                                                     SS082998A)
         v.

MICHAEL WILLIAM SCHLAICK,

         Defendant and Appellant.


                                                INTRODUCTION
         Defendant Michael William Schlaick appeals from post-judgment orders denying
his motion for additional presentence conduct credit under Penal Code section 4019.1 For
reasons that we will explain, we will affirm the orders.
                       FACTUAL AND PROCEDURAL BACKGROUND2
         In July 2011, in case No. SS082642A, defendant pleaded no contest to one count
of commercial burglary (§ 459) and pleaded guilty to one count of commercial burglary.


         1
         All further statutory references are to the Penal Code unless otherwise indicated.
         2
         Defendant’s convictions in case Nos. SS082642A and SS082998A were the
subject of his appeal in our case No. H037426. This court ultimately dismissed the
appeal pursuant to defendant’s request. In his opening brief in the instant appeal,
defendant indicates that he “has moved” for judicial notice of the record from the prior
appeal. No such motion has been filed in this court. On the court’s own motion, the
court takes judicial notice of the record in defendant’s prior appeal, case No. H037426.
(Evid. Code, § 452, subd. (d)(1).) Some of the factual and procedural background is
taken from that record.
The offenses took place on or about September 5, 2008. Defendant also admitted that he
had a prior strike (§ 1170.12, subd. (c)(1)) and that he had served two prior prison terms
(§ 667.5, subd. (b)). In case No. SS082998A, defendant pleaded no contest to
commercial burglary. The offense took place on or about September 13, 2008.
Defendant also admitted that he had a prior strike (§ 1170.12, subd. (c)(1)). Defendant
entered the pleas and admissions in both cases with the understanding that his maximum
sentence would be 10 years eight months.
       On September 20, 2011, the trial court sentenced defendant to a total term of
seven years four months in prison for both cases. Regarding presentence custody credits,
in case No. SS082998A, the court granted defendant 879 days of custody credits,
consisting of 587 actual days plus 292 days conduct credit. No custody credits were
awarded in case No. SS082642A.
       In August 2012, defendant filed a motion in both cases seeking additional
presentence conduct credit under the October 2011 version of section 4019. Defendant
contended that this version of section 4019 applied to him based on state and federal
equal protection principles. The trial court denied the motion as to both cases.
Defendant filed a notice of appeal from the orders.
                                      DISCUSSION
       Defendant contends that his conduct credit should be calculated pursuant to
the current version of section 4019, which was operative after he was sentenced in
September 2011, and that, under the current version, he is entitled to 586 days conduct
credit rather than the 292 days granted by the trial court in case No. SS082998A.
Although he acknowledges that the current version of section 4019 “provides that it is
applicable solely to cases where the offenses were committed on or after October 1,
2011,” defendant contends that the equal protection clause of the federal Constitution
requires that the current version be applied to him. Defendant acknowledges that his
argument has been rejected by the California Supreme Court in People v. Lara (2012)

                                             2
54 Cal.4th 896 (Lara) and by the Court of Appeal in People v. Ellis (2012) 207
Cal.App.4th 1546, 1550 (Ellis). He states, however, that the analysis in those cases “is
inconsistent with the Fourteenth Amendment,” that he “intends to urge reconsideration in
the California Supreme Court,” and that he “seeks to preserve the issue . . . with respect
to federal court review.”
       The Attorney General contends that defendant is not entitled to additional conduct
credit. We agree.
       The current version of section 4019 became operative on October 1, 2011. (Ellis,
supra, 207 Cal.App.4th at pp. 1549-1550.) 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).) 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 and was
sentenced prior to October 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); Lara, supra,
54 Cal.4th at p. 906, fn. 9; Ellis, supra, 207 Cal.App.4th at p. 1550; People v. Kennedy
(2012) 209 Cal.App.4th 385, 395-396 (Kennedy).)
       We are not persuaded by defendant’s argument that the equal protection clause of
the federal Constitution requires that the October 2011 version of section 4019 be
retroactively applied to him.
       “The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under the equal protection

                                              3
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.” ’ [Citation.] ‘This initial inquiry is not
whether persons are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’ [Citation.]” (Brown, supra, 54 Cal.4th at
p. 328.)
       We find Brown instructive on the equal protection issue raised by defendant in this
case. In Brown, the California Supreme Court held that a former version of section 4019,
effective January 25, 2010, applied prospectively, and that the equal protection clauses of
the state and federal Constitutions did not require retroactive application. (Brown, supra,
54 Cal.4th at p. 318.) In addressing the equal protection issue, the court determined that
“prisoners who served time before and after [the January 2010 version of] section 4019
took effect are not similarly situated . . . .” (Brown, supra, at p. 329.) On this point, the
California Supreme Court found In re Strick (1983) 148 Cal.App.3d 906 (Strick),
“persuasive” and quoted from that decision as follows: “ ‘The obvious purpose of the
new section,’ . . . ‘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.’ [Citation.] ‘Thus, inmates were only
similarly situated with respect to the purpose of [the new law] on [its effective date],
when they were all aware that it was in effect and could choose to modify their behavior
accordingly.’ [Citation.]” (Brown, supra, at p. 329.)
       Defendant argues that his case is analogous to In re Kapperman (1974) 11 Cal.3d
542 (Kapperman), where the California Supreme Court concluded that equal protection
required the retroactive application of a statute granting credit for time served in local
custody before sentencing and commitment to state prison. In Brown, however, the
California Supreme Court explained that “Kapperman does not hold or suggest that



                                              4
prisoners serving time before and after the effective date of a statute authorizing conduct
credits are similarly situated.” (Brown, supra, 54 Cal.4th at p. 330.)
       Defendant also relies on the following language from Griess v. Colorado (D.Colo.
1985) 624 F.Supp. 450 (Griess): “The sole state interest in the good time scheme, as
applied to defendant, is to induce good behavior. Not allowing good-time credit for pre-
sentence incarceration, but doing so for prison confinement, is not . . . rationally related
to the states’ end of good prisoner behavior.” (Id. at p. 457.) We are not persuaded by
defendant’s reliance on Griess. Our Supreme Court has stated that in California, “the
pre- and postsentence credit systems serve disparate goals and target persons who are not
similarly situated.” (People v. Buckhalter (2001) 26 Cal.4th 20, 36; see People v. Heard
(1993) 18 Cal.App.4th 1025 [differences in conduct credit formulas for pretrial detainees
under former section 4019 and state prison inmates under section 2931 did not violate
equal protection].)
       Moreover, as defendant acknowledges, the California Supreme Court in Lara
rejected the contention, similar to the one made by defendant in this case, that the
prospective application of the October 2011 version of section 4019 denied the defendant
equal protection. (Lara, supra, 54 Cal.4th at p. 906, fn. 9.) Citing Brown, the California
Supreme Court in Lara explained that prisoners who serve their pretrial detention before
the effective date of a law increasing conduct credits, and those who serve their detention
thereafter, “are not similarly situated with respect to the law’s purpose.” (Lara, supra, at
p. 906, fn. 9; but see People v. Verba (2012) 210 Cal.App.4th 991, 995-996.)
       Following Brown and Lara, we determine that defendant is not entitled to
additional conduct credit under the October 2011 version of section 4019. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Ellis, supra, 207
Cal.App.4th at p. 1548 [“prospective-only application” of the October 2011 version of
section 4019 does not violate equal protection]; Kennedy, supra, 209 Cal.App.4th at



                                              5
p. 397 [“the reasoning of Brown applies with equal force to the prospective-only
application of the current version of section 4019”].)
                                     DISPOSITION
       In case No. SS082642A, the trial court’s order denying defendant presentence
conduct credit is affirmed.
       In case No. SS082998A, the trial court’s order denying defendant additional
presentence conduct credit is affirmed.


                                   ___________________________________________
                                   BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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