Filed 8/9/13 P. v. Keshishyan CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E056687

v.                                                                       (Super.Ct.No. FSB1104564)

ARMAN KESHISHYAN,                                                        OPINION

         Defendant and Appellant.


         APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,

Judge. Affirmed.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Stephanie Chow and

James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Arman Keshishyan bought merchandise at a Home Depot after

attaching fake bar code stickers that caused the merchandise to ring up at a lower price.

As a result, he was convicted of second degree burglary. (Pen. Code, § 459.) He

admitted one “strike” prior. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) He was

sentenced to a total of six years in prison, along with the usual fines and fees.

       Defendant‟s sole appellate contention is that he was entitled to additional

presentence conduct credit as a matter of equal protection. We reject this contention.

Hence, we affirm.

                                              I

                  DEFENDANT‟S ENTITLEMENT TO ADDITIONAL

  PRESENTENCE CONDUCT CREDIT AS A MATTER OF EQUAL PROTECTION

       A.     Background.

       Prior to April 4, 2011, Penal Code section 4019 provided presentence conduct

credit on a “two-for-four” basis — two days of credit for every four days of actual

custody. (Pen. Code, former § 4019, subds. (b), (c), (f), Stats. 2010, ch. 426, § 2.)

       On April 4, 2011, Penal Code section 4019 was amended to provide credit on a

“two-for-two” basis — two days of conduct credit for every two days of actual

presentence custody. (Pen. Code, former § 4019, subds. (b), (c), (f), Stats. 2011, ch. 15,

§ 482.) The Legislature specified that this amendment “shall apply prospectively and

shall apply to prisoners who are confined . . . for a crime committed on or after October 1,




                                              2
2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the

rate required by the prior law.” (Pen. Code, § 4019, subd. (h), Stats. 2011, ch. 39, § 53.)1

       The charged crime occurred on September 9, 2011. Defendant was sentenced on

July 13, 2012. He had spent 127 actual days in presentence custody. The trial court

awarded defendant presentence conduct credit on a two-for-four basis; thus, it awarded

him 62 days of presentence conduct credit.

       B.     Equal Protection Vis-á-Vis Persons Who Committed Crimes on or after

              October 1, 2011.

       Because defendant committed his crime before October 1, 2011, he is only entitled

to two-for-four credit. A person who committed the identical crime on or after October 1,

2011 would be entitled to two-for-two credit. Defendant contends that this is an equal

protection violation.

       This argument has been rejected by the California Supreme Court, as well as in

every other published case that has considered it. (People v. Lara (2012) 54 Cal.4th 896,

906, fn. 9; People v. Rajanayagam (2012) 211 Cal.App.4th 42, 54-56; People v. Verba

(2012) 210 Cal.App.4th 991, 995-997; People v. Kennedy (2012) 209 Cal.App.4th 385,

395-399; People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1552.)




       1        This language originally referred to July 1, 2011, rather than October 1,
2011. (Pen. Code, former § 4019, subd. (h), Stats. 2011, ch. 15, § 482.) On June 30,
2011, however, before the amendment had yet come into effect, the Legislature amended
it to refer to October 1, 2011. (Pen. Code, § 4019, subd. (h), Stats. 2011, ch. 39, § 53.)



                                             3
       In Lara, the defendant argued that the Legislature denied equal protection by

making the amended version of Penal Code section 4019 prospective only. (People v.

Lara, supra, 54 Cal.4th at p. 906, fn. 9.) The Supreme Court responded: “ . . . „“[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.”‟ [Citation.] 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. [Citation.]” (Ibid.)

       We also adopt the reasoning stated in Verba:

       “[A] statute‟s . . . operative date . . . is set by the Legislature in its discretion.

[Citation.] The exercise of that discretion is subject to rational basis review. [Citations.]”

(People v. Verba, supra, 210 Cal.App.4th at p. 996.)

       “We can envision several legitimate reasons for making the increased level of

presentence conduct credit applicable only to those who commit their crimes on or after

October 1, 2011.

       “ . . . [T]he Legislature‟s decision to increase the amount of presentence conduct a

defendant could earn „was intended to save the state money.‟ [Citation.] The Legislature

may have decided that the nature and scope of the fiscal emergency required granting an

increase in the level of conduct credits but only at a time after the effective date of the



                                                 4
amendments. A slightly delayed operative date, the Legislature may have believed, struck

a proper, rational balance between the state‟s fiscal concerns and its public safety

interests.

        “A related justification for the prospective application of increased conduct credits

lies in the Legislature‟s right to control the risk of new legislation by limiting its

application. „Requiring the Legislature to apply retroactively any change in the law

benefitting criminal defendants imposes unnecessary additional burdens on the already

difficult task of fashioning a criminal justice system that protects the public and

rehabilitates criminals.‟ [Citation.]

        “In addition, the Legislature could have rationally believed that by tying the

increased level of conduct credits to crimes committed on or after a future date, it was

preserving the deterrent effect of the criminal law as to those crimes committed before

that date. [Citations.] To reward an inmate with enhanced conduct credits, even for time

spent in presentence custody after the effective date of the statute, arguably weakens the

deterrent effect of the law as it stood when the inmate committed the crime. 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. Such a punishment scheme also avoids „sentencing delays and

other manipulations.‟ [Citation.]” (People v. Verba, supra, 210 Cal.App.4th at pp. 996-

997.)




                                               5
       Defendant relies on In re Kapperman (1974) 11 Cal.3d 542. However, as the court

stated in Kennedy:

       “In Kapperman, the Supreme Court reviewed a provision (then new Penal Code

section 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.] In our view, Kapperman is distinguishable from the instant case because it

addressed actual custody 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.

       “Our Supreme Court recently confirmed, „[c]redit for time served is given without

regard to behavior, and thus does not entail the paradoxical consequences of applying a

statute intended to create incentives for good behavior. Kapperman does not hold or

suggest that prisoners serving time before and after the effective date of a statute

authorizing conduct credits are similarly situated.‟ (People v. Brown (2012) 54 Cal.4th

314, 330 . . . (Brown).)

       “Although the Supreme Court in Brown was concerned with the January 2010

amendment to Penal Code section 4019 [citation], the reasoning of Brown applies with

equal force to the prospective-only application of the current version of section 4019.



                                              6
       “In Brown, the California Supreme Court expressly determined that Kapperman

does not support an equal protection argument, at least insofar as conduct credits are

concerned. [Citation.] In 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.]” (People v. Kennedy, supra, 209

Cal.App.4th at pp. 396-397.)

       Defendant derides Brown as “flawed.” Flawed or not, we are required to follow it.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

       C.     Equal Protection Vis-á-Vis Persons Who Were Able to Post Bail.

       Once again, because defendant committed his crime before October 1, 2011, he is

entitled to presentence custody credit only on a two-for-four basis. Assume, however,

that defendant had been able to post bail. In that event, he would have had no

presentence custody and hence no presentence conduct credit. Thus, he would have had

to spend additional time in postsentence custody — i.e., in prison. Defendant notes that,

under Penal Code section 2933, subdivision (b), a prison inmate is entitled to

postsentence conduct credit on a “one-for-one” basis. Defendant contends that this is an

equal protection violation because it discriminates against the indigent.



                                             7
       In response, the People rely on a series of cases holding essentially that, unlike

presentence conduct credit, postsentence conduct credit serves a rehabilitative purpose

and presupposes the availability of work and educational training. (People v. Ramos

(1996) 50 Cal.App.4th 810, 821-824; People v. Heard (1993) 18 Cal.App.4th 1025, 1028-

1031; People v. Caddick (1984) 160 Cal.App.3d 46, 50-53; In re Cleaver (1984) 158

Cal.App.3d 770, 773-774 [Fourth Dist., Div. Two].) These cases were decided, however,

under a materially different version of Penal Code section 2933. (Pen. Code, former

§ 2933, Stats. 1996, ch. 598, § 2; Stats. 1996, ch. 868, § 1.5; Stats. 1995, ch. 557, § 2;

Stats. 1994, ch. 90, § 1; Stats. 1988, ch. 121, § 1; Stats. 1986, ch. 1446, § 2; Stats. 1982,

ch. 1234, § 4.)

       We need not resolve this contention on the merits, because we conclude that

defendant lacks standing to raise it, for two reasons. First, defendant cannot show that he

was discriminated against based on indigence. The reason he did not post bail was that he

had an immigration hold, not that he was indigent; indigent or not, he would not have

posted bail. Thus, he lacks standing to assert discrimination based on indigence. (See

People v. Garcia (1999) 21 Cal.4th 1, 11-12.) Defendant does not argue that the asserted

discrimination would be unconstitutional even if it was on the basis of an immigration

hold; thus, he has forfeited any such contention.

       Second, as a second striker, defendant was not entitled to postsentence conduct

credit on a one-for-one basis. Rather, his postsentence conduct credit was limited to 20

percent. (Pen. Code, §§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) Defendant actually



                                               8
received more conduct credit by failing to post bail. For this reason, too, he lacks

standing.

                                             II

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                         RICHLI
                                                                                Acting P. J.

We concur:



KING
                               J.




CODRINGTON
                                J.




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