Filed 9/6/13 P. v. Clarkebey 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                       E054547

v.                                                                       (Super.Ct.No. SWF10000120)

RICHARD EUGENE CLARKEBEY,                                                OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge.

Affirmed as modified.

         Richard L. Fitzer, 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, Assistant Attorney General, Steve Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Richard Eugene Clarkebey appeals after he was

convicted at his first trial of battery on a police officer (Pen. Code, § 243, subd. (b)); and

                                                             1
at his second trial of driving under the influence of alcohol and causing injury to another

person (Veh. Code, § 23153, subd. (a)) and driving with a blood-alcohol level above 0.08

percent (Veh. Code, § 23153, subd. (b)). Defendant contends that the trial court erred in

declining to exercise its discretion to dismiss defendant‟s strike prior; the abstract of

judgment should be corrected to show a stayed sentence on one of the counts; the court

improperly stayed, rather than striking, a prior prison term enhancement; and defendant

should be awarded additional days of presentence conduct credits. We reject the

contentions with respect to dismissal of defendant‟s strike prior and the award of

additional conduct credits. However, we order the sentence modified to strike the prison

term prior, and we order the abstract of judgment corrected to reflect a stay of the

sentence on count 2. With these minor modifications, the judgment is otherwise

affirmed.

                         FACTS AND PROCEDURAL HISTORY

       On January 2, 2010, defendant was driving his truck in Hemet. Angela Selby and

Graciela Garcia were passengers in defendant‟s truck. Defendant drove through a red

light and collided with an SUV driven by Michelle Padilla. Defendant was driving at

such a high rate of speed that the force of the impact spun his truck around; defendant‟s

truck then collided with another car, driven by Charles Jefferson, and finally struck a

third car driven by Anthony Valdez.

       Another motorist who witnessed the accident, Jessica Henderson, called for

emergency services. Valdez, whose car had been struck, got to defendant‟s truck within

five seconds. He saw defendant in the driver‟s seat. Padilla, whose SUV had been struck


                                              2
first, saw defendant slumped over the steering wheel of his truck. Padilla‟s passenger,

Colleen Patterson-Musser, also saw defendant behind the steering wheel of the truck. A

community service officer who responded found defendant seated in the driver‟s seat of

the truck.

       Emergency personnel took defendant to the hospital. At the hospital, Hemet

police officer Eric Goodwyn spoke to defendant. Officer Goodwyn asked defendant if he

had been driving the truck. Defendant stated, “Yeah, look at my nose.” Defendant had a

cut on the bridge of his nose. Defendant claimed that another car had collided with him.

During the interview, Officer Goodwyn smelled alcohol on defendant‟s breath, and

noticed that defendant‟s eyes were bloodshot and watery. Officer Goodwyn asked

defendant if he had been drinking. Defendant admitted to drinking one beer.

       Defendant agreed to a breathalyzer test. The first reading showed a blood-alcohol

level of 0.223 percent, and the second reading showed 0.231 percent. A blood test

showed a blood-alcohol level of 0.23 percent. A forensic toxicologist testified that a

person‟s ability to make decisions and the reaction time to stimuli are severely impaired

at that level of intoxication; a person intoxicated at that level would be unable to operate

a motor vehicle safely.

       Defendant was asleep or passed out when his blood was drawn by the

phlebotomist. A nurse later approached defendant to take another blood sample.

Defendant yelled, “You‟re not taking my blood,” and began to swing his arms violently.




                                              3
Officer Goodwyn and another officer each grabbed one of defendant‟s arms to restrain

him. Defendant bit Officer Goodwyn‟s hand.1

       Angela Selby, a passenger in defendant‟s truck, sustained some bruising to her

elbow and leg from the collisions. Her elbow and leg hurt for about two weeks after the

accident. It hurt her to extend her elbow, and it hurt “just a little bit” to walk.

       Padilla, the driver of the SUV defendant struck, suffered several injuries. Padilla,

a registered nurse, had difficulty performing some of her duties after the accident because

of pain in her right arm. Some of the fingers on her right hand were numb and she had

difficulty raising her right arm. The numbness in Padilla‟s hand lasted six to eight weeks.

The pain in her shoulder persisted for about three months. The remainder of the pain in

her arm lasted approximately six months. She still had residual effects at the time of trial,

and needed to relax her hand occasionally during the day.

       Padilla‟s daughter Marissa was a passenger in the SUV. After the accident,

Marissa had low back pain after sleeping or standing for more than about one minute.

Her neck was also sore for three to six months after the collision. Turning her neck was

painful, which made driving difficult. She also had pain in her knee and limped for

several weeks after the accident.

       Colleen Patterson-Musser, another passenger in Padilla‟s SUV, had pain in her

shoulder for about two months after the collision. The shoulder was bruised, swollen,


       1  The evidence described in this paragraph was presented at defendant‟s first trial,
which resulted in his conviction of battery on a peace officer. No evidence concerning
that offense was admitted at defendant‟s second trial on the main charges.


                                               4
and tender to the touch. She also sustained a lump on the back of her head and suffered

from headaches for a couple of days after the accident.

       Charles Jefferson, the driver of the second vehicle struck by defendant, had pain in

his neck for about a month after the accident. He received physical therapy treatments.

He also had back pain from standing after the collision. Although he had taken

medication for back pain prior to the accident, his neck and back had not bothered him

immediately before the collision.

       Anthony Valdez was not injured in the accident, but defendant‟s truck dented the

door of his car.

       After these events, defendant was charged by a first amended information with

one count of driving under the influence of alcohol causing injury (count 1), one count of

driving with a blood-alcohol level over 0.08 percent (count 2), resisting an officer with

force or violence (count 3), and battery of a police officer (count 4). As to count 1, the

information alleged that defendant had injured five additional victims.2 (Veh. Code,

§ 23558.) As to count 2, it alleged that defendant had a blood-alcohol concentration of

0.15 or greater. (Veh. Code, § 23578.) The information further alleged that defendant

had suffered four prior prison terms, and one prior strike conviction.

       The first trial took place in April 2011. The first jury found defendant guilty of

battery on a police officer (biting Officer Goodwyn). It was unable to reach verdicts on



       2   The trial court later dismissed the allegation as to one of the five additional
victims.


                                                5
any of the other charges. The trial court declared a mistrial on counts 1, 2 and 3, and then

dismissed count 3 (resisting a police officer) in the interests of justice.

       In August 2011, a second jury convicted defendant of the two remaining charges

in counts 1 and 2. The jury also found true the allegations of injury to the four additional

victims, and the allegation that defendant was driving with a blood-alcohol level of 0.15

percent or higher. Defendant also admitted the prior conviction allegations (prior prison

terms and strike prior) to the court.

       Defendant asked the court to exercise its discretion to dismiss his strike prior

under Penal Code section 1385. The trial court declined to do so, finding that defendant

came within the spirit of the three strikes law.

       The court sentenced defendant to the middle term of two years on count 1 (DUI

with injury), doubled to four years as a second striker. The court added three years (one

year for each of three victim-injury enhancements). The court imposed a concurrent term

of one year in the county jail on count 4 (battery on a police officer). The court also

added three one-year prison term priors. The court stayed sentence as to count 2, stayed

sentence as to the fourth victim-injury enhancement on count 1, and stayed the fourth

prior prison term enhancement. Defendant‟s total prison sentence was 10 years. The

court awarded defendant 933 days of presentence custody credits, consisting of 623

actual days in custody plus 310 days of conduct credits. The court imposed a $500

restitution fine, a $500 parole revocation fine, $120 in court security fees, and $90 in

conviction assessments.

       Defendant now appeals.


                                               6
                                         ANALYSIS

  I. The Trial Court Did Not Abuse Its Discretion in Declining to Dismiss Defendant‟s

                                         Strike Prior

       Defendant asked the trial court to exercise its discretion to dismiss the strike prior,

pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504. The trial

court declined to dismiss the strike prior, expressing some concern that defendant took no

responsibility for his actions, as well as noting that although defendant‟s record consisted

mostly of substance abuse related offenses, he did have difficulty staying out of trouble,

and had been returned to custody numerous times.

       Defendant now urges that the court abused its discretion in refusing to dismiss the

strike prior, because it gave insufficient consideration to all the relevant factors, including

defendant‟s “obvious” mental illness.

       Defendant points to information in the probation report indicating that he suffers

from a bipolar disorder and scoliosis. Defendant had been prescribed several

medications, including antipsychotic drugs used to treat bipolar disorder, and

antidepression medications. Defendant stopped taking his prescribed medications in

2003. Defendant instead began to self-medicate with alcohol and illegal drugs.

Defendant‟s only strike offense—an arson conviction in 1983—was over 25 years old by

the time he had committed the current offenses. When defendant pleaded guilty in the

arson case, he had been granted probation.

       In the intervening 25 years since his strike conviction, defendant had not

committed another serious or violent felony. All but one of the convictions he suffered


                                              7
after the strike conviction were drug- or alcohol-related. Defendant was 53 years old at

the time of sentencing. Defendant had been free from custody for almost three years at

the time of the accident leading to his current convictions.

       Appellate counsel also points to defendant‟s unusual behavior in court during

these proceedings. In the first trial, defendant was briefly removed from the courtroom

when he interrupted the proceedings. While a community service officer was testifying,

defendant burst out, “They [are] trying to send me to prison for 16 years over a fender

bender!” He then accused all the witnesses of lying, saying that they were just trying to

collect insurance money.

       Defendant also made several motions to substitute counsel (People v. Marsden

(1970) 2 Cal.3d 118) or to represent himself (Faretta v. California (1975) 422 U.S. 806

[95 S.Ct. 2525, 45 L.Ed.2d 562]). Ultimately, defendant surrendered his right to

represent himself, and the public defender was appointed. During one of the Marsden

hearings, defendant informed the court that his theory of the defense was that the two

passengers in his truck had kidnapped him, and that he was not driving at the time of the

accident. In his postconviction interview with the probation department, defendant

maintained that his passengers had “set [him] up.” They knew defendant was drunk, but

got him dressed and put him in the back of the truck. One of the women was driving the

truck when the accident happened. At the scene, someone told defendant, “Move your

truck.” Defendant, worried about his truck, told his passenger to move over, and only

then did he get into the driver‟s seat. He claimed he cut his nose on the edge of the door

when he got into the front seat. That was why defendant was sitting in the driver‟s seat


                                             8
when police arrived. Defendant told the probation officer that he was the victim of a

conspiracy. Defendant said that Officer Goodwyn intimidated all the witnesses into

testifying falsely that defendant was driving at the time of the accident. Defendant also

told the probation officer that Officer Goodwyn had planted evidence. Defendant

claimed that his lawyer was protecting the police.

       Defendant urges that the trial court abused its discretion by failing to properly

weigh all of the relevant factors: “[S]ince all discretionary authority is contextual, those

factors that direct similar sentencing decisions are relevant, including „the nature and

circumstances of the offense, the defendant‟s appreciation of and attitude toward the

offense, or his traits of character as evidenced by his behavior and demeanor at the trial.‟

[Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) The

Alvarez court also indicated that, “[w]hen appropriate, judges should also consider the

general objectives of sentencing . . . .” (Ibid.) California Rules of Court, rule 4.410,

describes the general objectives of sentencing: “(a)(1) Protecting society; [¶]

(2) Punishing the defendant; [¶] (3) Encouraging the defendant to lead a law-abiding

life in the future and deterring him or her from future offenses; [¶] (4) Deterring others

from criminal conduct by demonstrating its consequences; [¶] (5) Preventing the

defendant from committing new crimes by isolating him or her for the period of

incarceration; [¶] (6) Securing restitution for the victims of crime; and [¶]

(7) Achieving uniformity in sentencing. [¶] (b) Because in some instances these

objectives may suggest inconsistent dispositions, the sentencing judge must consider

which objectives are of primary importance in the particular case. The sentencing judge


                                              9
should be guided by statutory statements of policy, the criteria in these rules, and the

facts and circumstances of the case.”

       Defendant suggests that the trial court failed to conduct the proper balancing

between the defendant‟s constitutional rights, including guaranties against

disproportionate punishment under the Eighth Amendment, and society‟s legitimate

interests, including the fair prosecution of properly charged crimes. (See People v.

Marshall (1990) 50 Cal.3d 907, 938; People v. Williams (1998) 17 Cal.4th 148, 160;

People v. Superior Court (Romero), supra, 13 Cal.4th 497, 530.) “Specifically,”

defendant urges the court “failed to give any credence to the fact that none of the present

offenses are serious or violent; that no one suffered great bodily injury as a result of the

accident; that [defendant] clearly has a drug and alcohol problem; that [defendant]

unquestionably suffers from mental illness; that he has not taken his prescription psych

medications since 2003; and that [defendant‟s] punishment can be relatively severe even

without a second strike sentence—a maximum sentence of eleven years at fifty percent

for a drunk driving accident where no one died or even suffered great bodily injury is

severe. Surely, such a lengthy non-strike sentence for a fifty-three year old man who

suffers from mental illness and drug/alcohol addiction is more than sufficient to protect

society.”

       We are not persuaded. The trial court properly exercised its discretion in declining

to dismiss defendant‟s strike prior. The strike prior was for the arson of an inhabited

dwelling, for which he was convicted in 1984. Defendant also had a 1995 conviction for

assault with a deadly weapon. Aside from these two convictions, however, defendant‟s


                                              10
prior convictions related to drug or alcohol abuse. The court considered the instant

offense a “kind of a hybrid,” involving both substance abuse and conduct that presented

an active danger to the community. The court also noted that defendant had performed

poorly when out of custody or on parole. Defendant evidently had “a difficult time

staying out of trouble,” and he had “numerous returns to custody” for parole violations.

The court stated, “In balance . . . and upon reflection, at this time I cannot say that I find

that [defendant] falls without the spirit of the three-strikes law. He is your classic

recidivist, and it would seem to me that at least at this point, even if I were inclined to

grant the motion, I don‟t think I could make findings that would survive an appeal by the

People in this matter.”

       Penal Code section 1385 authorizes a trial court to strike factual allegations related

to sentencing; this authority extends to prior felony convictions, including prior felony

strike convictions. (See People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)

The court‟s power to dismiss a strike under Penal Code section 1385 is not absolute, but

is rather limited. (People v. Carmony (2004) 33 Cal.4th 367, 377-378.) In determining

whether to dismiss a strike conviction “in furtherance of justice” (Pen. Code, § 1385,

subd. (a)), the court should consider the nature and circumstances of the present offenses,

any prior serious or violent felony, and a defendant‟s background, character and

prospects, in order to determine whether or not the defendant should be deemed to fall

outside the spirit of the three strikes law. (People v. Williams, supra, 17 Cal.4th at

p. 161.) Only in a rare or extraordinary case could a career criminal be deemed to fall

outside the spirit of the three strikes recidivist sentencing scheme. (Carmony, at p. 378.)


                                              11
A court will not be found to have abused its discretion unless its decision is so irrational

or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)

       Defendant here has identified no such extraordinary circumstances placing him

outside the spirit of the three strikes law. All the circumstances to which defendant

points were brought out in the probation report and in the papers filed urging the court to

dismiss the strike prior. The court fully considered both documents. This is not a case in

which the trial court mistakenly misunderstood its discretion, or mistakenly believed that

it had no discretion to dismiss the strike prior. (See, e.g., People v. Banks (1997) 59

Cal.App.4th 20, 23-24.)

       The court did address the age of defendant‟s strike prior, recognizing that it had

occurred a number of years earlier. However, it found the circumstances of the strike

prior “pretty horrible.” Defendant had become “fed up” with his relatives taking money

or personal property from him, or using his personal property in a manner he found

insulting; in retaliation, he smashed the car window of one relative, and set the back

porch of his mother‟s residence on fire. Defendant was living in the house with other

family members at that time.

       In 1995, defendant had committed another assaultive crime, attacking a man at a

bus stop with a pipe. Defendant was sentenced to prison for three years for that offense.

When defendant was released on parole, his parole was revoked and he was returned to

custody three times. He was finally discharged from parole in 2005, about 10 years after

the conviction.




                                             12
       Defendant had difficulty on parole and probation in connection with intervening

offenses, and was also returned to custody several times before finally being discharged

in 2007.

       Although defendant was 53 years old at the time of sentencing in this case, he still

lacked maturity or impulse control. Prior incarcerations had done little to stem the

commission of new crimes. Defendant had twice entered drug treatment programs to

address his drug and alcohol problems, but he was terminated from both programs for

assaultive behavior. Defendant‟s background, character and prospects were poor, and did

not place him outside the letter or spirit of the three strikes law. Defendant had not

benefited from leniency, guidance, treatment, supervision, or punishment in the past.

       It was a mere fortuity that defendant‟s conduct in the instant case had not caused

grievous injury or death. He was severely alcohol-impaired when he ran a red light and

collided with three other vehicles. Defendant‟s conduct was reckless in the extreme,

showing a callous disregard for the safety of others.

       At the hospital after the accident, defendant was forthright enough when Officer

Goodwyn asked if he had been driving the truck: defendant replied, “look at my nose.”

When Officer Goodwyn asked defendant if he had been drinking, defendant claimed he

had drunk only one beer. Although defendant could not very well deny that he had

consumed any alcohol, he attempted to minimize his culpability. His later claims that he

had been framed, or that he was a victim of collusion and conspiracy, were created long

after the fact. Defendant‟s outburst at the first trial could have been as well deliberately

calculated to taint the trial as the product of mental illness. All in all, the circumstances


                                              13
bespeak defendant‟s willingness to lie, minimize, misdirect, and otherwise deflect any

responsibility for his actions from himself.

       Defendant has failed to carry his burden of demonstrating that the trial court‟s

decision, declining to dismiss defendant‟s strike prior, was arbitrary or irrational.

(People v. Carmony, supra, 33 Cal.4th 367, 376.) “[C]ircumstances must be

„extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of

the very scheme within which he squarely falls once he commits a strike as part of a long

and continuous criminal record . . . .‟” (Id. at p. 378.) Defendant has shown no such

circumstances here. Defendant is, in fact, a career criminal who has repeatedly shown

himself unable to refrain from committing crimes. Although he has only one prior

conviction for assault, he has a lengthy history of assaultive behavior. He is precisely the

kind of person to whom the three strikes law was intended to apply. The trial court‟s

determination not to dismiss the strike prior is not a decision with which no reasonable

person would agree. (Id. at p. 377.)

   II. The Abstract of Judgment Should Be Corrected to Reflect That the Sentence on

                   Count 2 Was Stayed Under Penal Code Section 654

       As defendant notes, Penal Code section 654 prohibits the imposition of multiple

sentences for the same criminal act. Here, defendant was convicted in count 1 of driving

under the influence causing injury and in count 2 of driving with a blood-alcohol level of

0.08 percent or greater. Both these convictions are based on the same act of drunk

driving. Imposition of sentence on both counts violates Penal Code section 654. The

parties and the court recognized that the sentence on count 2 should be stayed, and the


                                               14
court expressly stated that it ordered the sentence on count 2 to be stayed. However, the

abstract of judgment indicates that the court imposed a concurrent sentence on count 2.

       This court may order the correction of this clerical error in the abstract of

judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.) We direct that the

minutes of the sentencing hearing and the abstract of judgment be corrected to reflect that

the trial court stayed the sentence imposed as to count 2, pursuant to Penal Code section

654.

III. The Trial Court Should Have Stricken, Rather Than Stayed, the Imposition of a One-

                            year Prior Prison Term Enhancement

       The information charged defendant with four enhancements for prior prison terms.

All the allegations were found true. The trial court imposed one-year enhancements for

three of the prison term priors, but purported to stay imposition of a one-year term on the

fourth prison term prior.

       Defendant points out, and the People agree, that an enhancement under Penal

Code section 667.5 may not be stayed. If the allegation has been found true, it must be

either imposed or stricken. (See People v. White Eagle (1996) 48 Cal.App.4th 1511,

1521.) Staying a prior prison term enhancement is an unauthorized sentence, which this

court may correct on appeal. (Ibid.)

       The record here makes clear that the trial court did not intend to impose sentence

on the fourth prison term prior. Accordingly, we order that term stricken, rather than

stayed, and order the abstract of judgment amended accordingly.




                                             15
          IV. Defendant Is Not Entitled to Additional Presentence Conduct Credits

         Penal Code section 4019 has been amended numerous times in recent years.

Before January 25, 2010, inmates were able to earn two days of conduct credits for every

four days of actual custody during presentence confinement in local custody. (Former

Pen. Code, § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.)

Effective January 25, 2010, the Legislature amended Penal Code section 4019 to provide

that, with a few exceptions, most inmates would be able to earn two days of conduct

credits for each two days of actual custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28,

§ 50.) Nine months later, effective September 28, 2010, the Legislature again amended

Penal Code section 4019, restoring the six-for-four credits previously provided pre-

January 25, 2010. (Stats. 2010, ch. 426, §§ 1, 2, 5.)

         Most recently, the Legislature again amended Penal Code section 4019, to provide

for two days credit against each four-day period of confinement in local custody. (Pen.

Code, § 4019, subds. (b), (c).) The Legislature expressed its intent that, if all days are

earned under Penal Code section 4019, a term of four days will be deemed to have been

served for each two days in actual custody. (Pen. Code, § 4019, subd. (f).) This version

of Penal Code section 4019 became operative on October 1, 2011. (Stats. 2011, ch. 39,

§ 53.)

         Penal Code section 4019, subdivision (h), provides expressly that, “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 a county jail, city jail, industrial farm, or

road camp for a crime committed on or after October 1, 2011. Any days earned by a


                                              16
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior

law.” The gravamen of defendant‟s equal protection claim is that, if the new credit

provisions are given only prospective effect, the scheme would result in impermissible

disparate treatment of similarly situated inmates, simply based on the date of their

respective offenses.

       Defendant committed the instant offenses on January 2, 2010. At that time, Penal

Code section 4019 provided two days of conduct credits could be earned for each four

days of actual presentence custody served. All the amendments described above took

place after the date that defendant committed his crimes. The most recent amendment,

effective October 1, 2011, provides that two days of conduct credits may be earned for

each two days of actual presentence custody and, as noted, expressly provides that the

new version shall apply only to those inmates who committed their crimes on or after the

effective date of October 1, 2011. The issue is whether the prospective-only application

of the statute is violative of Equal Protection principles.

       “ „The right to equal protection of the laws is guaranteed by the Fourteenth

Amendment to the federal Constitution and article I, section 7 of the California

Constitution. The “first prerequisite” to an equal protection claim is “ „a showing that

“the state has adopted a classification that affects two or more similarly situated groups in

an unequal manner.” ‟ . . . .” [Citation.] [¶] “Equal protection applies to ensure that

persons similarly situated with respect to the legitimate purpose of the law receive like

treatment; equal protection does not require identical treatment. [Citation.]” [Citation.]

The state “may adopt more than one procedure for isolating, treating, and restraining


                                              17
dangerous persons; and differences will be upheld if justified. [Citations.] Variation of

the length and conditions of confinement, depending on degrees of danger reasonably

perceived as to special classes of persons, is a valid exercise of power.” ‟ [Citation.]”

(People v. McKee (2012) 207 Cal.App.4th 1325, 1334-1335.)

       The People argue here that defendant has failed to show that the two classes of

offenders affected—those who committed their crimes before October 1, 2011, and those

who committed their crimes on and after that date—are in fact similarly situated. “ „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.” ‟ ” (People v. Brown

(2012) 54 Cal.4th 314, 328.)

       In Brown, the California Supreme Court considered the equal protection question

with respect to the earlier amendment of the presentence custody credits of January 25,

2010. The California Supreme Court in Brown held, analogously to the situation here,

that the purposes of a statute authorizing incentives for good behavior “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 [Penal Code] section 4019 took effect are not similarly situated necessarily

follows. On this point we find the decision in [In re] Strick [(1983)] 148 Cal.App.3d 906,

persuasive. In that case . . , the Court of Appeal rejected the claim that an expressly

prospective law increasing conduct credits violated equal protection unless applied

retroactively to prisoners who had previously earned conduct credits at a lower rate. „The

obvious purpose of the new section,‟ the court reasoned, „is to affect the behavior of


                                             18
inmates by providing them with incentives to engage in productive work and maintain

good conduct while they are in prison.‟ (Strick, at p. 913.) „[T]his incentive purpose has

no meaning if an inmate is unaware of it. The very concept demands prospective

application.‟ (Ibid.) „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.‟ (Ibid.)” (People v.

Brown, supra, 54 Cal.4th at pp. 328-329.)

       In re Kapperman (1974) 11 Cal.3d 542, on which defendant relies, is

distinguishable. There, the California Supreme Court held a new statute that provided for

presentence custody credits for prison inmates must be applied retroactively to avoid

violating equal protection guaranties. However, credit for time actually served is not the

same as credit for good behavior. (See People v. Brown, supra, 54 Cal.4th at p. 330.)

       In People v. Ellis (2012) 207 Cal.App.4th 1546, the Court of Appeal found “no

reason Brown’s conclusions and holding with respect to the January 25, 2010,

amendment should not apply with equal force to the October 1, 2011, amendment. (See

People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9 [144 Cal.Rptr.3d 169, 281 P.3d 72].)

Accordingly, we reject defendant‟s claim he is entitled to earn conduct credits at the

enhanced rate provided by current [Penal Code] section 4019 for the entire period of his

presentence incarceration.” (Id. at p. 1552.)

       For the same reasons, we also reject defendant‟s claim here that he should be

awarded additional presentence conduct credits.




                                            19
                                       DISPOSITION

       The minutes of the sentencing hearing and the abstract of judgment must be

corrected to reflect that the court ordered the sentence on count 2 to be stayed, pursuant

to Penal Code section 654. Further, the abstract of judgment should be amended to strike

the fourth prison term prior, inasmuch as the trial court clearly indicated its intent not to

impose sentence as to that enhancement. A copy of the abstract of judgment as corrected

shall be forwarded to the California Department of Corrections and Rehabilitation. With

the exception of these minor corrections to defendant‟s sentence, we reject otherwise

defendant‟s contentions and we affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 McKINSTER
                                                                                                J.


We concur:


HOLLENHORST
          Acting P. J.


MILLER
                           J.




                                              20
