Filed 11/14/13 P. v. Sanders CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062588

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN284313)

RICHARD SANDERS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Runston G. Maino, Judge. Affirmed.



         Sheila Quinlan, 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, William M. Wood and

Felicity Senoski, Deputy Attorneys General for Plaintiff and Respondent.
                                    INTRODUCTION

       A court found Richard Sanders guilty of commercial burglary (Pen. Code, § 459)1

and check forgery (§ 470, subd. (d)). Sanders admitted having a prior strike conviction

(§§ 667, subds. (b)-(i), 1170.12) and the court found true allegations he had three prior

prison commitment convictions (§ 667.5, subd. (b)). The court sentenced him to four

years in prison and awarded him 776 days of presentence custody credit, consisting of

518 days of actual custody credit plus 258 days of conduct credit.

       Sanders appeals, contending he is entitled to an additional 166 days of conduct

credit. We disagree and affirm the judgment.

                                     DISCUSSION2

       Based on amendments to section 4019, which took effect on October 1, 2011,

Sanders contends he is entitled to additional presentence conduct credit for the time he

served from that date to his sentencing date. He further contends failure to award him

additional presentence conduct credit for this time deprives him of equal protection of the

law.

       Section 4019, which specifies the rate of presentence conduct credit an inmate in

local custody may earn, has undergone numerous revisions in the past several years.

(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48-50 (Rajanayagam) [detailing the

history of recent amendments]; People v. Garcia (2012) 209 Cal.App.4th 530, 533-540

1      Further statutory references are also to the Penal Code unless otherwise stated.

2      We omit a summary of the circumstances underlying Sanders's convictions, as
they are not relevant to the issue Sanders raised on appeal.
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[same].) At the time of Sanders's offenses, section 4019 allowed an inmate in local

custody who had a prior serious or violent felony conviction to earn up to two days of

conduct credit for every four days of actual custody. (Former § 4019, subds. (b)(2),

(c)(2), & (f), Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010; People

v. Garcia, supra, at pp. 536-537.)

        As of October 1, 2011, section 4019 allows an inmate in local custody to earn up

to four days of conduct credit for every two days of actual custody. (Amended § 4019,

subds. (b), (c), & (f), Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, operative Oct. 1, 2011;

Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct. 1, 2011; Stats. 2011-2012, 1st

Ex. Sess., ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011; People v. Ellis (2012)

207 Cal.App.4th 1546, 1549-1550.) Unlike the formula under which the court sentenced

Sanders, this formula applies to inmates with prior serious or violent felonies as long as

the current offense is not a violent crime or murder. (§§ 2933.1, subd. (c), 2933.2, subd.

(c).)

        Of pertinence here, subdivision (h) of amended section 4019 states, "The changes

to this section . . . shall apply prospectively and shall apply to prisoners who are confined

to a county jail . . . 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." According to Sanders, the second sentence creates an ambiguity, which we should

interpret to allow him to earn additional conduct credits for the local time served after

October 1, 2011, even though he committed his crime before then. However, as the

Rajanayagam court explained, "subdivision (h)'s first sentence reflects the Legislature

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intended the enhanced conduct credit provision to apply only to those defendants who

committed their crimes on or after October 1, 2011. Subdivision (h)'s second sentence

does not extend the enhanced conduct credit provision to any other group, namely those

defendants who committed offenses before October 1, 2011, but are in local custody on

or after October 1, 2011. Instead, subdivision (h)'s second sentence attempts to clarify

that those defendant's who committed an offense before October 1, 2011, are to earn

credit under the prior law. However inartful the language of subdivision (h), we read the

second sentence as reaffirming that defendants who committed their crimes before

October 1, 2011, still have the opportunity to earn conduct credits, just under prior law.

[Citation.] To imply the enhanced conduct credit provision applies to defendants who

committed their crimes before the effective date but served time in local custody after the

effective date reads too much into the statute and ignores the Legislature's clear intent in

subdivision (h)'s first sentence." (Rajanayagam, supra, 211 Cal.App.4th at p. 52; see

also, People v. Ellis, supra, 207 Cal.App.4th at p. 1553 ["The second sentence does not

extend the enhanced rate to any other group, but merely specifies the rate at which all

others are to earn conduct credits"]; People v. Garcia, supra, 209 Cal.App.4th at p. 541

[the language of amended section 4019 does not entitle a defendant who was sentenced

after its effective date but whose crimes occurred prior to its effective date to additional

conduct credit].)

       This interpretation and its application to Sanders does not deprive him of equal

protection of the law because, assuming he is similarly situated to inmates who

committed their offenses after the effective date of amended section 4019, the Legislature

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nonetheless had a rational basis for treating the latter inmates differently. Amended

section 4019 was part of larger legislation whose purpose was to " 'to reduce recidivism

and improve public safety, while at the same time reducing corrections and related

criminal justice spending.' " (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) "[I]n

choosing October 1, 2011, as the effective date of [amended section 4019], the

Legislature took a measured approach and balanced the goal of cost savings against

public safety. The effective date was a legislative determination that its stated goal of

reducing corrections costs was best served by granting enhanced conduct credits to those

defendants who committed their offenses on or after October 1, 2011. To be sure,

awarding enhanced conduct credits to everyone in local confinement would have

certainly resulted in greater cost savings than awarding enhanced conduct credits to only

those defendants who commit an offense on or after the amendment's effective date. But

that is not the approach the Legislature chose in balancing public safety against cost

savings. [Citation.] Under the very deferential rational relationship test, we will not

second-guess the Legislature and conclude its stated purpose is better served by

increasing the group of defendants who are entitled to enhanced conduct credits when the

Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced

conduct credit to only those defendants who committed their offenses on or after

October 1, 2011." (Rajanayagam, at pp. 55-56.)




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                                 DISPOSITION

     The judgment is affirmed.


                                               MCCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.




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