Filed 5/31/13 P. v. Deanda 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C070057

         v.                                                                      (Super. Ct. No. 11F04586)

JOSE ALBERTO DEANDA,

                   Defendant and Appellant.


         Defendant Jose Alberto Deanda appeals from a judgment after he pled no contest
to first degree burglary. He argues the trial court erred in failing to award him enhanced
presentence credits under the current version of Penal Code section 4019,1 amended
pursuant to the Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 482)
(Realignment Act), and thus he is entitled to additional conduct credits. We disagree and
affirm the judgment.




1   Undesignated statutory references are to the Penal Code.


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                                          FACTS
        Defendant committed first degree burglary on June 26, 2011. On December 9,
2011, he pled no contest to that charge and was immediately sentenced to serve a term in
state prison for two years. He was awarded 217 days of presentence custody credits,
consisting of 145 days actually served plus 72 days for good conduct. The trial court
calculated the conduct credits at the rate in existence at the time he committed the
offense.2
                                       DISCUSSION
        Operative October 1, 2011, the Realignment Act amended section 4019 to enhance
the rate at which defendants could earn conduct credits from two days for every four days
actually served (former § 4019) to two days for every two days actually served (amended
§ 4019, subd. (f)). The Realignment Act also added subdivision (h) to section 4019,
which provides: “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
[specified facilities] 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.”
        On appeal, defendant contends he is entitled to have his presentence conduct
credits calculated at the enhanced rate provided by the Realignment Act for his days in
custody from October 1, 2011, to December 9, 2011. He argues that pursuant to the rule
of lenity, the language of subdivision (h) of section 4019 should be interpreted to award
presentence conduct credits for custody on or after October 1, 2011. He also argues that



2      The rate for calculating conduct credit in existence on June 26, 2011, was to divide
the number of days actually served by four, truncate any remainder, and then multiply the
quotient by two. (See People v. Culp (2002) 100 Cal.App.4th 1278, 1283.)


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for defendants who committed offenses prior to October 1, 2011, principles of equal
protection compel the application of section 4019 to defendants in presentence custody
from October 1, 2011, to the date of sentencing. Consistent with the reasoning of other
appellate courts that have addressed these arguments, we reject both arguments.
                                   Statutory Construction
       Under the rule of lenity, “California [courts] will „ “construe a penal statute as
favorably to the defendant as its language and the circumstances of its application may
reasonably permit . . . .” ‟ [Citation.]” (In re Michael D. (2002) 100 Cal.App.4th 115,
125.) “However, application of the rule of lenity is inappropriate unless, after
consideration of the intent of the statute, the canons of statutory construction, and an
analysis of the legislative history, the statute is still ambiguous.” (Ibid., see also People
v. Avery (2002) 27 Cal.4th 49, 58 [“[A]lthough true ambiguities are resolved in a
defendant‟s favor, an appellate court should not strain to interpret a penal statute in
defendant‟s favor if it can fairly discern a contrary legislative intent”].)
       As noted, subdivision (h) provides: “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 [specified facilities] 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.”
       Subdivision (h) does contain an ambiguity. Specifically, while the first sentence
of subdivision (h) expresses the Legislature‟s intent that application of the enhanced
conduct credits are limited to defendants whose crimes are committed on or after
October 1, 2011, the second sentence of the subdivision arguably implies any days earned
by a defendant on or after October 1, 2011, should be calculated at the rate required by
the current law.




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       Two appellate courts have addressed this ambiguity and interpreted subdivision
(h) to give effect to both sentences, such that neither sentence will be rendered
inoperative, superfluous, void, or insignificant. In People v. Ellis (2012) 207 Cal.App.4th
1546 (Ellis), the court concluded: “In our view, the Legislature‟s clear intent was to have
the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the enhancement rate
to any other group, but merely specifies the rate at which all others are to earn conduct
credits. So read, the sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called realignment
legislation, applies based on the date a defendant‟s crime is committed, whereas section
1170, subdivision (h), which sets out the basic sentencing scheme under realignment,
applies based on the date a defendant is sentenced.” (Ellis, supra, 207 Cal.App.4th at
p. 1553, first italics omitted; all other italics added.)
       In People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam), the court
concluded: “[W]e cannot read the second sentence to imply any days earned by a
defendant after October 1, 2011, shall be calculated at the enhanced conduct credit rate
for an offense committed before October 1, 2011, because that would render the first
sentence superfluous.” (Rajanayagam, supra, 211 Cal.App.4th at p. 51.) Rajanayagam
explained its reasoning: “[S]ubdivision (h)‟s first sentence reflects the Legislature
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 defendants 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


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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.” (Id. at p. 52.)
       We agree with the reasoning of Ellis and Rajanayagam. Because the ambiguity
cited by defendant has been properly resolved by statutory construction of subdivision
(h), the rule of lenity is not applicable.
                                       Equal Protection
       In People v. Brown (2012) 54 Cal.4th 314 at pages 318-322 (Brown), our Supreme
Court held that under general rules of statutory construction a prior amendment to section
4019 must be read prospectively only, even though the Legislature did not expressly so
state, and even though this meant “prisoners whose custody overlapped the statute‟s
operative date . . . earned credit at two different rates.” (Brown, supra, 54 Cal.4th at
p. 322.) The court reasoned that “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.” (Brown, supra, at
pp. 328-330; see People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.)
       Defendant argues that unlike the defendant in Brown, he is similarly situated for
purposes of conduct incentives to other defendants who are in presentence custody on or
after October 1, 2011. Defendant contends there are two groups of similarly situated
prisoners: those in presentence custody on or after October 1, 2011, for crimes
committed before that date and those in presentence custody on or after October 1, 2011,


                                               5
for crimes committed on or after that date. Two appellate courts, relying on Brown’s
reasoning, have rejected the equal protection argument defendant raises as to the
October 1, 2011, amendment to section 4019. (Ellis, supra, 207 Cal.App.4th at pp. 1551-
1553; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-399 (Kennedy).)3 We agree
with these cases that the reasoning of Brown, supra, 54 Cal.4th 314 applies with equal
force to the current version of section 4019.
       Even assuming the two groups of defendants are similarly situated for purposes of
the October 1, 2011, amendment to section 4019, we conclude the classifications bear a
rational relationship to a legitimate state purpose. Like the appellate courts in Kennedy,
Verba, and Rajanayagam that applied the equal protection rational basis test, there are
several legitimate reasons for making the enhanced presentence conduct credits
applicable only to those who commit their crimes on or after October 1, 2011, including
cost savings measured against public safety (Verba, supra, 210 Cal.App.4th at pp. 996-
997; Rajanayagam, supra, 211 Cal.App.4th at p. 55), maintaining the desired deterrent
effect of penal laws by carrying out the punishment in effect at the time defendants
commit their offenses (Kennedy, supra, 209 Cal.App.4th at p. 398, Verba, supra, 210
Cal.App.4th at p. 997), and the Legislature‟s right to control the risk of new legislation by
limiting its application (Verba, supra, 210 Cal.App.4th at p. 997).
       Based on the reasoning of Brown, supra, 54 Cal.4th 314 and the rational basis test,
we reject defendant‟s equal protection argument.




3 Two appellate courts did not rely on Brown, supra, 54 Cal.4th 314 in their analysis
rejecting an equal protection argument. Both courts concluded the two groups of
prisoners are similarly situated for purposes of the October 1, 2011, amendment and
determined there was a rational basis for the classifications. (People v. Verba (2012) 210
Cal.App.4th 991, 995-997 (Verba); Rajanayagam, supra, 211 Cal.App.4th at pp. 54-55.)


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                                    DISPOSITION
     The judgment is affirmed.



                                                  HOCH   , J.



We concur:



      HULL         , Acting P. J.



      BUTZ         , J.




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