Filed 3/7/13 P. v. Meyers CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A132787
v.
LOUIS MEYERS,                                                        (San Francisco County
                                                                     Super. Ct. No. 212059)
         Defendant and Appellant.


         Defendant Louis Meyers was convicted of attempted grand theft and sentenced to
five years in state prison. On appeal, he contends that the trial court denied his right to
make a personal statement in mitigation at sentencing. He also contends that he is
entitled to additional presentence conduct credits, based either on the law in effect when
he was sentenced, or the retroactive application of the current conduct credit scheme. We
agree Meyers is entitled to additional conduct credits. In all other respects, however, we
affirm the judgment.
                                                I. BACKGROUND
         On February 14, 2010, Meyers walked into a bar in San Francisco where the
owner was counting the receipts from the previous night. Meyers grabbed some of the
money. The bar owner tried to stop him and a struggle ensued. Meyers eventually
dropped or threw down the money and left the bar empty-handed. The police, responding
to a 911 call, apprehended Meyers.




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         The district attorney charged Meyers with attempted second degree robbery (Pen.
Code, §§ 664, 211).1 The information alleged two prior serious felony strike convictions
(§§ 667, subds. (d), (e); 1170.12, subds. (b), (c)) and nine prior felony convictions for
which Meyers had served prison terms (§ 667.5, subd. (b)).
         A jury found Meyers guilty of the lesser included offense of attempted grand theft
(§§ 664, 487). Regarding the prior conviction allegations, the parties entered into a
stipulation whereby the district attorney agreed to dismiss one of the strike allegations,
and Meyers agreed to admit all of the remaining prior conviction allegations, including
one strike. The court then sentenced Meyers to five years in prison by imposing the
middle term (one year) for the attempted grand theft conviction, doubling it based on the
prior strike conviction, and adding three one-year enhancements for three of the prior
prison term felonies. The court dismissed the remaining prior prison term enhancements.
         The trial court awarded Meyers 111 days of local (presentence) conduct credits
based on Meyers’s actual custody time of 503 days. In calculating the conduct credits,
the court explained “he has to serve 80 percent because it’s a strike.”
                                       II. DISCUSSION
A. Right to Make Personal Statement in Mitigation
         Meyers correctly contends he has a right to make a sworn personal statement in
mitigation of punishment. (See People v. Evans (2008) 44 Cal.4th 590, 598-599; see also
§ 1204.) Contrary to Meyers’s argument, however, the record reveals he was afforded
that right.
         Meyers and his counsel appeared in court on May 20, 2011, after the jury verdict
and after he had admitted the priors. The court indicated it was prepared to sentence
Meyers, but ultimately only decided Meyers’s motion to dismiss the remaining strike
pursuant to section 1385 (People v. Romero (1996) 13 Cal.4th 497). Defense counsel
proposed to have Meyers sworn in to testify in connection with the Romero motion.
Counsel made the following offer of proof: Meyers would explain “his prior actions” and

1
    All further statutory references are to the Penal Code.


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why he “does these things and repeats these things.” The court declined to hear the
testimony and, after considering the parties’ arguments, denied the Romero motion.
       The court sentenced Meyers on July 1, 2011. Before the court pronounced
sentence, Meyers made a brief unsworn statement in which he apologized, and asked for
a sentence of probation with credit for time served. (See People v. Evans, supra,
44 Cal.4th at p. 599 [defendant may make brief unsworn statement urging lesser
punishment with parties’ consent].) Neither he nor his attorney made a request to provide
further testimony regarding mitigation.
       The record thus shows the court allowed Meyers to make a statement in
mitigation, and that Meyers was not denied an opportunity to present formal, sworn
testimony when he was sentenced. Meyers does not cite any authority requiring a trial
court to hear testimony in connection with a Romero motion. We agree with respondent
that the court had discretion to hear testimony and, given the offer of proof, reasonably
declined to hear Meyers’s testimony on the Romero motion.
B. Presentence Conduct Credits
 1. Award of Conduct Credits Based on Date of Offense
       Meyers argued in his opening brief that he was entitled to receive presentence
conduct credits based on the version of section 4019 in effect on the date he was
sentenced. According to Meyers, the law at that time provided for conduct credits at a
rate of two days for every four days served in custody. (Former § 4019, subd. (f);
stats. 2010, ch. 426, § 2.) Respondent replied that conduct credits should be calculated
based on the version of section 4019 in effect when Meyers committed his crime, but that
Meyers would not be entitled to any more credits under either version. Respondent,
however, did not explain how the trial court came to award 111 days of conduct credits
under either version of section 4019.
       Based on our review of the record and the law, the trial court’s calculation appears
incorrect under any of the possible scenarios for awarding presentence conduct credits.
As best as we can tell, the trial court believed Meyers was limited to earning presentence
conduct credits at a rate of 20 percent of actual custody time because he was being


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sentenced under the Three Strikes Law. That law, however, limits prison conduct credits,
not presentence credits, to 20 percent of custody time. (§ 667, subd. (c)(5).)
       Because neither Meyers nor respondent identified the trial court’s error or
otherwise appeared to have used the correct analysis, we requested supplemental briefing
on how the trial court calculated Meyers’s conduct credits. Respondent replies by simply
stating that the trial court reached its result by using “the twenty percent formula.” As to
whether that formula was correct (or even an option), respondent suggests, in a footnote,
that Meyers “may in fact only be entitled to accrue conduct credit at fifteen percent”
pursuant to section 2933.1.
       In his supplemental reply, Meyers continues to argue he is entitled to two days of
conduct credit for every four days served (six days of total credit for every four days
spent in actual custody), but now he relies on the version of section 4019 in effect at the
time he committed his offense. Meyers also claims that respondent’s suggestion that
section 2933.1 might apply in his case is wrong. That section limits conduct credits to
15 percent when the current conviction is one of the violent felonies listed in section
667.5, subdivision (c). Meyers’s crime, attempted grand theft, is not on that list.
       Based on the supplemental briefing and before reaching Meyers’s equal protection
contention, post, it now appears both sides agree Meyers’s conduct credits should be
calculated based on the law in effect at the time he committed his crime. (See People v.
Brown (2012) 54 Cal.4th 314, 322-323 (Brown).)2 Under subdivisions (b)(2) and (c)(2)
of former section 4019 (S.B. No. 18), Meyers was therefore entitled to two days of
conduct credit for each four-day period served, or as summarized in subdivision (f): “[A]




2
 The version of section 4019 in effect at that time (stats. 2009, 3rd Ex.Sess. 2009-2010,
ch. 28, § 62, hereafter S.B. No. 18), provided the possibility of day-for-day credits.
(Former § 4019, subds. (b)(1), (c)(1), (f).) Meyers, however, was not eligible for day-for-
day credits based on his prior serious felony conviction for robbery (not second degree
burglary as Meyers states in his supplemental brief).


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term of six days will be deemed to have been served for every four days spent in actual
custody for persons described in paragraph (2) of subdivision (b) or (c).”3
         By Meyers’s calculation, he was entitled to 250 days of conduct credits (503
actual days served divided by 4 equals 125 sets of four days, multiplied by 2 equals 250
days of conduct credits). We agree.
    2. Equal Protection
         The Legislature amended section 4019 again, effective after Meyers was
sentenced. Meyers contends he is entitled under equal protection principles to the more
generous credit provisions of this amended version.
         As part of the 2011 Realignment Legislation (Stats. 2011, ch. 15, § 1), the
Legislature amended section 4019 to once again provide the possibility of day-for-day
presentence conduct credits. The amended (and current) version of section 4019
provides: “It is the intent of the Legislature that if all days are earned under this section,
a term of four days will be deemed to have been served for every two days spent in actual
custody.” (Id., subd. (f).) Pertinent to Meyers, nothing in section 4019 (or section 2933)
limits or reduces presentence custody credits for persons with a prior serious felony
conviction. This new scheme, however, expressly applies only to persons convicted of
crimes committed on or after October 1, 2011. (Id., subd. (h).)4
         Meyers argues his presentence conduct credits should be calculated under the
current version section 4019, even though his crime was committed before October 1,
2011. He asserts that when the Legislature enacts a more generous credit scheme, it must



3
 It appears Meyers would have been entitled to the same number of conduct credits
under either of the versions of section 4019 in effect while he was in presentence custody,
but we need not definitively answer that question to resolve this appeal.
4
 Section 4019, subdivision (h), provides: “The changes to this section enacted by the act
[Stats. 2011, ch. 15, § 1] 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 prisoner
prior to October 1, 2011, shall be calculated at the rate required by the prior law.”


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be retroactively applied to all prison inmates “by virtue of the equal protection clauses of
the state and federal Constitutions.”
       The Supreme Court’s decision in Brown, supra, 54 Cal.4th 314 forecloses
Meyers’s argument. Although the equal protection claim in Brown involved the version
of section 4019 effective January 25, 2010 (S.B. No. 18), the same principles apply when
considering the section’s more recent amendments. (See People v. Lara (2012)
54 Cal.4th 896, 906, fn. 9.)
       The first prerequisite to a meritorious equal protection claim is a showing that
persons are similarly situated for purposes of the law challenged. (Brown, supra,
54 Cal.4th at p. 328.) Prisoners who served local custody time before and after
October 1, 2011, however, are not similarly situated. “[T]he 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.” (Id.
at pp. 328-329.)
       In Brown, the Supreme Court distinguished the very same cases (People v. Sage
(1980) 26 Cal.3d 498; In re Kapperman (1974) 11 Cal.3d 542) Meyers relies on to
support his equal protection challenge. (Brown, supra, 54 Cal.4th at pp. 329-330.)
Following Brown, the appellate courts of this state have rejected the contention that equal
protection principles require the retroactive application of the version of section 4019
effective October 1, 2011. (People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397;
People v. Ellis (2012) 207 Cal.App.4th 1546, 1551-1552; see also People v. Verba (2012)
210 Cal.App.4th 991, 995-997 [finding prisoners who committed their crimes before and
after October 1, 2011, similarly situated but also finding a rational basis for their unequal
treatment].) We therefore reject Meyers’s equal protection challenge.
                                    III. DISPOSITION
       The judgment is modified to grant Meyers credit for 503 days in presentence
custody and 250 days of conduct credit for a total credit of 753 days. The judgment is


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affirmed all other respects. The superior court shall prepare an amended abstract of
judgment and deliver a copy to the Department of Corrections and Rehabilitation.




                                                _________________________
                                                Humes, J.


We concur:


_________________________
Ruvolo, P. J.


_________________________
Rivera, J.




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