Filed 8/2/13 P. v. Johnson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E055124

v.                                                                       (Super.Ct.No. RIF132634)

CLYDE JOHNSON, JR.,                                                      OPINION

         Defendant and Appellant.



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

Affirmed.

         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, Melissa Mandel and Meredith S.

White, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Clyde Johnson, Jr., appeals after a guilty plea to four

vehicular offenses. The sole issue on appeal is the calculation of presentence custody

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credits under Penal Code section 4019. Defendant argues that he is entitled to two-for-

two credits under the most recent amended version of Penal Code section 4019; the

People contend that the most recent amendment was prospective only and does not apply

to defendant. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On August 20, 2006, a police officer in Claremont, California, saw defendant fail

to stop his vehicle at a red light. The officer activated the lights and siren of his marked

police vehicle to pull defendant over. Defendant pulled over momentarily, but then sped

away, which led to a vehicle chase. The chase eventually ended and defendant was

arrested.

       As a result, defendant was initially charged with several traffic offenses: fleeing

or evading a peace officer (Veh. Code, § 2800.2) in count 1; driving under the influence

(DUI) of alcohol (Veh. Code, § 23152, subd. (a)) in count 2 (with an allegation of a 1999

DUI prior); driving with a blood-alcohol level over 0.08 percent (Veh. Code, § 23152,

subd. (b)) in count 3 (alleging the same 1999 DUI prior); and driving without a valid

license (Veh. Code, § 12500, subd. (a)) in count 4. The complaint also alleged five prior

prison term offenses under Penal Code section 667.5, subdivision (b) (a 1999 conviction

of terrorist threats, a 1998 conviction of recklessly evading a police officer, a 1997

conviction of second degree burglary, a 1990 conviction of possession of drugs for sale,

and a 1986 conviction of possession of drugs).

       After a preliminary hearing, defendant was charged in 2008 by information with

most of the same offenses: count 1, evading a peace officer in violation of Vehicle Code


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section 2800.2; count 2, DUI in violation of Vehicle Code section 23152, subdivision (a);

count 3, driving with a blood-alcohol level over 0.08 percent in violation of Vehicle Code

section 23152, subdivision (b); and count 4, a charge of driving while his privileges were

suspended, in violation of Vehicle Code section 14601.2, subdivision (a), in place of the

former charge under Vehicle Code section 12500, subdivision (a). The same prior DUI

was alleged with respect to counts 2 and 3, the same five prior prison term allegations

were included in the information, and the 1999 conviction for terrorist threats was alleged

as a strike prior.

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

the court declined to do so. Defendant then withdrew his not guilty plea and made a plea

to the court of guilty as to counts 1 and 2 (felony evading an officer and misdemeanor

DUI) in exchange for a prison term of four years. The prosecutor refused to agree to

dismiss the remaining two misdemeanor counts, so defendant eventually pleaded guilty to

all four charges. The sentence on the principal count, felony evading an officer, was

doubled under the “Three Strikes” law, for a term of four years in prison. The

misdemeanor sentences were made concurrent. The court dismissed the five prison term

priors in the interest of justice. Defendant‟s plea agreement indicated he was to be given

credit for 89 days of actual pretrial custody, plus 44 days of conduct credits under Penal

Code section 4019, for a total of 133 days. At the change-of-plea hearing, the court

stated on the record, pursuant to discussions in chambers, its understanding that, even

though defendant had the criminal threats prior strike conviction, he would still be

eligible to receive 50 percent custody credits in prison.


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       Defendant, upon learning that he would not be eligible to earn 50 percent conduct

credits in state prison, filed a petition for writ of habeas corpus with this court in case

No. E053246. This court ordered the trial court to conduct a hearing to determine, as a

factual matter, whether the belief or representation that he would be able to earn 50

percent conduct credits against his prison service was a substantial factor in defendant‟s

decision to enter a guilty plea. The trial court held the hearing as directed on August 26,

2011. The court found, upon hearing testimony of defendant and his former counsel, that

the advisement that he would be able to earn 50 percent credits was a substantial factor in

the decision to plead guilty. The trial court therefore ordered the guilty pleas withdrawn,

nunc pro tunc to the plea date of November 18, 2008.

       In October 2011, defendant again waived his constitutional rights and pleaded

guilty to all four counts and admitted the strike prior. The court dismissed the prison

term priors. This time, defendant was fully advised and understood that he would be

eligible to earn only 20 percent credits against his prison term. Defendant was awarded

credit for 572 days of actual presentence custody, plus 286 days of credits under Penal

Code section 4019, for a total of 858 days.

       Defendant filed a timely notice of appeal in November 2011.

       In February 2012, the trial court received an ex parte letter from the California

Department of Corrections and Rehabilitation (CDCR), advising the court that, pursuant

to People v. Honea (1997) 57 Cal.App.4th 842 and People v. Chew (1985) 172

Cal.App.3d 45, defendant was entitled to presentence conduct credits only for that time

before he initially pleaded guilty and started serving his state prison sentence. At the


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time defendant was first sentenced, he had been awarded 29 days of actual service credit

and 28 days of local conduct credits. The letter asked the court to “review your file to

determine if a correction is required.” The court entered an ex parte order in the minutes,

correcting the award of credits nunc pro tunc, to award defendant 29 days of actual

presentence custody credit, plus 28 days of presentence conduct credit, for a total of 57

days.

        Appointed appellate defense counsel filed a motion in the trial court to again

modify defendant‟s presentence custody credits. Counsel noted amendments to the credit

provisions: before October 1, 2011, Penal Code section 4019 covered custody credits for

local presentence time, and Penal Code section 2933 provided for custody credits against

time served in state prison. As a result of the Criminal Justice Realignment Act of 2011

(hereafter Realignment Act or Act) (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1), the

custody credits provisions were consolidated into Penal Code section 4019 as amended.

Under the current version, even a defendant with a strike prior would be eligible for day-

for-day, or 50 percent, custody credits as long as the current offense was nonviolent. The

Realignment Act amendments to Penal Code section 4019 were expressly made

applicable only to crimes committed on or after the effective date, October 1, 2011.

However, counsel argued that equal protection principles required the new custody credit

provisions to be applied retroactively to all inmates, analogously to In re Kapperman

(1974) 11 Cal.3d 542, 544-545. Counsel informed the court that he filed the motion in




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the trial court in the first instance because, until the trial court ruled on the motion, the

equal protection argument could not be pursued on appeal.1

       The trial court denied the motion, and defendant filed a new notice of appeal.

       Appellate defense counsel followed up with another request, this time to correct

the calculation of days of credit to which defendant was entitled. Counsel argued that

both the calculation of actual days of custody credit and the days of presentence conduct

credit were in error. First, the letter from the CDCR had asked the court to recalculate

only the conduct credits, and had not requested any change to the determination of how

many days in actual custody defendant had served. Defendant should therefore be

entitled to the 572 days of credit he had actually served at the time of the second

sentencing, and not reduced to the 29 days calculated as of the time of the first

sentencing. Second, the CDCR letter assumed that only the sentence had been reversed

or recalled, when the conviction itself had been vacated by defendant‟s withdrawal of his

plea. Pursuant to In re Martinez (2003) 30 Cal.4th 29 (Martinez), defendant was entitled

to conduct credit for time earned before the first sentencing, plus time between the date

the first judgment was vacated and the second sentence was imposed. The court deemed

defendant‟s guilty pleas withdrawn on September 14, 2011. Defendant entered a new

guilty plea and was sentenced on October 21, 2011, a period of 38 days. He had also


       1  When he learned that the trial court had amended the award of credits in
response to the CDCR letter, appointed appellate defense counsel moved to withdraw the
opening brief that he had filed on March 14, 2012. That brief had challenged only the
calculation of defendant‟s presentence credits. Appellate counsel filed a new notice of
appeal on March 28, 2012.


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previously served 29 days of actual custody before the first sentencing. At a 50 percent

rate, defendant should have been awarded 67 days of presentence conduct credit.

       The trial court responded by modifying defendant‟s custody credits again. The

court determined that defendant had been in custody during three distinct periods: phase

I, in local custody between his arrest and the first sentencing; phase II, serving his

sentence of imprisonment from the time of the first sentence to the time that the first

sentence was reversed; and phase III, between the time of the reversal of his first sentence

to the time he was sentenced for a second time. The trial court was required to calculate

the days of actual custody defendant had served during all three phases. However, the

CDCR and defense counsel had pointed out that, pursuant to Martinez, supra, 30 Cal.4th

29, only the CDCR was permitted to calculate conduct credits attributable to phase II,

when defendant was serving his sentence under the auspices of the CDCR and subject to

its rules and regulations. The trial court was responsible for calculating the custody

credits attributable to periods when no sentence was in effect, i.e., during phases I and III.

       The trial court determined that defendant was entitled to a total of 572 days of

actual custody credit for all three phases of incarceration. He had admitted a prior strike,

and was therefore eligible only for two-for-four credits under the version of Penal Code

section 4019 in effect from January 25, 2010, to September 27, 2010. The trial court had

already denied defendant‟s motion to have the most recent version of Penal Code section

4019 apply to him, under equal protection grounds. Defendant had earned 30 days of

actual custody credit in phase I. His credits under Penal Code section 4019 should have

been 14 days. Defendant earned 57 days of actual custody credit in phase III. His credits


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under Penal Code section 4019 for phase III should have been 28 days. The trial court

awarded defendant 572 days of actual custody credit, plus 42 days of conduct credits for

phases I and III, for a total of 614 days of credit. The trial court ordered the CDCR to

calculate the credits to be awarded to defendant for phase II.

       We now turn to a consideration of defendant‟s appeal.

                                        ANALYSIS

                                   I. Standard of Review

       Defendant does not quarrel with the trial court‟s adoption of the multi-phase

approach for calculation of credits set out in Martinez, supra, 30 Cal.4th 29. Rather,

defendant urges only that he should be awarded day-for-day conduct credit under

principles of equal protection. This contention presents a question of statutory

interpretation and the construction of constitutional provisions. The contention thus

raises what is primarily an issue of law, which we review de novo. (People v. McKee

(2012) 207 Cal.App.4th 1325, 1338 [the appellate court reviews de novo a determination

whether a statutory provision violates a defendant‟s equal protection rights].) The

applicability of the statute does depend on certain factual matters, such as whether a

defendant‟s current conviction is for a violent felony conviction or whether other

disqualifying factors obtain. However, where the underlying facts are not in dispute, the

issue remains one of law, which we review independently. (See Kim v. Superior Court

(2006) 136 Cal.App.4th 937, 940 [independent review is appropriate when the issue

involves the application of a statute to undisputed facts].)




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             II. Prospective Application of Penal Code Section 4019 Does Not

                             Violate Equal Protection Principles

         Defendant recognizes that, by its terms, the new version of Penal Code section

4019, which provides for two-for-two credits for most inmates, applies only to defendants

whose crimes were “committed on or after October 1, 2011.” (Pen. Code, § 4019,

subd. (h).) However, he contends that the ameliorative effect of the statutory change

should be applied to all inmates because of the equal protection clauses of the federal and

state Constitutions. (In re Kapperman, supra, 11 Cal.3d 542, 544-545; U.S. Const.,

14th Amend.; Cal. Const., art I, § 7.)

         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. (Former Pen. Code, § 4019, subds. (b), (g); 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.


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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 “[t]he changes

to this section enacted by the [A]ct 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.” 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.

         In People v. Brown (2012) 54 Cal.4th 314 (Brown), the California Supreme Court

addressed the version of Penal Code section 4019 in effect on January 25, 2010. There,

the court rejected an analogous argument that the more lenient provisions of that version

of the statute must be applied retroactively to avoid violation of the equal protection

clauses of the federal and state Constitutions. The Brown court stated:

         “The concept of equal protection recognizes that persons who are similarly

situated with respect to a law‟s legitimate purposes must be treated equally. [Citation.]

Accordingly, „ “[t]he first prerequisite to a meritorious claim under the equal protection


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clause is a showing that the state has adopted a classification that affects two or more

similarly situated groups in an unequal manner.” ‟ [Citation.] „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.” ‟ ” (Brown, supra, 54 Cal.4th 314, 328.)

The court noted, however, 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.” (Id. at pp. 328-329.)

       The Brown court held that In re Kapperman, supra, 11 Cal.3d 542, upon which

defendant relies, was not controlling. Kapperman involved the exclusion of a class of

inmates from earning 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. (People v. Brown, supra, 54 Cal.4th

314, 330.)

       We therefore reject defendant‟s claim that he is entitled to additional conduct

credits based on equal protection principles.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




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                              McKINSTER
                                          J.


We concur:


HOLLENHORST
          Acting P. J.


MILLER
                    J.




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