Filed 6/4/13 P. v. Johnson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----

THE PEOPLE,                                                                                  C070920

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM034377)

         v.

ROBERT CHARLES JOHNSON,

                   Defendant and Appellant.



         In August 2011 defendant Robert Charles Johnson pleaded no contest to
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted
he had served four prior prison terms (Pen. Code, § 667.5, subd. (b)). A strike allegation
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12) was stricken on the prosecutor‟s motion.1
         In September 2011 defendant was sentenced to state prison for seven years.
Execution of sentence was suspended and defendant was placed on probation for three
years on the following conditions, among others: that he serve a period of incarceration
and complete a one-year residential treatment program.



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

                                                             1
       In December 2011 a petition was filed alleging defendant violated his probation by
committing a robbery. (§ 211.) In February 2012 he pleaded no contest to misdemeanor
battery (§ 242), and the trial court found him in violation of his probation. Probation was
revoked and execution of the prison sentence was ordered. Defendant was awarded
174 days‟ custody credit and 87 days‟ conduct credit. Defendant objected unsuccessfully
that recent legislation and principles of equal protection entitled him to an additional
87 days‟ conduct credit.
       On appeal, defendant claims recently amended section 4019, operative October 1,
2011, entitles him to a “bifurcated” award of conduct credit, and equal protection requires
that current section 4019 be applied retroactively to this case. We affirm.
                                          FACTS
       The facts of defendant‟s offense and probation violation are not at issue and need
not be recounted in this opinion.
       Defendant committed his offense on April 7, 2011. He was in custody on a parole
hold unrelated to this case from April 7, 2011, through August 4, 2011. Thereafter, he
was in custody on this case from August 5, 2011, until September 7, 2011, when he was
released on probation (34 days). After he violated probation, he returned to custody on
November 9, 2011, and remained there until he was sentenced to state prison on
March 28, 2012 (141 days). As noted, he was awarded 174 days‟ custody credit and
87 days‟ conduct credit. In part II at page 8, post, we address an arithmetic error in the
credit computation.
                                      DISCUSSION
                                              I
                               Presentence Conduct Credit
       Defendant contends he is entitled to additional presentence conduct credit under
recently amended section 4019, which became operative October 1, 2011. Unlike his
objection in the trial court, which sought additional conduct credit for his entire period of

                                              2
presentence custody in this case, defendant now seeks additional conduct credit only for
his custody following October 1, 2011, i.e., from his return to custody in November 2011
until his sentencing in March 2012.
       Defendant acknowledges the express terms of current section 4019, enacted as part
of the Criminal Justice Realignment Act of 2011, indicate it applies only to defendants
whose crimes were “committed on or after October 1, 2011,” and his crime occurred
prior to that date. (§ 4019, subd. (h); see Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39,
§ 53; Stats. 2011, 1st Ex. Sess. 2011, ch. 12, §§ 16, 35 (Assem. Bill No. 17).)2 However,
because the bulk of his presentence custody occurred after October 1, 2011, defendant
argues he is entitled to additional “bifurcated” conduct credit under present section 4019,
which provides two-for-two credit for defendants who serve presentence time in jail.
(§ 4019, subd. (f).) In addition, defendant asserts present section 4019 should apply to
him retroactively based on equal protection principles. Neither point has merit.
                             Bifurcated Calculation of Credit
       In October 2009, when it enacted the former version of section 4019 (Senate Bill
No. 18) that was at issue in People v. Brown (2012) 54 Cal.4th 314 (Brown), “the
Legislature did not expressly declare whether former section 4019 was to operate
prospectively or retroactively.” (Brown, at p. 320; see Stats. 2009, 3d Ex. Sess. 2009,
ch. 28, § 50.) Particularly relevant for present purposes, the Legislature never purported
to bar the Senate Bill No. 18 version of section 4019 from applying to crimes that



2  Section 4019 provides, in relevant part: “(g) The changes in this section as enacted by
the act that added this subdivision 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 the effective
date of that act. [¶] (h) 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 prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.” (Italics added.)

                                              3
occurred prior to its operative date. Thus, persons who committed crimes prior to the
operative date of Senate Bill No. 18 but served presentence custody both prior to and
following that effective date earned “bifurcated” credit at two different rates. In
concluding the statute applied prospectively only, the Brown court noted: “To apply
former section 4019 prospectively necessarily means that prisoners whose custody
overlapped the statute‟s operative date (Jan. 25, 2010) earned credit at two different
rates.” (Brown, at p. 322.)
        In contrast, when it enacted the present version of section 4019, the Legislature
expressly barred the statute from applying to crimes committed prior to its operative date,
October 1, 2011. (§ 4019, subd. (h); see fn. 2, ante.) Because the present credit scheme,
by its terms, does not give enhanced credit for crimes committed prior to October 1,
2011, the scheme does not allow prisoners whose custody overlapped the statute‟s
operative date to earn credit at two different rates.
        Rather, defendant‟s entitlement to conduct credit is governed by section 4019,
subdivision (g), which states: “The changes in this section as enacted by the act that
added this subdivision 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 the effective date of that
act.”
        The “act that added” section 4019, subdivision (g) was Senate Bill No. 76,
effective September 28, 2010. (Stats. 2010, ch. 426, § 2.) Section 4019, subdivision (g)
thus provides that the credit formula of Senate Bill No. 76 applies to persons, like
defendant, who are “confined . . . for a crime committed on or after” September 28, 2010.
(See People v. Hul (2013) 213 Cal.App.4th 182, 186-187.) Because defendant
committed his crime on April 7, 2011, his conduct credit must be calculated pursuant to
the formula of Senate Bill No. 76.
        Senate Bill No. 76 did not entitle defendant to day-for-day conduct credit because
he has a prior conviction of a serious felony. (§§ 459, 460, subd. (a), 1192.7,

                                               4
subd. (c)(18).) The prosecutor dismissed an allegation that this prior conviction
constitutes a “strike,” but the dismissal does not affect defendant‟s entitlement to
presentence conduct credit under section 4019. Senate Bill No. 76 entitles defendant to
two days‟ conduct credit for every six-day period of confinement. (Stats. 2010, ch. 426,
§ 2; § 4019, former subds. (b) & (c).)
       Defendant‟s claim that he is entitled to credit at two different rates, because a
different bifurcated credit scheme had been approved in Brown, ignores the significant
differences in the two versions of section 4019.
       Defendant nevertheless contends he is entitled to bifurcated credit based on
People v. Olague (2012) 205 Cal.App.4th 1126, which considered the language of
section 4019, subdivision (h). (See ante, fn. 2.) However, the Supreme Court granted
review in Olague and then dismissed review and remanded the matter to the Sixth
Appellate District in light of Brown. (Olague, supra, 205 Cal.App.4th 1125, review
dismissed Mar. 20, 2013, S203298.) As defendant acknowledges, the court in People v.
Ellis (2012) 207 Cal.App.4th 1546 (Ellis) examined the same language considered in
Olague and 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 [of section 4019, subdivision (h)] does
not extend the enhanced 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, at
p. 1553.) We agree with Ellis.
       Defendant cites Payton v. Superior Court (2011) 202 Cal.App.4th 1187 for the
proposition that “the „legislative intent in awarding or increasing credit for good conduct

                                              5
is to encourage good behavior and work performance by inmates in custody. Such good
behavior and work performance helps to maintain the security and safety of local custody
facilities. [¶] For these reasons, inmates are entitled to the conduct credits which are in
effect at the time their custody is served.‟ ” (Id. at p. 1191.) But as we have seen, two-
for-two credits were not “in effect” at the time defendant served his custody for persons
such as him whose offenses predated October 1, 2011. Thus, his reliance on Payton is
misplaced.
       We thus conclude, as a matter of statutory construction, that defendant is not
entitled to additional “bifurcated” conduct credit under the present version of
section 4019.
                                      Equal Protection
       After determining that principles of statutory construction and legislative intent
required the Senate Bill No. 18 version of section 4019 to be applied prospectively only,
the court in Brown concluded such application did not violate principles of equal
protection. (Brown, supra, 54 Cal.4th at pp. 322-323, 328-330.) In People v. Lara
(2012) 54 Cal.4th 896, the court more recently concluded the Legislature did not violate
equal protection by making its 2011 amendment of section 4019 expressly prospective.
(Lara, at p. 906, fn. 9; § 4019, subd. (h).)
       Defendant acknowledges that under these authorities, equal protection is not
violated where a prisoner whose entire presentence custody occurred prior to October 1,
2011, earns a lesser rate of conduct credit than a prisoner whose entire presentence
custody occurred after that date. But he claims equal protection is violated where, as
here, prisoners in presentence custody after October 1, 2011, earn different rates of
conduct credit depending on whether their offense occurred prior to that date. We
disagree.
       “ „The obvious purpose of the new section [4019] . . . is to affect the behavior of
inmates by providing them with incentives to engage in productive work and maintain

                                               6
good conduct while they are in prison.‟ [Citation.] „[T]his incentive purpose has no
meaning if an inmate is unaware of it.‟ ” (Brown, supra, 54 Cal.4th at p. 329, quoting
In re Strick (1983) 148 Cal.App.3d 906, 913.)
         As we have seen, the present version of section 4019 does not, by its terms, give
enhanced credit for crimes committed prior to October 1, 2011. Nor did decisional
authority extend the statute‟s reach beyond its textual bounds before defendant was
sentenced on March 28, 2012. Thus, having committed his crime prior to October 1,
2011, defendant could not have been aware, or even reasonably suspected, based on
anything more than speculation, he would be entitled to enhanced credit during any
portion of his presentence incarceration, even the part occurring after October 1, 2011.
Section 4019 could not have encouraged defendant, who was unaware of any such
incentive, to engage in productive work or maintain good conduct. (Brown, supra,
54 Cal.4th at p. 329.) This is so even though the statute gave such an incentive to other
simultaneously incarcerated inmates who committed their crimes after October 1, 2011.
         Following Brown, we conclude the “important correctional purposes of a statute
authorizing incentives for good behavior [citation] are not served by rewarding prisoners
who . . . could not have modified their behavior in response.” (Brown, supra, 54 Cal.4th
at pp. 328-329.) “That prisoners who [commit crimes] before and after [present]
section 4019 took effect are not similarly situated necessarily follows.” (Brown, at
p. 329; see Ellis, supra, 207 Cal.App.4th at pp. 1551-1552.) Because the groups are not
similarly situated, it is not necessary to consider defendant‟s arguments that the proper
standard of review is strict scrutiny and that there is no compelling state interest, or
rational basis, for the disparity in treatment. Defendant‟s equal protection claim has no
merit.




                                              7
                                               II
                              Computation of Custody Credit
        Defendant notes that he is entitled to one additional day of custody credit. The
period from November 9, 2011, through March 28, 2012, is 141 days, not the 140 days
computed by the probation department and awarded by the trial court.3 Combined with
the 34 days‟ custody credit from August 5, 2011, through September 7, 2011, defendant
is entitled to a total of 175 days‟ custody credit.
        Under the applicable version of section 4019, these 175 days‟ custody credit
entitle defendant to 86 days‟ conduct credit, not the 87 days‟ credit computed by the
probation department and awarded by the court. We shall modify the judgment
accordingly.
                                       DISPOSITION
        The judgment is modified to award defendant 175 days‟ custody credit and
86 days‟ conduct credit. As so modified, the judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified copy
thereof to the Department of Corrections and Rehabilitation.


                                                            RAYE              , P. J.

We concur:


          MURRAY             , J.


          HOCH               , J.




3   The period includes February 2012, which has 29 days.

                                               8
