Filed 4/25/13 P. v. Rodriguez CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B240119
                                                                           (Super. Ct. No. BA385961)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

ANTHONY RODRIGUEZ,

     Defendant and Appellant.



                   Anthony Rodriguez appeals from the judgment entered after a plea of no
contest to unlawful firearm activity. (Former Pen. Code, § 12021, subd. (e).)1 He
contends that the trial court erred in denying his motion under Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess), and that the calculation of his presentence conduct
credits under former section 4019 violated his right to equal protection of the law. We
affirm.
                                FACTS AND PROCEDURAL HISTORY
                   At 11:15 p.m. on June 25, 2011, Police Officer Isaias Medrano and his
partner Officer Morales responded to a report of a robbery at 27th Street and Hoover in
Los Angeles. The suspects were described as three male Hispanic gang members and
that one suspect was armed with a gun. As the officers drove on 27th Street,

                   1
                       All statutory references are to the Penal Code.
approximately one block from the robbery location, Officer Medrano saw Rodriguez in
the street. Rodriguez looked at the officers and ran away. Medrano turned on the
spotlight of his patrol car and watched where Rodriguez was going. Rodriguez ran
through a gate into a yard, knocked on the door of a residence, and spoke briefly with a
resident. The officers continued to follow Rodriguez with the spotlight. While still in the
yard, Rodriguez pulled a gun out of his waistband, and dropped it into a planter.
Rodriguez was arrested and the officers found a loaded automatic handgun in the planter.
              Rodriguez was charged with having a concealed firearm (former § 12025,
subd. (a)(2)), carrying a loaded firearm (former § 12031, subd. (a)(1)), and unlawful
firearm activity (former § 12021, subd. (e)). Also, a prior conviction for a serious or
violent felony was alleged.
              On December 1, 2011, Rodriguez moved to suppress evidence that a gun
was found in a planter because the police officers had no reasonable suspicion to detain
him or probable cause to arrest him. On December 5, Rodriguez filed a Pitchess motion
for discovery of any personnel records of Officers Medrano and Morales regarding
fabrication of evidence, filing false police reports, and numerous other acts of purported
misconduct. An attorney's declaration supporting the motion stated that Rodriguez
intended to use the documents to show that the officers filed a false police report and
themselves placed the gun in the planter. On January 9, 2012, the trial court denied the
Pitchess motion and, on February 23, the court denied the suppression motion.
              Thereafter, Rodriguez entered a plea of no contest to the unlawful firearm
activity charge. The other two charges were dismissed and the prior strike conviction
was stricken. The trial court sentenced Rodriguez to three years in prison.
              Rodriguez filed a timely appeal without a certificate of probable cause.
                                      DISCUSSION
                          No Error in Denial of Pitchess Motion
              Rodriguez contends that the trial court abused its discretion in denying his
Pitchess motion without conducting an in camera hearing. We disagree.


                                             2
              A guilty or no contest plea admits every element of the crime charged and
issues concerning the defendant's guilt or innocence are not cognizable on appeal
thereafter. (People v. Voit (2011) 200 Cal.App.4th 1353, 1364.) As a challenge to the
legality of the discovery process, appellate review of a Pitchess motion is included in this
rule and generally cannot be challenged after a guilty or no contest plea. (People v.
Hunter (2002) 100 Cal.App.4th 37, 42-43.)
              Appellate review of the legality of a search or seizure, however, is
permitted even if a subsequent conviction is predicated upon a plea of guilty or no
contest. (§ 1538.5, subd. (m).) The merits of a trial court's ruling on a Pitchess motion
may be considered in the appeal of the ruling denying a motion to suppress evidence if
the Pitchess motion is intertwined with the suppression motion and directed to the
legality of the search and seizure. (People v. Collins (2004) 115 Cal.App.4th 137, 150-
151 (Collins).)
              Rodriguez relies on the rule set forth in Collins in his challenge to the
denial of his Pitchess motion. We conclude that the Pitchess motion was not intertwined
with the suppression motion and cannot be reviewed on appeal pursuant to our
jurisdiction under section 1538.5, subdivision (m). In Collins, the issues raised in the
Pitchess motion were the primary basis for the defendant's suppression motion. Here,
discovery of information in the arresting officers' personnel files was sought to bolster
Rodriguez's defense at trial regarding his possession of a gun, and not on whether there
was good cause for his detention and arrest.
              In his suppression motion, Rodriguez argued that the police had no
reasonable suspicion to detain him merely because he ran when the patrol car spotlight
illuminated him standing in the street; they had no reason to detain him when he ran into
the yard of a residential dwelling or when he stopped running in the yard; and they had
no probable cause to arrest him for possession of a gun. In his Pitchess motion,
Rodriguez sought discovery of prior complaints against the police officers for filing false
police reports and fabricating evidence. The goal of the discovery was to obtain
information to utilize for impeachment purposes at trial.

                                               3
              Rodriguez did not seek a ruling on his Pitchess motion prior to his
suppression motion. And, in his appellate briefs Rodriguez notes that the suppression
motion was denied, but devotes his entire argument to the merits of his Pitchess motion.
At no point does Rodriguez address how the ruling on the suppression motion would
have been affected by the disclosure sought in his Pitchess motion. Finally, in light of
the suspicious conduct of Rodriguez before he threw the gun into the planter, documents
from the officers' personnel files would not have been critical to the suppression motion.
                       No Error in Calculation of Conduct Credits
              Rodriguez contends the trial court erred by calculating his presentence
conduct credits under a version of section 4019 in effect prior to its 2011 amendment. He
argues that equal protection principles require that he receive conduct credit under the
2011 amendment commencing October 1, 2011, its effective date, to his March 2012
sentencing. We disagree.
              In 2011, the Legislature amended section 4019 as part of the criminal
realignment legislation intended in part to reduce "corrections and related criminal justice
spending." (People v. Cruz (2012) 207 Cal.App.4th 664, 679.) Under the 2011
amendment, certain defendants became entitled to receive conduct credits greater than
under the prior 2010 version of the statute. (§ 4019, subds. (b), (c).) The legislation
provided that the change "shall apply prospectively" to prisoners in local custody for
crimes committed on or after October 1, 2011. (Id. at subd. (h).)
              Appellant committed the instant offense on June 25, 2011, and was in
county jail from that date until his March 2, 2012 sentencing, a period extending from
before October 1, 2011, to after that date. At sentencing, the trial court awarded conduct
credits based entirely on the scheme set forth in the 2010 amended version of section
4019. In his opening brief, Rodriguez contended that equal protection principles required
the 2011 amended version of section 4019 to be applied retroactively to include all of his
presentence custody. He argued that the 2011 amendment created two classes of inmates,
those who committed crimes before October 1, 2011, and those who committed crimes
on or after October 1, 2011. He claimed the two groups are similarly situated with

                                             4
respect to credit entitlement, and there is no "rational basis" for denying one group
enhanced credits simply because he committed his crimes prior to October 1, 2011.
              As Rodriguez concedes, People v. Brown (2012) 54 Cal.4th 314, 329
(Brown), rejected this retroactivity argument but, in his reply brief, Rodriguez contends
that the same equal protection principles entitle him to enhanced credits for the period of
his presentence custody after October 1, 2011. In other words, even if the 2011
amendment does not apply retroactively, failure to apply it to time served on or after
October 1, 2011, regardless of the date of the subject crime, violates equal protection.
Other panels of the Court of Appeal have rejected this argument based on the conclusions
enunciated in Brown, and we reject it as well. (People v. Ellis (2012) 207 Cal.App.4th
1546, 1553 (Ellis); People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy); People v.
Verba (2012) 210 Cal.App.4th 991, 993 (Verba); see also People v. Rajanayagam (2012)
211 Cal.App.4th 42, 53 (Rajanayagam).)
              "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.]"
(Brown, supra, 54 Cal.4th at p. 328.) The groups need not be similarly situated for all
purposes, only "for purposes of the law challenged." (Ibid.) Even if the classes are
similarly situated, there is no equal protection violation if the statutory distinction does
not involve fundamental interests and the challenged classification bears a rational
relationship to a legitimate state purpose. (Rajanayagam, supra, 211 Cal.App.4th at p.
53.)
              In Brown, the Court concluded that prisoners who committed a crime
before the effective date of the 2010 amendment to section 4019 were not similarly
situated to those who committed a crime after that date. "[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." ( Brown, supra, 54 Cal.4th at pp. 328-329.)
              After Brown, several courts considered arguments virtually identical to
those made by Rodriguez where a defendant's crime was committed before October 1,

                                               5
2011, but whose presentence custody period included time subsequent to October 1,
2011. The arguments were rejected in all these cases. Some of the cases concluded that
prisoners whose crimes were committed prior to October 1, 2011, but whose period of
custody extended beyond that date, were not similarly situated with persons whose
crimes were committed after October 1, 2011. (Ellis, supra, 207 Cal.App.4th at pp.
1552-1553; Kennedy, supra, 209 Cal.App.4th at pp. 396-397.) Other cases concluded
that these groups may be similarly situated but there was a rational basis for the disparate
treatment with respect to enhanced conduct credits. (Rajanayagam, supra, 211
Cal.App.4th at pp. 54-55; Verba, supra, 210 Cal.App.4th at pp. 995-996.) Regardless of
the rationale, Rodriguez's claim fails under all of these cases.2
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




              2
               Rodriguez cites People v. Olague (2012) 205 Cal.App.4th 1126, as
supporting his position. The Supreme Court dismissed review and remanded Olague on
March 20, 2013, in light of Brown, supra, 54 Cal.4th 314; Cal. Rules of Court, rule
8.5298 (b)(1) & (c).) (People v. Olague (2013) [2013 WL 1150606].)

                                              6
                             Monica Bachner, Judge

                      Superior Court County of Los Angeles
                      ______________________________


             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, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy
Attorney General, for Plaintiff and Respondent.
