Filed 9/27/13 P. v. Maese CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F065970

                   v.                                                   (Super. Ct. No. BF142139A)

ALEX MAESE,                                                                       OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         James F. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity
S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Wiseman, Acting P.J., Kane, J., and Detjen, J.
       Pursuant to a plea agreement, appellant, Alex Maese, pleaded no contest to three
counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)1; counts 1, 3, 5) and
admitted allegations that he had suffered two ―strikes‖2 and that he had served three
separate prison terms for prior felony convictions (§ 667.5, subd. (b)). Consistent with
the plea agreement, the court struck appellant‘s strikes and imposed a prison term of six
years, consisting of the three-year upper term on count 1 and one year on each of the
three prior prison term enhancements. The court imposed concurrent three-year terms on
each of counts 3 and 5. The court also awarded appellant 357 days of presentence
custody credits, consisting of 239 days of actual time credits and 118 days of conduct
credits.
       On appeal, appellant‘s sole contention is that the court‘s failure to award
presentence conduct credits under the one-for-one credit scheme of the current iteration
of section 4019 violated appellant‘s constitutional right to the equal protection of the
laws. We affirm.
                                      DISCUSSION
Statutory Background
       Under section 2900.5, a person sentenced to state prison for criminal conduct is
entitled to presentence custody credits for all days spent in custody before sentencing.
(§ 2900.5, subd. (a).) In addition, section 4019 provides for what are commonly called
conduct credits, i.e., credits against a prison sentence for willingness to perform assigned




1      All statutory references are to the Penal Code.
2      We use the term ―strike‖ as a synonym for ―prior felony conviction‖ within the
meaning of the ―three strikes‖ law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).
(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
       In the past few years, section 4019 has undergone numerous amendments, of
which the following concern us here. First, effective September 28, 2010, the Legislature
amended section 4019 to provide, for defendants confined for crimes committed on or
after that date, six days would be deemed to have been served for every four days spent in
actual custody—a ratio of one day of conduct credit for every two days served (one-for-
two credits). (Stats. 2010, ch. 426, § 2, p. 2088.) We refer to this version of section 4019
as former section 4019.
       Next, a series of amendments in 2011, which began with Assembly Bill No. 109
(2011-2012 Reg. Sess.), enacted as part of the so-called criminal realignment legislation,
culminated in the current version of section 4019, which provides that defendants can
receive one-for-one credits, i.e., two days of conduct credit for every two days served in
local custody.3 (§ 4019, subds. (b), (c); see People v. Rajanayagam (2012) 211
Cal.App.4th 42, 49-50 (Rajanayagam).) The new legislation expressly provided that this
change ―shall apply prospectively and shall apply to prisoners who are confined to a
county jail ... 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.‖ (§ 4019, subd. (h).) We sometimes refer to the current version of section 4019 as
the October 1, 2011 amendment.


3       Under Section 2933.1, the effective date of which precedes former section 4019 as
well as the current version of the section 4019, ―[n]otwithstanding any other law,‖
persons convicted of a felony classified as ―violent‖ under section 667.5, subdivision (c)
may earn credit against their term of no more than 15 percent. (§ 2933.1, subd. (a); In re
Pope (2010) 50 Cal.4th 777, 779.) As the parties do not dispute, second degree burglary
is not a section 667.5, subdivision (c) violent felony, and therefore the section 2933.1 15
percent limitation is not implicated here.


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Appellant’s Presentence Confinement and the Trial Court’s Credits Calculation
       Appellant committed the count 1 offense on July 31, 2011, prior to the effective
date of the October 1, 2011 amendment. However, his entire period of presentence
custody—from January 3, 2012, to the date of sentencing, August 28, 2012—postdated
October 1, 2011. He committed the count 2 and 3 offenses on, respectively, October 7,
2011, and October 8, 2011.
Contentions and Analysis
       Appellant argues that for persons who, like him, served time in local custody after
October 1, 2011, the October 1, 2011 amendment created two classes of jail inmates:
(1) those who were awarded one-for-one conduct credits because they committed a crime
on or after October 1, 2011; and (2) those who, like him, were awarded conduct credits
under the less generous one-for-two formula because they committed a crime before
October 1, 2011. The ―unequal‖ treatment of these two similarly situated groups,
appellant argues, denied him, a member of the second group, the equal protection of the
laws. We disagree.
       ―The Fourteenth Amendment to the United States Constitution and article I,
section 7, subdivision (a) of the California Constitution both prohibit the denial of equal
protection of the laws. ‗The equal protection guarantees of [both Constitutions] are
substantially equivalent and analyzed in a similar fashion‘ [citation], and they
unquestionably apply to penal statutes [citation].‖ (People v. Cruz (2012) 207
Cal.App.4th 664, 674 (Cruz).)
       ―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
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

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whether persons are similarly situated for all purposes, but ―whether they are similarly
situated for purposes of the law challenged.‖‘‖ (People v. Brown (2012) 54 Cal.4th 314,
328 (Brown).) ―If the first prerequisite is satisfied, we proceed to judicial scrutiny of the
classification.‖ (Rajanayagam, supra, 211 Cal.App.4th at p. 53.) To determine the
correct level of scrutiny to apply to a legislative classification, we apply the following
principles:
       ―‗[W]hen reviewing legislative classifications under the equal protection clauses
of the California and United States Constitutions, the legislation under examination is
generally clothed in a presumption of constitutionality. However, once it is determined
that the classification scheme affects a fundamental interest or right, the burden shifts;
thereafter the state must first establish that it has a compelling interest which justifies the
law and then demonstrate that the distinctions drawn by the law are necessary to further
that purpose. [Citations.]‘‖ (Cruz, supra, 207 Cal.App.4th at p. 675, quoting People v.
Olivas (1976) 17 Cal.3d 236, 251 (Olivas ).) By contrast, ―‗Where the statutory
distinction at issue neither ‗touch[es] upon fundamental interests‘ nor is based on gender,
there is no equal protection violation ‗if the challenged classification bears a rational
relationship to a legitimate state purpose. [Citations.]‘ [Citation.] That is, where there
are plausible reasons for the classification, our inquiry ends.‖‘ [Citation.] Accordingly,
to sustain an equal protection challenge ... it must be shown that the classification scheme
is irrational.‖ (D.M. v. Department of Justice (2012) 209 Cal.App.4th 1439, 1450, fn.
omitted.)
       We assume without deciding, as appellant contends, that those who earn conduct
credits at the enhanced rate because their crimes occurred on or after October 1, 2011,
and those (like appellant) who do not earn conduct credits at the enhanced rate because
their crimes occurred before that date are similarly situated for purposes of equal
protection analysis. Accordingly, we now turn to the question, which appellant does not

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address, of the appropriate level of judicial scrutiny to be applied to the challenged
classification.4
         In Rajanayagam, the court rejected an equal protection challenge to the
October 11, 2011 amendment. The court there first held that ―the statutory distinction at
issue neither touches upon fundamental interests nor is based on gender,‖ and therefore,
―there is no equal protection violation if the challenged classification bears a rational
relationship to a legitimate state purpose.‖ (Rajanayagam, supra, 211 Cal.App.4th at
p. 53; accord, People v. Kennedy (2012) 209 Cal.App.4th 385, 397 (Kennedy).) We
agree.
         Next the court applied the rational relationship standard. We quote from the
Rajanayagam court‘s analysis on this point at length:
         ―It is undisputed the purpose of section 4019‘s conduct credits generally is to
affect inmates‘ behavior by providing them with incentives to work and behave. (Brown,

4       In Brown, supra, 54 Cal.4th 314, our Supreme Court rejected an equal protection
challenge to the version of section 4019 that preceded former section 4019. In People v.
Ellis (2012) 207 Cal.App.4th 1546 (Ellis), the defendant served a period of presentence
confinement before, on and after October 1, 2011, and this court, stating ―We can find no
reason Brown’s conclusions and holding with respect to the [amendment before the court
in Brown] should not apply with equal force to the October 1, 2011, amendment‖ (id. at
p. 1552), rejected the defendant‘s equal protection claim that he was entitled to enhanced
credits under the October 1, 2011, amendment for the entire presentence confinement
period, including the period on and after October 1, 2011. The court in Rajanayagam,
supra, 211 Cal.App.4th 42 reached a different conclusion. There, as in Ellis, the
confinement period straddled October 1, 2011, and the defendant effectively conceded he
was not entitled to the portion of his presentence confinement that predated October 1,
2011. The court found the two groups in question—―(1) those defendants who are in jail
on and/or after October 1, 2011, who committed an offense on or after October 1, 2011,
and (2) those defendants who are in jail on and/or after October 1, 2011, who committed
the same offense before October 1, 2011‖—were ―similarly situated for purposes of the
October 1, 2011, amendment ....‖ (Rajanayagam, supra, at p. 53.) Because we assume
without deciding the two groups in question are similarly situated, we need not address
these conflicting positions on the issue.


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supra, 54 Cal.4th at pp. 327–329.) But that was not the purpose of Assembly Bill No.
109, which was part of the Realignment Act.... [T]he Legislature‘s stated purpose for the
Realignment Act ‗is to reduce recidivism and improve public safety, while at the same
time reducing corrections and related criminal justice spending.‘ [Citation.] Section
17.5, subdivision (a)(7), puts it succinctly: ‗The purpose of justice reinvestment is to
manage and allocate criminal justice populations more cost-effectively, generating
savings that can be reinvested in evidence-based strategies that increase public safety
while holding offenders accountable.‘ (Italics added.)‖ (Rajanayagam, supra, 211
Cal.App.4th at pp. 54-55.)
       As did the court in Rajanayagam, ―We conclude the classification in question does
bear a rational relationship to cost savings.‖ (Rajanayagam, supra, 211 Cal.App.4th at
p. 55.) ―Preliminarily, we note the California Supreme Court has stated equal protection
of the laws does not forbid statutes and statutory amendments to have a beginning and to
discriminate between rights of an earlier and later time. (People v. Floyd (2003) 31
Cal.4th 179, 188 (Floyd ) [‗[d]efendant has not cited a single case, in this state or any
other, that recognizes an equal protection violation arising from the timing of the
effective date of a statute lessening the punishment for a particular offense‘].) Although
Floyd concerned punishment, we discern no basis for concluding differently here.‖
(Ibid.; accord, [Kennedy, supra, 209 Cal.App.4th at pp. 398-399] [―Although [the 2011
amendment] does not ameliorate punishment for a particular offense, it does, in effect,
ameliorate punishment for all offenses committed after a particular date‖].)
       ―More importantly, in choosing October 1, 2011, as the effective date of Assembly
Bill No. 109, the Legislature took a measured approach and balanced the goal of cost
savings against public safety. The effective date was a legislative determination that its
stated goal of reducing corrections costs was best served by granting enhanced conduct
credits to those defendants who committed their offenses on or after October 1, 2011. To

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be sure, awarding enhanced conduct credits to everyone in local confinement would have
certainly resulted in greater cost savings than awarding enhanced conduct credits to only
those defendants who commit an offense on or after the amendment‘s effective date. But
that is not the approach the Legislature chose in balancing public safety against cost
savings. (Floyd, supra, 31 Cal.4th at p. 190 [Legislature‘s public purpose predominate
consideration].) Under the very deferential rational relationship test, we will not second-
guess the Legislature and conclude its stated purpose is better served by increasing the
group of defendants who are entitled to enhanced conduct credits when the Legislature
has determined the fiscal crisis is best ameliorated by awarding enhanced conduct credit
to only those defendants who committed their offenses on or after October 1, 2011.‖
(Rajanayagam, supra, 211 Cal.App.4th at pp. 55-56; accord, Kennedy, supra, 209
Cal.App.4th at p. 399 [in making changes to custody credits earning rates ―the
Legislature has tried to strike a delicate balance between reducing the prison population
during the state‘s fiscal emergency and protecting public safety,‖ and ―Although such an
effort may have resulted in comparable groups obtaining different credit earning results,
under the rational relationship test, the Legislature is permitted to engage in piecemeal
approaches to statutory schemes addressing social ills and funding services to see what
works and what does not‖].)
       In addition, we find a second rational basis for the classification at issue. On this
point we follow the reasoning and result in Kennedy, supra, 209 Cal.App.4th 385. The
court‘s analysis there began with In re Kapperman (1974) 11 Cal.3d 542 (Kapperman).
In that case, the Kennedy court noted, ―our Supreme Court ... acknowledged ‗statutes
lessening the punishment for a particular offense‘ may be made prospective only without
offending equal protection principles. (Kapperman, supra, 11 Cal.3d. at p. 546.)‖
(Kennedy, at p. 398.) Moreover, ―the [Kapperman] court wrote that the Legislature may
rationally adopt such an approach, ‗to assure that penal laws will maintain their desired

                                              8
deterrent effect by carrying out the original prescribed punishment as written.‘ (Ibid.).‖
(Ibid., fn. omitted.)
       The Kennedy court then discussed People v. Floyd (2003) 31 Cal.4th 179: ―In
[that case], the defendant sought to invalidate a provision of Proposition 36 barring
retroactive application of its provisions for diversion of nonviolent drug offenders.
[Citation.] The court reiterated that the Legislature may preserve the penalties for
existing offenses while ameliorating punishment for future offenders in order to ‗―assure
that penal laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written.‖‘ [Citation.] The statute before the court came within
this rationale because it ‗lessen[ed] punishment for particular offenses.‘ [Citation.] As
the Floyd court noted, ‗―[t]he 14th Amendment does not forbid statutes and statutory
changes to have a beginning, and thus to discriminate between the rights of an earlier and
later time.‖ [Citation.]‘‖ (Kennedy, supra, 209 Cal.App.4th at p. 398.)
       Kennedy gleaned from Kapperman and Floyd the following: ―[T]he rule ... is that
a statute ameliorating punishment for particular offenses may be made prospective only
without offending equal protection, because the Legislature will be supposed to have
acted in order to optimize the deterrent effect of criminal penalties by deflecting any
assumption by offenders that future acts of lenity will necessarily benefit them.‖
(Kennedy, supra, 209 Cal.App.4th at p. 398.) The court acknowledged that the
October 1, 2011 amendment ―does not ameliorate punishment for a particular offense,‖
but, the court stated, ―it does, in effect, ameliorate punishment for all offenses committed
after a particular date.‖ (Kennedy, supra, at pp. 398-399.) Accordingly, the court
concluded: ―By parity of reasoning to the rule acknowledged by both the Kapperman
and Floyd courts, the Legislature could rationally have believed that by making the 2011
amendment to section 4019 have application determined by the date of the offense, they
were preserving the deterrent effect of the criminal law as to those crimes committed

                                              9
before that date. To reward appellant with the enhanced credits of the October 2011
amendment to section 4019, even for time he spent in custody after October 1, 2011,
weakens the deterrent effect of the law as it stood when appellant committed his crimes.
We see nothing irrational or implausible in a legislative conclusion that individuals
should be punished in accordance with the sanctions and given the rewards (conduct
credits) in effect at the time an offense was committed.‖ (Id. at p. 399.) This rationale
articulated above constitutes a second rational basis for the legislative classification at
issue.
         For the forgoing reasons, we conclude that calculating appellant‘s conduct credits
under former section 4019 rather than under the October 1, 2011 amendment did not
violate appellant‘s equal protection rights.
                                      DISPOSITION
         The judgment is affirmed.




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