Filed 3/18/13 P. v. Moats CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061406

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD233864)

ANTHONY ERIC MOATS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Margie G.

Woods, Judge. Affirmed.



         Anthony Eric Moats appeals a judgment sentencing him to two years in prison

after he pleaded guilty to one count of possessing a controlled substance. (Health & Saf.

Code, § 11350, subd. (a).) Moats contends the statutory construction of Penal Code1

section 4019 and principles of equal protection entitle him to additional presentence


1        All further statutory references are to the Penal Code unless otherwise specified.
custody credits. We conclude that under the rules of statutory construction, the enhanced

conduct credit provision of section 4019 applies only to defendants who committed their

crimes on or after October 1, 2011. We further conclude section 4019 does not violate

principles of equal protection of the federal or state Constitutions (U.S. Const., 14th

Amend.; Cal. Const., art. I, § 7, subd. (a)), and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On April 21, 2011, the police conducted a fourth amendment waiver search of

Moats's residence. In Moats's bedroom the police discovered one hydrocodone pill, three

morphine pills, and two hydromorphone pills. A used syringe and three narcotics

smoking devices were also found. The police arrested Moats and he was charged with

three counts of possessing a controlled substance, and possessing narcotics paraphernalia

(Health & Saf. Code, §§ 11350, subd. (a), 11364).

       Moats was in county jail awaiting trial, on October 1, 2011, when the 2011

amendments to section 4019 became operative.2 (Stats. 2011-2012, 1st Ex. Sess., ch. 12,

§ 35.) Moats then pleaded guilty to one count of possessing a controlled substance and,

following a motion by the prosecution, the court dismissed the remaining charges and

enhancement allegations. On December 21, 2011, the court sentenced Moats to prison

for the middle term of two years. The court awarded him a total of 338 days of custody

credits consisting of 226 days for actual time spent in local custody awaiting trial and


2      Section 4019 was amended in 2011 in conjunction with the 2011 Realignment
Legislation (Realignment Act), which addressed public safety. (Stats. 2011, ch. 15, § 1;
see § 1170, subd. (h).)
                                              2
sentencing (§ 2900.5, subd. (a)), and 112 days of conduct credits for good behavior

(§ 4019, subd. (c)).

                                      DISCUSSION

       Under section 4019, defendants are entitled to earn additional credit towards their

sentences by performing additional labor (§ 4019, subd. (b)) and for good behavior

(§ 4019, subd. (c).) To differentiate from credits earned by actual time spent in custody,

these additional credits are referred to as conduct credits. (People v. Duff (2010) 50

Cal.4th 787, 793.)

       Before October 1, 2011, persons who, like Moats, had been convicted of a serious

or violent felony were entitled to only two days of conduct credits for every four days

actually served. (Former Pen. Code, § 4019, subd. (f); Stats. 2010, ch. 426, § 2.)

However, on October 1, 2011, when Moats was in local custody awaiting sentencing, the

Legislature amended section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.), as

part of the Realignment Act. The amendment, which became operative October 1, 2011,

increased the amount of conduct credits earned by prisoners in local custody to one day

of conduct credit for each day spent in actual custody. (§ 4019, subd. (f); Stats. 2011, ch.

39, § 53.) As relevant here, section 4019, subdivision (h), provides:

          "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."



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       Moats committed his offenses on April 21, 2011. At sentencing, the court applied

the former version of section 4019 in effect at the time Moats committed his crime.

       Moats contends any applicable conduct credits he accrued after the operative date

of the amendment to section 4019 on October 1, 2011, should have been calculated using

the more generous amended rate. He argues the award of only 112 days of conduct

credits violated both the terms of section 4019 as amended and his right to equal

protection.

       Before examining issues of statutory construction or equal protection, we note that

Moats forfeited any argument of entitlement to additional conduct credits. At sentencing,

immediately after awarding Moats 112 days of conduct credits, the court asked both

parties if they wished to be heard on the matter. Moats's counsel did not object to the

conduct credit award at that time. By not objecting to the award of conduct credits,

Moats forfeited the right to challenge on appeal any error in the court's award amount.

(People v. Myers (1999) 69 Cal.App.4th 305, 312 [defendant forfeited any claim of error

in presentence credits by stipulating to amount awarded].) Nevertheless, to avert a claim

of ineffective assistance of counsel, we address the merits of Moats's statutory

construction and equal protection arguments. (See, e.g., People v. Norman (2003) 109

Cal.App.4th 221, 229-230 [court examined sentence to determine if cruel and unusual

despite defendant's waiver of argument].)

       A.     Statutory Construction

       Moats asserts that under the rules of statutory construction, section 4019 as

amended requires the court to grant one-for-one conduct credits for all time spent in local
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custody after October 1, 2011. He contends the second sentence of section 4019,

subdivision (h), suggests that days earned by a prisoner after October 1, 2011, must be

calculated at the rate established by the new law.

       The language in section 4019 subdivision (h), that "[a]ny days earned . . . prior to

October 1, 2011, shall be calculated at the rate required by the prior" law could be read to

imply that any days earned by a defendant after that date should be calculated using the

amended rate, regardless of the date the offense was committed. (People v. Rajanayagam

(2012) 211 Cal.App.4th 42, 52 (Rajanayagam).) However, to do so would invalidate the

immediately preceding sentence of section 4019, which explicitly limits the benefits of

the new accrual rate to those defendants who committed their crimes after October 1,

2011. (Ibid.) Moats's proffered interpretation would "defy the Legislature's clear intent

in subdivision (h)'s first sentence and contradict well-settled principles of statutory

construction." (Ibid.)

       Moreover, California follows the time-honored legal principle that absent a clearly

manifested intent to the contrary, there is a legal presumption that all statutes operate

prospectively. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.)

Therefore, statutes ambiguous with respect to retroactive application are to be construed

as unambiguously prospective. (Ibid.; see also Lindh v. Murphy (1997) 521 U.S. 320,

328, fn. 4 [statute applied retroactively only where statutory language is "so clear that it

could sustain only one interpretation"].) One noted exception to the presumption of

prospective application exists where the Legislature reduces the punishment for a


                                              5
particular offense. (In re Estrada (1965) 63 Cal.2d 740, 748.) However, section 4019

merely addresses future conduct; it does not alter the penalty for any particular crime and

thus that exception is not applicable here. (People v. Ellis (2012) 207 Cal.App.4th 1546,

1551; see also People v. Brown (2012) 54 Cal.4th 314, 325 (Brown)).

       Although section 4019 could have been drafted more artfully, "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 does not

extend the enhanced rate to any other group, but merely specifies the rate at which all

others are to earn conduct credits." (People v. Ellis, supra, 207 Cal.App.4th at p. 1553;

see also Rajanayagam, supra, 211 Cal.App.4th at p. 52 [§ 4019, subd. (h) merely

reaffirms that defendants who committed their crimes before October 1, 2011, can still

earn conduct credits, just under the prior law].) The Legislature's clear and explicit intent

to apply the new custody credit formula only prospectively cannot be overridden by an

implied interpretation of the second sentence in the statute. Thus, Moats's argument that

statutory construction requires modification of his conduct credit award is not persuasive.

       B.     Equal Protection

       Moats also invokes the basic guarantees of equal protection embodied in the

Fourteenth Amendment to the United States Constitution and article I, section 11 of the

California Constitution, to support his contention. (Hayes v. Superior Court (1971) 6

Cal.3d 216, 223; In re King (1970) 3 Cal.3d 226, 232.) Moats asserts that were section




                                              6
4019 interpreted to apply only to crimes committed on or after October 1, 2011, it would

violate equal protection principles.

       1. Classes Not Similarly Situated

       To succeed on a claim under the equal protection clause, Moats must first show

the state has adopted a classification that affects two or more similarly situated groups in

an unequal manner. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199; see also People

v. Wilkinson (2004) 33 Cal.4th 821, 836-837; Manduley v. Superior Court (2002) 27

Cal.4th 537, 571.) For purposes of section 4019 there are two classes of incarcerated

inmates: (1) those in jail on or after October 1, 2011, having committed a crime on or

after October 1, 2011; and (2) those in jail on or after October 1, having committed the

same offense before October 1, 2011.

       Moats asserts the primary purpose of awarding conduct credits is to reward those

defendants who perform additional work and behave. However, the "very purpose of

conduct credits is to foster constructive behavior in prison by reducing punishment."

(People v. Lara (2012) 54 Cal.4th 896, 906). Although the end result may be that

prisoners are indeed rewarded for performing additional work and behaving, the primary

reason section 4019 was enacted is to encourage good behavior, not simply to reward it.

       Relying on Rajanayagam, Moats also contends that even if the primary purpose of

awarding conduct credits is to provide an incentive to work and behave, both classes have

an incentive to work and behave but a defendant who committed a crime before the

operative date is rewarded less. (Rajanayagam, supra, 211 Cal.App.4th at pp. 52-53.)


                                              7
Therefore, Moats believes section 4019 necessarily creates a classification that affects

two similarly situated groups in an unequal manner. However, as the Supreme Court

noted, "prisoners who served time before the incentives took effect . . . 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." (People v.

Brown, supra, 54 Cal.4th at pp. 328-329 [examining applicability of retroactivity to

§ 4019]; see also People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397.) Although

Brown examined whether section 4019 should be applied retroactively to all prisoners,

the logic is nonetheless applicable here.

       Additionally, even were we to conclude both groups have a similar incentive to

work and behave, we do not believe both groups have the same inducement. Although

the type of incentive--additional conduct credits--may be the same between the groups,

the amount of that incentive is not the same. Those prisoners who commit crimes and

serve time after the incentives take effect have a greater incentive to alter their behavior

than those who committed crimes before the later-enacted incentives. Contrary to

Moats's claims, the two groups are not similarly situated and, as a result, the analysis of

his equal protection claims does not proceed to the next step of the level of review.

       2. Rational Basis Review is the Proper Level of Scrutiny

       Although we need not decide the appropriate level of review, we believe rational

basis review is the proper level of scrutiny. In considering whether state legislation

violates equal protection, " 'we apply different levels of scrutiny to different types of


                                              8
classifications. At a minimum, a statutory classification [affecting similarly situated

individuals] must be rationally related to a legitimate governmental purpose. [Citations.]

Classifications . . . affecting fundamental rights . . . are given the most exacting

scrutiny.' " (People v. Wilkinson, supra, 33 Cal.4th at p. 836; see also Manduley v.

Superior Court, supra, 27 Cal.4th at p. 571.) When a statutory classification infringes on

either a fundamental interest or right, the law or policy must be justified by a compelling

interest and that the distinctions drawn by the law are necessary to further this interest.

(People v. Olivas (1976) 17 Cal.3d 236, 251.) In all other instances, rational basis review

is the default level of review; the state is only required to make a showing that "the

legislative classification bears a rational relation to some independent and legitimate

legislative end." (Romer v. Evans (1996) 517 U.S. 620, 621.)

       In his reply brief Moats argues the appropriate standard of analysis in a case

involving conduct credit is the strict scrutiny test because liberty is a fundamental

interest. Having concluded the two groups are not similarly situated, we need not

determine whether a strict scrutiny or rational basis test applies. Further, although Moats

raised an equal protection claim in his opening brief, he did not argue or discuss the

specific issue of the appropriate standard to be applied. Thus, discussion of the level of

review in his reply brief is not timely. (People v. Baniqued (2000) 85 Cal.App.4th 13,

29; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.)

       However, contrary to Moats's argument, there is no fundamental interest at stake

with regard to conduct credits. The argument could be made that to limit a prisoner's


                                               9
opportunity to earn conduct credits is to increase punishment, because it "substantially

alters the consequences attached to a crime already completed, and therefore changes 'the

quantum of punishment.' " (Weaver v. Graham (1981) 450 U.S. 24, 33.) After all, "a

person who is released a day early is punished a day less." (People v. Lara, supra, 54

Cal.4th at pp. 905-906.) As Moats notes, courts have in the past reached different

conclusions as to the applicable test for incongruities resulting from statutes involving

time credits. (See, e.g., People v. Austin (1981) 30 Cal.3d 155, 166 [compelling interest];

People v. Sage (1980) 26 Cal.3d 498, 508 [same]; People v. Caruso (1984) 161

Cal.App.3d 13, 17-18 [same]; People v. Jacobs (1984) 157 Cal.App.3d 797, 801 [same];

In re Kapperman (1974) 11 Cal.3d 542, 544-546 [rational relationship]; People v. Silva

(1994) 27 Cal.App.4th 1160, 1168 [same]; People v. King (1992) 3 Cal.App.4th 882, 885

[same].) However, these cases no longer stand for the proposition Moats claims, as our

Supreme Court held the cases they relied on should not be so broadly read as to require

strict scrutiny "whenever one challenges upon equal protection grounds a penal statute or

statutes that authorize different sentences for comparable crimes." (People v. Wilkinson,

supra, 33 Cal.4th at p. 837.)

       Personal liberty is not at stake in cases of conduct credits as "section 4019 does

not alter the penalty for any crime; a prisoner who earns no conduct credits serves the full

sentence originally imposed. Instead of addressing punishment for past criminal conduct,

the statute addresses future conduct in a custodial setting by providing increased




                                             10
incentives for good behavior." (People v. Brown, supra, 54 Cal.4th at p. 325.) The

proper test for issues concerning conduct credits is rational basis review.

       3. A Rational Relationship to a Legitimate State Purpose Exists

       Assuming the state had adopted a classification that affected two or more similarly

situated groups in an unequal manner, the next step would be to determine whether those

classifications bear a rational relationship to a legitimate state purpose. We must note

that the rational relationship test is highly deferential. (People v. Turnage (2012) 55

Cal.4th 62, 77 ["[a] classification is not arbitrary or irrational simply because there is an

'imperfect fit between means and ends' "].) Under the rational relationship test, a

statutory classification is constitutionally sound if there are any reasonably conceivable

facts that could provide a rational basis for the classification. (People v. Hofsheier,

supra, 37 Cal.4th at p. 1200.)

       Moats argues that because one of the purposes of both the Realignment Act and

the amendment to section 4019 was to more cost-effectively manage prison populations,

the arbitrary date of October 1, 2011, has no legitimate or rational public purpose.

However, all changes, additions or deletions to the code must have a beginning date.

Equal protection of the law "does not forbid statutes and statutory changes to have a

beginning, and thus to discriminate between rights of an earlier and later time." (Sperry

& Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505; see also People v. Floyd (2003)

31 Cal.4th 179, 188 ["[d]efendant has not cited a single case, in this state or any other,




                                              11
that recognizes an equal protection violation arising from the timing of the [operative]

date of a statute lessening the punishment for a particular offense"].)

       The stated goal of the Legislature is achieved by the amendment, as the fiscal

crisis is ameliorated to a degree by awarding additional conduct credits to those prisoners

who committed their crimes on or after October 1, 2011. Although awarding enhanced

credits retroactively would have produced greater cost savings, the Legislature did not

choose this approach. Nonetheless, the approach the Legislature did choose bears a

rational relationship to cost savings.

          "[T]he 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 before that date. To
          reward appellant with the enhanced credits of the 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."
          (People v. Kennedy, supra, 209 Cal.App.4th at p. 399.)

Although the amendment to section 4019 may result in the two classifications obtaining

different conduct credit earning results, under the rational relationship test, the

Legislature is permitted to "experiment individually with various therapeutic programs

related to criminal charges or convictions" (In re Huffman (1986) 42 Cal.3d 552, 561), so

as "to control the risk of new legislation by limiting its application" (People v. Lynch

(2012) 209 Cal.App.4th 353, 361) and determine what works and what does not.

(Warden v. State Bar (1999) 21 Cal.4th 628, 649 [reform measures can be implemented

                                              12
one step at a time].) Because the deferential nature of the rational basis test does not

afford us the power to second guess the Legislature and determine the most effective

manner to achieve that legitimate state interest, we conclude the classifications

established in section 4019 bear a rational relationship to a legitimate state interest.

                                       DISPOSITION

       The judgment is affirmed.




                                                                  McDONALD, Acting P. J.

WE CONCUR:


McINTYRE, J.


AARON, J.




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