Filed 3/4/13 P. v. Salinas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037171
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC953249)

         v.

JONATHAN CESARIO SALINAS,

         Defendant and Appellant.



         Defendant Jonathan Cesario Salinas was sentenced to state prison in May 2011 for
his 2009 offenses. He contends that he is entitled to additional conduct credit under the
expressly prospective-only version of Penal Code section 40191 that took effect in
October 2011. We reject his contention and affirm the judgment.


                                                   I. Background
         The facts of defendant‟s offenses are not relevant to his appellate contention. All
of his offenses occurred in August 2009. In April 2010, defendant pleaded no contest to
leaving the scene of an accident resulting in injury or death (Veh. Code, § 20001,
subds. (a), (b)(1)), possession of a billy (former § 12020, subd. (a)(1)), misdemeanor
battery (§§ 242, 243, subd. (a)), and felony battery causing serious bodily injury (§§ 242,


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         Subsequent statutory references are to the Penal Code unless otherwise specified.
243, subd. (d)). He also admitted that the felony battery count was a serious felony
because he had personally inflicted great bodily injury. (§§ 667, 1192.7) In May 2010,
the court suspended imposition of sentence and placed defendant on probation
conditioned upon, among other things, a one-year jail term. At that time, he was given
credit for 239 days of actual custody and 118 days of conduct credit for a total of 357
days of credit.
       In November 2010, his probation was revoked. Defendant admitted violating his
probation. In May 2011, he was committed to state prison to serve a three-year term. He
was credited with 333 days of actual custody and 166 days of conduct credit for a total of
499 days. Defendant timely filed a notice of appeal.


                                       II. Analysis
       Defendant claims that he was entitled to additional conduct credit under the
version of section 4019 that took effect in October 2011.
       Until January 2010, section 4019 provided that a defendant would receive two
days of conduct credit for every four days of actual custody. From January 2010 until
September 2010, section 4019 temporarily increased this to two days of conduct credit
for every two days of actual custody, but this increase did not apply to a defendant who
was being committed for a serious felony. (People v. Brown (2012) 54 Cal.4th 314, 317-
318 (Brown); Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.) In September 2010,
section 4019 was again amended and section 2933 was also amended with regard to
presentence conduct credit. These statutes also provided that a defendant being
committed for a serious felony would receive two days of conduct credit for every four
days of actual custody. (Stats. 2010, ch. 426, §§ 1, 2; former § 2933, subd. (e).) A new
version of section 4019 became operative in October 2011. This version provided for
two days of conduct credit for every two days of actual custody, and it did not exclude
from its ambit a defendant who was being committed for a serious felony conviction.

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(Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53; Stats. 2011, 1st Ex. Sess., 2011-
2012, ch. 12, § 35.) However, the October 2011 version of section 4019 provided that it
was prospective only: “(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.” (§ 4019, subd. (g).)
       Defendant argues that the trial court violated his right to equal protection by
failing to apply the October 2011 version of section 4019 to him. He contends that even
though his crimes occurred prior to the October 1, 2011 prospective date upon which
conduct credit was increased by the Legislature, he was entitled to have the two-for-two
conduct credit scheme applied to him.
       Both the federal and state Constitutions guarantee the right to equal protection of
the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ „ “The concept of the
equal protection of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.” ‟
[Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the
amendments to section 4019 do not involve a “ „ “ „suspect classification‟ ” ‟ ” or a
“ „ “ „fundamental interest,‟ ” ‟ ” courts apply the rational basis test to determine whether
the “distinction drawn by the challenged statute bears some rational relationship to a
conceivable legitimate state purpose.” (In re Stinnette (1979) 94 Cal.App.3d 800, 805.)
       Defendant maintains that he is similarly situated to a defendant whose crime was
committed after October 1, 2011. In Brown, the California Supreme Court rejected a
similar argument with respect to a previous version of section 4019. It found that
prospective only application of the new version of the statute did not violate equal
protection because the purpose of the statute was to create an incentive for good
behavior, which could not be done retroactively. (Brown, supra, 54 Cal.4th at
pp. 328-330.) “[T]he important correctional purposes of a statute authorizing incentives

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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, at pp. 328-329, italics added; see also People v. Lara (2012) 54
Cal.4th 896, 906, fn. 9 (Lara).) In his reply brief, defendant concedes that Brown dooms
his contention, that we are bound by Brown, and that he is not entitled to additional
conduct credit. We appreciate his accurate concession and accept it.


                                     III. Disposition
       The judgment is affirmed.




                                          _______________________________
                                          Mihara, J.



WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Márquez, J.




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