Filed 6/5/13 P. v. Hollowell 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072075

         v.                                                                      (Super. Ct. No. 11F06405)

TROY JASON HOLLOWELL,

                   Defendant and Appellant.

         Defendant Troy Jason Hollowell appeals from a judgment after he pled no contest
to possession of a completed check with the intent to defraud (Pen. Code, § 475, subd.
(c))1 and identity theft with a prior identity theft conviction (§ 530.5, subd. (c)(2)), and
admitted one strike (§§ 667, subds. (b)-(i), 1170.12) and five prior prison term (§ 667.5,
subd. (b)) allegations.
         On appeal, defendant contends the trial court’s failure to award additional conduct
credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act)



1   Undesignated statutory references are to the Penal Code.


                                                             1
(Stats. 2011, ch. 15, § 482) deprived him of equal protection under the law. We disagree
and affirm the judgment.
                                          FACTS
        Defendant committed the crimes for which he was convicted on September 15,
2011. On July 2, 2012, the trial court sentenced defendant to serve nine years in state
prison and awarded 435 days of presentence credit, consisting of 291 actual days and 144
days of conduct credit.
        The trial court calculated defendant’s conduct credits under the September 28,
2010, revision of the presentence custody credit law. Under that version, a defendant
with a current or prior serious or violent felony conviction was entitled to two days of
conduct credit for every four days of presentence custody. (Former §§ 2933, 4019 (Stats.
2010, ch. 426, § 2).)
                                       DISCUSSION
        Operative October 1, 2011, the Realignment Act amended section 4019 to enhance
the rate at which defendants could earn conduct credits from two days for every four days
actually served (former § 4019) to two days for every two days actually served (amended
§ 4019, subd. (f)). The Realignment Act also added subdivision (h) to section 4019,
which 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
[specified facilities] 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.”
        On appeal, defendant contends he is entitled to have his presentence conduct
credits calculated at the enhanced rate provided by the Realignment Act for his days in
custody from October 1, 2011, to July 2, 2012. He argues that for defendants who
committed offenses prior to October 1, 2011, principles of equal protection compel the



                                              2
application of section 4019 to defendants in presentence custody from October 1, 2011,
to the date of sentencing. Consistent with the reasoning of other appellate courts, we
reject defendant’s equal protection argument.2
       In People v. Brown (2012) 54 Cal.4th 314 at pages 318-322 (Brown), our Supreme
Court held that under general rules of statutory construction a prior amendment to section
4019 must be read prospectively only, even though the Legislature did not expressly so
state, and even though this meant “prisoners whose custody overlapped the statute’s
operative date . . . earned credit at two different rates.” (Brown, supra, 54 Cal.4th at
p. 322.) The court reasoned that “the 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. That prisoners who served time before and after former section
4019 took effect are not similarly situated necessarily follows.” (Brown, supra, at
pp. 328-330; see People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.)
       Defendant argues that unlike the defendant in Brown, he is similarly situated for
purposes of conduct incentives to other defendants who are in presentence custody on or
after October 1, 2011. Defendant contends there are two groups of similarly situated
prisoners: those in presentence custody on or after October 1, 2011, for crimes
committed before that date and those in presentence custody on or after October 1, 2011,
for crimes committed on or after that date. He next argues there is no rational basis to
deny enhanced presentence custody credits to those who committed crimes before




2 Defendant does not make a statutory construction argument based on the language in
subdivision (h) of section 4019. Thus, we do not need to address this argument.
However, we note two appellate decisions have rejected this statutory construction
argument. (See People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis) and People v.
Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam).)


                                              3
October 1, 2011, and who are in presentence custody after this date because it is not
reasonably related to a legitimate public purpose.
        Two appellate courts, relying on Brown’s reasoning, have rejected the equal
protection argument defendant raises as to the October 1, 2011, amendment to section
4019. (Ellis, supra, 207 Cal.App.4th at pp. 1551-1553; People v. Kennedy (2012)
209 Cal.App.4th 385, 395-399 (Kennedy).)3 We agree with these cases that the reasoning
of Brown, supra, 54 Cal.4th 314 applies with equal force to the current version of section
4019.
        Even assuming the two groups of defendants are similarly situated for purposes of
the October 1, 2011, amendment to section 4019, we conclude the classifications bear a
rational relationship to a legitimate state purpose. Like the appellate courts in Kennedy,
Verba, and Rajanayagam that applied the equal protection rational basis test, there are
several legitimate reasons for making the enhanced presentence conduct credits
applicable only to those who commit their crimes on or after October 1, 2011, including
cost savings measured against public safety (Verba, supra, 210 Cal.App.4th at pp. 996-
997; Rajanayagam, supra, 211 Cal.App.4th at p. 55), maintaining the desired deterrent
effect of penal laws by carrying out the punishment in effect at the time defendants
commit their offenses (Kennedy, supra, 209 Cal.App.4th at p. 398, Verba, supra, 210
Cal.App.4th at p. 997), and the Legislature’s right to control the risk of new legislation by
limiting its application (Verba, supra, 210 Cal.App.4th at p. 997).
        For these reasons, we reject defendant’s equal protection argument.




3 Two appellate courts did not rely on Brown in their analysis rejecting an equal
protection argument. Both courts concluded the two groups of prisoners are similarly
situated for purposes of the October 1, 2011, amendment and determined there was a
rational basis for the classifications. (People v. Verba (2012) 210 Cal.App.4th 991, 995-
997 (Verba); Rajanayagam, supra, 211 Cal.App.4th at pp. 54-55.)


                                             4
                                 DISPOSITION
     The judgment is affirmed.




                                               HOCH   , J.



We concur:



       RAYE        , P. J.



      HULL         , J.




                                      5
