Filed 2/27/13 P. v. Xiong CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


THE PEOPLE,

         Plaintiff and Respondent,                                                     F063938

                   v.                                                     (Super. Ct. No. F11901181)

CHOR XIONG,                                                                        OPINION

         Defendant and Appellant.


                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         John L. Staley, 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, Kathleen A. McKenna and
Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

   Before Levy, Acting P.J., Kane, J., and Poochigian, J.
       A jury convicted appellant, Chor Xiong, of the unlawful taking or driving of a
motor vehicle (Veh. Code, § 10851, subd. (a)), and in two separate proceedings, appellant
admitted allegations that he had suffered a “strike,”1 served two separate prison terms for
prior felony convictions (Pen. Code, § 667.5, subd. (b))2, and suffered a prior conviction
of violating Vehicle Code section 10851 (Veh. Code, § 10851, subd. (e)). The court
imposed a prison term of 10 years, consisting of the four-year upper term on the
substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1);
1170.12, subd. (c)(1)), for a total of eight years, and one year on each of the two prior
prison term enhancements. The court awarded appellant presentence custody credits of
415 days, consisting of 277 days of actual custody credits and 138 days of conduct
credits.
       On appeal, appellant contends the court erred in failing to (1) award him
presentence conduct credits under the one-for-one credit scheme of the current iteration
of section 4019; (2) conduct an adequate inquiry to determine if appellant needed the
assistance of an interpreter; and (3) appoint an interpreter. We affirm.
                                       DISCUSSION
Denial of Request for Appointment of an Interpreter
       Prior to the commencement of trial testimony, appellant requested the appointment
of an interpreter. The court denied the request. Appellant contends the court abused its
discretion in failing to appoint an interpreter, in violation of his rights under the United
States and California Constitutions.


1      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.
2      Unless otherwise indicated, all further statutory references are to the Penal Code.


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Background
       At the outset of trial proceedings, before any testimony was taken, the prosecutor
informed the court that “[Defense counsel] advised Presiding this morning that her client
wanted the services of a Hmong interpreter.” The court stated it was aware of appellant’s
request for an interpreter, and noted “that there’s been 13 minute orders up to today’s
date, none of which included or noted the assistance of an interpreter, as well as the
preliminary hearing.” Defense counsel did not dispute this, and confirmed that she and
appellant had been communicating without the assistance of an interpreter “throughout,”
at which point the following colloquy occurred:
       “THE COURT: ... [¶] So is there anything else you wish to add for the record in
terms of that request?
       “[Defense counsel]: Just before the trial [appellant] asked if he could have a
Hmong interpreter so he would better understand what was going on at trial.
       “THE COURT: And it is correct that an interpreter hasn’t been utilized up to this
point throughout the case?
       “[Defense counsel]: That is correct.
       “THE COURT: ... So at this point all I’ve had is a request standing alone.
       “[Defense counsel]: Yes, Your Honor.”
       At that point, the court stated it was “not inclined” to grant the request, and stated:
“So unless there’s something else that is brought to the Court’s attention I’m not
persuaded an interpreter is going to be appointed.” Defense counsel responded, “I
understand,” and the court moved to a discussion of other matters.
Analysis
       Under the California Constitution, “A person unable to understand English who is
charged with a crime has a right to an interpreter throughout the proceedings.” (Cal.
Const., art. I, § 14.) In addition, various rights under the United States Constitution,

                                              3
“includ[ing] the right of a defendant to due process, to confrontation, to effective
assistance of counsel, and to be present at trial” “may be implicated in the right to an
interpreter.” (People v. Rodriguez (1986) 42 Cal.3d 1005, 1011.) “Regarding the rights
to effective assistance of counsel and to effective presence at trial, courts frequently have
echoed the words of the United States Supreme Court that a criminal defendant must
possess ‘sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding.’” (People v. Carreon (1984) 151 Cal.App.3d 559, 567
(Carreon), quoting Dusky v. United States (1960) 362 U.S. 402.)
       A court is not required to appoint an interpreter merely because a defendant
requests or demands one. (In re Raymundo (1988) 203 Cal.App.3d 1447, 452-1453
(Raymundo).) Rather, “an affirmative showing of need is required.” (Id. at p. 1453.) As
this court explained in Carreon, supra, 151 Cal.App.3d at pp. 566-567: “Prior to
enactment of this constitutional provision [art. I, § 14], courts had developed the rule that
upon the defendant’s showing of necessity, appointment of an interpreter was required as
a matter of due process. [¶] In the past, trial courts had been afforded broad discretion in
determining whether a defendant’s comprehension of English was minimal enough to
render interpreter services ‘necessary.’ [Citations.] Nothing in the new constitutional
provision changes this well established requirement of a finding of necessity by the trial
court. Indeed, the provision specifically states that the right to an interpreter is contingent
upon a person’s being ‘unable to understand English.’ (Cal. Const., art. I, § 14.) Prior to
the right being spelled out in the state Constitution, the court’s failure to appoint an
interpreter upon a proper showing of need was deemed violative of fundamental fairness
and sometimes required reversal of the defendant’s conviction. [Citation.]” Thus, “the
burden is on the accused to show that his [or her] understanding of English is not
sufficient to allow him [or her] to understand the nature of the proceedings and to
intelligently participate in his defense.” (Raymundo, at p. 1454.)

                                              4
       The denial of a request for an interpreter is reviewed for abuse of discretion.
(Raymundo, supra, 203 Cal.App.3d at p. 1456.) “An exercise of discretion by a trial
judge may be reversed ‘“‘where no reasonable basis for the action is shown.’”’
[Citation.] ‘“‘[W]here a trial court has discretionary power to decide an issue, a
reviewing court will not disturb that decision unless the trial court has exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently absurd
determination....’”’ [Citation]” (Ibid.)
       “When evaluating a determination as to the necessity of appointing an interpreter,
the policy of upholding a lower court’s decision based upon informed discretion is strong.
The trial judge is in a unique position to evaluate the reactions and responses of the
accused and to determine whether he or she does or does not require an interpreter in
order to be adequately understood or in order to adequately understand the proceedings.
This exercise of discretion should not be reversed unless there is a complete lack of any
evidence in the record that the accused does understand English, thereby rendering the
decision totally arbitrary.” (Raymundo, supra, 203 Cal.App.3d at p. 1456.)
       Here, as indicated earlier, appellant, at the hearing on his request for an interpreter,
made virtually no showing of a need for an interpreter. The sum total of the defense
showing was defense counsel’s statement that appellant “[had] asked if he could have a
Hmong interpreter so he would better understand what was going on at trial.” Counsel
confirmed that the court had before it only “a request standing alone.” We recognize that
“the fact that [a criminal defendant] states that he does not understand English and
requests an interpreter on that basis may be some evidence of the fact that the charged
individual does not understand English....” (Raymundo, supra, 203 Cal.App.3d at p.
1453.) However, such a claim and request “cannot be considered conclusive proof of that
lack of proficiency in English” (ibid.) and does not, without more, necessitate the
appointment of an interpreter (id. at pp. 1452-1453). Moreover, defense counsel

                                              5
confirmed that she and appellant had communicated at all times without an interpreter,
and appellant did not dispute below, and does not dispute now on appeal, the court’s
finding that in 13 previous court appearances appellant had not required the services of an
interpreter. (See Raymundo, supra, 203 Cal.App.3d at p. 1455 [factors relevant to
determination of need for interpreter include whether one has previously been provided].)
The court’s determination that appellant had not made the requisite showing of need for
an interpreter was well within the court’s discretion.
       Appellant’s challenge to the court’s denial of his request for an interpreter focuses
on how poor a defendant’s understanding of English must be to necessitate the
appointment of an interpreter. He argues that “even a slight inability of a defendant to
understand court proceedings because of a limitation on his or her ability to speak
English warrants the appointment of an interpreter.” (Italics added.) Indeed, appellant
suggests that a defendant has a constitutional right to an interpreter unless he or she is
able to “understand every word throughout [the] judicial proceedings.” Further, appellant
suggests, he made the required showing below and therefore the court abused its
discretion in denying his request for an interpreter. These claims are without merit.
       First, the authorities cited by appellant in this regard are inapposite. He points to
U.S. ex. rel. Negron v. New York (2d Cir. 1970) 434 F.2d 386 (Negron) and People v.
Aguilar (1984) 35 Cal.3d 785 (Aguilar). In Negron, as our Supreme Court explained in
Aguilar, “the appellate court found constitutional error in the failure of the trial court to
provide a Spanish speaking defendant with an interpreter notwithstanding the fact that a
prosecution interpreter provided the accused with periodic summaries of the
proceedings.” (Aguilar, at p. 792.) In the portion of Negron on which appellant relies,
which, as appellant notes, the court in Aguilar cited with approval, the court stated: “‘[i]n
order to afford Negron his right to confrontation, it was necessary under the
circumstances that he be provided with a simultaneous translation of what was being said

                                               6
for the purpose of communicating with his attorney to enable the latter to effectively
cross-examine those English-speaking witnesses to test their credibility, their memory
and their accuracy of observation in light of Negron’s version of the facts.’” (Aguilar, at
pp. 792-793, quoting Negron.) However, the quoted portion of Negron upon which
appellant relies merely states what was constitutionally required where it had been
established that the Spanish-speaking defendant “was unable to communicate with his
counsel without the use of an interpreter.” (Aguilar, at p. 792.) It says nothing about
what was required to establish that the defendant lacked the ability to communicate in
English, and certainly does not suggest that no more than a slight inability to understand
English is sufficient to trigger the requirement that an interpreter be appointed.
       Moreover, given appellant’s failure below to do more than simply request an
interpreter, in our view, he failed to establish he had even a slight inability to understand
English. Finally, and more fundamentally, the “slight inability” standard appellant
proposes is contrary to the principle, discussed above, that a defendant has no
constitutional right to an interpreter unless he or she lacks the “‘ability to consult with his
[or her] lawyer with a reasonable degree of rational understanding.’” (Carreon, supra,
151 Cal.App.3d at p. 567, italics added.) The requirement, as articulated in Raymundo,
that “the burden is on the accused to show that his [or her] understanding of English is
not sufficient to allow him [or her] to understand the nature of the proceedings and to
intelligently participate in his defense” (Raymundo, supra, 203 Cal.App.3d at p. 1454), is
consistent with this standard. Under this standard, the denial of appellant’s request for an
interpreter did not constitute an abuse of discretion.
Inquiry into Need for an Interpreter
       Appellant argues as follows: “[T]he trial court failed to conduct any meaningful
dialogue with appellant to determine why he needed an interpreter. The trial court should
have, at a minimum, determined how long appellant had been speaking English, his

                                               7
native language, and what portion of the proceedings he had failed to understand. The
trial court’s failure to conduct this inquiry was error.”
       Here, as indicated earlier, the record shows the following: after being informed by
the prosecutor that defense counsel had earlier indicated that appellant wanted an
interpreter, the court invited counsel to place on the record the reasons for that request.
Counsel stated only that appellant wanted an interpreter “so he would better understand
what was going on at trial.” The court, through inquiry, established that appellant and
counsel were able to communicate in English, and stated, without contradiction, that
numerous previous proceedings had been conducted without an interpreter. The court
then indicated that although a request had been made, no reasons had been offered.
Counsel confirmed this.
       Thus, the court afforded the defense an adequate opportunity to explain why an
interpreter should be appointed, and no explanation was forthcoming. On this record, the
court cannot be faulted for not inquiring further.
Presentence Custody Credits
       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
labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)).
(People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
       Section 4019 has undergone numerous amendments in the past few years. Under
the version in effect prior to January 25, 1010, 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). (Former § 4019, subd. (f), as amended
by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, the

                                               8
Legislature amended section 4019 to provide for two days of conduct credit for every two
days served—one-for-one credits—for certain defendants. (Stats. 2009, 3d Ex. Sess.
2009-2010, ch. 28, § 50.) Effective September 28, 2010, the Legislature again amended
section 4019, this time to restore the less generous one-for-two credits for defendants
confined for crimes committed on or after September 28, 2010. (Stats. 2010, ch. 426,
§ 2.)
        The Legislature next amended section 4019 in Assembly Bill No. 109 (2011-2012
Reg. Sess.), which was part of the so-called criminal realignment legislation. “[T]he
overall purpose of [this legislation] is to reduce recidivism and improve public safety,
while at the same time reducing corrections and related criminal justice spending.”
(People v. Cruz (2012) 207 Cal.App.4th 664, 679.) Under the new legislation, to which
we refer as the 2011 amendment, defendants, including those who had been precluded
from enhanced credits under the January 25, 2010, amendment, can receive one-for-one
credits. (§ 4019, subds. (b), (c), as amended by Stats. 2011, ch. 15, § 482.) The
legislation expressly provided that this change “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.” (§ 4019, subd.
(h), as added by Stats. 2011, ch. 15, § 482 and amended by Stats. 2011, ch. 39, § 53.)
        Appellant committed the instant offense on March 1, 2011, approximately seven
months prior to the effective date of the 2011 amendment. He acknowledges that his
award of custody credits is governed by the one-for-two scheme of the version of section
4019 that became effective September 28, 2010, and further, that under this statute, the
trial court’s award of conduct credits was correct. He argues, however, that under equal
protection principles, he is entitled to one-for-one credits under the 2011 amendment.



                                              9
       Specifically, appellant contends the 2011 amendment created “two classes of
prison inmates and parolees,” viz., “(1) those who receive additional conduct credits
since they committed a crime on or after October 1, 2011; and (2) those who will not
receive additional conduct credits since they committed a crime before October 1, 2011.”
These two groups, he argues, relying in large part on In re Kapperman (1974) 11 Cal.3d
542 (Kapperman), are “similarly situated with respect to the purpose of the enhanced
credit entitlement.” Further, appellant, a member of the second group, argues that there is
no “rational basis” for denying him the enhanced credits under the current version of
section 4019 for the sole reason that he committed his crimes prior to October 1, 2011,
and that therefore he was denied his constitutional guarantee of equal protection of the
laws. This “denial of equal protection,” he contends, should be remedied by modifying
the judgment to award him one-for-one credits of 277 days under the 2011 amendment to
section 4019 for his entire period of presentence confinement—March 1, 2011, through
the date of sentencing, December 2, 2011—rather than the one-for-two credits of 138
days awarded by the court under the version of section 4019 effective September 28,
2010. We disagree.
       “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
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.” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam).)
As the court in Rajanayagam stated in addressing an equal protection challenge to the

                                             10
2011 amendment, “Where, as here, the statutory distinction at issue neither touches 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.”
(Ibid.) “Under the rational relationship test, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification. [Citation.]” (Ibid.)
       We first consider the question of whether appellant, who committed the instant
offenses prior to October 1, 2011, and persons who were confined for offenses for crimes
committed after that date are similarly situated with respect to the purpose of the law.
Preliminarily, we note that appellant’s period of presentence custody— March 1, 2011,
through December 2, 2011—encompasses time both before, on and after October 1. As
we explain below, the analysis with respect to time before October 1 and time on or after
October 1 may be different.
       In Brown, supra, 54 Cal.4th 314, which was decided after appellant filed his
opening brief, our Supreme Court addressed whether the amendment to section 4019 that
became operative on January 25, 2010, should be given retroactive effect to permit
prisoners, who served time in local custody before that date, to earn conduct credits at the
increased rate. Addressing the issue of whether defendant was similarly situated to those
defendants who served time after the operative date, and rejecting Kapperman-based
arguments, the court explained: “As we have already explained, 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, at pp. 328–329.)

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       Relying on Brown, this court, in People v. Ellis (2012) 207 Cal.App.4th 1546
(Ellis), rejected an equal protection challenge to the 2011 amendment virtually identical
to that raised by appellant here: “We can find no reason Brown’s conclusions and
holding with respect to the January 25, 2010, amendment should not apply with equal
force to the October 1, 2011, amendment. [Citation.] Accordingly, we reject defendant’s
claim he is entitled to earn conduct credits at the enhanced rate provided by current
section 4019 for the entire period of his presentence incarceration.”3 (Ellis, at p. 1552;
accord, People v. Kennedy (2012) 209 Cal.App.4th 385, 396-397 (Kennedy).)
       After Ellis was decided, the court in Rajanayagam, supra, 211 Cal.App.4th 42,
addressed an equal protection challenge to the current version section 4019, where, as in
Ellis and the instant case, the confinement period straddled October 1. However, the
defendant in Rajanayagam effectively conceded he was not entitled to the portion of his
presentence confinement that predated October 1, and therefore the defendant’s claim
related only to time served on and after that date. The court held that 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, at p. 53.) Brown, the court stated, “is inapposite on this point.”
(Rajanayagam, at p. 54.) The court reasoned as follows: “[Brown] did not involve a
situation where a defendant sought enhanced conduct credit for time served after the
amendment’s operative date. Instead, Brown concerned whether the amendment was
retroactive, i.e., whether a defendant who served time before the operative date was


3     Like appellant, the defendant in Ellis was confined prior to sentencing both before,
on and after October 1.


                                             12
entitled to enhanced conduct credits. Here, we are faced with the issue of whether the
current version of section 4019 operates prospectively as to a defendant who committed
an offense before the amendment’s effective date. We read the language of Brown,
supra, 54 Cal.4th at page 329, ‘[t]hat prisoners who served time before and after former
section 4019 took effect are not similarly situated necessarily follows’ as limited to the
facts in that case—that there is no incentive for defendants who served time before the
amendment’s effective date to work and behave. Brown is not instructive on the issue of
whether there is an incentive for defendants who served time after the amendment’s
effective date to work and behave.” (Ibid.)
          This court in Ellis, in finding Brown controlling, did not specifically address the
foregoing view of the Brown equal protection analysis of confinement time on and after
October 1. However, we need not reconsider this court’s conclusion in Ellis on this
point. As we explain below, assuming for the sake of argument that the similarly-situated
requirement is met for the entire period of appellant’s custody, his equal protection claim
nonetheless fails because there is a rational basis for the legislative classification at issue.
On this point, we agree with Rajanayagam court’s analysis, from which we quote at
length.
          “With respect to the judicial scrutiny of the classification, we must determine
whether there is any reasonably conceivable state of facts that could provide a rational
basis for the classification. 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, 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

                                                13
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.)
       Thus, we must determine whether the 2011 amendment to section 4019 awarding
less credits to those defendants who committed their offenses before October 1, than
those defendants who committed their offenses on or after October 1, “bears a rational
relationship to the Legislature’s legitimate state purpose of reducing costs.”
(Rajanayagam, supra, 211 Cal.App.4th at p. 55.) “We are mindful the rational
relationship test is highly deferential. (People v. Turnage (2012) 55 Cal.4th 62, 77
[‘[w]hen conducting rational basis review, we must accept any gross generalizations and
rough accommodations that the Legislature seems to have made. A classification is not
arbitrary or irrational simply because there is an “imperfect fit between means and
ends”’].)” (Ibid.)
       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”].)

                                             14
       “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
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”].)
       Finally, we find a second rational basis for the classification at issue. As the court
stated in Kennedy: “[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,

                                             15
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 [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.” (Kennedy, supra, 209
Cal.App.4th at p. 399.) For the foregoing reasons, we conclude appellant’s equal
protection rights were not violated.
                                       DISPOSITION
       The judgment is affirmed.




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