Filed 5/7/13 P. v. Edwards CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046756

         v.                                                            (Super. Ct. No. 11WF2032)

STEPHEN ALLEN EDWARDS,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Vickie L. Hix, Commissioner. Affirmed.
                   Jeanine G. Strong, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                       INTRODUCTION
              As of October 1, 2011, the rate at which a criminal defendant may accrue
presentence custody credit changed. A defendant who committed a crime on or after
October 1, 2011, may accrue two good conduct credit days for every two actual custody
days. A defendant who committed a crime before October 1, 2011, accrues good conduct
credit at the former rate of two days for every four days of actual custody.
              Defendant Stephen Allen Edwards committed burglary and other crimes in
August 2011. He pleaded guilty and was placed on probation. In March 2012, after
admitting to a violation of his probation, defendant’s probation was reinstated, and he
was awarded presentence custody credit at the rate in effect before the October 1, 2011
statutory amendment. Defendant challenges the trial court’s refusal to calculate his good
conduct custody credit at the higher accrual rate. We affirm.
              The statutory language clearly states that the higher accrual rate applies
prospectively only. We reject defendant’s contention that the language of the statute is
ambiguous. Further, we reject defendant’s claim that a prospective-only application of
the higher accrual rate violates equal protection. Although criminal defendants who
committed the same crime before and after October 1, 2011, are similarly situated, a
rational basis exists for treating them differently in terms of the accrual of their good
conduct credit.


                                  PROCEDURAL HISTORY1
              Defendant was charged in an amended felony complaint with second
degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)); possession of burglary
tools (id., § 466); possession of a controlled substance (Health & Saf. Code, § 11350,

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         Given the limited issue raised on appeal, we need not discuss the facts
underlying defendant’s crimes.

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subd. (a)); and possession of a designated substance (id., § 11375, subd. (b)(2)). The
crimes were alleged to have occurred on August 24, 2011. The amended felony
complaint also alleged a prison prior sentencing enhancement. (Pen. Code, § 667.5,
subd. (b)).
              Defendant pleaded guilty to all counts and admitted the prison prior. The
trial court suspended imposition of sentence and placed defendant on three years of
formal probation.
              On March 5, 2012, defendant admitted a violation of his probation. The
trial court reinstated his probation on the condition he serve 90 days in county jail. The
court awarded defendant 33 days of presentence custody credit—23 days of actual
custody credit, and 10 days of good conduct credit. Defendant filed a motion requesting
that he be awarded 23 days of good conduct credit, for a total of 46 days of presentence
custody credit. The trial court denied the motion. Defendant timely appealed.


                                        DISCUSSION
              Before October 2011, defendants in local custody were eligible to earn
good conduct credit at a rate of two days for every four days of actual custody.
(Pen. Code, former § 4019, subd. (f).) Pursuant to an amendment to Penal Code
section 4019, which was operative on October 1, 2011, the accrual rate for good conduct
credit changed to two days for every two days of actual custody. (Id., § 4019, subd. (f).)
The unambiguous language of the statute makes it clear that the Legislature did not
intend it to apply retrospectively: “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.” (Id., § 4019, subd. (h).)



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              Defendant argues the language of Penal Code section 4019, subdivision (h)
is ambiguous. The first sentence of subdivision (h) clearly states that the increased
accrual rate applies prospectively only. The second sentence of subdivision (h) provides:
“Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.” (Pen. Code, § 4019, subd. (h).) Defendant argues the two
sentences of section 4019, subdivision (h), when read together, require that “all persons
serving time after October 1, 2011, without regard to the date the offense was committed,
are entitled to earn day-for-day credits.” We disagree. As explained in prior opinions,
the two sentences can be read together without creating an ambiguity.
              As this court explained in People v. Rajanayagam (2012) 211 Cal.App.4th
42, 51, “to read the second sentence” of Penal Code section 4019, subdivision (h) as
stating that a defendant earns day-for-day credit after October 1, 2011, no matter when
the crime was committed, “renders meaningless the first sentence. This we cannot do.”
Rather, this court concluded: “[S]ubdivision (h)’s first sentence reflects the Legislature
intended the enhanced conduct credit provision to apply only to those defendants who
committed their crimes on or after October 1, 2011. Subdivision (h)’s second sentence
does not extend the enhanced conduct credit provision to any other group, namely those
defendants who committed offenses before October 1, 2011, but are in local custody on
or after October 1, 2011. Instead, subdivision (h)’s second sentence attempts to clarify
that those defendants who committed an offense before October 1, 2011, are to earn
credit under the prior law. However inartful the language of subdivision (h), we read the
second sentence as reaffirming that defendants who committed their crimes before
October 1, 2011, still have the opportunity to earn conduct credits, just under prior law.
[Citation.] To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local custody after the
effective date reads too much into the statute and ignores the Legislature’s clear intent in
subdivision (h)’s first sentence. [¶] We recognize the Legislature in drafting

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subdivision (h)’s second sentence used the word ‘earned.’ And it is impossible to earn
presentence credits for an offense that has not yet been committed. But reading the first
and second sentences together, the implication is the enhanced conduct credit provision
applies to defendants who committed crimes before October 1, 2011, but who served
time in local custody after that date. To isolate the verbiage of the second sentence
would defy the Legislature’s clear intent in subdivision (h)’s first sentence and contradict
well-settled principles of statutory construction. In conclusion, we find the enhanced
conduct credit provision applies only to those defendants who committed their crimes on
or after October 1, 2011.” (People v. Rajanayagam, supra, at p. 52, fn. omitted.)
               Similarly, the court in People v. Ellis (2012) 207 Cal.App.4th 1546, 1553,
held: “In our view, 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. So read, the
sentence is not meaningless, especially in light of the fact the October 1, 2011,
amendment to [Penal Code] section 4019, although part of the so-called realignment
legislation, applies based on the date a defendant’s crime is committed, whereas [Penal
Code] section 1170, subdivision (h), which sets out the basic sentencing scheme under
realignment, applies based on the date a defendant is sentenced.”
               We agree with People v. Rajanayagam and People v. Ellis that the second
sentence of Penal Code section 4019, subdivision (h) reiterates that defendants who
committed their crimes before October 1, 2011 will accrue good conduct credit at the rate
specified under the earlier version of the statute. The second sentence of subdivision (h)
does not create an ambiguity when read in conjunction with the first sentence of that
subdivision.




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              Defendant also argues a prospective-only application of Penal Code
section 4019, subdivision (f) would violate equal protection. To prevail on an equal
protection claim, defendant must show the state has adopted a classification affecting two
similarly situated groups in an unequal manner, and no rational basis exists for doing so.
(People v. Hofsheier (2006) 37 Cal.4th 1185, 1199-1200.) Defendant has made the
requisite showing as to the first prong of the equal protection analysis. “Defendants who
committed offenses and earned conduct credit before the operative date of the statute are
treated more harshly than those who committed the same crimes and earned conduct
credit on or after October 1, 2011. The two groups are similarly situated in the sense that
they committed the same offenses but are treated differently in terms of earning conduct
credit based solely on the dates their crimes were committed. For purposes of receiving
conduct credit, nothing distinguishes the status of a prisoner whose crime was committed
after October 1, 2011, from one whose crime was committed before that date.” (People
v. Verba (2012) 210 Cal.App.4th 991, 995-996; see also People v. Rajanayagam, supra,
211 Cal.App.4th at pp. 53-54.)
              However, a rational basis exists for making the increased accrual rate for
good conduct credit apply only to those crimes committed after a date certain. The
classification created by the October 1, 2011, amendment to Penal Code section 4019
bears a rational relationship to cost savings, balanced against public safety, by increasing
the accrual rate for good conduct credit, and thereby decreasing the time certain
defendants will spend in custody, while ensuring that defendants are punished according
to the sanction in effect as of the date their crime was committed. (See People v.
Rajanayagam, supra, 211 Cal.App.4th at p. 55; People v. Verba, supra, 210 Cal.App.4th
at pp. 996-997.)




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                                   DISPOSITION
            The postjudgment order is affirmed.




                                             FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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