Filed 4/3/13 P. v. Zahir CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064242
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11905068)
                   v.

NASEER HAMIT ZAHIR,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff,
Judge.
         Julia J. Spikes, 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, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Poochigian, J. and Detjen, J.
       On September 2, 2011, a complaint was filed in Fresno County Superior Court,
charging defendant Naseer Hamit Zahir with petty theft with prior convictions. (Pen.
Code,1 § 666; count 1.) In addition, defendant was alleged to have suffered a prior
conviction under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)),
for which he served a prison term (§ 667.5, subd. (b)).
       On November 1, 2011, defendant entered into a plea agreement pursuant to which
he pleaded no contest to count 1 and admitted the prior strike and prison term allegations,
on the condition that he receive the lower term of 16 months in prison. On December 13,
2011, the court dismissed the prior strike conviction (§ 1385; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497) and the prior prison term enhancement, and sentenced
defendant to 16 months in prison. The court ordered defendant to pay various fees, fines,
and assessments; and awarded 71 days of actual credit, plus 34 days of conduct credit, for
a total of 105 days.
       Defendant now contends he is entitled to additional custody credits. We affirm.
                                         FACTS2
       On the evening of June 17, 2011, officers were dispatched to the Greyhound bus
station regarding a subject stealing a gutter cover from the sidewalk. Upon arrival, the
officers found defendant pushing a shopping cart that contained an eight-foot by one-foot
metal gutter cover valued at $300. While at the scene, defendant admitted taking the
gutter cover, but said he found it. The gutter cover and shopping cart were recovered.
                                      DISCUSSION
       Defendant admitted having suffered a prior strike conviction, to wit, residential
(first degree) burglary. (§§ 459, 460, subd. (a).) First degree burglary constitutes a
serious felony under section 1192.7, subdivision (c)(18).

1      All statutory references are to the Penal Code.
2      The facts are taken from the probation officer’s report.



                                             2.
       At the time defendant committed his current offense, section 2933 allowed a
prisoner sentenced to state prison under section 1170 to have one day deducted from his
or her sentence for every day he or she served in a county jail from the date of arrest until
state prison credits became applicable, except that section 4019, and not section 2933,
applied to a prisoner with a prior conviction for a violent or serious felony. (§ 2933,
former subd. (e)(1), (3), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.)
Under section 4019 as it then read, prisoners were entitled to presentence credits in an
amount such that six days were deemed to have been served for every four days spent in
actual custody. (§ 4019, former subds. (b), (c) & (f), as amended by Stats. 2010, ch. 426,
§ 2, eff. Sept. 28, 2010, & subd. (g).) Defendant was awarded credits calculated by
means of the former section 4019 formula for his entire period of presentence
incarceration.3
       By the time defendant was arrested on October 4, 2011, section 2933 had been
amended to delete references to section 4019 and calculation of presentence credits.
(Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16, eff. Sept. 21, 2011, operative Oct. 1, 2011.)
Section 4019 was also amended. Subdivision (f) of the statute now provides: “It is the
intent of the Legislature that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in actual custody.” (§ 4019,
subd. (f), as amended by Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, operative Oct. 1,
2011, & Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct. 1, 2011.) Thus,
section 4019 now provides (and did the entire period defendant was in presentence


3      The trial court’s dismissal of the prior strike conviction pursuant to section 1385
did not permit that court to disregard the “historical facts” that disqualified defendant
from earning day-for-day conduct credits under former section 2933. (See People v.
Lara (2012) 54 Cal.4th 896, 900-901, 906-907.) Moreover, at no time have the parties
taken issue with the trial court’s determination that the prior strike also disqualified
defendant from being sentenced to county jail pursuant to section 1170, subdivision (h).



                                              3.
custody) for day-for-day credits for defendants — even those with prior strike
convictions — who serve presentence time in county jail. The only exceptions are
defendants with current violent felony or murder convictions (§§ 2933.1, 2933.2; see
People v. Nunez (2008) 167 Cal.App.4th 761, 765), which defendant does not have (see
§ 667.5, subd. (c)).
       Defendant contends that, since all of his presentence custody time was served after
the operative date of the October 1, 2011, amendment to section 4019, he is entitled to
presentence custody credits calculated pursuant to the current version of that statute, i.e.,
day-for-day credits. He recognizes the statutory changes from which he seeks to benefit
expressly “apply prospectively and … to prisoners who are confined to a county jail …
for a crime committed on or after October 1, 2011,” while “[a]ny days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” (§ 4019, subd. (h).) Nevertheless, he argues that the statutory language is
ambiguous and, pursuant to People v. Olague (2012) 205 Cal.App.4th 1126, 1131-1132,
review granted August 8, 2012, S203298, review dismissed and case remanded
March 20, 2013, should be interpreted to apply the liberalized credit-earning scheme both
to prisoners confined for crimes committed after October 1, 2011, and to prisoners
confined after that date for earlier crimes. Olague may no longer be cited as precedent
(Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a)); moreover, we rejected its
interpretation in People v. Ellis (2012) 207 Cal.App.4th 1546, 1552-1553 (Ellis).
       Defendant says he is nevertheless entitled to the ameliorative effect of the
October 1, 2011, amendment, because to deny him that benefit would violate the equal
protection clauses of the federal and state Constitutions. We disagree.
       In Ellis, we held that the October 1, 2011, amendment to section 4019 applies only
to eligible prisoners whose crimes were committed on or after that date, and such
prospective-only application neither runs afoul of rules of statutory construction nor
violates principles of equal protection. (Ellis, supra, 207 Cal.App.4th at p. 1548.) In

                                              4.
reaching that conclusion, we relied heavily on People v. Brown (2012) 54 Cal.4th 314
(Brown), in which the California Supreme Court held the amendment to section 4019 that
became effective January 25, 2010, applied prospectively only. (Brown, supra, at p. 318;
Ellis, supra, at p. 1550.)
       Brown first examined rules of statutory construction. It observed that “[w]hether a
statute operates prospectively or retroactively is, at least in the first instance, a matter of
legislative intent.” (Brown, supra, 54 Cal.4th at p. 319.) Where the Legislature’s intent
is unclear, section 3 and cases construing its provisions require prospective-only
application, unless it is “‘very clear from extrinsic sources’” that the Legislature intended
retroactive application. (Brown, supra, at p. 319.) The high court found no cause to
apply the January 25, 2010, amendment retroactively as a matter of statutory
construction. (Id. at pp. 320-322.)
       Brown also examined In re Estrada (1965) 63 Cal.2d 740 (Estrada), which held
that when the Legislature amends a statute to reduce punishment for a particular criminal
offense, courts will assume, absent evidence to the contrary, the Legislature intended the
amended statute to apply to all defendants whose judgments are not yet final on the
statute’s operative date. (Brown, supra, 54 Cal.4th at p. 323; Estrada, supra, at pp. 742-
748.) Brown concluded Estrada did not apply; former section 4019, as amended
effective January 25, 2010, did not alter the penalty for any particular crime. (Brown,
supra, at pp. 323-325, 328.) Rather than addressing punishment for past criminal
conduct, Brown explained, section 4019 “addresses future conduct in a custodial setting
by providing increased incentives for good behavior.” (Brown, supra, at p. 325.)
       In Ellis, we determined Brown’s reasoning and conclusions apply equally to
current section 4019. Accordingly, we held the October 1, 2011, amendment does not
apply retroactively as a matter of statutory construction or pursuant to Estrada. (Ellis,
supra, 207 Cal.App.4th at pp. 1550, 1551.)



                                               5.
       We next turned to the equal protection issue. (Ellis, supra, 207 Cal.App.4th at
p. 1551.) In that regard, Brown held prospective-only application of the January 25,
2011, amendment did not violate either the federal or the state Constitution. (Brown,
supra, 54 Cal.4th at p. 328.) Brown explained:

              “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.”’ [Citation.]

              “… [T]he 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, 54 Cal.4th at pp. 328-329.)
       The state high court rejected the argument that its decision in People v. Sage
(1980) 26 Cal.3d 498 compelled a contrary conclusion, declining to read that case as
authority for more than it expressly held, namely that authorizing presentence conduct
credit for misdemeanants who later served their sentences in county jail, but not for
felons who ultimately were sentenced to state prison, violated equal protection. (Brown,
supra, 54 Cal.4th at pp. 329-330; see People v. Sage, supra, 26 Cal.3d at p. 508.) It
further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d
542, a case that, because it dealt with a statute granting credit for time served, not good
conduct, was distinguishable. (Brown, supra, at p. 330.)
       Once again, we found no reason in Ellis why “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.]” (Ellis, supra, 207 Cal.App.4th at p. 1552.)
Accordingly, we rejected the defendant’s equal protection argument.


                                              6.
       Defendant points out, however, that unlike the situation before us in Ellis, he
served all of his presentence custody after the October 1, 2011, amendment; thus, he
says, he is indeed similarly situated, as far as incentives for good behavior are concerned,
to someone who committed his or her crime on or after that amendment took effect. We
acknowledge the difference, but decline to find an equal protection violation. In our
view, the California Supreme Court has strongly signaled its conclusion that the
enhanced credit-earning rate presently available under section 4019 is available only to
prisoners who committed their crimes on or after October 1, 2011, and that equal
protection is not thereby denied. (See People v. Lara, supra, 54 Cal.4th at p. 906, fn. 9.)
Moreover, to the extent an equal protection analysis may be appropriate to defendant’s
situation, we agree with the reasoning and conclusions of those cases that, after having
undertaken such an analysis, have refused to apply the more liberal credit-earning rate to
prisoners who, like defendant, were in presentence custody on and/or after October 1,
2011. (See, e.g., People v. Rajanayagam (2012) 211 Cal.App.4th 42, 52-56; People v.
Verba (2012) 210 Cal.App.4th 991, 994-997.)
       Because defendant committed his offense prior to October 1, 2011, the
amendment to section 4019 that became operative on that date does not benefit him, even
though he served his presentence custody after that date. Defendant’s presentence credits
were properly calculated; subdivision (h) of section 4019 is not void.
                                     DISPOSITION
       The judgment is affirmed.




                                             7.
