Filed 7/11/13 P. v. Richardson CA5
Received for posting 7/15/13

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F065260
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F11905248)
                   v.

FRANK EARL RICHARDSON,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Thomas S. Singman, 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 Wiseman, Acting P.J., Poochigian, J. and Franson, J.
          Appellant, Frank Earl Richardson, pled no contest to two counts of dissuading a
witness by force or threat (Pen. Code, § 136.1, subd. (c)(1))1 and individual counts of
making a criminal threat (§ 422) and misdemeanor battery (§ 242). In addition, appellant
admitted allegations that he had suffered three ―strikes‖2 and had served three separate
prison terms for prior felony convictions (§ 667.5, subd. (b)). Subsequently, the parties
and the court agreed that one of the purported strikes was, in fact, not a strike, and the
court struck another strike (§ 1385), struck the three prior prison term enhancements,
imposed a prison term of 10 years, and awarded appellant 448 days of presentence
custody credits, consisting of 292 days of actual time credits and 156 days of conduct
credits.
          Appellant argues the court erred in failing to award him presentence conduct
credits under the one-for-one credit scheme of the current iteration of section 4019. We
affirm.
Statutory Background
          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.)
          In the past few years, section 4019 has undergone numerous amendments, of
which the following concern us here. First, effective September 28, 2010, the Legislature
amended section 4019 to provide, for defendants confined for crimes committed on or

1         All statutory references are to the Penal Code.
2      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
after that date, that 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). (Stats. 2010, ch. 426, § 2.) We refer to this version of section
4019 as former section 4019.
       Next, a series of amendments in 2011, which began with Assembly Bill No. 109
(2011-2012 Reg. Sess.), enacted as part of the so-called criminal realignment legislation,
culminated in the current version of section 4019, which provides that defendants can
receive one-for-one credits, i.e., two days of conduct credit for every two days served in
local custody.3 (§ 4019, subds. (b), (c), as amended by Stats. 2011, ch. 15, § 482; see
People v. Rajanayagam (2012) 211 Cal.App.4th 42, 49-50 (Rajanayagam).) The new
legislation expressly provided that this change ―shall apply prospectively and shall apply
to prisoners who are confined to a county jail ... 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).) We sometimes refer
to the current version of section 4019 as the October 1, 2011, amendment.
Appellant’s Presentence Confinement and the Trial Court’s Credits Calculation
       Appellant was arrested on September 9, 2011, and was confined in county jail
from that date through the day he was sentenced, June 26, 2012. For that entire period,
the trial court calculated appellant‘s conduct credits under the two-for-one scheme of
former section 4019.




3      Under Section 2933.1, the effective date of which precedes former section 4019,
as well as the current version of section 4019, ―[n]otwithstanding Section 4019 or any
other provision of law,‖ persons convicted of a felony classified as ―violent‖ under
section 667.5, subdivision (c) may earn credit against their term of no more than 15
percent. (§ 2933.1, subds. (a), (c); In re Pope (2010) 50 Cal.4th 777, 779.) As the parties
do not dispute, none of the instant offenses are a section 667.5, subdivision (c) violent
felony, and therefore the section 2933.1 15 percent limitation is not implicated here.


                                             3
Contentions and Analysis
       Appellant argues that even though he committed the instant offenses prior to
October 1, 2011, and the October 1, 2011, amendment expressly provides that its
provisions ―shall apply prospectively and shall apply to prisoners who are confined to a
county jail ... for a crime committed on or after October 1, 2011,‖ he is entitled to
conduct credits under the more generous one-for-one scheme of the October 1, 2011,
amendment for the portion of his presentence confinement served on and after October 1,
2011. He bases this claim on constitutional equal protection grounds and principles of
statutory construction. In each instance, his claim fails.
       Statutory Construction
       Appellant‘s statutory construction argument focuses on the second sentence of
section 4019, subdivision (h): ―Any days earned by a prisoner prior to October 1, 2011,
shall be calculated at the rate required by the prior law.‖ (Italics added.) Appellant
argues: ―This language strongly indicates an intention that days earned by a prisoner
after October 1, 2011[,] ought to be calculated under the current law; that is, [the October
1, 2011, amendment].‖ We disagree.
       After appellant filed his opening brief, this court, in People v. Ellis (2012) 207
Cal.App.4th 1546 (Ellis), held ―as a matter of statutory construction‖ (id. at p. 1550) that
because the October 1, 2011, amendment expressly specified that the changes applied
prospectively only, the statute did not apply retroactively, i.e., to persons whose crimes
were committed before October 1, 2011 (id. at pp. 1550-1551). Referring to the sentence
in section 4019, subdivision (h) upon which appellant relies, this court explained: ―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 section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant‘s crime is committed, whereas section 1170, subdivision (h), which sets out the


                                              4
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced.‖ (Id. at p. 1553; accord, Rajanayagam, supra, 211 Cal.App.4th at pp. 51-52.)
Thus, under the October 1, 2011, amendment, a defendant who is sentenced for a crime
committed before October 1, 2011, is not eligible to earn conduct credits under that
amendment. The court here correctly calculated appellant‘s conduct credits under former
section 4019.
       Equal Protection
       Appellant argues that for persons in presentence custody after October 1, 2011, the
October 1, 2011, amendment created ―two classes of jail inmates: (1) those who are
awarded additional conduct credits because they committed a crime on or after October 1,
2011; and (2) those who were not awarded additional conduct credits because they
committed a crime before October 1, 2011.‖ These two groups, he argues, are ―similarly,
if not identically situated‖ with respect to the purpose of conduct credits, which is to
encourage good behavior by persons incarcerated prior to sentencing and to encourage
such persons to participate in work and other rehabilitative activities. Further, appellant,
a member of the second group, argues that under equal protection clauses of the
California and United States Constitutions, the government must demonstrate there is a
compelling interest for treating the two groups differently, and that there is no ―rational
basis,‖ much less a compelling interest, for doing so. Therefore, appellant contends, the
failure to award him one-for-one credits for the period of October 1, 2011, through June
26, 2012, the date of sentencing, violated his constitutional equal protection rights.
We disagree.
       ―The Fourteenth Amendment to the United States Constitution and article I,
section 7, subdivision (a) of the California Constitution both prohibit the denial of equal
protection of the laws. ‗The equal protection guarantees of [both Constitutions] are
substantially equivalent and analyzed in a similar fashion‘ [citation], and they




                                              5
unquestionably apply to penal statutes [citation].‖ (People v. Cruz (2012) 207
Cal.App.4th 664, 674 (Cruz).)
       ―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.‖ (Rajanayagam, supra, 211 Cal.App.4th at p. 53.) To determine the
correct level of scrutiny to apply to a legislative classification, we apply the following
principles:
       ―‗[W]hen reviewing legislative classifications under the equal protection clauses
of the California and United States Constitutions, the legislation under examination is
generally clothed in a presumption of constitutionality. However, once it is determined
that the classification scheme affects a fundamental interest or right, the burden shifts;
thereafter the state must first establish that it has a compelling interest which justifies the
law and then demonstrate that the distinctions drawn by the law are necessary to further
that purpose. [Citations.]‘‖ (Cruz, supra, 207 Cal.App.4th at p. 675, quoting People v.
Olivas (1976) 17 Cal.3d 236, 251 (Olivas).) ―By contrast, ‗―‗―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. [Citations.] Where
there are ‗plausible reasons‘ for [the classification], ‗our inquiry is at an end.‘‖‘‖
[Citations.]‘‖ (Cruz, at pp. 675-676, quoting People v. Hofsheier (2006) 37 Cal.4th 1185,
1200–1201.)


                                               6
       We assume without deciding, as appellant contends, that those who earn conduct
credits at the enhanced rate because their crimes occurred on or after October 1, 2011,
and those (like appellant) who do not earn conduct credits at the enhanced rate because
their crimes occurred before that date are similarly situated for purposes of equal
protection analysis. Accordingly, we turn now to the question of the appropriate level of
scrutiny.4
       Appellant argues that because conduct credits affect a defendant‘s time in custody,
the legislative classification at issue here affects a fundamental interest, viz., personal
liberty, and therefore the strict scrutiny standard applies. He relies, in part, on Olivas,
supra, 17 Cal.3d 236, where the California Supreme Court declared: ―[P]ersonal liberty

4       In Brown, supra, 54 Cal.4th 314, our Supreme Court rejected an equal protection
challenge to the version of section 4019 that preceded former section 4019. In Ellis,
supra, 207 Cal.App.4th 1546, as in the instant case, the defendant served a period of
presentence confinement before, on and after October 1, 2011, and this court, stating,
―We can find no reason Brown’s conclusions and holding with respect to the [amendment
before the court in Brown] should not apply with equal force to the October 1, 2011,
amendment[,]‖ (id. at p. 1552) rejected the defendant‘s equal protection claim that he was
entitled to enhanced credits under the October 1, 2011, amendment for the entire
presentence confinement period, including the period on and after October 1, 2011.
Appellant, however, argues Brown supports his position that the two groups he posits
meet the ―similarly situated‖ requirement, and the court in Rajanayagam, supra, 211
Cal.App.4th 42 reached the same conclusion, albeit, it appears, by a slightly different
route. The Rajanayagam court addressed an equal protection challenge to the October 1,
2011, amendment, where, as in Ellis and the instant case, the confinement period
straddled October 1, 2011, and the defendant effectively conceded he was not entitled to
the portion of his presentence confinement that predated October 1, 2011. The court held
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 pp. 53, 55.) Brown, the court stated, ―is inapposite on
this point.‖ (Rajanayagam at p. 54.) This court in Ellis, in finding Brown controlling,
did not specifically address the Rajanayagam court‘s view of the Brown equal protection
analysis as to confinement time on and after October 1, 2011. However, because we
assume without deciding the two groups in question are similarly situated, we need not
address these conflicting positions on the issue.


                                               7
is a fundamental interest, second only to life itself, as an interest protected under both the
California and United States Constitutions.‖ (Id. at p. 251.) However, as this court noted
in Cruz, supra, 207 Cal.App.4th 664: ―As unambiguous as this statement is, determining
which level of scrutiny applies is not always straightforward where a penal provision is
claimed to touch upon a criminal offender‘s liberty interest. (See People v. Applin (1995)
40 Cal.App.4th 404, 409 … & cases cited.)‖ (Id. at p. 676, fn. omitted.) Thus, as
appellant acknowledges, ―courts have reached different conclusions about which test
applies to incongruities resulting from statutes involving time credits or other elements of
criminal sentences.‖ For example, in People v. Saffell (1979) 25 Cal.3d 223, this state‘s
high court applied the compelling state interest test to a statutory scheme that precluded
persons committed to state hospitals for treatment as mentally disordered sex offenders
from earning custody credits that were available to inmates of correctional facilities,
whereas in In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), the court applied the
rational basis test to an equal protection challenge to a provision (then new section
2900.5) that made actual-time custody credits prospective, applying only to persons
delivered to the Department of Corrections after the effective date of the legislation.
       We find instructive In re Stinnette (1979) 94 Cal.App.3d 800. In that case, the
court held a portion of the Determinate Sentencing Act that added provisions that allowed
prisoners to earn conduct credits in prison, and by its express terms provided that such
credits were to be awarded prospectively only, did not violate constitutional equal
protection guarantees. The court held the trial court erred in concluding that statutory
scheme abridged the petitioner‘s ―‗fundamental interest‘ in freedom.‖ (Stinnette, at p.
805, fn. 4.) The court explained: ―The challenged statute does not authorize confinement
of a prisoner for a longer term than he otherwise would have served. [Citations.] ...
[T]he ‗good time credit‘ provision is wholly amelioratory, allowing both classes of
prisoners an increased opportunity to shorten their time served. Therefore, the
fundamental right to personal liberty is not violated, and the ‗rational basis‘ level of


                                              8
review is applicable.‖ (Ibid.) Section 4019 is the presentence analog to the post-sentence
credits scheme before the court in Stinnette. It too is amelioratory. Accordingly, we
conclude the October 1, 2011, amendment does not affect a fundamental right, and
therefore we review appellant‘s equal protection challenge under the rational basis
standard.
       Appellant argues ―there can be no rational basis for granting more conduct credits
to prisoners serving presentence time for crimes committed after October 1, 2011[,] than
prisoners also serving time after that date, but whose crimes were committed earlier‖
because ―the recognized goal of the conduct-credit laws is to provide incentives to
prisoners … while serving presentence time‖ and ―[s]ince both groups are in custody at
the same time, for the same crime, any incentives to behave apply equally to both
groups.‖ We disagree. On this point we agree with the Rajanayagam court‘s analysis,
from which we quote at length.

               ―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 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 October 1, 2011, amendment to section
4019 awarding less credits to those defendants who committed their offenses before
October 1, 2011, than those defendants who committed their offenses on or after October
1, 2011, ―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,

                                              9
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‘‖].)
       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, People v. Kennedy (2012) 209 Cal.App.4th 385, 398-399 (Kennedy)
[―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‖].)
       ―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


                                             10
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 ―[a]lthough 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‖].)
       In addition, we find a second rational basis for the classification at issue. On this
point we follow the reasoning and result in Kennedy, supra, 209 Cal.App.4th 385. The
court‘s analysis there began with Kapperman, supra, 11 Cal.3d 542. The court noted that
―our Supreme Court ... acknowledged ‗statutes lessening the punishment for a particular
offense‘ may be made prospective only without offending equal protection principles.
(Kapperman, supra, 11 Cal.3d. at p. 546.) In Kapperman, the court wrote that the
Legislature may rationally adopt such an approach, ‗to assure that penal laws will
maintain their desired deterrent effect by carrying out the original prescribed punishment
as written.‘ (Ibid.).‖ (Kennedy, at p. 398, fn. omitted.)
       The Kennedy court then discussed Floyd, supra, 31 Cal.4th 179: ―In [that case],
the defendant sought to invalidate a provision of Proposition 36 barring retroactive
application of its provisions for diversion of nonviolent drug offenders. [Citation.] The
court reiterated that the Legislature may preserve the penalties for existing offenses while
ameliorating punishment for future offenders in order to ‗―assure that penal laws will


                                             11
maintain their desired deterrent effect by carrying out the original prescribed punishment
as written.‖‘ [Citation.] The statute before the court came within this rationale because it
‗lessen[ed] punishment for particular offenses.‘ [Citation.] As the Floyd court noted,
‗―[t]he 14th Amendment does not forbid statutes and statutory changes to have a
beginning, and thus to discriminate between the rights of an earlier and later time.‖
[Citation.]‘‖ (Kennedy, supra, 209 Cal.App.4th at p. 398.)
       Kennedy gleaned from Kapperman and Floyd the following: ―[T]he rule ... is that
a statute ameliorating punishment for particular offenses may be made prospective only
without offending equal protection, because the Legislature will be supposed to have
acted in order to optimize the deterrent effect of criminal penalties by deflecting any
assumption by offenders that future acts of lenity will necessarily benefit them.‖
(Kennedy, supra, 209 Cal.App.4th at p. 398.) The court acknowledged that the October
1, 2011, amendment ―does not ameliorate punishment for a particular offense,‖ but, the
court stated, ―it does, in effect, ameliorate punishment for all offenses committed after a
particular date.‖ (Id. at pp. 398-399.) Accordingly, the court concluded: ―By parity of
reasoning to the rule acknowledged by both the Kapperman and Floyd courts, the
Legislature could rationally have believed that by making the 2011 amendment to section
4019 have application determined by the date of the offense, 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.‖ (Id. at p. 399.)
       Appellant urges that we not follow Kennedy. As indicated earlier, we find
Kennedy well-reasoned and persuasive. The rationale articulated above constitutes a


                                             12
second rational basis for the legislative classification at issue. Calculating appellant‘s
conduct credits under former section 4019, rather than under the October 1, 2011,
amendment, did not violate appellant‘s equal protection rights.
                                      DISPOSITION
       The judgment is affirmed.




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