Filed 3/20/13 P. v. Lomas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038068
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. BB945131)

         v.

FRANCISCO JAVIER LOMAS,

         Defendant and Appellant.


                                                I. INTRODUCTION
         In March 2011, defendant Francisco Javier Lomas pleaded no contest to inflicting
corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)),1 and possession for sale of
methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a
prior conviction involving a controlled substance (Health & Saf. Code, § 11370.2), and
that he had two prior strikes (former §§ 667, subds. (b)-(i), 1170.12). In August 2011,
after the trial court struck one of defendant’s two strikes, the court sentenced him to
12 years four months in prison. The court granted defendant 804 days of custody credits,
consisting of 536 actual days plus 268 days conduct credit under section 4019.
         On appeal, defendant contends that he is entitled to additional conduct credit under
the October 2011 version of section 4019. For reasons that we will explain, we conclude
that defendant is not entitled to additional conduct credit.

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                  II. FACTUAL AND PROCEDURAL BACKGROUND
       In December 2009, the victim reported to police that defendant had kicked her,
stomped on her, punched her on the mouth, and slapped her before leaving the residence
that night.2 The victim, who was the mother of defendant’s child and who had been
living with defendant for two years, had a cut on her lip. The victim consented to a
search of the residence, where the police found two plastic bags containing 146 grams of
a substance later determined to be crystal methamphetamine. The police also found more
than $54,000 in cash, including $4,875 on defendant when he was located and arrested a
few hours later. Further, the police found a cell phone containing a picture of a
motorcycle and a text message reading, “ ‘give me 2 ozs and it’s yours.’ ”
       In March 2010, defendant was charged by first amended complaint with assault
with a deadly weapon or by means of force likely to produce great bodily injury (former
§ 245, subd. (a)(1); count 1), inflicting corporal injury on a cohabitant (§ 273.5, subd. (a);
count 2), and possession for sale of methamphetamine (former Health & Saf. Code,
§ 11378; count 3). The complaint further alleged that he personally inflicted great bodily
injury on the victim (§ 12022.7), that he had a prior conviction for violating Health and
Safety Code section 11378 (Health & Saf. Code, § 11370.2), that he had two prior serious
felony convictions and two prior strikes (former §§ 667, subds. (a), (b)-(i), 1170.12), and
that he had served two prior prison terms (§ 667.5, subd. (b)).
       In March 2011, defendant pleaded no contest to count 2, inflicting corporal injury
on a cohabitant (§ 273.5, subd. (a)), and to count 3, possession for sale of
methamphetamine (former Health & Saf. Code, § 11378). He also admitted that he had a
prior conviction for violating Health and Safety Code section 11378 (Health & Saf. Code,
§ 11370.2), and that he had two prior strikes (former §§ 667, subds. (b)-(i), 1170.12).


       2
       The facts are taken from the probation report, which was based on a report by the
Mountain View Police Department.

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Defendant entered the pleas with the understanding that the remaining count and
enhancements would be dismissed or stricken, that he would be eligible for probation if
his anticipated Romero motion3 was granted, and that a separate case against him would
be dismissed.
       Defendant subsequently filed a written Romero motion and the prosecution filed
written opposition.
       On August 22, 2011, the trial court granted defendant’s Romero motion in part and
struck one of defendant’s two strikes. The court then sentenced defendant to 12 years
four months in prison. The court granted defendant 804 days of custody credits,
consisting of 536 actual days plus 268 days conduct credit. The remaining count and
allegations were dismissed or stricken.
       Defendant filed a notice of appeal on May 25, 2012, after this court granted his
application for relief from default for failure to timely file a notice of appeal.
                                      III.   DISCUSSION
       Defendant contends that his conduct credit should be calculated pursuant to
the current version of section 4019, which was operative after he was sentenced in
August 2011, and that, under the current version, he is entitled 536 days conduct credit
instead of the 268 days awarded by the court. Although he acknowledges that the current
version of section 4019 “provides that it is applicable solely to cases where the offenses
were committed on or after October 1, 2011” (italics added), defendant contends in his
opening brief that the equal protection clauses of the state and federal Constitutions
require that the current version be applied to him. In a footnote in his opening brief,
defendant acknowledges that People v. Brown (2012) 54 Cal.4th 314 (Brown) is adverse
to his position. He states that “the Brown decision is not yet final” and that he “raises this
issue to preserve it in the event of modification or rehearing in Brown.”


       3
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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       The Attorney General contends that defendant’s claim for additional presentence
custody credit is barred by section 1237.1 because he failed to raise the claim below. The
Attorney General further contends that, based on Brown, supra, 54 Cal.4th 314, as well
as People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis), and People v. Kennedy (2012)
209 Cal.App.4th 385 (Kennedy), defendant’s equal protection claim fails and he is not
entitled to additional conduct credit.
       In reply, defendant acknowledges that Brown is “dispositive” of his equal
protection claim under the California Constitution but he “still contends that the
prospective only application” of the current version of section 4019 violates the federal
equal protection clause.
       We will assume, without deciding, that section 1237.1, which generally precludes
a defendant from raising a purported error in the calculation of presentence custody
credits for the first time on appeal, does not apply where, as here, the defendant’s claim
of error is not based on a purported clerical or mathematical error by the trial court. (See
People v. Delgado (2012) 210 Cal.App.4th 761.) We nevertheless conclude that
defendant is not entitled to additional conduct credit.
       The current version of section 4019 generally provides that a defendant may earn
conduct credit at a rate of two days for every two-day period of actual custody. (§ 4019,
subds. (b), (c) & (f).) However, as defendant acknowledges, the current version of
section 4019 states that the conduct credit rate “shall apply prospectively and shall apply
to prisoners who are confined to a county jail [or other local facility] 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).) In this case, defendant committed his crimes and was sentenced prior to
October 1, 2011. Thus the October 2011 version of section 4019, which provides for
prospective application, does not apply to defendant. (§ 4019, subd. (h); Brown, supra,



                                              4
54 Cal.4th at p. 322, fn. 11; Ellis, supra, 207 Cal.App.4th at p. 1550; Kennedy, supra, 209
Cal.App.4th at pp. 395-396.)
       We are not persuaded by defendant’s argument that the federal equal protection
clause requires that the October 2011 version of section 4019 be applied to him.
       “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.]” (Brown, supra, 54 Cal.4th at
p. 328.)
       We find Brown instructive on the equal protection issue raised by defendant in this
case. In Brown, the California Supreme Court held that a former version of section 4019,
effective January 25, 2010, applied prospectively, and that the equal protection clauses of
the state and federal Constitutions did not require retroactive application. (Brown, supra,
54 Cal.4th at pp. 318, 328.) In addressing the equal protection issue, the court explained
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 [the January 2010 version of] section 4019
took effect are not similarly situated necessarily follows.” (Brown, supra, at pp. 328-
329.) On this point, the California Supreme Court found In re Strick (1983) 148
Cal.App.3d 906 (Strick), “persuasive” and quoted from that decision as follows: “ ‘The
obvious purpose of the new section,’ . . . ‘is to affect the behavior of inmates by
providing them with incentives to engage in productive work and maintain good conduct
while they are in prison.’ [Citation.] ‘[T]his incentive purpose has no meaning if an

                                              5
inmate is unaware of it. The very concept demands prospective application.’ [Citation.]
‘Thus, inmates were only similarly situated with respect to the purpose of [the new law]
on [its effective date], when they were all aware that it was in effect and could choose to
modify their behavior accordingly.’ [Citation.]” (Brown, supra, at p. 329.)
       Subsequently, in People v. Lara (2012) 54 Cal.4th 896 (Lara), which was decided
after defendant filed his opening brief in this appeal, the California Supreme Court
rejected the contention that the prospective application of the October 2011 version of
section 4019 denied the defendant equal protection under the state and federal
Constitutions. (Lara, supra, at p. 906, fn. 9.) Citing Brown, the California Supreme
Court in Lara explained that prisoners who serve their pretrial detention before the
effective date of a law increasing conduct credits, and those who serve their detention
thereafter, “are not similarly situated with respect to the law’s purpose.” (Lara, supra, at
p. 906, fn. 9.)
       Thereafter, the Court of Appeal in Ellis cited Lara, and similarly concluded that
Brown’s holding with respect to the January 2010 version of section 4019 also applies to
the October 2011 version and that the prospective-only application of the October 2011
version does not violate equal protection. (Ellis, supra, 207 Cal.App.4th at pp. 1548,
1552 [“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”]; see also Kennedy, supra, 209 Cal.App.4th at p. 397 [“the reasoning of
Brown applies with equal force to the prospective-only application of the current version
of section 4019” ]; but see People v. Verba (2012) 210 Cal.App.4th 991, 995-996.)
       In this case, we similarly determine that defendant is not entitled to additional
conduct credit under the October 2011 version of section 4019 by virtue of state or
federal equal protection principles. (See Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)



                                             6
                                  IV. DISPOSITION
     The judgment is affirmed.


                                 ___________________________________________
                                 BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MÁRQUEZ, J.




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