Filed 4/4/13 P. v. Obannon CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037481
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. BB943129)

         v.

VINCENT EARL OBANNON,

         Defendant and Appellant.



         In this appeal, Vincent Obannon (appellant) challenges the denial of his motion to
reconsider a Romero ruling,1 argues the lower court erred in ordering him to pay direct
victim restitution to Best Buy in the amount of $2,643.36, and contends, on equal
protection grounds, that he is entitled to increased presentence custody credits under the
current version of Penal Code section 4019. For reasons that follow, we agree that the
restitution order to Best Buy cannot stand. Accordingly, we will strike the order. As so
modified, the judgment is affirmed.
                                         Facts and Proceedings Below
         We take the facts from the probation officer's report in this case. In turn, those
facts were derived from Mountain View Police case number 09-005642 reports.



1
         People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Counts One and Two
       On August 1, 2009, appellant went into two Beverages and More stores and
attempted to use an altered credit card in each store to purchase a bottle of tequila valued
at $81.99 and two $500 gift cards. At both stores the clerks expressed suspicion about
the transactions and appellant grabbed the card and left the stores without the
merchandise.
Count Three
       On August 22, 2009, appellant entered another Beverages and More store and
filled out an application for a "BevMo" card. Thereafter, he purchased a bottle of tequila
valued at $81.99 with cash. After purchasing the tequila he attempted to purchase two
$500 gift cards. Since the numbers on the credit card did not match the numbers on the
receipt, appellant was not permitted to purchase the gift cards. He took the credit card
and left the store. After this incident, the store clerk sent an email alert to other
Beverages and More stores.
Count Four
       On June 19, 2009, appellant entered the Blossom Hill Beverages and More store
and purchased three $500 gift cards using an altered credit card. Officers were not able
to locate the owner of this card.
Counts Five and Six
       On May 9, 2009, using the name Anthony Young, appellant purchased an Apple
Macbook and accessories using a stolen credit card belonging to Gilgent Peng. The total
for the purchase was $2,643.56. The purchases were made at a San Francisco Best Buy
store. Shortly thereafter, appellant made a $30.77 purchase at an Olympian gas station.
       During the course of an investigation into these incidents police discovered that
when appellant applied for the BevMo card, the social security number used belonged to



                                               2
both appellant and Anthony Young. A record check revealed that appellant was a sex
offender and on parole for identity theft.
       Police contacted appellant's parole officer and requested GPS tracking
information; the GPS tracking information revealed that appellant was at Best Buy, the
Olympian gas station and at each of the Beverages and More stores on the dates of, and
within minutes of, the fraudulent transactions.
       Appellant was arrested on September 10, 2009, at the office of his parole officer.
During a search of appellant's wallet, officers found a folded piece of paper on which
were listed the items required to make a counterfeit credit card. After being given
Miranda advisements,2 appellant said that he had information on an ongoing decade old
"operation,"3 but refused to provide more details without some assurance that his charges
would be reduced.
       On January 21, 2011, the Santa Clara County District Attorney filed an
information in which appellant was charged with five felony counts of second degree
burglary (Pen. Code, § 459, 460, subd. (b), counts one through five) and one count of
using Gilgent Peng's personal identifying information without authorization. (§ 530.5,
subd. (a), count six).4 The information contained allegations that appellant had two prior
strike convictions (§§ 667, subds. (b)-(i), 1170.12) and had served three prior prison
terms within the meaning of section 667.5, subdivision (b).
       On June 6, 2011, appellant entered an open plea5 of guilty to all counts and
admitted each of the prior conviction and prior prison term allegations.



2
        Miranda v. Arizona (1966) 384 U.S. 436.
3
        Although the probation officer's report does not provide more details, we assume
that the operation to which the report refers was a counterfeiting operation.
4
        All unspecified statutory references are to the Penal Code.
5
        An open plea is one under which a defendant is not made any promises in
exchange for entering his plea. (People v. Williams (1998) 17 Cal.4th 148, 156.)
                                             3
       On July 25, 2011, appellant filed a motion pursuant to Romero, supra, 13 Cal.4th
497, asking the court to strike his two prior strike convictions for purposes of sentencing
him. On August 22, 2011, the court (Judge Southard) denied the motion as to count one,
but granted the motion to dismiss both the prior strike convictions as to counts two
through six.6 The court dismissed the three prior prison term allegations. The court
indicated that appellant's sentence would be 28 years, four months in state prison; the
court stated that it was willing to go forward with sentencing immediately. On the
request of defense counsel the matter was continued for sentencing. Judge Southard
informed appellant that he would soon be retiring and sought appellant's waiver of his
right to be sentenced by him, which appellant gave.
       Subsequently, it appears that appellant asked Judge Kumli, to whom the case had
been assigned, to reconsider Judge Southard's Romero ruling. On October 17, 2011,
Judge Kumli made a record of prior off the record matters. According to Judge Kumli,
the parties had met on September 16th to discuss the case and the matter was continued,
over the People's objection, for appellant to provide additional information; Judge Kumli
went on to say that "the ruling of the Romero hearing was in the estimation of this Court
binding upon this Court, and that the indicated sentence given by Judge Southard back on
August 22nd would be imposed." Judge Kumli went on to say that the matter was back
before the court for the third time for imposition of sentence.
       Accordingly, after noting that the court had read and considered the probation
officer's report and supplemental declarations, which had been submitted in support of
striking the serious felony priors, the court sentenced appellant to 28 years four months to
life in state prison.7 The court calculated appellant's presentence custody credits at 768


6
       Without the dismissal of the prior strike conviction allegations as to counts two
through six, appellant faced a prison term of 150 years to life.
7
       The court denied another request from defense counsel to continue the matter so
that she could submit more documentation to the court.
                                             4
actual days plus 384 days of conduct credits for a total of 1152 days. Relevant to this
appeal, the court ordered that appellant pay $2,643.36 to Citibank and to Best Buy.
       Appellant filed a notice of appeal the same day he was sentenced.
                                         Discussion
Failure to Reconsider the Romero Motion
       Appellant contends that the lower court abused its discretion and violated due
process when Judge Kumli concluded that he had no authority to re-open the Romero
motion in light of "relevant new evidence."
       The "new evidence" to which appellant refers consists of a letter from a Ms.
Victoria Shepard, the sister of the mother of appellant's children, a purported affidavit
from the mother of appellant's children—Linda Hollingsworth,8 a letter from Kathy
Gordon a former instructor with Milpitas Adult Education at the Elmwood Correctional
Facility (Elmwood) and a letter from appellant.
       As noted Judge Kumli stated that "the ruling of the Romero hearing [is] . . .
binding upon this Court." Subsequently, the prosecutor asked Judge Kumli "not just to
indicate that [the court] feels bound by Judge Southard's ruling but that's the appropriate
ruling under the three strikes law itself as well as the court cases that have interpreted the
application of three strikes. And Judge Southard actually stated on the record that
unfortunately Mr. Obannon was the poster boy for three strikes and found it sad to say
that in light of the fact that Mr. Obannon seemed to be a charming, intelligent man, but
that the Court must set aside the sympathy it had for Mr. Obannon and follow the law.
And that in [sic] Judge Southard's view of the decision to strike the strike of all counts.
[¶] So I ask the Court not to only follow the ruling but also to embrace it."
       Judge Kumli responded, "All right. Let me be clear. The Court doesn't feel that it
needs to editorialize or comment one way or the other with regard to the reasons for the

8
       Although entitled a "General Affidavit" the document is not notarized. It contains
only the signature of the affiant—the mother of appellant's children.
                                              5
Romero hearing and the ruling of Judge Southard in this case. [¶] I will say that - - and
this may be a distinction without a difference, but the Court feels bound to the ruling on
the Romero motion by Judge Southard . . . ."
       Appellant asserts that the lower court erroneously believed that it had no authority
to reconsider the Romero motion.
       Under section 1385, subdivision (a), a "judge . . . may, either on his or her own
motion or upon the application of the prosecuting attorney, and in furtherance of justice,
order an action to be dismissed." In Romero, supra, 13 Cal.4th 497, our Supreme Court
held that a trial court may strike or vacate an allegation or finding under the Three Strikes
law that a defendant has previously been convicted of a serious and/or violent felony, on
its own motion, in furtherance of justice pursuant to section 1385, subdivision (a). (Id. at
p. 504.) The Romero court held that a court's discretionary decision to dismiss or to
strike a sentencing allegation under section 1385 is reviewable for abuse of discretion.
(Ibid.) Similarly, "a court's failure to dismiss or strike a prior conviction allegation is
subject to review under the deferential abuse of discretion standard." (People v. Carmony
(2004) 33 Cal.4th 367, 374.)
       We start from the premise that " '[i]t is presumed that official duty has been
regularly performed' and scores of appellate decisions, relying on this provision, have
held that 'in the absence of any contrary evidence, we are entitled to presume that the trial
court . . . properly followed established law.' [Citation.]" (Ross v. Superior Court (1977)
19 Cal.3d 899, 913.)
       Accordingly, we must presume that Judge Kumli was aware that the general rule
that one superior court judge may not reconsider the previous ruling of another superior
court judge is subject to an exception where the first judge is unavailable to decide a
motion for reconsideration (People v. Goodwillie (2007) 147 Cal.App.4th 695, 713); and
that one of the factors to consider in deciding whether to modify another judge's ruling is


                                               6
whether there has been a change in circumstances since the previous order was made.
(People v. Riva (2003) 112 Cal.App.4th 981, 992.)
       The record is at best ambiguous as to whether Judge Kumli refused to reconsider
the motion because he believed that he did not have authority so to do, or refused to
exercise his discretion under section 1385. We must keep in mind that the law does not
require the trial court to specify the reasons for denying a Romero motion to strike prior
strikes. (In re Large (2007) 41 Cal.4th 538, 546, fn. 6.)
       It is possible as appellant suggests that Judge Kumli did not believe he had
authority to rehear the motion, but it is equally possible that Judge Kumli declined to
exercise his discretion under section 1385. We are mindful that "[a] defendant has no
right to make a motion, and the trial court has no obligation to make a ruling, under
section 1385. (People v. Carmony, supra, 33 Cal.4th at p. 375.)
       As noted, "[i]t is a basic presumption indulged in by reviewing courts that the trial
court is presumed to have known and applied the correct statutory and case law in the
exercise of its official duties. (Evid. Code, § 664; [citations].)" (People v. Mack (1986)
178 Cal.App.3d 1026, 1032.) Accordingly, absent unambiguous evidence to the
contrary, that presumption justifies a finding in this case that Judge Kumli knew the
scope of the section 1385 discretion available to him and failed to exercise it in
appellant's favor because to do so would have been a manifest abuse of his discretion.
       Even if we were to assume for the sake of argument that Judge Kumli
misunderstood the scope of his discretion in this case, we would not return the matter to
the trial court because it would be an abuse of discretion for Judge Kumli to strike the
priors as to all counts. (See, People v. Askey (1996) 49 Cal.App.4th 381, 389, fn. 3;
People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055.)
       When Judge Southard made his decision to strike the priors as to count one he
made a thorough and detailed record of his decision. Specifically, he noted "With respect
to the prior convictions I have to note that the one prior conviction out of San Francisco
                                             7
for rape was particularly onerous.9 I realize it happened a long time ago. Mr. Obannon
was a very young man. I want to point out however . . . since I am talking about
proportionality, if that crime had occurred at least in Santa Clara County today he would
be looking at virtually life in prison for that offense today, and all these other crimes that
have happened in the last 30 years would have never happened, but it happened
someplace else at a different time under different circumstances, but it was as severe a
strike prior as one can imagine. [¶] Likewise, the other strike prior conviction was also a
crime of violence. It was robbery of the standard variety, and it happened while he was
literally just out of custody for that other offense. Since that time Mr. Obannon has had
virtually no period in which he was not either incarcerated, on parole or on probation. He
has done poorly notwithstanding his personal charm and intelligence as one might guess
given the kind of record he's consistently fallen back upon crime as a means of
supporting himself. [¶] It is [sic] great importance to note the fact that the last time he
was charged with multiple counts, many counts of identity theft and fraud on virtually the
same type of method of operation in this case, he was given the benefit of a two strikes
sentence, received an 8 year term and then in this particular case not even two months out
of custody on parole he is doing the same thing on a professional criminal level again."10
       The probation officer's report prepared in this case indicated that appellant's
criminal history includes four felony offenses and six misdemeanor convictions for an
array of offenses including rape, robbery, second degree burglary and petty theft.
Appellant had three parole violations and was on parole at the time of his most current


9
       A copy of the preliminary hearing transcript from the 1981 rape by force was
before the court and is in the record. The record shows that during a residential burglary
appellant raped a young woman in her home at gunpoint within earshot of her husband,
who was being held at gunpoint on the floor a few feet away by a codefendant.
10
       In the case out of Los Angeles County appellant was convicted of one count of
second degree burglary (§ 459) one count of identity theft (§ 530.5) and three counts of
grand theft of personal property (§ 487, subd. (a)).
                                              8
offenses. The probation officer noted that appellant said that he had a substance abuse
problem in that he uses drugs to cope with life.11
       Against this background, the four additional pieces of "evidence" that were
presented to the court—a letter from Ms. Shepard—explained that appellant had
"grow[n] up without a positive role model" and that he had been held back in his efforts
"to provide for himself and his family [due to] social injustices . . . neighborhood
violence, a sense of hopelessness, and lack of self-esteem" Ms. Shepard confirmed that
appellant had turned to drugs and she believed that he would be a productive citizen if he
were granted leniency and received some community support.
       Ms. Hollingsworth wrote that appellant was the father of her two children and he
had a long history of drug use. She confirmed that appellant had been neglected as a
child, during which time he had no contact with his father and lost his mother. Ms.
Hollingsworth asserted that appellant's inability to provide for his family had driven him
to feel hopeless and that his children hoped the court would give him an opportunity to
turn his life around.
       The letter from Ms. Gordon the former education instructor at Elmwood explained
that in the time appellant was in Elmwood he delved deeply into the jail's substance abuse
program and made great strides in understanding his addiction and the poor choices he
made as a result. Ms. Gordon believed that appellant was sincerely remorseful for the
pain his actions caused others. Ms. Gordon pledged to provide appellant housing free of
drugs, alcohol and crime. She offered to assist appellant in obtaining employment and
continuing his education toward becoming a drug and alcohol counselor.
       Finally, in a letter to the court, appellant stated that he had been taking substance
abuse classes while in jail, which he had never had the opportunity to do before, and he


11
       The probation officer's report from appellant's case out of Los Angeles County
indicates that appellant denied using or abusing drugs or alcohol.
                                              9
was seeking mental health treatment. He said he was highly remorseful and vowed to
live a productive and crime-free life.
       This record establishes that it would have been a manifest abuse of the trial court's
limited discretion to strike appellant's prior felony conviction allegations "in furtherance
of justice" under section 1385 as to the one count that Judge Southard left intact. As the
prosecutor argued in her written motion opposing the original Romero motion, "[t]he
defendant has simply failed to present a single compelling factor as it relates to his
background, character, or prospects, which would justify the exercise of [the court]'s
discretion to dismiss his remaining strike prior conviction. As natural as it is to feel some
sympathy for the defendant, and the life he has clearly wasted, it would be improper to
use this emotion in evaluating the defendant's personal and criminal history, the current
offense, and his future prospects."
       As our Supreme Court observed in People v. Williams (1998) 17 Cal.4th 148
(Williams), a case where the defendant was convicted of driving under the influence four
times (id at p. 152) and had a lengthy criminal history (id. at p. 154), " 'the existence of
such convictions reveals that [he] had been taught, through the application of formal
sanction, that [such] criminal conduct was unacceptable -- but had failed or refused to
learn his lesson.' " (Id. at p. 163.) The defendant in Williams had had a substance abuse
problem since he was nine years of age; he apparently recognized the fact and stated a
desire to change; but he did not follow through in efforts to bring the situation under
control. The defendant was unemployed; he lived alone although he had cohabited with a
woman for five or six years, and had two children with her, one of whom was disabled;
and he wished to receive probation in order to help care for this child. (Id. at p. 155.)
       The Williams' court observed: "there is little favorable about [the defendant]'s
background, character, or prospects. We do not ignore the fact that he apparently had had
a stable living arrangement with a woman, had expressed a desire to help care for their
disabled child, and was still loved, and supported, by his family. But neither can we
                                              10
ignore the fact that he was unemployed and did not follow through in efforts to bring his
substance abuse problem under control. Certainly, that he happened to pass about 13
years between his prior serious and/or violent felony convictions and his present felony,
and proceeded from about 20 years of age to 32, is not significant. He did not refrain
from criminal activity during that span of time, and he did not add maturity to age. Quite
the contrary. In those years, he was often in prison or jail; when he was not, he violated
parole and, apparently, probation, and committed the offenses that resulted in his
convictions . . . ." (Williams, supra, 17 Cal.4th at p. 163.)
       Appellant argues that the letters and affidavits that the defense asked Judge Kumli
to consider supported his position that he should not be sentenced to a life term based on
his background, character and prospects. Unfortunately, for appellant Williams teaches
us otherwise.
       By this court's calculation appellant has spent the majority of the last 31 years
incarcerated and/or on parole. Significant by its absence is any conviction for a drug
offense.
       Regardless of the trial court's beliefs in its authority to strike the alleged prior
felony convictions, appellant has suffered no prejudice. It would have been a manifest
abuse of the court's discretion to have exercised it on this record.
Direct Victim Restitution to Best Buy
       As noted, in sentencing appellant, the court ordered that appellant pay direct
victim restitution of $2,643.36 to Citibank and to Best Buy. Specifically, the court
ordered appellant "to pay restitution in an amount including but not limited to $2,643.36
Citibank" and "to pay restitution including but not limited to . . . $2,643.36 to Best Buy."
       Appellant argues that the lower court erred in ordering him to pay direct restitution
to Best Buy without any evidence to support the order.
       Section 1202.4, subdivision (f), states in relevant part, "in every case in which a
victim has suffered economic loss as a result of the defendant's conduct, the court shall
                                              11
require that the defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by the victim or victims
or any other showing to the court."
       "A restitution order is reviewed for abuse of discretion and will not be reversed
unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found
where there is a rational and factual basis for the amount of restitution ordered." (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).) The trial court may consider
almost any kind of information in calculating restitution. (People v. Phu (2009) 179
Cal.App.4th 280, 283–284.) " 'Further, the standard of proof at a restitution hearing is by
a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]'
[Citation.]" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) " 'If the
circumstances reasonably justify the [trial court's] findings,' the judgment may not be
overturned when the circumstances might also reasonably support a contrary finding."
(People v. Baker (2005) 126 Cal.App.4th 463, 469 (Baker); see also Gemelli, supra, 161
Cal.App.4th at p. 1542.) In reviewing the evidence, we do not reweigh or reinterpret it;
we determine only whether there is sufficient evidence to support the inference drawn by
the trier of fact. (Baker, supra, 126 Cal.App.4th at p. 469.)
       Appellant points out that the probation officer's report includes the following
information concerning restitution to Best Buy and Citibank.
       "On July 7, 2011, this officer contacted Best Buy and spoke to the store operation
manager, Joey I., who indicated he does not know if Best Buy suffered any losses. The
company's bookkeeping system can only go back to the last fiscal year. He stated he
would contact this officer if he had additional information. Should any information be
received prior to sentencing, it will be forwarded to Court. According to the police
report, the defendant successfully obtained $2,643.36 in merchandise. This amount is
recommended pending further information. [¶] On June 30, 2011, this officer contacted
Citibank fraud investigator, Diana Lindstrom who indicated Citibank representatives will
                                             12
not attend sentencing. She indicated Citibank reimbursed victim Peng for the fraudulent
charges, but she did not indicate reimbursing the two victim business[es], Best Buy or
Olympian. They are requesting restitution in the amount of $2,643.36, which is
recommended. [¶] This officer attempted to contact victim Peng at the telephone
number[s] listed in the police report; however, one of the number[s] is no longer in
service and the other number no longer belongs to the victim."
       After the court ordered appellant to pay $2,643.36 to Citibank and Best Buy and
finished imposing other fines and fees, the prosecutor asked the court, "with respect to
the restitution order of 2,643.36, could the Court order that to Citibank? There was a
specific request from Citibank who had indicated to probation that they reimbursed
victim [Peng] for the charges." The court responded, "That order will be submitted at
this time. That restitution in that matter will be paid directly to Citibank."
       Both the minute order from the sentencing hearing and the abstract of judgment
reflect that appellant is to pay $2,643.36 to Citibank and to Best Buy.
       Respondent asserts appellant has forfeited any challenge to the restitution order by
failing to challenge it below. In support of this assertion respondent cites to People v.
Brasure (2008) 42 Cal.4th 1037.
       However, as this court explained in In re K. F. (2009) 173 Cal.App.4th 655,
"Sufficiency of the evidence has always been viewed as a question necessarily and
inherently raised in every contested trial of any issue of fact, and requiring no further
steps by the aggrieved party to be preserved for appeal. [Citations.]" (Id. at p. 660.)
"Respondent's implicit assertion of a contrary rule appears to rest entirely on People v.
Brasure (2008) 42 Cal.4th 1037, 1075 . . . (Brasure). That was a capital murder case in
which the court dealt with at least a dozen major contentions before reaching the one
relevant here, which was that a restitution order in favor of the victim's mother was
' "inappropriate" because of evidence (not introduced at trial) that [she] had sought a
restraining order against her son and because [her] economic loss was not shown by
                                              13
documentation or sworn testimony.' (Ibid.) The court held that 'by his failure to object,
defendant forfeited any claim that the order was merely unwarranted by the evidence, as
distinct from being unauthorized by statute. [Citations.]' [Citation.]" (Ibid.)
       We went on to say, "Respondent apparently reads Brasure as a repudiation or
abandonment of the rule noted above, i.e., that no predicate objection is required to
challenge the sufficiency of the evidence on appeal. We cannot join in this reading. The
Supreme Court itself explicitly reaffirmed the stated rule in People v. Butler (2003) 31
Cal.4th 1119, 1126 . . . . Nor is a contrary rule suggested by [People v. Smith (2001) 24
Cal.4th 849], 852. . . . the one decision cited on this point in Brasure, supra, 42 Cal.4th at
page 1075 . . . . The court in Smith listed a number of decisions imposing a forfeiture of
objections going to defects of form or procedure, such as a failure to state reasons for a
sentence choice or to make a required finding. [Citation.] It did not purport to hold that a
party may similarly forfeit an objection to the sufficiency of the evidence. Brasure cannot
be understood to have adopted such a rule." (In re K.F., supra, at p. 661.)
       Accordingly, we will address appellant's contention.12
       As described in the probation officer's report, count five was based on appellant
using a stolen credit card to make a $2,643.36 purchase of a computer and accessories
from a Best Buy store.13 The record shows that Citibank received a claim of
unauthorized use of a credit card from their customer and sustained a financial loss
connected with that transaction. We glean from this Citibank absorbed the loss from the
fraudulent transaction. Notwithstanding the probation officer's recommendation that the
court award restitution to Best Buy, no evidence was presented by Best Buy that they
12
        In so doing, we need not address appellant's alternative claim that counsel was
ineffective in failing to object to the restitution award to Best Buy.
13
        The amount of the transaction is described as $2,643.56 in one part of the
probation officer's report and $2,643.36 in another. In a letter from Citibank that is
attached to the probation officer's report, the bank claimed that their loss was $2,643.56.
However, since $2,643.36 was the amount the court awarded to Best Buy, for the sake of
clarity we will use this amount as the amount of the fraudulent transaction.
                                             14
sustained any loss. To the contrary, the evidence showed that they had no idea if they
sustained a loss.
       Citing People v. Birkett (1999) 21 Cal.4th 226, 246 (Birkett) and People v.
Hamilton (2003) 114 Cal.App.4th 932, 944 (Hamilton), respondent argues that a court
must order restitution to a victim who has suffered economic loss regardless of that
victim's reimbursement from other sources. In general, we do not disagree with this
contention. In Birkett, the Court of Appeal had upheld a trial court order that split a
mandatory probationary restitution award for the full amount of certain direct victim
losses between the victims themselves and the insurers who had partially reimbursed
them. (Id. at p. 229.) The issues before the Supreme Court were whether the 1994 laws
governing mandatory restitution as a condition of adult probation gave insurers a right to
restitution insofar as they had reimbursed their insureds for crime-related losses, and if
not, whether trial courts nonetheless had discretion to allocate mandatory probationary
restitution awards between insurers and insureds to reflect such reimbursements. (Id. at
p. 228.) Our Supreme Court held that restitution could not be awarded to insurers that
partially reimbursed the direct victims for their losses, nor could the court divide the full
amount of restitution between the victims and their insurers. (Id. at p. 246.) The Birkett
court noted that "the criminal restitution scheme should always require the offender to
pay the full cost of his crime, receiving no windfall from the fortuity that the victim was
otherwise reimbursed, but that the rights of reimbursing third parties, aside from the
state's own Restitution Fund, should be resolved in other contexts." (Ibid.) In contrast to
this case, there was no question in Birkett that the victims had suffered an economic loss;
the court had held a restitution hearing at which the court took evidence about the amount
of the victims' losses. (Id. at p. 229.) Such is not the case here.
       Hamilton, supra, 114 Cal.App.4th 932, involved the shooting of a person who was
working for the defendant and the defendant's mother. When the victim sued them in a
civil action, the mother's insurer settled the claim on her behalf. (Id. at p. 935.) The
                                              15
Court of Appeal held that the victim restitution orders imposed in the criminal actions
could not be offset by settlement payments in the civil action because the defendant did
not procure the insurance policies or pay the insurance premiums. (Id. at p. 942.)
       The crucial difference between this case and Hamilton is that the defendant in
Hamilton was not being asked to pay for a loss for which there was no evidence to
support the award. Rather, he was being asked to pay for the actual loss he caused even
though the victim had received an insurance settlement. The value of the loss appellant
caused in this case was $2,643.36; either Citibank or Best Buy sustained that loss.
Citibank provided evidence that they had sustained such a loss, Best Buy did not. There
is no authority allowing imposition of a restitution order for which there is no supporting
evidence.14
       Accordingly, we will strike the restitution order as it pertains to Best Buy.
Presentence Custody Credits under Section 4019
       When appellant was sentenced in October 2011 for crimes he committed in July
2009, the court awarded him 768 days of presentence custody credits and 384 days of
conduct credits. Appellant was arrested on September 10, 2009, and he remained in
custody until he was sentenced to state prison on October 17, 2011.
       Appellant argues on equal protection grounds that he was entitled to the enhanced
conduct credits provided by an amendment to section 4019 that became operative on
October 1, 2011.
       Prior to sentencing, a criminal defendant may earn credits while in custody to be
applied to his or her sentence by performing assigned labor or for good behavior. Such


14
       The rational inferences to be drawn from the evidence that Citibank sustained the
loss are that either Peng was reimbursed for the loss by Citibank or Best Buy was
reimbursed for their loss. If Peng was reimbursed by Citibank for the loss, Peng must
necessarily have paid the credit card bill otherwise Peng would not have sustained a loss
for which Citibank needed to provide reimbursement. Either way, Best Buy was paid for
the computer and accessories.
                                             16
credits are collectively referred to as "conduct credit." (People v. Dieck (2009) 46
Cal.4th 934, 939 & fn. 3.)
       Before January 25, 2010, conduct credits under section 4019 could be accrued at
the rate of two days for every four days of actual time served in presentence custody
(sometimes referred to a one third time or credits calculated at 33 percent). (Stats.1982,
ch. 1234, § 7, p. 4553 [former § 4019, subd. (f) ]; People v. Dieck, supra, 46 Cal.4th at p.
939 [section 4019 provides a total of two days of conduct credit for every four-day period
of incarceration].)
       Between January 25 and September 28, 2010, a defendant could accrue
presentence conduct credit at a rate of two days for every two days spent in actual
custody (sometimes called one-for-one credits) except for those defendants required to
register as a sex offender, those committed for a serious felony (as defined in § 1192.7),
or those who had a prior conviction for a violent or serious felony such as appellant.
(Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [the January 2010 amendment to §
4019, subds. (b), (c), & (f) ].)15
       Effective September 28, 2010, section 4019 was amended again to restore the
presentence conduct credit calculation that had been in effect prior to the January 2010
amendments, eliminating the enhanced credits. (Stats. 2010, ch. 426, § 2.) By its express
terms, the newly created section 4019, subdivision (g), declared these September 28,
2010 amendments applicable only to prisoners confined for a crime committed on or after
that date, expressing legislative intention that they have prospective application only.
(Stats. 2010, ch. 426, § 2.)



15
       For those defendants required to register as a sex offender, those committed for a
serious felony (as defined in § 1192.7), or those who had a prior conviction for a violent
or serious felony conduct credits continued to be calculated at two days for every four
days of actual custody. (Stats. 2009–2010, 3d Ex.Sess., ch. 28, §§ 50, 62 [the January
2010 amendment to § 4019, subds. (b), (c), & (f)].)
                                             17
       This brings us to legislative changes made to section 4019 in 2011 as relevant to
appellant's equal protection challenge. These statutory changes, among other things,
reinstituted one-for-one conduct credits and made this change applicable to crimes
committed on or after October 1, 2011, the operative date of the amendments, again
expressing legislative intent for prospective application only.16 (§ 4019, subds. (b), (c), &
(h).) With the October 2011 amendment, all defendants sentenced to jail or prison for
crimes committed on or after October 1, 2011 may earn presentence conduct credit at that
rate. (§ 4019, subds.(b), (c), & (f); Stats.2011, ch. 15, § 482; Stats.2011, ch. 39, § 53.)
That is, the amendment to section 4019 deleted conduct credit restrictions imposed on
defendants with prior serious or violent felony convictions, those committed for serious
felonies, and persons required to register as sex offenders.
       Notwithstanding the express legislative intent that the changes to section 4019,
operative October 1, 2011, (hereafter the October 2011 amendment) are to have
prospective application only —i.e. to crimes committed on or after the operative date of
the statute, appellant contends that the October 2011 amendment to section 4019 violates
the equal protection clauses of the federal and California Constitutions if it is not applied
retroactively.
       Preliminarily, we note that to succeed on an equal protection claim, a defendant
must first show that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th
821, 836–837.)
       Appellant contends that In re Kapperman (1974) 11 Cal.3d 542 and People v.
Sage (1980) 26 Cal.3d 498 support his equal protection argument.



16
       These changes took place by two separate amendments. (Stats. 2011, ch. 15, §
481; Stats. 2011, ch. 39, § 53.) Section 4019 was also amended a third time in 2011, in
respects not relevant here. (Stats. 2011, 1st Ex. Sess., ch. 12, § 35.)
                                              18
       In Kapperman, supra, 11 Cal.3d 542, our Supreme Court reviewed a provision
(then-new Penal Code section 2900.5) that made actual custody credits prospective,
applying only to persons delivered to the Department of Corrections after the effective
date of the legislation. (Id. at pp. 544–545.) The court concluded that this limitation
violated equal protection because there was no legitimate purpose to be served by
excluding those already sentenced, and extended the benefits retroactively to those
improperly excluded by the Legislature. (Id. at p. 545.) In our view, Kapperman is
distinguishable from the instant case because it addressed actual custody credits, not
conduct credits. Conduct credits must be earned by a defendant, whereas custody credits
are constitutionally required and awarded automatically on the basis of time served.
       Our Supreme Court recently confirmed, "[c]redit for time served is given without
regard to behavior, and thus does not entail the paradoxical consequences of applying a
statute intended to create incentives for good behavior. Kapperman does not hold or
suggest that prisoners serving time before and after the effective date of a statute
authorizing conduct credits are similarly situated." (People v. Brown (2012) 54 Cal.4th
314, 330 (Brown).)
       Although the Supreme Court in Brown was concerned with the January 2010
amendment to section 4019 (Brown, supra, 54 Cal.4th at p. 318), the reasoning of Brown
applies with equal force to the prospective-only application of the current version of
section 4019.
       As can be seen, in Brown, our Supreme Court expressly determined that
Kapperman does not support an equal protection argument, at least insofar as conduct
credits are concerned. (Brown, supra, 54 Cal.4th at pp. 328–330.) In rejecting the
defendant's argument that the January 2010 amendments to section 4019 should apply
retroactively, the Supreme Court 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
                                             19
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, at pp. 328–329.)
       More importantly, in Brown, the Supreme Court confirmed that the October 2011
amendments to Penal Code section 4019 have prospective application only. The court
noted that the defendant had filed a supplemental brief in which he contended that he was
entitled to retroactive presentence conduct credits under the 2011 amendment to Penal
Code section 4019. The Supreme Court stated that this legislation did not assist the
defendant because the "changes to presentence credits expressly 'apply prospectively . . .
to prisoners who are confined to a county jail [or other local facility] for a crime
committed [on] or after October 1, 2011.' (§ 4019, subd. (h), added by Stats. 2011, ch.
15, § 482, and amended by 2011, ch. 39, § 53.) Defendant committed his offense in
2006." (Brown, supra, 54 Cal.4th at p. 322, fn. 11.) Similarly, here, appellant committed
his offenses in 2009.
       Sage is similarly inapposite because it involved a prior version of section 4019
which allowed presentence conduct credits to misdemeanants, but not felons. (Sage,
supra, 26 Cal.3d at p. 508.) Our Supreme Court found that there was neither "a rational
basis for, much less a compelling state interest in, denying presentence conduct credit to
detainee/felons." (Ibid.) The purported equal protection violation at issue here is
temporal, rather than based on the defendant's status as a misdemeanant or felon. In
Brown, supra, 54 Cal.4th at page 329, the Supreme Court acknowledged that "one
practical effect of [the Sage decision] was to extend presentence conduct credits
retroactively to detainees who did not expect to receive them, and whose good behavior
therefore could not have been motivated by the prospect of receiving them." However,
the Supreme Court declined to read Sage as implicitly holding that prisoners serving time
before and after a conduct credit statute takes effect are similarly situated for purposes of
equal protection, because that proposition was not considered in the case. (Id. at p. 330.)
                                             20
       Finally, for equal protection purposes, even if we were to agree that the time that
appellant spent in county jail between October 1, 2011 and the time he was sentenced on
October 17, 2011, appellant was similarly situated to other defendants who committed
their crimes after October 1, and were in presentence custody, where, as here, the
statutory distinction at issue neither "touch[es] 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. [Citations.]" (People v. Hofsheier
(2006) 37 Cal.4th 1185, 1200; see also People v. Ward (2008) 167 Cal.App.4th 252, 258
[rational basis review applicable to equal protection challenges based on sentencing
disparities].)
       We perceive such a plausible reason in this case as to the period of time defendant
was in custody after October 1, 2011.
       As our Supreme Court has 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.)17
       In People v. Floyd (2003) 31 Cal.4th 179 (Floyd ), the defendant sought to
invalidate a provision of Proposition 36 barring retroactive application of its provisions
for diversion of nonviolent drug offenders. (Id. at pp. 183–184.) 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 maintain their
desired deterrent effect by carrying out the original prescribed punishment as written.' "
(Id. at p. 190.) The statute before the court came within this rationale because it

17
       In Kapperman, the court found that rationale inapplicable to the issue before the
court. (Kapperman, supra, 11 Cal.3d at p. 546.)
                                             21
"lessen[ed] punishment for particular offenses." (Ibid.) As the Floyd court noted, " '[t]he
Fourteenth 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.]" (Id. at p. 191.)
       "The very purpose of conduct credits is to foster constructive behavior in prison by
reducing punishment." (People v. Lara (2012) 54 Cal.4th 896, 906.) As our Supreme
Court accepted in Brown, supra, 54 Cal.4th 314, "to increase credits reduces
punishment." (Id. at p. 325, fn. 15.)
       We gather that the rule acknowledged in Kapperman and Floyd 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.
       Defendant committed his crimes in 2009. At that time, his ability to earn conduct
credit was limited to two days for every four days of actual time served in presentence
custody. (Stats. 1982, ch. 1234, § 7.)
       Although the statute at issue here does not ameliorate punishment for a particular
offense, it does, in effect, ameliorate punishment for all offenses committed after a
particular date. 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


                                             22
should be punished in accordance with the sanctions and given the rewards (conduct
credits) in effect at the time an offense was committed.
       Finding no equal protection violation, we affirm appellant's custody credit award.
                                        Disposition
       We modify the judgment by striking the restitution order awarding Best Buy
$2,643.36. The clerk of the court is directed to amend the abstract of judgment
accordingly and forward a copy to the Department of Corrections and Rehabilitation. As
so modified the judgment is affirmed.




                                          _______________________________
                                          ELIA, Acting P. J.


WE CONCUR:




____________________________________
BAMATTRE-MANOUKIAN, J.




____________________________________
MÁRQUEZ, J.




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