P. v. Cox



















Filed 1/23/13 P. v. Cox CA4/2













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. KENNY WAYNE COX, Defendant and Appellant.	E055507 (Super.Ct.Nos. RIF141923 & RIF143367) OPINION
THE PEOPLE, Plaintiff and Respondent, v. KENNY WAYNE COX, Defendant and Appellant.	E055508 (Super.Ct.Nos. RIF147801, RIF148097 & RIF151177)

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Becky Dugan,
Judge. Affirmed.

John
L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

In
case Nos. RIF141923href="#_ftn1" name="_ftnref1"
title="">^[1] and RIF147801,href="#_ftn2" name="_ftnref2" title="">^[2] defendant pled to numerous drug- and
theft-related charges, as well as one assault
with a deadly weapon on a police officer allegation (Pen. Code, § 245,
subd. (c)),href="#_ftn3" name="_ftnref3"
title="">^[3] and several other charges including resisting
arrest (§ 148, subd. (a)(1)), evading an
officer (§ 2800.2), and failure to appear (§ 1320, subd. (b)). Defendant also admitted to six separate
out-on-bail enhancement allegations (§ 12022.1), five prior prison term
allegations (§ 667.5, subd. (b)), one prior serious felony allegation (§
667, subd. (a)), and one prior strike allegation (§§ 667, subds. (c),
(e)(1) & 1170.12, subd. (c)(1)). In
return, on both cases, defendant was sentenced to a total term of 30 years in
state prison.

In
case No. RIF141923, defendant received six actual days of presentence custody
credit and two days of conduct credit, for a total of eight days of presentence
custody credit. In case No. RIF147801,
defendant received 855 actual days of presentence credit and 426 days of
conduct credit, for a total of 1,281 days of presentence custody credit. On appeal, defendant contends that he is
entitled to additional presentence conduct credit pursuant to the new
provisions of section 4019 and the equal
protection clause. We reject these
contentions and affirm the judgment.

I

DISCUSSIONhref="#_ftn4" name="_ftnref4" title="">^[4]

Defendant
committed his crimes in 2008 and 2009, and he was sentenced on October 13, 2011. The trial court awarded him a total of 861
days of actual custody credit and 428 days of conduct credit. He had a prior conviction for assault with a
deadly weapon on a police officer, a serious and violent felony and, therefore,
did not qualify for day–for–day credit under former section 2933, subdivision
(e). (Former § 2933, subd. (e)(1), as
amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.)

Operative
October 1, 2011, the
Legislature amended section 4019 to allow all defendants serving presentence
time in county jail to be eligible for day–for–day credit. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, Stats. 2011, ch. 39, §
53, and Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35.) Section 4019 now provides that “a term of
four days will be deemed to have been served for every two days spent in actual
custody.” (§ 4019, subd. (f).) The only defendants who are excluded from
section 4019’s current day–for–day credit provisions are those who have a
current violent felony or murder conviction.
(See §§ 2933.1, subd. (c), 2933.2, subd. (c).) By its express terms, the amendment to
section 4019 applies only to defendants whose crimes were committed on or after
October 1, 2011. (§ 4019, subd. (h).) Additionally, subdivision (h) expressly
provides that this change “shall apply
prospectively and shall apply to prisoners who are confined to a county
jail, city jail, industrial farm, or road camp for a crime committed on or
after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.”
(§ 4019, subd. (h), italics added.)

Defendant
argues that, despite the express terms of section 4019, he is entitled to
additional presentence conduct credit on the ground that the equal protection
clause required that the recently amended section 4019 be applied to him
retroactively. Based on our Supreme
Court’s recent decisions in People v.
Brown (2012) 54 Cal.4th 314 (Brown)
and People v. Lara (2012) 54 Cal.4th
896 (Lara), we conclude that equal
protection principles do not require retroactive application of the October 1,
2011, amendment to section 4019.

In
Lara, the Supreme Court explained its
rejection of the defendant’s equal protection argument as follows: “As we there [Brown, supra, 54 Cal.4th
314, 328-330] explained, ‘“[t]he obvious purpose”’ of a law increasing conduct
credits ‘“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 inmate is unaware of it. The very
concept demands prospective application.”’
(Brown, at p. 329, quoting >In re Strick (1983) 148 Cal.App.3d 906,
913.) Accordingly, prisoners who serve
their pretrial detention before such a law’s effective date, and those who
serve their detention thereafter, are not similarly situated with respect to
the law’s purpose. (Brown, at pp. 328-329.)” (>Lara, supra, 54 Cal.4th at p. 906, fn. 9; see also People v. Ellis (2012) 207 Cal.App.4th 1546, 1551 [appellate court
held that the Brown court’s reasoning
and conclusion applied equally to the Oct. 1, 2011, amendment to § 4019, and
that amendment did not apply retroactively].)
We agree with the reasoning and conclusions of Brown, Lara, and >Ellis and, therefore, we reject
defendant’s argument that he was entitled to additional conduct credits.href="#_ftn5" name="_ftnref5" title="">^[5]

II

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS



RAMIREZ

P.
J.

We concur:





RICHLI

J.





KING

J.