P. v. Johnson
Filed 9/5/12 P. v. Johnson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
RAYMOND ANTHONY JOHNSON,
Defendant and
Appellant.
G045918
(Super. Ct.
No. 11HF2248)
O P I N I O
N
Appeal from a judgment of the Superior Court of
County, Stephanie George, Judge. Affirmed.
Gerald
J. Miller, 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, William M. Wood and
Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
This
is an appeal from a judgment based on a guilty plea. Appellant contends he was denied
the benefit of a statutory amendment that increases the rate at which
defendants can earn conduct credit while they are in jail prior to sentencing. Finding no equal protection violation, we
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In
September 2011, appellant possessed morphine and Oxycontin and was charged with
two counts of possessing a controlled substance. (Health & Saf. Code,
§ 11350, subd. (a).) He initially pleaded not guilty, but on
October 12, he changed his plea to guilty pursuant to a
imposition of sentence and placed appellant on formal probation. The court also ordered appellant to serve 120
days in jail. It awarded him 60 days of
presentence credit, based on 40 days of actual custody, plus 20 days of conduct
credit.
DISCUSSION
In
2011, the Legislature amended Penal Code section 4019 to allow jail inmates to
receive conduct credit (for work and good behavior) at a rate of two days for
every two days spent in actual custody.
(Pen. Code, § 4019, subds. (b), (c) & (f), as amended by Stats.
2011, ch. 15, § 482.) Using that
formula, appellant would have been entitled to 40 days conduct credit, instead
of 20. However, the 2011 amendment did
not become operative until October 1, 2011, and by its terms, it only applies
“prospectively” to jail inmates who are confined for a crime that was committed
on or after that date. (Pen. Code, §
4019, subd. (h), as amended by Stats. 2011, ch. 39, § 53.) Appellant acknowledges that, because he
committed his crimes in September 2011, he does not come within the ambit of the
2011 amendment. But, he insists it would
be a violation of equal protection if he were denied the benefit of that
amendment. We disagree.
As
our Supreme Court recently explained, in order to establish a violation of
equal protection, it must be shown “‘“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.]”
(People v. Brown (2012) 54
Cal.4th 314, 328 (Brown).)
Brown addressed a 2009 amendment to Penal Code section 4019 that,
like the 2011 amendment at issue here, prospectively increased the rate at
which jail inmates may receive presentence conduct credits. (Brown,
supra, 54 Cal.4th at p. 318.)
Recognizing the purpose of conduct credits is to provide inmates with an
incentive for good behavior, Brown
ruled that purpose is “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 2009 amendment] took effect are not similarly situated
necessarily follows.” (
In
so ruling, Brown distinguished the
two cases appellant relies on here, People
v. Sage (1980) 26 Cal.3d 498 and In
re Kapperman (1974) 11 Cal.3d 542, on the basis Kapperman involved custody credits, not conduct credits, and
conduct credits, by their nature, must apply prospectively to motivate good
behavior.” (Brown, supra, 54 Cal.4th at p. 330.) Given that fact, it is abundantly clear that
appellant is not similarly situated to persons who committed crimes after the
2011 amendment to Penal Code section 4019 became operative. Therefore, he is not entitled to the benefit
of that amendment as a matter of equal
protection. (People v. Lara (2012) 54 Cal.4th 896, 906, fn. 9;
1546.)
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
