P. v. Richards













Filed 1/24/13 P. v. Richards CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. JOANNE RICHARDS, Defendant and Appellant.

H038053 (Santa Clara County Super. Ct. No. C1105860)

Defendants
who committed their crimes on or after October
1, 2011, are eligible for presentence conduct credits calculated on
the basis of two days of conduct credit for every two days of actual
custody. (Pen. Code, § 4019, subds. (b),
(c) & (f).)href="#_ftn1" name="_ftnref1"
title="">[1]name=F00112029088129> Defendants who
committed their crimes before October
1, 2011, are eligible for conduct credits at the previous rate of
two days for every four days in custody.
(Id.
subd. (h).) Defendant, who committed his
crime in April 2011, appeals from a judgment and contends that affording him a
lower level of conduct credits solely because he committed his crime before October 1, 2011, violates his href="http://www.fearnotlaw.com/">constitutional right to the equal
protection of the laws. We conclude that
the right to equal protection does not prevent the Legislature from limiting
the increased level of presentence conduct credits to detainees who committed
their crimes on or after the October
1, 2011, operative date of the statute. We therefore affirm the judgment.

background

In July
2011, defendant pleaded no contest to second
degree burglary and two drug-related counts concerning events that occurred
in April 2011. The trial court suspended
imposition of sentence and placed defendant on probation with a condition that
he serve four months in jail. It awarded
presentence custody credits of 62 actual days and conduct credits of 30 days in
accordance with the two-for-four version of section 4019 then in effect.

discussion

Notwithstanding the express href="http://www.fearnotlaw.com/">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
effective date of the statute--defendant 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 because it
treats a defendant who committed a crime before October 1, 2011, differently
than if he or she committed the same crime after the statute’s effective
date. Defendant cites In re Kapperman
(1974) 11 Cal.3d 542, 544-545 (Kapperman) and People v. Sage
(1980) 26 Cal.3d 498, 507-508 in support of his equal protection argument.

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. Kennedy (2012) 209 Cal.App.4th 385, 396 (Kennedy).)

Preliminarily,
we disagree with the People’s contention that section
1237.1 bars defendant’s challenge to the constitutionality of the October 2011
amendment. Section 1237.1 states in
relevant part: “No appeal shall be taken
by the defendant from a judgment of conviction on the ground of an error in the
calculation of presentence custody credits, unless the defendant first presents
the claim in the trial court at the time of sentencing . . . .”

Section
1237.1 does not apply here. Defendant
does not contend that the trial court erred in calculating his custody credits
under the version of section 4019 in effect at the time.

In name="SR;1632">People v. Brown (2012) 54 Cal.4th 314 (name="SR;1640">Brown), the California Supreme Court expressly
determined that neither Kapperman nor Sage supports an equal
protection argument, at least insofar as conduct credits are concerned. (Id. at pp.
329-330.) In rejecting an inmate’s
argument that January 2010 amendments to section 4019 should apply
retroactively, the court explained “the important
correctional purposes name="SR;1701">of a statute name="SR;1704">authorizing incentives name="SR;1706">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. name="SR;1735">That prisoners who
served time before
and after former
section 4019 took
effect are not
similarly situated necessarily
follows.” name="SR;1755">(Brown,
supra, at pp. 328-329.)

Addressing
the inmate’s equal protection claims, the court distinguished Kapperman
on the grounds that it addressed custody credits, rather than conduct
credits. (Brown, supra, 54 Cal.4th at p.
330.) Conduct credits must be earned by
a defendant, whereas custody credits are constitutionally required and awarded
automatically on the basis of time served.
“Credit for time
served is given
without regard to behavior, and thus
does not entail the paradoxical consequences of applying retroactively 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.” (Ibid.)

Concerning Sage, the court acknowledged that “one
practical effect of [that 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.” (Brown, supra, 54 Cal.4th at p.
329.) However, it 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. (Ibid.)

Defendant’s reliance on People >ex rel.
Carroll v. Frye (1966) 35 Ill.2d 604 [221 N.E.2d 262] (>Frye), cited in a footnote in Kapperman, supra, 11 Cal.3d at page 547, footnote 6, is also erroneous. This Illinois case, similar to Kapperman, dealt with actual custody, and not
the presentence conduct credits that we are concerned with here. Moreover, the date that was considered
potentially arbitrary or fortuitous in the equal protection analysis was the
date of conviction, a date out of a defendant’s control, and not the date on
which the crime was committed. (Frye, supra, 221 N.E.2d at pp.
264-265.)

The Brown court finally resolved
the equal protection issue by concluding that, “equal name="SR;1999">protection does not require former
section 4019 to be applied retroactively.”
(Brown, supra,
54 Cal.4th at p. 330.)

Although the Brown decision
concerned the January 2010 version of section 4019, we recently held that there
is no reason why the reasoning and holding in Brown cannot be extended
to the October 2011 amendment to section 4019.
(Kennedy, supra, 209 Cal.App.4th at pp. 396-397; accord, People v. Ellis
(2012) 207 Cal.App.4th 1546, 1552.)

Moreover, in
observing that the October 2011 amendment to section 4019 has prospective
application only, the Brown 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. It then observed that the
amendment did not assist the defendant because the “changes to name="SR;8293">presentence credits expressly
‘apply prospectively . . . to prisoners
who are confined
to a county name="SR;8306">jail [or other name="SR;8309">local facility] for
a crime committed
on or after name="SR;8318">October 1, 2011.’ [Citation.] Defendant committed name="SR;8345">his offense in name="SR;8348">2006.” (name="SR;8350">Brown,
supra, 54 Cal.4th at p. 322, fn. 11.) Similarly, here, defendant committed his
offense in April 2011.

We therefore reject defendant’s equal
protection challenge to the October 2011 amendment of section 4019.

disposition

The
judgment is affirmed.











Premo,
Acting P.J.











WE CONCUR:













Mihara,
J.



















Márquez,
J.