P. v. Xiong























Filed 2/27/13
P. v. Xiong CA5

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. CHOR XIONG, Defendant and Appellant.

F063938 (Super. Ct. No. F11901181) O P I N I O N

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Edward Sarkisian, Jr.,
Judge.

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,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury
convicted appellant, Chor Xiong, of the unlawful
taking or driving of a motor vehicle (Veh. Code, § 10851, subd. (a)), and
in two separate proceedings, appellant admitted allegations that he had
suffered a “strike,”href="#_ftn2"
name="_ftnref2" title="">^[1] served two separate prison terms for prior
felony convictions (Pen. Code, § 667.5, subd. (b))href="#_ftn3" name="_ftnref3" title="">^[2],
and suffered a prior conviction of violating Vehicle Code section 10851 (Veh.
Code, § 10851, subd. (e)). The court
imposed a prison term of 10 years, consisting of the four-year upper term on
the substantive offense, doubled pursuant to the three strikes law (§§ 667,
subd. (e)(1); 1170.12, subd. (c)(1)), for a total of eight years, and one year
on each of the two prior prison term enhancements. The court awarded appellant presentence
custody credits of 415 days, consisting of 277 days of actual custody credits
and 138 days of conduct credits.

On appeal,
appellant contends the court erred in failing to (1) award him presentence
conduct credits under the one-for-one credit scheme of the current iteration of
section 4019; (2) conduct an adequate inquiry to determine if appellant needed
the assistance of an interpreter; and (3) appoint an interpreter. We affirm.

DISCUSSION

Denial of Request for Appointment of an Interpreter

Prior to
the commencement of trial testimony,
appellant requested the appointment of an interpreter. The court denied the request. Appellant contends the court abused its
discretion in failing to appoint an interpreter, in violation of his rights
under the United States and California Constitutions.

Background

At the
outset of trial proceedings, before any testimony was taken, the prosecutor
informed the court that “[Defense counsel] advised Presiding this morning that
her client wanted the services of a Hmong interpreter.” The court stated it was aware of appellant’s
request for an interpreter, and noted “that there’s been 13 minute orders up to
today’s date, none of which included or noted the assistance of an interpreter,
as well as the preliminary hearing.”
Defense counsel did not dispute this, and confirmed that she and
appellant had been communicating without the assistance of an interpreter
“throughout,” at which point the following colloquy occurred:

“THE
COURT: ... [¶] So
is there anything else you wish to add for the record in terms of that request?

“[Defense
counsel]: Just before the trial
[appellant] asked if he could have a Hmong interpreter so he would better
understand what was going on at trial.

“THE
COURT: And it is correct that an
interpreter hasn’t been utilized up to this point throughout the case?

“[Defense
counsel]: That is correct.

“THE
COURT: ... So at this point all I’ve had is a request
standing alone.

“[Defense
counsel]: Yes, Your Honor.”

At that
point, the court stated it was “not inclined” to grant the request, and stated:
“So unless there’s something else that
is brought to the Court’s attention I’m not persuaded an interpreter is going
to be appointed.” Defense counsel
responded, “I understand,” and the court moved to a discussion of other
matters.

Analysis

Under the California
Constitution, “A person unable to understand English who is charged with a
crime has a right to an interpreter throughout the proceedings.” (Cal. Const., art. I, § 14.) In addition, various rights under the United
States Constitution, “includ[ing] the right of a defendant to due process, to
confrontation, to effective assistance of counsel, and to be present at trial”
“may be implicated in the right to an interpreter.” (People
v. Rodriguez (1986) 42 Cal.3d 1005, 1011.)
“Regarding the rights to effective assistance of counsel and to
effective presence at trial, courts frequently have echoed the words of the
United States Supreme Court that a criminal defendant must possess ‘sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding.’” (People v. Carreon (1984) 151 Cal.App.3d 559, 567 (>Carreon), quoting Dusky v. United States (1960) 362 U.S. 402.)

A court is
not required to appoint an interpreter merely because a defendant requests or
demands one. (In re Raymundo (1988) 203 Cal.App.3d 1447, 452-1453 (>Raymundo).) Rather, “an affirmative showing of need is
required.” (Id. at p. 1453.) As this
court explained in Carreon, >supra, 151 Cal.App.3d at pp.
566-567: “Prior to enactment of this
constitutional provision [art. I, § 14], courts had developed the rule that
upon the defendant’s showing of necessity, appointment of an interpreter was
required as a matter of due process.
[¶] In the past, trial courts had
been afforded broad discretion in determining whether a defendant’s
comprehension of English was minimal enough to render interpreter services
‘necessary.’ [Citations.] Nothing in the new constitutional provision
changes this well established requirement of a finding of necessity by the
trial court. Indeed, the provision
specifically states that the right to an interpreter is contingent upon a
person’s being ‘unable to understand English.’
(Cal. Const., art. I, § 14.)
Prior to the right being spelled out in the state Constitution, the
court’s failure to appoint an interpreter upon a proper showing of need was
deemed violative of fundamental fairness and sometimes required reversal of the
defendant’s conviction.
[Citation.]” Thus, “the burden is
on the accused to show that his [or her] understanding of English is not
sufficient to allow him [or her] to understand the nature of the proceedings
and to intelligently participate in his defense.” (Raymundo,
at p. 1454.)

The denial of a request for an
interpreter is reviewed for abuse of discretion. (Raymundo,
supra, 203 Cal.App.3d at p.
1456.) “An exercise of discretion by a
trial judge may be reversed ‘“‘where no reasonable basis for the action is
shown.’”’ [Citation.] ‘“‘[W]here a trial court has discretionary
power to decide an issue, a reviewing court will not disturb that decision
unless the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination....’”’ [Citation]”
(Ibid.)

“When evaluating a determination as
to the necessity of appointing an interpreter, the policy of upholding a lower
court’s decision based upon informed discretion is strong. The trial judge is
in a unique position to evaluate the reactions and responses of the accused and
to determine whether he or she does or does not require an interpreter in order
to be adequately understood or in order to adequately understand the
proceedings. This exercise of discretion should not be reversed unless there is
a complete lack of any evidence in the record that the accused does understand
English, thereby rendering the decision totally arbitrary.” (Raymundo,
supra, 203 Cal.App.3d at p.
1456.)

Here, as indicated earlier,
appellant, at the hearing on his request for an interpreter, made virtually no
showing of a need for an interpreter.
The sum total of the defense showing was defense counsel’s statement
that appellant “[had] asked if he could have a Hmong interpreter so he would
better understand what was going on at trial.”
Counsel confirmed that the court had before it only “a request standing
alone.” We recognize that “the fact that
[a criminal defendant] states that he does not understand English and requests
an interpreter on that basis may be some evidence of the fact that the charged
individual does not understand English....”
(Raymundo, >supra, 203 Cal.App.3d at p. 1453.) However, such a claim and request “cannot be
considered conclusive proof of that lack of proficiency in English” (>ibid.) and does not, without more,
necessitate the appointment of an interpreter (id. at pp. 1452-1453).
Moreover, defense counsel confirmed that she and appellant had
communicated at all times without an interpreter, and appellant did not dispute
below, and does not dispute now on appeal, the court’s finding that in 13
previous court appearances appellant had not required the services of an
interpreter. (See Raymundo, supra, 203
Cal.App.3d at p. 1455 [factors relevant to determination of need for
interpreter include whether one has previously been provided].) The court’s determination that appellant had
not made the requisite showing of need for an interpreter was well within the
court’s discretion.

Appellant’s challenge to the
court’s denial of his request for an interpreter focuses on how poor a
defendant’s understanding of English must be to necessitate the appointment of
an interpreter. He argues that “even a >slight inability of a defendant to
understand court proceedings because of a limitation on his or her ability to
speak English warrants the appointment of an interpreter.” (Italics added.) Indeed, appellant suggests that a defendant
has a constitutional right to an interpreter unless he or she is able to
“understand every word throughout [the] judicial proceedings.” Further, appellant suggests, he made the
required showing below and therefore the court abused its discretion in denying
his request for an interpreter. These
claims are without merit.

First, the authorities cited by
appellant in this regard are inapposite.
He points to U.S. ex. rel. Negron
v. New York (2d Cir. 1970) 434 F.2d 386 (Negron) and People v. Aguilar
(1984) 35 Cal.3d 785 (Aguilar). In Negron,
as our Supreme Court explained in Aguilar,
“the appellate court found constitutional error in the failure of the trial
court to provide a Spanish speaking defendant with an interpreter
notwithstanding the fact that a prosecution interpreter provided the accused
with periodic summaries of the proceedings.”
(Aguilar, at p. 792.) In the portion of Negron on which appellant relies, which, as appellant notes, the
court in Aguilar cited with approval,
the court stated: “‘[i]n order to afford
Negron his right to confrontation, it was necessary under the circumstances
that he be provided with a simultaneous translation of what was being said for
the purpose of communicating with his attorney to enable the latter to
effectively cross-examine those English-speaking witnesses to test their
credibility, their memory and their accuracy of observation in light of
Negron’s version of the facts.’” (>Aguilar, at pp. 792-793, quoting >Negron.)
However, the quoted portion of Negron
upon which appellant relies merely states what was constitutionally required
where it had been established that
the Spanish-speaking defendant “was unable to communicate with his counsel
without the use of an interpreter.” (>Aguilar, at p. 792.) It says nothing about what was required to
establish that the defendant lacked the ability to communicate in English, and
certainly does not suggest that no more than a slight inability to understand English
is sufficient to trigger the requirement that an interpreter be appointed.

Moreover, given appellant’s failure
below to do more than simply request an interpreter, in our view, he failed to
establish he had even a slight inability to understand English. Finally, and more fundamentally, the “slight
inability” standard appellant proposes is contrary to the principle, discussed
above, that a defendant has no constitutional right to an interpreter unless he
or she lacks the “‘ability to consult with his [or her] lawyer with a >reasonable degree of rational
understanding.’” (Carreon, supra, 151
Cal.App.3d at p. 567, italics added.)
The requirement, as articulated in Raymundo,
that “the burden is on the accused to show that his [or her] understanding of English
is not sufficient to allow him [or her] to understand the nature of the
proceedings and to intelligently participate in his defense” (>Raymundo, supra, 203 Cal.App.3d at p. 1454), is consistent with this
standard. Under this standard, the
denial of appellant’s request for an interpreter did not constitute an abuse of
discretion.

Inquiry into Need for an Interpreter

Appellant
argues as follows: “[T]he trial court
failed to conduct any meaningful dialogue with appellant to determine why he
needed an interpreter. The trial court
should have, at a minimum, determined how long appellant had been speaking
English, his native language, and what portion of the proceedings he had failed
to understand. The trial court’s failure
to conduct this inquiry was error.”

Here, as
indicated earlier, the record shows the following: after being informed by the prosecutor that
defense counsel had earlier indicated that appellant wanted an interpreter, the
court invited counsel to place on the record the reasons for that request. Counsel stated only that appellant wanted an
interpreter “so he would better understand what was going on at trial.” The court, through inquiry, established that appellant
and counsel were able to communicate in English, and stated, without
contradiction, that numerous previous proceedings had been conducted without an
interpreter. The court then indicated
that although a request had been made, no reasons had been offered. Counsel confirmed this.

Thus, the
court afforded the defense an adequate opportunity to explain why an
interpreter should be appointed, and no explanation was forthcoming. On this record, the court cannot be faulted
for not inquiring further.

Presentence Custody Credits

Under section 2900.5, a person sentenced to state prison for criminal
conduct is entitled to presentence custody credits for all days spent in
custody before sentencing.
(§ 2900.5, subd. (a).) In
addition, section 4019 provides for what are commonly called conduct credits,
i.e., credits against a prison sentence for willingness to perform assigned
labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019,
subd. (c)). (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

Section 4019 has undergone numerous amendments in the past few years. Under the version in effect prior to January
25, 1010, six days would be deemed to have been served for every four days
spent in actual custody—a ratio of one day of conduct credit for every two days
served (one-for-two credits). (Former §
4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.) Effective January 25, 2010, the Legislature
amended section 4019 to provide for two days of conduct credit for every two
days served—one-for-one credits—for certain defendants. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28,
§ 50.) Effective September 28, 2010, the
Legislature again amended section 4019, this time to restore the less generous
one-for-two credits for defendants confined for crimes committed on or after
September 28, 2010. (Stats. 2010, ch.
426, § 2.)

The Legislature next amended
section 4019 in Assembly Bill No. 109 (2011-2012 Reg. Sess.), which was part of
the so-called criminal realignment legislation.
“[T]he overall
purpose of [this legislation]name="citeas((Cite_as:_207_Cal.App.4th_664,_*6"> is to reduce recidivism and
improve public safety, while at the same time reducing corrections and related
criminal justice spending.” (>People v. Cruz (2012) 207 Cal.App.4th
664, 679.) Under the new
legislation, to which we refer as the 2011 amendment, defendants, including those
who had been precluded from enhanced credits under the January 25, 2010,
amendment, can receive one-for-one credits.
(§ 4019, subds. (b), (c), as amended by Stats. 2011, ch. 15, § 482.) The legislation expressly provided 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), as added by Stats. 2011,
ch. 15, § 482 and amended by Stats. 2011, ch. 39, § 53.)

Appellant committed the instant
offense on March 1, 2011, approximately seven months prior to the effective
date of the 2011 amendment. He
acknowledges that his award of custody credits is governed by the one-for-two
scheme of the version of section 4019 that became effective September 28, 2010,
and further, that under this statute, the trial court’s award of conduct credits
was correct. He argues, however, that
under equal protection principles, he is entitled to one-for-one credits under
the 2011 amendment.

Specifically, appellant contends
the 2011 amendment created “two classes of prison inmates and parolees,” viz.,
“(1) those who receive additional conduct credits since they committed a crime
on or after October 1, 2011; and (2) those who will not receive additional
conduct credits since they committed a crime before October 1, 2011.” These two groups, he argues, relying in large
part on In re Kapperman (1974) 11
Cal.3d 542 (Kapperman), are
“similarly situated with respect to the purpose of the enhanced credit
entitlement.” Further, appellant, a
member of the second group, argues that there is no “rational basis” for
denying him the enhanced credits under the current version of section 4019 for
the sole reason that he committed his crimes prior to October 1, 2011, and that
therefore he was denied his constitutional guarantee of equal protection of the
laws. This “denial of equal protection,”
he contends, should be remedied by modifying the judgment to award him
one-for-one credits of 277 days under the 2011 amendment to section 4019 for
his entire period of presentence confinement—March 1, 2011, through the date of
sentencing, December 2, 2011—rather than the one-for-two credits of 138 days
awarded by the court under the version of section 4019 effective September 28,
2010. We disagree.

“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.”’”
(People v. Brown (2012) 54
Cal.4th 314, 328 (Brown).) “If the first prerequisite is satisfied, we
proceed to judicial scrutiny of the classification.” (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam).) As the court
in Rajanayagam stated in addressing an
equal protection challenge to the 2011 amendment, “Where, as here, the
statutory distinction at issue neither touches 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.” (Ibid.) “Under the rational
relationship test, a statutory classification that neither proceeds along
suspect lines nor infringes fundamental constitutional rights must be upheld
against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. [Citation.]”
(Ibid.)

We first consider the question of
whether appellant, who committed the instant offenses prior to October 1, 2011,
and persons who were confined for offenses for crimes committed after that date
are similarly situated with respect to the purpose of the law. Preliminarily, we note that appellant’s
period of presentence custody— March 1, 2011, through December 2, 2011—encompasses
time both before, on and after October 1. As we explain below, the analysis with
respect to time before October 1 and time on or after October 1 may be
different.

In Brown, supra, 54 Cal.4th
314, which was decided after appellant filed his opening brief, our Supreme
Court addressed whether the amendment to section 4019 that became operative on
January 25, 2010, should be given retroactive effect to permit prisoners, who
served time in local custody before that date, to earn conduct credits at the
increased rate. Addressing the issue of
whether defendant was similarly situated to those defendants who served time
after the operative date, and rejecting Kapperman-based
arguments, the court explained: “As we
have already 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 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,
at pp. 328–329.)

Relying on Brown, this court, in People
v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis),
rejected an equal protection challenge to the 2011 amendment virtually
identical to that raised by appellant here:
“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. [Citation.]
Accordingly, we reject defendant’s claim he is entitled to earn conduct
credits at the enhanced rate provided by current section 4019 for the entire
period of his presentence incarceration.”href="#_ftn4" name="_ftnref4" title="">^[3] (Ellis,
at p. 1552; accord, People v. Kennedy
(2012) 209 Cal.App.4th 385, 396-397 (Kennedy).)

After Ellis was decided, the court in Rajanayagam,
supra, 211 Cal.App.4th 42, addressed
an equal protection challenge to the current version section 4019, where, as in
Ellis and the instant case, the confinement
period straddled October 1. However, the
defendant in Rajanayagam effectively
conceded he was not entitled to the portion of his presentence confinement that
predated October 1, and therefore the defendant’s claim related only to time
served on and after that date. The court
held that the two groups in question—“(1) those defendants who are in jail on
and/or after October 1, 2011, who committed an offense on or after October 1,
2011, and (2) those defendants who are in jail on and/or after October 1, 2011,
who committed the same offense before
October 1, 2011”—were “similarly situated for purposes of the October 1, 2011,
amendment ....” (Rajanayagam, at p. 53.) >Brown, the court stated, “is inapposite
on this point.” (Rajanayagam, at p. 54.) The court
reasoned as follows: “[>Brown] did not involve a situation where
a defendant sought enhanced conduct credit for time served after the
amendment’s operative date. Instead, >Brown concerned whether the amendment
was retroactive, i.e., whether a defendant who served time before the operative
date was entitled to enhanced conduct credits.
Here, we are faced with the issue of whether the current version of
section 4019 operates prospectively as to a defendant who committed an offense
before the amendment’s effective date.
We read the language of Brown,
supra, 54 Cal.4th at page 329,
‘[t]hat prisoners who served time before and after former section 4019 took
effect are not similarly situated necessarily follows’ as limited to the facts
in that case—that there is no incentive for defendants who served time before
the amendment’s effective date to work and behave. Brown
is not instructive on the issue of whether there is an incentive for defendants
who served time after the amendment’s effective date to work and behave.” (Ibid.)

This court in Ellis, in finding Brown
controlling, did not specifically address the foregoing view of the >Brown equal protection analysis of
confinement time on and after October 1. However, we need not reconsider this court’s
conclusion in Ellis on this
point. As we explain below, assuming for
the sake of argument that the similarly-situated requirement is met for the
entire period of appellant’s custody, his equal protection claim nonetheless
fails because there is a rational basis for the legislative classification at
issue. On this point, we agree with >Rajanayagam court’s analysis, from which
we quote at length.

“With respect to the judicial
scrutiny of the classification, we must determine whether there is any
reasonably conceivable state of facts that could provide a rational basis for
the classification. It is undisputed the
purpose of section 4019’s conduct credits generally is to affect inmates’
behavior by providing them with incentives to work and behave. (Brown,
supra, 54 Cal.4th at pp.
327–329.) But that was not the purpose
of Assembly Bill No. 109, which was part of the Realignment Act.... [T]he Legislature’s stated purpose for the
Realignment Act ‘is to reduce recidivism and improve public safety, while at
the same time reducing corrections and related criminal justice spending.’ [Citation.]
Section 17.5, subdivision (a)(7), puts it succinctly: ‘The purpose of justice reinvestment is to
manage and allocate criminal justice populations more cost-effectively, generating savings that can be reinvested in
evidence-based strategies that increase public safety while holding offenders
accountable.’ (Italics added.)” (Rajanayagam,
supra, 211 Cal.App.4th at pp. 54-55.)

Thus, we must determine whether the
2011 amendment to section 4019 awarding less credits to those defendants who
committed their offenses before October 1, than those defendants who committed
their offenses on or after October 1, “bears a rational relationship to the
Legislature’s legitimate state purpose of reducing costs.” (Rajanayagam,
supra, 211 Cal.App.4th at p.
55.) “We are mindful the rational
relationship test is highly deferential.
(People v. Turnage (2012) 55
Cal.4th 62, 77 [‘[w]hen conducting rational basis review, we must accept any
gross generalizations and rough accommodations that the Legislature seems to
have made. A classification is not arbitrary or irrational simply because there
is an “imperfect fit between means and

ends”’].)” (>Ibid.)

As did the court in >Rajanayagam, “We conclude the
classification in question does bear a rational relationship to cost
savings.” (Rajanayagam, supra, 211
Cal.App.4th at p. 55.) “Preliminarily,
we note the California Supreme Court has stated equal protection of the laws
does not forbid statutes and statutory amendments to have a beginning and to
discriminate between rights of an earlier and later time. (People
v. Floyd (2003) 31 Cal.4th 179, 188 (Floyd)
[‘[d]efendant has not cited a single case, in this state or any other, that
recognizes an equal protection violation arising from the timing of the
effective date of a statute lessening the punishment for a particular
offense’].) Although >Floyd concerned punishment, we discern
no basis for concluding differently here.”
(Ibid.; accord, >Kennedy, supra, 209 Cal.App.4th at pp. 398-399 [“Although [the 2011
amendment] does not ameliorate punishment for a particular offense, it does, in
effect, ameliorate punishment for all offenses committed after a particular
date”].)

“More importantly, in choosing October
1, 2011, as the effective date of Assembly Bill No. 109, the Legislature took a
measured approach and balanced the goal of cost savings against public
safety. The effective date was a
legislative determination that its stated goal of reducing corrections costs
was best served by granting enhanced conduct credits to those defendants who
committed their offenses on or after October 1, 2011. To be sure, awarding enhanced conduct credits
to everyone in local confinement would have certainly resulted in greater cost
savings than awarding enhanced conduct credits to only those defendants who
commit an offense on or after the amendment’s effective date. But that is not the approach the Legislature
chose in balancing public safety against cost savings. (Floyd,
supra, 31 Cal.4th at p. 190
[Legislature’s public purpose predominate consideration].) Under the very deferential rational
relationship test, we will not second-guess the Legislature and conclude its
stated purpose is better served by increasing the group of defendants who are
entitled to enhanced conduct credits when the Legislature has determined the
fiscal crisis is best ameliorated by awarding enhanced conduct credit to only
those defendants who committed their offenses on or after October 1, 2011.”

(Rajanayagam, >supra, 211 Cal.App.4th at pp. 55-56;
accord, Kennedy, supra, 209 Cal.App.4th at p. 399 [in making changes to custody
credits earning rates “the Legislature has tried to strike a delicate balance
between reducing the prison population during the state’s fiscal emergency and
protecting public safety,” and “Although such an effort may have resulted in
comparable groups obtaining different credit earning results, under the
rational relationship test, the Legislature is permitted to engage in piecemeal
approaches to statutory schemes addressing social ills and funding services to
see what works and what does not”].)

Finally, we
find a second rational basis for the classification at issue. As the court stated in Kennedy: “[T]he 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 should be punished in accordance with
the sanctions and given the rewards (conduct credits) in effect at the time an
offense was committed.” (>Kennedy, supra, 209 Cal.App.4th at p. 399.)
For the foregoing reasons, we conclude appellant’s equal protection
rights were not violated.

DISPOSITION

The judgment is affirmed.