P. v. >Martinez>

















Filed 12/3/12 P. v. Martinez CA1/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. LUIS MARTINEZ, Defendant and Appellant.

A128777 (Contra Costa County Super. Ct. No. 05-090784-0)

Defendant
Luis Martinez was charged with two counts of lewd acts on a child under age 14
committed on or about July 15, 2004 (Pen. Code, § 288, subd. (a)).href="#_ftn1" name="_ftnref1" title="">[1] He was alleged to be ineligible for probation
because the crimes involved substantial
sexual conduct (§ 1203.066, subd. (a)(8)). A jury convicted Martinez of two counts of
attempted lewd acts on a child under 14, as lesser included offenses. (§§ 288, subd. (a), 664.) He was sentenced to the midterm of one year
and six months in prison on one of the counts, and the sentence on the other
was stayed pursuant to section 654.

Martinez
argues that the judgment must be reversed because: the evidence did not support attempt findings
as to the charged offenses; the jury instructions erroneously permitted him to
be convicted of attempting offenses other than those charged; the court abused
its discretion in denying his new trial motion; and a taped interview of the
victim was erroneously admitted into evidence.
We conclude that these contentions lack merit.

The
parties agree that the sentence conduct credits were erroneously calculated,
but disagree on the proper method for recalculation. We remand for recalculation of the credits,
but not under the formula suggested by Martinez.

>I.
BACKGROUND

A. Prosecution Case

The victim, Jane Doe,
testified at trial at age 11 about events that occurred on July 15, 2004, when
she was five years old. According
to the probation report, Martinez was then 29 years old. Doe was playing that afternoon in the backyard of the home
where she lived with other family members, including Martinez, who was her
mother’s cousin. She went into the
garage and Martinez was there alone. He
touched her genital area with his hand under her clothes. Doe could not remember why she went into the
garage, or whether Martinez kissed or otherwise molested her in addition to
touching her genital area. Nor could she
recall being interviewed about what transpired that day.

Doe’s
mother, C.L., testified that, on the afternoon in question, she was doing the
dishes and listening to Doe play outside when she went looking for Doe after
she noticed that the yard had been quiet for three or four minutes. She opened the sliding glass door to the yard
and called out Doe’s name but did not see her.
She walked through the house and opened a door to the garage. The garage lights were off, but a door to the
garage from the backyard was open.

C.L.
saw Doe and Martinez standing “right next to” and facing each other. Martinez had his hand around Doe’s shoulders
or upper arm, and his face was very close to hers, only four or five inches
away. He moved quickly away from Doe
when C.L. walked in. C.L. thought that
he and Doe had been kissing. Doe was
clothed and even though C.L. did not see any kissing, she suspected it because,
as she put it, “[W]hat are they supposed to be doing in the garage alone with
nobody there?” C.L. testified that, when
she confronted the two of them, Martinez left the garage and Doe ran crying out
into the backyard. C.L. made Martinez
move out of the house later that day. C.L.
had testified before trial that Martinez’s back was to her when she walked into
the garage, and that she grabbed Doe away from Martinez when she saw them
together.

C.L.
asked Doe if Martinez had kissed her or touched her genital area. For a couple of days Doe said that Martinez
had only kissed her, and denied that he touched her genital area. She seemed
reluctant to tell her mother what had occurred.
But a couple of days later she reported that he had also touched her
genital area.

Four
days after the encounter in the garage, C.L. took Doe to the Pittsburg Police
Department, where Doe was interviewed by one of the officers. C.L. was present but did not speak during the
interview. Doe told the officer that she
was playing in the backyard when Martinez beckoned her to come to him. He grabbed her hand and they walked into the
garage. He told her he loved her,
grabbed her by the arms, kissed her on the lips, and put his tongue in her
mouth. As he was kissing her he brushed
his hand along her crotch. He had not
done anything like that to her before that day.

Three
weeks later Doe was interviewed again at the Martinez Children’s Interview
Center (CIC). Before this interview,
C.L. asked Doe if Martinez had kissed her genital area, and Doe said that he
had.

A
videotape of the interview was played at trial.
Doe told the interviewer that Martinez “sex’s at me” and “I don’t like
it.” He touched her genital area with
his hand, which made her “feel like I — I’m in trouble.” Doe said that Martinez was in his room when
he said, “Let’s go to the garage.” In
the garage he said, “Let’s have sexy.”
He took her clothes off, touched her arm and genital area, and kissed
her mouth and genital area. Doe reported
that Martinez had molested her on more than one occasion. She would ask him to stop, but he would say,
“ ‘No, I don’t wanna stop.’ ”
He told her, “ ‘Don’t tell anybody.’ ”

The
colloquy on the prior molestation was as follows: “Q.
. . . Okay, so did this happen one time or more than one time?
[¶] A. Um, more than one time. [¶]
Q. One? [¶] A. More than one time. [¶] Q. . . . It’s okay. So, there was a time that your mom
. . . found you guys in the garage?
Did it happen on another day
too? It did. Okay. [¶] A.
My mom’s always there. [¶] Q. Um,
your mom’s always there? Okay, how many
times do you think he did this to you? [¶] A.
Um, let — em — in last time. And
my mom said we’d never see him again.
We’d have to put him in jail. [¶] Q.
You have to put him in jail?
Okay. Was there any other places
that he did this besides the garage? [¶] A.
O — only he did that. [¶] Q. Only
he did that, you mean in the garage?
Okay. . . . [¶] Q. . . . [I]s there another day that he did that besides the day your mom found
you? There is? Okay.
How old were you the first time that he did that? [¶] A. I was five.”
Doe was presumably nodding affirmatively at the points where we have
italicized the interview transcript, but we have been unable to obtain the DVD
from the superior court or counsel to confirm those gestures. In any event, entirely apart from any
affirmative gestures Doe may have made, the transcript shows her clearly
stating that Martinez had molested her multiple times.

B. Defense
Case

Psychiatrist
Lee Coleman testified for the defense that people can develop false memories
they sincerely believe to be true.
Memories “can be altered over time or created out of nothing by the
things that you’re exposed to.” According
to Dr. Coleman, children are especially susceptible to such influences, and can
develop false memories based on what is “brought to them by adults who [have] a
point of view.” “[O]nce you believe that
something has happened to the child, then it’s very easy to communicate to the
child that I want to help you and I want you to tell me the truth. And if . . . the child doesn’t
describe anything bad, then they’re not fulfilling what the adult already
believes. And . . . if the adult
keeps on going and keeps continuing this process, the pressure can build on the
child . . . to satisfy the expectations that are being put upon
them.”

Coleman
considered the four-day delay in taking Doe for a police interview “most
unfortunate,” because by then she had been exposed to the “very direct,
suggestive kind of questions” from her mother that were “the most dangerous
kind of interaction you could have with regard to the possibility of the
child’s memory being influenced.” He
opined that C.L. should not have been allowed to attend the police interview
because “if you’re concerned, as you should be, about the potential for
somebody to have influenced the child, you don’t want to have that person
present when you interview them.”

Coleman
was also critical of the CIC interviewer for asking Doe questions about telling
the truth and not guessing. Those
questions “demonstrate[d] that the interviewer really doesn’t understand the
issues of what they’re doing. Because
telling the truth is a general concept.
It doesn’t explore the idea of how does the child come to believe what
the truth is. . . . [I]t’s as though . . . the interviewer
is believing that if the child can say yes, I will [tell the truth], somehow
they don’t need to pay attention to possible prior influences. [¶] So I think it’s a very poor
technique and demonstrates that the interviewer is not really tuned in to
what’s important.”

Coleman
acknowledged that he was not board certified in psychiatry, explaining: “[T]here are many things that psychiatry
teaches that I don’t agree with. The
entire diagnostic framework of psychiatry is misleading, misrepresents what we
actually do. . . . If I were to decide to take boards in psychiatry,
I would have to deliberately give them answers that the mainstream wants to
hear, not what I think.”

C. Additional
Background

(1) Charged Offenses

Before
evidence was taken in the case, the court asked whether the prosecution was
alleging specific lewd acts in the two counts against Martinez, which were
phrased in identical, general terms in the information. The prosecutor responded that Count One
referred to touching, and Count Two to kissing, Doe’s genital area on the day
when C.L. found Doe and Martinez in the garage.

The
court advised the jury that “[t]he parties now have agreed or at least
understand that Count One relates to a particular act or acts and Count Two
relates to a particular acts or act.
Those will be described no doubt by [the prosecutor] in her opening
statement. [¶] So the People have
indicated to the Court and will be indicating to you which particular act or
acts are Count One and which particular act or acts are Count Two.”

The
prosecutor concluded her opening statement by saying, “And at the end of this
trial when you hear all of the evidence, I will ask you to find the defendant
guilty on Count One for touching the victim’s genital area and on Count Two,
for kissing the victim’s genital area.”

(2) The Jury’s Note

During deliberations,
the jury asked: “Are we only allowed to
only take into account the alleged events of July 15, 2004 in determining our
verdict? For clarification, some jurors
are concerned that [Doe] may be recounting events during the taped interview
that may have happened prior to July 15.”
The court responded: “The two
charges in this case relate to events immediately preceding the entry into the
garage by the mother of Jane Doe and not events occurring on some other day or
in some other place. You are allowed to
take into account all of the trial evidence but only for purposes of deciding
whether the charged events have been proved.
Also please refer to Instruction #207 at page 23 [prosecution need only
prove that the crime occurred at a time reasonably close to the date
alleged].”

>II. DISCUSSION

A. Substantial
Evidence

Martinez
argues that there was no substantial
evidence from which the jury could have concluded he attempted the alleged
lewd acts. When sufficiency of the
evidence is challenged, we “must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (>People v. Johnson (1980) 26 Cal.3d 557,
562 (Johnson).) “In determining whether a reasonable trier of
fact could have found defendant guilty beyond a reasonable doubt, the appellate
court ‘must . . . presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ” (Id.
at p. 576.)

Martinez
argues that the evidence “supports only two possible outcomes: guilt on the charged crimes, or
acquittal.” Therefore, he says the
attempt instructions should not have been given. The court must instruct on a lesser-included
offense “when the evidence raises a question as to whether all of the elements
of the charged offenses were present,” but such instructions are inappropriate
“when there is no evidence that the offense was less than that charged.” (People
v. Breverman (1998) 19 Cal.4th 142, 154.)

Martinez
apparently concedes that some of his actions could be found to have exhibited a
lewd intent. Those actions
included: (1) luring Doe into the
garage, as Doe reported to the Pittsburg police; (2) holding Doe by the
shoulders or upper arms, as C.L. observed; and (3) putting his face right up
next to Doe’s as if he intended to kiss or had just kissed Doe, as C.L.
inferred. But here, Martinez says he was
charged with touching and kissing Doe’s genital area. To be convicted of an unlawful attempt, the
defendant must take a direct step “indicat[ing] a definite and unambiguous
intent to commit [the] target offense.” (CALCRIM No. 460 [standard attempt
instruction].) “Obviously,” Martinez
submits, “the testimony that [he] may have lured the minor into the garage,
touched her arms, and had his face close to hers, cannot by any stretch of the
imagination be said to indicate unambiguously
an intent to touch and kiss her genital area.”
“Such a claim,” in Martinez’s view, “would clearly require the most
extreme speculation.”

The
problem with this argument is that it disregards Doe’s statements in the CIC
interview that Martinez had molested her on other occasions before that
afternoon in the garage. The jury’s note
focused on those statements, and the jury could credit them even if it rejected
other parts of Doe’s testimony. Doe
reported the prior molestations shortly after stating in the interview that
Martinez had touched and kissed her genital area in the garage. Viewed in the light most favorable to the
judgment (Johnson, >supra, 26 Cal.3d at p. 562), Doe’s
affirmative answers to the questions asking whether he had previously done
“this,” “that,” or “it” must refer to genital area contacts such as those
charged in the case. Since Martinez had
touched and kissed Doe’s genital areas in the past, it was reasonable, not
merely speculative, for the jury to infer that he intended to do so again when
C.L. found him with Doe in the garage.

Drawing
that reasonable inference from the evidence (Johnson, supra, 26 Cal.3d
at p. 576), the jury could find that the lewd intent his actions exhibited
was specifically aimed at accomplishing the charged conduct, and that the
charged conduct would have been completed had he been alone with Doe for more
than three or four minutes before her mother intervened. Luring her into the garage, taking hold of
her, and kissing or preparing to kiss her face could reasonably be viewed as
“direct movement[s] towards the commission of the crime[s] after preparations
[were] made. [They were] immediate
step[s to] put[] the plan in motion so that the plan would have been completed
if some circumstance outside the plan had not interrupted the attempt.” (CALCRIM No. 460.) Under the circumstances, whether Martinez’s
intent to commit the charged crimes was “definite and unambiguous” (>ibid.) was a matter for the jury.

The
jury was properly instructed that it could convict Martinez of attempting to
commit the charged crimes, and its verdicts on those lesser included offenses
were supported by substantial evidence.

B. Content
of the Attempt Instruction

The jury was instructed on the findings
required to convict Martinez of attempts pursuant to CALCRIM No. 460, which
calls for the court to “insert [the] targeted offense” at various points. At those points, the court here inserted
general language about committing a lewd act on a child, rather than specific
language about the charged acts of touching and kissing Doe’s genital
area. Martinez contends that the jury
was thereby erroneously authorized to convict him “so long as they found a lewd
intent to commit any act, charged or uncharged.” The court instructed as follows:

“[A]ttempting
to commit a lewd or lascivious act on a child under the age of 14 is what is
called a lesser-included offense of the offenses charged in Counts 1 and 2 of
the Information.

“To
prove that the defendant is guilty of attempted lewd and lascivious act on a
child under the age of 14, the People must prove beyond a reasonable doubt the
following two things:

“First,
the defendant took a direct but ineffective step toward the crime of >committing a lewd and lascivious act on a
child under the age of 14; and

“Second,
the defendant intended to commit the crime of committing a lewd and lascivious act on a child under the age of 14.

“So,
what’s meant by a direct step? A direct
step requires more than merely planning or preparing to commit the crime of >committing a lewd and lascivious act on a
child under the age of 14 or it requires more than obtaining or arranging
for something needed to commit the crime of committing
a lewd and lascivious act. A direct
step is one that goes beyond planning or preparation that shows that a person
is putting his or her plan into action.
A direct step indicates a definite and unambiguous intent to commit the
crime of committing a lewd and lascivious
act on a child under the age of 14.
It is a direct movement towards the commission of the crime after
preparations are made. It is an
immediate step that puts the plan in motion so that the plan would have been
completed if some circumstance outside the plan had not interrupted the
attempt.

“To
decide whether the defendant intended to commit the crime of >committing a lewd and lascivious act on a
child under the age of 14, please refer to the separate instruction on the
elements for that offense, which is referred to in instruction No. 1110 above,
which is actually just the preceding instruction.” (Italics added.)

Martinez
forfeited his argument that the italicized language was too general by failing
to raise it before the trial court.
“ ‘A party may not complain on appeal that an instruction correct
in law and responsive to the evidence was too general or incomplete unless the
party has requested appropriate clarifying or amplifying language.’ ” (People
v. Hart (1999) 20 Cal.4th 546, 622.)
No such request was made here.

Moreover,
there is no reasonable probability that the jury would have interpreted the
challenged language as Martinez suggests.
CALCRIM No. 460 as given referred the jury to CALCRIM No. 1110, which
set forth the elements of the charged crimes.
When the court furnished CALCRIM No. 1110, it reminded the jury of what
it had been told at the outset of the case about the particular acts being
charged (part I.C.(1), ante),
adding the following italicized language to the standard instruction:

“The
defendant is charged in Counts 1 and 2 with committing a lewd and lascivious
act on a child under the age of 14 in violation of Penal Code section 288,
subsection (a).

“To
prove that the defendant is guilty of this crime, the People must prove beyond
a reasonable doubt the following three things:

“[¶]
. . . [¶]

“The
defendant willfully touched with any part of his body any part of Jane Doe’s
body either on the bare skin or through the clothing, item number one.

“Item
number two, the defendant committed the act of touching Jane Doe, the child,
with the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of himself or the child; and

“The
third element: The child was under the
age of 14 at the time of the act.

“Each
separate touching can constitute a separate crime. Before you may find the defendant guilty of a
particular charge, you must all agree that the defendant committed a particular
act or acts constituting the crime.

“>And you’ve heard earlier in the case, [the
prosecutor] describing in her opening statement, which particular act or acts
relate to Count 1 and which particular act or acts relate to Count 2. So you must accept that description for
purposes of deciding whether or not the defendant is guilty or not guilty of
Count 1 and/or Count 2.

“Once
you have found that a particular act or acts constitutes one of the charged
offenses, you may not use the same act or acts to find the defendant guilty of
the other charged crime.” (Italics
added.)

If
this instruction were not sufficient to remind the jury about the specific acts
charged, the prosecutor repeatedly noted in her closing argument that Count One
involved touching Doe’s genital area and that Count Two involved kissing that
area. She said: “The defendant is charged with two counts of
Penal Code section 288, that’s lewd and lascivious act on a child under the age
of 14.

“The
first element is that the defendant willfully, meaning on his own volition,
touched any part of the victim’s body either on her bare skin or through the
clothing with any part of his body. That
means that the defendant touching [Doe]
on her private part with his hand satisfies the first element.

“Two,
the defendant committed the act of touching the child with the intent of
arousing, appealing to, . . . or gratifying the lust, passions, or
sexual desires of himself or the child.
So he touched her with a sexual intent.

“And >touching a person, a child, on their private
area, on their genital area, is a sexual act. That’s what it’s done for. There’s no other reasonable explanation that
the defendant was touching [Doe’s]
genital area.

“
. . . [¶]

“Count
2, same elements, but number one, is the defendant kissing [Doe’s] private area, her genital area, which she described as
her pee-pee, and that he did that with the intent of arousing, appealing,
gratifying the lust, passions or sexual desires. Again, that’s the purpose of >kissing the genital area. There’s no other legitimate reason to be >kissing anyone, much less a six-year-old’s,
genital area. . . .

“One
more thing. You’ll be asked to find that
the defendant’s conduct in both Count 1 and Count 2 amounts to substantial
sexual conduct. And we heard the judge
describe substantial sexual conduct includes both oral copulation and
masturbation of the child by the defendant.

“I’m
going to kind of go down to masturbation because Count 1 is the >touching of the private area. So that’s the first one you’ll decide is that
substantial sexual conduct. And
masturbation includes any touching no
matter how slight of the genitals. . . . Any touching of the defendant’s hand on [Doe’s] genital area is
substantial sexual conduct.

“And
for . . . Count 2, . . . oral copulation which is >the kissing of [Doe’s] genital area, any
contact, no matter how slight between the
mouth of one person and the sexual organ of the other accompanied by the
sexual intent is enough for substantial sexual conduct. That means the defendant’s >putting his lips on [Doe’s] genital area
is enough to show oral copulation. . . . Him simply >putting his mouth on her genital area is
enough to meet the definition of oral copulation to amount to substantial
sexual conduct.” (Italics added.)

On
this record, there was no prospect that the jury could have convicted Martinez
of attempting any lewd acts other than the charged offenses. He was not prejudiced by the language of the
attempt instruction.

C. New Trial Motion

Martinez filed a motion
for new trial, on the basis that one or both of the verdicts were not supported
by substantial evidence. He contends that the court abused its
discretion when it denied the motion because it relied on “unlawful legal
considerations and erroneous factual findings.”
However, the issue for us is the propriety of the court’s ruling, not
its reasoning (see, e.g., People v. Evans
(2011) 200 Cal.App.4th 735, 742 (Evans)),
and the motion here was properly denied.

Martinez
argued in his new trial motion that the attempt convictions were insupportable
because “[t]he jury was unanimous in finding that Mr. Martinez had not touched
Jane Doe with unlawful sexual intent on the day in question. [¶] Therefore, the only other evidence
presented to support Mr. Martinez’s conviction was the vague reference in Jane
Doe’s CIC interview to this having happened on other occasions and Jane Doe’s
mother’s testimony. As to the former,
the reference in the CIC interview to prior acts of molestation was not only
vague but inconsistent with all of Jane Doe’s other statements. In light of the fact that the jury found Jane
Doe’s other testimony not credible, her statement about other incidents should
also be discounted. As to Jane Doe’s
mother, it is clear that she only saw Mr. Martinez and her daughter near each
other in the garage. Jane Doe’s mother
did not see any actual touching, nor was she aware of any prior touching
between Jane Doe and Mr. Martinez.
[¶] Either alone or together, Jane Doe’s statements and her
mother’s testimony were insufficient to prove beyond a reasonable doubt that
Mr. Martinez harbored the necessary intent to commit even one count of
288(a)/664 when he was in the garage with Jane Doe.”

This
argument lacked merit for the reasons we discussed in part II.A. of this
opinion, which are similar to those given by the prosecutor when the motion was
heard. At the hearing on the new trial
motion, the prosecutor argued:

“[As
for] whether or not the jury believed that the defendant had ever touched Jane
Doe’s genitals or kissed Jane Doe’s genitals, I think it’s clear from the note
sent out from the jury where the foreperson said some of the jurors believed
those action occurred, but do not believe that they occurred on the date in
question. It shows they believed Jane
Doe’s testimony.

“What
they did not perhaps believe or believe beyond a reasonable doubt is when they
occurred. [It] was rational and
consistent with the evidence for the jury to believe that on this date the
defendant was attempting to molest Jane Doe, but was interrupted by the mother
because of the length of time the mom said she was only out of her sight was
for four minutes.

“And
so just to address defense counsel’s points that the jury verdict wasn’t
consistent or couldn’t be reasoned by the evidence that they heard, it actually
is wholly consistent and rational based upon the evidence that they heard.”

It is
immaterial that the court disagreed with the prosecutor’s argument, or cited
other considerations when discussing the motion. (Evans,
supra, 200 Cal.App.4th at p. 742.)

Martinez’s
alternative argument in the motion for
new trial was that the evidence supported only one attempt conviction
because only one direct step was taken — luring Doe into the garage — toward
committing the charged crimes. However,
there was evidence of other direct acts — taking hold of Doe, and kissing or
preparing to kiss her face — even assuming any additional acts were required. Martinez does not renew this alternative
argument on appeal so we need not resolve it.

D. Sixth
Amendment Issue

Martinez
argues that admission of Doe’s CIC interview violated his constitutional right
to cross-examination because, when Doe testified at trial, she did not remember
the interview and could not answer any questions about it. Martinez concedes that our Supreme Court
rejected this argument in People v. Cowan
(2010) 50 Cal.4th 401. We are bound to
follow that precedent and therefore reject this argument. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

E. Conduct
Credits

Martinez
was awarded 409 days of presentence credit, consisting of 356 days of credit
for time served and 53 days of conduct credit.
At the May 2010 sentencing hearing, his counsel stated he had been in
custody since May 2009. Martinez
contends, and respondent concedes, that his conduct credits were erroneously
calculated due to the application of section 2933.1, which provides that those
convicted of “violent” felonies as defined in section 667.5, subdivision (c)
“accrue no more than 15 percent of worktime credit, as defined in Section
2933.” (§ 2933.1, subd. (a).) Since an attempted violation of section 288,
subdivision (a) is not a violent felony listed in section 667.5, subdivision (c),
it is undisputed that Martinez’s conduct credits must be recalculated under
section 4019. The dispute is over which
version of section 4019 will govern the recalculation: the two versions in effect during Martinez’s
presentence custody, or the one currently in effect.

Before
January 25, 2010, section 4019 provided that if a defendant earned all
available presentence conduct credits, 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 to two credits). (Former § 4019, subd. (f); Stats. 1982,
ch. 1234, § 7, pp. 4553–4554.)
Effective January 25, 2010, the Legislature amended section 4019 to
increase the number of presentence conduct credits available to eligible
defendants. (Stats. 2009, 3d Ex.Sess.
2009–2010, ch. 28, § 50.) Under the
January 2010 version of the law, a defendant gained conduct credits at twice
the previous rate, earning four days of presentence credit for every two days
in custody — a day of conduct credit for every day served (one to one
credits). (Former § 4019, subd.
(f); Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28, § 50.)

>People v. Brown (2012) 54 Cal.4th 314,
318, recently held that the January 2010 amendment to section 4019 did not
retroactively benefit prisoners who served time in local custody before the
amendment’s effective date. The statute
applied only prospectively, “meaning that qualified prisoners in local custody
first became eligible to earn credit for good behavior at the increased rate
beginning on the statute’s operative date.”
(Ibid.) Thus, under the versions of section 4019 in
effect when Martinez was in custody, he was entitled to one to one credits only
during his time served from January 25, 2010.
During his time in custody from May 16, 2009 through January 24, 2010,
he earned one to two credits.

Martinez
seeks one to one credits for all of his pre-sentence custody under the current
version of section 4019, which as most recently amended effective October 1,
2011, provides for one to one credits.
(§ 4019, subds. (b) & (c).)
The Legislature stated that the amendment “shall apply prospectively and
shall apply to prisoners who are confined [in local custody] 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).)

Martinez
argues that to prospectively apply the October 2011 amendment as the
Legislature directed would deprive him of his href="http://www.fearnotlaw.com/">constitutional right to equal
protection. He contends that this
conclusion is compelled by People v. Sage
(1980) 26 Cal.3d 498 (Sage), and >In re Kapperman (1974) 11 Cal.3d 542 (>Kapperman), and that >In re Strick (1983) 148 Cal.App.3d 906 (>Strick), on which respondent relies, is
distinguishable.

>Brown rejected these same equal
protection arguments against prospective application of the January 2010
amendment to section 4019.
“ ‘ “[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.” ’ ” (Brown,
supra, 54 Cal.4th at p. 328.) This prerequisite was not satisfied as to the
January 2010 amendment because “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.” (Id. at pp. 328–329.)
The court said that it found Strick
persuasive on the point (id. at
p. 329), and explained why Sage
and Kapperman did not compel a
contrary conclusion (id. at
pp. 329–330).

Martinez’s
equal protection argument is untenable under the reasoning of >Brown.
See People v. Lara (2012) 54
Cal.4th 896, 906, fn. 9 [prisoners who served their pretrial detention
before the current statute’s effective date, and those who serve their
detention thereafter, are not similarly situated under the reasoning of >Brown].)

>III. DISPOSITION

The judgment is reversed
insofar as it awards presentence credits, and is otherwise affirmed. The case is remanded for recalculation of
presentence credits as prescribed in part II.E. of this opinion. The court is directed to prepare and forward
an amended abstract of judgment showing the recalculated credits to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.














_________________________

Siggins,
J.





We concur:





_________________________

McGuiness, P.J.





_________________________

Pollak, J