P. v.
Thomas



















Filed 2/7/13 P.
v. Thomas CA3











NOT TO
BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE DISTRICT

(Yuba)

----




>

THE PEOPLE, Plaintiff and Respondent, v. KENNETH WAYNE THOMAS, Defendant and Appellant.

C069864 (Super. Ct. No. CRF000206)

On appeal, defendant Kenneth Wayne
Thomas contends the trial court’s failure to award additional conduct credits
pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act)
(Stats. 2011, ch. 15, § 482) constitutes a violation of equal
protection. Following the California
Supreme Court’s decision in People v.
Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (>Lara), we reject defendant’s
contention. We affirm the judgment.

BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">[1]

Defendant pled no contest to href="http://www.mcmillanlaw.com/">assault with a deadly weapon, a knife
(Pen. Code, § 245, subd. (a)(1)).href="#_ftn2" name="_ftnref2" title="">[2] Under the terms of the plea, defendant would
waive time for sentencing and attend a residential treatment program. Upon successful completion of the program,
the felony offense would be reduced to a misdemeanor. If defendant did not complete the program, he
would serve four years in state prison
for the felony offense.

Defendant failed to appear at a
presentencing status conference held on October 30,
2000. At the same hearing, the trial court was
informed that defendant had been discharged by the Salvation Army
Rehabilitation Center for failing to comply with his program. The trial court issued a no-bail warrant for
defendant’s arrest.

Defendant was extradited from Colorado and appeared before the
trial court on June 1, 2011. The trial court sentenced defendant to four
years in state prison and awarded 505 days of presentence credit (373 actual
and 132 conduct). The court later
amended the award of presentence credits to 558 days, consisting of 372 days’
actual and 186 days’ conduct credit.

Defendant committed his offense on April 3,
2000,
and was sentenced on November 14, 2011. His conviction for href="http://www.mcmillanlaw.com/">assault with a deadly weapon is a
serious felony. (§ 1192.7,
subd. (c)(31).)

The trial court sentenced defendant
under the September 28, 2010, revision of the
presentence credit law. Under that
version, a defendant with a current or prior serious or violent felony
conviction was entitled to two days of conduct credit for every four days of
presentence custody. (Former
§§ 2933, 4019.)

>Prospective Application
of Section 4019

The Realignment Act amended section 4019,
entitling defendants to two days of conduct credits for every two days of
presentence custody. (§ 4019,
subds. (b), (c), (f).) The award of
credits is not reduced by a defendant’s current or prior conviction for a
serious felony. This provision applies
prospectively to defendants serving presentence incarceration for crimes
committed on or after October 1, 2011. (§ 4019, subd. (h).)

Defendant argues that the prospective
application of section 4019 violates his right to equal protection. This argument was rejected by the California
Supreme Court in Lara. (Lara, supra, 54 Cal.4th at
p. 906, fn. 9.)

In Lara,
the Supreme Court explained its rejection of defendant’s equal protection
argument as follows: “As we there [>People v. Brown (2012) 54 Cal.4th 314,
328-330] explained, ‘“[t]he obvious purpose”’ of a law increasing 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, at p. 906,
fn. 9.)

Accordingly, defendant is not
entitled to the additional accrual of conduct credits under the October 1,
2011, amendment to section 4019.

DISPOSITION

The judgment is affirmed.







HOCH , J.







We concur:







RAYE , P. J.







MURRAY , J.