P. v.
Filed 3/4/13 P. v. Salinas CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JONATHAN CESARIO SALINAS,
Defendant and
Appellant.
H037171
(Santa Clara
County
Super. Ct.
No. CC953249)
Defendant
Jonathan Cesario Salinas was sentenced to state
prison in May 2011 for his 2009 offenses.
He contends that he is entitled to additional conduct credit under the
expressly prospective-only version of Penal Code section 4019
that took effect in October 2011. We
reject his contention and affirm the judgment.
I. Background
The facts
of defendant’s offenses are not relevant to his appellate contention. All of his offenses occurred in August
2009. In April 2010, defendant pleaded
no contest to leaving the scene of an accident resulting in injury or death
(Veh. Code, § 20001, subds. (a), (b)(1)),
subd. (a)(1)), misdemeanor battery (§§ 242, 243, subd. (a)), and felony battery
causing serious bodily injury (§§ 242, 243, subd. (d)). He also admitted that the felony battery
count was a serious felony because he had personally inflicted great bodily
of sentence and placed defendant on probation conditioned upon, among other
things, a one-year jail term. At that
time, he was given credit for 239 days of actual custody and 118 days of
conduct credit for a total of 357 days of credit.
In November
2010, his probation was revoked.
Defendant admitted violating his probation. In May 2011, he was committed to state prison
to serve a three-year term. He was
credited with 333 days of actual custody and 166 days of conduct credit for a
total of 499 days. Defendant timely
filed a notice of appeal.
II. Analysis
Defendant
claims that he was entitled to additional conduct credit under the version of
section 4019 that took effect in October 2011.
Until
January 2010, section 4019 provided that a defendant would receive two days of
conduct credit for every four days of actual custody. From January 2010 until September 2010,
section 4019 temporarily increased this to two days of conduct credit for every
two days of actual custody, but this increase did not apply to a defendant who
was being committed for a serious felony.
(People v. Brown (2012) 54
Cal.4th 314, 317-318 (Brown); Stats.
2009, 3d Ex. Sess., 2009-2010, ch. 28, § 50.)
In September 2010, section 4019 was again amended and section 2933 was
also amended with regard to presentence conduct credit. These statutes also provided that a defendant
being committed for a serious felony would receive two days of conduct credit
for every four days of actual custody.
(Stats. 2010, ch. 426, §§ 1, 2; former § 2933, subd. (e).) A new version of section 4019 became
operative in October 2011. This version
provided for two days of conduct credit for every two days of actual custody, and it did not exclude from its ambit a
defendant who was being committed for a serious felony conviction. (Stats. 2011, ch. 15, § 482; Stats. 2011, ch.
39, § 53; Stats. 2011, 1st Ex. Sess., 2011-2012, ch. 12, § 35.) However, the October 2011 version of section
4019 provided that it was prospective only:
“(g) The changes in this section as enacted by the act that added this
subdivision 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 the effective date of that act.†(§ 4019, subd. (g).)
Defendant
argues that the trial court violated his right to equal protection by failing
to apply the October 2011 version of section 4019 to him. He contends that even though his crimes
occurred prior to the October 1, 2011 prospective date upon which conduct
credit was increased by the Legislature, he was entitled to have the
two-for-two conduct credit scheme applied to him.
Both the
federal and state Constitutions guarantee the right to equal protection of the
laws. (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7.) “ ‘ “
protection of the laws compels recognition of the proposition that persons
similarly situated with respect to the legitimate purpose of the law receive
like treatment.†’ [Citation.]†(Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.) Since the amendments to section 4019 do not
involve a “ ‘ “ ‘suspect
classification’ †’ †or a “ ‘ “ ‘fundamental
interest,’ †’ †courts apply the
rational basis test to determine whether the “distinction drawn by the
challenged statute bears some rational relationship to a conceivable legitimate
state purpose.†(In re Stinnette (1979) 94 Cal.App.3d 800, 805.)
Defendant
maintains that he is similarly situated to a defendant whose crime was
committed after October 1, 2011. In Brown,
the California Supreme Court rejected a similar argument with respect to a
previous version of section 4019. It
found that prospective only application of the new version of the statute did
not violate equal protection because the purpose of the statute was to create
an incentive for good behavior, which could not be done retroactively. (Brown,
supra, 54 Cal.4th at pp. 328‑330.) “[T]he 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
have modified their
at pp. 328-329, italics added; see also People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9 (Lara).) In his reply brief,
defendant concedes that Brown dooms
his contention, that we are bound by Brown,
and that he is not entitled to additional conduct credit. We appreciate his accurate concession and
accept it.
III. Disposition
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo,
Acting P. J.
_____________________________
Márquez,
J.
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Subsequent statutory references
are to the Penal Code unless otherwise specified.
