P. v. Batres



















Filed 4/10/13 P. v. Batres CA2/4











NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION FOUR






>

THE PEOPLE, Plaintiff and Respondent, v. JESUS BATRES, Defendant and Appellant.

B238558 (Los Angeles County Super. Ct. No. MA053779)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Charles A. Chung, Judge. Affirmed.


Ann
Krausz under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Kim Aarons, Deputy Attorneys General, for Plaintiff and Respondent.









This appeal is
limited to a single issue: the amount of
presentence custody credit to which
defendant is entitled. The amount of
such credit is governed by Penal Code section 4019, which has undergone a
series of amendments to the recent criminal realignment law. It is not necessary to trace all of the
permutations of this statute. It is
sufficient for our purposes to observe that, prior to legislation enacted in
2008, the statute provided that, for most defendants, a defendant in local
custody could earn two days of conduct credit for every four days actually
served (in effect, a one for two ratio).
In that year the statute was amended to provide two days of conduct
credit for every two days served (in effect, a one for one ratio). That amendment was in force from January 25, 2010 to September 28, 2010. (Stats. 2009-2010, 3d Ex. Sess. 2009-2010,
ch. 28, § 50.) In 2010 the statute was
changed once again to the previous ratio of one for two. (Stats. 2010, ch. 426, § 2.) It was altered yet again, to provide the two
for two ratio, but only for persons whose offense was committed on or after October 1, 2011. That amendment specifically provided that the
more generous amount of earnable conduct credit was limited to persons whose
commitment offense occurred on or after October
1, 2011. For others, conduct
credit “shall be calculated at the rate required by the prior law. (Pen. Code, § 4019, subd. (h).) That is, at the one for two rate. (Stats. 2011, ch. 15, § 482.) Defendant was sentenced to href="http://www.mcmillanlaw.com/">state prison in 2011, for a crime
committed in August of that year.
Accordingly, he was not eligible to receive the more generous provisions
of the conduct credit law.

Despite the
statutory provision that the restoration of one for one credit for good conduct
only applies to persons whose crime was “committed on or after October 1,
2011”, defendant argues that, notwithstanding the fact that his commitment
offense occurred long before October 1, 2011, he is entitled to be credited
with the rate in effect immediately preceding the 2011 amendment to the
statute. He bases his argument on the
Court of Appeal decision in People v.
Olague (2012) 205 Cal.App.4th 1126, review granted Aug. 8, 2013, S203298, review dismissed March 20, 2013. Consequently, the case is no
longer citable authority. In that
decision, the court considered and rejected an argument that failure to apply
the more generous rate would violate state and federal principles of equal
protection. But the court did find an
ambiguity in the statute, which, it reasoned, is best resolved by giving effect to [both provisions cited as
giving rise to the ambiguity] and concluding that name=clsccl4>the liberalized scheme applies both to prisoners confined for
crimes committed after October 1, 2011, and to prisoners confined after that
date for earlier crimes.

The
Attorney General characterizes defendant’s argument as resting on equal
protection principles. Since the case
upon which defendant relies rejected that argument, it does not appear that
defendant is making that claim, but is, instead, relying on the claim of
ambiguity. In any event, the equal
protection argument was fully set to rest by the Supreme Court’s recent
decision in People v. Brown (2012) 54
Cal.4th 314 (Brown), which also
relied on the statutory rule that statutes apply prospectively only, unless the
enacting law expressly provides otherwise or there is a ‘““clear and
unavoidable implication [to] negative[] the presumption”’” of prospective
application. (Id., at p. 319, citing Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1208.) The statute at issue in Brown did not expressly declare that it was applicable only to
persons whose crimes or local custody was before a specified date. In our case the Legislature did so
declare: the statute does not apply to
anyone whose crime was committed before October
1, 2011. Since defendant’s
crime was not committed on or after that date, the statute does not apply to
him. (People v. Rajanaygam (2012) 211 Cal.App.4th 42, 48–52.)



>DISPOSITION

The judgment is
affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>



EPSTEIN,
P. J.

We concur:







MANELLA, J. SUZUKAWA, J.