P. v. Moats
Filed 4/19/13 P. v. Moats CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY ERIC MOATS,
Defendant and Appellant.
D061408
(Super. Ct.
No. SCD233886)
ORDER MODIFYING OPINION
NO CHANGE IN JUDGMENT
THE COURT:
It is
ordered that the opinion filed herein on April 17, 2013, be modified
as follows:
1. On page 1, the superior court number
"SCD233864" is modified to read "SCD233886."
There is no
change in the judgment.
BENKE, Acting P. J.
Copies
to: All parties
Filed 4/17/13 P. v. Moats CA4/1 (unmodified version)
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opinion has not been certified for publication or ordered published for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.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY ERIC MOATS,
Defendant and Appellant.
D061408
(Super. Ct.
No. SCD233864)
APPEAL from
a judgment of the Superior Court
of San Diego County,
Margie G. Woods, Judge. Affirmed in
part, reversed in part and remanded for resentencing.
A jury convicted
Anthony Moats of burglary (Pen. Code, § 459)
and possession of a forged check (§ 475, subd. (c)). The court sentenced him to eight years in prison. On appeal, Moats contends the court erred by
imposing a two-year sentence for an enhancement based on committing the current
offense while out on bail on a case that was subsequently dismissed. He also contends the statutory construction
of section 4019 and principles of equal protection entitle him to additional
presentence custody credits. We conclude
the court improperly imposed an additional two-year sentence for an out-on-bail
enhancement on a case that was subsequently dismissed, and remand for
resentencing. We also conclude that
under the rules of statutory construction, the enhanced conduct credit
provision of section 4019 applies only to defendants who committed their crimes
on or after October 1, 2011,
and section 4019 does not violate principals of equal protection. (U.S.
Const. 14th Amend.; Cal. Const.,
art. I, § 7, subd. (a).) The judgment
is affirmed in part, reversed in part and remanded for resentencing.
FACTUAL
AND PROCEDURAL BACKGROUND
On April 28, 2011, Moats entered the
Navy Federal Credit Union and attempted to partially cash, and partially
deposit, a check written on an account in the name of Shane Brown at USAA
Bank. The teller gave the check to the
assistant manager, who discovered it was drawn on a closed account. The assistant manager notified the
police. The police detained Moats and
searched his vehicle located in the credit union's parking lot. They found a USAA bank checkbook for Shane
Brown in Moats's vehicle. The USAA bank
account had been set up online on December
27, 2010, using Shane Brown's personal information and a $100
transfer from another bank. Shane Brown
testified at trial that he did not have an account at USAA Bank, he had never
seen Moats before, and the signature on the check Moats presented to the credit
union was not Brown's signature.
Moats was
in county jail awaiting trial for the current offenses on October 1, 2011, when the 2011 amendments to
section 4019 became operative.
name="_ftnref2" title="">[2] (Stats. 2011-2012, 1st Ex. Sess., ch. 12,
§ 35.) On October 21, 2011, a jury found Moats guilty of
burglary and possessing a forged check.
On the same day, Moats admitted to several prior convictions, and
admitted he was out on bail when he committed the burglary and possession
charges. At sentencing, the court
dismissed a prior strike conviction allegation and two of Moats's four prior
prison term allegations in the interest of justice. The court sentenced Moats to a total term of
eight years in prison, and awarded him a
total of 356 days of presentence custody credit, consisting of 238 days for
actual days served (§ 2900.5, subd. (a)), plus 118 days of conduct credits
for good behavior pursuant to section 4019, subdivision (c).
DISCUSSION
A. Forfeiture
Neither
Moats nor the People addressed whether, by not objecting during sentencing, he
forfeited his claim that the court imposed an improper two-year, out-on-bail enhancement. "Ordinarily, a criminal defendant who
does not challenge an assertedly erroneous ruling of the trial court in that
court has forfeited his or her right to raise the claim on appeal." (In re
Sheena K. (2007) 40 Cal.4th 875, 880.)
Generally, the forfeiture rule also applies in the context of
sentencing; where a trial court does not make or articulate a discretionary
sentencing choice, the defendant must object to preserve the issue on
appeal. (Id. at p. 881; People v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
However,
although discretionary sentencing decisions must be challenged first in the
trial court, the governing rule is that unauthorized
sentences can be appealed despite a failure to object in the trial
court. (People v. Scott, supra, 9 Cal.4th at p. 354.) As explained in People v. Stowell
(2003) 31 Cal.4th 1107, 1113: "In Scott, the court distinguished
between unauthorized sentences--those that 'could not lawfully be imposed under
any circumstance[s] in the particular case' [citation]--and discretionary
sentencing choices--those 'which, though otherwise permitted by law, were
imposed in a procedurally or factually flawed manner.' [Citation.]
As to the former, lack of objection does not foreclose review: 'We
deemed appellate intervention appropriate in these cases because the errors
presented "pure questions of law" [citation] and were
" 'clear and correctable' independent of any factual issues presented
by the record at sentencing." [Citation.] In other words, obvious legal errors at
sentencing that are correctable without referring to factual findings in the
record or remanding for further findings are not waivable.' " Applying this rule, we conclude Moats did not
waive his right to appeal the out-on-bail enhancement because the two-year
enhancement was an unauthorized sentence that "could not lawfully be
imposed under any circumstance in the particular case." (Scott, at p. 354.)
Moats did,
however, forfeit his claim of entitlement to additional conduct credits. At sentencing, immediately after awarding him
118 days of conduct credits, the court asked Moats if he wished to be
heard. His counsel did not object to the
conduct credits awarded at that time. By
not objecting to the award of conduct credits, Moats forfeited the right to
challenge on appeal any error in the court's award. (People
v. Myers (1999) 69 Cal.App.4th 305, 312 [defendant forfeited any claim of
error in presentence credits by stipulating to amount awarded].) Nevertheless, to avert a claim of ineffective
assistance of counsel, we address the merits of his statutory construction and
equal protection arguments concerning the award of conduct credits. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 230 [court examined
sentence to determine if cruel and unusual despite defendant's waiver of
argument].)
B. Standards of
Review
Moats's
claim of an out-on-bail sentencing error is founded on section 12202.1, which
applies to felonies committed while on bail for a prior offense. "The
proper interpretation of a statute is a question of law for our independent
determination. [Citations.] Likewise, the application of a statute to
undisputed facts is a question of law, subject to our de novo, or independent, review on appeal." (People v. Salcido (2008) 166
Cal.App.4th 1303, 1311.) Similarly,
because Moats's claim to additional conduct credits also involves issues of
statutory interpretation as well as constitutionality--pure questions of
law--we apply the de novo standard of review, and this court exercises its
independent judgment without deference to the trial court's ruling. (Ghirardo
v. Antonioli (1994) 8
Cal.4th 791, 799-801.)
C. The Trial
Court's Imposition of Out-on-bail Enhancement
Moats
claims the court erred by imposing a two-year, out-on-bail enhancement based on
a prior case that was subsequently dismissed.
Section 12022.1, subdivision (b), provides that a "person arrested
for a secondary offense which was alleged to have been committed while that person
was released from custody on a primary offense shall be subject to a penalty
enhancement of an additional two years" in state prison. However, the Supreme Court held in
that "the enhancement cannot be imposed unless the defendant is ultimately
'convicted' of both offenses."
(Accord, In re Ramey (1999) 70
Cal.App.4th 508, 512; People v.
McClanahan (1992) 3 Cal.4th 860, 869.)
The prior
offenses for which the out-on-bail enhancement was applied were dismissed as
part of a plea agreement. The People
concede that because Moats was not convicted of the prior offenses, the trial
court could not impose the sentence for the out-on-bail enhancement based on
those offenses. However, the People urge
this Court to remand the case to the trial court for resentencing, rather than
simply staying or dismissing the two-year sentence for the enhancement.
"[A] defendant's
aggregate prison term cannot be viewed as a series of separate independent
terms, but rather must be viewed as one prison term made up of interdependent
components. The invalidity of some of
those components necessarily infects the entire sentence. . . .
[¶] . . . [¶] . . . In making its sentencing
choices in the first instance the trial court undoubtedly considered the
overall prison term to be imposed and was influenced in its choices by the
length of the enhancements. When
defendant successfully urged the illegality of his sentence on appeal the
illegality did not relate only to a portion of the sentence but infected the
whole. On remand the trial court was
entitled to reconsider its entire sentencing
scheme . . . ."
(People v. Savala (1983) 147
Cal.App.3d 63, 68-70, disapproved on other grounds in People v. Foley (1985) 170 Cal.App.3d 1039, 1044.)
In determining the sentence to impose against him, the trial
court dismissed Moats's prior strike conviction allegation and two of his four
prior prison term allegations to arrive at an eight-year sentence. The court could have retained those
enhancements and imposed a longer prison sentence for Moats; however, after
evaluating all of the facts of the case, the trial court chose to impose only
an eight-year sentence. On remand, in
the interests of justice the trial court is entitled to reconsider its entire
sentencing scheme, including the prior conviction allegation it dismissed, to
determine the appropriate sentence for Moats.
On reconsideration, the trial court may decide Moats still warrants the
same eight-year sentence, as "[i]t is perfectly proper . . . for
the trial [court] to reimpose the same sentence in a different
manner." (People v. Calderon (1993) 20 Cal.App.4th 82, 88.) "However, . . . to 'preclude
vindictiveness and more generally to avoid penalizing a defendant for pursuing
a successful appeal' [citation], appellant may not be sentenced on remand to a
term in excess of his original sentence."
(People v. Burns (1984) 158
Cal.App.3d 1178, 1184; People v. Savala, supra, 147 Cal.App.3d at
pp. 67, 70).
In a
footnote, Moats also contends the facts of out-on-bail offenses should have
been, but were not, pleaded with the same specificity as any prior offense must
be pleaded and proved. However he
provides no analysis of how this failure negatively affected him. The information alleged Moats was out on bail
in two previous cases when he committed the current crimes. Although the information did not reference
the prior case numbers for the out-on-bail enhancements, the prosecution's
trial brief, and the trial court, identified the two prior cases with case
numbers. Nonetheless, based on
in which the court addressed a similar failure to plead the factual basis of a
sentencing enhancement and struck the enhancement as a result, Moats asks this
court to direct that the facts of out-on-bail offenses should be pleaded with
specificity.
Section
12022.1, subdivision (c), requires that an enhancement allegation be pleaded in
the information or indictment.
Furthermore, " '[d]ue process requires that an accused be
advised of the specific charges against him so he may adequately prepare his
defense and not be taken by surprise by evidence offered at
trial.' " (
p. 750.) However, Moats has not shown he
suffered harm because of the lack of specifically pleading the factual basis of
the sentencing enhancement. He had
adequate notice of the charges against him and, on October 21, 2011, admitted
the truth of the out-on-bail enhancements.
Moats does not argue, and nothing in the record suggests, he would have
defended the case any differently and not admitted the truth of the out-on-bail
enhancements had the circumstances been specifically alleged. Any error Moats suffered was harmless,
especially because we have vacated the sentence imposed on the out-on-bail
enhancements.
D. Claim to
Additional Conduct Credits
Moats
claims that despite committing his offenses before the October 1, 2011,
operative date of the amendment to section 4019, he is entitled to additional
presentence conduct credits at the enhanced rate of the new version of section
4019. Under section 4019, defendants are
entitled to earn additional credit towards their sentences by performing
additional labor (§ 4019, subd. (b)) and for good behavior (§ 4019 subd.
(c).) To differentiate from custody
credits earned by actual time spent in custody, these additional credits are
referred to as conduct credits. (
793.) Before October 1, 2011, persons
who, like Moats, had been convicted of a serious or violent felony were
entitled to two days of conduct credits for every four days actually
served. (Former Pen. Code, § 4019,
subd. (f); Stats. 2010, ch. 426, § 2.) However, on October 1, 2011, when Moats was
in local custody awaiting sentencing, the Legislature amended section 4019 in
Assembly Bill No. 109 (2011-2012 Reg. Sess.), as part of the Realignment
Act. The amendment, which became
operative October 1, 2011, increased the amount of conduct credits earned by
prisoners in local custody to one day of conduct credit for each day spent in
actual custody. (§ 4019, subd. (f);
Stats. 2011, ch. 39, § 53.) As
relevant here, section 4019, subdivision (h), provides:
"The changes to this
section enacted by the act that added this subdivision 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."
Moats committed his offenses on April 28, 2011. At sentencing,
the court applied the former version of section 4019 in effect at the
time Moats committed his crimes. Moats contends any
applicable conduct credits he accrued after the operative date of the amendment
to section 4019 on October 1, 2011, should
have been calculated using the more generous amended rate. He argues the award of only 118 days of
conduct credits violated both the terms of section 4019 as amended and
his right to equal protection.
1.
Statutory Construction
Moats
asserts that under the rules of statutory construction, section 4019 as amended
requires the court grant one-for-one conduct credits for all time spent in
local custody after October 1, 2011. He
contends the second sentence of section 4019, subdivision (h),
October 1, 2011, must be calculated at the rate established by the new law.
The
language in section 4019 subdivision (h), that "[a]ny days earned
. . . prior to October 1, 2011, shall be calculated at the rate
required by the prior" law, could be read to imply that any days earned by
a defendant after that date should be calculated using the amended rate,
regardless of the date the offense was committed. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 52.) However, to do so would invalidate the
immediately preceding sentence of section 4019, which explicitly limits the benefits of the new accrual rate to those
defendants who committed their crimes after October 1, 2011. (Rajanayagam,
at p. 52.) Moats's proffered
interpretation would "defy the Legislature's clear intent in subdivision
(h)'s first sentence and contradict well settled principles of statutory
construction." (
Interpretations that lead to absurd results or consequences the
Legislature could not have intended must be avoided. (People
v. Thomas (1992) 4 Cal.4th 206; see People
v. Tanner (1979) 24 Cal.3d 514.)
Moreover,
absent a clearly manifested intent to the contrary, there is a legal
presumption that all statutes operate prospectively. (Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) Statutes ambiguous with respect to
retroactive application are to be construed as prospective. (Ibid.;
People v. Brown (2012) 54 Cal.4th 314
(Brown); see also
328, fn. 4 [statute applied retroactively only where statutory language is
"so clear that it could sustain only one interpretation"].) One noted exception to the presumption of
prospective application exists where the Legislature reduces the
offense. (In re Estrada (1965) 63 Cal.2d 740, 748.) However, section 4019 merely addresses future
conduct; it does not alter the penalty for any particular crime and that
exception is not applicable here. (
1546, 1551; see also Brown, at p.
325.)
Although
section 4019 could have been drafted more artfully, "the Legislature's
clear intent was to have the enhanced rate apply only to those defendants who committed their crimes on or after
October 1, 2011. [Citation.] The second sentence does not extend the
enhanced rate to any other group, but merely specifies the rate at which all
others are to earn conduct credits."
(People v. Ellis, supra, 207
Cal.App.4th at p. 1553; see also People
v. Rajanayagam, supra, 211 Cal.App.4th at p. 52 [§ 4019, subd. (h) merely
reaffirms that defendants who committed their crimes before October 11, 2011,
can still earn conduct credits, just under the prior law].) The Legislature's clear and explicit intent
to apply the new custody credit formula only prospectively cannot be overridden
by an implied interpretation of the second sentence in the statute. Moats's argument that statutory construction
requires modification of his conduct credit award is not persuasive.
2. Equal
Protection
Moats also
invokes the basic guarantees of equal protection embodied in the Fourteenth
Amendment to the United States Constitution and article I, sections 11 and 21
of the California Constitution, to support his contention. (Hayes v. Superior Court (1971) 6
Cal.3d 216, 223; In re King (1970) 3 Cal.3d 226, 232.) Moats asserts that were section 4019
interpreted to apply only to crimes committed on or after October 1, 2011, it
would violate equal protection principles.
To succeed
on a claim under the equal protection clause, Moats must first show the state
has adopted a classification that affects two or more similarly situated groups
in an unequal manner. (
1185, 1199; see also People v. Wilkinson (2004) 33 Cal.4th 821, 836-837;
Manduley v. Superior Court (2002) 27 Cal.4th 537, 571.) For purposes of section 4019, there are two
classes of incarcerated inmates: (1) those in jail on or after October 1, 2011,
having committed a crime on or after October 1, 2011; and (2) those in jail on
or after October 1, having committed the
same offense before October 1, 2011.
The primary
purpose of awarding conduct credits is to reward those defendants who perform
additional work and behave, and to act as a threat to withhold conduct credits
from those who would otherwise misbehave.
Indeed, the "very purpose of conduct credits is to foster constructive
behavior in prison by reducing punishment." (People
v. Lara (2012) 54 Cal.4th 896, 906.)
Moats
contends that because inmates from both groups have committed the same crime,
are in custody at the same time, and are earning conduct credits for the same
positive behavior, they are similarly, if not identically situated. However, as the Supreme Court noted,
"prisoners who served time before the incentives took effect
. . . 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, supra, 54 Cal.4th at pp. 328-329 [examining applicability of
retroactivity to § 4019]; see also People
v. Kennedy (2012) 209 Cal.App.4th 385, 396-397.) Although Brown
examined whether section 4019 should be applied retroactively to all
prisoners, the logic is nonetheless applicable here.
Additionally,
even were we to hold that both groups have a similar incentive to work and
behave, we do not believe both groups have the same inducement. Although the type of incentive--additional
conduct credits--may be the same between the groups, the amount of that
incentive is not the same. Those
prisoners who commit crimes and serve time after the incentives take effect
have a greater incentive to alter their behavior than those who committed
crimes before the later-enacted incentive.
Thus, contrary to Moats's claims, the two groups are not similarly
situated and as a result, any analysis of his equal protection claims does not
proceed to the next step of the level of review.
Although we
need not decide the appropriate level of review, we believe rational basis
review is the proper level of scrutiny.
In considering whether state legislation violates equal protection,
" 'we apply different levels of scrutiny to different types of
classifications. At a minimum, a
statutory classification [affecting similarly situated individuals] must be
rationally related to a legitimate governmental purpose. [Citations.]
Classifications . . . affecting fundamental rights
. . . are given the most exacting scrutiny.' " (People v. Wilkinson, supra, 33
Cal.4th at p. 836; see also Manduley v. Superior Court, supra, 27 Cal.4th at p. 571.) When a statutory classification infringes on
either a fundamental interest or right, the law or policy must be justified by
a compelling interest and the distinctions drawn by the law must be necessary
to further this interest. (People v.
Olivas (1976) 17 Cal.3d 236, 251.)
In all other instances, rational basis review is the default level of
review; the state is only required to make a showing that "the legislative
classification bears a rational relation to some independent and legitimate
legislative end." (
621.)
There is no
fundamental interest at stake with regard to conduct credits. The argument could be made that to limit a
prisoner's opportunity to earn conduct credits is to increase punishment,
because it "substantially alters the consequences attached to a crime
already completed, and therefore changes 'the quantum of
punishment.' " (Weaver v.
Graham (1981) 450 U.S. 24, 33).
After all, "a person who is released a day early is punished a day
less." (People v. Lara, supra, 54 Cal.4th at pp. 905-906.) As Moats notes in his reply brief, courts
have in the past reached different conclusions as to the applicable test for
incongruities resulting from statutes involving time credits. (See, e.g., People v. Austin (1981) 30
Cal.3d 155, 166 [compelling interest]; People v. Sage (1980) 26 Cal.3d
498, 508; People v. Caruso (1984) 161 Cal.App.3d 13, 17-18; People v.
Jacobs (1984) 157 Cal.App.3d 797, 801; In re Kapperman (1974) 11
Cal.3d 542, 544-546 [rational relationship]; People v. Silva (1994) 27
Cal.App.4th 1160, 1168; People v. King (1992) 3 Cal.App.4th 882,
885.) However, those cases holding there
is a compelling interest no longer stand for the proposition Moats claims. As our Supreme Court held, the cases they
relied on should not be so broadly
read as to require strict scrutiny "whenever one challenges upon
equal protection grounds a penal statute or statutes that authorize different
sentences for comparable crimes." (People v. Wilkinson, supra, 33
Cal.4th at p. 837.) Since those cases
were decided, the Supreme Court has since favorably cited In re Bender (1983)
149 Cal.App.3d 380 for the proposition that " 'punishment-lessening
statutes given prospective application do not violate equal
protection.' " (People v.
Floyd (2003) 31 Cal.4th 179, 189.)
Personal
liberty is not at stake in cases of conduct credits because "section 4019
does not alter the penalty for any crime; a prisoner who earns no conduct
credits serves the full sentence originally imposed. Instead of addressing punishment for past criminal
conduct, the statute addresses future conduct in a custodial setting by
providing increased incentives for good behavior." (Brown,
supra, 54 Cal.4th at p. 325.) The
proper test for issues concerning conduct credits is rational basis review.
Assuming
the state had adopted a classification that affected two or more similarly
situated groups in an unequal manner, the next step would be to determine
whether those classifications bear a rational relationship to a legitimate
state purpose. The rational relationship
test is highly deferential. (
77 ["[a] classification is not arbitrary or irrational simply because
there is an 'imperfect fit between means and ends' "].) Under the rational relationship test, a
statutory classification is constitutionally sound if there are any reasonably
conceivable facts that could provide a rational basis for the
classification. (People v. Hofsheier, supra, 37 Cal.4th at p. 1200.)
Moats
argues that because the purpose of both the Realignment Act and the amendment
to section 4019 was to address the state's fiscal emergency by more
cost-effectively managing prison populations, the arbitrary date of October 1,
2011, has no legitimate or rational public purpose. However, all changes, additions or deletions
to the code must have a beginning date.
Equal protection of the law "does not forbid statutes and statutory
changes to have a beginning, and thus to discriminate between rights of an
earlier and later time." (
220 U.S. 502, 505; see also People v. Floyd, supra, 31 Cal.4th at p. 188
["[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
[operative] date of a statute lessening the punishment for a particular
offense"].)
The stated
goal of the Legislature is achieved by the amendment, as the fiscal crisis is
ameliorated to a degree by awarding additional conduct credits to those
prisoners who committed their crimes on or after October 1, 2011. Although awarding enhanced credits
retroactively would have produced greater cost savings, the Legislature did not
choose this approach. Nonetheless, the
approach the Legislature did choose bears a rational relationship to cost
savings.
"[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 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." (People v. Kennedy, supra, 209 Cal.App.4th at p. 399.)
Although the amendment to section 4019 may result in the two
classifications obtaining different conduct credit totals, under the rational
relationship test, the Legislature is permitted to "experiment
individually with various therapeutic programs related to criminal charges or
convictions" (In re Huffman (1986)
42 Cal.3d 552, 561), so as "to control the risk of new legislation by
limiting its application" (People v.
Lynch (2012) 209 Cal.App.4th 353, 361) and determine what works and what
does not. (Warden v. State Bar
(1999) 21 Cal.4th 628, 649 [reform measures can be implemented one step at a
time].) Because the deferential nature
of the rational basis test does not afford us the power to second guess the
Legislature and determine the most effective manner to achieve that legitimate
state interest, we hold the classifications established in section 4019 bear a
rational relationship to a legitimate state interest.
DISPOSITION
The
judgment is affirmed in part, reversed in part and remanded for resentencing.
McDONALD,
J.
WE CONCUR:
BENKE,
Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] Section 4019 was amended in 2011 in conjunction with the
2011 Realignment Legislation, which addressed public safety. (Stats. 2011, ch. 15, § 1; see § 1170, subd.
(h).)
