P. v. Johnson
Defendant Kenneth Ray Johnson pleaded no contest to being a felon on the grounds of a custodial facility, a felony, and to possession of not more than 28.5 grams of marijuana, a misdemeanor. In April 2011, the court placed him on felony probation under various terms and conditions, including the condition that he serve 365 days in county jail. A petition to revoke defendant’s probation was later sustained in November 2011, and the court imposed an upper term sentence of three years in prison. In doing so, the court awarded defendant a total of 123 days of presentence credits (83 days of custody credits and 40 days of conduct credits).
Defendant argues that in imposing the sentence, the court improperly considered defendant’s conduct occurring after probation was granted. He claims that the failure of his attorney to object to this error below constituted ineffective assistance of counsel that was prejudicial. Secondly, he contends that he is entitled to 24 days of additional conduct credits under the latest amendment to Penal Code section 4019, which expressly provides that it applies to defendants whose crimes were committed on or after October 1, 2011.[1] He argues that as a matter of statutory interpretation, the latest amendment to section 4019 must be applied retroactively. He contends further that prospective application of the amendment to section 4019 would violate his constitutional right to equal protection of the law.
We conclude that defendant’s ineffective assistance of counsel claim has no merit because the trial court did not improperly consider defendant’s post-probation conduct in its imposition of the sentence. Furthermore, even if counsel’s performance was deficient, any error was harmless. We also reject defendant’s claim of entitlement to additional conduct credits under the October 2011 amendment to section 4019. Last year, in People v. Kennedy (2012) 209 Cal.App.4th 385 (Kennedy), we rejected statutory interpretation and equal protection arguments identical to those raised by defendant here. We therefore will affirm the judgment.
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