Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV901724, Raymond L. Haight III, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
On July 31, 2009, a judgment imposing a three-year prison term was entered against defendant and appellant Mauricio Zepeda Maciel. He did not appeal.
An amendment to Penal Code section 4019 became effective January 25, 2010. (See Stats. 2009–2010, 3d Ex. Sess. 2009, ch. 28.)
Undesignated statutory references are to the Penal Code.
Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2009-2010, ch. 426, § 5.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.
In June 2010, defendant moved the trial court to correct his presentence custody credits by awarding him the increased credits from amended section 4019. Relying on our decision in People v. Otubuah (2010) 184 Cal.App.4th 422 (Fourth Dist., Div. Two), review granted July 21, 2010, S184314 (Otubuah), the trial court denied defendant’s motion on June 15, 2010.
Defendant contends equal protection requires he receive the additional credits, and that the applicable standard of review is strict scrutiny. We affirm.
The facts underlying defendant’s conviction are not relevant to the issue on appeal.
Section 4019 permits defendants to earn credit towards their sentence for complying with rules and performing assigned labor while in presentence local custody. (§ 4019, subds. (b)-(c).) As opposed to credits for actual time spent in custody while pending sentencing, these credits are collectively referred to as conduct credit. (People v. Duff (2010) 50 Cal.4th 787, 793.) This is because “section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody.” (People v. Brown (2004) 33 Cal.4th 382, 405.) Section 4019 credits are awarded or withheld “[a]t the time of sentencing.” (Cal. Rules of Court, rule 4.310; see also People v. Buckhalter (2001) 26 Cal.4th 20, 30; People v. Duesler (1988) 203 Cal.App.3d 273, 277.) Under the version of section 4019 in effect at the time of defendant’s sentencing, former section 4019, he was awarded “two days [of conduct credit] for every four days [he was] in actual presentence custody.” (Duff, at p. 793.) After defendant’s judgment became final, section 4019 was amended to provide for the granting of two days of conduct credit for every two days of presentence custody for certain defendants. (Amended § 4019, subd. (f).)
Whether the amendment of section 4019 was an ameliorative act that entitled all defendants whose cases were not yet final to the retroactive benefit of the increased custody credits is an issue that has split our sister Courts of Appeal and is pending review in our Supreme Court. In Otubuah, we held that the amendment was prospective only and did not retroactively benefit defendants who had been sentenced prior to the effective date of the amendment but whose judgments were not yet final. Because defendant’s judgment was final prior to the effective date of the amendment, his claimed entitlement to the additional credits is based only upon equal protection grounds. Of the decisions finding the amendment prospective only, many have subjected the amendment to rational basis scrutiny and rejected equal protection challenges because conduct cannot be influenced retroactively. (See, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724.) However, defendant contends his equal protection challenge subjects the amendment to strict scrutiny because the issue involves the fundamental interest of liberty. We hold that a rational basis test is appropriate, and a rational basis justifies the temporal distinction between persons sentenced before and after amended section 4019 became operative.
See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
“It is a fundamental principle that, ‘[t]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] ‘In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment... we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin... and classifications affecting fundamental rights... are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]’ [Citations.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 836-837; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 571 [“equal protection provisions in the California Constitution ‘have been generally thought... to be substantially the equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution’ ”].) “[P]ersonal liberty is an interest which is entitled to the same protection as other fundamental interests.” (People v. Olivas (1976) 17 Cal.3d 236, 251 (Olivas) [holding youthful misdemeanants in the control of the Youth Authority in excess of the maximum jail term implicates the liberty interest and, under strict scrutiny, is a denial of equal protection].) “A defendant, however, ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ ” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Thus, “the rational basis test applies to equal protection challenges based on sentencing disparities. [Citations.]” (People v. Ward (2008) 167 Cal.App.4th 252, 258.) In particular, “ ‘[e]qual protection is not denied where an amendatory statute reducing a penalty is not applied to persons whose convictions were final before the effective date of the ameliorative amendment. [Citation.] The only requirement is that “classifications between those to whom the state accords and withholds substantial benefits must be reasonably related to a legitimate public purpose.” [Citations.]’ ” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.)
Defendant was sentenced prior to the effective date of the amendment of section 4019 that increased the amount of credits that may be awarded for good behavior in local custody. He was awarded full conduct credits under the version of section 4019 in effect at the time of his sentencing. His contention is that he is similarly situated to, but receiving a sentence that is disparate from, convicts sentenced after the amendment of section 4019 became operative because his term of imprisonment will be longer because he was awarded fewer conduct credits. Because defendant’s equal protection challenge concerns a mere sentencing disparity, we conduct a rational basis review. (People v. Ward, supra, 167 Cal.App.4th at p. 258.)
As quoted above, “section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody.” (People v. Brown, supra, 33 Cal.4th at p. 405.) “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette, supra, 94 Cal.App.3d at p. 806.) Accordingly, applying the amendment of section 4019 retroactively would not serve the purposes of section 4019. Thus, a legitimate public purpose exists for treating convicts sentenced before and after the amendment of section 4019 differently, and defendant’s right to equal protection has not been violated.
Defendant relies on People v. Caruso (1984) 161 Cal.App.3d 13, 17 (Caruso) (applying strict scrutiny to reject equal protection challenge to disparate credits for persons detained in local custody under § 4019 and persons detained in prison under § 2933); People v. Saffell (1979) 25 Cal.3d 223, 228, 235 (Saffell) (applying strict scrutiny to reject equal protection challenge to denial of prison conduct credits for persons committed under the Mentally Disordered Sex Offenders Act); and People v. Sage (1980) 26 Cal.3d 498, 507-508 (Sage) (finding no “rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons” while awarding it to detainee/misdemeanants) for the proposition that he has a liberty interest at stake that requires a strict scrutiny review.
However, Caruso and Saffell relied on Olivas, and Sage, in turn, relied on Saffell. (Sage, supra, 26 Cal.3d at pp. 506-507; Saffell, supra, 25 Cal.3d at pp. 228-229; Caruso, supra, 161 Cal.App.3d at pp. 17-18.) Subsequently, our Supreme Court has noted that Olivas should not be broadly read for the proposition that the application of strict scrutiny is required “whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to ‘personal liberty’ of the affected individuals.” (People v. Wilkinson, supra, 33 Cal.4th at pp. 837-838.) Instead, the language of Olivas “requires only that the boundaries between the adult and juvenile criminal justice systems be rigorously maintained.” (Ibid.)
Furthermore, Caruso applied strict scrutiny in express disagreement with In re Bender (1983) 149 Cal.App.3d 380 [prospective only application of new prison conduct credits subjected to rational basis review and upheld]. (Caruso, supra, 161 Cal.App.3d at p. 17.) In addition to limiting the application of Olivas, our Supreme Court has since favorably cited Bender for the proposition that “ ‘punishment-lessening statutes given prospective application do not violate equal protection.’ ” (People v. Floyd (2003) 31 Cal.4th 179, 189.)
Defendant again relies on Sage, as well as relying on In re Kapperman (1974) 11 Cal.3d 542, 544, in support of his ultimate contention that equal protection mandates he be provided the increased credits from amended section 4019. Neither Kapperman nor Sage is applicable here.
In Sage, the Supreme Court considered a previous version of section 4019, which denied presentence conduct credit to a detainee eventually sentenced to prison, although credit was given to detainees sentenced to county jail (misdemeanants) and to felons who served no presentence time. (Sage, supra, 26 Cal.3d at p. 507.) The Supreme Court held that the failure of section 4019 to provide presentence credits for felon detainees when it provided such credits for misdemeanant detainees violated equal protection. (Sage, at pp. 506-509.) Sage is distinguishable on the ground that the purported equal protection violation at issue in the instant case is temporal, rather than based on the defendant’s status as a misdemeanant or a felon. Equal protection does not forbid distinguishing “ ‘between the rights of an earlier and later time.’ ” (Floyd, supra, 31 Cal.4th at p. 191.)
Kapperman held that an express prospective limitation upon the statute creating presentence credits for the actual time spent in presentence custody was a violation of equal protection because there was no legitimate purpose served by excluding those already delivered to prison. (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) Kapperman is distinguishable because there is a legitimate reason for excluding those already sentenced from receiving increased presentence conduct credits. As discussed ante, the reason is that the presentence behavior of those already sentenced cannot be influenced by the increased incentive of receiving additional conduct credits. (In re Stinnette, supra, 94 Cal.App.3d at p. 806.) Defendant correctly notes that in Kapperman the temporal distinction was not sufficient. However, unlike the present case, because credit for actual custody was at issue, there was no rational basis justifying the temporal distinction.
Accordingly, the cases upon which defendant relies on are not persuasive. A rational basis review is appropriate and, under that level of scrutiny, defendant’s right to equal protection has not been violated.
DISPOSITION
The order is affirmed.
We concur: McKINSTER, J., KING, J.