Opinion
B225889
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. LAVANT A. PAYNE, Defendant and Appellant.
California Appellate Project and Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VA113788)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Abzug, Judge. Affirmed.
California Appellate Project and Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Lavant A. Payne appeals from the judgment entered following his no contest plea to possession of a controlled substance. Payne was sentenced to a prison term of 16 months.
Payne contends that he is entitled to additional conduct credits as a result of amendments to Penal Code section 4019 which, at the time he was sentenced, provided for increased presentence conduct credits for certain defendants. He urges that denial of the additional credits violated his right to equal protection. We conclude the trial court correctly reasoned that, because Payne had a prior violent felony conviction, he was not eligible for the enhanced credits provided by section 4019. We therefore affirm.
All further undesignated statutory references are to the Penal Code.
Payne was sentenced to 16 months in prison, with 90 days credit, on March 3, 2010. Although the parties do not address the issue, it seems almost certain that Payne has already been released from custody. This circumstance does not render his appeal moot, however, because an entitlement to additional custody credits could give him an earlier constructive release date and shorten his period of parole. (See, e.g., People v. Goodson (1990) 226 Cal.App.3d 277, 280, fn. 2.)
PROCEDURAL BACKGROUND
On January 22, 2010, Payne was charged in a two-count complaint with resisting an executive officer (§ 69, count 1) and possession of a controlled substance, phencyclidine (Health & Saf. Code, § 11377, subd. (a), count 2). The complaint also alleged that Payne had suffered a prior conviction for voluntary manslaughter (§ 192, subd. (a)), a serious or violent felony.
Because the facts relating to the charged crimes are not relevant to the issues presented on appeal, we do not recite them here. (People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
Payne pleaded no contest to count 2, possession of a controlled substance. Pursuant to the terms of a plea agreement, count 1 was dismissed, the prior strike allegation was stricken, and Payne was sentenced to a term of 16 months in prison. The trial court awarded Payne 60 days of actual custody credit and, over defense counsel's objection, 30 days of presentence conduct credit. It imposed a restitution fine, a suspended parole restitution fine, a court security fee, and a criminal conviction assessment. Payne appeals.
DISCUSSION
1. Section 4019.
Section 4019 provides that a criminal defendant may earn presentence "conduct credits" for performing assigned labor and complying with a penal institution's rules and regulations. (People v. Dieck (2009) 46 Cal.4th 934, 939; People v. Duff (2010) 50 Cal.4th 787, 793.) A defendant's good conduct time is deducted from his or her period of confinement. (§ 4019, subds. (b) & (c).) Before January 25, 2010, section 4019 provided that if a defendant earned all available presentence conduct credits, six days would be deemed to have been served for every four days spent in actual custody. (Former § 4019, subd. (f); Stats. 1982, ch. 1234, § 7, pp. 4553-4554.)
Effective January 25, 2010, the Legislature amended section 4019 to increase the number of presentence conduct credits available to eligible defendants. (Stats. 2009 (2009-2010 3d Ex. Sess.) ch. 28, § 50.) Under the amended version of the law, a defendant earned credits at twice the previous rate, that is, four days of presentence credit for every two days of custody. (Former § 4019, subd. (f); Stats. 2009, ch. 28, § 50.) However, defendants who were required to register as sex offenders, who were committed for commission of a serious felony, or who had suffered a prior conviction for a serious or violent felony, as defined in sections 667.5 and 1192.7, were ineligible for the enhanced credits and continued to accrue credits at the previously applicable rate. (Former § 4019, subds. (b)(2) & (c)(2).)
The Legislature has since amended section 4019. (See Stats. 2010, ch. 426, § 2; Stats. 2011, ch. 15, § 482; Stats. 2011 (1st Ex. Sess.) ch. 12, § 35.)
2. Payne's sentencing hearing.
Payne's sentencing hearing commenced in February 2010, shortly after the first amendment to section 4019 took effect. In order to allow the court and parties to consider the effect of the then-recent amendment, the hearing was continued to March 3, 2010. During the proceedings, defense counsel urged that Payne was eligible for the increased credits despite his prior conviction for a violent felony because the prior conviction allegation had not been proved and had in fact been stricken as part of the plea bargain. The trial court disagreed. It reasoned that the January 2010 version of section 4019 did not contain an express requirement that the prior conviction be plead and proved. Citing In re Varnell (2003) 30 Cal.4th 1132 as analogous authority, the trial court concluded that such a pleading and proof requirement was unlikely to be read into the law.
Because Payne had not been advised, prior to entering his plea, that he would be ineligible for the enhanced custody credits, the trial court offered him the opportunity to withdraw his plea. Payne declined to do so. Accordingly, using the six-for-four ratio applicable to defendants ineligible for the accelerated credits, the trial court credited Payne for 60 days of actual custody and 30 days of conduct credit, for a total of 90 days.
3. The trial court correctly found Payne was ineligible for enhanced presentence custody credits.
The January 2010 version of section 4019, the statute in effect when Payne was sentenced, expressly stated that accelerated presentence conduct credits were not available to prisoners who had "a prior conviction for . . . a violent felony, as defined in Section 667.5" or a "serious felony, as defined in Section 1192.7." The complaint here alleged Payne had suffered a prior conviction for voluntary manslaughter (§ 192, subd. (a)). Payne has not disputed, either below or on appeal, that he did, in fact, suffer the prior conviction. Voluntary manslaughter was enumerated as both a violent and a serious felony for purposes of the January 2010 version of section 4019. (Former § 4019, subds. (b)(2) & (c)(2); § 667.5, subd. (c)(1); § 1192.7, subd. (c)(1).) Thus, under the plain terms of the statute, Payne's prior voluntary manslaughter conviction rendered him ineligible for the enhanced credits.
Subdivisions (b) and (c) of the January 2010 version of section 4019 stated: "(b)(1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each [1] four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(2) If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, subject to the provisions of subdivision (d), for each sixday period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(c)(1) Except as provided in Section 2933.1 and paragraph (2), for each [2] fourday period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(2) If the prisoner is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5, for each sixday period in which the prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless i[t] appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp."
Payne contends that he was nonetheless eligible for the enhanced credits because his prior conviction was stricken as part of his plea bargain, and was neither admitted nor proven. Resolution of the issue before us therefore turns on two questions: First, before a court finds a prior conviction disqualifies a defendant from receiving enhanced conduct credits under former section 4019, must that prior be proven? Second, does the trial court's striking of a prior conviction allegation make an otherwise ineligible defendant eligible for the enhanced credits? In support of his argument that the answer to both questions is affirmative, Payne points to People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192. The People, like the trial court, find In re Varnell, supra, 30 Cal.4th 1132, controlling.
The appellate courts are split on the question of whether a pleading and proof requirement should be read into the January 2010 version of section 4019, as well as the related question of whether a prior conviction allegation may be dismissed in order to allow a defendant to accrue conduct credits at the accelerated rate. Both questions are pending before the California Supreme Court. (See, e.g., People v. Voravongsa (2011) 197 Cal.App.4th 657, review granted Aug. 31, 2011, S195672; People v. James (2011) 196 Cal.App.4th 1102, review granted Aug. 31, 2011, S195512; People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784; People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116; People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135.)
In Lo Cicero, the defendant was statutorily ineligible for probation because he had suffered prior drug-related convictions. The People had neglected to charge the priors, but the defendant admitted them during cross-examination and they were listed in the probation report. (People v. Lo Cicero, supra, 71 Cal.2d at p. 1192.) Lo Cicero urged that because the priors had not been alleged, they did not render him ineligible for probation. The People argued that a prior conviction barred probation regardless of how its existence came to the court's attention. (Ibid.)The California Supreme Court agreed with the defendant. (Id. at p. 1194.) Lo Cicero pointed to earlier authorities holding that "[b]efore a defendant can properly be sentenced to suffer the increased penalties flowing from [a prior conviction]," (People v. Ford (1964) 60 Cal.2d 772, 794), or barred from a rehabilitation program due to a prior conviction (People v. Ibarra (1963) 60 Cal.2d 460), the fact of the prior must be charged in the accusatory pleading and either proved or admitted. (People v. Lo Cicero, supra, at pp. 1192-1193.) A pleading and proof requirement provides the defendant with both notice and an opportunity to contest the allegations subjecting him to increased punishment. (Id. at p. 1192.) Because the denial of an opportunity for probation was "equivalent to an increase in penalty," the pleading and proof requirement applied. (Id. at p. 1193.) Accordingly, Lo Cicero could not be found ineligible for probation based on a prior conviction that was neither charged nor proved. (Id. at pp. 1187-1188.)
Varnell concerned the defendant's eligibility for probation and drug treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). (In re Varnell, supra, 30 Cal.4th at pp. 1134-1135.) Proposition 36 mandates probation and drug treatment for certain nonviolent drug offenders, but excludes from the program, inter alia, offenders who have previously committed serious or violent felonies and fail to remain free of prison for five years. (Id. at p. 1135.) Defendant Varnell conceded his ineligibility for Proposition 36 sentencing due to his prior conviction, but argued that he could become eligible if the trial court disregarded his criminal history. He therefore requested that the trial court strike his prior conviction in furtherance of justice under section 1385. (Id. at pp. 1135, 1137.) The trial court dismissed the alleged strike but found the fact of the prior conviction and prison term nonetheless rendered Varnell ineligible for Proposition 36 treatment. (Id. at p. 1135.) The Court of Appeal reversed and remanded, holding that the trial court had the power, under section 1385, to disregard the " 'historical facts' " of the defendant's criminal history when determining Proposition 36 eligibility. (Id. at pp. 1135-1136.)
The California Supreme Court reversed, rejecting the view that "section 1385 could give [Varnell] what the electorate did not." (In re Varnell, supra, 30 Cal.4th at p. 1137.) Section 1385 empowers a trial court to dismiss, in furtherance of justice, individual counts, sentence enhancements, and prior conviction allegations, as well as actions. (Id. at p. 1134.) However, section 1385 does not allow a court to disregard " 'sentencing factors' " that are not required to be alleged in an indictment or information. (Id. at pp. 1134-1135.) Varnell declined to imply a pleading and proof requirement into the relevant portion of Proposition 36. The court acknowledged Lo Cicero's holding that, where a prior conviction results in an increased penalty, a pleading and proof requirement will be implied even when not expressly included in the statute. (In re Varnell, supra, at p. 1140.) But Varnell reasoned: "unlike Lo Cicero, this is not a case where the prior conviction absolutely denied a defendant the opportunity for probation." (In re Varnell, supra, at p. 1140.) Varnell's prior did not bar him from receiving probation entirely, although it rendered him unfit in regard to Proposition 36 sentencing; it merely made probation less likely, and was not the equivalent of an increase in penalty. (Id. at p. 1141; see also People v. Dorsch (1992) 3 Cal.App.4th 1346, 1349-1350.) Varnell further reasoned that allowing a court to disregard sentencing factors under section 1385 was inconsistent with the effect of a section 1385 dismissal. (In re Varnell, supra, at p. 1138.) "[D]ismissal of a prior conviction allegation under section 1385 'is not the equivalent of a determination that defendant did not in fact suffer the conviction.' [Citations.] 'When a court strikes prior felony conviction allegations in this way, it " 'does not wipe out such prior convictions or prevent them from being considered in connection with later convictions,' " ' " either in the current or a future proceeding. (Id. at p. 1138.)
a. Pleading and proof requirement.
Applying the foregoing authorities, we conclude the trial court properly found Payne ineligible for enhanced credits due to his prior "strike" conviction. The prior conviction did not have to be proven in order to render Payne ineligible for the enhanced credits. In our view, a pleading and proof requirement should not be read into the January 2010 version of section 4019. The statute does not contain an express pleading and proof requirement. As Varnell observed, " 'when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement.' " (In re Varnell, supra, 30 Cal.4th at p. 1141; People v. Dorsch, supra, 3 Cal.App.4th at p. 1350; see § 667, subd. (c) [custody credit limitation in the Three Strikes law applies when a prior conviction is "pled and proved"].) Accordingly, we may reasonably infer that the Legislature did not intend a pleading and proof requirement to apply to the January 2010 version of section 4019.
Further, it is settled that a sentencing judge can deny probation on the basis of an uncharged, prior serious felony conviction. (People v. Wiley (1995) 9 Cal.4th 580, 586-587.) Given this principle, it seems incongruous that, having permissibly sentenced a defendant to prison due to an uncharged prior conviction, a sentencing court would be prohibited from calculating custody credits as directed by the January 2010 version of section 4019, unless the prior had been pled and proven.
In the instant case the prior conviction was pleaded, although not proven. Payne therefore does not contend that he received inadequate notice of the effect of his prior on his custody credits. Likewise, he does not contend that the prior was charged in error. Thus, while a defendant is entitled to minimum due process rights in relation to the determination of presentence custody credits (People v. Duesler (1988) 203 Cal.App.3d 273, 277), Payne does not challenge the fact he suffered the prior as alleged. The question of the proper procedure when a defendant wishes to challenge the accuracy of a prior conviction allegation for purposes of his or her custody credit calculation is not before us.
Payne argues that Lo Cicero governs because the January 2010 version of section 4019 "completely eliminates the availability of a lesser punishment for which a defendant would otherwise be eligible." The flaw in Payne's argument is that changes in the rate at which a defendant accrues presentence conduct credit do not amount to an increase or decrease in penalty for his or her offenses. Because the January 2010 version of section 4019 did not increase the penalty for Payne's offense, the principle articulated in Lo Cicero—that additional punishment cannot be imposed due to a prior conviction unless it is pleaded and proved—does not apply here. (See In re Varnell, supra, 30 Cal.4th at p. 1140; People v. Lo Cicero, supra, 71 Cal.2d at pp. 1193-1194.) The January 2010 version of section 4019 did not directly increase the penalty for Payne's offense. It had no bearing on the prison term prescribed for the offense of possession of a controlled substance; it did not increase the prescribed base terms or the statutory maximum.
Nor did the amendment indirectly increase the penalty for Payne's crime. Payne's theory appears to be that an increase in presentence custody credit lessens punishment; therefore, ineligibility for the accelerated credits increases punishment. We do not agree with either proposition. That the statute ameliorates punishment for some does not mean it increases it for others. The fact other, eligible defendants may receive additional conduct credits which reduce the length of their incarceration does not mean ineligible defendants are subject to increased punishment. Instead, this circumstance simply means that an ineligible defendant's reduction under the January 2010 version of section 4019 is less than the reduction received by eligible offenders. The increased credit availability may decrease the actual amount of time an eligible defendant spends incarcerated. It does not reduce the punishment for any crime. The awarding of custody credits is qualitatively different from the imposition of sentence.
Thus, the acceleration of credits for eligible defendants does not operate to lessen the penalty for their crimes. The "primary purposes of conduct credits for prison inmates are to encourage conformity to prison regulations, to provide incentives to refrain from criminal, particularly assaultive, conduct, and to encourage participation in 'rehabilitative' activities. [Citations.]" (People v. Austin (1981) 30 Cal.3d 155, 163; People v. Dieck, supra, 46 Cal.4th 939; People v. Brown (2004) 33 Cal.4th 382, 405 ["section 4019[] focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody"]; People v. Silva (2003) 114 Cal.App.4th 122, 128.) The legislative intent behind conduct credits is to encourage good behavior, not reduce the penalty for an offense. If the increased custody credits provided by section 4019 did not mitigate or lessen punishment, Payne's ineligibility for them cannot have effectively increased the penalty for his crime. Because the prior offense neither increases Payne's punishment nor requires his incarceration, Lo Cicero is not applicable. (See also People v. Garcia (2004) 121 Cal.App.4th 271, 277 [a limitation on conduct credits does not operate to increase the maximum punishment for a crime].)
In the context of considering whether the January 2010 amendments to section 4019 operate retroactively, numerous courts have considered whether the acceleration of presentence custody credits lessens punishment, with varying results. The issue of retroactivity is currently pending before our Supreme Court. (See People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.)
b. The fact the prior conviction allegation was stricken does not entitle Payne to enhanced custody credits.
Nor does the fact the prior conviction allegation was stricken require a conclusion Payne was eligible for the enhanced credits. As the authorities discussed ante make clear, the fact a prior conviction allegation is stricken or dismissed is not the equivalent of a determination that the defendant did not in fact suffer the conviction. (People v. Garcia (1999) 20 Cal.4th 490, 496.) " '[W]hen a court has struck a prior conviction allegation, it has not "wipe[d] out" that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant's personal history, and a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding.' " (In re Varnell, supra, 30 Cal.4th at p. 1138, italics omitted; see also People v. Garcia, supra, at p. 499.) As explained in Varnell: "Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use. Hence, the trial court's dismissal of the 'strike' allegation . . . did not wipe out the fact of the prior conviction and the resulting prison term that made petitioner ineligible" for Proposition 36 sentencing. (In re Varnell, supra, at p. 1138, fn. omitted.) Even if prior conviction allegations are dismissed under section 1385 or for another purpose, they are not obliterated but remain available for the court to use. Such is the case here.
Further, Senate Bill No. 3X 18, which amended section 4019 to its January 2010 version, expressly stated that the act "addresses the fiscal emergency declared by the Governor . . . ." (Stats. 2009 (2009-2010 3d Ex. Sess.) ch. 28, § 62.) The purpose of the amendments, therefore, was to reduce the inmate population to save on prison costs. However, when amending section 4019, the Legislature did not intend to compromise public safety. It excluded from the enhanced credit scheme those inmates likely to present the most danger to society, that is, persons required to register as sex offenders, persons committed for commission of a serious felony, and persons with priors for serious or violent felonies. (Former § 4019, subd. (f).) Clearly, the Legislature did not intend for these defendants, who potentially pose a higher risk to public safety, to be released early. Contrary to Payne's argument, we do not agree that the fact the prior conviction allegation was stricken automatically implies he falls outside the spirit of the Three Strikes law and is "likewise outside the spirit of the credit ineligibility provisions of section 4019." While striking Payne's prior conviction allegation eliminated the possibility he would be sentenced pursuant to the Three Strikes law, it does not flow from this fact that he is the sort of inmate to whom the Legislature intended the accelerated credit scheme to apply.
4. Payne's equal protection claim.
Payne next argues that, even if section 4019 does not contain an implied pleading and proof requirement, denying persons with prior "strike" convictions the benefit of former section 4019's accelerated custody credits violates equal protection principles. The thrust of his argument is that prisoners with prior serious or violent convictions that are eventually stricken earn conduct credits at a more favorable rate after they have been sentenced than while they are in custody presentence. Prisoners like him, whose prior convictions render them ineligible for former section 4019's accelerated conduct credits, earn a maximum of two days of presentence conduct credit for every four days of actual custody. Once a defendant is sentenced, however, section 2933 provides that for every six months served, a defendant may earn six months of conduct credit, that is, one day of conduct credit for each day of actual custody. (§ 2933, subd. (b).) Consequently, Payne argues, defendants who spend long periods in presentence custody will end up serving longer sentences than their similarly situated counterparts who spend less time in jail before being sentenced. He urges, "equal protection requires that all state prisoners who qualify for day-for-day conduct credits in prison must be awarded day-for-day conduct credits for the time spent in pre-sentence, county jail custody." In his view, this conclusion is compelled by People v. Sage (1980) 26 Cal.3d 498, 507-508, which held that there was no rational basis for denying presentence conduct credits to defendants ultimately convicted of felonies, while allowing such credits for defendants ultimately convicted of misdemeanors or felons who served no presentence time.
Implicit in Payne's argument is the assumption that the Three Strikes law's 20 percent limitation on postsentence credits for prisoners with one prior strike conviction does not apply when, as here, the prior is stricken. (See §§ 667, subd. (c)(5); 1170.12, subd. (a)(5).) Under the express terms of the Three Strikes law, the 20 percent limitation applies only when the prior conviction has been pled and proved. (§§ 667, subd. (c); 1170.12, subd. (a).)
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We are not persuaded. Similar arguments have been repeatedly rejected by the appellate courts. (See People v. DeVore (1990) 218 Cal.App.3d 1316, 1319; People v. Poole (1985) 168 Cal.App.3d 516, 524-526; People v. Ross (1985) 165 Cal.App.3d 368, 377.) DeVore is instructive. In DeVore, the appellant urged it was a violation of equal protection principles to refuse to credit him with the one-for-one work time credit, available to state prisoners, for the time he spent in jail before being convicted. (People v. DeVore, supra, at p. 1318.) He argued that he, and other pretrial detainees, were "denied equal protection of the law because defendants who post bail and do not begin serving their sentences until after conviction and sentencing are eligible for the prison one-for-one work time credit of section 2933. Those like appellant, who cannot post bail, are eligible for the less generous one-third reduction of section 4019." (Id. at p. 1319, fn. omitted.) DeVore observed that this argument had "been rejected by every appellate court" that had considered it. (See DeVore, at p. 1319 and authorities cited therein.) DeVore distinguished People v. Sage, supra, 26 Cal.3d 498, observing that section 2933 credits had to be earned and were available only to prison inmates assigned to work in a full-time credit qualifying position. (People v. Devore, supra, at p. 1320.) Moreover, the state's interest in rehabilitation, and the "difficulty in establishing prison-style work programs in county jails" justified the "disparate application of presentence and post-sentence work credits." (Ibid.)
Payne recognizes that the appellate courts have consistently rejected the argument that disparate application of presentence and postsentence conduct credit violates equal protection principles. (People v. DeVore, supra, 218 Cal.App.3d at p. 1319; People v. Poole, supra, 168 Cal.App.3d at pp. 524-526; People v. Ross, supra, 165 Cal.App.3d at p. 377.) He argues, however, that the rationale of these cases has been undercut by changes in the way prisoners earn custody credits postsentence. He posits that, at the time DeVore and similar cases were decided, postsentence credits had to be earned by participation in a prison-work program, whereas currently prison inmates automatically receive conduct credits, even if a work program is unavailable, as long as they do not refuse to work. Under these circumstances, he asserts People v. Sage, supra, 26 Cal.3d 498, controls.
We disagree that DeVore and similar cases lack vitality. The current version of section 2933 demonstrates that conduct credits are not automatic. Subdivision (c) of that section states: "Credit is a privilege, not a right. Credit must be earned and may be forfeited pursuant to the provisions of Section 2932. Except as provided in subdivision (a) of Section 2932, every eligible prisoner shall have a reasonable opportunity to participate."
Moreover, the cases rejecting equal protection claims similar to Payne's were not based solely on differences in the way conduct credits were earned. The Penal Code provides for " 'separate and independent credit schemes for presentence and postsentence custody.' " (People v. Saibu (2011) 191 Cal.App.4th 1005, 1011; People v. Donan (2004) 117 Cal.App.4th 784, 789-790.) As DeVore noted, the disparate application of presentence and post sentence conduct credits is justified by the state's interest in rehabilitation and the difficulties in establishing work programs in the county jails. (People v. DeVore, supra, 218 Cal.App.3d at p. 1320; see also People v. Waterman (1986) 42 Cal.3d 565, 570; People v. Poole, supra, 168 Cal.App.3d at pp. 525-526; People v. Ross, supra, 165 Cal.App.3d at p. 377.) "A pretrial detainee is not similarly situated to a state prison inmate." (In re Martinez (2003) 30 Cal.4th 29, 36.) As our Supreme Court has explained, the "pre- and postsentence credit systems serve disparate goals and target persons who are not similarly situated. The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges. By contrast, the worktime credit scheme for persons serving prison terms emphasizes penological considerations, including the extent to which certain classes of prisoners, but not others, deserve or might benefit from incentives to shorten their terms through participation in rehabilitative work, education, and training programs operated by the Department of Corrections. [Citations.]" (People v. Buckhalter (2001) 26 Cal.4th 20, 36-37; In re Martinez, supra, at p. 35.) To survive an equal protection challenge of the nature presented here, a classification need only bear a rational relationship to a legitimate state purpose. Where there are plausible reasons for a classification, our inquiry is at an end. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201; People v. Jeha (2010) 187 Cal.App.4th 1063, 1074.) Such is the case here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
CROSKEY, J.