Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM015561, CM015745
DUARTE, J.
Defendant Jeffrey Wayne Walberg appeals from the Butte County Superior Court’s denial of his motion requesting retroactive application of additional conduct credits provided by the 2010 amendments to Penal Code sections 2933 and 4019. Because we agree that defendant is entitled to additional presentence conduct credit, we remand with directions.
Further undesignated statutory references are to the Penal Code.
The People request that we take permissive judicial notice of the online legislative history materials pertaining to Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50) and of the records of defendant’s prior appeal in our case No. C044913. We decline to do so because the facts that the People proffer these materials to establish are either uncontested, irrelevant, or both, given our holding and disposition of this case.
FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2003, defendant was sentenced to prison for 19 years four months based upon convictions for manufacture of a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)), evading an officer by means of a high-speed chase (Veh. Code, § 2800.2, subd. (a)) and failure to appear (§ 1320.5), plus enhancements for a prior felony drug conviction (Health & Saf. Code, § 11370.2, subd. (b)), service of a prior prison term (§ 667.5, subd. (b)), being armed in the commission of a specified drug offense (§ 12022, subd. (c)), and commission of an offense while on bail (§ 12022.1). The court determined he was entitled to 603 days of actual custody credit plus 300 days of conduct credit.
At the time of defendant’s sentencing, a term of six days was deemed served for each four days in actual custody, assuming all credits were earned. (See People v. Smith (1989) 211 Cal.App.3d 523, 527.)
Effective January 25, 2010, the Legislature amended section 4019 (January 25 amendment) to increase the rate at which a specified class of prisoners (eligible prisoners) could earn presentence conduct credits. (Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.) ch. 28, §§ 38, 50.) For eligible prisoners, per the January 25 amendment, “a term of four days will be deemed to have been served for every two days spent in actual custody.” (§ 4019, subd. (f).)
Eligible prisoners are prisoners who were not required to register as sex offenders, and had neither been committed for a serious felony, nor convicted of a serious or violent felony. (§ 4019, subds. (b)(2), (c)(2).)
On June 14, 2010, citing this court’s decision in People v. Brown (2010) 182 Cal.App.4th 1354, defendant filed a motion in the Butte County Superior Court seeking retroactive application of the January 25 amendment. Specifically, defendant moved for an additional 303 days of presentence conduct credit and 54 days of postsentence credit. The trial court denied the motion, finding that Brown did not apply to judgments final prior to January 25, 2010. Defendant appealed.
Review granted June 9, 2010 (S181963).
Brown was limited to cases not final before January 25, 2010. The trial court’s denial was based solely on Brown, and not based on other disqualifying factors. Nor do the People argue other disqualifying factors. For these reasons, we accept the representation contained in appellant’s briefing that defendant “has no serious or violent felonies and is not required to register as a sex offender.”
DISCUSSION
I
Equal Protection
On appeal, defendant argues that he is entitled to the retroactive application of the January 25 amendment under federal and state constitutional principles of equal protection. The People respond that no equal protection violation occurred because (1) the Legislature intended only the prospective application of the January 25 amendment since the purpose of the amendment was, in part, to encourage more individuals to engage in good conduct, and (2) the separation of powers doctrine (Cal. Const., art. IV, § 1) precludes the legislative branch of government from interfering with the final decisions of the judicial branch of government and, therefore, constitutes a rational basis for the disparate treatment between final and nonfinal judgments. We reject the People’s contentions and conclude the new amendment is retroactive to all eligible prisoners irrespective of the date their judgment became final.
Because the People have responded to defendant’s equal protection argument, we address the argument even though it was not raised below.
“The equal protection guarantees of the Fourteenth Amendment and the California Constitution are substantially equivalent and analyzed in similar fashion.” (People v. Leng (1999) 71 Cal.App.4th 1, 11.) We first ask whether the two classes are similarly situated with respect to the purpose of the law in question, but are treated differently. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) If groups are similarly situated but treated differently, the state must then provide a rational justification for the disparity. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200-1201.)
The People’s justification for the new amendment, to wit, to encourage good behavior, does not comport with the Legislature’s stated purpose, and we are bound by the latter. (People v. Butler (1996) 43 Cal.App.4th 1224, 1234.) The purpose of the new amendment, as expressly stated in Senate Bill No. 3X 18, was to aid the state in addressing the “fiscal emergency” declared by the Governor in December 2008, rather than to encourage good behavior as asserted by the People. (Stats. 2009-2010 3d Ex. Sess., ch. 28, § 62.) The new amendment accomplishes this fiscal purpose by identifying a class of prisoners deemed safe for early release and increasing the rate at which they earn presentence conduct credits, thereby reducing the cost of their incarceration. Dividing the class of eligible prisoners into two groups based on the date their judgments became final bears no rational relationship to either their dangerousness or their cost of incarceration. (Cf. In re Kapperman (1974) 11 Cal.3d 542, 544-550 [finality of judgment does not constitute rational basis for disparate treatment between groups of prisoners equally situated].) Consequently, the new amendment applies to all eligible prisoners regardless of when their judgments became final.
Because the purpose of Senate Bill No. 3X 18 was solely fiscal, In re Stinnette (1979) 94 Cal.App.3d 800, and In re Strick (1983) 148 Cal.App.3d 906, relied on by the People, are distinguishable because the purpose of the statutes at issue in those cases was to encourage good behavior. (In reStinnette, supra, 94 Cal.App.3dat p. 806; In reStrick, supra, 148 Cal.App.3d at p. 913.)
II
Separation of Powers
Nor does retroactive application of the new amendment to prisoners whose judgments were final prior to January 25, 2010, violate the separation of powers doctrine by interfering with judgments already final, as urged by the People. The awarding of additional conduct credits is nothing more than a ministerial act and does not constitute a resentencing or a material interference with the judgment previously imposed. (See Younger v. Superior Court (1978) 21 Cal.3d 102, 117-118; People v. Sage (1980) 26 Cal.3d 498, 508-509; In re Kapperman, supra, 11 Cal.3d at pp. 548-550.)
III
Calculation of Credits and Section 2933
Effective September 28, 2010, the Legislature amended section 2933 to give eligible prisoners for whom a state prison sentence was executed, one day of conduct credit for each day actually served in presentence custody, thereby eliminating the loss of a single day occasioned by the January 25 amendment when an odd number of days were served. For the same reasons we found the January 25 amendment was retroactive irrespective of the date of finality of judgment, we conclude the same is true of the September 28 amendment.
Enacted 2009-2010 Regular Session (see Stats. 2010, ch. 426).
Although neither party has addressed the applicability of the September 28 amendment to the instant case, it appears the September 28 amendment does apply here to grant defendant one additional day of presentence credit, above and beyond the 602 days granted by the January 25 amendment. The issue seems noncontroversial and the court has resolved it summarily in this opinion, in the interest of judicial economy. Any party aggrieved by this procedure should petition for rehearing. (Gov. Code, § 68081.)
At the time of sentencing, the trial court awarded defendant 603 days of actual custody credit. Because we hold that he is entitled to the benefit of both the January 25 amendment and the September 28 amendment, he is entitled to a total of 603 days for presentence conduct credit--one conduct day for each actual day credited.
Although defendant also briefly argues that the increased rate for calculating conduct credits should apply to the 54 days he remained in jail after sentencing but before being transferred to prison, the determination of credits postsentencing lies with the Department of Corrections and Rehabilitation. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29-30.)
DISPOSITION
The order of the trial court denying defendant’s motion for additional presentence conduct credit is set aside. The matter is remanded to the trial court with directions to prepare an amended abstract of judgment awarding defendant an additional 303 days of presentence conduct credit. The trial court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, Acting P. J., ROBIE, J.