Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD208960, Charles G. Rogers, Judge.
O'ROURKE, J.
In February 2008, a jury convicted William Norris Allen of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and falsely identifying himself to a peace officer (Pen. Code, § 148.9, subd. (a)). Allen admitted three prison priors (§§ 667.5, subd. (b), 668). In May 2008, the court imposed but stayed Allen's five-year sentence and granted him probation. The court awarded Allen a total of 480 days of credit for time served, comprised of 320 days of credit for actual time served and 160 days of conduct credit under the version of section 4019 then in effect.
All statutory references are to the Penal Code unless otherwise stated.
The former version of section 4019 provided for an award of up to two days of conduct credit for every four days that a defendant was in actual presentence custody. (People v. Buckhalter (2001) 26 Cal.4th 20, 30.)
In October 2008, Allen admitted violating probation and the court reinstated his five-year sentence. Allen appealed, and we affirmed and issued the remittitur in July 2009.
Subsequently, the Legislature amended section 4019, effective January 25, 2010 (hereafter amended section 4019), to provide a different formula for calculating presentence custody credits. Amended section 4019 provides for two days of conduct credit for every two days of presentence custody for certain defendants. (Amended § 4019, subd. (f).)
We grant the People's request for judicial notice of the legislative history of the January 25, 2010 amendment. Sections 4019 and 2933 were amended again on September 28, 2010, by Senate Bill No. 76 (Stats. 2009-2010, ch. 426, § 5), but that version of section 4019 is not at issue here.
In April 2010, Allen moved the trial court for additional presentence custody credits under amended section 4019, but the trial court denied the motion.
In June 2010, we denied Allen's petition for writ of habeas corpus brought on grounds he was not awarded section 4019 credits under the amended statute.
Allen's only contention on appeal is that the trial court violated his federal and state rights to equal protection of the laws by denying him 160 additional days of conduct credits under amended section 4019. We affirm.
The facts underlying Allen's conviction are not relevant to the issue on appeal.
Preliminarily, we note that we issued our remittitur, and thus Allen's case became final, before amended section 4019 went into effect. Accordingly, Allen correctly concedes that this case is in a different procedural posture from cases pending review in the California Supreme Court regarding whether the amendment of section 4019 was ameliorative, thus entitling defendants whose cases were not yet final to the retroactive benefit of its increased custody credits. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
Allen contends his equal protection challenge requires strict scrutiny review because the issue involves a fundamental interest of liberty. We disagree and conclude rational basis review applies. (People v. Kapperman (1974) 11 Cal.3d 542, 547 (Kapperman) [requiring merely that the people identify "some legitimate public purpose" served by excluding from the benefits of section 2900.5 prisoners delivered to the director of corrections before the statute was enacted]; accord, In re Stinette (1979) 94 Cal.App.3d 800, 806 (Stinette) [relying on Kapperman, and holding that under rational basis review, " '[t]he 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" ' "] (Stinette, at p. 806.).)
We reject Allen's contention that section 4019 applies retroactively, for such application would undermine the statute's purpose. "[A] court [may] determin[e] whether the... meaning of a statute comports with its purpose." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) " 'The purpose of... section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing. [Citations.]" [Citation.] 'Conduct credit is awarded to prisoners in penal institutions to encourage good behavior.' " (People v. Silva (2003) 114 Cal.App.4th 122, 127–128.) The only way to advance the statute's purpose of rewarding good behavior would be to apply it prospectively, not retroactively, because behavior can only be influenced before it has occurred. Applying section 4019 retroactively will not encourage appellant to behave appropriately in presentence custody because he is no longer in presentence custody.
Allen relies on Kapperman, supra, 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 to support his contention that the trial court violated his equal protection rights by declining to grant him additional conduct credits under amended section 4019. Both Kapperman and Sage are inapplicable. Kapperman involves a prior version of section 2900.5 that only allowed actual presentence credits when the defendant was delivered to the state prison on or after March 4, 1972. (Kapperman, 11 Cal.3d at p. 544.) Sage involves a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons. (Sage, 26 Cal.3d at p. 508.) The California Supreme Court found that neither limitation related to a state interest. (Ibid.; Kapperman, at p. 545.)
The fact that Allen's conduct cannot be influenced retroactively provides a rational basis for the Legislature's implicit intent that the amendment not apply to someone whose case was finalized before the statute took effect. (Accord, Stinette, supra, 94 Cal.App.3d at p. 806 ["Reason dictates that it is impossible to influence behavior after it has occurred"].) In light of that legitimate public purpose, there is no equal protection violation. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
In sum, we conclude Allen is not entitled to additional conduct credits because section 4019 does not apply retroactively to cases finalized before it went into effect, and this outcome does not violate Allen's right to equal protection.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J.NARES, J.