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In Re Malcolm Augustus Johnson


September 16, 2011


(Super. Ct. Nos. 10F06162, 03F10251, 04F11347, 06F01878)

The opinion of the court was delivered by: Raye , P.J.

In re Johnson CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On July 20, 2007, in the above captioned three cases, petitioner Malcolm Augustus Johnson was sentenced to state prison for eight years eight months based upon his convictions for two counts of possession of methamphetamine, one count of transportation of methamphetamine, one count of possession of drug paraphernalia, and enhancements for being on bail and for a prior drug-related conviction.

At the time of petitioner's sentencing, Penal Code section 4019 provided that conduct credits could be earned at the rate of two days for every four days served.*fn1 (§ 4019, former subds. (b), (c).) According to the abstract of judgment, petitioner was awarded the following number of days of custody credits: case No. 06F01876 -- 251 actual, 124 conduct, total 375; case No. 04F11347 -- 442 actual, 220 conduct, total 662; and case No. 03F10251 -- 316 actual, 158 conduct, total 474.*fn2

Effective January 25, 2010, the Legislature enacted Senate Bill No. 3X 18,*fn3 which amended section 4019 (the new amendment) to provide essentially two days of conduct credit for every two days actually served in presentence custody to a class of prisoners (eligible prisoners) deemed safe for early release from prison. This class consists of prisoners who were neither required to register as sex offenders, nor committed for serious felonies, nor previously convicted of serious or violent felonies. The People do not contest that petitioner is an eligible prisoner.

Petitioner, an eligible prisoner, filed a habeas corpus petition in the superior court seeking retroactive application of the new amendment under equal protection principles.*fn4 The court denied relief, concluding that neither Estrada nor equal protection principles applied to petitioner because his judgment became final prior to January 25, 2010.

Petitioner then filed a petition in this court, renewing his argument. In response, the People argue that equal protection was not violated because the statute seeks to encourage good conduct by prisoners awaiting final sentencing and thus excludes prisoners whose judgments are final; hence, the two groups are not similarly situated. The People also propose a rational basis for the disparate treatment, viz: that retroactive application of the new amendment to final judgments would violate the separation of powers doctrine. We reject the People's contentions and conclude the new amendment is retroactive to all eligible prisoners irrespective of the date their judgments became final.


"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,*fn5 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 (Kapperman) [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.


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; Kapperman, supra, 11 Cal.3d at pp. 548-550.)


Effective September 28, 2010, the Legislature amended section 2933*fn6 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, 2010, amendment when the defendant served an odd number of days. For the same reasons we found the January 25, 2010, amendment was retroactive irrespective of the date of finality of judgment, we conclude the same is true of the September 28 amendment.


The matter is remanded to the Sacramento County Superior Court with directions to prepare an amended abstract of judgment reflecting that petitioner is entitled to the following number of days of custody credit: case No. 06F01878, 251 actual, 251 conduct, total 502; case No. 04F11347, 442 actual, 442 conduct, total 884; and case No. 03F10251, 316 actual, 316 conduct, total 632. The total number of presentence custody credits for the three cases is 2,018 days. The court is further directed to forward a certified copy of the amended abstract of judgment to the Director of the Department of Corrections and Rehabilitation.

We concur: BLEASE , J. HULL , J.

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