IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
November 1, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BLAKE ANTHONY STEVENS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62-095696)
The opinion of the court was delivered by: Blease , J.
P. v. Stevens
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In October 2010, pursuant to plea bargain, defendant Blake Anthony Stevens pled guilty to distributing a controlled substance, admitted having suffered a prior strike conviction and having served two prior prison terms; he was sentenced to state prison.
The trial court awarded 332 days' actual time credit and 166 days' conduct credit, for a total of 498 days of presentence custody credits. In so doing, the court applied the formula mandated by Penal Code section 4019 (section 4019) as it existed at the time of sentencing, in which six days' total credit were allowed for every four days spent by the defendant in custody. (See In re Marquez (2003) 30 Cal.4th 14, 25-26.)
Defendant's sole contention on appeal is that he is entitled to the retroactive application of increased rate for earning presentence conduct credits provided by amendments to former section 4019. In conjunction with the "2011 Realignment Legislation addressing public safety" (Stats. 2011, ch. 15, § 1; see Pen. Code, § 1170, subd. (h)), section 4019 was amended to provide for deductions for every four days of confinement, so that if all possible days are earned, four days will now be deemed served for every two days of actual confinement. (§ 4019, subds. (b), (c) & (f).) Originally, this change was to apply to those confined for crimes committed on or after July 1, 2011. (Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011.) By further amendment made before the realignment legislation became operative, this date was changed to October 1, 2011. (Stats. 2011, ch. 39, § 53, eff. June 30, 2011.) Pursuant to the October 1, 2011, amendment (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 35, eff. Sept. 21, 2011, operative Oct. 1, 2011), subdivision (h) of section 4019 presently states: "The changes to this section . . . shall apply prospectively and shall apply to prisoners who are confined to a county jail . . . for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law." (See People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1550.)
Defendant contends the October 1, 2011, amendment created two similarly situated classes of prisoners: those who earn conduct credits at the enhanced rate because their crimes occurred on or after October 1, 2011, and those (like defendant) who do not earn conduct credits at the enhanced rate because their crimes occurred before that date. Defendant argues he is entitled to enhanced credits, calculated retroactively, unless a compelling state interest supports the disparate treatment of the two classes. Relying on (among others) In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498, defendant claims retroactivity is compelled on equal protection grounds.
Defendant's equal protection claim was rejected by the California Supreme Court in People v. Lara (2012) 54 Cal.4th 896, 906, footnote 9. We are bound to reject it as well. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: RAYE , P. J. ROBIE , J.
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