(Super. Ct. No. CM034937)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 appeal, defendant contends that (1) the prospective application of the conduct credit provisions of the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) violates his right to equal protection of the law and (2) the presentence investigation report fee must be stricken because there was insufficient evidence of his ability to pay the fee and the trial court applied the incorrect standard in making that determination. We reject the first contention based on the California Supreme Court's decision in People v. Lara (2012) 54 Cal.4th 896 (Lara). As to the second contention, we conclude the trial court applied the incorrect standard and remand for a new hearing on the fee using the correct standard. We affirm the judgment as modified.
Defendant Jesse Wade Finkenkeller committed his crimes in the instant case on June 18, 2011. Defendant pled guilty to corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))*fn2 and criminal threats (§ 422), and admitted a prior prison term enhancement (§ 667.5, subd. (b)). He was sentenced on November 8, 2011. The trial court sentenced defendant to five years and eight months in state prison and awarded 133 days of presentence credit (89 actual and 44 conduct).
Under the law in effect at the time of sentencing, a defendant with a current or prior serious or violent felony conviction was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019.) Defendant's conviction for criminal threats is a serious felony. (§ 1192.7, subd. (c)(38).)
I Prospective Application of Section 4019
The Realignment Act amended section 4019, entitling defendants to two days of conduct credit for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).) The award of credits is not reduced by a defendant's prior conviction for a serious or violent felony. This provision applies prospectively to defendants serving presentence incarceration for crimes committed on or after October 1, 2011. (§ 4019, subd. (h).)
Defendant argues that the prospective application of section 4019 violates equal protection principles. This argument was rejected by the California Supreme Court in Lara. (Lara, supra, 54 Cal.4th at p. 906, fn. 9.)
In Lara, the Supreme Court explained its rejection of defendant's equal protection argument as follows: "As we there [People v. Brown (2012) 54 Cal.4th 314, 328-330] explained, '"[t]he obvious purpose"' of a law increasing conduct credits '"is to affect the behavior of inmates by providing them with incentives to engage in productive work and maintain good conduct while they are in prison." [Citation.] "[T]his incentive purpose has no meaning if an inmate is unaware of it. The very concept demands prospective application."' (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention before such a law's effective date, and ...