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The People v. Kenneth Wayne Thomas

February 7, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KENNETH WAYNE THOMAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF000206)

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

P. v. Thomas CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On appeal, defendant Kenneth Wayne Thomas contends the trial court's failure to award additional conduct credits pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15, § 482) constitutes a violation of equal protection. Following the California Supreme Court's decision in People v. Lara (2012) 54 Cal.4th 896 at page 906, footnote 9 (Lara), we reject defendant's contention. We affirm the judgment.

BACKGROUND*fn1

Defendant pled no contest to assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)).*fn2 Under the terms of the plea, defendant would waive time for sentencing and attend a residential treatment program. Upon successful completion of the program, the felony offense would be reduced to a misdemeanor. If defendant did not complete the program, he would serve four years in state prison for the felony offense.

Defendant failed to appear at a presentencing status conference held on October 30, 2000. At the same hearing, the trial court was informed that defendant had been discharged by the Salvation Army Rehabilitation Center for failing to comply with his program. The trial court issued a no-bail warrant for defendant's arrest.

Defendant was extradited from Colorado and appeared before the trial court on June 1, 2011. The trial court sentenced defendant to four years in state prison and awarded 505 days of presentence credit (373 actual and 132 conduct). The court later amended the award of presentence credits to 558 days, consisting of 372 days' actual and 186 days' conduct credit.

Defendant committed his offense on April 3, 2000, and was sentenced on November 14, 2011. His conviction for assault with a deadly weapon is a serious felony. (§ 1192.7, subd. (c)(31).)

The trial court sentenced defendant under the September 28, 2010, revision of the presentence credit law. Under that version, 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 §§ 2933, 4019.)

Prospective Application of Section 4019

The Realignment Act amended section 4019, entitling defendants to two days of conduct credits for every two days of presentence custody. (§ 4019, subds. (b), (c), (f).) The award of credits is not reduced by a defendant's current or prior conviction for a serious 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 his right to equal protection. This argument was rejected by the California Supreme Court in ...


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