P. v. Jimenez CA4/1

Filed 7/17/13 P. v. Jimenez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061695

Plaintiff and Respondent,

v. (Super. Ct. No. SCE295504)

ISRAEL CABRERA JIMENEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, William J.

McGrath, Judge. Affirmed.

David Andreasen for Defendant and Appellant under appointment by the Court of

Appeal.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Lilia E. Garcia, Raquel M. Gonzalez, Deputy Attorneys General for the Plaintiff and

Respondent.
 A jury convicted Israel Cabrera Jimenez (Cabrera ) of assault by means likely to

produce great bodily injury (Pen. Code,1§ 245, subd. (a)(1), count 2), and battery with

serious bodily injury (§ 243, subd. (d), count 3.) It found true two enhancement

allegations that in the commission of the assault, Jimenez personally inflicted great

bodily injury on the victim, who was not an accomplice (§§ 1192.7, subd. (c)(8);

12022.7, subd. (a).) The court placed Cabrera on probation for three years, and

committed him to local custody for 365 days, with credit for a total of 314 days as

follows: 210 actual days, and 104 days of conduct credits under section 4019.

Cabrera contends the court erroneously (1) permitted a witness to identify his

coparticipant, Alfredoe Inzunza Damian,2 who had accompanied him during the assault;

(2) excluded expert witness testimony regarding witness identification; (3) instructed the

jury with CALCRIM No. 315 on how certain the victim was about his identification of

Cabrera; and (4) excluded a defense request for an alibi instruction. He further contends

(5) there was cumulative error; and (6) the court erroneously denied him additional

conduct credits under the most recent amendment to section 4019. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated.

2 Damian pleaded guilty to one count of assault under section 245, subdivision
(a)(1), and the court placed him on probation for three years conditioned on his spending
365 days in custody.
2
 BACKGROUND

On October 10, 2009, at approximately 1:45 a.m., a female entered a convenience

store in Santee, California, and asked the attendant Sidney Leckron, "Where is your

bathroom?" Leckron responded, "Next to my bedroom, where is yours?" The female left

and reported the exchange to Cabrera and Damian, who in turn confronted and beat

Leckron in an incident captured on surveillance video. Leckron suffered a broken nose

during the incident, and he could not see out of his left eye for about a week or two

afterwards.

After San Diego County Sheriff's Detective Stephen Gray developed leads about

Cabrera and Damian as suspects in the crime and obtained photographs of them from

available databases, he compared the photographs with the surveillance video. Detective

Gray prepared photographic lineups involving both suspects. Leckron viewed a

photographic lineup and initially vacillated between two of the photographs before

selecting Cabrera's, stating he was 95 percent certain of his identification. Leckron also

identified Damian from a photographic lineup. At trial, Leckron identified Cabrera with

100 percent certainty.

Detective Gray showed Cabrera's aunt, Alicia Gutierrez, a still photograph of two

males taken from the surveillance video. She identified Cabrera, but not the other male.

Cabrera's uncle, Jose Cabrera, identified the two males in the still photograph as Cabrera

and Damian, and confirmed both individuals had previously lived at his residence.

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 Damian's wife, Rocio Inzunza, identified Damian from the still photograph with

100 percent certainty, but did not know the other male's name, although she recognized

him as Damian's friend.

Defense Case

Jose Cabrera denied that he had previously identified Cabrera and Damian in the

photograph with 100 percent certainty, and instead testified he had told the detective he

did not recognize them. Cabrera's aunt testified that when she had identified Cabrera in

the still photograph with 70 percent certainty, she was specifically referring to his body

build, but not to his face. Inzunza also modified her earlier identification of Damian,

claiming she was "maybe 20 percent" certain about it.

Cabrera's uncle, Israel Cabrera (Israel), testified that on October 9, 2009, Cabrera

slept on a couch next to Israel's bed. A light sleeper, Israel went to bed between 11:30

p.m. and midnight. He did not hear Cabrera get up and leave during the night. When

Israel awoke at around 8:45 a.m., Cabrera was asleep on the couch. Mini Vazquez,

Israel's neighbor, testified that around 11:30 that night, she heard a noise, and went into

Israel's bedroom and saw Cabrera asleep on a couch.

DISCUSSION

I.

Cabrera contends the court violated his state and federal rights to due process by

admitting Inzunza's testimony identifying Damian in the still photograph. Cabrera

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further argues the court abused its discretion by failing to weigh the prejudicial effect of

the identification testimony under Evidence Code section 352.3

A. Background

The People moved in limine to permit Inzunza to testify about her identification of

Damian. Cabrera countered that such testimony would raise a prejudicial inference that

he and Damian had committed the crimes together. Cabrera's counsel specifically

argued: "The problem we are having, your honor, is that with regards to Ms. Inzunza, the

ex-wife, to testify, it's based on the photograph that depicts, evidently or allegedly, Mr.

Damian at the counter, along with an unidentified individual. It appears to be

bootstrapping by way of bringing in the ex-wife in hopes that the jurors will believe that

it's [Cabrera]. [¶] And, your, honor, I think it is prejudicial. She will not be able to

testify it's [Cabrera]. She will just say, 'that is my husband.' "

The court tentatively granted the People's motion, finding that Inzunza's testimony

was relevant because the People had proffered other independent evidence that Cabrera

and Damian were friends who had spent time together. The court challenged the veracity

of Inzunza's recantation, stating outside of the presence of the jury: "In my personal

3 We address by separate order Cabrera's petition for writ of habeas corpus, in
which he contends Detective Gray suggestively presented the photographic lineup to the
victim instead of using a double blind procedure; the identifications of Damian's
photograph by Cabrera's aunt and uncle should have been excluded; and, defense counsel
was prejudicially ineffective for failing to move to suppress evidence relating to those
identifications. Cabrera also contends in the writ petition that Detective Gray destroyed
evidence, and thus Cabrera's trial counsel was ineffective for failing to move for
sanctions or dismissal of the charges under California v. Trombetta (1984) 467 U.S. 479.
5
opinion . . . fraud is being attempted upon the court, and I think that Ms. Inzunza, for

whatever reason, I am sure she has a good one, is fabricating a story."

B. Applicable law

The trial court has the discretion to exclude evidence under Evidence Code section

352 if its probative value is outweighed by the probability of undue prejudice. On

appeal, we will not disturb the trial court's ruling unless it abused its discretion. (People

v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The "undue prejudice" referred to in

Evidence Code section 352 "is not synonymous with 'damaging,' but refers instead to

evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without

regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100,

1121.) Evidence should be excluded as unduly prejudicial when it is of such nature as to

inflame the emotions of the jury, motivating them to use the information, not to logically

evaluate the point upon which it is relevant, but to reward or punish one side because of

the jurors' emotional reaction. (People v. Scott (2011) 52 Cal.4th 452, 491.) In such a

circumstance, the evidence is unduly prejudicial because of the substantial likelihood the

jury will use it for an illegitimate purpose. (Ibid.)

"A defendant has the general right to offer a defense through the testimony of his

or her witnesses [citation], but a state court's application of ordinary rules of evidence—

including the rule stated in Evidence Code section 352—generally does not infringe upon

this right." (People v. Cornwell (2005) 37 Cal.4th 50, 82.)

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C. Analysis

Cabrera relies on inapposite case law stating that evidence of a coparticipant's guilt

is inadmissible to prove identity. In those distinguishable cases, the courts held that

evidence of the codefendants' guilty pleas prejudicially established guilt by inference,

implication, or association. (People v. Cummings (1993) 4 Cal.4th 1233, 1294-1295

[holding that in a murder trial, the lower court prejudicially admitted into evidence the

separate conviction of a codefendant's wife as an accessory to murder and robbery under

Evidence Code section 352]; People v. Leonard (1983) 34 Cal.3d 183, 188 ["That some

time after the robbery defendant [Leonard] was stopped and arrested with another man

[Johnson] who then pleaded guilty to the commission of a robbery earlier in the evening

invites an inference of guilt by association—particularly when much of the prosecution

testimony at trial was illustrated with diagrams that referred to the assailants as "L" and

"J"].)

Here, there was no evidence presented of a codefendant's guilty plea or conviction.

Therefore, no such evidence inferred or implied Cabrera's guilt. To the extent Inzunza's

identification of Damian implicated Cabrera, there was no prejudice within the meaning

of Evidence Code section 352. Even if the court erred in admitting Inzunza's testimony

regarding Damian's photograph, any error was harmless beyond a reasonable doubt.

(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Abundant evidence

supported Cabrera's conviction. Specifically, based on leads the detectives developed,

photographic lineups were prepared permitting Leckron to identify Cabrera and Damian

as his attackers. The surveillance video showed the incident. In pretrial interviews,

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Cabrera's aunt and uncle identified him in a photograph taken from the surveillance

video. We also note that the jury, by its verdict, rejected challenges to the identification

testimony presented by witnesses who recanted their previous identifications of Cabrera.

II.

Cabrera contends the court's exclusion of proffered testimony from his

identification expert violated his federal constitutional right to a meaningful opportunity

to present a complete defense. He relies on Evidence Code section 801, subdivision (a)

and People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald) for his argument that

identification expert testimony was admissible. He also relies on Holmes v. South

Carolina (2006) 547 U.S. 319, and argues a criminal defendant must be allowed a full

opportunity to present his defense without exclusion on state evidentiary grounds. We

addressed a similar claim in People v. Goodwillie (2007) 147 Cal.App.4th 695, 728-730

(Goodwillie), and resolved the issue adversely to Cabrera's position.

A. Background

The People moved in limine to exclude or limit Dr. Robert Shomer's proffered

testimony regarding eyewitness identification, arguing that under McDonald, supra, 37

Cal.3d 351, that testimony was needed because the victim's identification of Cabrera was

substantially corroborated by other witnesses, including Cabrera's aunt and uncle. The

court granted the People's motion, explaining: "Cabrera and Damian . . . lived together,

hung out together, have been in the same car together. They are not strangers to one

another. . . . [¶] Cabrera is a very distinctive-looking individual. I can say that, because

I am a very distinctive-looking individual, and probably have about as much pounds as

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[he] does. . . . He certainly weighs over 300 pounds, by the looks of him. And if he is

somebody who hangs out with Damian, and people who hang around with Damian

recognize Cabrera as being the guy that Damian hangs out with—unless there is some

evidence that Damian hangs out with two very distinctive-looking guys that look like

Cabrera, that sounds like substantial corroboration that Cabrera is the other guy in the

photograph at the [convenient store]."

Defense counsel's closing argument primarily challenged testimony identifying

Cabrera. To that end, defense counsel claimed the most important evidence was the

surveillance video and Leckron's testimony, and he analyzed thoroughly the CALCRIM

No. 315 criteria for evaluating testimony of an eyewitness identification of a defendant.

He also attacked the photographic lineup, describing it as "extremely suggestive."

B. Applicable Law

The California Supreme Court set forth the criteria for reviewing a trial court's

decision on the evidentiary issue presented in this claim: "We reiterate that the decision

to admit or exclude expert testimony on psychological factors affecting eyewitness

identification remains primarily a matter within the trial court's discretion; . . . 'we do not

intend to "open the gates" to a flood of expert evidence on the subject.' [Citation.] We

expect that such evidence will not often be needed, and in the usual case the appellate

court will continue to defer to the trial court's discretion in this matter. Yet deference is

not abdication. When an eyewitness identification of the defendant is a key element of

the prosecution's case but is not substantially corroborated by evidence giving it

independent reliability, and the defendant offers qualified expert testimony on specific

9
psychological factors shown by the record that could have affected the accuracy of the

identification but are not likely to be fully known to or understood by the jury, it will

ordinarily be error to exclude that testimony." (McDonald, supra, 37 Cal.3d at p. 377.)

In general, the application of the ordinary rules of evidence does not impermissibly

infringe on a defendant's right to present a defense. (People v. Cunningham (2001) 25

Cal.4th 926, 998.)

We conclude the court did not abuse its discretion by excluding the expert's

testimony. As noted, three different people corroborated the victim's identification of

Cabrera. Specifically, Cabrera's aunt and uncle told Detective Gray that the bigger man

in the photograph appeared to be Cabrera; further, although Inzunza did not identify

Cabrera by name, she recognized him as one of Damian's friends. From cross-

examination and closing arguments, the jury was aware of the importance of Cabrera's

identification, and if they doubted Cabrera's identity, they could not have convicted him

under the instruction they had received with CALCRIM No. 315 regarding the

appropriate factors for evaluating an eyewitness' identification of a defendant. On this

record, Cabrera received a full and reasonable opportunity to present his defense of

mistaken identity.

Cabrera's reliance on Holmes is misplaced. In Holmes, the United States Supreme

Court struck down South Carolina's judicially created rule of evidence that prohibited

defense evidence of third party culpability if "the prosecution has introduced forensic

evidence that, if believed, strongly supports a guilty verdict." (Holmes v. South Carolina,

supra, 547 U.S. at p. 321.) In other words, a defendant could defend by casting suspicion

10
on another's possible guilt but only if by doing so, his own innocence of the charge was

established first. The Supreme Court noted that " '[s]tate and federal rulemakers have

broad latitude under the Constitution to establish rules excluding evidence from criminal

trials.' " (Id. at p. 324.) However, that latitude is not so broad as to include restrictions

that are " ' "arbitrary" or "disproportionate to the purposes they are designed to serve." ' "

(Ibid.) Prohibiting the introduction of statements made by another person admitting to

the commission of the crime was just such an arbitrary or disproportionate response

violative of constitutional guarantees. (Id. at pp. 330-331.)

None of the inequities identified in Holmes are present here. As noted, the court

instructed the jury with CALCRIM No. 315. The jury also heard thorough cross-

examination and argument addressing all the reasons the defense found to discredit

Cabrera's pretrial identification. Consequently, the court's exclusion of Shomer as an

expert on this topic of identification did not result in the total exclusion of testimony

challenging identification testimony. More importantly, we specifically rejected this type

of attack on the McDonald approach to admission of such expert testimony in

Goodwillie, supra, 147 Cal.App.4th at pp. 728-730. Goodwillie, like Cabrera, relied on

mistaken identification as his defense and also desired to present the testimony of an

expert on the psychological limitations of such evidence. Relying on Holmes v. South

Carolina, supra, 547 U.S. 319, Goodwillie argued he was denied his constitutional rights

to a full opportunity to defend against the charges. That argument was rejected, based on

the same factual reasons we have already noted here. (Goodwillie, at pp. 725-730.) This

court reviewed the very same factors noted above and concluded an eyewitness

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identification expert's testimony is not—in quality or quantity—the same evidence as was

impermissibly excluded in Holmes. Cabrera's challenge to our analysis in Goodwillie

does not persuade us to reconsider the correctness of that decision.

III.

Cabrera contends the trial court denied him his right to due process under the state

and federal Constitutions because in addition to excluding testimony from his

identification expert, it instructed the jury with CALCRIM No. 315, which specifically

includes this question as one criteria jurors may use in evaluating an eyewitness's

credibility: "How certain was the witness when he made an identification?" Cabrera

specifically contends, "Because there has been no testimony about the relationship

between eyewitness confidence and accuracy, the 'certainty instruction' had the effect of

encouraging jurors to equate greater confidence with greater accuracy."

Cabrera has not shown that the instruction had the claimed effect on the jury.

CALCRIM No. 315 lists 15 questions for the jury to consider in evaluating identification

testimony, without giving preference to any in particular. The final question is open-

ended: "Were there any other circumstances affecting the witness's ability to make an

accurate identification?" We have no basis for concluding the jury gave the challenged

question greater weight than the others. Further, under the more stringent Chapman

standard of review (Chapman, supra, 386 U.S. 18), any error was harmless beyond a

reasonable doubt because even absent the challenged statement in CALCRIM No. 315,

Cabrera's identification was supported by the detective's investigation and corroborated

12
by different witnesses, as noted, and overwhelming evidence supported Cabrera's

conviction.

IV.

Cabrera contends the court prejudicially erred by refusing to instruct the jury with

CALCRIM No. 3400 regarding alibi.4

A. Background

In declining to instruct the jury on alibi, the court observed that notwithstanding

evidence showing Cabrera was in Israel's bedroom at 11:30 p.m., the crime occurred

more than two hours later, at approximately 1:45 a.m. The court ruled, "I think the state

of the evidence does not give rise to an alibi instruction. And to [give it], I think would

enhance the state of the evidence on that issue in the jury's mind. And while [defense

counsel is] free to argue it, I don't see it as an alibi, because there is no evidence that

[Cabrera] was somewhere else . . . at the time of the offense. [¶] I understand there is

circumstantial evidence from [which] one might deduce that [Cabrera] was somewhere

else, but I don't think that the facts would allow for an alibi instruction."

4 CALCRIM No. 3400 states, in pertinent part: "The People must prove that the
defendant committed __________ < insert crime[s] charged >. The defendant contends
(he/she) did not commit (this/these) crime(s) and that (he/she) was somewhere else when
the crime[s] (was/were) committed. The People must prove that the defendant was
present and committed the crime[s] with which (he/she) is charged. The defendant does
not need to prove (he/she) was elsewhere at the time of the crime. [¶] If you have a
reasonable doubt about whether the defendant was present when the crime was
committed, you must find (him/her) not guilty."

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B. Applicable Law

A jury instruction that pinpoints the crux of a defendant's case or defense, such as

alibi, is required to be given on request when substantial evidence supports the theory.

(People v. Jennings (2010) 50 Cal.4th 616, 674-675; People v. Saille (1991) 54 Cal.3d

1103, 1119.) Substantial evidence is evidence deserving of consideration by the jury, or

evidence a reasonable jury could find persuasive. (People v. Cunningham, supra, 25

Cal.4th 926, 1008.) " ' "In evaluating the evidence to determine whether a requested

instruction should be given, the trial court should not measure its substantiality by

weighing the credibility [of the witnesses] . . . . Doubts as to the sufficiency of the

evidence to warrant instructions should be resolved in favor of the accused." ' " (People

v. Tufunga (1999) 21 Cal.4th 935, 944.)

C. Analysis

Even if we were to conclude the court erred, Cabrera correctly concedes that the

standard for evaluating reversible error is whether the record establishes a reasonable

probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th

142, 165, citing People v.Watson (1956) 46 Cal.2d 818, 836.) The defense of alibi tends

only to negate the prosecution's evidence that a defendant was present at the scene of the

crime. (People v. Freeman (1978) 22 Cal.3d 434, 438.) That defense cannot " 'be

considered by itself, but must be considered in connection with all other evidence in the

case.' " (Ibid.) Thus, an alibi instruction is unnecessary when the jury has been

instructed to consider the evidence as a whole and acquit the defendant if reasonable

doubt concerning his guilt has been shown. (See Ibid. [given reasonable doubt

14
instruction, "[i]t would have been redundant to have required an additional instruction

which directed the jury to acquit if a reasonable doubt existed regarding defendant's

presence during the crime"].)

Here, the jury was instructed via CALCRIM No. 220 to acquit Cabrera if it found

the prosecution did not establish his guilt beyond a reasonable doubt. Specifically, the

instruction stated: "In deciding whether the People have proved their case beyond a

reasonable doubt, you must impartially compare and consider all the evidence that was

received throughout the entire trial. Unless the evidence proves the defendant guilty

beyond a reasonable doubt, he is entitled to an acquittal and you must find him not

guilty." The court also instructed the jury on how to evaluate the witnesses' credibility,

and that the testimony of a single witness was sufficient to prove any fact.

In view of these instructions, it would have been redundant to instruct the jury to

acquit Cabrera if it believed, based on all the evidence, that there was a reasonable doubt

he was present at the scene of the crime. (People v. Freeman, supra, 22 Cal.3d at p.

438.) The alibi instruction would have added nothing of substance to the reasonable

doubt instruction; it only would have pinpointed or tied defendant's alibi defense to the

prosecution's theory that Cabrera committed the charged crimes because he was, in fact,

present at the scene. This issue was adequately covered, though more generally so, by

the reasonable doubt instruction. Accordingly, it is not reasonably probable that Cabrera

would have obtained a more favorable result if CALCRIM No. 3400 had been given.

(See, e.g., People v. Alcala (1992) 4 Cal.4th 742, 803 [rejecting claim of reversible error

based on failure to instruct sua sponte on alibi on grounds jury was instructed sufficiently

15
with other instructions regarding the believability of witnesses (CALJIC No. 2.20),

discrepancies in testimony (CALJIC No. 2.21), weighing conflicting testimony (CALJIC

No. 2.22), sufficiency of testimony of one witness (CALJIC No. 2.27) and the

presumption of innocence/reasonable doubt (CALJIC No. 2.90)].)

V.

Cabrera contends cumulative error deprived him of his constitutional right to due

process. In a close case, the cumulative effect of multiple errors may be sufficient to

cause the trial to have been unfair and in turn cause a miscarriage of justice. (People v.

Buffum (1953) 40 Cal.2d 709, 726, overruled on other grounds by People v. Morante

(1999) 20 Cal.4th 403, 415.) Multiple errors may require reversal even when the errors,

considered individually, would not warrant the same conclusion. (People v. Jackson

(1991) 235 Cal.App.3d 1670, 1681.) If, in the absence of the cumulative errors, it is

reasonably probable that the jury would have reached a result more favorable to a

defendant, the decision must be reversed. (People v. Holt (1984) 37 Cal.3d 436, 459,

superseded by statute on another ground as stated in People v. Muldrow (1988) 202

Cal.App.3d 636, 645.) As noted, we have found no prejudicial error, and no errors

which, if combined, would cause a miscarriage of justice. Therefore, this claim fails.

VI.

Cabrera contends that under the most recent amendment to section 4019, he was

entitled to receive additional conduct credits in an amount equal to his actual credit

("day-for-day credit"), despite the fact that his crimes were committed before the

amendment's effective date: October 1, 2011. He argues that constitutional principles of

16
equal protection apply because classifying inmates based on offense date is not rationally

related to the Legislature's purpose of balancing cost savings against public safety

associated with his incarceration; therefore, as of October 1, 2011, the amended section

4019 should apply equally to inmates irrespective of the date of their offense. We

disagree.

"Pursuant to the October 1, 2011, amendment . . . 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.' " (People v. Ellis (2012) 207 Cal.App.4th

1546, 1549-1550 (Ellis).) Since the Legislature has expressly stated that this latest

amendment applies prospectively only, "the October 1, 2011, amendment does not apply

retroactively as a matter of statutory construction." (Ellis, at p. 1550.)

"The concept of equal protection recognizes that persons who are similarly

situated with respect to a law's legitimate purposes must be treated equally." (People v.

Brown (2012) 54 Cal.4th 314, 328 (Brown) [addressing the amendment to section 4019

operative January 25, 2010].) To succeed on a claim under the equal protection clause,

Cabrera must first show the state has adopted a classification that affects two or more

similarly situated groups in an unequal manner. (People v. Hofsheier (2006) 37 Cal.4th

1185, 1199.) For purposes of section 4019 there are two classes of incarcerated inmates:

(1) those in jail on or after October 1, 2011, having committed a crime on or after

17
October 1, 2011; and (2) those in jail on or after October 1, 2011, having committed the

same offense before October 1, 2011.

In Brown, the California Supreme Court held that under general rules of statutory

construction, a prior amendment to section 4019 must be read prospectively only, even

though the Legislature did not expressly so state, and even though this meant that

"prisoners whose custody overlapped the statute's operative date . . . earned credit at two

different rates." (Brown, supra, 54 Cal.4th at p. 322.) The court reasoned that "the

important correctional purposes of a statute authorizing incentives for good behavior

[citation] are not served by rewarding prisoners who served time before the incentives

took effect and thus could not have modified their behavior in response. That prisoners

who served time before and after former section 4019 took effect are not similarly

situated necessarily follows." (Brown, at pp. 328-329; see People v. Lara (2012) 54

Cal.4th 896, 906, fn. 9.)

Three appellate courts, relying on Brown's reasoning, have rejected the equal

protection argument Cabrera raises regarding the October 1, 2011 amendment to section

4019. (Ellis, supra, 207 Cal.App.4th at pp. 1551-1553; People v. Garcia (2012) 209

Cal.App.4th 530, 541; People v. Kennedy (2012) 209 Cal.App.4th 385, 395-399.) We

agree with these cases. We conclude equal protection principles do not require us to

apply the current version of section 4019 to Cabrera and he is not entitled to additional

presentence conduct credits.

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 DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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