Filed 9/25/13 P. v. Murray CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057272
v. (Super.Ct.No. FVI1101154)
ROBERT JOHN MURRAY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata,
Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Robert John Murray appeals after his probation was
revoked and he was sentenced on the underlying offense. He originally pleaded guilty in
August 2011, i.e., before October 1, 2011. After his probation was revoked, the court
imposed sentence in August 2012, i.e., after October 1, 2011. Defendant contends that,
as a matter of equal protection of the laws, he should be awarded additional conduct
credits, which are statutorily awarded only to inmates who committed their crimes on or
after October 1, 2011. More particularly, he argues that his credits should be calculated
in a split fashion, applying the enhanced conduct credit rate to all local custody time
served on and after October 1, 2011. We disagree, and we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty in August 2011 to a charge of possession of marijuana
for sale. At the same time, he also admitted a strike prior. Pursuant to a plea agreement,
he was placed on supervised probation, including a condition that he serve one year in
custody.
In July 2012, the People filed a petition to revoke defendant’s probation, based on
several new offenses. Defendant admitted the probation violations. The court imposed
sentence on the original offense, selecting the middle term of two years, doubled to four
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years based on defendant’s strike prior. The court awarded credits for 292 actual days in
custody, plus 146 days of conduct credits, for a total of 438 days, attributable to his
presentence local custody.
On appeal, defendant urges that he was entitled to additional custody credits.
Penal Code section 40191 was amended to provide that inmates could earn custody
credits at an enhanced rate for crimes committed on or after October 1, 2011. The
amended statute expressly provides that the enhanced earning rate for custody credits was
intended to apply prospectively only. Nevertheless, defendant invokes principles of
equal protection to claim that he should also receive the benefit of earning conduct credits
at the greater rate. That is, even though defendant concedes that the California Supreme
Court, in People v. Brown (2012) 54 Cal.4th 314, resolved that a defendant is not
entitled to earn increased conduct credits for local incarceration occurring before
October 1, 2011, he maintains that the Brown court “did not resolve whether there is
required to be a split calculation of credits for time spent [in local presentence custody]
after October 1, 2011, based upon an Equal Protection claim.”
ANALYSIS
I. Defendant’s Custody Time
The underlying charge was filed against defendant in May 2011. Defendant
pleaded guilty in August 2011, i.e., before October 1, 2011. On September 9, 2011, the
1 All subsequent statutory references are to the Penal Code unless otherwise
specified.
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trial court placed defendant on probation for three years, including a condition that he
serve 365 days in jail. Defendant did not appeal, and he served his time in custody until
his release on January 13, 2012.
On July 2, 2012, the People filed a petition to revoke defendant’s probation, based
on three instances of law violation. On August 16, 2012, defendant admitted the
violations; the court revoked defendant’s probation and sentenced him to four years in
state prison on the underlying offense. The court awarded him credit for 292 days in
actual custody, plus 146 days of conduct credits, for a total of 438 days.
The probation report shows that defendant was in custody from July 3, 2011, until
his release on probation on January 13, 2012, a period of 195 days. He was arrested for
violating his probation on April 17, 2012, and remained in custody until May 5, 2012, a
period of 19 days. He was again arrested on June 28, 2012, and remained in custody until
sentencing on August 16, 2012, a period of 78 days. These periods comprise the 292
actual days of custody credit defendant was awarded at the time of sentencing.
The trial court awarded defendant 146 days of custody conduct credits, based on a
six-for-four formula provided in former section 4019, subdivisions (b) and (g). (See
Stats. 2010, ch. 426, §§ 1, 2, 5.) Defendant urges, however, that the latest amendment to
section 4019 requires that he be awarded six-for-four credits only for the actual days in
custody he served before the effective date of the amendment, October 1, 2011. After
that date, his presentence custody conduct credits should be awarded pursuant to the
enhanced formula (essentially, one-for-one credit) provided by the amendment.
Defendant served 90 days between July 3, 2011 and September 30, 2011, and 202 days
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on and after October 1, 2011. He contends he should receive conduct credits of 45 days
for the 90 days he served before October 1, 2011, and 202 days for the 202 days he
served on and after October 1, 2011, for a total of 247 days of conduct credits. He
contends he should be awarded 101 additional days of conduct credits.
II. Statutory Amendments to Section 4019
Section 4019 has been amended multiple times. Before January 25, 2010,
defendants were entitled to six-for-four conduct credits, which is two days conduct credit
for every four days of actual time served in presentence custody. (Former § 4019,
subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553, 4554.) This is sometimes
also referred to as an effective ratio of one-for-two credits, although credits could be
awarded only for each full four-day period served.
Operative as of January 25, 2010, the Legislature amended section 4019 to provide
that prisoners, with some exceptions, earned an effective ratio of one-for-one conduct
credits, although strictly speaking, the formula was two days of conduct credit for every
completed unit of two days in custody. (Stats. 2009, 3d Ex. Sess. 2009–2010, ch. 28,
§ 50.) Operative September 28, 2010, the Legislature again amended section 4019.
(Stats. 2010, ch. 426, §§ 1, 2, 5.) Subdivisions (b) and (g) restored the one-for-two
presentence conduct credit calculation (in actuality, six-for-four) that had been in effect
prior to the January 25, 2010 amendment.
Most recently, the Legislature amended section 4019 to provide for up to two days
credit for each four-day period of confinement in local custody. (§ 4019, subds. (b) &
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(c).) This scheme reflects the Legislature’s intent that if all days are earned under section
4019, a term of four days will be deemed to have been served for every two days spent in
actual custody. (§ 4019, subd. (f).) Again, this is sometimes referred to as one-for-one
credits. This version of section 4019 became operative on October 1, 2011. (Stats. 2011,
ch. 39, § 53.)
The crux of the matter is section 4019, subdivision (h), which provides:
“The changes to this section enacted by the act that added this subdivision shall
apply prospectively and shall apply to prisoners who are confined to a county jail, city
jail, industrial farm, or road camp 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.”
The first sentence expressly pronounces that the amendment is intended to be
applied prospectively only. However, defendant urges that the second sentence suggests
that “[t]he clear implication is that all inmates serving time after the amendment takes
effect are similarly situated, notwithstanding when they committed their crimes, because
they are all in a position to modify their behavior in response to the new law.”
Otherwise, there would be no reason, he argues, for specifying that the days earned
before October 1, 2011, should be calculated at the old (one-for-two) rate, unless the days
served on and after October 1, 2011, should be calculated at the new (one-for-one) rate,
regardless of the date the offense was committed.
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III. Defendant Is Not Entitled to Additional Presentence Custody Conduct Credits
There are three possible bases under which defendant might argue that he is
entitled to earn conduct credits at the enhanced rate: as a matter of direct statutory
provision; as a matter of statutory ambiguity, which must be construed in his favor; or as
a matter of equal protection. We reject all three possible bases.
A. The Statutory Language Does Not Support a Claim for Enhanced Credits
In the prior version of section 4019, “the Legislature did not expressly declare
whether the January 25, 2010, amendment was to apply retroactively or prospectively.
[Citation.] Here, [in the current version,] the Legislature did expressly state the current
version of section 4019 is to apply prospectively only to defendants who commit their
offenses on or after October 1, 2011.” (People v. Rajanayagam (2012) 211 Cal.App.4th
42, 52, fn. 4 (Rajanayagam).) Consistent with that plain expression, we interpret the
most recent version of section 4019 as applying only to defendants who committed their
offenses on or after October 1, 2011. The statute does not contain a provision granting
trial courts authority to apply a split or two-tier credit system.
The current version of the statute is only applicable to inmates who commit crimes
on or after October 1, 2011. We conclude that the trial court correctly calculated
defendant’s section 4019 credits according to a single accrual system.
B. There Is No Ambiguity in the Statutory Language
Defendant implies that the second sentence of section 4019, subdivision (h),
creates an ambiguity in the statutory language. The second sentence is problematic
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because if the current version of section 4019 only applies to people who committed
crimes on or after October 1, 2011, then it is superfluous to include language concerning
credits earned prior to October 1, 2011. Defendant suggests that this seemingly
conflicting language must be construed in his favor and interpreted as creating a two-
tiered or bifurcated system of credits. That is, when a penal statute “is susceptible of two
reasonable interpretations, the appellate court should ordinarily adopt th[e] interpretation
more favorable to the defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57.)
We are not persuaded; we do not find an ambiguity in the statutory language. The
first sentence in section 4019, subdivision (h), plainly sets forth the rule that the current
version of the statute applies only to defendants who committed crimes on or after
October 1, 2011. In that context, the second sentence is not ambiguous. The second
sentence reinforces the idea that defendants whose crimes were committed before
October 1, 2011, are subject to earning credits at the rate set forth by the prior law. The
second sentence also clarifies how to address the credit situation for inmates who commit
crimes while in jail, e.g., those who have earned credits, but who have also committed a
crime on or after October 1, 2011. In sum, we do not find an ambiguity in the statutory
language.
C. Equal Protection Does Not Require Application of Conduct Credits at the
Enhanced Rate
Defendant’s primary contention is that equal protection requires his conduct
credits be calculated at the same rate as inmates who committed crimes on or after
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October 1, 2011. He argues that there can be no justification for awarding inmates
conduct credits at different rates based on the dates they committed their crimes. We
disagree.
Where a statute distinguishes between classes of persons, but “neither touches
upon fundamental interests nor is based on gender, there is no equal protection violation
if the challenged classification bears a rational relationship to a legitimate state purpose.
[Citations.]” (Rajanayagam, supra, 211 Cal.App.4th 42, 53.) The interest at issue in
section 4019 is conduct credits or incentives to perform assigned work and to comply
with institutional rules and regulations. (Rajanayagam, supra, 211 Cal.App.4th 42,
54-55.) This is not a fundamental interest, and therefore, the issue is whether the separate
treatment of the classes bears a rational relationship to a legitimate state interest. (Id. at
pp. 53-54.)
The separate classifications at issue in section 4019 bear a rational relationship to
the state interest in cost savings. (Rajanayagam, supra, 211 Cal.App.4th 42, 55.) In
other words, section 4019 is rationally related to the objective of reducing prison
spending, which was a primary purpose of the Criminal Justice Realignment Act of 2011,
which was the genesis of the latest amendment to section 4019. (Rajanayagam, supra,
211 Cal.App.4th 42, 49.) Defendant’s equal protection rights were not violated because
the legislation bears a rational relationship to the state’s legitimate purpose.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.
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