People v. DeConter CA1/1

Filed 2/27/14 P. v. DeConter CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A135352
v.
WILLIAM GREGORY DECONTER, JR., (Sonoma County
Super. Ct. No. SCR600403)
Defendant and Appellant.

INTRODUCTION
Defendant and appellant William Gregory DeConter, Jr., was convicted of driving
under the influence of alcohol and driving with a blood alcohol content exceeding 0.08
percent. He contends: no substantial evidence supported the verdict because the
prosecution did not prove the corpus delicti; the court denied his due process rights by
instructing the jury on permissive inferences; and the calculation of presentence conduct
credit under Penal Code section 4019 violated his equal protection rights. We conclude
these claims are meritless, and affirm the judgment.
BACKGROUND
Defendant lived in the same apartment complex as his ex-girlfriend, L.K. On
March 28, 2011, L.K. was standing outside with Thomas Pepper, whom she was dating at
the time. Between 8:00 and 8:30 p.m., Pepper saw defendant’s vehicle leave the
apartment complex and saw defendant drive back into the complex about five minutes
later.

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 Within “three [or] four minutes” of defendant driving by, Pepper “gave [L.K.] a
kiss goodnight” and went around the corner to where he had parked his truck. He
discovered the “right passenger window [of his truck] was shattered, broken,” and he
could “still hear it crackling.” Pepper went back to L.K.’s apartment, and the two of
them returned to Pepper’s truck, where he called 911. Pepper immediately suspected
defendant, who “didn’t seem to apparently like [him] dating . . . his ex-girlfriend.”
At about 8:25 p.m., Santa Rosa Police Officer Christopher Mahurin was
dispatched to a parking lot next to defendant’s apartment complex regarding the possible
vandalism of Pepper’s truck. Pepper testified it took about 10 minutes for the officer to
arrive from the time he called 911. Officer Mahurin met with Pepper and L.K., then went
to defendant’s apartment and made contact with him at about 8:34 p.m. Officer Mahurin
observed defendant had “watery, glassy eyes, slow and slurred speech, as well as a strong
odor of alcoholic beverage . . . .” Defendant was having difficulty standing without
leaning on the door frame and was “swaying back and forth.” When he moved away
from the door frame, “[h]e was stumbling as he was walking, having a difficult time.” It
appeared to Officer Mahurin defendant was intoxicated.
Officer Mahurin asked defendant if he had broken Pepper’s truck window, and he
responded “he hadn’t because he had just pulled in two minutes ago.” Defendant told the
officer he had gone to a liquor store to buy alcohol. When asked whether he was drunk,
he responded, “Oh, yeah.” Defendant also told him he “hadn’t had anything to drink
since he had gotten home from the liquor store.” Officer Mahurin initiated five field
sobriety tests, none of which defendant passed. The tests took about 15 minutes to
complete, after which Officer Mahurin arrested defendant.
Officer Mahurin verified that the vehicle identified as the one defendant had been
driving was registered to him. He touched the hood of the vehicle and determined “it was
still warm and looked like it had been recently driven.” Based on the hood temperature
and his experience, Officer Mahurin testified the vehicle had been operated “definitely
within a half hour by the warmth of it.”

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 Officer Mahurin told defendant he had a choice between taking a breath or blood
test, and he chose a blood test. Officer Mahurin transported him to Sutter Hospital. The
drive to the hospital took seven or eight minutes, and Officer Mahurin could smell
alcohol on defendant during the trip. A registered nurse drew defendant’s blood sample
at about 9:45 p.m. The blood alcohol content (BAC) of the blood sample was 0.21
percent.
The Sonoma County District Attorney charged defendant by information with
driving under the influence of alcohol (Veh. Code, 1 § 23152, subd. (a)) and driving with
a BAC of 0.08 percent or above. (§ 23152, subd. (b).)2 As to both counts, there were
enhancing allegations that defendant’s BAC was 0.20 percent or more (§ 23538, subd.
(b)(2)) and he had three or more prior convictions for driving under the influence in the
last 10 years. (§ 23550.)
At trial, the criminalist testified there is a five percent error rate in the alcohol
testing process, which meant defendant’s BAC could have been 0.20 or 0.22 percent.
The criminalist explained an average 1.25 ounce shot of 80 proof alcohol would raise the
BAC of a 150-pound man by 0.025 percent. It would take approximately eight shots of
alcohol to raise the BAC of a 150-pound man to 0.21 percent. The criminalist could not
determine from the results of the blood test, alone, whether defendant’s BAC was going
up or down.
Following the close of the prosecution’s case at trial, defendant moved for a
directed verdict on all counts and the section 23538, subdivision (b)(2) enhancements.
The court granted the motion as to the enhancements for driving with a BAC of 0.20
percent or more, but denied it as to the remaining counts. The jury found defendant

1
All further statutory references are to the Vehicle Code unless otherwise
indicated.
2
Violation of subdivision (a) of section 23152 is sometimes called a “generic
DUI,” while violation of subdivision (b) is known as a “per se DUI.” (People v. McNeal
(2009) 46 Cal.4th 1183, 1193.)
3
guilty of both counts, and the court found true the remaining enhancing allegation of
three prior convictions of driving under the influence.
The court sentenced defendant to the aggravated term of three years in state
prison, and revoked his driver’s license for four years. The court awarded him a custody
credit of 135 days: 91 actual days and 44 days of local conduct credit.
DISCUSSION
The Corpus Delicti
Defendant maintains the prosecution failed to establish the corpus delicti of the
crimes of which he was convicted. He asserts “no one observed [him] intoxicated until a
half an hour after he drove his truck,” and the only evidence that would permit the
inference he was intoxicated while driving was his “uncorroborated statement that he did
not drink alcohol upon returning from the liquor store.”
“ ‘In every criminal trial, the prosecution must prove the corpus delicti, or the
body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a
criminal agency as its cause. . . . [T]he prosecution cannot satisfy this burden by relying
exclusively upon the extrajudicial statements, confessions, or admissions of the
defendant. [Citations.] Though mandated by no statute, and never deemed a
constitutional guaranty, the rule requiring some independent proof of the corpus delicti
has roots in the common law.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 825, citing
People v. Alvarez (2002) 27 Cal.4th 1161, 1168–1169.) The purpose of the corpus delicti
rule is to ensure that “the accused is not admitting to a crime that never occurred.”
(People v. Jennings (1991) 53 Cal.3d 334, 368.)
Proof of the corpus delicti “may be circumstantial and need only be a slight or
prima facie showing ‘permitting the reasonable inference that a crime was committed.’
[Citations.]” (People v. Jennings, supra, 53 Cal.3d at p. 364.) “Such independent proof
may consist of circumstantial evidence [citations], and need not establish the crime
beyond a reasonable doubt. [Citations.]” [¶] . . .“The amount of independent proof of a
crime required for this purpose is quite small; we have described this quantum of
evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a

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prima facie showing ‘ “ ‘permitting the reasonable inference that a crime was
committed.’ ” ’ [Citations.] The inference need not be ‘the only, or even the most
compelling, one . . . [but need only be] a reasonable one . . . .’ [Citation.]” (People v.
Jones (1998) 17 Cal.4th 279, 301–302, original italics, superseded by statute on other
grounds as noted in People v. Johnson (2013) 222 Cal. App.4th 486, 497.)
The evidence established Pepper saw defendant’s vehicle leave sometime between
8:00 and 8:30 p.m., and observed defendant return about five minutes later. Officer
Mahurin observed defendant’s highly inebriated condition at approximately 8:34 p.m.
He thereafter confirmed the hood of defendant’s vehicle was still warm and the vehicle
looked as though it had just been driven. This evidence amply established the corpus
delicti and permitted a reasonable inference that defendant had driven while under the
influence of alcohol.
Defendant maintains the trial court’s grant of a directed verdict as to the enhancing
allegation that he drove with a BAC of 0.20 or higher demonstrates “there was no
evidence which permitted the expert to determine DeConter’s blood alcohol level for any
time prior to the arrival of Officer Mahurin . . . .” (Italics added.) In dismissing the
enhancing allegation, the court stated, “[t]here was just nothing that the expert said that
could have, in my opinion, have the jury believe that it was 0.20 or over at the time of the
driving.” The soundness of the trial court’s opinion as to the 0.20 enhancement is, of
course, not before us. Rather, the issue is whether there was sufficient evidence of the
corpus delicti of the two charged crimes, driving under the influence and driving with a
BAC over 0.08 percent, as to which the trial court denied defendant’s motion for a
directed verdict.
Defendant claims he “could have been sober at the time that he was observed
driving, then consumed alcohol upon returning home from the liquor store,” and
exhibited signs of inebriation “approximately one half hour later.” Even assuming this
proffered conclusion is a reasonable one, and we are not suggesting it is, the evidence
permitted another reasonable conclusion—that defendant had driven under the influence
and with a BAC exceeding 0.08 percent. As we have recounted, the time between Pepper

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witnessing defendant driving and Officer Mahurin observing defendant’s highly
intoxicated state was, at most, 29 minutes. The criminalist, in turn, testified it would take
about eight shots to raise a 150-pound man’s blood alcohol level to 0.21 percent.
Together, this evidence met the prosecution’s burden of making a “slight or prima facie
showing” permitting a “reasonable inference” the crimes of driving under the influence
and with a BAC exceeding 0.08 percent were committed. (See People v. Jones, supra, 17
Cal.4th at pp. 301–303; People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6 [corpus
delicti rule does not require the prosecutor to “eliminate all other reasonable
inferences”].)3
Substantial Evidence
Defendant further contends that, even if the prosecution proved the corpus delicti,
there was “insufficient evidence to establish that [he] drove while under the influence of
alcohol . . . .” He claims the “prosecution failed to present any evidence, circumstantial
or otherwise, that permits the inference that [he] drove a vehicle while intoxicated.”
“ ‘To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ (People v. Bolden (2002) 29 Cal.4th 515, 553.) “ ‘The standard of review is
the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. ‘ “ ‘If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that the
3
Defendant did not raise the corpus delicti issue in the trial court, but maintains he
may assert it here because the failure to do so constituted ineffective assistance of
counsel. Because we conclude the prosecution met its burden of proving the corpus
delicti, the failure to object on that basis did not constitute ineffective assistance of
counsel.
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circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” [Citations.]’ The conviction shall stand ‘ “unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” ’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th 500,
507–508.)
The evidence showed defendant was driving between 8:00 and 8:30 p.m. on the
night of the incident. At 8:34 p.m., Officer Mahurin observed he had “watery, glassy
eyes, slow and slurred speech, as well as a strong odor of alcoholic beverage.” Defendant
told Officer Mahurin he had “just pulled in two minutes ago” after going to a liquor store
to buy alcohol.4 The hood of his vehicle was still warm. Defendant admitted he was
drunk and “hadn’t had anything to drink since he had gotten home from the liquor store.”
He failed five field sobriety tests. At 9:45 p.m., his BAC was 0.21 percent. Substantial
evidence supports the jury’s verdict.
Jury Instructions
Defendant additionally contends the trial court erred in instructing the jury with
CALCRIM Nos. 2110 and 2111, which he claims violated his due process rights by
reducing the prosecution’s burden of proof. We review “jury instructions as a whole, in
light of the trial record, to determine whether it is reasonably likely the jury understood
the challenged instruction in a way that undermined the presumption of innocence or
tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a
reasonable doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
The court instructed the jury as follows: “If the People have proved beyond a
reasonable doubt that the defendant’s blood alcohol level was 0.08 percent or more at the
time of the chemical analysis, you may, but are not required, to conclude that the

4
Defendant appears to conflate the corpus delicti rule with the substantial evidence
standard of review. We concluded in the previous section the prosecution had proved the
corpus delicti without considering evidence of defendant’s statements to Officer
Mahurin. In contrast, in considering whether substantial evidence supports the verdict,
we review “the entire record,” including evidence of defendant’s statements to Officer
Mahurin. (See People v. Bolden, supra, 29 Cal.4th at p. 553.)
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defendant was under the influence of an alcoholic beverage at the time of the alleged
offense. . . . [¶] If the People have proved beyond a reasonable doubt that a sample of
defendant’s [blood] was taken within three hours of the defendant’s alleged driving, and a
chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more,
you may but are not required to conclude that the defendant’s blood alcohol level was
0.08 percent or more at the time of the alleged offense.” (Italics added.)
The instructions given are based on sections 23152 and 23610. Section 23152
provides in part: “In any prosecution under this subdivision, it is a rebuttable presumption
that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the
time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol
in his or her blood at the time of the performance of a chemical test within three hours
after the driving.” (§ 23152, subd. (b).) Section 23610 provides in part: “[T]he amount
of alcohol in the person’s blood at the time of the test as shown by chemical analysis of
that person’s blood, breath, or urine shall give rise to the following presumptions
affecting the burden of proof: [¶] . . . [¶] . . . If there was at that time 0.08 percent or
more, by weight, of alcohol in the person’s blood, it shall be presumed that the person
was under the influence of an alcoholic beverage at the time of the alleged offense.”
(§ 23610, subd. (a)(3).)
Defendant maintains the “presumptive inference instruction impermissibly
reduced the prosecution’s burden of proof. . . .”
However, “[a]s the United States Supreme Court has explained, ‘The most
common evidentiary device is the entirely permissive inference or presumption, which
allows—but does not require—the trier of fact to infer the elemental fact from proof by
the prosecutor of the basic one . . . .’ ” (People v. Beltran (2007) 157 Cal.App.4th 235,
240, fn. 4, citing Ulster County Court v. Allen (1979) 442 U.S. 140, 157.)
“ ‘ “ ‘Permissive presumptions’ are not really presumptions at all. Instead, they are
simply inferences drawn from evidence. They do not shift the prosecution's burden of
production, and the jury is not required to abide by them. An instruction about a
‘permissive presumption’ is really an instructed inference.” ’[Citation.]” (People v.

8
Beltran, supra, 157 Cal.App.4th at p. 242) Because a permissive presumption “ ‘leaves
the trier of fact free to credit or reject the inference and does not shift the burden of proof,
it affects the application of the “beyond a reasonable doubt” standard only if, under the
facts of the case, there is no rational way the trier could make the connection permitted
by the inference.’ ” (People v. Roder (1983) 33 Cal.3d 491, 498, citing Ulster County
Court v. Allen, supra, 442 U.S. 140, 157.)
“[T]he test to be applied in any situation wherein a presumption may be relied
upon in a criminal case is whether there is a rational connection between the fact proved
and the fact presumed. . . .[¶] . . . Probably, no fact is more firmly established medically
than that the ingestion of alcohol in any substantial quantity impairs one’s ability to drive
a vehicle. The dismal statistic that alcohol is involved in an inordinate percentage of the
accidents resulting in death, dispels any claim that there is no rational connection
between the consumption of alcohol by a driver and his driving record.” (People v.
Schrieber (1975) 45 Cal.App.3d 917, 920.) “The presumption . . . is not based on
speculation but is founded on the long-recognized and scientifically established
relationship between blood alcohol level and degree of intoxication. . . . There thus exists
sufficient rational connection in experience between the preliminary fact proved and the
ultimate fact presumed to satisfy the requirement of due process of law.” (People v.
Lachman (1972) 23 Cal.App.3d 1094, 1098.)
Relying on People v. Beltran, supra, 157 Cal.App.4th 235, defendant nevertheless
contends the permissive inference instruction in this case “was not rationally connected to
an element of the offense.” In Beltran, the defendant was charged with both generic and
per se driving under the influence. (Id. at p. 239.) Two roadside breath tests taken about
half an hour after police stopped him for speeding indicated the defendant’s BAC at that
time was 0.08 percent. (Id. at p. 238.) An intoxilyzer breath test administered about half
an hour after the roadside breath test indicated a BAC, then, of 0.10 percent. (Id. at p.
239.) There was testimony at trial, by both the defense and the prosecution expert
witnesses, that the defendant’s BAC at the time of driving was less than 0.08 percent and
the breath tests showed the defendant’s BAC was “rising” from the time he was stopped

9
until the intoxilyzer tests were administered. (Id. at pp. 239, 246.) The court explained
“while in isolation either the [roadside breath] tests or the intoxilyzer tests were sufficient
to allow for the inference permitted by [the jury instruction], together they show that
[defendant’s] BAC was rising from the time he was stopped until the intoxilyzer tests
were administered.” (Id. at p. 246.) Thus, the court held giving the permissive inference
instruction was “constitutional error that improperly lowered the prosecution’s burden of
proof” because “[t]aken as a whole, the connection between the proved fact (test result
demonstrating a BAC of 0.08 percent or greater within three hours of driving) and the
inferred fact (BAC of 0.08 percent or greater at the time of driving) . . . was not
established . . . .” (Id. at p. 247.)
Beltran differs significantly from the case at hand. In that case, experts for both
sides testified it could well have been “that appellant’s BAC was below the legal limit at
the time he was driving.” (Beltran, supra, 157 Cal.App.4th at p. 239.) This was so
because the defendant was subjected to two separate and distinct types of breath tests, the
first a roadside “preliminary alcohol screening” (PAS) test and the second, taken less than
a half-hour later, an intoxilyzer test. The PAS test indicated a BAC of 0.08 and the
intoxilyzer showed a significantly increased level of 0.10 percent. (Id. at pp. 238–239.)
Thus, there was strong evidence the defendant’s BAC was rising at the time he was
stopped and, thus, even per the prosecution’s expert “assuming the reliability of the
earlier PAS test results, appellant’s BAC was around 0.068 percent when he was
stopped.” (Id. at p. 239.) This necessarily meant, as Presiding Justice Ruvolo wrote:
“Taken as a whole, the connection between the proved fact (test result demonstrating a
BAC of 0.08 percent or greater within three hours of driving) and the inferred fact (BAC
of 0.08 percent or greater at the time of driving), which is an element of the charged
crime, was not established beyond a reasonable doubt.” (Id. at p. 247.) In this case, in
contrast, there was only one blood alcohol content test result, and there was no evidence
suggesting defendant’s BAC was either rising or falling at the time of the test.
Accordingly, the Beltran court’s observation that “in isolation either the [roadside breath]
tests or the intoxilyzer tests were sufficient to allow for the inference” is apposite and

10
there is a rational connection between the preliminary fact proved and the ultimate fact
which the jury could infer. (Id. at p. 246.) Accordingly, defendant’s due process rights
were not violated by the instructions.
Custody Credits Under Penal Code Section 4019
Defendant asserts he was denied equal protection because the court awarded him
presentence custody credits under the amended version of Penal Code section 4019
applicable to crimes committed prior to October 1, 2011.5 He concedes “[t]he facts
underlying [his] conviction took place on March 28, 2011” but maintains there is no
compelling state interest or rational basis for awarding different amounts of custody
credits to inmates “depending on the date of the offense.”
“A criminal defendant is entitled to accrue both actual presentence custody credits
under Penal Code section 2900.5 and conduct credits under Penal Code section 4019 for
the period of incarceration prior to sentencing.” (People v. Kennedy (2012)
209 Cal.App.4th 385, 395 (Kennedy).) Section 4019 has been the subject of multiple
amendments in recent years. “Before January 25, 2010, conduct credits under Penal
Code section 4019 could be accrued at the rate of two days for every four days of actual
time served in presentence custody. (Stats. 1982, ch. 1234, § 7, p. 4554 [former § 4019,
subd. (f)].) Effective January 25, 2010, the Legislature amended Penal Code
section 4019 in an extraordinary session to address the state’s ongoing fiscal crisis.
Among other things, Senate Bill No. 3X 18 . . . amended section 4019 such that
defendants could accrue custody credits at the rate of two days for every two days
actually served, twice the rate as before except for those defendants required to register as
sex offenders, those committed for serious felonies (as defined in § 1192.7), or those who
had prior convictions for violent or serious felonies. (Stats. 2009, 3d Ex. Sess. 2009–
2010, ch. 28, §§ 50, 62 [Pen. Code former § 4019, subds. (b), (c) & (f)].)” (Kennedy,
supra, 209 Cal.App.4th at p. 395.)

5
Defendant was remanded into custody on February 3, 2012, and sentenced on
May 3, 2012.
11
 “Effective September 28, 2010, Penal Code section 4019 was amended again to
restore the presentence conduct credit calculation that had been in effect prior to the
January 2010 amendments, eliminating one-for-one credits (hereafter the September 2010
amendment; Stats. 2010, ch. 426, § 2). By its express terms, the newly created Penal
Code section 4019, subdivision (g), declared these September 2010 amendments
applicable only to inmates confined for crimes committed on or after that date, expressing
legislative intention that they have prospective application only. (Stats. 2010, ch. 426,
§ 2.)” [¶] “Thereafter, again, the Legislature amended Penal Code section 4019. These
statutory changes, among other things, reinstituted one-for-one conduct credits and made
this change applicable to crimes committed on or after October 1, 2011, the operative
date of the amendments, expressing legislative intent for prospective application only.
(Pen. Code, § 4019, subds. (b), (c) & (h).)” (Kennedy, supra, 209 Cal.App.4th at
pp. 395–396.)
Defendant acknowledges the statute is, by its terms, prospective only in
application, but maintains “the distinction in credit-earning rights” based solely on the
date of the offense violates equal protection principles. “ ‘Guarantees of equal protection
embodied in the Fourteenth Amendment of the United States Constitution and article I,
section 7 of the California Constitution prohibit the state from arbitrarily discriminating
among persons subject to its jurisdiction. . . .’ [Citation.]” (People v. Chavez (2004) 116
Cal.App.4th 1, 4.) “The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated equally.
[Citation.] Accordingly, ‘ “[t]he first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner.” ’ [Citation.] ‘This initial
inquiry is not whether persons are similarly situated for all purposes, but “whether they
are similarly situated for purposes of the law challenged.” ’ [Citation.]” (People v.
Brown (2012) 54 Cal.4th 314, 328 (Brown).) “The ‘similarly situated’ prerequisite
simply means that an equal protection claim cannot succeed, and does not require further
analysis, unless there is some showing that the two groups are sufficiently similar with

12
respect to the purpose of the law in question that some level of scrutiny is required in
order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54
Cal.App.4th 705, 714.) “The analysis will not proceed beyond this stage if the groups at
issue are not ‘ “similarly situated with respect to the legitimate purpose of the law,” ’ or if
they are similarly situated, but receive ‘ “like treatment.” ’ Identical treatment is not
required.” (In re Jose Z. (2004) 116 Cal.App.4th 953, 960.)
Courts have disagreed about whether the groups at issue are similarly situated. In
Kennedy, the defendant was also in presentence custody after October 1, 2011 for a crime
committed before that date. (Kennedy, supra, 209 Cal.App.4th at pp. 396–397.) The
court held the disparately-treated groups of defendants were not similarly situated. (Ibid.)
Nevertheless, it concluded “[e]ven if this court were to agree that during the period of
time that appellant was in presentence custody after October 1, 2011, he was similarly
situated to other defendants who committed their crimes after October 1, and were in
presentence custody, where, as here, the statutory distinction at issue neither ‘touch[es]
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.]’ . . . ‘ “ ‘ “ . . . Where there are ‘plausible reasons’ for [the classification],
‘our inquiry is at an end.’ ” ’ ” ’ [Citation.]” (Id. at p. 397.)
The court in Kennedy concluded there is “such a plausible reason in this case as to
the period of time appellant was in custody after October 1, 2011.” (Kennedy, supra,
209 Cal.App.4th at p. 397.) It explained “the Legislature could rationally have believed
that by making the 2011 amendment to section 4019 have application determined by the
date of the offense, they were preserving the deterrent effect of the criminal law as to
those crimes committed before that date. To reward appellant with the enhanced credits
of the 2011 amendment to section 4019, even for time he spent in custody after October
1, 2011, weakens the deterrent effect of the law as it stood when appellant committed his
crimes. We see nothing irrational or implausible in a legislative conclusion that
individuals should be punished in accordance with the sanctions and given the rewards
(conduct credits) in effect at the time an offense was committed. [¶] Finally, . . . over the

13
past few years we have seen a series of incremental changes in conduct credit earning
rates. . . . Overall, the Legislature has tried to strike a delicate balance between reducing
the prison population during the state's fiscal emergency and protecting public safety.
Although such an effort may have resulted in comparable groups obtaining different
credit earning results, under the rational relationship test, the Legislature is permitted to
engage in piecemeal approaches to statutory schemes addressing social ills and funding
services to see what works and what does not.” (Kennedy, supra, 209 Cal.App.4th at p.
399, fn. omitted.)
In contrast, the court in People v. Rajanayagam (2012) 211 Cal.App.4th 42
(Rajanayagam), held the two affected groups were similarly situated. (Id. at p. 53.) The
court explained, “the two affected classes are . . . (1) those defendants who are in jail on
and/or after October 1, 2011, who committed an offense on or after October 1, 2011; and
(2) those defendants who are in jail on and/or after October 1, 2011, who committed the
same offense before October 1, 2011.” (Ibid.) [¶] . . . “These two groups committed the
same offenses and are serving time together in local presentence custody but the current
version of section 4019 treats them differently by awarding them different conduct credits
based entirely on the dates they committed their offenses. Nothing distinguishes the
efforts of a prisoner who committed a crime after October 1, 2011, to earn conduct
credits from the efforts of one who committed the same crime before that date. Both
classifications of prisoners, pre- and post-October 1, 2011, offense defendants, are aware
of the conduct credit provision and have an incentive to perform assigned work and
comply with rules and regulations because both classifications have the opportunity to
earn conduct credit, just at different rates. To argue that a defendant who committed an
offense before October 1, 2011, but was in local custody on or after that date was not
aware of the conduct credit provision and did not have an incentive to work and behave is
unpersuasive. Both classes have an incentive to work and behave but a defendant who
committed a crime before the effective date is rewarded less. Thus, based on the facts
before us, the current version of section 4019 creates a classification that affects two
similarly situated groups in an unequal manner.” (Id. at pp. 53–54.)

14
 Rajanayagam concluded there was no equal protection violation, however,
because “the classification in question does bear a rational relationship to cost savings
. . . . [T]he California Supreme Court has stated equal protection of the laws does not
forbid statutes and statutory amendments to have a beginning and to discriminate
between rights of an earlier and later time. [Citation.] . . . [¶] . . . More importantly, in
choosing October 1, 2011, as the effective date of Assembly Bill No. 109, the Legislature
took a measured approach and balanced the goal of cost savings against public safety.
The effective date was a legislative determination that its stated goal of reducing
corrections costs was best served by granting enhanced conduct credits to those
defendants who committed their offenses on or after October 1, 2011. To be sure,
awarding enhanced conduct credits to everyone in local confinement would have
certainly resulted in greater cost savings than awarding enhanced conduct credits to only
those defendants who commit an offense on or after the amendment’s effective date. But
that is not the approach the Legislature chose in balancing public safety against cost
savings. (Citation.) . . . Under the very deferential rational relationship test, we will not
second-guess the Legislature and conclude its stated purpose is better served by
increasing the group of defendants who are entitled to enhanced conduct credits when the
Legislature has determined the fiscal crisis is best ameliorated by awarding enhanced
conduct credit to only those defendants who committed their offenses on or after October
1, 2011.”6 (Rajanayagam, supra, 211 Cal.App.4th at pp. 55–56.)
Assuming arguendo the two groups of defendants are similarly situated for
purposes of the statute, we agree with Kennedy and Rajanayagam there is a rational basis
for the differing treatment of the two groups. Accordingly, the application of
section 4019 to defendant does not violate principles of equal protection.

6
Although defendant maintains the classification affects a fundamental liberty
interest requiring application of the compelling state interest test, both Kennedy and
Rajanayagam held the rational basis test applied to the section 4019 classification.
(Kennedy, supra, 209 Cal.App.4th at p. 397; Rajanayagam, supra, 211 Cal.App.4th at p.
54.)
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 DISPOSITION
The judgment is affirmed.

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P. J.

_________________________
Dondero, J.

17