People v. O'Rourke CA4/1

Filed 7/31/14 P. v. O’Rourke 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D065466

Plaintiff and Respondent,

v. (Super. Ct. No. FMB1100428)

MANUEL ROBERT O'ROURKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County,

Rodney A. Cortez, Judge. Affirmed as modified.

John E. Edwards, 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, Steven T. Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Manuel Robert O'Rourke guilty of assault with a deadly weapon

against his former girlfriend, Mia Mahoney. He appeals, contending the trial court erred
in (1) admitting Mahoney's prior misdemeanor vandalism conviction without allowing

him to introduce evidence regarding the details of that crime, (2) failing to modify

CALCRIM No. 226 to instruct the jury that it could consider Mahoney's misdemeanor

conviction in assessing her credibility and excluding an optional portion of that

instruction regarding a witness's character for truthfulness, (3) failing to appropriately

respond to a jury question regarding whether fists could be considered deadly weapons,

(4) failing to provide the jury with a unanimity instruction, (5) excluding evidence that

Mahoney allegedly had a reputation for lying, violence and self-inflicting injuries, and

(6) miscalculating his presentence conduct credits. The Attorney General contends

O'Rourke was awarded one more conduct credit than he was entitled. We agree with the

Attorney General and modify the judgment accordingly. In all other respects, the

judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

O'Rourke does not challenge the sufficiency of the evidence to support his

conviction; accordingly, we briefly summarize the facts presented at trial as background

for our discussion of his contentions on appeal.

O'Rourke and Mahoney dated on and off since 2005. At one point while they

were living together, O'Rourke assaulted Mahoney, hitting her repeatedly with a slipper

and holding a piece of broken glass to her throat. O'Rourke was convicted of domestic

violence. Mahoney moved out of the home she shared with O'Rourke but later reconciled

with him.

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 In August 2011, Mahoney went to O'Rourke's house to collect money he owed her

friends and to talk to him because he had not returned her calls. The gate to the property

was locked so Mahoney climbed over a chain-link fence and proceeded to a trailer at the

rear of the property. When Mahoney knocked on the trailer door, Karen Komorowski

answered. Komorowski informed Mahoney that O'Rourke had helped her move and she

was tired so she came to the trailer to sleep. Komorowski indicated that O'Rourke was in

the front house on the property and she called for him to come to the trailer.

When O'Rourke arrived at the trailer, he saw Mahoney and immediately asked her

to leave. Mahoney did not leave and became upset. O'Rourke told Mahoney their

relationship was over and started walking her to the gate. After Mahoney exited the gate

and started walking along the side of the property, O'Rourke grabbed her hair, pulled her

to the ground, and whispered, "You're not going anywhere." O'Rourke then put

Mahoney's head between his knees and twice dragged the tip of a knife across her

forehead while he said something like, "I could kill you right now" or "I could cut your

face up right now." Mahoney escaped O'Rourke's grip and pushed herself backwards on

the ground toward the street.

O'Rourke continued swinging the knife at Mahoney as she tried to defend herself

by kicking at him. At one point, O'Rourke grabbed Mahoney's leg and cut it with the

knife. Mahoney tried to run, but O'Rourke grabbed her by the hair and threw her to the

ground again. He then used his fists and feet to hit and punch Mahoney in the head, back

and shoulders for approximately two minutes, causing her to lose consciousness.

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 Around the same time, a neighbor heard a loud male voice say, "Get out of here.

Leave or I'm going to kill you," and the name "Mia." She also heard a female trying to

calm someone down. The neighbor called 911 to report what she heard.

When Mahoney awoke, she went to a friend's nearby home. The friend heard

someone screaming outside, opened his door and found Mahoney hysterical and in tears

with blood on her face and one leg. Mahoney said that someone stabbed her and that she

feared for her life. Mahoney called 911 and told the operator that someone beat her up.

Mahoney suffered an inch long laceration on her left leg, which was consistent

with a knife wound and required seven stitches. Mahoney also had a fractured thumb,

sprained shoulder, and linear abrasions on the top of her face, which were consistent with

someone dragging a knife over her forehead.

DISCUSSION

I. Prior Conviction Evidence

A. Background

During direct examination, Mahoney testified that she pleaded guilty to one count

of misdemeanor vandalism in December 2011 and a second count was dismissed. During

cross-examination, defense counsel sought to elicit testimony from Mahoney regarding

the details of the vandalism incident, which the prosecutor conceded was a crime of

moral turpitude. Specifically, defense counsel wanted to introduce facts that Mahoney

ran into her husband's fence with her car and when transported in a patrol car, she bashed

her head against the window until it damaged the patrol car window. Defense counsel

indicated that these facts were relevant to O'Rourke's defense because Mahoney self

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inflicted her injuries by bashing her head on concrete while she was crawling to the

neighbor's house. The court sustained the prosecutor's objection because the underlying

facts of the vandalism conviction were not relevant.

B. Analysis

O'Rourke argues the trial court erred by admitting Mahoney's prior misdemeanor

vandalism conviction without allowing him to introduce evidence regarding the details of

that crime. Specifically, O'Rourke contends that exclusion of the details of the vandalism

incident in combination with admission of evidence concerning O'Rourke's prior

domestic violence conviction gave the jury a false impression of the dynamic between

O'Rourke and Mahoney. He also contends that exclusion of the evidence violated his

rights under the Confrontation Clause of the United States Constitution. We reject these

arguments.

A witness may be impeached with evidence of prior conduct involving moral

turpitude even though the conduct did not result in a felony conviction. (People v.

Wheeler (1992) 4 Cal.4th 284, 295-296 (Wheeler); accord People v. Clark (2011) 52

Cal.4th 856, 932 (Clark).) But admission of such evidence is subject to a trial court's

discretion under Evidence Code section 352, which "empowers courts to prevent criminal

trials from degenerating into nitpicking wars of attrition over collateral credibility

issues." (Wheeler, at p. 296; accord People v. Lightsey (2012) 54 Cal.4th 668, 714

(Lightsey).)

A "trial court has discretion to exclude impeachment evidence . . . if it is collateral,

cumulative, confusing, or misleading." (People v. Price (1991) 1 Cal.4th 324, 412.) On

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appeal, a ruling excluding impeachment evidence under Evidence Code section 352 is

reviewed under the deferential abuse of discretion standard, under which the ruling will

not be disturbed unless the record shows the trial court acted in an arbitrary, capricious,

or patently absurd manner that caused a manifest miscarriage of justice. (People v. Lewis

(2001) 26 Cal.4th 334, 374; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "Because

the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary

to deal with the great variety of factual situations in which the issue arises' [citation], a

reviewing court ordinarily will uphold the trial court's exercise of discretion [citations]."

(Clark, supra, 52 Cal.4th at p. 932.)

Here, the parties represented to the court that Mahoney's vandalism conviction was

a crime involving moral turpitude. Assuming without deciding that it was a crime of

moral turpitude, admission of such evidence was subject to the trial court's discretion

under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at p. 296.) "Although the

record must 'affirmatively show that the trial court weighed prejudice against probative

value' [citations], the necessary showing can be inferred from the record despite the

absence of an express statement by the trial court." (People v. Prince (2007) 40 Cal.4th

1179, 1237.) Considering the record as a whole, we can infer that the court engaged in

the proper balancing when it excluded the details of Mahoney's vandalism conviction.

The record indicates that the court considered the anticipated testimony as collateral to

the matters at hand and as such more prejudicial than probative.

We cannot say the trial court's decision to exclude the underlying facts of

Mahoney's vandalism conviction was a plain and manifest abuse of discretion, exceeding

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all bounds of reason. (People v. Watson (2008) 43 Cal.4th 652, 684; In re Ryan N.

(2001) 92 Cal.App.4th 1359, 1385.) The details of Mahoney's misdemeanor conduct

would "not strongly demonstrate moral turpitude, i.e., a ' "general readiness to do evil" '

[citation], and thus would not have provided the jury much assistance in assessing [her]

credibility." (Lightsey, supra, 54 Cal.4th at p. 714; see also Wheeler, supra, 4 Cal.4th at

p. 296 [misdemeanor "is a less forceful indicator of immoral character or dishonesty than

is a felony"].) Moreover, introduction of such evidence might have required "a trial

within a trial" and diverted the jury's attention away from the main issue of O'Rourke's

guilt.

Similarly, exclusion of the proffered evidence did not violate the Confrontation

Clause of the United States Constitution. (U.S. Const., 6th Amend.) "Although the right

of confrontation includes the right to cross-examine adverse witnesses on matters

reflecting on their credibility, 'trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-

examination.' [Citation.] . . . A trial court's limitation on cross-examination pertaining to

the credibility of a witness does not violate the confrontation clause unless a reasonable

jury might have received a significantly different impression of the witness's credibility

had the excluded cross-examination been permitted. [Citations.]" (People v.

Quartermain (1997) 16 Cal.4th 600, 623-624.)

In this case, the jury heard other evidence that reflected poorly on Mahoney's

character and undermined her credibility. Specifically, the jury heard testimony that

Mahoney became jealous and angry after looking at text messages on her husband's cell

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phone and then threw the phone. Later that day or early the next morning, Mahoney

pounded on her husband's door and yelled at him, but he would not let her in. At some

point during the incident, Mahoney ran into a fence at her husband's house. Additionally,

Komorowski testified that Mahoney woke her up by banging on the trailer door, yelling

expletives and pulling her by the arm from a hole in the trailer door. A long time

acquaintance also testified that Mahoney attempted to persuade her to lie to the district

attorney. In light of this evidence, details of Mahoney's vandalism conviction likely

would not have given the jury a significantly different impression of her or her

relationship with O'Rourke. Further, based on the other evidence in the record

undermining Mahoney's credibility, we conclude that excluding details of the vandalism

did not give her a false aura of veracity.

In any event, any error in excluding evidence of Mahoney's vandalism conviction

was harmless. The exclusion of cumulative evidence concerning a witness's credibility is

not prejudicial. (People v. Farley (2009) 46 Cal.4th 1053, 1105; People v. Hendrix

(1923) 192 Cal. 441, 450.) As we have already discussed, there was other evidence in the

record negatively impacting Mahoney's credibility, including that she became jealous and

angry with her husband and ran into his fence. Accordingly, some of the details of the

vandalism conviction were cumulative and exclusion of that evidence was not prejudicial.

Further, O'Rourke has not shown that cross-examining Mahoney about her vandalism

conviction " 'would have produced "a significantly different impression of [her]

credibility." ' " (People v. Farley, at p. 1105.)

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 II. CALCRIM No. 226

O'Rourke argues the trial court erred by failing to instruct the jury that it could

consider Mahoney's misdemeanor conviction in assessing her credibility and excluding

an optional portion of CALCRIM No. 226 regarding a witness's character for

truthfulness. We disagree.

We review a claim of instructional error de novo. (People v. Posey (2004) 32

Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial

court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos

(2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed

in giving jury instructions, we consider the instructions as a whole and assume jurors are

intelligent persons, capable of understanding and correlating all jury instructions which

are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the

judgment rather than defeat it if they are reasonably susceptible to such interpretation.'

[Citation.]" (Ibid.) Generally, a defendant who believes that an instruction is erroneous

or requires clarification must request modification or clarification of the instruction to

avoid forfeiting the issue on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1140.)

Here, the trial court instructed the jury with CALCRIM No. 226 regarding the

credibility or believability of witnesses. This instruction provided that "[i]n evaluating a

witness's testimony, [the jury] may consider anything that reasonably tends to prove or

disprove the truth or accuracy of that testimony[,]" including whether the witness has

been convicted of a felony or "engaged in other conduct that reflects on his or her

believability."

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 O'Rourke contends the trial court should have modified CALCRIM No. 226 to

instruct the jury that it could consider Mahoney's misdemeanor conviction in assessing

her credibility as a witness. O'Rourke did not request this modification in the trial court.

"A trial court has no sua sponte duty to revise or improve upon an accurate statement of

law without a request from counsel [citation], and failure to request clarification of an

otherwise correct instruction forfeits the claim of error for purposes of appeal." (People

v. Lee (2011) 51 Cal.4th 620, 638.) If O'Rourke believed the court should have included

language concerning the use of misdemeanor convictions, he was obliged to request it

below. (Ibid.)

O'Rourke also contends the trial court should have included an optional portion of

CALCRIM No. 226 which informed the jury that a factor it could consider in evaluating

a witness's testimony was the witness's character for truthfulness. The trial court declined

to include this language on the basis there was no character evidence presented at trial.

As we discussed below, O'Rourke's proffered character evidence was not relevant to the

issues in this case. (Post, Part V.) Accordingly, the trial court properly excluded it and

there was no need to include the optional paragraph in CALCRIM No. 226 regarding the

witness's character for truthfulness.

III. Response to Jury Question

A. Background

The court instructed the jury with CALCRIM No. 875. This instruction informed

the jury that O'Rourke was charged with two counts of assault with a deadly weapon

other than a firearm. The instruction also stated, "A deadly weapon is any object,

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instrument, or weapon that is inherently deadly or dangerous or one that is used in such a

way that it is capable of causing and likely to cause death or great bodily injury."

During deliberations, the jury asked, "Is the fist a deadly weapon?" The court

advised the parties it would respond by stating this was a jury determination. The

prosecutor suggested referring the jury to the instruction regarding a deadly weapon. The

court agreed to refer the jury to CALCRIM No. 875 and to inform them that it was a jury

determination. When the court inquired as to whether defense counsel wished to be

heard regarding the response to the jury's question, defense counsel stated that he did not.

B. Analysis

O'Rourke contends the trial court failed to appropriately respond to the jury's

question because the law is clear that fists are not deadly weapons within the meaning of

Penal Code section 245. (Undesignated statutory references are to this code.) The

Attorney General agrees that fists may not be considered deadly weapons, but argues any

error was harmless. We agree with the Attorney General.

Section 1138, " 'imposes upon the court a duty to provide the jury with information

the jury desires on points of law.' " (People v. Eid (2010) 187 Cal.App.4th 859, 881-882.)

"The court's failure under section 1138 to adequately answer the jury's question 'is subject

to the prejudice standard of [citation],' i.e., whether the error resulted in a reasonable

probability of a less favorable outcome. [Citation.] In this context, 'reasonable

probability' means ' "merely a reasonable chance, more than an abstract possibility," of

an effect of this kind.' [Citation.]" (Id. at p. 882.)

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 Based on our review of the record, we conclude it is not reasonably probable that

O'Rourke would have received a more favorable outcome had the court informed the jury

that fists are not deadly weapons. The court properly instructed the jury with CALCRIM

No. 875, which defined a "deadly weapon" as "any object, instrument, or weapon that is

inherently deadly or dangerous or one that is used in such a way that it is capable of

causing and likely to cause death or great bodily injury." Fists are not ordinarily

understood to constitute "object[s], instrument[s], or weapon[s]" (CALCRIM No. 875).

Thus, it is unlikely that after the jury examined CALCRIM No. 875, it concluded a fist is

a deadly weapon.

Moreover, the prosecutor never argued that O'Rourke was guilty of the crimes

charged as a result of using his fists to inflict injuries on Mahoney. Instead, during

closing argument, the prosecutor made clear that the deadly weapon for both counts in

this case was a knife. As to count 1 for the injury to Mahoney's leg, the prosecutor stated,

"[O'Rourke] acted with a deadly weapon. We know, because [Mahoney] testified, that

[O'Rourke] had the knife." Similarly, in regard to count 2 for the abrasions on Mahoney's

forehead, the prosecutor stated, "[O'Rourke] acted with a deadly weapon. It's a deadly

weapon. It is a knife." We find no indication in the record that either party suggested

that O'Rourke could be guilty of the crimes charged due to the use of his fists.

Lastly, the jury only found O'Rourke guilty on count 1, which the prosecutor made

clear pertained to the injury on Mahoney's leg. The jury heard testimony that Mahoney

suffered a laceration on her left leg, which was consistent with a knife wound and

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required seven stitches. We find no evidence in the record that Mahoney's leg was

injured by the use of fists or any other means.

Based on the foregoing, we conclude the alleged error in failing to inform the jury

that fists are not deadly weapons for the purposes of the crimes charged was harmless.

IV. Unanimity Instruction

O'Rourke argues the trial court erred by failing to provide the jury with a

unanimity instruction. Specifically, he contends the instruction was required because

some jurors may have convicted him based on an assault with his fists while others may

have convicted him based on use of a knife. We reject this argument.

A defendant's constitutional right to a unanimous jury verdict requires that when

the evidence shows more than one unlawful act that could support a single charged

offense, the prosecution must either elect which act to rely upon or the trial court must

sua sponte give a unanimity instruction telling the jurors they must unanimously agree

which act constituted the crime. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

The unanimity instruction is designed to eliminate the danger that the defendant will be

convicted even though there is no single offense which all the jurors agreed the defendant

committed. (Ibid.) No unanimity instruction is required, however, when the offense

involves a continuous course of conduct; i.e., when the acts are "substantially identical in

nature, so that any juror believing one act took place would inexorably believe all acts

took place." (People v. Champion (1995) 9 Cal.4th 879, 932, internal quotations

omitted.)

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 Here, the court was not required to give a unanimity instruction. O'Rourke was

charged with two counts of assault with a deadly weapon. The jury heard evidence that

O'Rourke twice dragged the tip of a knife across Mahoney's forehead and later cut her leg

with the knife. The prosecutor made clear that the deadly weapon in both counts was a

knife. The prosecutor also specifically stated that count 1 pertained to O'Rourke's use of

a knife on Mahoney's leg, and count 2 pertained to his use of a knife on Mahoney's

forehead. There was no evidence in the record that the crimes charged were committed

by other unlawful means. Accordingly, the trial court properly did not give a unanimity

instruction.

V. Exclusion of Victim Character Evidence

O'Rourke argues the trial court erred by excluding evidence that Mahoney

allegedly had a reputation for lying, violence and self-inflicting injuries. Specifically, he

contends the trial court's exclusion of the evidence prevented him from presenting his

defense that Mahoney's injuries were self-inflicted or sustained during O'Rourke's

reasonable efforts to eject her from his property.

In a criminal case, a defendant may introduce evidence of the character or a trait of

character of a victim, in the form of opinion, reputation, or specific instances of conduct,

to prove conduct of the victim in conformity with the character or trait of character.

(Evid. Code, § 1103, subd. (a)(1).) Thus, a defendant being prosecuted for a violent

offense who asserts self-defense may introduce evidence of specific violent acts by the

victim on a third person to show that the victim has a violent character and was the

aggressor in the current offense. (People v. Wright (1985) 39 Cal.3d 576, 587 (Wright);

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People v. Tackett (2006) 144 Cal.App.4th 445, 453-454; People v. Shoemaker (1982) 135

Cal.App.3d 442, 446 (Shoemaker).)

"The admission of such character evidence, however, is not without bounds, but is

subject to the dictates of Evidence Code section 352." (Wright, supra, 39 Cal.3d at p.

587.) That section permits a trial court to exclude relevant evidence if its probative value

is substantially outweighed by the probability that its admission will create a substantial

danger of undue prejudice. (Evid. Code, § 352.) We review trial court rulings under

Evidence Code section 352 using the deferential abuse of discretion standard. (People v.

Pollock (2004) 32 Cal.4th 1153, 1171.) "Under this standard, a trial court's ruling will

not be disturbed, and reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted

in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

As we shall explain, the trial court did not abuse its discretion here.

In his argument, O'Rourke does not specifically identify the particular evidence he

claims was wrongly excluded. It appears, however, that he complains regarding the trial

court's exclusion of evidence that Mahoney twice abused her daughter, lied to deputies

investigating an allegation of substance abuse, self inflicted injuries by beating her head

against a patrol car window, engaged in vandalism due to jealousy, had a tendency to

exaggerate, attempted to buy Vicodin from a friend, and lied about her ability to obtain

Vicodin from her doctor.

In this case, there was no evidence that Mahoney self inflicted her injuries on the

occasion in question or that O'Rourke acted in self-defense. In fact, O'Rourke

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specifically informed the court that he was not asserting self-defense. Further, the

proffered evidence that Mahoney abused her daughter, lied to deputies on an unrelated

issue, engaged in vandalism, previously lied and exaggerated, and attempted to buy

Vicodin from a friend was not admissible as it was not relevant to whether O'Rourke

committed assault with a deadly weapon. In order for the evidence to be admissible, it

had to be relevant and offered for the purpose of proving conduct in "conformity with the

character or trait of character." (Evid. Code, § 1103, subd. (a)(1).) The proffered

evidence had no tendency to prove that either Mahoney self inflicted her injuries or that

the injuries were sustained through O'Rourke's efforts to defend himself.

Similarly, evidence that Mahoney self inflicted an injury in the past was not

relevant because there was no evidence that the injuries in this case were self-inflicted.

The proffered evidence was likely to confuse the issues and mislead the jury by leading

to speculative inferences. Evidence that leads only to speculative inferences is irrelevant.

(People v. Stitely (2005) 35 Cal.4th 514, 549.) "[E]xclusion of evidence that produces

only speculative inferences is not an abuse of discretion." (People v. Babbitt (1988) 45

Cal.3d 660, 684.)

Finally, we reject O'Rourke's contention that the trial court's exclusion of

testimony concerning Mahoney's alleged reputation for lying, violence and self inflicting

injuries denied him the ability to present his defense. We, of course, agree that O'Rourke

has a due process right to present evidence material to his defense, so long as the

evidence is of significant probative value. (Shoemaker, supra, 135 Cal.App.3d at p. 450.)

But he "has no constitutional right 'to present all relevant evidence in his favor, no matter

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how limited in probative value such evidence will be so as to preclude the trial court from

using Evidence Code section 352.' " (Shoemaker, at p. 450.) Indeed, our Supreme Court

has held that a trial court's "application of ordinary rules of evidence—including the rule

stated in Evidence Code section 352—generally does not infringe upon this right [to

present a defense]." (People v. Cornwell (2005) 37 Cal.4th 50, 82.) Accordingly,

because the proffered evidence had at best very little probative value but significant

potential to mislead the jury and confuse the issues, the trial court's exclusion of the

evidence did not violate O'Rourke's right to present his defense.

VI. Presentence Conduct Credits

O'Rourke committed the instant crime in August 2011. He was sentenced in June

2012. O'Rourke was awarded 453 days of credit for time served, consisting of 302 actual

custody days and 151 conduct credits.

O'Rourke contends the trial court miscalculated his presentence conduct credits.

Specifically, he contends the trial court should have calculated his conduct credits at two

different rates because he served time both before and after an October 2011, amendment

to section 4019, subdivision (h) became effective. Based on O'Rourke's calculation, he

should have received 275 days of conduct credit rather than 151 days. The Attorney

General contends the trial court erred by awarding O'Rourke one more day than he was

entitled.

Under section 4019, defendants are entitled to earn credit towards their sentences

by performing additional labor (§ 4019, subd. (b)) and for good behavior (§ 4019, subd.

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(c)). These credits are referred to as conduct credits. (People v. Duff (2010) 50 Cal.4th

787, 793.)

The Legislature has repeatedly amended section 4019 regarding the proper

calculation of conduct credits. When O'Rourke committed his offense in August 2011,

individuals who had been convicted of a serious or violent felony were entitled to two

days of conduct credits for every four days actually served. (See former § 4019, subd.

(f), amended by Stats. 2010, ch. 426, § 2, effective Sept. 28, 2010; former § 2933, subd.

(3)(1), amended by Stats. 2010, ch. 425, § 1; see People v. Rajanayagam (2012) 211

Cal.App.4th 42, 48-49 (Rajanayagam).) However, when O'Rourke was in local custody

awaiting sentencing, the Legislature amended section 4019 as part of the Realignment

Act and amended former section 2933. The amendments, which became operative on

October 1, 2011, eliminated the prior felony strike disqualification and increased the

amount of conduct credits earned by prisoners in local custody to one day of conduct

credit for each day spent in actual custody. (§ 4019, subds. (b), (c), (f), amended by

Stats. 2011, ch. 39, § 53; see also Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12X, § 35.)

In awarding O'Rourke 151 conduct credits, the trial court applied the former

version of section 4019 in effect at the time O'Rourke committed his crime. O'Rourke

contends the applicable conduct credits he accrued after the amendment's operative date

(October 1, 2011) should have been calculated using the more generous amended rate.

He argues the reduced conduct credit award for his time served after October 1, 2011

violates section 4019 and his equal protection rights.

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 With respect to the October 1, 2011 amendment, section 4019, subdivision (h)

states, "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." (Italics added.)

O'Rourke was confined for a crime committed in August 2011, which is before

October 1, 2011. Thus, the amended statute's new credit calculation rate is expressly

inapplicable to him.

Although recognizing that the first sentence of section 4019, subdivision (h) states

that the amendment "shall apply prospectively" and "shall apply to prisoners who are

confined . . . for a crime committed on or after October 1, 2011," O'Rourke nonetheless

contends he is entitled to take advantage of the amendment for local time served after

October 1, 2011, because the second sentence of section 4019, subdivision (h) refers to

days earned by a prisoner before the October 1 date. O'Rourke argues that to give

meaning to this second sentence, the statute must be interpreted as providing that days

earned by a prisoner after October 1, 2011 must be calculated at the rate established by

the new law, even if the crime was committed before the October 1 date.

Several courts have rejected the identical argument. (See, e.g., Rajanayagam,

supra, 211 Cal.App.4th 42; People v. Ellis (2012) 207 Cal.App.4th 1546.) The

Rajanayagam court explained, "[S]ubdivision (h)'s first sentence reflects the Legislature

intended the enhanced conduct credit provision to apply only to those defendants who

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committed their crimes on or after October 1, 2011. Subdivision (h)'s second sentence

does not extend the enhanced conduct credit provision to any other group, namely those

defendants who committed offenses before October 1, 2011, but are in local custody on

or after October 1, 2011. Instead, subdivision (h)'s second sentence attempts to clarify

that those defendants who committed an offense before October 1, 2011, are to earn

credit under the prior law. However inartful the language of subdivision (h), we read the

second sentence as reaffirming that defendants who committed their crimes before

October 1, 2011, still have the opportunity to earn conduct credits, just under prior law."

(Rajanayagam, at p. 52.) We agree with the court's reasoning and legislative analysis in

Rajanayagam. (Ibid.)

This interpretation and its application to O'Rourke does not deprive him of equal

protection of the law because, assuming he is similarly situated to inmates who

committed their offenses after the effective date of amended section 4019, the Legislature

nonetheless had a rational basis for treating the latter inmates differently. Amended

section 4019 was part of larger legislation whose purpose was to " 'to reduce recidivism

and improve public safety, while at the same time reducing corrections and related

criminal justice spending.' " (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) "[I]n

choosing October 1, 2011, as the effective date of [amended section 4019], 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,

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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." (Rajanayagam, at pp. 55-56.)

Lastly, we agree with the Attorney General that O'Rourke wrongly received one

extra conduct credit. "Under [former] section 4019, a defendant receives two days of

conduct credit for each four-day block of time served. 'The proper method of calculating

presentence custody credits is to divide by four the number of actual presentence days in

custody, discounting any remainder. That whole-number quotient is then multiplied by

two to arrive at the number of good/work credits. Those credits are then added to the

number of actual presentence days spent in custody, to arrive at the total number of

presentence custody credits. [Citations.]' [Citation.]" (People v. Kimbell (2008) 168

Cal.App.4th 904, 908-909.)

In this case, O'Rourke served 302 actual days in presentence custody. Using the

proper calculation, O'Rourke was entitled to 150 conduct credits rather than the 151

awarded by the trial court. Accordingly, the abstract of judgment must be amended to

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reflect the proper presentence custody credits of 452 days (302 actual custody days and

150 conduct credits).

DISPOSITION

The judgment is modified to reflect an award of 452 days of presentence custody

credit, comprised of 302 actual custody days and 150 days of conduct credit. The trial

court is directed to prepare an amended abstract of judgment and forward a copy to the

Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.

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