California Court of Appeal Aug 9, 2013 No. E056687Unpublished
Filed 8/9/13 P. v. Keshishyan 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056687
v. (Super.Ct.No. FSB1104564)
ARMAN KESHISHYAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
John L. Staley, 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, Senior Assistant Attorney General, and Stephanie Chow and
James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Arman Keshishyan bought merchandise at a Home Depot after
attaching fake bar code stickers that caused the merchandise to ring up at a lower price.
As a result, he was convicted of second degree burglary. (Pen. Code, § 459.) He
admitted one “strike” prior. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) He was
§ 482.) The Legislature specified that this amendment “shall apply prospectively and
shall apply to prisoners who are confined . . . for a crime committed on or after October 1,
2
2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the
rate required by the prior law.” (Pen. Code, § 4019, subd. (h), Stats. 2011, ch. 39, § 53.)1
The charged crime occurred on September 9, 2011. Defendant was sentenced on
July 13, 2012. He had spent 127 actual days in presentence custody. The trial court
awarded defendant presentence conduct credit on a two-for-four basis; thus, it awarded
him 62 days of presentence conduct credit.
B. Equal Protection Vis-á-Vis Persons Who Committed Crimes on or after
October 1, 2011.
Because defendant committed his crime before October 1, 2011, he is only entitled
to two-for-four credit. A person who committed the identical crime on or after October 1,
2011 would be entitled to two-for-two credit. Defendant contends that this is an equal
protection violation.
This argument has been rejected by the California Supreme Court, as well as in
every other published case that has considered it. (People v. Lara (2012) 54 Cal.4th 896,
906, fn. 9; People v. Rajanayagam (2012) 211 Cal.App.4th 42, 54-56; People v. Verba
(2012) 210 Cal.App.4th 991, 995-997; People v. Kennedy (2012) 209 Cal.App.4th 385,
395-399; People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-1552.)
1 This language originally referred to July 1, 2011, rather than October 1, 2011. (Pen. Code, former § 4019, subd. (h), Stats. 2011, ch. 15, § 482.) On June 30, 2011, however, before the amendment had yet come into effect, the Legislature amended it to refer to October 1, 2011. (Pen. Code, § 4019, subd. (h), Stats. 2011, ch. 39, § 53.)
3
In Lara, the defendant argued that the Legislature denied equal protection by
making the amended version of Penal Code section 4019 prospective only. (People v.
Lara, supra, 54 Cal.4th at p. 906, fn. 9.) The Supreme Court responded: “ . . . „“[T]he
obvious purpose”‟ of a law increasing conduct credits „“is to affect the behavior of
inmates by providing them with incentives to engage in productive work and maintain
good conduct while they are in prison.” [Citation.] “[T]his incentive purpose has no
meaning if an inmate is unaware of it. The very concept demands prospective
application.”‟ [Citation.] Accordingly, prisoners who serve their pretrial detention before
such a law‟s effective date, and those who serve their detention thereafter, are not
similarly situated with respect to the law‟s purpose. [Citation.]” (Ibid.)
We also adopt the reasoning stated in Verba:
“[A] statute‟s . . . operative date . . . is set by the Legislature in its discretion.
[Citation.] The exercise of that discretion is subject to rational basis review. [Citations.]”
(People v. Verba, supra, 210 Cal.App.4th at p. 996.)
“We can envision several legitimate reasons for making the increased level of
presentence conduct credit applicable only to those who commit their crimes on or after
October 1, 2011.
“ . . . [T]he Legislature‟s decision to increase the amount of presentence conduct a
defendant could earn „was intended to save the state money.‟ [Citation.] The Legislature
may have decided that the nature and scope of the fiscal emergency required granting an
increase in the level of conduct credits but only at a time after the effective date of the
4
amendments. A slightly delayed operative date, the Legislature may have believed, struck
a proper, rational balance between the state‟s fiscal concerns and its public safety
interests.
“A related justification for the prospective application of increased conduct credits
lies in the Legislature‟s right to control the risk of new legislation by limiting its
application. „Requiring the Legislature to apply retroactively any change in the law
benefitting criminal defendants imposes unnecessary additional burdens on the already
difficult task of fashioning a criminal justice system that protects the public and
rehabilitates criminals.‟ [Citation.]
“In addition, the Legislature could have rationally believed that by tying the
increased level of conduct credits to crimes committed on or after a future date, it was
preserving the deterrent effect of the criminal law as to those crimes committed before
that date. [Citations.] To reward an inmate with enhanced conduct credits, even for time
spent in presentence custody after the effective date of the statute, arguably weakens the
deterrent effect of the law as it stood when the inmate committed the crime. We see
nothing irrational or implausible in a legislative conclusion that individuals should be
punished in accordance with the sanctions and given the rewards in effect at the time they
committed their offense. Such a punishment scheme also avoids „sentencing delays and
other manipulations.‟ [Citation.]” (People v. Verba, supra, 210 Cal.App.4th at pp. 996-
997.)
5
Defendant relies on In re Kapperman (1974) 11 Cal.3d 542. However, as the court
stated in Kennedy:
“In Kapperman, the Supreme Court reviewed a provision (then new Penal Code
section 2900.5) that made actual custody credits prospective, applying only to persons
delivered to the Department of Corrections after the effective date of the legislation.
[Citation.] The court concluded that this limitation violated equal protection because
there was no legitimate purpose to be served by excluding those already sentenced, and
extended the benefits retroactively to those improperly excluded by the Legislature.
[Citation.] In our view, Kapperman is distinguishable from the instant case because it
addressed actual custody credits, not conduct credits. Conduct credits must be earned by
a defendant, whereas custody credits are constitutionally required and awarded
automatically on the basis of time served.
“Our Supreme Court recently confirmed, „[c]redit for time served is given without
regard to behavior, and thus does not entail the paradoxical consequences of applying a
statute intended to create incentives for good behavior. Kapperman does not hold or
suggest that prisoners serving time before and after the effective date of a statute
authorizing conduct credits are similarly situated.‟ (People v. Brown (2012) 54 Cal.4th
314, 330 . . . (Brown).)
“Although the Supreme Court in Brown was concerned with the January 2010
amendment to Penal Code section 4019 [citation], the reasoning of Brown applies with
equal force to the prospective-only application of the current version of section 4019.
6
“In Brown, the California Supreme Court expressly determined that Kapperman
does not support an equal protection argument, at least insofar as conduct credits are
concerned. [Citation.] In rejecting the defendant‟s argument that the January 2010
amendments to section 4019 should apply retroactively, the California Supreme Court
explained „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.‟ [Citation.]” (People v. Kennedy, supra, 209
Cal.App.4th at pp. 396-397.)
Defendant derides Brown as “flawed.” Flawed or not, we are required to follow it.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Equal Protection Vis-á-Vis Persons Who Were Able to Post Bail.
Once again, because defendant committed his crime before October 1, 2011, he is
entitled to presentence custody credit only on a two-for-four basis. Assume, however,
that defendant had been able to post bail. In that event, he would have had no
presentence custody and hence no presentence conduct credit. Thus, he would have had
to spend additional time in postsentence custody — i.e., in prison. Defendant notes that,
under Penal Code section 2933, subdivision (b), a prison inmate is entitled to
postsentence conduct credit on a “one-for-one” basis. Defendant contends that this is an
equal protection violation because it discriminates against the indigent.
7
In response, the People rely on a series of cases holding essentially that, unlike
presentence conduct credit, postsentence conduct credit serves a rehabilitative purpose
and presupposes the availability of work and educational training. (People v. Ramos
(1996) 50 Cal.App.4th 810, 821-824; People v. Heard (1993) 18 Cal.App.4th 1025, 1028-
1031; People v. Caddick (1984) 160 Cal.App.3d 46, 50-53; In re Cleaver (1984) 158
Cal.App.3d 770, 773-774 [Fourth Dist., Div. Two].) These cases were decided, however,
under a materially different version of Penal Code section 2933. (Pen. Code, former
received more conduct credit by failing to post bail. For this reason, too, he lacks
standing.
II
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI Acting P. J.
We concur:
KING J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the prospective application of Penal Code section 4019, which limits presentence conduct credits for crimes committed before October 1, 2011, does not violate equal protection. Furthermore, the defendant lacked standing to challenge the disparity between presentence and postsentence credits based on indigence.
Issues
Does the prospective application of Penal Code section 4019 violate equal protection?
Does the difference between presentence and postsentence conduct credit schemes violate equal protection for indigent defendants?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.”
“The reason he did not post bail was that he had an immigration hold, not that he was indigent; indigent or not, he would not have posted bail.”