Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Nos. BF120675A & RF005334A, Rodney Walker, Catharine D. Purcell, and Brian Stainfield, Judges.
Marsanne Weese, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Defendant Anthony Dewayne Cooper’s probation was revoked after he was arrested for being a felon in possession of ammunition. He now claims (1) he was denied his constitutional right to counsel because he was represented at the revocation hearing by an attorney who, in prior revocation proceedings in the same underlying cases, had been relieved from representing Cooper after the court granted Cooper’s Marsden motion; (2) there was insufficient evidence to support the court’s finding that he possessed ammunition; and (3) a new probation condition imposed by the court regarding persons with whom he must not associate should have included a knowledge requirement. We also consider the applicability of the January 2010 amendments to Penal Code section 4019, an issue we deem raised pursuant to our standing order filed on February 11, 2010.
People v. Marsden (1970) 2 Cal.3d 118.
We agree about the knowledge requirement and order a modification of the probation condition. The judgment is affirmed with this modification.
FACTUAL AND PROCEDURAL HISTORIES
On May 14, 2009, Deputy Public Defender Hank Mosier represented Cooper at a probation revocation hearing. Cooper was on probation in case No. BF120675A, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and case No. RF005334A, possessing Vicodin while on bail (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 12022.1). He was accused of violating both probations by committing a new offense charged in case No. RF005605A. The record does not include any document showing what new offense was charged in that case, but it is clear from the transcript that the purpose of the hearing was to determine whether Cooper possessed ammunition.
Subsequent statutory references are to the Penal Code unless noted otherwise.
Before the hearing, the prosecution informed the court that it would dismiss the new charge, forego the preliminary examination, and proceed on the allegation of ammunition possession only for purposes of showing a violation of probation. The prosecution presented its case through Kern County Deputy Probation Officer Brent Hughes and Kern County Sheriff’s Deputy Michael Scott.
Officer Hughes testified that on April 29, 2009, he went to conduct a routine probation compliance search at 214 West Wilson, which the probation department’s records showed was Cooper’s residence. It was a two- or three-bedroom single-family house. No one was home. Hughes and other officers entered through an unlocked back door that led into a cluttered room that appeared to be a bedroom. A section of drywall stood against a table. Hughes searched the room. On a table covered with objects, he found a glass vessel he called a chalice. Inside the vessel was a live.25-caliber bullet.
Hughes also found a title certificate from the California Department of Motor Vehicles in the room, in or on a headboard with other paperwork. The certificate bore the name Anthony D. Cooper, Sr., and the address 214 Wilson. Hughes also testified about a second document, a paper purporting to be a doctor’s recommendation for therapeutic cannabis made out to Anthony Dewayne Cooper. Hughes testified that this document was found in the house, but he did not say whether he found it himself or in what room it was located.
Deputy Scott only testified that he had known Cooper for a number of years and knew that he lived at 214 West Wilson.
Georganne Nelson testified on behalf of the defense. She said 214 West Wilson was her house and Cooper stayed there with her. Sometimes he was her boyfriend and sometimes her friend. The room in which the bullet was found-which Nelson called the back apartment-formerly was Cooper’s room. He had been sleeping in another room for several months because the drywall had been removed from the ceiling and the room was too cold to sleep in. During those several months, Cooper had been using the back apartment for storage. She described the glass vessel with the bullet in it as a vase. It belonged to her and had been on the table in the back apartment for several years. Nelson’s son lived in the room until he was 18, five years earlier. He sometimes returned to the house and had access to the back apartment. Nelson’s grandson and Cooper’s son also had access to the house and sometimes went in the back apartment.
Nelson had never seen Cooper with a bullet. On the day of the search, Nelson came home to find clothes removed from her dresser and went to a job site where Cooper had been working to ask him what had happened.
Several photographs of the inside of the house were admitted into evidence. One of these, defense exhibit H, showed the table with the vase. After all the witnesses had finished testifying, the prosecutor pointed out to the court that defense exhibit H also showed a CD case with the word “Tony” written on it sitting on the table next to the vase. Officer Hughes had earlier testified about this photograph, but he did not mention the CD case. Neither he nor any other witness was asked whether the CD case was found on the table next to the vase or had been moved there for the picture. Hughes did testify that in one of the other photographs, the bullet had been moved by the police so it could be seen better. In his appellate brief, Cooper does not deny that the picture showed a CD case labeled “Tony” beside the vase, but says his son is also named Anthony. The photographs themselves are not included in the record.
The court found that Cooper resided in or had regular access to the house. Since Nelson went to ask Cooper what happened on the day of the search, Cooper must have been staying at the house at that time. He also had regular access to the room where the bullet was found and “an interest in some repairs” (apparently a reference to the ceiling problem that had forced him to stop sleeping in the room).
“Perhaps more compelling” than the above evidence, the court said, was the evidence about the container marked “Tony.” The court’s mistaken impression was that this container was found inside the vase and the bullet was found inside the container. The court concluded that “Mr. Cooper both was aware of the round and placed it in the container with his name on it and put it in a vase where he was all the time.…” It determined that Cooper possessed the bullet and therefore was in violation of the terms of his probation. Probation was revoked.
The prosecutor corrected the court’s mistake about the container marked “Tony, ” saying the bullet was not found inside that container and that the container was merely found beside the vase containing the bullet. The court acknowledged the correction but did not change its ruling.
At the sentencing hearing on May 28, 2009, the court imposed and suspended a state prison term of four years eight months and imposed a new five-year term of felony probation. The conditions of the new probation included a year in county jail, of which 120 days must actually be served, after which Cooper would be permitted to transfer to a locked-down residential drug treatment program. Another condition was that Cooper “is not to associate with unrelated persons on probation or parole or known users, possessors or traffickers of controlled substances nor any gang members.”
Deputy Public Defender Mosier represented Cooper throughout these proceedings. It was not the first matter in which he was appointed Cooper’s attorney. Mosier appeared for Cooper at a previous probation revocation hearing on May 8, 2008. The underlying case numbers were the same as here, BF120675A and RF005334A. At that hearing, Cooper made a Marsden motion and requested that Daniel Tobias, another attorney who was present at the hearing, be appointed in place of Mosier. The court heard the motion and Cooper and Mosier both testified to a complete breakdown in their attorney-client relationship. The court granted the motion.
DISCUSSION
I. Appointment of previously removed counsel
Cooper claims that, although he made no new motion or objection in the trial court, he was denied his Sixth Amendment right to effective assistance of counsel when the court reappointed Mosier despite the court’s decision in the prior revocation matter to grant Cooper’s Marsden motion and relieve Mosier. Cooper’s claim appears to be based on two separate arguments: (1) When the court granted the Marsden motion in the prior revocation matter, it found there was a complete breakdown in the attorney-client relationship. There was no evidence that the relationship ever improved, so Cooper must have received ineffective assistance from Mosier in the current revocation proceeding even if nothing in the record shows that he did. Since there was already a Marsden hearing on the breakdown, there was no need for Cooper to tell the court he still objected to being represented by Mosier. (2) The record shows that Mosier failed to provide effective assistance in the current matter because he did not file a suppression motion. We will address both arguments.
A. Claim that preexisting breakdown in relationship must have continued
We conclude that, although the trial court’s decision to grant the Marsden motion was within its discretion, the record did not compel that decision and the court also could properly have denied the motion. Since the attorney substitution was not legally required for purposes of the first revocation hearing in May 2008, the court also was not required to avoid reappointing Mosier for the current hearing in May 2009.
At the Marsden hearing on May 8, 2008, Cooper told the court he wanted Mosier to file some motions that Mosier did not file, but Cooper could not remember the nature of these motions. He wanted another attorney in the public defender’s office to represent him, but the other attorney would not do so. He said he and Mosier had had a conflict before, but he would rather not say what it had been about. Cooper said Mosier told him he did not want to handle the case. He claimed Mosier had said he would take pictures at the scene, but never took them. He did not “feel comfortable” with Mosier and had “no confidence” in him, but could not give any additional explanation of these feelings. Cooper also believed Mosier had too much work and did not have time to prepare the case.
Mosier testified that he represented Cooper in a case three years earlier. He and Cooper “had some difficulties with that case” and he had “difficulty with Mr. Cooper meeting with me, coming in to sign motions and stuff.” “We have come to basically distrust each other, obviously, ” Mosier testified. He said he did not “feel comfortable” with Cooper and that there was “no trust” and “no confidence” between them. He was tempted to file his own motion to be relieved. Mosier also explained that he was the supervisor of the other attorney in the public defender’s office by whom Cooper wanted to be represented, and that he, Mosier, had judged it would be best to handle the matter himself because of the substantial prison time Cooper could receive. He decided not to take more pictures of the scene because someone else in his office had already taken adequate pictures. When asked by the court, Cooper and Mosier agreed that “there has been a complete breakdown in the attorney/client relationship.”
In granting the motion, the court stated:
“There are two bases for which the Marsden will be granted: One is whether the attorney has not properly represented the defendant, and the other is if there has been a complete breakdown in the relationship.
“I do not find that Mr. Mosier has failed to represent Mr. Cooper adequately. But I do, of course, find based upon the very clear statements by each party that there has been a complete breakdown in the relationship, attorney/client.
“And, therefore, it would be impossible for Mr. Mosier to effectively represent Mr. Cooper, not due to his-any work he has done or not done, but just due to the relationship breakdown. It’s the second reason in the Marsden.”
A trial court should grant a Marsden motion and appoint substitute counsel “when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel.…” (People v. Smith (1993) 6 Cal.4th 684, 696.) One basis for finding a substantial impairment is that the defendant and counsel “‘“‘have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.…’”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) This is the basis the court relied on here.
Although the court did not abuse its discretion in granting the motion on this basis, it also would not have abused its discretion if it had denied the motion. The court is not required to grant a Marsden motion unless it is “necessary” (People v. Smith, supra, 6 Cal.4th at p. 696). This does not mean, however, the court’s discretion has no scope in which to operate or that the court always abuses its discretion if it grants a motion it could properly have denied. The application of the “necessary” standard is committed to the court’s sound discretion, and a court abuses its discretion only if its decision is outside the bounds of reason. (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.)
Our view that the court was not required to grant the motion is based on the Supreme Court’s opinion in People v. Smith (2003) 30 Cal.4th 581. The record in that case was similar to the record here:
“Defendant stated a number of specific complaints about his attorney’s representation, and the court allowed the attorney to respond. Defendant also stated, ‘I think our relationship has broken down.’ He had no ‘trust’ or ‘confidence’ in counsel and complained that counsel did not follow his advice. The court asked the attorney to ponder whether the relationship had broken down such that he could no longer provide proper representation, but otherwise it found no basis on which to discharge counsel. It explained to defendant that his objections ‘boil down to differences of opinion as to tactics... which are the sole responsibility of’ counsel. Defense counsel then stated that, based on what defendant had said, he ‘can’t disagree’ that the ‘relationship [has] broken down to the extent that I can no longer competently represent [defendant].’” (People v. Smith, supra, 30 Cal.4th at p. 605.)
The trial court denied the defendant’s Marsden motion. (People v. Smith, supra, 30 Cal.4th at p. 605.) The Supreme Court found no abuse of discretion: “Defendant cites his claim that his relationship with counsel had ‘broken down’ and counsel’s statement that he could not disagree that the ‘relationship [has] broken down to the extent that I can no longer competently represent [defendant].’ However, counsel’s statement was based on what defendant had told the court and does not itself compel the court to grant new counsel.” (Id. at p. 606.) Cooper’s case is different in that Mosier stated reasons of his own for thinking the relationship had broken down. The Supreme Court went on, however:
“Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. (People v. Barnett [, supra, ] 17 Cal.4th 1044, 1086 [74 Cal.Rptr.2d 121, 954 P.2d 384].) Defendant did not show that defense counsel did anything to cause any breakdown in their relationship. ‘[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’ (People v. Smith[, supra, ] 6 Cal.4th 684, 696 [25 Cal.Rptr.2d 122, 863 P.2d 192].)” (People v. Smith, supra, 30 Cal.4th at p. 606.)
In this case, the court could rationally find that the Marsden standard was met. It could also find, within its discretion, that the standard was not met. Cooper explained that he had no confidence in Mosier because he did not agree with some of Mosier’s decisions. Mosier also was frustrated and wanted to be relieved. Upon this kind of record, the trial court was not compelled to find that the conflict was irreconcilable, just as the trial court was not compelled to do so in People v. Smith, supra, 30 Cal.4th 581.
It follows that the court could have denied the 2008 Marsden motion. We cannot say, therefore, that the court abused its discretion or erred in failing to appoint substitute counsel in the current matter without a motion a year later.
B. Claim that Mosier actually rendered ineffective assistance
If the attorney actually rendered ineffective assistance in the new matter, of course, that would be reversible error. Cooper essentially claims this is what happened when he says Mosier failed to file a suppression motion.
Mosier did not file a written motion to suppress in the current revocation proceedings, but he argued orally that the search was improper. His theory was that probation officers “have to have some reason to believe that the person might be in violation before they can just go out and search a probationer’s home.” He also suggested that there was a rule against conducting a search of a probationer’s home when the probationer is not present. The court took these claims under submission and later ruled that the search was a valid probation search. Cooper does not challenge that ruling in this appeal.
To show that Mosier’s failure to make the same claims in a written motion were ineffective assistance of counsel, Cooper would have to demonstrate that the motion would have been meritorious. (People v. Mattson (1990) 50 Cal.3d 826, 876 [“A claim of ineffective assistance of counsel based on a trial attorney’s failure to make a motion or objection must demonstrate … that the motion or objection would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to defendant would have resulted”].) He has not even attempted to make this showing. His brief contains no discussion of the merits of the motion. Therefore, he has not shown ineffective assistance of counsel.
Part of Cooper’s point may be that Mosier’s decision not to file a written motion shows that the communication breakdown persisted, since not filing motions was one of the reasons Cooper was unhappy with Mosier in the earlier matter. This is not persuasive. There is no indication in the record that Mosier acted against Cooper’s wishes with respect to the suppression motion in the current matter. In any event, the record of the breakdown in the relationship was not enough to compel the substitution of counsel in the first place, as we have said.
II. Sufficient evidence of probation violation
Cooper argues that the evidence presented at the revocation hearing was not sufficient to show that he possessed the bullet. “When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) The court was authorized to revoke Cooper’s probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise” that Cooper violated the terms of his probation. (§ 1203.2, subd. (a).) The prosecution was required to prove the violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-441.)
To show that Cooper was a felon in possession of ammunition (§ 12316, subd. (b)(1)), the prosecution had to prove he was a felon and had ammunition under his dominion and control with knowledge of is presence. (People v. Cordova (1979) 97 Cal.App.3d 665, 669.) It is not disputed that Cooper was a felon, so the only question is whether he had dominion and control of the bullet and knowledge of its presence.
More than one person can have possession of contraband. Further, evidence that people other than the accused also had dominion and control over the contraband does not defeat the prosecution’s proof. (People v. Williams (2009) 170 Cal.App.4th 587, 625.) There was ample evidence that Cooper was among the people who had dominion and control over the contents of the back apartment and that, in fact, it was he who had most recently used the back apartment as his bedroom. He lived in the house and there was no indication that he was somehow precluded from entering the back apartment; because of the damaged ceiling, it had no other occupant after Cooper stopped sleeping there; and his DMV title certificate and a CD case with his name on it were found inside. The name on the CD case was the same as his son’s name, but since Cooper lived in the house and the room was formerly his, it is more likely that the case belonged to Cooper.
There was substantial circumstantial evidence that Cooper had knowledge of the bullet as well. The vase containing it had been sitting out on the table top for years. Although the table top was cluttered, there was no indication that the vase or the bullet was hidden or buried. Regardless of whether the bullet had been placed in the vase recently or long ago, it is probable that a user of the room would have seen it.
The cases Cooper relies on, People v. Antista (1954) 129 Cal.App.2d 47 (Antista), People v. Savage (1954) 128 Cal.App.2d 123 (Savage), and People v. Barnett (1953) 118 Cal.App.2d 336 (Barnett), are distinguishable. In Antista, police searched a cupboard in Antista’s apartment and found an ashtray containing butts of marijuana cigarettes and a wax paper bag containing marijuana. Police also searched an unused bedroom or storeroom and found a Band-Aid box and a broken radio containing marijuana. Antista had been allowing codefendant Rivers to sleep at the apartment for about 10 days. Rivers was lying on the couch with a friend when the police arrived. Antista arrived after the drugs were found. Others had access to the apartment; Antista left his key under the doormat so his friends could come in. Antista had no record of involvement with drugs, but Rivers had been convicted of using heroin. (Antista, supra, at pp. 48-49.)
The Court of Appeal reversed Antista’s conviction. It concluded that, given others’ access to the apartment, Rivers’ use of it immediately before the search, and the fact that the marijuana was hidden from sight, there was insufficient evidence that Antista had knowledge of it. (Antista, supra, 129 Cal.App.2d at pp. 52-53.) The court stated a narrow holding: “We hold that if it is established that one accused of possession returned to his apartment, or to his automobile, and found it occupied by a user of narcotics, and a narcotic was found in it, and if there is no evidence that it was there before that time, the fact of its presence, without any other fact or circumstance of an incriminating nature, is legally insufficient to prove a charge of possession.” (Id. at p. 53.) Cooper’s case is not similar. The bullet was not hidden from sight; there was no evidence that others with access had a history of possessing bullets; and there were no surrounding circumstances suggesting that others brought the contraband during Cooper’s absence and he merely returned to find it and them there.
In Savage, Savage was arrested along with six guests during a party at his apartment. Police found a marijuana cigarette on the floor and arrested everyone. Two days later a cleaning woman reported that she found seven marijuana cigarettes stuffed in a davenport on which two or three of the guests had been sitting when the police raided the party. The Court of Appeal reversed Savage’s conviction for possession of marijuana, stating that there was no evidence he had knowledge of the drugs. The marijuana cigarette on the floor “was cold and evidently had been used long prior to its discovery.” It was speculative to say Savage put the drugs in the davenport or knew about them, since it was equally reasonable to think one of the other guests had put them there without Savage’s knowledge. “The evidence showed clearly that defendant had never used narcotics” but that some of his party guests had. (Savage, supra, 128 Cal.App.2d at pp. 124-125.)
The circumstances of Cooper’s case are, again, not similar. Unlike the drugs in the davenport, the bullet was not concealed from sight. Cooper was not arrested at a party to which any of the guests could have brought the contraband and would have had reason to conceal it in the apartment. Further, there were other grounds for reversal in Savage that are not present here. For instance, when the jury told the judge it was split 11 to 1, the judge said the jury would have to deliberate until midnight and if it still had not reached a verdict, it would be sequestered in a hotel for the night and resume in the morning. The jury returned its verdict at 11:32 p.m. (Savage, supra, 128 Cal.App.2d at p. 126.) Also, before trial, the prosecutor had suggested to the judge that the case should be dismissed for insufficient evidence, but the judge loudly rejected this suggestion while several jurors were in the courtroom and ordered the prosecutor to be ready for trial the next business day. (Id. at pp. 126-127.)
In Barnett, Barnett was convicted of possessing heroin found by police in a closet in the hallway outside his apartment. The closet had not been rented to Barnett, he did not have permission to use it, and its lock was inoperative, so it could be opened with a screwdriver or a dime. (Barnett, supra, 118 Cal.App.2d at p. 338.) The Court of Appeal held there was insufficient evidence of Barnett’s knowledge of the heroin’s presence. (Id. at pp. 339-340.) Once again, Cooper’s case is not similar. The bullet was in his house, in a room formerly occupied by and still accessible to him, in a vase on a table top in plain sight.
III. Modification of probation condition
Cooper argues that the probation condition prohibiting him to associate with certain people should have included a knowledge requirement. The People agree and concur in Cooper’s request that we modify the condition.
A probation condition that prohibits the defendant from associating with certain categories of people is unconstitutionally vague unless it includes a provision that the defendant must know that the people he is associating with are in those categories. This was the Supreme Court’s holding in In re Sheena K. (2007) 40 Cal.4th 875, 890-891, in which a requirement that the probationer “not associate with anyone ‘disapproved of by probation’” was found to be invalid because the probationer could violate it unwittingly.
We agree with the parties that the no-association condition in this case has the same deficiency. In In re Sheena K., supra, 40 Cal.4th at page 892, the Supreme Court stated that a modification of the condition by the appellate court is the proper remedy. We will order the condition modified to state that Cooper “is not knowingly to associate with unrelated persons on probation or parole or known users, possessors, or traffickers of controlled substances nor any gang members.”
IV. Section 4019
Cooper was sentenced on May 28, 2009. He received credit for time served as well as credit for good conduct and work time. Based on our standing order filed February 11, 2010, we deem raised the following two issues: (1) whether under section 4019, as amended January 25, 2010, Cooper is entitled to retroactive recalculation of presentence credits for good conduct and work time, and (2) whether applying the amendment to section 4019 prospectively only violates equal protection principles. We conclude that Cooper is not entitled to additional credit under the amendment to section 4019 and that this result does not violate equal protection principles.
All further references to “the amendment to section 4019” refer to the version that went into effect January 25, 2010.
Our Supreme Court has granted review on the question of whether the amendment operates retroactively in People v. Brown, review granted June 9, 2010, S181963.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional “conduct credit” for willingness to work and good behavior. (§ 4019, subds. (b) & (c); see People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue in-custody credit of four days for every two days spent in actual custody.
This amendment grants presentence credit more generously than it had been granted previously. The Legislature has since amended section 4019 again, effective September 28, 2010, expressly designating the amendment prospective only. (Stats. 2010, ch. 426, § 2.) This latest amendment restores the credit scheme that existed prior to the amendment of January 25, 2010.
Under section 3, it is presumed that a statute operates prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by clear and compelling implication from any other factors, that it intended the amendment to operate retroactively. Further, the rule in In re Estrada (1965) 63 Cal.2d 740 does not apply here for the reasons stated at greater length in our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. The Estrada court held that a statute intended by the Legislature to mitigate punishment applies retroactively. The amendment to section 4019, however, was not intended to mitigate punishment. Instead, its purpose was to reduce incarceration costs by providing criminal defendants an opportunity to increase the rate at which they accrue conduct credit. Therefore, the amendment to section 4019 applies prospectively only.
We also conclude that prospective-only application of the amendment to section 4019 does not violate Cooper’s equal protection rights. Prospective-only application of the amendment results in defendants sentenced prior to the effective date of the amendment being treated differently from defendants sentenced after the effective date. To withstand an equal protection challenge, this distinction need only bear “a rational relationship to a legitimate state purpose.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) We conclude prospective-only application passes this rational-basis test. A principal purpose of section 4019 is to encourage good conduct. (People v. Brown (2004) 33 Cal.4th 382, 405 [“‘The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges’”].) Defendants who were sentenced prior to the effective date of the amendment cannot be further motivated to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for applying the amendment prospectively only.
For these reasons, the amendment to section 4019 applies prospectively only and Cooper is not entitled to receive additional credits.
DISPOSITION
The conditions of Cooper’s probation are modified as specified in part III of the Discussion above. The judgment is affirmed as modified.
WE CONCUR: Levy, J., Cornell, J.