The opinion
Filed 1/25/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048315
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 19CR007735)
v.
ERNESTO RODRIGUEZ ORELLANA,
Defendant and Appellant.
Ernesto Rodriguez Orellana was charged with criminal threats. The trial court
found a doubt as to Orellana’s competency and suspended criminal proceedings.
Orellana was treated at Patton State Hospital. He regained competence following
treatment, and the parties entered into a plea agreement in which Orellana agreed to serve
a prison term of two years. The trial court subsequently imposed a sentence consistent
with the terms of the plea agreement.
On appeal, Orellana contends the trial court’s failure at sentencing to award him
conduct credit for the period of time in which he was receiving treatment for restoration
to competence in the state hospital violates Senate Bill No. 317 (2021–2022 Reg. Sess.)
(Senate Bill 317). Orellana maintains that Senate Bill 317, which was enacted in October
2021 while his appeal was pending in this court and provides for such credits,
retroactively applies to his case. He further argues that denial of conduct credits violates
his right to equal protection of the law. The Attorney General asserts Orellana waived his
appellate rights in the plea agreement, Senate Bill 317 does not apply, and he is not
entitled to conduct credit based on principles of equal protection.
As explained below, we conclude Orellana’s appellate waiver is invalid and does
not bar this appeal. Nevertheless, based on the California Supreme Court’s decision in
People v. Brown (2012) 54 Cal.4th 314 (Brown), we decide that Senate Bill 317 does not
apply retroactively and the trial court’s denial of conduct credit for the time Orellana was
committed to the state hospital does not violate equal protection principles.
Consequently, we affirm the judgment.
I. PROCEDURAL BACKGROUND1
In July 2019, the Monterey County District Attorney charged Orellana by felony
complaint with two counts of criminal threats (Pen. Code, § 422, subd. (a)2; counts 1 & 2)
and one misdemeanor count of exhibiting a deadly weapon (§ 417, subd. (a)(1); count 3)
and alleged a prior prison term enhancement (former § 667.5, subd. (b)) as to the felony
conviction. Orellana pleaded not guilty and denied the prior prison term allegation.
On July 30, 2019, after Orellana’s arraignment, defense counsel expressed doubt
as to Orellana’s competence under section 1368. The trial court found that a doubt had
arisen as to Orellana’s mental competence, referred Orellana for examination, and
suspended the proceedings. The court ordered that Orellana remain in custody.
Pursuant to section 1370, Orellana was committed to the state hospital on August
27, 2019, and admitted there on December 6, 2019. On January 27, 2020, the
Department of State Hospitals (DSH) filed a certificate of restoration to competence
pursuant to section 1372 and, on January 30, 2020, the trial court held a hearing on
Orellana’s restoration. The trial court found Orellana’s competence restored and
reinstated the criminal proceedings. The court ordered Orellana to remain in custody
without bail. Whether Orellana should receive conduct credits for the 48 days in which
1
The facts of Orellana’s offenses are not relevant to the issues in this appeal.
2
Unspecified statutory references are to the Penal Code.
2
he was being treated for restoration to competence at the state hospital is the central
question at issue in this appeal.3
On May 26, 2020, the parties reached a negotiated disposition. Under the plea
agreement, which was not reduced to writing, the prosecution moved to orally amend the
complaint to add charges for felony false imprisonment (§ 236; count 4) and
misdemeanor criminal threats (§ 422, subd. (a); count 5). Orellana agreed to plead no
contest to the two new charges in exchange for a prison sentence of two years on the
felony conviction, to be served in county jail, a concurrent county jail term of no more
than 180 days on the misdemeanor conviction, and a dismissal of the remaining charges
and prior prison term enhancement allegation. The trial court granted the oral motion to
amend the complaint. After reviewing with Orellana the potential immigration
consequences of his plea and confirming his waiver of constitutional rights to a
preliminary hearing, jury trial, confrontation and cross-examination of witnesses, and
appeal, as well as the factual basis for the pleas, the trial court accepted Orellana’s pleas
of no contest to counts 4 and 5. The court found that Orellana had knowingly, freely,
voluntarily, and intelligently waived his rights.
After entry of the plea and prior to sentencing, defense counsel filed a motion
requesting that the trial court grant conduct credits for the time Orellana spent in
treatment to restore competence at the state hospital, or alternatively for the time spent in
state hospital custody once competent but before being transported. Orellana’s motion
asserted that equal protection principles required the court to award conduct credits under
3
The record reflects that Orellana was transported to the state hospital on
December 5, 2019, and transported back from the hospital on January 29, 2020, for a
total of 56 days at the state hospital. As noted post, at sentencing, the trial court granted
Orellana conduct credit from the date he was certified as competent (January 23, 2020,
though the certificate was filed on January 27, 2020) until transportation back from the
hospital. Accordingly, on appeal, Orellana contends he is entitled to 48 days of conduct
credit, representing the time he spent undergoing treatment to restore his competence,
namely, from December 6, 2019, through January 23, 2020.
3
section 4019, subdivision (a)(8),4 because persons receiving competency treatment in
state hospital programs were similarly situated to those receiving treatment in county jail
competency programs, and no compelling interest justified disparate treatment. The
prosecution filed written opposition to the motion, arguing that the plain language of
section 4019, subdivision (a)(8) entitles only defendants in county jail treatment facilities
to conduct credit. The prosecution asserted that persons undergoing competency
treatment as patients in a state hospital setting were not similarly situated to inmates
undergoing treatment in the penal or correctional setting of county jail facilities,
justifying the differential access to conduct credit. The prosecution nevertheless agreed
that Orellana was entitled to conduct credits for the interim period following his
restoration to competence and before his transportation back to the county jail.
The trial court heard argument on the motion for conduct credits at the sentencing
hearing on July 16, 2020. The court rejected Orellana’s equal protection argument but
agreed that he was statutorily entitled to conduct credits from the date he was certified as
restored to competence. The court sentenced Orellana in accordance with the plea
agreement. It imposed the two-year prison term to be served in county jail (§ 1170, subd.
(h)) and dismissed the remaining charges. The court awarded Orellana 367 days of actual
4
Section 4019 allows specified categories of defendants held in local custody or
other settings the opportunity to earn presentence credit, commonly referred to as
“conduct credit,” against their sentences for good behavior and work performed.
At the time of Orellana’s sentencing in 2020, and as relevant to his motion for
conduct credits, section 4019, subdivision (a)(8) authorized conduct credits for persons
undergoing competency treatment while “confined in or committed to a county jail
treatment facility . . . .” This provision of section 4019 was enacted in 2018 as part of
Senate Bill No. 1187 (2017-2018 Reg. Sess.). Later, during the pendency of this appeal
and with the recent passage of Senate Bill 317, the Legislature amended section 4019,
subdivision (a)(8) to apply to persons undergoing competency treatment while “confined
in or committed to a state hospital or other mental health treatment facility, or to a county
jail treatment facility . . . .” We examine the history of these conduct credit provisions
and their application to Orellana’s case in our discussion, post.
4
custody credit and 318 days of conduct credit, for a total of 685 days of credit for time
served.
Orellana filed a timely notice of appeal based on the sentence or other matters
occurring after the plea that do not affect the validity of the plea (Cal. Rules of Court,
rule 8.304(b)), noting specifically the conduct credits issue and appellate waiver. The
trial court granted a certificate of probable cause.
II. DISCUSSION
Orellana contends that Senate Bill 317 applies to his matter and the equal
protection clauses of the state and federal constitutions entitle him to an additional 48
days of conduct credit for his treatment time in the state hospital. Before addressing
these questions, we examine the effect of the oral appellate waiver, as it is potentially
dispositive.
A. Appellate Waiver
The Attorney General asserts that Orellana’s claim is not reviewable because he
waived the right to appeal when he pleaded no contest to the felony false imprisonment
and misdemeanor criminal threat charges. Orellana contends the appeal is cognizable.
1. Legal Principles and Standard of Review
It is well settled that an express waiver of the right to appeal in a negotiated plea
agreement is valid and enforceable, provided that the waiver is knowing, intelligent, and
voluntary. (People v. Cisneros-Ramirez (2018) 29 Cal.App.5th 393, 399–400 (Cisneros-
Ramirez); see People v. Castellanos (2020) 51 Cal.App.5th 267, 278 (conc. & dis. opn. of
Danner, J.) (Castellanos); People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas).)
“Just as a defendant may affirmatively waive constitutional rights to a jury trial, to
confront and cross-examine witnesses, to the privilege against self-incrimination, and to
counsel as a consequence of a negotiated plea agreement, so also may a defendant waive
the right to appeal as part of the agreement.” (People v. Panizzon (1996) 13 Cal.4th 68,
80 (Panizzon).) The form of the waiver, which “may be manifested either orally or in
5
writing” (ibid.) is not determinative. Rather, a valid and enforceable waiver of the right
to appeal depends on the defendant having entered into the waiver knowingly,
intelligently, and voluntarily. (Ibid.)
Deciding whether there has been a knowing, intelligent, and voluntary waiver
requires courts to examine “ ‘the particular facts and circumstances surrounding that case,
including the background, experience, and the conduct of the accused.’ ” (Vargas, supra,
13 Cal.App.4th at p. 1662, quoting Johnson v. Zerbst (1938) 304 U.S. 458, 464.) The
waiver’s validity “is to be ascertained by reference to the totality of the relevant
circumstances.” (People v. Sivongxxay (2017) 3 Cal.5th 151, 189, fn. 18 (Sivongxxay).)
Indeed, “ ‘the law ordinarily considers a waiver knowing, intelligent, and sufficiently
aware if the defendant fully underst[ood] the nature of the right and how it would likely
apply in general in the circumstances—even though the defendant may not [have]
know[n] the specific detailed consequences of invoking it.’ ” (Ibid., quoting United
States v. Ruiz (2002) 536 U.S. 622, 629.) A valid waiver thus presupposes the
“intelligent, and intentional relinquishment of a known right or privilege.” (Castellanos,
supra, 51 Cal.App.5th at p. 272; see Edwards v. Arizona (1981) 451 U.S. 477, 482;
Johnson v. Zerbst, at p. 464; City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108.)
“The voluntariness of a waiver is a question of law which appellate courts review
de novo.” (Panizzon, supra, 13 Cal.4th at p. 80.) The burden is on the party claiming the
existence of the waiver to prove it by evidence that does not leave the matter to
speculation. (Vargas, supra, 13 Cal.App.4th at p. 1662; Castellanos, supra, 51
Cal.App.5th at p. 272.)
2. Forfeiture
We dispose at the outset with Orellana’s assertion that the People in this case
forfeited any argument on appeal concerning the appellate waiver by failing to oppose
Orellana’s request for conduct credit in the trial court on that basis. Orellana argues that
because the prosecution contested his motion for conduct credit on the merits without
6
reference to the appellate waiver, it is precluded from raising the claim on appeal. While
it is true that failure to raise an objection in the trial court can result in forfeiture of that
claim on appeal, the doctrine is not absolute and we are “generally not prohibited from
reaching a question that has not been preserved for review by a party.” (People v.
Williams (1998) 17 Cal.4th 148, 161, fn. 6.) As discussed in detail below, the oral
appellate waiver purported to waive Orellana’s “right to appeal the conviction, judgment
and any other orders previously issued” by the trial court. Orellana made his equal
protection claim in support of his request for conduct credit in a written motion filed
before his sentencing hearing; at that time, the court had not imposed sentence or entered
judgment. Accordingly, the prosecution had no basis at that time to assert waiver as a
defense to Orellana’s request for conduct credit, and therefore the forfeiture doctrine does
not apply.
3. Plea Agreement Terms
We next consider Orellana’s argument that his putative waiver of appellate rights
was not valid or enforceable. Whether the appellate waiver extends to the issue on appeal
and represents a bargained-for term of the negotiated plea agreement requires us to
examine the terms of the plea agreement and waiver. As noted ante, we look to the
totality of the circumstances pertaining to any waiver of the statutory right to appeal.
(Sivongxxay, supra, 3 Cal.5th at p. 189, fn. 18.)
As there was no written plea agreement nor signed waivers, the record of the plea
agreement and related waivers is contained entirely in the transcript of the plea hearing
on May 26, 2020.
At the hearing, the trial court first obtained the parties’ consent to remote
appearances by videoconference (due to the COVID-19 pandemic) and reviewed the
proposed amendment to the charges and the agreed-upon disposition with Orellana and
counsel for both sides. The trial court set forth the parties’ agreement as follows. “[M]y
understanding is that, Mr. Orellana, you’re prepared to enter no contest pleas to the newly
7
added Count 4 and Count 5. The understanding would be that you’re entering the no-
contest pleas in return for a stipulated or agreed-upon sentence of two years, the middle
term, as to Count 4. That is a sentence that you would serve in the county jail, pursuant
to Penal Code Section 1170[, subd.] (h). [¶] As to Count 5, the understanding is that you
would receive no more than 180 days to be served locally in the county jail, and that’s
[con]current with the sentence imposed in Count 4. [¶] The further understanding is that
as a result of your no contest pleas, the People are going to dismiss the case[] ending in
298 . . . . [¶] Is that the understanding that was reached here between the parties, Ms.
Schwartz [prosecutor]?”
The prosecutor and defense counsel each confirmed that the trial court’s
understanding as articulated on the record was correct. The trial court then addressed
Orellana in the following colloquy. “THE COURT: Mr. Orellana, is that your
understanding of what’s going to happen with your cases? [¶] THE DEFENDANT:
Yes. [¶] THE COURT: And are those the terms and conditions upon which you’re
willing to plead no contest to? [¶] THE DEFENDANT: [¶] Yes. [¶] THE COURT:
Has anyone made any promises to you other than what was just said in open court? [¶]
THE DEFENDANT: No.” During this exchange with Orellana, the court did not
reference as a term of the plea agreement any appellate waiver.
After ascertaining that Orellana’s change of plea was voluntary and that he
understood the potential immigration consequences, the trial court conducted voir dire
regarding Orellana’s waiver of constitutional rights. That colloquy, which we examine
more closely in our discussion of the validity of the appellate waiver, post, included the
following exchange. “THE COURT: It’s my understanding that you’re giving up the
right to appeal the conviction, judgment and any other orders previously issued by this
Court. Is that correct? [¶] THE DEFENDANT: Yes. [¶] THE COURT: Do you give
up your federal and state right to appeal in this matter? THE DEFENDANT: Yes.”
8
The trial court then summarized the maximum possible jail terms for counts 4 and
5, to which Orellana had agreed to plead, restitution, and the right to withdraw the plea at
sentencing if the sentencing judge did not agree with the terms. The court asked
Orellana, “Do you have any questions that you would like to ask your attorney or the
Court before you enter your plea?” Orellana responded, “No, that’s fine the way it is,
that’s perfect.” After giving counsel for both sides an opportunity to place on the record
“any other admonitions or consequences applicable,” the court took Orellana’s pleas of
no contest to counts 4 and 5. Orellana’s counsel joined in the waiver and the pleas and
stated the factual basis for the pleas.
4. Validity of the Appellate Waiver
In order for us to consider on appeal his challenge to the trial court’s calculation of
credits, Orellana must demonstrate either that (1) the issue on appeal concerning conduct
credit falls outside the scope of the appellate waiver, or (2) the waiver is invalid. (See
People v. Becerra (2019) 32 Cal.App.5th 178, 192 (Becerra).) For the reasons explained
below, we conclude that under the particular facts of this case the waiver is invalid and
does not bar our consideration of Orellana’s substantive claims on appeal.
In analyzing validity, we take guidance from our Supreme Court’s decision in
Panizzon, supra, 13 Cal.4th 68. Panizzon involved a defendant’s attempt to appeal a
sentence that was agreed to as part of a negotiated plea deal. The high court interpreted
the defendant’s challenge to his agreed-upon sentence to be an attack on the validity of
the plea agreement and held that the claim was not reviewable absent a certificate of
probable cause.5 (Panizzon, at pp. 78–79.) The court explained that even if it were to
assume the defendant’s claim did not require a certificate of probable cause, the claim on
5
Under section 1237.5 and California Rules of Court, rule 8.304(b)(1), (4), the
reviewing court will not consider any issue on appeal affecting the validity of a no
contest plea unless the defendant has obtained a certificate of probable cause. (See
People v. Espinoza (2018) 22 Cal.App.5th 794, 803.)
9
appeal would not be reviewable because the terms of the waiver of appellate rights
“specifically extended to any right to appeal” the negotiated sentence. (Id. at p. 86.) The
Supreme Court rejected the defendant’s argument that he had not been properly
admonished regarding his waiver of the right to appeal, reasoning that even without a
specific admonishment by the trial court, the written waiver and in-court-questioning of
the defendant and counsel raised no doubts that the defendant understood his rights and
the consequences of his no contest plea. (Id. at pp. 83–84.)
Courts since Panizzon have operated with the understanding that “[a]bsent
something in the record raising a doubt [the] defendant understood and knowingly
waived his appeal rights, a written waiver of those rights by [the] defendant, coupled with
[the] defendant’s and his attorney’s attestations to the court that [the] defendant
understood and voluntarily relinquished each right, is sufficient to establish a defendant’s
waiver of his right to appeal was knowingly, voluntarily, and intelligently made.”
(Cisneros-Ramirez, supra, 29 Cal.App.5th at p. 400, citing Panizzon, supra, 13 Cal.4th at
pp. 83–84.)
Orellana submits that this case raises such a doubt because the record shows the
appellate waiver was not part of the agreement negotiated by the parties but instead was a
separate condition unilaterally imposed by the trial court. He points out that in reviewing
the agreed-upon terms of the plea change with the parties and verifying “those [are] the
terms and conditions upon which you’re willing to plead no contest,” there was no
mention of an appellate waiver. Only later in the proceeding did the court raise the
waiver of appellate rights and state its “understanding” that Orellana was agreeing to give
up those rights. Orellana likens this appellate waiver to “judicial plea bargaining” and
argues that the court effectively imposed a condition on the defendant apart from the
“give and take” agreed to by the parties during plea negotiations.
The Attorney General disputes this characterization and argues the record
confirms the validity of the appellate waiver. According to the Attorney General, the trial
10
court’s omission of the appellate waiver from its recitation of the terms and conditions of
the plea agreement was “obviously an oversight,” and if the trial court had sought to
impose a term of waiver that was not part of the plea-bargained agreement between the
defense and the prosecution, Orellana (or at least his counsel) would have objected. The
Attorney General notes that after the trial court articulated its understanding of the
appellate waiver on the record, Orellana confirmed it was correct, and furthermore that
neither Orellana nor his defense counsel disagreed with the waiver terms when the trial
court invited questions or additional admonitions.
The parties appear to agree that to be valid, Orellana’s waiver of the right to
appeal must be a term of the bargained-for agreement between the prosecution and the
defense. Indeed, “[a]ppellate waivers contained within plea agreements are generally
enforceable.” (Becerra, supra, 32 Cal.App.5th at p. 186, italics added; see Panizzon,
supra, 13 Cal.4th at p. 80 [reiterating that defendants may waive the right to appeal “as a
consequence of a negotiated plea agreement”].) The bargained-for requirement relates
closely to the predicate that a valid waiver comprises the “intelligent, and intentional
relinquishment of a known right or privilege.” (Castellanos, supra, 51 Cal.App.5th at
p. 272.)
The analysis in Panizzon is illustrative. In ascertaining whether the defendant’s
waiver of the right to appeal was valid, the Supreme Court reviewed the record to
determine whether the defendant had been properly informed of his rights and the
consequences of his no contest plea. (Panizzon, supra, 13 Cal.4th at p. 83.) The court
noted that even in the absence of an admonishment by the trial court regarding the right
to appeal, “the waiver and plea agreement signed by [the] defendant and his attorney
contains defendant’s representations . . . that he had discussed with his attorney both the
paragraph specifying the sentence to be imposed and the paragraph containing the waiver
of the right to appeal the sentence, and that he fully understood all matters set forth in the
document without exception.” (Id. at p. 84.) The court additionally noted that the written
11
waiver and plea agreement reflected the defense counsel’s representation “that he
personally went over the document with [the] defendant and concurred in [his] decision
to waive the rights specified in the document,” as well as the fact that at the in-court
hearing, the defendant and his attorney both “attested to the document’s valid execution”
and responded to the court’s questions, raising “no doubts as to [the] defendant’s
understanding of his rights and the consequences of his no contest plea.” (Ibid.) Our
high court viewed this record as demonstrating an enforceable waiver of the right to
appeal the sentence. (Ibid.)
The plea agreement and waiver of the defendant’s right to appeal in Panizzon
included several safeguards that—by comparison—are absent from the record in this
case. Most notably, we proceed in our independent review of the record without the
benefit of any written plea agreement or signed appellate waiver. The trial court’s oral
statement summarizing its understanding of the appellate waiver and obtaining Orellana’s
on-the-record assent thereto represents the totality of information regarding any
discussion of or negotiations to include a waiver of the right to appeal in the plea
agreement. The oral appellate waiver stands in contrast with the extensive written
documentation and confirmatory on-the-record verification of the waiver in Panizzon,
supra, 13 Cal.4th at page 84. Like Panizzon, other reported cases involving a valid and
enforceable appellate waiver present a more robust record showing the waiver to be part
of the plea agreement. (See, e.g., Becerra, supra, 32 Cal.App.5th at p. 188 [noting the
valid and enforceable appellate waiver was part of the defendant’s written plea
agreement]; Cisneros-Ramirez, supra, 29 Cal.App.5th at p. 401 [noting the defendant’s
appellate waivers, which he initialed and signed as part of the guilty plea form, were
“articulated in terms that [we]re neither vague nor limited”].)
Although a written plea agreement is not required to establish an enforceable
waiver, its absence under the circumstances of this case undermines any conclusion that
the appellate waiver was indeed a fully informed, bargained-for term of the plea
12
agreement. We decline to draw that inference where, as here, the support in the record
for the waiver of the right to appeal is limited to a short, oral colloquy between the
defendant and the judge after the judge had already set forth the “terms and conditions
upon which [Orellana was] willing to plead no contest to.” While it is true that the trial
court thereafter invited Orellana to ask questions or state any concerns to the trial court or
his counsel, Orellana’s failure to do so does not affirmatively demonstrate a knowing and
intelligent relinquishment of the right.
In making this determination, we are mindful that the burden is on the party
seeking to enforce the waiver to prove it was clearly established by evidence in the
record. (Castellanos, supra, 51 Cal.App.5th at p. 272.) “[D]oubtful cases will be
resolved against a waiver.” (Vargas, supra, 13 Cal.App.4th at p. 1662.) We conclude
that the record in this case falls short of establishing the validity and enforceability of
Orellana’s appellate waiver.6 We therefore consider his appeal from the trial court’s
sentencing order rejecting his equal protection claim to additional conduct credit.
B. Conduct Credit
As he did in the trial court, Orellana contends he is entitled to an award of conduct
credit under section 4019 for the time he spent undergoing treatment for restoration to
competence in the state hospital both as a matter of statutory and equal protection
principles. Orellana bases his arguments on Senate Bill No. 1187 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1008, §§ 1–6) (Senate Bill 1187) and Senate Bill 317, which extended
the conduct credit provisions of section 4019 to pretrial detainees undergoing treatment
for restoration to competence. Before examining the merits of these issues, we set out the
statutory background.
6
Having decided the appellate waiver is not enforceable, we need not address
Orellana’s alternative argument that the miscalculation of conduct credit constitutes an
“unauthorized sentence” that may be corrected at any time, notwithstanding the appellate
waiver.
13
1. Conduct Credit Eligibility During Treatment for Incompetence
Section 4019 provides defendants held in local custody or other specified settings
prior to sentencing “the opportunity to earn ‘conduct credit’ against their sentences for
good behavior. Conduct credits encourage prisoners to conform to prison regulations, to
refrain from criminal and assaultive conduct, and to participate in work and other
rehabilitative activities.” (Brown, supra, 54 Cal.4th at p. 317.) Section 4019 “specifies
multiple categories of detainees who are eligible to earn such credits.” (People v. Yanez
(2019) 42 Cal.App.5th 91, 96 (Yanez).)
Historically—that is, prior to the recent legislative changes discussed herein—
section 4019 did not award conduct credit to detainees for time spent in nonpenal
institutions like state hospitals. (See, e.g., People v. Callahan (2006) 144 Cal.App.4th
678, 686.) As expressed by the California Supreme Court in People v. Waterman, the
“criminal-incompetence statute [in effect at the time] does not expressly allow such
conduct credit.” (People v. Waterman (1986) 42 Cal.3d 565, 569 (Waterman).)
In Waterman, the California Supreme Court rejected an equal protection challenge
to the denial of section 4019 credits to individuals undergoing restoration to competence.
It reasoned, “The goal of treatment for incompetence seems particularly inconsistent with
an incentive-credit system during therapy. The purpose of confinement is to restore the
mental ability to stand trial . . . that goal would be hindered if mere institutional good
behavior and participation automatically reduced the therapy period.” (Waterman, supra,
42 Cal.3d at p. 570.)
Effective January 1, 2019, the Legislature in Senate Bill 1187 rejected in part this
view by modifying the statutory framework governing conduct credit eligibility during
incompetency treatment by amending sections 1375.5 and 4019 to authorize conduct
credits for persons receiving treatment in county jail facilities. Section 1375.5, as part of
the statutory scheme governing mental competence of a defendant to stand trial,
addresses the issue of credit for time spent by a defendant in a hospital or other facility
14
due to a commitment for mental incompetence. As amended, section 1375.5, subdivision
(c) states that “[a] person subject to this chapter shall receive credits pursuant to Section
4019 for all time during which he or she is confined in a county jail and for which he or
she is otherwise eligible.” (§ 1375.5, subds. (a), (c), as amended by Stats. 2018,
Ch. 1008, § 4.)
Of particular relevance here, the amendment to section 4019 matched these
changes by defining a new eligibility category for presentence conduct credit as set forth
in subdivision (a)(8), “[w]hen a prisoner is confined in or committed to a county jail
treatment facility, as defined in Section 1369.1, in proceedings pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2.” (§ 4019, subd. (a)(8), as
amended by Stats. 2018, Ch. 1008, § 5.) Senate Bill 1187 thus expanded conduct credit
eligibility to persons receiving competency treatment while confined in or committed to a
county jail facility, but it made no changes with respect to persons (such as Orellana)
receiving treatment in a state hospital facility.
In October 2021, while Orellana’s appeal was pending in this court but after he
had been restored to competence and been sentenced, the Legislature passed Senate Bill
317, which, inter alia, further amended section 4019 and took effect on January 1, 2022.
Senate Bill 317 modified section 4019, subdivision (a)(8) (previously added by Senate
Bill 1187) to expand eligibility for presentence conduct credit “[w]hen a prisoner is
confined in or committed to a state hospital or other mental health treatment facility, or
to a county jail treatment facility, as defined in Section 1369.1, in proceedings pursuant
to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2.” (§ 4019, subd.
(a)(8), added by Stats. 2021, ch. 599, § 3.0, italics added.)
The plain meaning of this provision is that, as of January 1, 2022, defendants
undergoing treatment for incompetence in a state hospital are eligible for section 4019
conduct credit on the same terms as those confined to county jails. As stated in the
15
Legislative Counsel’s Digest for Senate Bill 317,7 the bill “extend[s] the application of
conduct credits to persons confined in a state hospital or other mental health treatment
facility pending their return of mental competency.” (Legis. Counsel’s Dig., Sen. Bill
No. 317 (2021–2022 Reg. Sess.) Stats. 2021, ch. 599.)
Having set out the statutory context, we now turn to Orellana’s arguments that the
trial court erred by failing to award him conduct credit under section 4019 for the time he
was undergoing restoration to competence in the state hospital. We first examine
whether Senate Bill 317 applies retroactively to Orellana for, if it does, then Orellana is
entitled to these credits as a matter of statute, and we need not reach his constitutional
claims.
a. Retroactivity of Senate Bill 317
Penal statutes are generally presumed to apply prospectively unless they expressly
state otherwise. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 287; § 3.) Neither
party contends that Senate Bill 317 contains any express declaration that conduct credits
for individuals being restored to competence in the state hospital are to be awarded
retroactively or that any clear and unavoidable implication to that effect arises from the
relevant extrinsic sources, such as the legislative history. Therefore, Senate Bill 317 does
not expressly address whether it applies retroactively.
Nevertheless, under Estrada, “an amendatory statute lessening punishment is
presumed to apply in all cases not yet reduced to final judgment as of the amendatory
statute’s effective date.” (People v. Floyd (2003) 31 Cal.4th 179, 184, citing In re
Estrada (1965) 63 Cal.2d 740, 744 (Estrada).) Estrada thus presents “an important,
contextually specific qualification to the ordinary presumption that statutes operate
7
The bill summaries provided by the Legislative Counsel’s Digest, printed as a
preface to every bill considered by the Legislature, are not binding but “are entitled to
great weight.” (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158,
1169–1170.)
16
prospectively.” (Brown, supra, 54 Cal.4th at p. 323.) “Whether a statute operates
prospectively or retroactively is, at least in the first instance, a matter of legislative intent.
When the Legislature has not made its intent on the matter clear with respect to a
particular statute, the Legislature’s generally applicable declaration in section 3 provides
the default rule: ‘No part of [the Penal Code] is retroactive, unless expressly so
declared.’ ” (Id. at p. 319.)
The parties dispute the relevance of Senate Bill 317 to this appeal. Orellana
contends that the new law applies to his case under Estrada as an ameliorative statute
intended to address an unfairness in the awarding of conduct credits. The Attorney
General argues it does not, citing the California Supreme Court’s decision in Brown,
supra, 54 Cal.4th 314, which addressed a prior modification to section 4019.
In Brown, the Supreme Court considered whether a former version of section 4019
that increased the rate at which local prisoners could earn conduct credits applied
retroactively to benefit prisoners who served time in custody before the date on which the
former statute became operative. (Brown, supra, 54 Cal.4th at pp. 317–318.) After
concluding that neither the terms of the former statute nor any part of its legislative
history supported a determination that increased conduct credits were to be awarded
retroactively (id. at p. 320), the court examined whether the rule of Estrada required
retroactive application of the former statute providing increased conduct credits. (Id. at
p. 323.)
The California Supreme Court answered in the negative. It wrote, “This brings us
to the question whether the rule of Estrada, supra, 63 Cal.2d 740, requires us to apply
retroactively a statute increasing the rate at which prisoners may earn credit for good
behavior. The question can properly be answered only in the negative. The holding in
Estrada was founded on the premise that ‘ “[a] legislative mitigation of the penalty for a
particular crime represents a legislative judgment that the lesser penalty or the different
treatment is sufficient to meet the legitimate ends of the criminal law” ’ (Estrada, at
17
p. 745, italics added) and the corollary inference that the Legislature intended the lesser
penalty to apply to crimes already committed. In contrast, a statute increasing the rate at
which prisoners may earn credits for good behavior does not represent a judgment about
the needs of the criminal law with respect to a particular criminal offense, and thus does
not support an analogous inference of retroactive intent. . . . [A] prisoner who earns no
conduct credits serves the full sentence originally imposed. Instead of addressing
punishment for past criminal conduct, the statute addresses future conduct in a custodial
setting by providing increased incentives for good behavior.” (Brown, supra, 54 Cal.4th
at p. 325, fn. omitted.)
Moreover, the court in Brown squarely rejected the argument advanced here by
Orellana that courts should infer legislative intent of retroactive application from a statute
that equalizes credits among different groups of defendants. The court stated, “Defendant
suggests the Legislature’s desire to reduce punishment through former section 4019 can
be inferred from its intent to equalize the credit-earning ability of state and local
prisoners. [Citation.] As noted above, we do not take issue with the proposition that to
increase credits reduces punishment. The question is whether such a law falls within the
rule of Estrada, supra, 63 Cal.2d 740. It does not, as we have explained. Furthermore, to
recognize the Legislature wished to equalize credits does not, by itself, provide a logical
basis for inferring the Legislature wished to do so retroactively.” (Brown, supra, 54
Cal.4th at p. 325, fn. 15.)
We recognize that the California Supreme Court in recent years has expanded the
scope of Estrada beyond the somewhat limited terrain described in Brown.8 However,
8
For example, the court recently observed that it has “applied Estrada’s inference
of retroactivity to statutes governing penalty enhancements, as well as statutes governing
substantive offenses” (People v. Frahs (2020) 9 Cal.5th 618, 628) and, significantly, has
“applied the Estrada rule to statutes that merely made a reduced punishment possible.”
(Id. at p. 629.) Notably, our high court has applied the Estrada rule “to an amendatory
act that ‘ameliorated the possible punishment for a class of persons’ ” even though the
18
the California Supreme Court continues to cite Brown with approval when describing the
principles of retroactivity. The court recently observed that the applicability of Estrada
depends on whether a change in law is ameliorative and among its precedents on that
question referenced Brown. It described the opinion as standing for the proposition that a
“change to accrual of good behavior credits incentivized future conduct rather than
altering the penalty for a crime, and thus did not ameliorate punishment in the relevant
sense.” (People v. Esquivel (2021) 11 Cal.5th 671, 676.)
Brown thus remains authoritative, and we conclude it is controlling here. “The
Legislature, of course, is deemed to be aware of statutes and judicial decisions already in
existence, and to have enacted or amended a statute in light thereof.” (People v. Harrison
(1989) 48 Cal.3d 321, 329.) As in Brown, the language of Senate Bill 317 and relevant
legislative history provide no indication of retroactive intent. (See Brown, supra, 54
Cal.4th at p. 320.) Also, similar to Brown, the statutory amendment does not mitigate or
lessen the penalty for a particular crime or offense but rather facilitates the accrual of
conduct credits by extending section 4019 to a group previously excluded from its
provisions.9
effect was not to mitigate punishment for any particular crime. (Ibid., quoting People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
9
Orellana asserts that the Supreme Court has acknowledged that an increase in
conduct credits amounts to a decrease in punishment (which, in Orellana’s view, triggers
the Estrada presumption). (See People v. Lara (2012) 54 Cal.4th 896, 905–906
[accepting the proposition “that a person who is released a day early is punished a day
less”]; and noting id. at p. 906 [“[t]he very purpose of conduct credits is to foster
constructive behavior in prison by reducing punishment”].) Indeed, as noted ante, the
court made the same observation in Brown. (See Brown, supra, 54 Cal.4th at p. 325.)
While Orellana is correct that the California Supreme Court in both People v. Lara and
Brown recognized that increasing the rate of conduct credit accrual or expanding
eligibility effectively reduces punishment, the court in Brown expressly declined to
extend the logic of Estrada on this basis to a law that rewards good behavior in prison.
(Brown, at p. 325, fn. 15.) The language Orellana relies upon in People v. Lara is
therefore merely dicta and does not abrogate Brown’s authoritative analysis of section
4019.
19
Orellana contends that Brown is distinguishable because instead of increasing the
rate of the conduct credit award—a result the Supreme Court interpreted was intended to
serve as a forward-looking incentive to encourage good behavior (Brown, supra, 54
Cal.4th at p. 325)—Senate Bill 317 is “plainly intended to address an unfairness in the
recent prior amendment to section 4019 [i.e., Senate Bill 1187].” He suggests that the
present situation is more akin to In re Kapperman (1974) 11 Cal.3d 542 (Kapperman)
and People v. Sage (1980) 26 Cal.3d 498 (Sage).10 We disagree.
Orellana’s argument overlooks a distinction the California Supreme Court deemed
critical in Brown—that between custody credits and conduct credits. As the court stated
in Brown, citing Kapperman as one example, “[c]ases involving custody credit—credit
for time served [citations]—may properly be distinguished as irrelevant.” (Brown, supra,
54 Cal.4th at p. 326.) The court noted the behavioral incentive associated with conduct
credits was critical to this distinction: “Credit for time served is given without regard to
behavior, and thus does not implicate the distinction between statutes that provide
behavioral incentives (e.g., conduct credits) and statutes that ‘mitigat[e] . . . the penalty
10
In Sage, the California Supreme Court considered in relevant part whether the
version of section 4019 then in effect, which authorized presentence conduct credit for
misdemeanants who ultimately served their sentences in county jail but not for felons
confined in jail while awaiting trial, denied the defendant—who was a felon—equal
protection of the laws. (Sage, supra, 26 Cal.3d at pp. 504, 506–507.) In analyzing the
grounds advanced for the distinction, the court uncovered no “rational basis for, much
less a compelling state interest in, denying presentence conduct credit to detainee/felons”
(id. at p. 508) and held that the statute’s differential treatment of felons and
misdemeanants for the purpose of presentence conduct credits violated equal protection.
(Ibid.)
In Kapperman, the California Supreme Court considered the constitutionality of
an expressly prospective statute that granted credit to felons for time served in local
custody before sentencing and commitment to state prison. (Kapperman, supra, 11
Cal.3d at pp. 544–545.) The court concluded that equal protection required the
retroactive application of the statute to “eliminate the discriminatory classification . . .
and thus extend the statutory benefits retroactively to those whom the Legislature
improperly excluded.” (Id. at p. 545.)
20
for a particular crime’ (Estrada, supra, 63 Cal.2d 740, 745).” (Brown, at p. 326.)
Brown’s analysis of retroactivity and equal protection (which we explore further below)
thus rested on the fundamental premise that section 4019 provides behavioral incentives
to detainees to affect their future behavior.
In denying the retroactive applicability of the changes to section 4019 examined in
Brown, the court relied on a prior decision, In re Strick (1983) 148 Cal.App.3d 906
(Strick). The Brown court described Strick as “a case that, while ultimately decided
under the equal protection clause, necessarily examined the legislative purpose
underlying conduct credits and concluded that statutes authorizing such credits must
logically apply prospectively.” (Brown, supra, 54 Cal.4th at p. 327.) Brown quoted
Strick for the proposition that the “ ‘obvious purpose’ ” of offering 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 . . . [¶] It is fair to observe that
this incentive purpose has no meaning if an inmate is unaware of it. The very concept
demands prospective application. “Reason dictates that it is impossible to influence
behavior after it has occurred.” ’ ” (Brown, at p. 327, quoting Strick, at p. 913.)11
Although Orellana contends here that the purpose of Senate Bill 317 is to address an
unfairness in affording conduct credits to individuals undergoing restoration to
competence in local jails (as effected by Senate Bill 1187) but not those in state hospitals,
the legislative histories of Senate Bill 1187 and Senate Bill 317 demonstrate that the
intent of both statutes was to provide individuals undergoing restoration to competence
the same good conduct incentives afforded to other detainees.
11
In adopting the reasoning of Strick, the California Supreme Court in Brown
furthermore declined to embrace the retroactive aspect of the holding in Sage,
characterizing it merely as a “practical effect” of the decision (Brown, supra, 54 Cal.4th
at p. 329), which from an analytical standpoint, failed to address the argument that
“conduct credits, by their nature, must apply prospectively to motivate good behavior.”
(Id. at p. 330.)
21
For example, the June 18, 2018, Assembly Committee on Public Safety’s bill
summary states that Senate Bill 1187 “[r]educes the maximum term for commitment to a
treatment facility when a defendant has been found incompetent to stand trial (IST)” and
“[s]pecifies that when a defendant has been found IST and is held in a county jail
treatment center while undergoing treatment for restoration for competency, that person
is entitled to custody credits in the same manner as any other inmate confined to a county
jail.” (Assem. Com. on Pub. Safety, Analysis of Sen. Bill No. 1187 (2017-2018 Reg.
Sess.) June 18, 2018, p. 1, italics added.)
The June 18, 2018 Assembly Committee analysis explained that Senate Bill 1187
“would ensure that an individual that has been found IST and continues to be held and
treated in a county jail, earns credits in the same manner and at the same rate as an
individual in a county jail that is not IST.” (Assem. Com. on Pub. Safety, Analysis of
Sen. Bill No. 1187 (2017-2018 Reg. Sess.) June 18, 2018, p. 5, italics added.) Or, as
stated in an earlier Senate Committee on Public Safety analysis, Senate Bill 1187
“mandates equal credits-earning by committed incompetent persons who are detained in
county jail facilities.” (Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1187 (2017-
2018 Reg. Sess.) Mar. 19, 2018, p. 5, italics added.)
The summary of Senate Bill 317 by the author similarly states, “ ‘SB 317 ensures
incompetent defendants are eligible for the same time served credit for good conduct as
their competent counterparts, while receiving treatment in any treatment facility or as an
outpatient, not just a county jail treatment.’ ” (Sen. Bill No. 317, 3d reading Sept. 1,
2021, Assem. Floor Analysis (2021-2022 Reg. Sess.) pp. 1–2, italics added.)
Section 4019, at issue here, operates in the same manner it did when the California
Supreme Court examined it in Brown. There, as just discussed, the court concluded that
because the amendment to section 4019 addressed forward-looking conduct incentives, it
would not presume the Legislature intended the amendment to apply retroactively and
therefore Estrada did not apply. Because the Brown analysis squarely applies here, we
22
reach the same conclusion. We hold that Senate Bill 317 does not apply retroactively to
Orellana, who had completed his restoration to competence in the state hospital long
before enactment of this legislation.
2. Equal Protection Principles and Analysis
Our analysis does not end with the determination that Senate Bill 317 applies only
prospectively. Orellana asserts, independent of his Estrada claim for retroactive
application of the statute, that the passage of Senate Bill 317 provides irrefutable support
for his equal protection claim. He contends that by righting the disparity in entitlement to
section 4019 conduct credits that remained under Senate Bill 1187, Senate Bill 317
upended the notion that there was any rational basis, let alone compelling state interest,12
for withholding conduct credits from inmates who receive competency treatment in state
hospitals while allowing credits to be earned by their county jail facility counterparts.
Thus, Orellana argues this court is constitutionally compelled to award 48 additional days
of conduct credit such as he would have been entitled to receive had his competency
treatment in the state hospital occurred after Senate Bill 317 took effect.
We analyze the equal protection guarantees of the Fourteenth Amendment and the
California Constitution, which are substantially equivalent, in a similar fashion. (U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a); People v. Leng (1999) 71
Cal.App.4th 1, 11.) “The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated equally.”
(Brown, supra, 54 Cal.4th at p. 328.) “ ‘ “[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.]
12
The parties here disagree as to the applicable level of scrutiny. However, we
need not address—and express no opinion—as to what level of judicial scrutiny applies.
We instead conclude Orellana’s equal protection claim fails at the threshold issue of
whether the two groups are similarly situated. (See Brown, supra, 54 Cal.4th at p. 328.)
23
‘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.” ’ ” (Ibid., italics
omitted.) For reasons similar to the retroactivity analysis set out above, we decide the
California Supreme Court’s decision in Brown forecloses Orellana’s equal protection
challenge.
The California Supreme Court in Brown rejected an equal protection challenge to
the denial of custody credits at the increased rate under review for individuals who had
served their time before enactment of the changes to section 4019 at issue there. Just as
with retroactivity, the forward-looking incentive of custody credits was the decisive
factor. The court in Brown held that individuals who had already been sentenced were
not similarly situated to those who were in custody after the new legislation entered into
force.
The court stated, “As we have already 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.”
(Brown, supra, 54 Cal.4th at pp. 328–329.) On this point, the high court again cited with
approval the decision in Strick. In particular, the Supreme Court found persuasive the
Court of Appeal’s reasoning which “rejected the claim that an expressly prospective law
increasing conduct credits violated equal protection unless applied retroactively to
prisoners who had previously earned conduct credits at a lower rate.” (Brown, at p. 329.)
The Supreme Court in Brown reiterated the incentive purpose of good conduct credits
and adopted the Court of Appeal’s conclusion in Strick that given the prospective
operation of conduct credits, “ ‘inmates were only similarly situated with respect to the
purpose of the [new law] on [its effective date], when they were all aware that it was in
24
effect and could choose to modify their behavior accordingly.’ ” (Id. at p. 329, quoting
Strick, supra, 148 Cal.App.3d at p. 913.)
The California Supreme Court in Brown also expressly distinguished the decisions
in Sage, supra, 26 Cal.3d 498 and Kapperman, supra, 11 Cal.3d 542 (on which Orellana
relies in this appeal) in reaching its conclusion that detainees who had already served
their custodial time before the statute went into effect were not similarly situated to
current detainees. As described above, Kapperman involved an equal protection
challenge to custody—not conduct credits—and therefore was inapplicable. “Credit for
time served is given without regard to behavior, and thus does not entail the paradoxical
consequences of applying retroactively 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.”
(Brown, supra, 54 Cal.4th at p. 330.) The court in Brown rejected the relevance of Sage
because the court in the latter case did not consider that “conduct credits, by their nature,
must apply prospectively to motivate good behavior.” (Ibid.) “As cases are not authority
for propositions not considered [citation], we decline to read Sage for more than it
expressly holds.” (Ibid.)
We recognize that Orellana frames his equal protection argument differently from
the analysis in Brown. He focuses not on any temporal distinction between defendants
who received competency treatment in state hospitals prior to and after the passage of
legislation extending conduct credits to that group, but instead on the purported absence
of any rational basis for distinguishing between defendants whose treatment for
restoration to competence takes place in county jails versus state hospitals. Orellana’s
comparison framework might be persuasive were we writing on a clean slate. However,
the Supreme Court’s articulation in Brown of the operation of section 4019 conduct
credits as an incentive to promote good conduct in custody is determinative here. We see
nothing in the text of Senate Bill 317 or Senate Bill 1187 or the relevant legislative
25
history that suggests the Legislature rejected the forward-looking nature of the incentive
structure of section 4019 articulated by the Supreme Court in Brown.
Under Brown, entitlement to conduct credits is directed at “future conduct in a
custodial setting” (Brown, supra, 54 Cal.4th at p. 325) and effectively precludes the court
from deeming two groups similarly situated for purposes of earning conduct credits when
the time in custody preceded the availability of incentive based credits. (Id. at pp. 325–
328.) We therefore decline to adopt Orellana’s position that, as a practical matter,
presentence conduct credits are awarded in full unless the prosecution or probation
authorities takes steps to reduce or eliminate the credits award. Instead, we conclude the
Supreme Court’s analysis of any constitutional basis for extending entitlement to section
4019 conduct credits controls our analysis.
Orellana urges that given the changes under Senate Bill 317, this court should
apply a similar analysis to that in Yanez, in which the court upheld an equal protection
challenge to differential access to conduct credit for pretrial versus posttrial time spent in
home detention under electronic monitoring. (Yanez, supra, 42 Cal.App.5th at p. 93.)
However, Yanez did not analyze Brown in any detail and expressly decided that the
Attorney General had waived any argument about retroactivity. The court stated, “we
note that the People do not argue that pretrial conduct credits could not be applied
retroactively to Yanez’s sentence in any event, even if an equal protection violation were
demonstrated. As that question is not before us, we deem it waived for purposes of this
appeal and express no opinion as to the propriety of deeming an appellant retroactively
eligible for conduct credits on the basis of an equal protection violation and assume for
purposes here that such a disposition is warranted.” (Id. at p. 101.) Given this caveat,
Yanez does not assist Orellana. Furthermore, inasmuch as the California Supreme
Court’s opinion in Brown addresses questions closely analogous to those presented here,
we are bound to follow its dictates. (See Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
26
Here, as in Brown, the statutory amendment at issue operates prospectively, as
decided ante. For purposes of assessing whether that prospective application offends
equal protection, we discern no practical difference between the expansion of conduct
credits under section 4019 to a previously excluded class of persons—as has occurred in
this case pursuant to Senate Bill 317—and eligibility to earn conduct credits at an
increased rate, as was at issue in Brown. In both cases, the purpose of the new provision
“ ‘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.’ ” (Brown, supra, 54 Cal.4th at p. 329.) Since
Orellana is not similarly situated to inmates to whom Senate Bill 317 statutorily applies,
denial of conduct credits to him does not violate his right to equal protection of the laws.
III. DISPOSITION
The judgment is affirmed.
27
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Wilson, J.
H048315
People v. Orellana
Trial Court: County of Monterey
Trial Judge: Hon. Rafael Vazquez
Counsel: William Robinson, by appointment of the Court of Appeal under the
Sixth District Appellate Program, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney, René
Chacon, Supervising Deputy Attorney General, Bruce Ortega, Deputy
Attorney General for Plaintiff and Respondent.
H048315
People v. Orellana