P. v. Johnson

Filed 2/4/20 P. v. Johnson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
REGINA RENEE JOHNSON,
Defendant and Appellant.
D073338
(Super. Ct. No. SCD241227)
APPEAL from a judgment of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland,
Assistant Attorneys General, Charles C. Ragland, Alana Butler and Marvin E. Mizell,
Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Regina Renee Johnson of second degree murder of her spouse
Ruben Johnson and their daughter, Aaliyah Johnson (Pen. Code,1 § 187, subd. (a)). As
to both counts, it found true allegations that Johnson intentionally and personally
discharged a firearm and proximately caused the victims' deaths. (§ 12022.53, subd. (d).)
The court sentenced Johnson to 80 years to life in prison as follows: 15 years to life for
each of the murders and 25 years to life on each firearm enhancement. The court
awarded her 1,995 days of actual time served. It awarded no presentence conduct credits
because section 2933.2 bars them for murder convictions.
Johnson contends: (1) the court abused its discretion in finding her competent to
stand trial and violated her constitutional right to due process by failing to hold another
competency hearing just before the preliminary hearing commenced; (2) this court should
remand this matter for the trial court to consider her eligibility for pretrial diversion for
persons with mental illness as provided for in section 1001.36; (3) this court should also
remand for the court to exercise its discretion regarding whether to dismiss the firearm
enhancements under the amended version of section 112022.53; and (4) this court should
amend the abstract of judgment to reflect an award of presentence conduct credits under
Proposition 57, which she maintains overruled section 2933.2's bar to such credits. We
affirm the judgment, but remand for the trial court to exercise its discretion on whether to
dismiss the firearm enhancements.
1 Undesignated statutory references are to the Penal Code.

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FACTUAL AND PROCEDURAL BACKGROUND
As this case raises only legal questions, we need not set forth the facts regarding
the underlying convictions. Suffice to say that in May 2012, Johnson killed her husband
and daughter.
In May 2013, the court suspended legal proceedings against Johnson under section
1368 in order for an expert to evaluate her mental competence. In August 2013, Johnson
was found not competent to stand trial, based upon a diagnosis of major depressive
disorder, and committed to Patton State Hospital. In October 2015, Johnson was found
competent to stand trial. (§ 1372.) In December 2015, defense counsel stipulated to
Johnson's competency to stand trial.
In March 2016, on the day scheduled for the preliminary hearing, defense counsel
moved under section 1368 for the court to suspend proceedings and order Johnson's
mental health reevaluated. He supported his motion by describing his recent visits with
Johnson: "What generally happens, with a fair amount of paranoia, is that I am told that I
already represented certain things, and they're generally things which are not accurate and
I have to try to explain to [Johnson] that I didn't say the things, but she's sure I did and we
argue about that, what it means. [¶] Once we can hopefully clear that away and start
again, we embark on a conversation, for example, her exposure or the possible results
that could come from a trial, what hospitalization would mean with a not guilty by reason
of insanity plea. I don't think she is being indecisive. I think she genuinely cannot
understand her options or understands [sic] the information."

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Defense counsel opined Johnson suffered from "entrenched delusions"; most
notably, she seemingly believed "that one of the victims is living and walking among us."
Defense counsel also pointed out Johnson was suffering from a "whole series of facial
tics and leg movements which seem to be involuntary, which are professionally labeled
as dyskinesia, but they're understood to be a side effect from the antipsychotic
medications that she is under, both antidepressants and antipsychotic medications."
Defense counsel concluded, "Miss Johnson is not grasping, in my opinion, the legal
nature of the case, and even if she is, she's certainly not able to help me."
The court took a recess to read two mental health professionals' reports. One was
an October 2015 report from Dr. Leong, who stated: "Overall, Ms. Johnson possesses a
basic comprehension of her legal predicament and the associated legal process. If she did
not know something she could be educated on the missing knowledge. As previously
emphasized, Ms. Johnson can be reluctant to demonstrate her awareness of the ongoing
legal case. It is quite understandable that an individual would not want to participate in a
discussion of such an emotionally charged subject involving the deaths/killings of one's
spouse and child. This reluctance appeared to be under her volitional control as
demonstrated during my face-to-face contact and not the result of any mental disorder at
this time. Consequently, at this time, her mental condition was such that she possesses
sufficient capacity to understand the nature of the criminal proceedings." Dr. Leong
concluded that "[Johnson's] mental condition was such that she possesses sufficient
capacity to rationally assist counsel in conducting a defense." He also concluded Johnson
was competent to stand trial.

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Dr. Abrams stated in a March 2016 letter: "I agree with Dr. Leong that Ms.
Johnson is able to understand the charges against her." Dr. Abrams added, "Ms. Johnson
continues to express an inability to remember any details about the alleged crimes during
my interview. . . . The full records from Patton [State Hospital] will need to be reviewed
to better assess the reasons for this amnesia. On my recent evaluation, Ms. Johnson
continued to express paranoid thinking. Ms. Johnson was improved from the last visit I
had with her . . . . If [her] amnesia is from her mental illness, it might perhaps improve
with further treatment. Amnesia by itself is not solely a basis for trial incompetence, but
in this case the amnesia is likely related to Ms. Johnson's severe mental illness."
The court ruled there was no doubt Johnson was competent to stand trial: "When
[Johnson] left Patton State Hospital, Dr. Leong was of the opinion that she was not
suffering from any kind of delusions that would prevent her from assisting her counsel in
the performance of the defense. She had—her memory was good, she was up to date on
current affairs, she knew what was going on in all cases. [¶] And what you told me
today at this hearing, [defense counsel], is that while she understands the proceedings, the
nature of the proceedings, you have some question about her ability to assist you in
preparing the defense because of amnesia, and that is also one of the features that [is]
mentioned by Dr. Abrams, talking about amnesia. [¶] But it does not appear, at least to
the court, that the amnesia is a result of a mental illness, and I—I think that the amnesia is
selective in terms of what it is that she remembers, what she wants to remember." The
court proceeded to conduct the preliminary hearing, and Johnson was bound over on the
murder charges.

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In June 2016, the court addressed Johnson's motion to set aside the information
under section 995, brought on grounds she was mentally incompetent around the time of
the preliminary hearing. The court concluded: "I just don't think there was sufficient
evidence at the prelim[inary hearing] that would justify" suspending proceedings for
another mental evaluation of Johnson under section 1368.
That same day, Johnson again requested a section 1368 hearing. To resolve the
question of whether to suspend proceedings and order Johnson to undergo a new mental
evaluation, the court questioned defense counsel about Johnson's mental state:
"The Court: Is there something today that, in addition to what we have heard
already, you want to let me know about?
"[Defense counsel:] Yes, your Honor. I would reiterate just very briefly what the
content was at the time of the preliminary hearing because I don't think that in any way
we are starting yet again all over. The facts that I have experienced since [Johnson's]
return is [sic] still relevant to the overall picture today. We are talking about—I think we
are up to seven visits at roughly two hours each here. During the visits, as I have
explained now and will explain again, there are some things that Ms. Johnson does well,
and there are some things she cannot do which are not nuances.
"The Court: Be more specific.
"[Defense counsel:] Yes. Her understanding or her ability to understand what it
means to be in a state hospital versus what it means to be in prison. Her understanding of
exposure and the way we crunch the numbers where charges and allegations are
concerned. I'm not talking about one-third the middle term or the more complicated

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rules. I'm talking about the basic math so that she can compare and contrast things like a
determinate term.
. . . [¶] . . . [¶]
THE COURT: Okay.
[Defense Counsel:] But there are additional layers. Again, I'll grant you that I
wouldn't expect all clients to immediately understand the difference between voluntary
and involuntary and second degree and so forth. But in my experience, there is a time at
which I do expect them to begin to follow me so we can make some basic decisions.
That, in the course of all of these visits, has not occurred. Woven through that, as I
mentioned before, is her belief that one of the victims is living. I can't get past or around
or through or under or over that fact in order to engage in the appropriate decision-
making where that is concerned."
The court asked defense counsel another series of questions to clarify Johnson's
level of comprehension of the case against her; specifically, whether Johnson knew who
defense counsel was, the charges against her, the judge's and the jury's duties, and that the
issue at trial was her guilt or innocence. Defense counsel answered all questions in the
affirmative.
The court ruled: "Based on what I heard today, I am going to deny the request to
commence any kind of [section] 1368 proceedings. That, of course, is without prejudice
if something changes. As the cases say, this is not a static thing. People can go in and
out of competency, but as of today, I'm not seeing anything that would warrant

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suspending the proceedings." Thereafter trial commenced, and defense counsel made no
further claims under section 1368 regarding Johnson's mental competency.
DISCUSSION
I. Johnson's Competence to Stand Trial
Johnson contends the trial court abused its discretion in finding her competent to
stand trial: "[T]he court heard more than sufficient evidence from counsel to conclude,
both before the preliminary hearing and after, that appellant was unable to assist in her
own defense. Not only did [Johnson] lack understanding of basic information counsel
attempted to convey, but she actually believed one of the named victims in the murder
counts was not dead."
A defendant is presumed mentally competent unless he or she proves otherwise by
a preponderance of the evidence. (§ 1369, subd. (f); People v. Blacksher (2011) 52
Cal.4th 769, 797; People v. Lawley (2002) 27 Cal.4th 102, 131.) In People v. Jones
(1991) 53 Cal.3d 1115, the California Supreme Court summarized the applicable law: "A
defendant who, as a result of mental disorder or developmental disability, is 'unable to
understand the nature of the criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner,' is incompetent to stand trial. (§ 1367.) When the accused
presents substantial evidence of incompetence, due process requires that the trial court
conduct a full competency hearing. [Citation.] Evidence is 'substantial' if it raises a
reasonable doubt about the defendant's competence to stand trial. . . . [¶] When a
competency hearing has already been held and the defendant has been found competent
to stand trial, however, a trial court need not suspend proceedings to conduct a second

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competency hearing unless it 'is presented with a substantial change of circumstances or
with new evidence' casting a serious doubt on the validity of that finding." (Id. at pp.
1152-1153; accord, People v. Rodas (2018) 6 Cal.5th 219, 230-231.) The evidentiary
standard by which the trial court evaluates defense counsel's showing is substantial
evidence. If counsel presents a substantial change of circumstances or new evidence
giving rise to a serious doubt about the validity of the original competency finding, the
trial court must suspend the criminal proceeding and reinstate competency proceedings.
(Rodas, supra, 6 Cal.5th at p. 231.)
"We apply a deferential standard of review to a trial court's ruling concerning
whether another competency hearing must be held. [Citation.] We review such a
determination for substantial evidence in support of it." (People v. Huggins (2006) 38
Cal.4th 175, 220.) "More is required than just bizarre actions or statements by the
defendant to raise a doubt of competency. [Citations.] In addition, a reviewing court
generally gives great deference to a trial court's decision whether to hold a competency
hearing." (People v. Marshall (1997) 15 Cal.4th 1, 33.)
Applying these standards, we conclude that at the hearing held just before
Johnson's preliminary hearing, defense counsel did not demonstrate a substantial change
of circumstances had occurred. (People v. Jones, supra, 53 Cal.3d at p. 1154.)
Specifically, defense counsel's argument that Johnson suffered from dyskinesia was not
material to the competency inquiry because there was no claim or showing that this
specific diagnosis rendered Johnson incapable of understanding the nature of the
proceedings or of assisting her attorney. Moreover, the fact that Johnson made bizarre

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statements indicating one of the victims was still alive did not, alone, make her
incompetent to stand trial. (Accord, In re Sims (2018) 27 Cal.App.5th 195, 209; People
v. Murdoch (2011) 194 Cal.App.4th 230, 236-237; People v. Williams (1965) 235
Cal.App.2d 389, 398, fn. 3.) In evaluating defense counsel's claim that Johnson did not
appear to grasp her legal exposure or the possible results of trial, the court reviewed Dr.
Leong's letter. The court could reasonably have found that there were no substantially
changed circumstances or new evidence because Dr. Leong had already concluded
Johnson's reluctance to discuss the emotionally charged subject involving the killings of
her husband and child did not result from any mental disorder; rather, her amnesia was
under her volitional control. "The prior finding was based on a thorough inquiry into
defendant's competency, and the evaluations made at that time and the verdict of
competency must be viewed as a baseline that, absent a preliminary showing of
substantially changed circumstances, eliminated the need to start the process anew."
(People v. Huggins, supra, 38 Cal.4th at p. 220.) We therefore conclude substantial
evidence—in the form of Dr. Leong's report—supported the court's decision declining to
hold a new competency hearing.
In considering the postpreliminary hearing request for a competency hearing, the
court asked defense counsel a series of questions to ascertain Johnson's ability to
understand the case against her and, based on those responses, the court did not have a
doubt about her competence. In light of the entire record, we conclude the court did not
abuse its discretion in declining to order a new competency evaluation. Further, the court
expressed its willingness to revisit the issue if defense counsel brought another motion;

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but defense counsel never did so. (Accord, People v. Lightsey (2012) 54 Cal.4th 668, 690
[even though defendant appeared competent before trial, trial court must reconsider if
change in competence during trial]; Murdoch, at pp. 234, 237 [trial court was required to
reexamine competency during trial because defendant stopped taking medicine and told
jury that victim was an angel, not a human].)
II. Pretrial Mental Health Diversion Under Section 1001.36
Effective June 27, 2018, the Legislature created a pretrial diversion program for
defendants suffering from a qualifying mental disorder. (§ 1001.36, subds. (a) & (b)(1).)
One of the purposes of the legislation is to promote "[i]ncreased diversion of individuals
with mental disorders . . . while protecting public safety." (§ 1001.35, subd. (a).)
" '[P]retrial diversion' means the postponement of prosecution, either temporarily or
permanently, at any point in the judicial process from the point at which the accused is
charged until adjudication." (§ 1001.36, subd. (c).) A trial court may grant pretrial
diversion if all the following eligibility criteria are satisfied: (1) a qualified mental health
expert has recently diagnosed the defendant with a qualifying mental disorder; (2) the
"mental disorder was a significant factor in the commission of the charged offense"; (3)
the defendant's symptoms will respond to treatment; (4) the defendant consents to
diversion and waives his or her speedy trial rights; (5) the defendant agrees to comply
with treatment; and (6) the defendant will not pose an unreasonable risk of danger to
public safety if treated in the community. (§ 1001.36, subd. (b)(1)(A)-(F).) In September
2018, the Legislature amended section 1001.36, effective January 1, 2019, to eliminate a

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defendant's eligibility for diversion if the defendant is charged with certain offenses,
including murder. (§ 1001.36, subd. (b)(2)(A).)
Johnson contends she is entitled to a diversion hearing under section 1001.36
because although she was sentenced in November 2017, the Legislature intended the
statute to apply to cases pending on appeal. The People disagree, arguing section
1001.36's language demonstrates the Legislature intended the law to operate
prospectively, and not to a case like this one that was already adjudicated. The People
contend that even assuming section 1001.36's amendments are retroactive, a remand is
futile because Johnson is ineligible for mental health diversion, as she was convicted of
murder.
Generally, amendments to the Penal Code are presumed to apply prospectively
unless they state otherwise. (See § 3.) Nonetheless, the presumption against retroactivity
does not apply when the Legislature reduces the punishment for criminal conduct. (In re
Estrada (1965) 63 Cal.2d 740, 744-745.) Courts are divided on whether section 1001.36
applies retroactively to all nonfinal judgments; however, this court has concluded that it
does. (People v. Burns (2019) 38 Cal.App.5th 776, 785.)2 Another court has held that
section 1001.36's amendment applies retroactively to pending appeals. (In re M.S. (2019)
32 Cal.App.5th 1177, 1191.)
2 Compare People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27,
2018, S252220 [section 1001.36 retroactive]; People v. Weaver (2019) 36 Cal.App.5th
1103, 1121, review granted Oct. 9, 2019, S257049 [same]; and People v. Hughes (2019)
39 Cal.App.5th 886, 896, review granted Nov. 26, 2019, S258541 [same] with People v.
Craine (2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671 [section
1001.36 not retroactive] and People v. Torres (2019) 39 Cal.App.5th 849, 855 [same].

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But because Johnson was convicted of two counts of second degree murder, she is
statutorily ineligible for mental health diversion. Amended section 1001.36 provides that
a defendant may not be placed into a diversion program if charged with certain specified
crimes, including murder. (§ 1001.36, subd. (b)(2)(A).) Thus, we reject Johnson's
contention we should remand this case for the trial court to consider her eligibility for
pretrial diversion for persons with mental illness.
Johnson contends that applying amended section 1001.36 here violates ex post
facto and due process protections under the federal and state Constitutions. We disagree.
The federal and state ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art.
I, § 9) prohibit legislation " 'which makes more burdensome the punishment for a crime,
after its commission.' " (Collins v. Youngblood (1990) 497 U.S. 37, 42; People v.
McVickers (1992) 4 Cal.4th 81, 84.) The ex post facto prohibition is intended to ensure
that individuals have " 'fair warning' about the effect of criminal statutes [and] 'restricts
governmental power by restraining arbitrary and potentially vindictive legislation.' "
(Landgraf v. USI Film Products (1994) 511 U.S. 244, 267.)
Here, ex post facto concerns do not apply because when Johnson committed her
crimes in 2012, she could not have relied on the possibility of receiving pretrial mental
health diversion because the law was not yet passed. Moreover, the Legislature's
amendment of section 1001.36 to eliminate eligibility for defendants charged with
murder did not make an act unlawful that was not formerly unlawful, nor did it increase
the punishment for the offenses with which Johnson was charged. (See People v. White
(2017) 2 Cal.5th 349, 360.) Johnson was subject to the same punishment when she

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committed her offenses as she was after the Legislature narrowed the scope of defendants
eligible for diversion. Thus, amended section 1001.36 does not violate the ex post facto
clauses of the state or federal Constitutions. (Accord, People v. Cawkwell (2019) 34
Cal.App.5th 1048, 1054, review granted Aug. 14, 2019, No. S256113.)
III. Gun Enhancements
The People concede, and we agree, a remand is necessary for the trial court to
exercise its discretion to strike the gun enhancements.
Senate Bill No. 620, effective January 1, 2018, permits a trial court in its
discretion to strike firearm enhancements imposed under sections 12022.5 and 12022.53.
(§§ 12022.5, subd. (c) & 12022.53, subd. (h); Stats. 2017, ch. 682, §§ 1, 2.) The statutes
provide that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the
time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by
this section. The authority provided by this subdivision applies to any resentencing that
may occur pursuant to any other law." (§§ 12022.5, subd. (c) & 12022.53, subd. (h).)
The amended statutes apply retroactively to defendants whose sentences were not final
when Senate Bill No. 620 came into effect. (People v. Woods (2018) 19 Cal.App.5th
1080, 1089-1091; see People v. Hurlic (2018) 25 Cal.App.5th 50, 56 [courts have
unanimously concluded that Senate Bill No. 620's grant of discretion applies retroactively
to all nonfinal convictions].) "[A] remand is required unless the record shows that the
trial court clearly indicated when it originally sentenced the defendant that it would not in
any event have stricken a firearm enhancement." (People v. McDaniels (2018) 22
Cal.App.5th 420, 425; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081 [remand is

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required when "the record does not 'clearly indicate' the court would not have exercised
discretion to strike the firearm allegations had the court known it had that discretion"].)
Here, the court did not clearly indicate a refusal to strike the enhancements.
IV. Custody Credits under Section 2933.2
Johnson's probation report stated that under section 2933.2, she was ineligible for
presentence credits. The court accordingly awarded Johnson credit for 1,995 days in
actual custody, but "zero days per [section] 2933.2."
Section 2933.2 subdivision (a) states: "Notwithstanding Section 2933.1 or any
other law, any person who is convicted of murder . . . shall not accrue any credit, as
specified in Section 2933 or Section 2933.05." Section 2933.2 subdivision (c) states:
"Notwithstanding Section 4019 or any other provision of law, no credit pursuant to
Section 4019 may be earned against a period of confinement in, or commitment to, a
county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp,
following arrest for any person specified in subdivision (a)." Section 2933.2 is an
exception to the general presentence custody credit scheme. It denies such credits to
convicted murderers. (People v. Chism (2014) 58 Cal.4th 1266, 1336.)
Johnson contends: "Nothing in Proposition 57 addresses whether it is intended to
apply to pre-sentence conduct credits. It is clear, however, that with the intention of the
voters and the implementation by [California Department of Corrections and
Rehabilitation], it does apply to those formerly denied conduct credits by section 2933.2,
subdivision (a), effectively repealing that subdivision and providing inmates up to 20
percent credit for good conduct. The question, therefore, is whether all of section 2933.2

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must be considered void as there is no rational basis for preventing those who have not
even yet been convicted of a crime, from being rewarded for good behavior."3 Citing no
authority for her interpretation, she answers her own question and asserts that Proposition
57 repealed section 2933.2 subdivision (c) as well. She argues that to construe
Proposition 57 as repealing section 2933.2, subdivision (a) regarding the credits accrued
by convicted murderers in prison but not section 2933.2, subdivision (c) with respect to
those in prejudgment custody would raise "constitutional difficulties" under the Equal
protection clauses of the federal and state Constitutions.
Proposition 57, which was passed by the electorate and implemented as Article 1,
section 32 of the California Constitution provides: "The Department of Corrections and
Rehabilitation shall have authority to award credits earned for good behavior and
approved rehabilitative or educational achievements." The implementing regulations
state: "Credit applied prior to sentencing is awarded by the sentencing court pursuant to
sections 2900.1, 2900.5, 2933.1 and 4019 of the Penal Code." (Cal. Code Regs., tit. 15,
§ 3043.1.) The California Supreme Court has held that "California's Department of
Corrections and Rehabilitation . . . does not determine and award presentence credits; the
sentencing court does." (People v. Brown (2012) 54 Cal.4th 314, 321.) Proposition 57
3 Johnson supports her claim that Proposition 57 repealed section 2933.2
subdivision (a) by relying on this statement published by the California Department of
Corrections and Rehabilitation on its website: "Credit-earning opportunities are available
to all inmates . . . . Inmates not eligible for credits under Proposition 57 include
condemned inmates and those serving sentences of life without the possibility of parole."
(See https://www.cdcr.ca.gov/blog/proposition-57-credit-earning-for-inmates-frequently-
asked-questions-faq)

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refers only to the Department of Corrections and Rehabilitation's power to award the
above enumerated credits. We therefore conclude that because Proposition 57 by its
terms does not apply to presentence credits, Johnson's contention that Proposition 57
repealed section 2933.2 subdivision (c) lacks merit.
As for Johnson's equal protection argument, the California Supreme Court has
stated: "The 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." (In re Eric J. (1979) 25 Cal.3d 522, 530.) It also
has held: "A pretrial detainee is not similarly situated to a state prison inmate." (In re
Martinez (2003) 30 Cal.4th 29, 36.)
The California Supreme Court has further held: " 'Equal protection does not
require equality of the ratio of conduct credit to time served. [Citation.]' [Citation.] The
constitutional guarantee of equal protection does not mandate uniform operation of the
law with respect to different persons or classes. [Citation.] '[T]he Legislature may make
a reasonable classification of persons and pass special legislation applying to certain
classes. The classification cannot be arbitrary, but must be based on some difference in
the classes having a substantial relation to a legitimate objective to be accomplished.' "
(People v. Heard (1993) 18 Cal.App.4th 1025, 1029-1030.) It has explained, with
examples from different statutes, that slightly disparate schemes for awarding conduct
credits may be justifiable and therefore do not violate the constitutional right to equal
protection of the laws: "Pretrial felony detainees and state prison inmates are not
similarly situated with respect to the purposes of the custody credit statutes. While state

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prison inmates are conclusively guilty and presumptively in need of rehabilitation,
pretrial felony detainees are presumptively innocent and may not require rehabilitation.
[Citations.] The difficulty of establishing prison-style work programs in county jails for
pretrial detainees—who may make bail, or have work programs interrupted by court
appearances and other obligations—further distinguishes pretrial detainees from state
prisoners and justifies the slightly disparate scheme for awarding conduct credit to the
former class." (Id. at pp. 1030-1031.) The same analysis applies here, and we find no
invidious classification or equal protection violation in the calculation of Johnson's
presentence conduct credits. We accordingly conclude that Johnson's contention fails.
DISPOSITION
The sentence is vacated and the matter remanded for the trial court to exercise its
discretion to consider whether to strike the firearm use enhancements (§ 12022.5, subd.

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(a)), and to resentence Johnson. If the court elects not to strike or dismiss the
enhancements, it shall reinstate the sentence. The judgment is affirmed in all other
respects. The court is directed to prepare an amended abstract of judgment and forward
certified copies to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.

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