People v. Kennedy

In October 2011, appellant Stephen Paul Kennedy pleaded no contest to assault by force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).) Appellant admitted a prior strike allegation. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) In exchange for his no contest plea, appellant was promised a four-year prison term.

On November 17, 2011, the court sentenced appellant to four years in state prison. The court awarded appellant only 21 days of custody credits consisting of 15 actual days and six days’ conduct credit.

Appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea.

On appeal, appellant contends that he is entitled to additional presentence custody credits, and pursuant to equal protection principles the amendment to Penal Code section 4019, effective October 1, 2011, must be applied to him retroactively. By way of a supplemental opening brief, appellant argues that he is statutorily entitled to increased presentence conduct credits for the time he spent in custody after October 1, 2011.

For reasons that follow, we agree that appellant is entitled to additional presentence custody credits, but…