P. v. Alston
Filed 4/22/13 P. v. Alston CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DENNIS JOHN
ALSTON,
Defendant and Appellant.
E055052
(Super.Ct.No. FWV1100368)
OPINION
APPEAL
from the Superior Court of
Bernardino County. Jon
D. Ferguson, Judge. Affirmed with
directions.
Rex
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and
Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
This
case arises from defendant Dennis John Alston ordering items over the Internet
and paying for them with forged money orders.
Defendant appeals from judgment entered following jury convictions for
driver’s license or identification card with intent to commit forgery (§ 470b;
counts 6-8). The jury also found true
one prison prior (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12). The jury found
defendant not guilty of count 5 for forgery.
The trial court sentenced defendant to six years on count 1, and to
consecutive terms of one year four months for each of the other counts, for a
total prison term of 15 years.
Defendant
contends his convictions for counts 6 through 8 must be reversed because there
was insufficient evidence that he intended to commit forgery. As to counts 6 and 7, defendant argues
sentencing should be stayed because the crimes were not incidental to the
offenses alleged in counts 1 through 4, and were not committed with a single
intent and objective. Defendant also
argues there was insufficient evidence to support the prior strike allegation
and his presentence good conduct credits must be recalculated under the
recently amended version of section 4019.
Defendant also requests this court to order the trial court to correct
the abstract of judgment to reflect accurately only one prison prior.
We
conclude there was no error, other than that the sentencing minute order and
abstract of judgment incorrectly state defendant had more than one prison
prior. We therefore affirm the judgment,
but instruct the trial court to correct the November 8,
2011,
minute order and abstract of judgment to reflect that defendant had only one
prison prior.
II
FACTS
Counts 1 and 6
On February 27, 2010, defendant rented a mailbox at Postal Annex, located
at 7426 Cherry Avenue in Fontana. In order to rent the mailbox, defendant
filled out two applications using the fictitious name of Daryl Wilson, and
presented a California identification (ID) card and a Department of Veteran
Affairs Medical Center employee ID card (VA ID card) (count 6). Both forms of identification were in the name
of Daryl Wilson, with defendant’s photograph on the ID cards.
In March 2010, Brandywine
Jewelry Supply (Brandywine) received an $841.50 mail order from Daryl Wilson,
for silver wire, silver beads, and silver charms. A Western Union money order (No.
14-037480295) accompanied the order (count 1).
The $900 money order was signed in the name of Daryl Wilson. Wilson requested overnight
delivery of the silver to 7426 Cherry Avenue, in Fontana, California. Because the money order was counterfeit, the
money order was returned to the bank unpaid.
A $9 Western Union money order, bearing the same number (No.
14-037480295) as the $900 money order, was issued in February 2010. Lisa Allen, the owner of Brandywine, reported the incident to
the Fontana Police Department. A
detective retrieved the package from Postal Annex before defendant picked it
up, and returned the package to Brandywine.
In September 2010, Brandywine received a mail order for
sterling wire from Finest Degree Jewelry in Ontario California. The order included a $500 Chase Bank (Chase)
money order (No. 1983491332), signed by Dwayne Wilson. Because the handwriting on the money order
was similar to the writing on defendant’s money order rejected in March 2010,
Allen did not deposit the money order or ship the requested product. Chase informed her that the money order had
already been cashed. Allen notified the
police of the incident.
Counts 2, 3, 4, and 7
On
June 4, 2010, defendant again used the fictitious name of Daryl Wilson, doing
business as Finest Design, to rent a mailbox at Mail Plus and More, located at
1000 West Fourth Street in Ontario.
Defendant filled out an application and mailbox rental agreement in the
name of Daryl Wilson, and presented the same two forms of identification used
for the Postal Annex mailbox rental (count 7).
In
September 2010, Unique Wire Weaving received a mail order from Dwayne Wilson of
Design Finest Jewelers, for silver mesh wire.
A $850 Chase money order (No. 1983491332), signed by Dwayne Wilson,
accompanied the order (count 2). Wilson
requested overnight delivery to 1000 West Fourth Street, Ontario,
California. A week or two after Unique
Wire Weaving shipped the order, Unique Wire Weaving learned the money order was
counterfeit. The company manager, Howard
Gabriel, notified defendant by email that the money order had been rejected by
the bank, but received no response from defendant.
In
October 2010, Streakwave Wireless received a mail order from Dwayne Wilson for
telephone equipment, along with a $700 Chase money order (No. 1983491334)
(count 3). Wilson requested overnight
delivery to 1000 West Fourth Street, Ontario, California. About a week after the order was shipped to
defendant, Streakwave Wireless learned that the money order was counterfeit.
Also
in October 2010, Paul H. Gesswein and Company (Gesswein) received a mail order from Dwayne Wilson of Finest
Degree Jewelers for fourteen 18-carat gold lobster claw clasps, along with a
$700 Chase money order (No. 1983491334) from Dwayne Wilson (count 4). Wilson requested overnight delivery to 1000
West Fourth Street, Ontario, California.
Within a few days of shipping the order to defendant, Gesswein
discovered the money order was counterfeit.
On April 26, 2010, and October 26, 2010, defendant sold gold scrap to
Grand Jewelers. The owners of Grand
Jewelers recalled that the items purchased from defendant in October probably
included 18-carat gold lobster claw clasps.
Defendant provided a California driver’s license (CDL) bearing his
actual name and an address on Adams Street in San Bernardino, but also provided
his current address in Ontario at the Motel 6.
Counts 5 and 8
On
December 27, 2010, defendant rented a mailbox at Fast Mailbox Plus, located at
10330 Central Avenue in Montclair.
Defendant filled out a mailbox rental application and signed a mailbox
service agreement using the fictitious name of Jerry Green, doing business as
Calvin Johnson. Defendant verified his
identity as Jerry Green, with two forms of identification, a CDL and a VA ID
card (count 8). The CDL and VA ID card
were in the name of Jerry Green but showed defendant’s photo.
In
December 2010, Pookies Antique Treasures (Pookies) received a mail order for a
silver pitcher, along with a $800 Chase money order (No. 1983491333) from Cal
Johnson (count 5). Johnson requested the
pitcher be shipped by overnight delivery to defendant’s mailbox at his Fast
Mailbox Plus address. After shipping the
order, Pookies learned the money order was counterfeit.
Investigation
On
June 9, 2010, Ontario Police Department Corporal Michael Nevin contacted
defendant at Motel 6 in Ontario, regarding an unrelated fraud investigation. Defendant had been living at the Motel 6
under his own name since April 8, 2010.
During a search of defendant’s room, Nevin found the following items:
1. A California ID card and VA ID card in the name of Daryl
Wilson, with defendant’s photograph on the cards;
2. Pieces of paper with Veterans Affairs Medical Center
information used to create the VA ID card;
3. A
Chase money order, dated April 9, 2010, for $100;
4. Versions of the same money order with different dollar
amounts, money order numbers, and dates;
5. Money orders that were cut and pasted together or had
Wite-Out on them;
6. Versacheck paper used for checks;
7. A list of products used to wash checks;
8. Pieces of paper indicating defendant had practiced making
counterfeit Chase money orders;
9. Pieces of paper regarding a Design Finest Yahoo email
account;
10. Printouts and orders from website companies selling crafts,
jewelry and precious metals.
Defendant
told Nevin that he was unemployed and had made the money orders found in his
motel room. Nevin later learned that the
identification number on the California ID card found in defendant’s room,
belonged to Elena Medovaya, not to defendant or his alias, Daryl Wilson. Defendant’s actual driver’s license also
showed a different name, number and address than the name and address on the
California ID card found in his room with defendant’s photograph on it.
On
December 28, 2010, Ontario Police Department Officer Alicia Cabrera contacted
defendant in the lobby of the same Motel 6 where defendant had previously been
residing. Defendant had returned to the
motel after moving out in June 2010, and had been living there under his own
name since September 7, 2010. Cabrera
encountered defendant sitting at a computer in the motel lobby, looking at an
antique metals website. Cabrera found,
on a desk next to defendant, a piece of paper listing his address at Fast
Mailbox Plus as “your new address.â€
Cabrera also found on the desk printouts confirming the Pookies order
and orders he had placed with other vendors.
Cabrera found in defendant’s motel room the following items:
1. Tools
used to make counterfeit money orders and ID cards;
2. Papers
and notes for making ID cards for Calvin Johnson and Jerry Green;
3. Printouts
for mail-orders;
4. A printout
on lobster claw clasps;
5. Keys for defendant’s Fast Mailbox Plus mail box and for
entering the Fast Mailbox Plus store;
6. A piece of paper with eight social security numbers on it.
III
SUFFICIENCY OF EVIDENCE OF INTENT TO COMMIT FORGERY
Defendant
contends there was insufficient evidence that defendant possessed false VA ID
cards and California ID cards, with intent to commit forgery in violation of
section 470b.
We apply the substantial evidence standard of review when
considering whether there was sufficient evidence to support defendant’s
convictions. In doing so, this court
must “review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.†(People v. Rodriguez (1999) 20 Cal.4th
1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578.) “Resolution of conflicts and inconsistencies
in the testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a
conviction.†(People v. Young
(2005) 34 Cal.4th 1149, 1181; see also People
v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.)
A conviction for violating section 470b requires evidence
of intent to commit forgery. Section
470b provides: “Every person who
displays or causes or permits to be displayed or has in his or her possession
any driver’s license or identification card of the type enumerated in Section
470a with the intent that the driver’s license or identification card be used
to facilitate the commission of any forgery, is punishable by imprisonment in a
county jail for not more than one year, or by imprisonment pursuant to
subdivision (h) of Section 1170.â€
Section 470a includes “any driver’s license or identification card
issued by a governmental agency,†such as a California ID card or VA ID
card.
The offense of
three elements, namely, “a
writing or other subject of forgery,
the false making of the writing, and [an] intent to defraud.†(People v. Gaul-Alexander (1995) 32
Cal.App.4th 735, 741.) “An intent to
defraud is an intent to deceive another person for the purpose of gaining a
material advantage over that person or to induce that person to part with
property or alter that person’s position by some false statement or false
representation of fact, wrongful concealment or suppression of the truth or by
any artifice or act designed to deceive.â€
(People v. Pugh (2002)
104 Cal.App.4th 66, 72.)
In
the instant case, defendant was convicted of counts 6 through 8 for possessing
false ID cards with intent to commit forgery in violation of section 470b. Defendant was charged with committing count 6
on February 27, 2010, by presenting a California ID card and VA ID card for the
purpose of renting a mailbox at Postal Annex, using the alias, Daryl Wilson. Defendant allegedly committed count 7 on June
4, 2010, by using a California ID card and VA ID card to facilitate renting a
mailbox at Mail Plus and More, using the alias, Daryl Wilson. Defendant was charged with committing count 8
on December 27, 2010, by presenting a California ID card and VA ID card for the
purpose of renting a mailbox at Fast Mailbox Plus, using the alias, Jerry
Green, doing business as Calvin Johnson.
In each instance, defendant rented mailboxes using ID cards with his
photograph but with aliases. Defendant
used the mailboxes to facilitate theft from various companies by placing orders
of merchandise, with the merchandise delivered to defendant’s rented mailboxes. The trier of fact could reasonably find that
defendant rented the mailboxes with fake ID cards so as to avoid being
identified as the perpetrator of defendant’s acts of mail order fraud.
Defendant
argues there is insufficient evidence that defendant intended to use the false
ID cards to facilitate paying for the mail orders with counterfeit money
orders. Defendant notes that the fake ID
cards were allegedly presented on the dates he filled out and signed the three
mailbox rental applications and agreements.
Defendant argues that there is no evidence that at that time, he
intended to use the fake ID cards to facilitate creating counterfeit money
orders sent to the mail order businesses.
He acknowledges that the fake ID cards were used to rent mailboxes
intended to be used to facilitate the theft of merchandise from Internet mail
order businesses but asserts this was not sufficient for a finding of violating
section 470b. He claims there was no
evidence that renting the mailboxes under the false names facilitated the mail
order thefts. In addition, defendant
argues section 470b is not violated by possessing or displaying a fake ID card
with intent to facilitate theft. There
must be intent to use the fake ID card to facilitate forgery, rather than
merely theft. The ID cards were not used
to cash forged checks or for use during a purchase with a stolen credit card.
We
conclude there was more than sufficient evidence defendant had the intent to
use fake ID cards to facilitate the commission of a forgery. The prosecutor argued with regard to intent
to commit a forgery, that defendant’s “plan is open these PO Boxes under a fake
name so that he can later commit forgery, counterfeiting money orders, and
having the merchandise sent to that PO Box and making it difficult to track him
down as a perpetrator because he’s opening it up under a fake name.†It is undisputed defendant used falsified ID
cards to rent mailboxes. There was also
substantial evidence defendant presented the fake ID cards with intent to
defraud the mail order company owners, whom defendant paid with counterfeit
money orders and told to deliver merchandise to the rented mailboxes. Defendant intended to deceive the mail order
business owners and mailbox companies as to his actual identity in the event
the business owners attempted to locate him and hold him accountable for the
thefts.
Defendant argues there
nevertheless was insufficient evidence of violating section 470b (counts 6, 7,
and 8) because there was no evidence that, when defendant presented the fake ID
cards to the mailbox rental companies, he intended to commit a forgery. Defendant claims the evidence only shows that
he intended to rent mailboxes under fictitious names. But the jury could reasonably find that, when
he rented the mailboxes, he intended to do this as part of his scheme to use forged
money orders to purchase mail order merchandise, which would be delivered to
defendant’s rented mailboxes. Using the
fictitious mailbox names, verified by the fake ID cards, further facilitated
the forgery scheme because the mail order vendors were more likely to view
defendant’s mail orders as legitimate if the name on the counterfeit money
orders matched the name used for the mailbox rentals. There was thus substantial evidence showing
that defendant’s use of the fake ID cards was intended to facilitate a scheme
of committing forgery and theft of mail order merchandise, without defendant
being detected as the perpetrator of the forgery offenses.
IV
STAYING SENTENCES ON COUNTS
6 AND 7
Defendant
contends that, if this court concludes there was sufficient evidence
establishing that he possessed false ID cards with intent to use them to
facilitate the forgeries alleged in counts 1 through 4, then defendant’s
sentences on counts 6 and 7 should be stayed under section 654.
Whether
multiple convictions should be stayed pursuant to section 654 is primarily a
factual question which will not be disturbed on appeal if supported by
substantial evidence. (
776, 781.) “[W]e consider the evidence
in the light most favorable to respondent and presume the existence of every
fact the trier could reasonably deduce from the evidence.†(Ibid.) Section 654, subdivision (a), states as
follows: “An act or omission that is
punishable in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more
than one provision.†The purpose of
section 654 is to ensure punishment is commensurate with culpability. (People
v. Latimer (1993) 5 Cal.4th 1203, 1211.)
Section 654 “applies not
only where there was but one act in the ordinary sense, but also where there
was a course of conduct which violated more than one statute but nevertheless
constituted an indivisible transaction.
[Citation.] Whether a course of
conduct is indivisible depends upon the intent and objective of the actor. [Citation.]
If all the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.†(People
v. Perez (1979) 23 Cal.3d 545, 551.)
“On the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for the independent
violations committed in pursuit of each objective even though the violations
were parts of an otherwise indivisible course of conduct.†(Ibid.) Thus, when a course of conduct is at issue,
the focus of inquiry is whether the defendant entertained single or multiple
criminal objectives. (
465, 470.)
In considering whether to apply section
654, the court in People v. Curtin
(1994) 22 Cal.App.4th 528, 532, found it was appropriate to stay under section
654 the defendant’s conviction for forgery of a check, because forgery and
burglary were “part of the same indivisible transaction†and were “committed
for a single criminal objective, to cash the check.†(Ibid.) The facts of this case, however, are
distinguishable from those in Curtin. Here, defendant planned and carried out a
relatively sophisticated scheme in which he rented mailboxes using fabricated
falsified ID cards with aliases in February 2010 (count 6) and June 2010 (count
7). Later, in March 2010, September
2010, and October 2010, defendant used forged money orders to purchase
merchandise from various online vendors, with the merchandise delivered to
defendant’s rented mailboxes.
Defendant’s use of the false ID’s (counts 6 and 7) occurred separate
from the later acts of forgery (counts 1 through 4), in which defendant
purchased mail order merchandise using forged money orders. The trial court could have reasonably found
that defendant’s use of the false ID’s to rent mailboxes was not “part of the
same indivisible transaction†as the subsequent mail order thefts, or
necessarily “committed for a single criminal objective.â€
Even though it is apparent
defendant’s overall objective was to obtain mail-order merchandise paid for
with forged money orders, he had separate objectives when he used false ID
cards to rent mailboxes on different dates and at different locations. “It seems clear that a course of conduct
divisible in time, although directed to one objective, may give rise to
multiple violations and punishment.†(
639, fn. 11.) Accordingly, we conclude
it was appropriate for the trial court to impose separate sentences for each of
the forgery convictions (counts 1-4), as well as separate sentences for counts
6 and 7 for using false ID cards for the purpose of renting mailboxes, rather
than staying execution of the sentences on counts 6 and 7 under section 654.
V
STAYING SENTENCING ONLY ON
COUNT 7
Citing
People v. Spirlin (2000) 81
Cal.App.4th 119 (Spirlin), defendant
contends his sentence on count 7 must be stayed under section 654 because
counts 6 and 7 (using false ID cards to rent mailboxes) involved indivisible
acts or transactions with the same objectives of renting a mailbox for the
purpose of purchasing merchandise using counterfeit money orders.
In count 6, defendant was
convicted of presenting to the mailbox rental company, Postal Annex, a false
California ID card and VA ID card on February 27, 2010. The ID cards were in the name of Daryl
Wilson. In count 7, defendant was
convicted of presenting to the mailbox rental company, Mail Plus and More, on
June 4, 2010, the same false California ID card and VA ID card used on February
27, 2010. Defendant argues there was no
evidence that he did not remain in constructive possession of the ID cards
throughout the entire time he entered into both mailbox rental transactions
(from June through June 2010), and therefore he could be sentenced only once
for possessing the false ID cards.
We conclude the evidence was
sufficient to support findings that counts 6 and 7 involved divisible acts or
transactions with separate objectives, and therefore the trial court
appropriately sentenced defendant separately for each count. Counts 6 and 7 involve two completely
separate incidents, occurring over four months apart, at different mailbox
companies. Therefore, even though
defendant used the same ID cards to rent both mailboxes in furtherance of his
scheme of purchasing mail-order merchandise with counterfeit money orders,
defendant committed separate acts of renting two different mailboxes from
different companies on separate occasions.
Therefore counts 6 and 7 could reasonably be found to involve
imposition of separate sentencing.
Defendant’s reliance on
misplaced. The defendant in
while personally armed, and three counts of being a felon in
derived from defendant’s possession of the same gun during two robberies and
when he was arrested. Defendant was
sentenced separately for each of the three gun possession counts. The court in Spirlin held that sentencing on two of the counts must be stayed
under section 654, because defendant’s possession of the handgun was a single
act with a single objective, and defendant had continuous, constructive
possession of the gun from a couple of months before the robberies until the
defendant’s arrest, when the gun was found in his apartment.
unlike counts 6 and 7, the gun possession offense (§ 12021) in
be committed by either actual or constructive possession as long as possession
is intentional. (Spirlin, supra, 81 Cal.App.4th at p. 130.) In Spirlin
the court concluded there was sufficient evidence of constructive possession to
establish defendant was in continuous possession of the gun. Therefore the defendant’s intent to possess
the gun did not change each time he committed a robbery or when he was
arrested. (Id. at p. 131.) The court
thus held defendant’s possession of the gun was a single act with a single
objective and the trial court to stay imposition of sentence on two of the gun
possession counts.
Here,
possession of the false ID cards was not all that was required for defendant’s
count 6 and 7 convictions. Unlike in
intent crimes, which require specific intent to facilitate a
the same false ID cards in counts 6 and 7, there was also evidence that he
rented different mailboxes in counts 6 and 7, at different locations, from
different companies, on different dates, and each mailbox was used for
different, separate transactions, involving different clients. This evidence established that counts 6 and 7
involved divisible acts and transactions with separate objectives, and
therefore the trial court was not required to stay sentencing on count 7 under
section 654.
VI
PRIOR STRIKE ALLEGATION
Defendant
contends there was insufficient evidence to support the jury’s true finding
that he had a prior strike conviction for robbery. Defendant argues that the prosecution did not
submit any copies of Los Angeles Superior Court records of the prior
conviction.
Normally,
proving the fact and nature of a prior conviction is done by introducing
“certified documents from the record of the prior court proceeding and
commitment to prison, including the abstract of judgment describing the prior
offense.†(People v. Delgado (2008) 43 Cal.4th 1059, 1066.) “‘[The] trier of fact is entitled to draw
reasonable inferences from certified records offered to prove a defendant
suffered a prior conviction. . . .’
[Citations.] ‘[O]fficial
government records clearly describing a prior conviction presumptively
establish that the conviction in fact occurred, assuming those records meet the
threshold standards of admissibility.
(See Evid. Code, § 664 [“It is presumed that official duty has been
regularly performedâ€].) Some evidence
must rebut this presumption before the authenticity, accuracy, or sufficiency
of the prior conviction records can be called into question.’ [Citation.]â€
(Ibid.) “[I]f the prosecutor presents, by such
records, prima facie evidence of a prior conviction that satisfies the elements
of the recidivist enhancement at issue, and if there is no contrary evidence,
the fact finder, utilizing the official duty presumption, may determine that a
qualifying conviction occurred.
[Citations.]†(
“On review, we examine the
record in the light most favorable to the judgment to ascertain whether it is
supported by substantial evidence. In
other words, we determine whether a rational trier of fact could have found
that the prosecution sustained its burden of proving the elements of the
sentence enhancement beyond a reasonable doubt.†(People
v. Delgado, supra, 43 Cal.4th at p. 1067.)
The jury in the instant case
found true the allegation that defendant was convicted of robbery on August 6,
1987, in case No. A098955, in Los Angeles County. The People introduced exhibit 79 to prove the
prior strike allegation. Exhibit 79
included the preliminary hearing transcript and documents prepared by a
probation officer, including a probation officer report stating defendant was
convicted of robbery, for which he was granted probation on February 2,
1990. Included with the report was an
order dated December 22, 1994, revoking probation. Defendant complains that the probation report
order is not file stamped and does not constitute part of the record of the
prior conviction. But the report
includes an order signed by the judge, revoking probation. Therefore the documents were properly
considered by the court in support of the prior conviction allegation.
The
prosecution also submitted a supplemental probation report filed on October 30,
1995. Defendant argues the report does
not mention a conviction for robbery occurring in 1987. Defendant complains a third document, which
is another probation officer’s report, is dated “read and approved†on December
11, 1990 by the probation officer and counsel, and states defendant was
convicted of a robbery, but the document is not file stamped. The document is stamped, “COURT COPY,†is
signed by the judge, and is dated December 15, 1989. Another probation report stamped “court copyâ€
and dated October 22, 1990, states that defendant was convicted of robbery, he
was granted probation in February 1990, and the probation officer recommended
revoking probation because defendant was arrested and charged with burglary in
September 1990. Another probation report
stamped “COURT COPY,†stated defendant pled guilty and was convicted of robbery
on August 6, 1987. Federal charges were
dismissed. Defendant asserts the report
should not be considered because it is not file stamped, is not dated, and a
judge did not sign the report, confirming the judge read and considered it.
Defendant
argues none of the probation reports could be considered part of the record of
defendant’s prior robbery conviction because they are not file stamped, with
the exception of one report, which was filed eight years after the prior
conviction and the report makes no mention of the robbery conviction. Nevertheless, we conclude the documents the
prosecution relied upon in proving defendant’s prior robbery conviction contain
reliable certified probation reports and court documents from which the jury
could reasonably find that defendant suffered the alleged prior robbery
conviction. The documents were certified
as official records of the Los Angeles County Superior Court and therefore
provided sufficient evidence to support the trial court’s finding the prior
strike allegation was true. (Evid. Code,
§§ 664, 1280.)
VII
GOOD CONDUCT CREDITS UNDER
SECTION 4019
Defendant
contends the trial court miscalculated his presentence good conduct credits
under the amended version of section 4019, effective October 1, 2011. He argues that his constitutional equal
protection rights were violated by the trial court not applying the amended
version retrospectively. We disagree.
Defendant
committed the charged crimes in February, March, June, September, and October
2010. He was sentenced on November 8,
2011. Defendant was in custody because
of a parole violation from June 9, 2010, through September 7, 2010 (91 days). He returned to custody on December 28, 2010,
and remained in custody through the date of sentencing on November 8, 2011 (316
days). At the sentencing hearing, the
trial court awarded defendant 407 days of actual custody credit. Because defendant had a strike, he received
only 202 days of good conduct credit under the 1982 version of section 4019,
for a total of 609 days of credit.
Operative
October 1, 2011, the Legislature amended section 4019 to allow all defendants
serving presentence time in county jail to be eligible for day for day
credit. (Stats. 2011, ch. 15, § 482,
eff. Apr. 4, 2011, Stats. 2011, ch. 39, § 53, and Stats. 2011, 1st Ex. Sess.
2011-2012, ch. 12, § 35.) Section 4019
now provides that “a term of four days will be deemed to have been served for
every two days spent in actual custody.â€
(§ 4019, subd. (f).) The
only defendants who are excluded from section 4019’s current day for day credit
provisions are those who have a current violent felony or murder
conviction. (See §§ 2933.1, subd. (c),
2933.2, subd. (c).) By its express
terms, the amendment to section 4019 applies only to defendants whose crimes
were committed on or after October 1, 2011.
(§ 4019, subd. (h).)
Additionally, subdivision (h) expressly provides that this change “shall
apply prospectively and shall apply to prisoners who are confined to a county
jail, city jail, industrial farm, or road camp for a crime committed on or
after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.†(§ 4019,
subd. (h).)
Defendant argues that,
despite the express terms of section 4019, he is entitled to additional
presentence conduct credit on the ground that the equal protection clause
required that the recently amended section 4019 be applied to him
retroactively. Based on our Supreme
Court’s recent decisions in People v.
Brown (2012) 54 Cal.4th 314 (Brown)
and People v. Lara (2012) 54 Cal.4th
896 (Lara), we conclude that equal
protection principles do not require retroactive application of the October 1,
2011, amendment to section 4019.
In Lara, the Supreme Court explained it rejected the defendant’s equal
protection argument because, as stated in Brown,
supra, 54 Cal.4th at pages 328-330, “‘“[t]he obvious purposeâ€â€™ of a law
increasing conduct credits ‘“is to affect the behavior of inmates by providing
them with incentives to engage in productive work and maintain good conduct
while they are in prison.â€
[Citation.] “[T]his incentive
purpose has no meaning if an inmate is unaware of it. The very concept demands prospective
application.â€â€™ (Brown, at p. 329, quoting In
re Strick (1983) 148 Cal.App.3d 906, 913.)
Accordingly, prisoners who serve their pretrial detention before such a
law’s effective date, and those who serve their detention thereafter, are not
similarly situated with respect to the law’s purpose. (Brown,
at pp. 328-329.)†(Lara, supra, 54 Cal.4th at p. 906, fn. 9; see also
1546, 1551 [appellate court held that the Brown
court’s reasoning and conclusion applied equally to the Oct. 1, 2011,
amendment to § 4019, and that amendment did not apply retroactively].)
Defendant’s reliance on In
re Kapperman (1974) 11 Cal.3d 542 for the proposition section 4019 must be
applied retroactively to defendant, is also misplaced and resolved by well
settled law. As explained in
1546, 1552: “Brown rejected the
notion the case before it was controlled by In re Kapperman (1974) 11
Cal.3d 542 . . . , in which the court held equal protection required
retroactive application of a statute granting credit to felons for time served
in local custody before sentencing and commitment to state prison, despite the
fact the statute was expressly prospective.
(Brown, supra, 54 Cal.4th at p. 330.) Brown found Kapperman
distinguishable: ‘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, at p.
330.)â€
We agree with the reasoning
and conclusions of Brown,
entitled to additional good conduct credits.
VIII
CORRECTION OF ABSTRACT OF
JUDGMENT
Defendant
requests this court to order the abstract of judgment and sentencing minute
order dated November 8, 2011, corrected to show that the jury only found one
prison prior allegation true. The People
agree with the request.
The
jury found that defendant had four prior convictions. The jury also found one prior prison
term. The sentencing minute order dated
November 8, 2011, incorrectly states that there were four prison priors, for
which the trial court imposed a one-year prison term for each of the prison
priors, totaling four years, with three years stayed. The abstract of judgment incorporates the
incorrect information stated in the November 10, 2011 minute order; that
defendant suffered four prison priors, rather than only one. As the parties acknowledge, the November 8,
2011, minute order and the abstract of judgment filed on November 10, 2011,
must be amended to show that defendant sustained only one prison prior. (People
v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement of sentence
controls over conflicting minute order].)
IX
DISPOSITION
The matter is remanded to
the trial court with directions to amend the November 8, 2011, minute order to
show that the jury found only one prison prior allegation true and the trial
court imposed sentencing on only one prison prior. The trial court is
further instructed to
forward a corrected
affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
KING
Acting P. J.
MILLER
J.
Unless otherwise noted, all statutory references are to the Penal Code.
