P. v. >Flores>

















Filed 4/3/13 P. v. Flores
CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. JESSE ANTHONY FLORES, Defendant and Appellant.

H037031 (Monterey County Super. Ct. No. SS102699)

Defendant
Jesse Anthony Flores was convicted by jury trial of carrying a loaded firearm
on his person in a public place (former Pen. Code, § 12031, subd. (a)(1)),href="#_ftn1" name="_ftnref1" title="">[1]
having a concealed firearm on his person
(former § 12025, subd. (a)(2)), possessing a firearm in violation of a
probation condition (former § 12021, subd. (d)(1)), and active participation in
a criminal street gang (§ 186.22,
subd. (a)). The jury also found true
gang allegations (§ 186.22, subd. (b)(1)) attached to the carrying and
concealed firearm counts. The court
found true allegations in connection with the carrying and concealed firearm
counts that defendant was prohibited by a probation condition from possessing a
firearm (former §§ 12025, subd. (b)(4), 12031, subd. (a)(2)(D)) and that
he was not the registered owner of the firearm (former §§ 12025, subd. (b)(6),
12031, subd. (a)(2)(F)). Defendant was
committed to state prison for a four-year term.

On appeal,
he contends that (1) the active participation in a criminal street gang count
(the gang count), the gang enhancements, and the former section 12021 count are
not supported by substantial evidence, (2) the court violated his
constitutional rights by admitting into evidence statements he made during
booking without finding that the statements were voluntary, (3) the instructions
on the gang count erroneously failed to advise the jury that it required
specific intent, (4) the jury was misinstructed on the specific intent element
of the gang allegations, (5) the court gave an inadequate limiting instruction
on hearsay evidence relied on by the gang expert, (6) his trial counsel was
prejudicially deficient in failing to object to the admission of prejudicial
and irrelevant evidence, and (7) these errors were cumulatively
prejudicial. Defendant also asserts that
the concurrent term imposed for the gang count should have been stayed under
section 654, that he should have been granted additional presentence conduct
credit under a revised version of section 4019 that took effect after he was
sentenced, and that the restitution fines were erroneously imposed.href="#_ftn2" name="_ftnref2" title="">[2] We conclude that the gang count and the
former section 12021 count are not suppported by substantial evidence. We also find that a remand is required with
respect to the restitution fines.
Consequently, we reverse the judgment.



I. Factual Background

On December 8, 2010, Salinas Police
Officer Scott Sutton was informed at that day’s “briefing” that defendant was
“a person that may be wanted” by the police.
While he was on patrol at about 4:10
p.m. that afternoon, Sutton saw defendant about to enter the gate
to a large apartment complex and pulled his patrol car over about 100 feet in
front of defendant. The area surrounding
this apartment complex was a “stronghold for the Norteno gang in Salinas,”
and the “vast majority” of Salinas Nortenos reside in this area. There had been “a significant amount of
violence” in this area, including “shootings” and “robberies.”

As no
backup units were available, Sutton decided to make casual contact with
defendant to confirm his identity.
Sutton initiated a conversation by asking defendant if he could talk to
him about a car parked on the street.
Defendant was “nervous” and “fidgety,” and, when Sutton asked his name,
he falsely told Sutton that his name was “Steven Anthony Sotelo.”href="#_ftn3" name="_ftnref3" title="">[3] Sutton also asked defendant where he lived,
and defendant replied that he lived with his girlfriend in the apartment
complex. Defendant gave a nonexistent
address for his residence. Defendant
asked Sutton if Sutton wanted defendant to find out who owned the car, and
Sutton said “that would be great.”
Defendant walked away into the apartment complex.

Sutton then
confirmed defendant’s identity (by examining a photograph of him). He also confirmed that there was a warrant
out for defendant, that defendant “was on probation with search and seizure,”
and that defendant “had removed the probation department’s ankle
bracelet.” Less than half an hour after
his initial contact with defendant, Sutton saw defendant walking through the
apartment complex and called out to him through his car window “Hey.” Defendant looked at him and kept
walking. Sutton got out of his car and
said to defendant: “Hey, I just want to
talk to you about the car again.” Sutton
saw defendant place his forearm against his waistband, a “press check” gesture
that Sutton knew a person carrying a weapon often did subconsciously.

By now,
Sutton’s backup was en route. Defendant
agreed to talk to Sutton about the car, and he walked over to Sutton. Sutton asked defendant to have a seat on the
ground, and defendant did so. Defendant
again claimed that his name was Sotelo.
When the other officer arrived and Sutton went to handcuff defendant,
defendant revealed that he had a gun.
Sutton asked about the gun’s location, and defendant said it was in his
pocket. Sutton searched defendant and
found the gun in his waistband. The gun
had a clip in it with 13 rounds of live ammunition. Sutton arrested defendant and again asked
defendant for his name. This time,
defendant accurately identified himself.


Defendant
was arrested and taken to the police station.
Sutton did a “record check” on the gun, and “[t]here was no record” of
it. At the station, Sutton advised
defendant of his constitutional rights, and defendant acknowledged that he understood
his rights. Defendant told Sutton that
he had the gun because “[h]e heard a shot being fired at some point, and knows
the [C]ity of Salinas is dangerous, and he carries it for his protection.” He said he had bought the gun six months
earlier from a field worker. Sutton
“asked if he knew he’s a convicted felon and that precludes him from carrying a
weapon or owning a firearm. He stated
that he knew.” Defendant claimed that he
had removed the ankle bracelet “because he had smoked weed, and he knew he was
going to be tested by his probation officer.”
He said he had lied about his name because he “knew there would be a
warrant for him for removing the ankle bracelet, and he also had the gun.” Defendant told Sutton that he “does not
associate anymore” with the Norteno gang.
Sutton observed that there were four dots on defendant’s elbow. A tattoo with four dots is associated with
the Norteno gang.

At the
jail, defendant made “a specific housing request,” which was “[t]o be placed
with the northerners.” While in jail
awaiting trial, defendant obtained a prominent tattoo of the letter M on his
neck. The letter M “stands for Salinas
East Market, which is one of the biggest and probably the most powerfull [>sic] Norteno criminal street gang in the
city of Salinas.”

II. Procedural Background

Defendant
asked that the allegation that he was prohibited by a probation condition from
possessing a firearm be bifurcated, and the court granted his request.href="#_ftn4" name="_ftnref4" title="">[4] Only the substantive counts and the gang allegations
were submitted to the jury. Defendant
waived his right to jury trial on the remaining allegations, and they were
tried to the court.href="#_ftn5" name="_ftnref5"
title="">[5]

Salinas
Police Officer Robert Zuniga testified at trial as the prosecution’s gang
expert. To establish that the Norteno
gang qualified as a criminal street gang, Zuniga described three predicate
crimes committed by Norteno gang members.
One was committed in March 2009.
A loaded revolver was found in a vehicle driven by a Norteno gang member
during a traffic stop that prompted a search due to the odor of marijuana. Zuniga stated that the March 2009 crime was
committed for the benefit of the Norteno gang.
During a December 2009 traffic stop, a firearm was found concealed on
the person of a Norteno gang member. Zuniga
opined that the December 2009 crime was also committed for the benefit of the
Norteno gang. A September 2010 probation
search of a Norteno gang member’s house resulted in the discovery of a firearm. Again, Zuniga opined that the crime was
committed for the benefit of the Norteno gang.


Zuniga also
opined that defendant was an active participant in the Norteno gang at the time
of his arrest. Zuniga explained that his
opinion was based on the police reports in this case, defendant’s tattoos, his
“housing request” and “housing at the jail,” and “prior contacts with
[defendant] that are documented in the Salinas Police Department records, as
well as the current offense.” Zuniga
described three prior police contacts with defendant. In September 2008, defendant was in a car
with four Norteno gang members when the car was stopped by the police. A firearm and gang indicia were found in the
car. In November 2008, police responding
to a trespassing complaint made contact with three Norteno gang members and
defendant at a “known Norteno hangout.”
Defendant provided the police with a false name on that occasion. In November 2010, a probation search of
defendant’s residence turned up several items of gang indicia, one of which was
specifically associated with the Salinas East Market subset of the Norteno
gang. Defendant was arrested for
violating his juvenile probation. He was
released from custody on November 8, 2010, just a month before the current
offense.

Zuniga
testified that defendant’s possession of the firearm “does promote and it does
further the Norteno criminal street gang” because “[a] gun is a tool of the
trade for Norteno gang members” and “should the opportunity arise where a
Norteno gang member who is possessing a firearm has the ability to commit a
crime, such as a shooting or a robbery, they have that tool readily accessible
to use.” The firearm is also available
for protection purposes if the gang member is approached by a member of a rival
gang. “That enhances that individual’s
reputation to carry a firearm. It also
enhances the gang’s reputation for that particular individual to be carrying a
firearm. It shows how dangerous these
gang members can be.” This causes
intimidation and fear. For similar
reasons, Zuniga testified, defendant’s possession of the firearm benefitted the
gang because the firearm was “readily accessible should the opportunity arise
to commit a crime.”

Defendant’s
trial counsel did not argue to the jury that defendant was not guilty of the
three firearm counts. He argued only
that the prosecution had failed to prove the gang count and the gang
allegations. The jury returned guilty
verdicts on the four substantive counts and found the gang allegations
true. The court found the remaining
allegations true. It imposed a two-year
prison term for the carrying a loaded firearm count and a consecutive two-year
term for the gang allegation attached to that count.href="#_ftn6" name="_ftnref6" title="">[6] It imposed a concurrent term for the gang
count. For the other two counts, the
court imposed and stayed terms under section 654. The remaining enhancements were ordered
stricken under section 1385. Defendant
timely filed a notice of appeal.



III. Discussion

A. Substantial Evidence
Challenges

Our standard
of review is well established. “ ‘[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, >any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’ ”
(People v. >Johnson (1980) 26 Cal.3d 557, 576,
quoting Jackson v. >Virginia (1979) 443 U.S. 307,
318-319.) “[The] appellate court must
view the evidence in the light most favorable to respondent and presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (>People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger
(1991) 52 Cal.3d 1210, 1237.) “A
reasonable inference, however, ‘may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of
fact must be an inference drawn from evidence rather
than . . . a mere speculation as to probabilities without
evidence.’ ” (People
v. Morris (1988) 46 Cal.3d 1,
21.) A trier of fact may rely on
inferences to support a conviction only if those inferences are “of such
substantiality that a reasonable trier of fact could determine beyond a
reasonable doubt” that the inferred facts are true. (People
v. Raley (1992) 2 Cal.4th 870,
890-891.) “Evidence is sufficient to
support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ and is [citation], ‘credible and of
solid value.’ [Citation.]” (Id. at
p. 891.)

1. Gang Count

Defendant
contends that the jury’s verdict on the gang count is not supported by
substantial evidence because he acted alone in committing the offense, and
therefore did not promote, further, or assist any other gang member in his
commission of the underlying criminal conduct.
This precise issue was recently resolved by the California Supreme Court
in People v. Rodriguez (2012) 55
Cal.4th 1125 (Rodriguez). A gang member acting alone does not violate
section 186.22, subdivision (a). The
Attorney General concedes that Rodriguez
supports defendant’s contention. Hence,
defendant’s conviction on the gang count cannot be upheld due to insufficiency
of the evidence.

2. Gang Enhancements

Defendant
challenges the sufficiency of the evidence to support the specific intent
element of the gang enhancement allegations.

a. Background

Counsel
agreed during in limine motions that the gang expert “should not be allowed to
testify as to what [defendant’s] intent was at that time,” and the court so
ordered. On direct examination, the
prosecutor asked Zuniga: “Now, if an
individual is a gang member and carrying a firearm, what is your opinion as to
whether or not that person, individual, is car[r]ying that firearm their intent
to assist, further, or promote criminal conduct by the gang?” Zuniga replied: “It’s my opinion that they’re furthering and
promoting the Norteno criminal street gang.”
Defendant’s trial counsel did not interpose any objection. Zuniga went on to testify that, by possessing
a firearm, “they’re furthering the gang’s reputation to be violent” and
benefitting the gang by enabling the individual “to commit crimes should the
opportunity [arise].” Again, defendant’s
trial counsel interposed no objection.

b. Analysis

Defendant
contends that Zuniga’s testimony regarding the specific intent element was
insufficient to support the jury’s finding because his opinion was not based on
an adequate factual foundation but was instead merely speculation.

Defendant
relies on a series of cases, all of which relied at least in part on the Fifth
District Court of Appeal’s decision in People
v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), disapproved in part in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 (>Vang).href="#_ftn7" name="_ftnref7" title="">[7] Killebrew
did not involve a gang enhancement allegation.
Killebrew was convicted of conspiring to possess a handgun even though
he had not been seen anywhere near the handgun.
(Killebrew, at pp.
647-650.) The prosecution’s theory was
that Killebrew had been in a vehicle that was travelling with other vehicles
and that someone in these vehicles possessed a handgun. An expert was permitted to testify that “when
one gang member in a car possesses a gun, every other gang member in the car
knows of the gun and will constructively possess the gun.” (Killebrew,
at p. 652.) Killebrew claimed on appeal
that testimony about the “subjective knowledge and intent of each occupant in
the car” should not have been admitted.
(Ibid.) The Fifth District agreed. It opined that no prior case “permitted
testimony that a specific individual had specific knowledge or possessed a
specific intent,” although the court acknowledged that a court had previously
upheld the admission of similar opinion testimony “framed in terms of gangs in
general, not a specific defendant’s subjective expectation.” (Killebrew,
at p. 658.) Because the expert in >Killebrew had, in the Fifth District’s
view, explicitly testified that specific individuals “knew” of the presence of
the guns and “jointly possessed” them, his testimony was “an improper opinion
on the ultimate issue and should have been excluded.”href="#_ftn8" name="_ftnref8" title="">[8] (Killebrew,
at p. 658.)

>In re Frank S. (2006) 141 Cal.App.4th
1192 (Frank S.), like the case before
us and unlike Killebrew, concerned
the sufficiency of the evidence to support the specific intent element of a
gang enhancement allegation. Frank was
stopped by police after he ran a red light on his bicycle. He gave a false name, and the officer found a
concealed knife, a bindle of methamphetamine, and a red bandana in Frank’s
possession. (Frank S., at p. 1195.)
Frank admitted that he carried the knife to protect himself against “ ‘Southerners,’ ” as he was allied with northern street
gangs. (Frank S., at p. 1195.) The
gang expert was permitted to testify that Frank had possessed the knife to
protect himself, and she opined that gang members use knives to protect
themselves from rival gang members and to assault rival gang members. (Frank
S., at pp. 1195-1196.) On appeal,
Frank challenged the sufficiency of the evidence to support the specific intent
element of the gang enhancement. (>Frank S., at p. 1196.) Relying on Killebrew, the Fifth District concluded that the expert should not
have been permitted to testify “that a specific individual possessed a specific
intent.” (Frank S., at p. 1197.) As
the expert’s testimony was, in the Fifth District’s view, “the only evidence”
of Frank’s intent, the true finding on the enhancement allegation was not
supported by substantial evidence. (>Frank S., at pp. 1197-1199.)

>People v. Ramon (2009) 175 Cal.App.4th
843 (Ramon), like >Frank S., was a Fifth District case
concerning the sufficiency of the evidence to support the specific intent
element of gang enhancement allegations.
Ramon, a gang member, was stopped by police in his gang’s territory
while driving a stolen truck. A fellow
gang member was his passenger, and an unregistered firearm was found under the
driver’s seat. (Ramon, at pp. 846-847, 849.)
The prosecution’s gang expert testified at trial that the stolen truck
and the unregistered firearm could be used to commit gang crimes. (Ramon,
at p. 847.) He offered an opinion that
possession of a gun and driving of a stolen truck in gang territory therefore
benefitted the gang and that the perpetrators of these offenses would intend to
promote the gang. (Ramon, at p. 848.) The
expert testified that stolen trucks and firearms were “tools” that the gang
needed to commit other crimes. (>Ibid.)


Ramon
argued on appeal that the facts of his offenses plus the fact of his gang
membership and presence in gang territory were insufficient to support the
expert’s opinion on benefit and intent.
(Ramon, supra, 175 Cal.App.4th at pp. 849-850.) The Fifth District, relying on >Killebrew and Frank S., agreed. (>Ramon, at p. 851.) “These facts, standing alone, are not
adequate to establish that Ramon committed the crime with the specific intent
to promote, further, or assist criminal conduct by gang members. While Ramon may have been acting with this
specific intent, there is nothing in the record that would permit the People’s
expert to reach this conclusion.” (>Ibid.)
“The facts on which [the gang expert] based his testimony were
insufficient to permit him to construct an opinion about Ramon’s specific
intent in this case. His opinion, therefore,
cannot constitute substantial evidence to support the jury’s finding on the
gang enhancement.” (Ramon, at p. 852.) “While
the People’s expert’s opinion certainly was one possibility, it was not the
only possibility. And, as stated >ante, a mere possibility is not
sufficient to support a verdict.” (>Ramon, at p. 853.)

>People v. Ochoa (2009) 179 Cal.App.4th
650 (Ochoa) was a Fourth District
Court of Appeal case in which Ochoa challenged the sufficiency of the evidence
to support the gang benefit element of the gang enhancement allegations
attached to carjacking and felon in possession of a firearm counts. (Ochoa,
at p. 652.) Ochoa, a gang member, had
acted alone in committing a carjacking with a shotgun. (Ochoa,
at p. 653.) The offense had not occurred
in Ochoa’s gang’s territory. (>Ochoa, at p. 662.) A divided Fourth District found the evidence
insufficient to sustain the benefit element of the gang enhancements. “[N]othing in the circumstances of the
instant offenses sustain[s] the expert witness’s inference that they were gang
related.” (Ochoa, at pp. 661-662.)
“[The gang expert’s testimony] was based solely on speculation, not
evidence. An appellate court cannot
affirm a conviction based on speculation, conjecture, guesswork, or
supposition.” (Ochoa, at p. 663.) On the
other hand, the Ochoa court disagreed
with the Ramon court’s assessment of
the evidence in Ramon and said that
it would have found that evidence sufficient to support the specific intent
element. (Ochoa, at p. 661, fn. 6.)

>In re Daniel C. (2011) 195 Cal.App.4th
1350 (Daniel C.) was a First District
Court of Appeal case in which Daniel challenged the sufficiency of the evidence
to support the specific intent element of the gang enhancement allegation. Daniel and three other young men, all wearing
red, went into a store. Two of Daniel’s
companions were gang members, and he was an “affiliate.” After his companions left the store, Daniel
took a bottle of liquor and left without paying for it. A store employee confronted him, and Daniel
broke the bottle and attacked the employee with the broken bottle. He then escaped in a vehicle with the other
young men. (Daniel C., at pp. 1353-1355, 1362.)
A gang expert testified that the robbery was “gang-related” based on
gang membership, the coordinated actions of the young men, the fact that they
were wearing red, and the fact that crow bars and a baseball bat were found in
the vehicle. (Daniel C., at p. 1356.) The
First District found the evidence insufficient to support the specific intent
element of the gang enhancement allegation because there was no evidence that
defendant had acted “in concert” with his companions. Consequently, as Daniel was not himself a
gang member, he could not have intended to assist “gang members” in committing
the robbery (which the First District concluded he perpetrated alone), and the
specific intent element therefore lacked evidentiary support. (Daniel
C., at pp. 1361-1362.)

The
Attorney General acknowledges these cases but claims that they are all
distinguishable. It is true that almost
all of these cases may be distinguished from the case before us.href="#_ftn9" name="_ftnref9" title="">[9] Killebrew
had nothing to do with gang enhancement allegations and was founded on the
inadmissibility of evidence rather than the insufficiency of the evidence. The opinion in Frank S., which relied heavily on Killebrew, also seemed to turn on the alleged inadmissibility of
the expert’s testimony due to the expert inappropriately testifying about
Frank’s intent rather than in response to a hypothetical. Ochoa
did not concern the specific intent element, but the gang benefit element. The holding in Daniel C. was based on the court’s finding that Daniel was not a
gang member and therefore, because it found that he acted alone, could not have
intended to assist gang members.

Although
the Attorney General attempts to distinguish Ramon, this attempt is not entirely successful. Unlike in Ramon,
Zuniga testified that possession of firearms was among the Norteno gang’s
primary activities. While there was no
such evidence in Ramon, and the >Ramon court mentioned that it might have
made a difference, the other evidence of intent in Ramon, which the court found insufficient, was far stronger than it
is in this case. Ramon committed his
offenses in the company of a fellow gang member, which raised significant
inferences in favor of finding the specific intent element true that are not
present here. Evidence that it is a
primary activity of the Norteno gang to possess firearms does not >by itself provide significant support
for an inference that defendant’s solo possession of a firearm was actually
intended to promote, further, or assist in criminal activity by gang
members.

Nevertheless, we are not persuaded
that the evidence in this case was insufficient to support the jury’s finding
on the specific intent element.
“Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial
evidence is as sufficient as direct evidence to support a conviction.” (People
v. Bloom (1989) 48 Cal.3d 1194, 1208.)
We do not agree with defendant that the only facts supporting specific
intent were his gang membership and the fact that the offense was committed in
his gang’s territory. First, it was
significant that the area where defendant committed this offense was not just
gang territory but also known for shootings and robberies, both of which may be
substantially promoted, furthered, and assisted by possession of a firearm. Second, defendant admitted that he had had
the gun for six months for “protection.”
Given his gang membership, defendant’s intent to use the gun for
“protection” implied his involvement with fellow gang members in criminal
activity that would prompt such a need.
Third, defendant admitted removing his ankle bracelet, knowing a warrant
would be out for his arrest as a result, and knowing that he was precluded from
possessing a firearm. This concurrence
of circumstances strongly suggested that his firearm possession was not for
merely personal “protection” use but was intended to further some greater end
that would justify the heightened risks he knew he was taking. While Zuniga’s highly generalized (and
somewhat ambiguous) opinion testimony alone
might well not be sufficient to support the jury’s true finding on the specific
intent element, as suggested by the
cases on which defendant relies, the totality of the circumstantial evidence of
defendant’s intent was not so lacking in substantiality that it could not
support the jury’s finding. We reject
defendant’s challenge.

3. Former Section 12021 Count

Defendant
contends that the former section 12021 count cannot be upheld because the
prosecution produced no evidence that his possession of a firearm was
“[p]rohibited by an [e]xpress [c]ondition of [p]robation.” (Boldface omitted.)

Defendant
was charged with violating former section 12021, subdivision (d)(1). “Any person who, as an express condition of probation, is prohibited or restricted
from owning, possessing, controlling, receiving, or purchasing a firearm and
who owns, purchases, receives, or has in his or her possession or under his or
her custody or control, any firearm but who is not subject to subdivision (a)
or (c) is guilty of a public offense . . . .” (Former § 12021, subd. (d)(1), italics
added.) Although evidence was presented
at trial that defendant was on juvenile probation at the time of the current
offense, there was no mention of the conditions of his probation other than the
search condition. The prosecution and
the defense entered into a written stipulation that “[a] court had previously
ordered [defendant] not to possess firearms.”
The stipulation said nothing about any probation conditions. The jury was instructed that it was an
element of this count that “a Court has ordered the defendant not to possess a
firearm.” This instruction also told the
jury that “[t]he defendant and the People have stipulated or agreed that the
Court ordered the defendant not to possess a firearm. This stipulation means that you must accept
this fact as proved. Do not consider
this fact for any other purpose. Do not
speculate about why the Court’s order was made.”

The
Attorney General’s very brief response to this contention is that “[t]he jury
could readily infer from this evidence [(that is, evidence that defendant was
on probation with a search condition)] that the prior court order [mentioned in
the stipulation] was a probation condition.”
The Attorney General’s chain of reasoning assumes that the jury engaged
in unsupported speculation, rather than that it drew reasonable inferences from
the evidence. The record provides no
foundation whatsoever for such an inference.
The stipulation contained no reference to probation or probation
conditions, and no evidence was before the jury to suggest that the >probation search condition was in any
way related to the court’s order that
defendant was “not to possess a firearm.”
The prosecution simply failed to supply a necessary element of
proof. Consequently, we agree with
defendant that the former section 12021 count cannot be upheld due to the lack
of substantial evidence.



B. Booking Statements

Defendant
contends that the trial court erred in denying his request for an Evidence Code
section 402 hearing on the admissibility of statements he made during booking
on four separate occasions and in admitting those statements over his
objection.

1. Background

The
prosecution’s exhibit list, filed at the commencement of trial, specified that
it intended to introduce “Jail housing documents.”href="#_ftn10" name="_ftnref10" title="">[10] Defendant made an in limine motion seeking to
exclude evidence of defendant’s statements “to the [J]ailer” unless the
prosecution established at an Evidence Code section 402 hearing that the
“questioning did not violate Miranda and was within the exception noted in
People v. Gomez [citation].”href="#_ftn11"
name="_ftnref11" title="">[11] The defense characterized what it sought as
“a 402 voluntariness hearing” to determine whether the jailer was aware of
“what [defendant] was in on.” The
prosecution asserted that there was no need for such a hearing because “every
single person who comes into the jail goes through the same booking process”
and is asked “the same questions” so that housing determinations can be
made. The court concluded that no
hearing was necessary because it was irrelevant whether the jailer knew of the
charges, since the same questions would have been asked in any case.

Defendant’s
trial counsel thereafter stipulated to the admission of the four “intake
screening questionnaire[s]” without foundational testimony. He agreed that he would prefer to
“cross-examine the experts” with respect to these documents rather than
“calling the specific deputy that took the statements.” Zuniga therefore testified about the four
questionnaires, which were admitted into evidence.

Four forms
entitled “CLASSIFICATION INMATE INTAKE SCREENING QUESTIONNAIRE” were admitted
into evidence. These form questionnaires
were dated December 8, 2010, November 13, 2010, August 3, 2010, and July 26,
2010. Each form consisted of preprinted
questions that were to be answered primarily by circling “Y” or “N.” Some questions were followed by blanks where
the requested information was to be recorded.
Each form was signed by defendant and a sheriff’s deputy.

The upper
section of the form was preceded by the instruction “Ask the inmate the following:” This was followed by about 20 questions. Two of these questions explicitly concerned
gangs. The question “Have you or any
family member ever been associated with a gang?” was followed by “(I)nmate /
(F)amily / (N)o.” The question “If so,
what gang, and what was the status in the gang and length of time?” was
followed by a blank to be filled in with the information. The lower section of the form was preceded by
the instruction: “Deputy to answer:”
This was followed by about a dozen questions, including “Are the charges
violent?,” “Officer’s observation for housing?,”
“Scars / Marks / Tattoos?
List all:,” and “Clothing.”

On the
upper section of the December 2010 form, “(I)nmate” was circled after the
question about gang association, and the deputy had recorded defendant’s
response to the question about the identity of the gang as “stated, ‘I
associate w/Nor.’ ” It also recorded that defendant said he had
previously been housed in “K-POD,” would like to be housed in “(G).P.,” was on
probation, and had no enemies.href="#_ftn12"
name="_ftnref12" title="">[12] On the lower section of the December form,
the deputy had responded “Y” to the question “Are the charges violent?” and had
written in “WEAPONS” next to that question.
The deputy’s response regarding housing was “(G).P.”href="#_ftn13" name="_ftnref13" title="">[13] The deputy had also recorded that defendant
had “4-DOTS” on his left elbow and that his clothing was a black and white
jacket, a black shirt, black pants, and white shoes.

The
November 2010 form reported that defendant identified his gang association as
“Salinas,” said that he wanted to be housed in “K-POD,” and reported that his
enemies were “Surenos.” His clothing was
identified as black and brown, and the deputy reported no tattoos.href="#_ftn14" name="_ftnref14" title="">[14]

The August
2010 form reported that defendant said he “associates” “w/nortenos,” and wanted
to be housed “w/nortenos,” and his
“enemies” were “Surenos.”href="#_ftn15"
name="_ftnref15" title="">[15] None of his clothing was red.

The July
2010 form similarly reported that defendant had identified his gang association
as “NORTENO ASSOCIATE” and asked to be housed in “(G).P.” The deputy reported on the July form that
defendant had no tattoos and was wearing all black clothing.

Zuniga
testified that someone who is not a gang member would not be permitted by the
other gang members to remain housed in a gang “pod” at the jail. The other gang members would tell the person
to leave or assault the person to cause the person’s removal.

During
trial, the defense renewed its objection to the admission of the booking
questionnaires without a voluntariness inquiry.
The questionnaires were admitted into evidence over this objection. In his closing argument, defendant’s trial
counsel expressly invited the jury to look at the “booking sheet” in support of
his argument that defendant was not wearing any gang clothing at the time of
his arrest and that he was wearing a jacket that would have concealed his four
dots tattoo. He also asked the jury to
examine the booking questionnaires on other issues.

The trial
court instructed the jury with CALCRIM No. 358:
“You have heard that the defendant made oral statements before the
trial. You must decide whether the
defendant made any of these statements in whole or in part. If you decide that the defendant made such
statements, consider the statements along with the other evidence in reaching
your verdict. It is up to you to decide
how much importance to give to the statements.
Consider with caution any statement made by the defendant tending to
show his guilt unless the statement was written or otherwise recorded.”

Shortly
after giving CALCRIM No. 358, the court also gave CALCRIM No. 360. “Officer Zuniga testified [that] in reaching
his conclusions as an expert witness, he considered statements made by jail
classification deputies. You may
consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof
that the information contained in the statements is true.”

2. Analysis

Defendant
seems to be making both procedural and substantive contentions. He claims that the trial court erred in
failing to hold the requested hearing, and he asserts that the trial court
erred in admitting the evidence because the prosecution failed to establish that
he had waived his Fifth Amendment rights
and voluntarily responded to the deputies’ questions.

We can find
no merit in his procedural contention.
“[I]n a criminal action, the court shall hear and determine the question
of the admissibility of a confession or admission of the defendant out of the
presence and hearing of the jury if any party so requests.” (Evid. Code, § 402, subd. (b).) This statute applies “[w]hen the existence of
a preliminary fact is disputed.” (Evid.
Code, § 402, subd. (a).) It is designed
to prevent evidence from being disclosed to the jury prior to a ruling on its
admissibility. Here, the trial court
correctly “hear[d] and determine[d]” the admissibility of defendant’s
statements outside the presence of the jury as requested by defendant. While no evidentiary
hearing was held on this issue, the statute does not explicitly require that
such a hearing be held. Here, the trial
court plainly concluded that there were no material factual disputes as to any
preliminary facts.

Defendant’s
substantive contention also lacks merit.
Below, relying on People v. Gomez
(2011) 192 Cal.App.4th 609 (Gomez),
defendant contended that the statements were inadmissible in the absence of
proof of two preliminary facts: (1) the
statements were “voluntar[y]”; and (2) the deputies who filled out the forms
were not aware of the charges against defendant when they did so.

In >Gomez, the Fourth District stated that
“whether a question about a suspect’s gang affiliation during a booking interview
is encompassed by the booking question exception depends upon whether, under
all the facts and circumstances, the question was designed to elicit an
incriminating response.” (>Gomez, supra, 192 Cal.App.4th at p. 627.)
“In determining whether a question is within the booking question
exception, courts should carefully scrutinize the facts surrounding the
encounter to determine whether the questions are legitimate booking questions
or a pretext for eliciting incriminating information. [Citation.]
Courts have considered several factors, including the nature of the
questions, such as whether they seek merely identifying data necessary for
booking [citations]; the context of the interrogation, such as whether the
questions were asked during a noninvestigative, clerical booking process and
pursuant to a standard booking form or questionnaire [citations]; the knowledge
and intent of the government agent asking the questions [citations]; the
relationship between the question asked and the crime the defendant was
suspected of committing [citations]; and any other indications that the
questions were designed, at least in part, to elicit incriminating evidence and
merely asked under the guise or pretext of seeking routine biographical
information [citations].” (>Gomez, at pp. 630-631.)

We review
the trial court’s ruling under a primarily deferential standard of review. “ ‘ “[W]e
accept the trial court’s resolution of disputed facts and inferences, and its
evaluations of credibility, if supported by substantial evidence. We independently determine from the
undisputed facts and the facts properly found by the trial court whether the
challenged statement was illegally obtained.”
[Citation.]’ ” (Gomez,
supra, 192 Cal.App.4th at p.
627.) The forms themselves were substantial
evidence supporting the trial court’s decision.
The trial court could reasonably conclude from the forms themselves that
the two standardized questions regarding gang associations were routine
inquiries for the purpose of making appropriate jail housing assignments. Defendant was asked: (1) “Have you or any family member ever been
associated with a gang?”; and (2) “If so, what gang, and what was the status in
the gang and length of time?” The fact
that these questions appeared on standardized forms clearly used for every
person booked into the jail and that they were plainly essential to the purpose
of obtaining vital information necessary to ensure the safety of jail inmates
eliminated any possibility that the questions were pretextual or designed for
an investigative purpose. As the trial
court recognized, the subjective state of mind of the deputy asking these
necessary, standardized questions was therefore irrelevant. The trial court did not err in admitting into
evidence defendant’s answers to these questions.



C. Instructional Error
Assertions

Defendant
claims that the court made three instructional errors. The first of these alleged errors concerns
the gang count, which we have already determined must be reversed due to
insufficiency of the evidence. We
therefore need not address that contention.
Defendant’s remaining claims of instructional error concern the
instructions on the gang enhancement allegations and the court’s limiting
instruction.

1. Gang Enhancements

Defendant
contends that the trial court gave conflicting instructions on the specific
intent element of the gang allegations.

When the
court initially instructed the jury as to which counts and allegations required
specific intent and which required general intent, the court told the jury that
each of the gang enhancement allegations “requires a specific intent or mental
state: That the crimes charged in Counts
1 and 2 [the carrying and concealed firearm counts] were committed for the benefit of a criminal street gang. For you to find this allegation true, that
person must not only intentionally commit the prohibited act, but must [do] so
with a specific intent. The act and the specific intent required >are explained in the instruction for that
allegation.” (Italics added.) When the court thereafter instructed the jury
on the gang allegations, it told the jury:
“To prove this allegation, the People must prove that, one, the
defendant committed the crime for the benefit of, at the direction of, and in
association with a criminal street gang; and
two, the defendant intended to assist, further, or promote criminal conduct by
gang members.” (Italics added.)

When a
criminal defendant challenges the propriety of a jury instruction, we inquire “ ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way’ that
violates the Constitution.” (>Estelle v. McGuire (1991) 502 U.S. 62,
72, quoting Boyde v. California
(1990) 494 U.S. 370, 380 (Boyde).) We evaluate the challenged instruction in the
context of all the instructions given by the trial court. (Boyde, at p. 378.) We will find error only if it is reasonably
likely that the jury misunderstood the law.
(People v. Kelly (1992) 1
Cal.4th 495, 525-526.)

Here, the
trial court’s initial instruction identifying the gang allegations as ones
requiring a specific intent did not purport to be itself an instruction on the nature of the required specific
intent. Instead, this instruction, which
referred to the gang allegations generally as the allegations that the crimes
were “committed for the benefit of a criminal street gang,” explicitly told the
jury that the required specific intent for these allegations would be
“explained in the instruction for that allegation.” Consistent with this initial instruction, the
required specific intent was thereafter accurately explained in the instruction
on the elements of the gang allegations.
When the two instructions are considered together, it is clear that it
was not reasonably likely that the jury would misunderstand the nature of the
specific intent element of the gang allegations. We find no error.

2. Limiting Instruction

Defendant
complains that the trial court gave an inadequate limiting instruction
regarding the hearsay evidence relied on by the gang expert.

a. Background

The defense
made in limine request for a limiting instruction on any hearsay evidence
relied upon by a witness to support an opinion.
“We request the instruction include advising the jury that hearsay
cannot be admitted for its truth, that any facts encompassed in the hearsay
must be independently proven by admissible evidence before the facts can be
accepted as true or not.” A “requested
limiting instruction” was attached to the in limine motion. The attached instruction read: “You are about to hear hearsay testimony from
this witness about certain events which the witness will rely upon to arrive at
his opinion. None of this hearsay testimony
you will hear is proof that the facts stated are true. Any facts contained in the hearsay must be
independently proven before you may accept them as true. Otherwise you may use them only in evaluating
the witnesses [sic] opinion
testimony.”

At the in
limine hearing, defendant’s trial counsel asked the court to give a limiting
instruction before the expert’s testimony about hearsay “that the things they
are about to hear are to be received only for the purpose of evaluating the
expert’s opinion.” The court asked if
the defense was requesting “CALCRIM 1403,” and defendant’s trial counsel
confirmed as much. The court then
said: “The Court grants the motion. I think you’re entitled to the instruction. And as far as reading it before the expert
testifies, let me take a look at it. I
may very well do that.”

The trial
court did not give a limiting instruction before Zuniga testified, and
defendant’s trial counsel did not renew his request that it do so. At the conclusion of trial, the court
instructed the jury with CALCRIM No. 1403.
“You may consider evidence of gang activity only for the limited purpose
of deciding whether the defendant acted with the intent, purpose, and knowledge
that are required to prove the gang-related crimes and enhancements charged, or
the defendant had a motive to commit the crimes charged. You may also consider this evidence when you
evaluate the credibility or believability of a witness, and when you consider
the facts and information relied on by an expert witness in reaching his
opinion. [¶] You may not consider this evidence for any
other purpose. You may not conclude from
this evidence that the defendant is person of bad character, or that he has a
disposition to commit crime. [¶] Membership in a gang, by itself, is not
unlawful.” The court also instructed the
jury with CALCRIM No. 332 that it should consider, in evaluating the expert’s
testimony, “the facts or information on which the expert relied in reach that
opinion. [¶] You must decide whether information on which
the expert relied was true and accurate.
You may disregard any opinion that you find unbelievable, unreasonable,
or unsupported by the evidence.”
Defendant’s trial counsel never requested any modification of either of
these instructions.

b. Analysis

Defendant
now claims that the trial court’s use of CALCRIM No. 1403 did not adequately
advise the jury regarding the limited use it was permitted to make of hearsay
testified to by Zuniga. Defendant does
not claim on appeal that the timing of the instruction was erroneous. Instead, defendant’s appellate claim is that
the trial court should have modified CALCRIM No. 1403 “to include all of the
hearsay ‘facts’ introduced by the gang expert.”


The
Attorney General contends that defendant forfeited any challenge to the >adequacy of the limiting instruction
since his trial counsel confirmed to the trial court that his request was for
CALCRIM No. 1403, the trial court gave precisely that instruction, and
defendant’s trial counsel did not request any modification of that
instruction. We agree.

A trial
court has no obligation to give a sua
sponte limiting instruction. (>People v. Hernandez (2004) 33 Cal.4th
1040, 1051.) Nor does it have any duty
to modify an instruction in the absence of a request. (People
v. Holloway (2004) 33 Cal.4th 96, 154.)
Here, although defendant’s trial counsel initially requested a
nonstandard limiting instruction, in response to the trial court’s inquiry, he
confirmed that he was actually requesting CALCRIM No. 1403. And he never requested that this standard
instruction be modified in any respect.
Consequently, this claim has been forfeited.

Defendant
alternatively contends that his trial counsel was prejudicially deficient in
failing to preserve this issue for review.
The appellate record fails to establish that his trial counsel did not
act strategically in choosing to accept CALCRIM No. 1403 as an adequate
limiting instruction. (Cf. >People v. Maury (2003) 30 Cal.4th 342,
394 [“A reasonable attorney may have tactically concluded that the risk of a limiting
instruction . . . outweighed the questionable benefits such
instruction would provide.”].)

Zuniga
testified about three categories of hearsay:
(1) defendant’s booking statements, which, as defendant’s admissions,
were admissible for their truth, and were independently admitted when the
questionnaires were admitted into evidence after defendant’s trial counsel
expressly waived any foundational objections; (2) defendant’s prior contacts
with the police; and (3) the gang’s predicate offenses, documentary evidence of
which was also introduced into evidence.


Defendant’s
trial counsel could reasonably have concluded that there was nothing to be
gained in limiting the jury’s consideration of defendant’s prior police
contacts in light of the undisputed nonhearsay evidence that defendant was on
probation and had cut off his ankle bracelet.
The jury could readily infer from this undisputed nonhearsay evidence
that defendant had had some prior contacts with the police. His prior contacts, which consisted of being
found with gang members and with gang indicia, had little relevance to anything
other than Zuniga’s opinion testimony that defendant was a gang member, an
issue upon which the jury could properly consider this evidence. As the other two categories of evidence were
not introduced solely though Zuniga’s testimony, but were before the jury as
documentary evidence, the proposed limiting instruction would have been
ineffective to restrict the jury’s consideration of Zuniga’s testimony
regarding them. Moreover, defendant’s
trial counsel could have concluded that it would only confuse the jury to ask
it to perform the mental gymnastics that would be required to consider whether
this evidence supported Zuniga’s opinion without considering its truth. The record before us does not sustain
defendant’s claim that his trial counsel was deficient in failing to preserve
this issue.



D. Ineffective Assistance of
Counsel

Defendant
claims that his trial counsel was prejudicially deficient in failing to object to
the admission of evidence that defendant:
(1) was a “convicted felon,” (2) had prior felony arrests, (3) was
wanted on a warrant for removing an ankle bracelet, (4) had been mentioned at a
police “briefing” as “a person that may be wanted” by the police, (5) was on
probation and subject to a search condition, and (6) had committed a current
offense that was considered “violent” by a jail deputy.

When a
defendant challenges his conviction based on a claim of ineffective assistance
of counsel, he must prove that counsel’s performance was deficient and that his
defense was prejudiced by those deficiencies.
(People v. Ledesma (1987) 43
Cal.3d 171, 218; Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland).) “First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland,> at p. 687.) “Judicial scrutiny of counsel’s performance
must be highly deferential . . . a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” (Strickland, at p. 689.)
Thus, whenever counsel’s conduct can be reasonably attributed to sound
strategy, a reviewing court will presume that the conduct was the result of a
competent tactical decision, and defendant must overcome that presumption to
establish ineffective assistance. (>Ibid.)

We see no
deficiencies in defendant’s trial counsel’s failure to object to these snippets
of evidence because defendant had admitted
most of these facts at the time of his arrest, and his admissions were relevant
to his state of mind at that time.
Defendant admitted to Sutton that he “knew” he was “a convicted felon”
who was not allowed to possess a firearm.
He also told Sutton that he had removed the ankle bracelet in an attempt
to avoid contact with his probation officer.
Defendant also said he “knew there would be a warrant for him for
removing the ankle bracelet.” Since
defendant’s admissions were properly before the jury as relevant evidence of
his state of mind, defendant’s trial counsel’s decision to forgo objecting to
other evidence of these same facts was a reasonable strategic decision.href="#_ftn16" name="_ftnref16" title="">[16] Because the trial court instructed the jury
that it could consider “statements made by jail classification
deputies . . . only to evaluate the expert’s opinion” and
could not consider them “as proof that the information contained in the
statements is true,” defendant’s trial counsel reasonably could have decided
that there would be no tactical advantage in seeking redaction of the deputy’s
affirmative response to the question as to whether defendant’s offense was
“violent,” particularly since it was explained by the deputy’s having written
in “weapon.”



E. Cumulative Prejudice

As there
are no errors that could have led to cumulative prejudice, we reject this
contention.



F. Sentencing Error Assertions

1. Section 654

Defendant
contends that the trial court erred in failing to stay his sentence for the
gang count. Since his conviction on that
count must be vacated due to insufficiency of the evidence, we need not reach
this issue. We note that the California
Supreme Court recently decided in People
v. Mesa (2012) 54 Cal.4th 191 that section 654 precludes punishment for
both the gang crime and the underlying felony.






2. Section 4019

Defendant
maintains that the trial court should have awarded him additional credit under
the amended version of section 4019 that took effect in October 2011.

Defendant’s
crimes occurred in December 2010. At his
June 2011 sentencing, defendant was given credit for 183 days of actual
presentence custody and 91 days of conduct credit.href="#_ftn17" name="_ftnref17" title="">[17]

At the time
of defendant’s crimes and sentencing, the September 2010 version of section
4019 was in force, and it provided that a defendant would receive two days of
conduct credit for every four days of
actual custody credit. (Stats. 2010, ch.
426, § 2.) At that same time, the
September 2010 version of section 2933 provided that, “[n]otwithstanding
Section 4019 and subject to the limitations of this subdivision,” some
defendants were eligible for one day of conduct credit for every one day of
actual custody credit. (Stats. 2010, ch.
426, § 1; former § 2933, subd. (e).) The
“limitations” were that “Section 4019, and not this subdivision, shall apply if
the prisoner . . . was
committed for a serious felony, as defined in Section 1192.7, or has a
prior conviction for a serious felony, as defined in Section 1192.7, or a
violent felony, as defined in Section 667.5.”
(Stats. 2010, ch. 426, § 1; former § 2933, subd. (e)(3).)

Defendant
was ineligible for an award of conduct credit under that version of section
2933, which provided for one-for-one conduct credit, because he was being
committed for two serious felonies.
“[A]ny felony offense, which would also constitute a felony violation of
Section 186.22” is a serious felony. (§
1192.7, subd. (c).) This includes felony
offenses to which gang enhancement allegations are attached. (People
v. Briceno (2004) 34 Cal.4th 451, 456.)
Defendant’s current carrying and concealed firearm offenses were
therefore serious felonies, and the provisions of the September 2010 version of
section 2933 were inapplicable to him. Consequently, only the two-for-four conduct
credit provision in the September 2010 version of section 4019 was applicable
to him.

In April
2011, section 4019 was amended to provide for two days of conduct credit for
every two days of actual
custody. (Stats. 2011, ch. 15, §
482.) However, this amended version
explicitly provided that it was prospective only and applied only to crimes
committed on or after July 1, 2011. In
June 2011, before those prospective provisions took effect, section 4019 was
again amended. This version changed the
prospective date to October 1, 2011.href="#_ftn18" name="_ftnref18" title="">[18] (Stats. 2011, ch. 39, § 53.) Defendant was sentenced in June 2011. In September 2011, section 2933 was amended. (Stats. 2011, 1st Ex. Sess., 2011-2012, ch.
12, § 16.) The provisions for one day of
conduct credit for every day of actual custody credit were deleted along with
the limitations attached to that provision, effective October 1, 2011. (Stats. 2011, 1st Ex. Sess., 2011-2012, ch. 12,
§ 16.)

Defendant
argues that the trial court violated his right to equal protection by applying
the September 2010 version of section 4019 to him. He contends that even though his crime and
all of his presentence custody occurred prior to the October 1, 2011
prospective date upon which conduct credit was increased by the Legislature, he
was entitled to have the two-for-two conduct credit scheme applied to him.

Both the
federal and state Constitutions guarantee the right to equal protection of the
laws. (U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7.) “ ‘ “name="citeas((Cite_as:_2009_WL_3777413,_*8_(Ca">The concept of the equal
protection of the laws compels recognition of the proposition that persons
similarly situated with respect to the legitimate purpose of the law receive
like treatment.” ’ [Citation.]”
(Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) Since the
amendments to section 4019 do not involve a “
‘ “ ‘suspect classification’ ” ’ ”
or a “ ‘ “ ‘fundamental
interest,’ ” ’ ” courts apply the
rational basis test to determine whether the “distinction drawn by the challenged
statute bears some rational relationship to a conceivable legitimate state
purpose.” (In re Stinnette (1979) 94 Cal.App.3d 800, 805.)

Defendant
maintains that he is similarly situated to a defendant whose crime was
committed after October 1, 2011, and whose custody time occurred after October
1, 2011. In People v. Brown (2012) 54 Cal.4th 314, the California Supreme Court
rejected a similar argument with respect to a previous version of section
4019. It found that prospective only
application of the new version of the statute did not violate equal protection
because the purpose of the statute was to create an incentive for good
behavior, which could not be done retroactively. The same is true here. We therefore reject defendant’