P. v. Iverson





















Filed 1/25/13 P.
v. Iverson CA4/1

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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NOT TO BE PUBLISHED IN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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.



COURT OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION ONE



STATE OF CALIFORNIA






>

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DAVID IVERSON, Defendant and Appellant.

D060876 (Super. Ct. No. SCS248153)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Kenneth L. Medel, Judge. Affirmed.



Christopher
David Iverson appeals a judgment sentencing him to prison after a jury found
him guilty of vehicle taking (Veh. Code, § 10851, subd. (a)), href="http://www.mcmillanlaw.com/">receiving a stolen vehicle (Pen. Code,
§ 496d, subd. (a)), and other crimes.
Iverson contends the judgment must be reversed because the trial court
erroneously excluded as hearsay his statement to friends that he had purchased
the vehicle for $300. He also claims
entitlement to 12 additional days of presentence conduct credits under the most
recent amendments to Penal Code section 4019. We reject these contentions and affirm the
judgment.

I.

BACKGROUND

A. The
Prosecution Case

George
Baillum testified that he drove his Toyota pickup truck
to a parking lot on October 11, 2010,
locked it, and then joined a van pool to travel to work. When he returned to the parking lot later
that day, his truck was gone.

A
sergeant with the San Diego County Sheriff's Department testified that on May 15, 2011, he stopped a Toyota pickup truck with an inoperable taillight. The sergeant approached the truck; saw
Iverson sitting in the driver's seat; and asked him for his license,
registration and insurance. Iverson
replied he did not have any identification with him, and gave the sergeant a
false name and date of birth. While the
sergeant was speaking to Iverson, a deputy sheriff arrived at the scene and
informed the sergeant the truck had been reported as stolen. The sergeant ordered Iverson out of the truck
and placed him in handcuffs.

The
deputy testified that he searched the truck.
He looked for proof that Iverson owned the truck, but found no document
indicating such ownership. The deputy
found insurance and other documents indicating Baillum was the owner,
however. He also found several
"shaved keys," which can be used to steal vehicles.

B. The
Defense Case

James
Devoss, Iverson's friend, testified that he loaned Iverson $300 in October or
November 2010. After Devoss loaned
him the money, Iverson acquired a dilapidated Toyota pickup
truck.

Iverson
testified that he borrowed $300 from Devoss to purchase a Toyota pickup truck
he saw advertised on the Internet. When
he acquired the truck in November 2010, Iverson "had paperwork,"
including "a DMV thing with the license plate number and the VIN number
written down for the vehicle" and a bill of sale stating that "the
vehicle was sold 'as is' to [him] for $300." This "paperwork" was in the truck
when Iverson was arrested. Iverson did
not register the truck when he bought it, but planned to do so "[a]s soon
as [he] got it up to operable where it would pass smog."

Iverson
further testified that he worked as a mechanic and tow truck operator. The keys the deputy found in the Toyota pickup truck
were "basically work tools" used to unlock and operate impounded
vehicles; they were not used for any illegal purpose.

C. >The Verdicts, Admissions, and Sentence

The
jury found Iverson guilty of vehicle taking (Veh. Code, § 10851,
subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d,
subd. (a)). It also returned
verdicts and deadlocked on other counts not relevant to the issues on appeal.

Iverson admitted
he had a prior conviction that qualified as a strike under the Three Strikes
law. (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12.) He also
admitted he had served two prior prison terms.
(Id.,
§ 667.5, subd. (b).)

At
the sentencing hearing, the court denied Iverson's motion to dismiss the
allegations concerning his prior strike conviction; dismissed the allegations
concerning one of his prison priors; and sentenced him to prison for seven
years for the conviction of vehicle taking, consisting of the upper term of
three years, doubled for the strike, plus one year for the prison prior. (See Veh. Code, § 10851, subd. (a);
Pen. Code, §§ 18, 667, subd. (e)(1), 667.5, subd. (b).) The court imposed the same prison sentence
for the conviction of receiving a stolen vehicle (Pen. Code, §§ 496d,
subd. (a), 667, subd. (e)(1), 667.5, subd. (b)), but stayed
execution (id., § 654,
subd. (a)). The court awarded 163
days of actual custody credits and 80 days of conduct credits, for a total
credit of 243 days against Iverson's prison sentence.

II.

DISCUSSION

Iverson
argues his convictions of vehicle taking and receiving a stolen vehicle must be
reversed because the trial court erroneously excluded as hearsay his statement
to friends that he had purchased the truck for $300. He also argues the trial court should have
awarded him 12 additional days of conduct credits for the time he spent in
custody from October 1, 2011, through October 24, 2011, in
accordance with the most recent amendments to Penal Code
section 4019. As we shall explain,
neither argument has merit.

A. >Any Error in Excluding Iverson's Statement
to Friends That He Purchased the Truck for $300 Was Harmless

Iverson
complains the court prejudicially erred when it prohibited him from introducing
testimony from his friends that he told them he had purchased the Toyota pickup truck
for $300. Before analyzing this
contention, we set forth some additional background.

1. Additional Background

Before trial
started, the prosecutor asked the court to exclude as inadmissible hearsay any
testimony from Iverson's friends that Iverson told them he saw an advertisement
for the truck on the Internet and bought it for $300. Iverson's trial counsel responded that such
testimony was not hearsay because it would not be offered to prove the truth of
the matter asserted; rather, it would be offered to prove Iverson did not have
a culpable state of mind because he did not know the truck was stolen. The prosecutor countered by citing Evidence
Code section 1252 and arguing the testimony was not admissible as to Iverson's
state of mind because his statement to his friends was "self-serving"
and lacked trustworthiness. After
hearing further argument from counsel and taking the matter under submission,
the court ruled the statement Iverson made to his friends was hearsay (Evid.
Code, § 1200, subd. (a)), it did not fall within the state of mind
exception (id., § 1250), and it
was inadmissible because it lacked trustworthiness (id., § 1252).

2. Legal Analysis

We need not
determine whether the trial court erred in excluding as hearsay the testimony
of Iverson's friends that he told them he bought the truck for $300, for any
such error was harmless. An appellate
court may reverse a judgment on the ground of erroneous exclusion of evidence
only if the error resulted in a "miscarriage of justice" (Cal.
Const., art. VI, § 13; Evid. Code, § 354), i.e., only if
"the court, 'after an examination of the entire cause, including the
evidence,' is of the 'opinion' that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of
the error" (People v. Watson (1956)
46 Cal.2d 818, 836 (Watson)). There was no reasonable probability that
Iverson would not have been convicted of vehicle taking and receiving a stolen
vehicle had the jury heard the excluded testimony. The jury heard the substance of the excluded
testimony through Iverson himself, who testified he bought the truck for $300
and had "paperwork" to prove it, and his friend Devoss, who testified
he loaned Iverson the $300, but the jury still found him guilty. (See pt. I.B., ante.) Hence, exclusion of
additional testimony from Iverson's friends that he told them he paid $300 for
the truck was "harmless, because the excluded evidence was merely
cumulative of properly admitted evidence."
(People v. Helton (1984) 162
Cal.App.3d 1141, 1146.)href="#_ftn1"
name="_ftnref1" title="">[1]

We also reject
Iverson's argument that the erroneous exclusion of the testimony from his
friends that he told them he bought the Toyota pickup truck
for $300 violated his federal constitutional
right to present the "defense" that he did not know the truck was
stolen, and that such error must be reviewed for harmlessness under the
beyond-a-reasonable-doubt standard.
Iverson forfeited this argument because he did not object at trial that
exclusion of this testimony violated his federal constitutional rights. (See, e.g., People v. Blacksher (2011) 52 Cal.4th 769, 821.) In any event, the argument lacks merit:

"As a
general matter, the '[a]pplication of the ordinary rules of
evidence . . . does not impermissibly infringe on a
defendant's right to present a defense.'
[Citations.]>
Although completely excluding evidence of an accused's defense
theoretically could rise to this level, excluding defense evidence on a minor
or subsidiary point does not impair an accused's due process right to present a
defense. [Citation.] If the
trial court misstepped, '[t]he trial court's ruling was an error of law merely;
there was no refusal to allow [defendant] to present a defense, but only a
rejection of some evidence concerning the defense.' [Citation.]
Accordingly, the proper standard of review is that announced in [Watson, supra,] 46
Cal.2d 818, 836 . . . , and not the stricter
beyond-a-reasonable-doubt standard reserved for errors of constitutional
dimension (Chapman v. California (1967) 386 U.S. 18,
24 . . . )." (People
v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, italics added; accord, >People v. Cunningham (2001) 25 Cal.4th
926, 998-999; People v. Bradford (1997)
15 Cal.4th 1229, 1325.)

Here, Iverson presented testimony from
himself and Devoss to support his "defense" that he did not know the
truck was stolen; the court excluded only some cumulative testimony from his
friends that Iverson told them he bought the truck for $300. This case thus fits squarely within the
holding of Fudge, which is binding on
us. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455
[California Supreme Court's decisions "are binding upon and must be
followed by all the state courts of California"].)

B. Iverson
Is Not Entitled to Additional Conduct Credits

Iverson
argues the most recent amendments to Penal Code section 4019 entitle him
to 12 additional days of conduct credits, i.e., credits for performance of
labor and for good behavior (id.,
subds. (b), (c)). Specifically,
Iverson contends (1) a "plain reading" of subdivision (h)
of that statute indicates it was intended to apply to all defendants in
presentence custody on or after October 1, 2011, regardless of when
they committed their offenses; and (2) to apply the amendments only to
presentence detainees who committed their offenses on or after that date
violates his constitutional right to
the equal protection of the laws. We
disagree.

As
an initial matter, Iverson forfeited the argument he is entitled to additional
conduct credits. At the sentencing
hearing, after the court awarded Iverson 163 days of actual custody credits and
80 days of conduct credits, it asked his counsel, "Sound better,
counsel?" Counsel responded,
"Yes, that sounds right."
Having thus agreed to the trial court's award of presentence credits,
Iverson lost the right to challenge on appeal any error in that award. (See People
v. Myers (1999) 69 Cal.App.4th 305, 312 [defendant whose counsel stipulated
to amount of presentence custody credits forfeited any alleged error in
calculation].) Nevertheless, we shall
consider the merits of Iverson's statutory construction and constitutional arguments,
both to forestall a claim of ineffective assistance of counsel (see, e.g., >People v. Russell (2010) 187 Cal.App.4th
981, 993) and because we granted his application to file a supplemental brief
raising those arguments.

We
reject Iverson's claim that a "plain reading" of Penal Code
section 4019 entitles him to an award of credits for time spent in
presentence custody on or after October 1, 2011, at the enhanced rate
prescribed by the statutory amendments that became operative on that date. Under the version of section 4019 in
effect when Iverson committed his offenses (which was some time between
Oct. 11, 2010, and May 5, 2011), a prisoner confined in a
county jail prior to sentencing who earned all possible conduct credits was
entitled to credit for six days for every four days spent in actual
custody. (§ 4019, former
subd. (f); Stats. 2010, ch. 426, § 2.) By the amendments that became operative October 1, 2011,
the amount of credit for such prisoners was increased to four days for every
two days spent in actual custody.
(§ 4019, subd. (f); Stats. 2011, ch. 39,
§ 53.) The amendments "shall
apply prospectively and shall apply to prisoners who are confined to a county
jail . . . 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).)
Hence, "[t]his favorable change in the law does not benefit
[Iverson] because it expressly applies only to prisoners who are confined to a
local custodial facility 'for a crime
committed on or after October 1, 2011.' " (People
v. Lara (2012) 54 Cal.4th 896, 906, fn. 9.)href="#_ftn2" name="_ftnref2" title="">[2]

Recent decisions
of the Courts of Appeal confirm that defendants like Iverson, who committed
their crimes before October 1, 2011, but were in presentence custody
after that date, are not entitled to receive credits at the increased rate
prescribed by the current version of Penal Code section 4019. The Fifth District held that in enacting
subdivision (h), "the Legislature's clear intent was to have the
enhanced rate apply only to those
defendants who committed their crimes on or after
October 1, 2011.
[Citation.] The second sentence
does not extend the enhanced rate to any other group, but merely specifies the
rate at which all others are to earn conduct credits." (People
v. Ellis (2012) 207 Cal.App.4th 1546, 1553.) Following Ellis,
Division Three of this court "read the second sentence as reaffirming that
defendants who committed their crimes before October 1, 2011, still
have the opportunity to earn conduct credits, just under prior law." (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 52 (Rajanayagam).) We agree with
these holdings and reject Iverson's claim that for the time he spent in county
jail from October 1 through 24, 2011, he is entitled to conduct
credits at the increased rate that became operative on
October 1, 2011.

We also reject
Iverson's argument that not giving him the benefit of the current version of
Penal Code section 4019 violates his right to "the equal protection
of the laws." (U.S. Const., 14th
Amend., § 1; Cal. Const., art. I, § 7, subd. (a).) The United States Supreme Court has held the
Fourteenth Amendment "does not forbid statutes and statutory changes to
have a beginning, and thus to discriminate between the rights of an earlier and
later time." (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505; see
also Califano v. Webster (1977) 430
U.S. 313, 321 ["Congress may replace one constitutional computation
formula with another and make the new formula prospective only"].) The California Supreme Court similarly has
held that applying a statutory change prospectively only does not violate equal
protection guaranties. (See, e.g., People v. Floyd (2003) 31 Cal.4th 179, 188-191 [rejecting equal
protection challenge to prospective-only application of proposition that
lessened punishment for offense]; Baker
v. Superior Court (1984) 35 Cal.3d 663, 668 ["No significant
constitutional problem is presented by the prospective repeal of the [mentally
disordered sex offender] laws."].)
Relying in part on this line of cases, California appellate courts have
held that awarding conduct credits at different rates to defendants in
presentence custody on or after October 1, 2011, based on whether
they committed their offenses before that date or on or after that date, does
not violate their equal protection rights.
(Rajanayagam, >supra, 211 Cal.App.4th at p. 55; >People v. Kennedy (2012) 209 Cal.App.4th
385, 398 (Kennedy).)

The >Rajanayagam court also held that
awarding conduct credits at different rates based on the date of offense
"bears a rational relationship to a legitimate state purpose." (Rajanayagam,
supra, 211 Cal.App.4th at
p. 53.)href="#_ftn3" name="_ftnref3"
title="">[3] Specifically, the court reasoned that by
prescribing prospective-only application of the current version of Penal Code
section 4019,

"the
Legislature took a measured approach and balanced the goal of cost savings
against public safety. The effective
date was a legislative determination that its stated goal of reducing
corrections costs was best served by granting enhanced conduct credits to those
defendants who committed their offenses on or after
October 1, 2011. To be sure,
awarding enhanced conduct credits to everyone in local confinement would have
certainly resulted in greater cost savings than awarding enhanced conduct
credits to only those defendants who commit an offense on or after the
amendment's effective date. But that is
not the approach the Legislature chose in balancing public safety against cost
savings. [Citation.] Under the very deferential rational
relationship test, we will not second guess the Legislature and conclude its
stated purpose is better served by increasing the group of defendants who are
entitled to enhanced conduct credits when the Legislature has determined the
fiscal crisis is best ameliorated by awarding enhanced conduct credit to only
those defendants who committed their offenses on or after
October 1, 2011." (>Rajanayagam, at pp. 55-56.)

The Legislature's approach is consistent
with its authority to "experiment individually with various therapeutic
programs related to criminal charges or convictions" (In re Huffman (1986) 42 Cal.3d 552, 561) and "to control the
risk of new legislation by limiting its application" (People v. Lynch (2012) 209 Cal.App.4th 353, 361).

We agree with >Rajanayagam that applying the current
version of Penal Code section 4019 only to defendants who committed
offenses on or after October 1, 2011, "bear[s] a rational
relationship to cost savings." (>Rajanayagam, supra, 211 Cal.App.4th at p. 55.) We also agree with Kennedy that there is "nothing irrational or implausible in a
legislative conclusion that individuals should be punished in accordance with
the sanctions and given the rewards (conduct credits) in effect at the time an
offense was committed." (>Kennedy, supra, 209 Cal.App.4th at p. 399.) We therefore reject Iverson's equal
protection challenge to the prospective-only application of the most recent
amendments to section 4019.

DISPOSITION

The judgment is affirmed.





IRION, J.



WE CONCUR:







McCONNELL, P. J.







O'ROURKE,
J.