P. v. Miller




Filed 5/19/11 P. v. Miller CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. RICHARD MILLER et al., Defendants and Appellants.

B219346 (Los Angeles County Super. Ct. No. PA064398)

APPEAL from judgments of the Superior Court of Los Angeles County. Burt Pines, Judge. Modified and affirmed with directions.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant Richard Miller.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant Guillermo Garcia.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


_______________________________

In 2004, Guillermo Garcia was convicted of selling narcotics to an undercover police officer. In 2008, Richard Miller was convicted of offering to sell narcotics to an undercover police officer. In 2009, defendants were tried for yet again offering to sell narcotics to an undercover police officer. Evidence regarding the prior offenses was admitted to prove their intent in committing the latter offense.
On appeal, defendants contend admission of evidence of the uncharged offenses was prejudicial error, the trial court erred when it permitted belated testimony from a police officer, and the trial court abused its sentencing discretion when it denied Garcia’s motion to strike allegations regarding a prior conviction. Defendants also argue they are entitled to 94 additional days of presentence custody credits.
We agree defendants are entitled to additional presentence custody credits but affirm the judgments in all other respects.
BACKGROUND
a. Prior Offenses
On September 24, 2004, Garcia, while straddling a bicycle, encountered undercover police officer Charles De Rosier. De Rosier said, “What’s up,” to which Garcia responded, “How much‌” De Rosier said, “20,” without explanation. Garcia then reached into his mouth, removed a piece of rock cocaine and gave a piece of it to De Rosier. De Rosier gave Garcia $20 in exchange. Garcia was arrested and convicted of selling narcotics to a police officer.
On May 30, 2008, Miller, while sitting by Dale’s Liquor store at the intersection of Columbus Avenue and Parthenia Street, encountered undercover police officer Noreen Herbert. Herbert asked Miller if he knew where she could get crack cocaine. Miller replied that he did not know but would come with her while she looked. As they walked, Herbert told Miller she wanted to buy $20 worth of drugs. Miller pointed to a woman standing in front of an apartment building and said, “‘Look at her. See how she’s just standing there doing nothing‌ She’s going to help us.’” He then asked the woman, “‘Hey, do you have a 20‌’” The woman answered that she did not but directed them to a second woman whom she said could help. Herbert gave the second woman $20 but the transaction was interrupted when the first woman came over and got into an altercation with the second. Miller was convicted of offering to sell narcotics.
b. Current Offense
On March 26, 2009, undercover police officer Michael Lopez made contact with Miller near the intersection of Parthenia Street and Columbus Avenue. Lopez told Miller he was “looking to score,” looking for some “rock.” Miller asked how much rock he was looking to buy and said “‘If I hook you up, have you got $5 for me‌’” Lopez told Miller he was looking for a “20.” Miller said he could take Lopez to someone who could “hook [him] up.”
Miller took Officer Lopez to a park where they met Garcia. Miller introduced Lopez and said, “‘This is my boy. He’s from Florida. He’s looking for a 20 of rock.’” Garcia replied, “‘20 rock. I can hook you up.’” Garcia said, “‘Give me the money. I got to go to—I have to go to Nordhoff Street to get the narcotics.’” Lopez gave him the money and asked if Garcia was going to “rip him off.” Miller said, “‘He’s not going to rip you off. He’ll hook you up, is what he’ll do.’” He added, “‘Don’t worry. He’s my boy. He’ll hook you up.’” Lopez gave Garcia $20. Garcia told him to wait in the park and then left.
Garcia rode his bicycle to an apartment complex, followed by Officer Robert Jaramillo. At the complex, Garcia met several people and spoke with one, then rode around the complex for a while before returning to the park. There, he told Officer Lopez that the “guy was out,” and said he knew somewhere else to get drugs. He rode away again, this time going to Dale’s Liquor to make a food purchase. He was arrested at Dale’s.
Miller and Garcia were both arrested.
In a one-count amended information, defendants were charged with the crime of offering to sell a controlled substance, a violation of Health and Safety Code section 11352, subdivision (a). It was further alleged that Miller had suffered two prior convictions within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i),[1] and that Garcia had been previously convicted of violations of Health and Safety Code sections 11370, subdivisions (a) and (c), 11370.2, subdivision (a), and 11352, subdivision (a).
Miller’s defense was that he was simply a lonely homeless man who had offered to escort Officer Lopez in his search for drugs. Garcia’s defense was that he intended only to steal Lopez’s money, not sell him drugs.
Before trial, the trial court granted the prosecution’s motion to admit evidence of defendants’ prior offenses pursuant to Evidence Code section 1101, subdivision (a).
Defendants were found guilty following a jury trial. The trial court found true the special allegations regarding defendants’ prior convictions but found Miller’s convictions did not constitute strikes. The court denied Miller’s motion for new trial. Miller and Garcia were sentenced to prison terms of four and six years, respectively. They were each given presentence credit of 282 days, comprising 188 days of actual custody and 94 days of conduct credit. (Former § 4019.)
DISCUSSION
A. Evidence of Uncharged Misconduct
Defendants contend admission of evidence of their prior offenses rendered their trial fundamentally unfair and violated their due process rights. We disagree.
Before trial, the prosecution sought permission to introduce evidence of defendants’ prior misconduct to prove their intent in committing the current offense. Defendants moved to exclude the evidence.
The court ruled as follows: “The court finds that these prior incidents or uncharged offenses are relevant and of significant probative value. The prior misconduct on each of these defendants’ part is sufficiently similar to the facts at hand so as to support an inference that each defendant probably harbored the same intent in each case. [¶] Secondly, we have to always consider the amount of time that would be consumed. The court finds that proof of these prior offenses will not consume an unreasonable amount of time. From what I discussed with the prosecutor, only one officer will be needed in each of the prior situations, and that’s not going to take too much time. [¶] Next, . . . we have to deal with the time issue. These prior offenses are not too remote in time to lack relevance or probative value. [¶] In Mr. Miller’s case, the prior incident occurred ten months beforehand. In Mr. Garcia’s case, it’s four and a half years. I realize that can affect the weight, but that’s something for the jury to consider, . . . it doesn’t affect the overall relevance. [¶] Next, the court finds that the anticipated testimony describing each of the defendant’s conduct on the prior occasions is no . . . stronger or [more] inflammatory than the testimony concerning the charged offenses. All of these transactions involve an offer to sell narcotics. [¶] Next, the court finds that the uncharged prior offenses will be proven from a source independent of the evidence of the charged offense and therefore has greater probative value. [¶] Next, the court finds that the evidence can be presented in a manner that minimizes any likelihood of confusing or misleading the jury. In that respect I rely on counsel to make it clear in her opening statement how this will be handled and the purpose of this circumstantial evidence. . . . [¶] The court also notes that the prior misconduct in each of these instances did result in a criminal conviction . . . .”
During closing argument, the prosecution argued the evidence of uncharged misconduct showed defendants possessed the requisite intent to be convicted of the charged offense. The court instructed the jury that it could consider the evidence of prior uncharged offenses only if the prosecution proved by a preponderance of the evidence that defendants in fact committed the uncharged offenses. It instructed that the jury could but was not required to consider the evidence only for the limited purpose of deciding whether defendants acted with the intent to sell or furnish cocaine in this case, that the evidence was not to be used to conclude defendants had bad characters or were disposed to commit crime, and that commission of the uncharged offenses was only one factor to consider along with all the other evidence, and was not sufficient by itself to prove the defendants guilty of the charged offense.
We find no fault in the trial court’s ruling.
To prove defendants guilty of offering to sell a controlled substance, the prosecution was required to demonstrate they intended to make the transaction. (People v. Jackson (1963) 59 Cal.2d 468, 470.) Evidence Code section 1101, subdivision (b), permits admission of evidence that a person committed a prior, uncharged offense when relevant to prove some fact other than his or her disposition to commit such an act, such as intent in committing the current offense. “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, italics omitted.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Id. at p. 402.)
Here, the evidence established that in committing both the charged and uncharged offenses Miller, after being told in street vernacular that a purchase of narcotics was sought, guided the purported buyers to individuals he believed could complete the transactions. Sufficient common features thus existed to support admissibility of evidence of the prior offense.
As to Garcia, the evidence established that on both the charged and uncharged occasions Garcia communicated with undercover officers in street vernacular as to how much drugs they wanted, took their money, and took steps to complete the transaction. Sufficient common features thus existed to support admissibility of evidence of the prior offense.
“As [the Supreme Court has] observed, however, evidence of uncharged misconduct ‘“is so prejudicial that its admission requires extremely careful analysis”’ and to be admissible, such evidence ‘“must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.”’ [Citation.] Thus, ‘the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.] On appeal, a trial court’s ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 637.) “A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 371.)
There was nothing about defendants’ similar conduct with Officers Herbert or De Rosier that would confuse the issues, mislead the jury, or create a serious danger of undue prejudice. Indeed, “[t]he ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” (People v. Yu (1983) 143 Cal.App.3d 358, 377.) The trial court did not abuse its discretion in this case by allowing evidence of defendants’ prior misconduct.
Defendants argue admission of the evidence of prior misconduct violated their federal constitutional rights. The argument is without merit. (People v. Catlin (2001) 26 Cal.4th 81, 123 [admission of material evidence that is proper under Evidence Code section 1101 does not violate constitutional rights].)
B. Motion for Mistrial
After the noon break in the testimony of Officer Jaramillo the prosecution notified defendants and the court that Jaramillo would testify that after Garcia rode his bicycle to the apartment complex where he met several people, he rode around the complex in a manner that suggested he was looking out for surveillance. The prosecutor explained that he did not know about this testimony earlier—Jaramillo had mentioned Garcia’s actions at the apartment complex only that morning.
Defendants objected that the evidence was irrelevant and untimely and constituted improper opinion. They argued the police report reflected only that Jaramillo had observed Garcia speak with an individual at the apartment complex for five to ten minutes then get on his bicycle and ride back to the park. There had been no mention of him riding around the apartment complex before setting out for the park.
The court indicated it intended to admit the evidence but offered Garcia’s counsel additional time to prepare for cross-examination. Counsel indicated he did not need the additional time. The court then ruled that Jaramillo would be permitted to testify only that Garcia had ridden around the apartment complex, not that this was a counter-surveillance measure. Defendants then moved for a mistrial on the ground that the prosecution’s belated proffer of Jaramillo’s testimony came too late for them to make a Pitchess[2] motion as to Jaramillo. The court denied the motion.
Jaramillo testified that after his conversation with an individual at the apartment complex, Garcia rode his bicycle back and forth in a nearby alley, circled the complex, then left. During closing argument, the prosecution argued Garcia did this to see if someone was following him. The reason he left the apartment with no drugs is that he saw Jaramillo and identified him as a police officer.
Defendants contend the trial court erred when it permitted Jaramillo to testify that he saw Garcia riding his bicycle around the apartment complex. They argue the belated proffer of this testimony denied them their right to prepare a proper declaration to support a Pitchess motion or conduct a meaningful cross-examination. We disagree.
A criminal defendant’s discovery rights emanate from two sources: California statutes and the federal Constitution. (People v. Bohannon (2000) 82 Cal.App.4th 798, 804.) Section 1054.1 sets forth the parties’ discovery obligations, requiring that the prosecution disclose “information that is ‘reasonably accessible’ to it . . . .” (In re Littlefield (1993) 5 Cal.4th 122, 135.) Section 1054.7 requires disclosure at least 30 days prior to trial except “[i]f the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.” (Ibid.) “‘It is defendant’s burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 386-387.) A motion for mistrial “should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (People v. Ayala (2000) 23 Cal.4th 225, 283.) We review for abuse of discretion a trial court’s ruling on matters regarding discovery, including a ruling denying a motion for mistrial. (Id. at pp. 283, 299.)
Here, the prosecution’s disclosure of Jaramillo’s evidence was almost immediate, as the prosecution learned of the testimony in the morning and disclosed it to the defense after the noon break. (See People v. Hammond (1994) 22 Cal.App.4th 1611, 1622-1624 [disclosure during trial of a recently discovered witness did not violate the discovery rules].) Defendants had ample notice that Jaramillo had observed Garcia during the course of the transaction and could have made a timely Pitchess motion before trial. Further, the only variance between Officer Jaramillo’s testimony and the disclosure made to the defense was that Jaramillo observed Garcia ride around the apartment complex before returning to the park. As Jaramillo offered no opinion as to why this occurred, the additional evidence was of minimal import. We conclude the trial court did not abuse its discretion in admitting it or in denying defendants’ motion for a mistrial because of it.
C. Garcia’s Prior Conviction
At sentencing, Garcia moved to strike his prior drug-sale-related conviction, arguing several mitigating circumstances listed under California Rule of Court 4.423 (Rule 4.423) should be considered in mitigation, including that the victim initiated the narcotics sale, the crime was partially excusable because Garcia was hungry and used Officer Lopez’s $20 to buy food, and no harm or damage was done to anyone. Garcia’s counsel then listed two mitigating factors not contained in Rule 4.423: (1) No drugs were found and (2) he had wanted to accept the People’s plea offer before trial but failed to act in time. The trial court denied the motion, stating, “We’re obligated to follow the law. I’m limited in what I can do here. [¶] . . . I appreciate your concerns, but I’m not satisfied that any of these factors in mitigation apply here, and I’m not satisfied that this is an appropriate case based on any of these factors or any other factor for me to—to dismiss the prior in the interest of justice. So the motion to dismiss the prior is denied.”
Garcia was sentenced to the low term of three years plus an additional consecutive term of three years on account of his prior conviction. (Health & Saf. Code, §§ 11352, subd. (a), 11370.2, subd. (a).)
Garcia argues the court failed to appreciate that it had discretion to consider factors not expressly enumerated in Rule 4.423 when considering whether to strike a prior conviction. We disagree.
In determining whether to strike a prior conviction the trial court may consider any relevant factors, “including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citations.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377.) But a court cannot exercise proper discretion if it is unaware of the scope of its discretionary powers. (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
Here, nothing suggests the trial court was unaware that it could consider factors not enumerated by Rule 4.423 when determining whether to strike Garcia’s prior conviction. Although the court stated it was limited in what it could do and was not satisfied that any of the Rule 4.423 factors “or any other factor” made this an appropriate case in which to dismiss Garcia’s prior conviction, this does not mean it misunderstood the scope of its discretionary sentencing authority. Rather, it indicates the court considered all mitigating factors proffered by Garcia’s counsel but found none justified dismissal of the prior conviction. This was within its discretion.
D. Cumulative Error
Defendants contend the multiple purported errors resulted in cumulative prejudice requiring reversal of their convictions. As we discern no errors we conclude defendants suffered no cumulative prejudice.
E. Conduct Credit
When defendants were sentenced on September 29, 2009, former section 4019 provided that they could accrue conduct credits of two days for every four days served. (Former § 4019, subd. (f).) On January 25, 2010, while defendants’ appeals were pending, the 2009 amendment of section 4019 became effective, authorizing a qualifying defendant to accrue conduct credits at a rate of four days of conduct credit for every four days actually served. (Former § 4019, subd. (f).)[3]
Defendants contend they are entitled to receive additional presentence credit under the 2009 amendment to section 4019. They argue the judgment in his case was not final until after the amendment went into effect, and they are entitled to receive the benefit of the more generous credit provisions of the amended statute. The Attorney General argues that the amendment to section 4019 cannot be applied retroactively.
The Courts of Appeal throughout the state have reached conflicting decisions on whether the 2009 amendment to section 4019 is to be applied retroactively to cases pending at the time it became effective. The California Supreme Court has granted review in numerous cases addressing the issue—cases both applying the amendment retroactively and declining to do so. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.) We conclude the amendment to section 4019 should be applied retroactively.
When nothing indicates a contrary legislative intent, the general rule regarding retroactivity is set forth in section 3, which provides that no part of the Penal Code is “retroactive, unless expressly so declared.” “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)
But section 3 “is not a straightjacket” and “should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent,” even if the Legislature has not expressly stated that a statute should be applied retroactively. (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada ).) Estrada created an exception to the general rule of prospective operation: “[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) That is, it will apply to all judgments of conviction that are not yet final when the amendment goes into effect. (Id. at p. 744.) “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.)
The Attorney General argues that the legislative intent behind conduct credits is to encourage good behavior, and because “it is impossible to influence behavior after it has occurred,” retroactive application of the 2009 amendment to section 4019 does not advance the purpose of the amendment. People v. Doganiere (1978) 86 Cal.App.3d 237, 239, rejected a similar argument in determining that an amendment to section 2900.5 should be applied retroactively under Estrada. We conclude that the 2009 amendment to section 4019 was intended to lessen punishment because it effectively reduces the actual period of time a defendant must serve before satisfying his sentence. It falls squarely within the scope of the Estrada rule.
In addition, it is clear that the primary purpose of the amendment to section 4019 went beyond encouraging good behavior. Senate Bill No. 18 (2009-2010 3d Ex. Sess.), which included the amendment to section 4019, explicitly stated, “This act addresses the fiscal emergency declared by the Governor . . . .” (Stats. 2009, ch. 28, § 62), indicating that the primary purpose of the amendment was to reduce the inmate population, and with it, the costs of operating prisons and jails. Applying the amendment retroactively promotes this goal by allowing inmates to be released after a shorter period, thereby reducing the expense of their incarceration.
It is also noteworthy that the same legislation included a saving clause when amending section 2933.3, subdivision (d) [applying increased custody credits for inmate firefighters only to inmates eligible after July 1, 2009]. The inclusion of a saving clause in that section, but not in the amendment to section 4019, supports an inference that the Legislature had a different intent with respect to the retroactive application of the two provisions.
Accordingly, we conclude that defendants are entitled to receive 94 additional days of presentence credit under the 2009 amendment to section 4019.
DISPOSITION
The judgments are modified to reflect the following award of presentence credit: 188 days’ actual credit and 188 days’ conduct credit. As modified, the judgments are affirmed. The trial court is directed to forward corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.


CHANEY, J.
We concur:


MALLANO, P. J.


JOHNSON, J.

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