P. v. Montgomery

Filed 7/22/10 P. v. Montgomery CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Affirmed as modified.

Maury Montgomery, in pro. per.; and Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Defendant and appellant Maury Montgomery appeals from the judgment entered following a jury trial that resulted in his conviction of sale of a controlled substance. After appointed counsel filed an opening brief which did not raise any arguable issues and which requested that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we requested supplemental briefing on the issue of whether defendant was entitled to additional conduct credits as a result of the recent amendments to Penal Code section 4019.[1] After reviewing the record pursuant to Wende and considering the supplemental briefing, we award defendant 66 days of additional conduct credits and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Around 5:00 p.m. on July 2, 2009, Los Angeles Police Officer Jackeline Orellana was working undercover as part of a team in an area known by the police as a high narcotics area. The team included seven other plain clothes officers, four supervising detectives and several uniformed officers. Making contact with defendant in an alley, Orellana asked him if anyone was selling narcotics. When defendant asked her how much she needed, Orellana told him $20 worth. Initially, defendant told Orellana they had to wait for someone defendant knew to return. But about five minutes later, defendant told Orellana to give him the $20 and he would retrieve the narcotics for her. Orellana handed defendant a $20 bill that she had previously photocopied.[2] Defendant walked away, out of Orellanas sight. About five minutes later, defendant returned and handed Orellana an aluminum wrapped object; unwrapping it, Orellana saw a substance resembling rock cocaine. Defendant reached over, broke a piece of the rock off and asked Orellana if she had a pipe. Orrellana showed defendant a prop pipe that she had with her, but when he asked her to smoke the rock with him, she told him that she had to leave. To avoid a confrontation with defendant, Orellana handed him a prerecorded $5 bill, then walked away and gave the signal that a transaction had concluded. While uniformed officers detained defendant in the alley, Orellana returned to the police station where she booked the substance into evidence.[3] Later that evening, Orellana wrote a report of the incident. For that report, Orellana spoke to Officers Ramos, Gonzalez, Calderon, Marshall and Diaz, and Detective Kanchanamongkol.

Officer Ramos, one of the plain clothes officers on Orellanas team that day, observed Orellana make contact with defendant. Ramos followed defendant when he walked away from Orellana. Ramos saw defendant go to the back security door of a residence, which Ramos described as an iron door with a metal screen. Ramos saw the security door open and defendant extend his arm toward a person standing behind the door; Ramos could not see the hands, nor discern the race or gender of the person behind the door. Based on his training and experience, including observing about 2,000 hand-to-hand narcotics transactions, Ramos concluded that defendant and the person behind the security door might have engaged in such a transaction. Afterwards, Ramos followed defendant back to where Orellana was waiting for him. Ramos directed the uniformed officers to arrest defendant. Because Ramos could not identify the person behind the security door, the police did not go back there.

Officer Marshall, one of the uniformed officers on the team that day, arrested defendant and then searched him. In defendants front pants pocket, Marshall found a $5 bill. Marshall gave the bill to Officer Diaz, the officer responsible for verifying money used in the undercover operation.

Officer Diaz compared the $5 he received from Officer Marshall with the photocopies Officer Orellana made of the currency she was going to use that day and determined that the bill Marshall gave him was one of the bills Orellana photocopied.

Defendant was charged by information with sale of cocaine base (Health & Saf. Code,  11352, subd. (a)); various prior convictions were also alleged (Pen. Code,  667.5, subd. (b); Health & Saf. Code,  11370, subds. (a) and (c)).

In a Pitchess motion, defendant sought the personnel files of Officers Orellana, Ramos and Calderon. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) The arrest report attached to the motion described the incident. According to the report, Calderon saw defendant enter and exit the residence, and Ramos and Gonzalez both observed the hand-to-hand narcotics transaction between defendant and Orellana. After defendant was detained and arrested, Marshall recovered the prerecorded $5 from defendants pants pocket. Defendants version of events set forth in his Pitchess motion was that defendant was in an alley urinating when Orellana asked him for narcotics. Defendant said he had none. Defendant walked out of the alley with Orellana and agreed to walk with her to the corner store where she said she was going to buy cigarettes and find some narcotics. At the corner store, Orellana was unable to find anyone to sell her narcotics so she walked back to the alley with defendant. In the alley, Orellana took a rock and small pipe from her pocket and asked defendant if he wanted to smoke from her pipe. Defendant accepted the offer. Orellana handed defendant $5 for helping her look for someone to sell her narcotics. Defendant maintained that the three officers conspired to fabricate a narcotics transaction.

The trial court granted the motion and ordered certain documents disclosed. The record does not include a reporters transcript of the trial courts in camera review of documents nor copies of the documents reviewed.

On October 14, 2009, all parties announced ready and the matter was transferred to Department 130 for trial. In Department 130, defendants Marsden motion was denied.[4] (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)

The evidentiary portion of defendants jury trial began on October 19, 2009. The jury commenced deliberations on October 22, 2009. That day, the jury found defendant guilty as charged. In a bifurcated proceeding the following day, the trial court found defendant suffered four prior convictions within the meaning of Penal Code section 667.5, subdivision (b) and one prior for Health and Safety Code section 11370.2. The trial court denied defendants request for a new trial on the grounds of insufficiency of the evidence and trial counsels failure to call witnesses revealed in Pitchess discovery. It sentenced defendant to six years in prison, comprised of four years for sale of cocaine plus two years pursuant to Penal Code section 667.5 (one year for each of two priors). He was given 198 days of presentence custody credit, comprised of 132 days in actual custody and 66 days of good conduct credit.

Defendant filed a timely notice of appeal.

We appointed counsel to represent defendant on this appeal. After examination of the record, appointed counsel filed an opening brief which did not raise any arguable issues and which requested that we independently review the record pursuant to Wende, supra, 25 Cal.3d 436.

On March 15, 2010, we advised defendant that he had 30 days within which to personally submit any contentions or issues he wished us to consider. On April 1, 2010, defendant filed a letter brief. As we understand defendants arguments, they are that (1) he received ineffective assistance of counsel because his trial counsel did not call witnesses disclosed in Pitchess discovery; and (2) the conviction was not supported by substantial evidence because neither the $20 bill nor any cocaine was found on his person.[5] Both contentions lack merit. First, whether to call a particular witness is a matter of trial tactics and, unless the decision results from an unreasonable failure to investigate, it will not support an ineffective assistance of counsel claim. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Inasmuch as the witnesses defendant complains his trial counsel did not call were found through a Pitchess motion, defense counsels decision not to call them could not have been the result of a failure to investigate. Second, Orellanas testimony constituted substantial evidence to support the conviction notwithstanding that neither the $20 bill used as buy money nor any cocaine was found on defendants person.

On May 17, 2010, appellate counsel filed a motion in the trial court to correct the award of conduct credits, arguing that he is entitled to the benefit of the 2009 amendments to section 4019 which went into effect on January 25, 2010, pursuant to Senate Bill No. 18 (3d Ex. Sess. 2009). The amendments, which became effective after appellant was sentenced and while this appeal was pending, increased the good conduct credits available to a defendant for presentence custody in a local detention facility. (Stats. 2009, 3d Ex. Sess. 2009, ch. 28,  50.)

On June 9, 2010, we directed both parties to file supplemental letter briefs discussing whether the 2009 amendments to section 4019 should be applied retroactively. Not surprisingly, in those supplemental briefs appellant argues that the amendments should be applied retroactively and the People argue that the amendments should not be applied retroactively. We agree with appellant. As we recently observed in People v. Bacon (B214314, July 1, 2010) ___ Cal.App.4th ___: Numerous published opinions have already ruled on this issue and it will be resolved by the California Supreme Court. Two of those opinions, People v. Hopkins (2010) 184 Cal.App.4th 615 (Sixth District) and People v. Rodriguez (2010) 183 Cal.App.4th 1 (Fifth District) (review granted June 9, 2010, S181808), concluded that the statutory amendment is not retroactive.[[6]] In contrast, the majority of published decisions have held that the statutory amendment is retroactive under In re Estrada (1965) 63 Cal.2d 740 because it is an amendatory statute that mitigates punishment. Cases with that holding include People v. Pelayo (2010) 184 Cal.App.4th 481 (First District, Division Five), People v. Norton (2010) 184 Cal.App.4th 408 (First District, Division Three), . . . People v. Landon (2010) 183 Cal.App.4th 1096 (First District, Division Two) [(review granted June 23, 2010, S182808)], People v. House (2010) 183 Cal.App.4th 1049 (Second District, Division One) [(review granted June 23, 2010, S182813)], and People v. Brown (2010) 182 Cal.App.4th 1354, (Third District) (review granted June 9, 2010, S181963). [] We agree with the reasoning in the majority of published decisions on this issue. We conclude, therefore, that the amendment of . . . section 4019 applies retroactively. We come to the same conclusion in this case and order the judgment modified accordingly.

Other than the application of section 4019, we have examined the entire record and are satisfied that appointed counsel has fully complied with his responsibilities and that no other arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment showing that defendant has a total of 264 days of presentence custody credit, comprised of 132 days of actual custody credit and 132 days of Penal Code section 4019 conduct credit. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

GRIMES, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] This $20 bill was never recovered.

[3] The parties stipulated that a criminalist would testify that the substance booked into evidence contained cocaine base.

[4] At the hearing on defendants Marsden motion, he argued that his counsel was in cahoots with the prosecutor. In addition, defense counsel explained that defendant wanted her to call as a witness the city attorney who litigated the Pitchess motion on behalf of the People.

[5] Also on April 1, 2010, defendant filed a request asking this court to replace his appointed appellate counsel. We denied defendants request.

[6] We also note that other cases that have held section 4019 is not retroactive include People v. Otubuah (2010) 184 Cal.App.4th 422 and People v. Eusebio (B216149, June 18, 2010) ___ Cal.App.4th ___.