P. v. Miller
Filed 2/6/13 P. v. Miller CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
MARK ANTHONY MILLER,
Defendant
and Appellant.
E054592
(Super.Ct.No.
SWF029553)
OPINION
APPEAL
from the Superior Court
of
Affirmed with directions.
John
F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant, Mark Anthony Miller, of possessing methamphetamine
for sale (Health & Saf. Code, § 11378) and the misdemeanor of
of a controlled substance (Health & Saf. Code, § 11364). In bifurcated proceedings, the trial court
found true allegations that defendant had suffered three strike priors. However, the trial court subsequently
dismissed two of those findings.
Defendant was sentenced to prison for four years and appeals asking this court to review an in
camera proceeding concerning the disclosure of the identity of a confidential
informant. He also asserts that the
trial court erred in excluding a statement he made. Finally, he contends that he is entitled,
under equal protection principles, to presentence
application of a version of Penal Code section 4019 not in effect at the time
he committed his crimes, or at the time he served that presentence custody or
at the time he was sentenced. We review
the in camera proceedings and conclude that the trial court did not err in
refusing to disclose the identity of the confidential information. We reject defendant’s two remaining
contentions and affirm, while directing the trial court to make some clarifying
additions to the abstract of judgment and a minute
order.
On
May 21, 2009, police
officers entered a home in San Jacinto, pursuant to a
search warrant. Defendant and his wife
were inside. Defendant ran at the
entering officers, saying, “What the fuck are you doing here? Get out of my house.†In a safe in a laundry room adjacent to the
master bedroom were documents in defendant’s name. Mail addressed to defendant at the address of
the home was also found in the home—one in the master bedroom. There were pipes used to smoke methamphetamine
in the master bedroom. In a box in the
master bedroom, which sat atop a mirror with residue on it were scales and a
tin containing a substance used to cut methamphetamine. In a tin on the dresser was 2.44 grams of
methamphetamine. In defendant’s front
pant pocket was a tin containing 3.04 grams of methamphetamine. Fifty feet from the back of the house was a
shed in which a black film canister was found which contained shards of
methamphetamine, weighing 7.3 grams. In
a bowl on the back patio were razor blades and one inch by one inch baggies
attached to each other. Defendant said
he lived at the house, he knew about the methamphetamine at the house and he
used methamphetamine with his friends inside the house. Defendant also admitted possessing some of
the methamphetamine, but not all of it.
He said the methamphetamine which the searching officer had placed on
the bed was his. In the opinion of the
prosecution’s expert, the drug was possessed for sale.
Defendant’s
wife testified for the defense, offering an improbable story (in light of
defendant’s admissions) that a lady whose car had broken down outside their
home was living with her boyfriend in the master bedroom (while the wife and
defendant occupied the remaining bedroom) and defendant and she had no
knowledge of the goings-on inside the bedroom and did not go in there. However, pictures of defendant and his minor
daughter and a certificate issued to him hung on the wall of the master
bedroom. According to the searching
officer, the second bedroom appeared to be unused. The wife denied knowledge of any
methamphetamine in the house, on defendant’s person or in the shed. She also claimed to be unaware that drugs
were being used in the home and she did not know anything about the
baggies.
1.
Before
trial, defendant moved to have the identity of a confidential informant
disclosed. In his moving papers,
defendant asserted that between May 11 and May 19, 2009, a confidential
informant contacted a police officer and said that a male by the name of “Markâ€
(defendant’s first name) sold methamphetamine and was one of the main suppliers
in San Jacinto. While under police
surveillance, the informant went to “Mark’s residence†and was contacted by a
man named “Joe†as he approached the house.
The informant told “Joe†that he wanted to buy $20 worth of
methamphetamine from “Mark.†“Joe†told
the informant to go to a nearby motel and wait and he would get the methamphetamine
from “Mark’s†house. The police saw
“Joe†enter the house and exit shortly thereafter. “Joe†got into a car, drove around the
corner, contacted the informant and told the informant that “Mark†was weighing
the methamphetamine. “Joe†returned to
“Mark’s†house, then returned to the informant where police observed a
hand-to-hand exchange between “Joe†and the informant. The informant then gave the police a package
containing a useable amount of methamphetamine.
On May 21, 2009
name="_ftnref1" title="">[1] “Mark’s†house (which is also referred to in
defendant’s moving papers as his house) was searched pursuant to a
warrant. In the master bedroom, the
police found methamphetamine and a scale.
Defendant had methamphetamine in his pocket. There was also methamphetamine in a tool shed
in the back yard, but defendant claimed it was not his.
In
their opposition to defendant’s motion, the People pointed out that defendant
was being prosecuted for the methamphetamine he possessed on May 21, which had
nothing to do with the information and activities of the informant except that
the latter was part of the probable cause for which the search warrant of
defendant’s home had been issued. The
People added that a cutting agent was also found at defendant’s home during the
execution of the search warrant. The
People asserted that if the trial court found that defendant had made a prima
facie showing to justify an in camera examination of the evidence the informant
had regarding defendant’s guilt of the charged offenses, disclosure of the
identity of the informant would not be justified because that evidence would be
inculpatory.
The
trial court ordered that an in camera examination of that evidence take place,
concluding that defendant had met his prima facie threshold, without further elaboration.
At
the in camera hearing, defense counsel and the defendant were excluded. At the conclusion of the hearing, the trial
court determined that it would not order that the identity of the informant be
disclosed to the defense. We have
examined the transcript of that hearing and conclude, de novo, that the trial
court did not err and that it did not abuse its discretion
informant be disclosed. (
grounds in People v.
835].)
2.
Before
trial began, the People sought exclusion of any statements defendant made to
the police which would be introduced by the defense. The parties did not specify below the precise
content or context of such statement(s), with the exception that defendant
sought admission of his “denial of sale.â€
Moreover, defense counsel implied, during his argument to the court,
that these statements had been made during the same conversation defendant had
with the police during which he made the statements that the prosecution
introduced at trial.
name="_ftnref3" title="">[3] Defendant argued below that his “denial of
sale†statement should be admitted to give completeness to his statements introduced
into evidence by the prosecution at trial,
which were that he lived in the house, he knew about the methamphetamine in
the house and he and his friends used methamphetamine in the house.
Evidence Code section dealing with this concept, it is 356, which provides,
“Where part of an act, declaration, conversation, or writing is given in
evidence by one party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given; and when a
detached act, declaration, conversation, or writing is given in evidence, any
other act, a declaration, conversation, or writing which is necessary to make
it understood may also be given in evidence.â€
The
trial court ruled that defendant’s self serving statements were inadmissible
hearsay, no statement made by defendant could be introduced by the defense and
the probative value of the statements were outweighed by their prejudicial
effect.
Defendant
here contends that the trial court abused its discretion (People v. Pride (1992) 3 Cal.4th 195, 235) in excluding his “denial
of sale†statement. In support of his
position, defendant quotes People v.
Arias (1996) 13 Cal.4th 92, 156, which states, “The purpose
of . . . section [356] is to prevent the use of selected
aspects of a conversation . . . [or]
declaration . . . so as to create a misleading impression
on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been
introduced in evidence, he may show other portions of the same interview or
conversation, even if they are self-serving, which ‘have some bearing upon, or
connection with, the admission . . . in evidence.’ [Citations.]â€
Where
the statement at issue is not necessary to make the admitted statement
understood, admission under Evidence Code section 356 is not appropriate. (People
v. Johnson (2010) 183 Cal.App.4th
253, 288.) If the admitted statements
were complete and understandable on their own, Evidence Code section 356 does
not provide the basis for admitting other statements. (People
v. Zapien (1993) 4 Cal.4th 929, 959.)
Omission of the statement at issue must cause the admitted statements to
be misleading. (People v. Parrish (2007)
152 Cal.App.4th 263, 273.) The proponent
of the statement, in this case, defendant, has the burden of establishing that
its admission is necessary to understand the admitted statements. (People
v. Von Villas (1992) 10 Cal.App.4th 201, 272.) Statements admissible under Evidence Code
section 356 may yet be excluded under Evidence Code section 352. (See Von
Villas; People v. Samuels (2005)
36 Cal.4th 96, 130.)
Defendant’s
“denial of sale†statement did not give meaning to his statements that he lived
at the house, he knew about the methamphetamine in the house and he and his
friends used methamphetamine in the house, nor did exclusion of the former
cause the latter to be misleading. The
former were complete and understandable on their own. Additionally, the trial court concluded that
admission of the former was barred by Evidence Code section 352. Defendant does not even address this
ruling. The same reason we impute to the
trial court for excluding the statement under Evidence Code section 352, i.e.,
that it was self-serving and, therefore, unreliable, provides the basis for our
additional conclusion that even if the trial court erred in excluding the
statement, reversal is not required, as it is not reasonably probable defendant
would have enjoyed a better outcome had it been admitted. (See People
v. Watson (1956) 46 Cal.2d 818, 836.)
Finally, defendant’s current claims that exclusion of his statement
violated due process and his right to a
fair trial were waived by his failure to assert them below. (People
v. Tafoya (2007) 42 Cal.4th 147, 166.)
3.
Custody Credits
Defendant
committed his crimes when the pre-January 25, 2010 version of Penal Code
section 4019, which allowed two credits for every four days of presentence
custody, was in effect. (Former Pen.
Code, § 4019, subds. (b) & (c).)
When defendant was sentenced, on September 16, 2011, the September 28,
2010 version of Penal Code section 4019, which had identical calculations for
credit, was in effect, however, that version applied only to crimes that were
committed on or after September 28, 2010.
(Former Pen. Code, § 4019, subd. (g).)
Therefore, the January 25, 2010-September 27, 2011 version of Penal Code
section 4019 applied. It provided, in
pertinent part, that those who had suffered prior convictions for serious or
violent felonies would receive two credits for every four days of presentence
time served. (Former Pen. Code, § 4019,
subds. (b)(2), (c)(2) & (f).)
Accordingly, defendant was credited 16 days for the 33 days he spent in
custody, which he completed on December 21, 2009. The version of Penal Code section 4019 that
became effective October 1, 2011, provides for two days of credit for every two
days of custody. (Pen. Code, § 4019,
subds. (b) & (c).) However, it
expressly states that this provision applies only to defendants who committed
their crime on or after October 1, 2011 and any days earned prior to October 1,
2011 are to be calculated according to the prior law. (Pen. Code, § 4019, subd. (g).)
principles entitle him to the benefit of the October 1, 2011 version of Penal
Code section 4019. Based on the
California Supreme Court’s holding in People
v. Brown (2012) 54 Cal.4th 314 (Brown),
we disagree.
In
Brown, the defendant committed his
crime, served local time and was sentenced while the pre-January 25, 2010
version of Penal Code section 4019 was in effect. (Brown,
is pertinent here, the defendant argued that equal protection principles required
that the more generous provisions of the January 25, 2010 version of Penal Code
section 4019 should be retroactively applied to him. The California Supreme Court rejected his
contention, saying, “[T]he method by
which the Legislature [in amending Penal Code section 4019 in January 2010 to
provide for more generous credits] . . . was not to grant
early release or credits regardless of conduct, . . . , but
rather to increase the existing incentives for good conduct by offering well
behaved prisoners the prospect of an even earlier release from custody. Defendant suggests the Legislature might have
intended [the January 25, 2010 version of Penal Code] section 4019 to offer
bonuses for past good behavior as well as incentives for future good
behavior. Such an interpretation of the
statute, however, finds no clear support in the statute’s language or
legislative history.[
name="_ftnref7" title="">[7]]
. . . [¶] . . .
Credits . . . are earned
day by day over the course of a defendant’s confinement as a predefined,
expected reward for specified good behavior.â€
(Brown, supra, 54 Cal.4th at p. 322.)
“The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated
equally. [Citation.] Accordingly, ‘“[t]he first prerequisite to a
meritorious claim under the equal protection clause is a showing that the state
has adopted a classification that affects two or more similarly situated groups in an unequal manner.â€â€™ [Citation.]
‘This initial inquiry is not whether persons are similarly situated for
all purposes, but “whether they are similarly situated for purposes of the law
challenged.â€â€™ [Citation.] [¶] As
we have already explained, the important correctional purposes of a statute
authorizing incentives for good behavior [citation] are not served by rewarding
prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response.
That prisoners who served time before and after former section 4019 took
effect are not similarly situated necessarily follows. On this point we find the decision in [
of Appeal rejected the claim that an expressly prospective law increasing
conduct credits violated equal protection unless applied retroactively to
prisoners who had previously earned conduct credits at a lower rate. ‘The obvious purpose of the new section,’ the
court reasoned, ‘is to affect the behavior of inmates by providing them with
incentives to engage in productive work and maintain good conduct while they
are in prison.’ [Citation.] ‘[T]his incentive purpose has no meaning if
an inmate is unaware of it. The very
concept demands prospective application.’
[Citation.] ‘Thus, inmates were
only similarly situated with respect to the purpose of [the new law] on [its
effective date], when they were all aware that it was in effect and could
choose to modify their behavior accordingly.’
[Citation.] [¶] Defendant and amicus curiae contend this
court’s decision in People v. Sage
(1980) 26 Cal.3d 498 (Sage) . . . ,
implicitly rejected the conclusion the Court of Appeal would later reach in
prisoners serving time before and after a conduct credit statute that takes
effect are not similarly situated. We
disagree. [¶] The defendant in Sage . . . , a case decided three years before
been committed to the state hospital under the mentally disordered sex offender
law [citation] and, after being found not amenable to treatment, sentenced to
state prison for a felony. The question
before the court was whether the defendant was entitled to conduct credit for
the time he had spent in county jail before being sentenced. The version of section 4019 then in effect (§
4019, as amended by Stats. 1978, ch. 1218, § 1, p. 3941) authorized presentence
conduct credit for misdemeanants who later served their sentences in county
jail but not for felons who were eventually sentenced to state prison. Finding no ‘rational basis for, much less a
compelling state interest in, denying presentence conduct credit to
detainee/felons’ [citation], the court held the statute’s unequal treatment of
felons and misdemeanants for this purpose violated equal protection. (Ibid.) [¶] To
be sure, one practical effect of Sage . . . ,
was to extend presentence conduct credits retroactively to detainees who did
not expect to receive them, and whose good behavior therefore could not have
been motivated by the prospect of receiving them. But amicus curiae reads too much into
implicitly foreclosed that prisoners serving time before and after incentives
are announced are not similarly situated.
The unsigned lead opinion ‘by the Court’ in Sage does not mention the argument that conduct credits, by their
nature, must apply prospectively to motivate good behavior. A brief allusion to that argument in a
concurring and dissenting opinion (See Sage,
supra, at p. 510 (conc. & dis.
opn. of Clark, J.)) went unacknowledged and unanswered in the lead
opinion. As cases are not authority for
propositions not considered [citation], we decline to read Sage for more than it expressly holds. [¶]
Defendant and amicus curiae also contend the present case is controlled
by In re Kapperman
[(1974)] . . . 11 Cal.3d 542, in which this court concluded
that equal protection required the retroactive application of an expressly
prospective statute granting credit to felons for time served in local custody
before sentencing and commitment to state prison. We disagree.
Credit for time served is given without regard to behavior, and thus
does not entail the paradoxical consequences of applying retroactively a
statute intended to create incentives for good behavior. Kapperman
does not hold or suggest that prisoners serving time before and after the
effective date of a statute authorizing conduct credits are similarly
situated. [¶] For these reasons, we concluded that equal
protection does not require [the January 25, 2010 version of Penal Code,
section 4019] to be applied retroactively.â€
(Id. at pp. 328-330.)
The
trial court is directed to add the words “for sale†to the description of the
crime on the abstract of judgment and to make clear in its minutes of September
16, 2011 that it dismissed only the first and second of defendant’s three
strike priors. In all other respects,
the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] In his moving papers, defendant alleged that
this occurred on May 19, but the People corrected this in their moving papers.
name="_ftn2" title=""> [2] The People point out that the standard of
review is unsettled.
