Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Bernardino County No. FSB802052, Kyle S. Brodie, Judge.
McINTYRE, J.
A jury found both John Christopher Foster and Jerome Edwards guilty of multiple counts of forgery, identity theft, and offering a forged instrument for filing. Edwards contends the trial court erred in failing to hold a pretrial hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Foster claims the trial court erred: (1) in admitting evidence of a civil settlement entered into with one of the victims; and (2) by finding he waived the attorney-client privilege. Defendants jointly contend: (1) substantial evidence did not support their convictions for unlawful taking of a motor vehicle; (2) the trial court incorrectly calculated their conduct credits; and (3) cumulative error requires reversal of their judgments. Finally, both defendants argue, and the Attorney General concedes, that: (1) instructional errors require that Edwards's conviction for grand theft and their joint conviction for conspiracy to commit grand theft be reversed; and (2) their abstracts of judgment should be corrected for accuracy and completeness.
As discussed below, defendants' theft convictions must be reversed and the abstracts of judgment corrected. In all other respects, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants do not challenge the sufficiency of the evidence supporting the majority of their convictions. Accordingly, we summarize the evidence in the light most favorable to the judgments to provide some background for our discussion of their contentions on appeal. (People v. Davis (1995) 10 Cal.4th 463, 509.)
A. The Cappelano Transactions (Counts 1-9)
In 2003, Wendy Cappelano met Foster through an on line chat room and fell in love with him. Foster introduced Cappelano to his family and friends, including Edwards. Foster asked Cappelano to accept transfer of title of Edwards's home located in Fontana, California to her name to protect it from foreclosure. Cappelano understood that the transfer was temporary and that she would not be assuming any of the debt or taxes on the home.
Cappelano never appeared before a notary, did not personally sign any documents agreeing to incur liens on the property, or purchase any automobiles in her name. However, the title folder for the Fontana property contained two deeds of trust totaling over $500,000 showing Cappelano as the borrower. Cappelano also learned that she owed Mercedes Benz credit about $150,000 for two vehicles that she supposedly purchased. Finally, Cappelano discovered that a credit card had been taken out in her name. A few days later, Cappelano hired attorney David Shapiro to advise her. She retained another attorney to evict Edwards from the Fontana property. Foster later agreed to confess his actions to stop the eviction proceedings on the Fontana home.
At trial, Foster testified that he and Cappelano agreed to purchase the Fontana property in her name due to his poor credit history. He claimed that Cappelano had a change of heart in December 2005. At that time she decided to end their relationship and asked to have the home taken out of her name. The jury learned that Foster had executed a declaration and settlement agreement confessing his crimes; nonetheless, he testified that he felt compelled to admit wrongdoing to prevent Edwards and his family from being evicted.
B. The Franklin Transactions (Counts 10-13, 15, 16 and 18)
Glenda Franklin, a resident of Alabama, befriended Foster through an Internet chat room. After about a year, they met in Encino, California where Franklin happened to be working. About six months later, Foster introduced her to Edwards. In June 2006, Foster told Franklin that Edwards was trying to buy a home, and asked her if she would be willing to put the house in her name temporarily so that Edwards could get a better interest rate. Franklin gave Foster her social security number and signed a single blank sheet of paper in front of a notary.
Franklin subsequently discovered that the Fontana property had been transferred to her from Cappelano, and that two loans on the property totaling $675,000 had been placed in her name. She also learned that a 2007 Infiniti FX35 in the amount of $59,313.60 had been purchased in her name. The purchase agreement listed the address of the purchaser as being on Church Street in Rancho Cucamonga, California, which is where Foster lived. Franklin, however, never signed the purchase agreement, never owned an Infiniti, and had never been to Torrance, where the dealership was located. The police later impounded the car at Edwards's residence in Georgia.
Foster testified that he offered Franklin the same agreement he had with Cappelano, where she would help Edwards and get a tax write off in return. Foster claimed that Franklin agreed to the transaction, and that she had a general power of attorney notarized, not a blank sheet of paper. Foster asserted that the money from the transaction was used to pay off the Cappelano loan. He also claimed that Franklin agreed to co-sign for the purchase of the Infiniti, but that the dealership made a mistake on the paperwork.
C. The Imoto/Torres Transactions (Counts 28-48)
Since about 1971, Tadashi and Mariko Imoto lived in a house they owned in Gardena, California. They had paid off the loan on their home. While reading the newspaper, Tasdashi discovered that his home was for sale with Nelson Torres listed as the homeowner. The Imotos denied signing the residential purchase agreement, or the grant deed transferring the property to Torres. Similarly, Torres testified that he did not have any knowledge of the transaction and did not authorize it, nor did he authorize the use of his personal identifying information. Notary Julian Ramirez testified that although his notary seal appeared on the documents, he did not notarize any of the signatures and that his notary stamp and book had previously been stolen. It was later discovered that Foster received loan disbursements from the Imoto/Torres transactions, and that Edwards engaged in a number of banking transactions using proceeds derived from the Imoto/Torres transactions.
D. The Court Proceedings
In connection with the Cappelano, Franklin, and Imoto/Torres transactions, the San Bernardino County District Attorney charged Foster and Edwards with multiple counts of forgery, procuring or offering a forged instrument for filing, identity theft and money laundering. As relevant to this appeal, Edwards was charged with three counts of grand theft of personal property (counts 35-37), and both men were charged with one count each of unlawfully taking a vehicle (count 15) and conspiracy to commit grand theft (count 48).
A jury found Edwards guilty on some counts, and not guilty on others. Again, as relevant to this appeal, it found Edwards guilty of grand theft of personal property (counts 35-37), and both men guilty of unlawfully taking a vehicle (count 15) and conspiracy to commit grand theft (count 48). The trial court sentenced Edwards and Foster to 20 years four months, and 10 years four months in prison, respectively.
DISCUSSION
I. Alleged Marsden Error
A. Facts
On the morning of trial, Edwards told the court that he had an irreparable conflict with appointed defense counsel Ronald Powell. Edwards explained that Powell had been his counsel for about a month, but that Powell had not seen him and during their first meeting Powell told him to waive time. When Edwards replied that he was not prepared to do that, Powell called him a "dummy." Edwards had not spoken to Powell since then. Powell claimed he told Edwards that "it was a dumb move not to waive time."
The trial court confirmed that Powell and all other counsel were ready for trial, announced that the jury panel was ready, and that trial was going to start that day. Edwards and the court then engaged in the following colloquy:
"The Court:....What is your request, sir?
"Edwards: I can't relieve him as my counsel?
"The Court: Are you asking to represent yourself?
"Edwards: If that's the case, if it's what I have to do. Yes, that's what I'll do.
"The Court: It's not what you have to do. But I want to make sure it's what you want to do.
"Edwards: If I'm going to go on a train wreck—in his words—I would rather be the conductor of my own train.
"The Court: You are constitutionally entitled to, as you say, be the conductor of your own train. I'm not hearing—other than this disagreement that you had about waiving time, are there any other issues of conflict that you want to bring to
"Edwards: Yes. He told me Friday he wasn't prepared, and he wasn't going to be prepared, and today he's prepared to go to trial. I'm fighting for my life here. Understand, Judge, with all do respect, I'm not trying to stop this process or hinder it in any kind of way. But I know this case, I know what I've done and what I haven't done. I know it better than he does.
"The Court: Okay. That's true of many defendants. You were there
"Edwards: I understand.
"The Court: And whatever happened and whatever didn't happen. That's true in every criminal case.
"Edwards: Absolutely, I'm not trying to withdraw, your Honor."
When asked to respond, Powell said, "I am ready to go []now. I submit." After Edwards stated he was not "confident with it, " the trial court ruled, "your lack of confidence doesn't rise to a level of conflict of interest that requires me to relieve Mr. Powell, and I'm not going to do it based on your lack of confidence. He's represented that he[] is ready to go to trial." Edwards responded: "So, if I make a motion to go pro per then?"
After the trial court explained the implications of self-representation, Edwards stated, "Knowing that [Powell] wasn't prepared and knowing there was—wasn't any investigation done on my behalf whatsoever." The trial court asked Powell if this was true, to which Powell replied, "That no investigation was done? The man had three prior attorneys—or two prior attorneys that he paid good money, too. [Sic] I'm hoping something was done." When asked by the trial court if Powell received work product done by the other attorneys, Powell answered, "I've received discovery. What I have is what I have. And none of it entails any work product from other attorneys. That's correct." Edwards asked the trial court, "So I have to proceed with him?" The trial court replied, "No, you can represent yourself." The trial court continued: "You have the right to be represented by counsel, and you have the right to represent yourself. I understand that your position is that you are not comfortable with Mr. Powell. And under certain circumstances that there were irreconcilable conflicts of interests, if there were—I'm not going to go through the whole laundry list of reasons that the Court might relieve Mr. Powell at this time, none have been demonstrated here. [¶] So I'm not going to relieve Mr. Powell. We're ready to go. It's your decision."
Edwards requested to confer with Powell. After conferring with Powell, Edwards informed the trial court, "I will go forward with him." The trial court asked Edwards if they had resolved the issues. Edwards replied, "As well as we can."
B. Analysis
Edwards contends the trial court failed to hold the requisite Marsden hearing, and erred by giving him the choice to continue with Powell or represent himself. In his reply brief, Edwards refines his argument, claiming the trial court failed to hold the "requisite confidential" Marsden hearing. As we shall explain, Edwards never triggered the need to conduct a Marsden hearing. Even assuming he had, we find no error in the trial court's failure to exclude the prosecutor or conduct a more extensive hearing.
When a defendant seeks to discharge his appointed counsel and substitute another attorney, it is an abuse of discretion to deny the defendant an opportunity to explain the reasons for the request. (Marsden, supra, 2 Cal.3d at p. 124; People v. Burton (1989) 48 Cal.3d 843, 855.) "In order to thoughtfully exercise its discretion whether to discharge present counsel, a trial court is required to listen to a defendant's complaints about his attorney." (People v. Wright (1990) 52 Cal.3d 367, 410, disapproved of on another grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) "[A] trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) "[A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant's allegations regarding the defects in counsel's representation and decides whether the allegations have sufficient substance to warrant counsel's replacement." (People v. Hines (1997) 15 Cal.4th 997, 1025.)
A defendant is entitled to relief under Marsden if he or she can show inadequate representation, or that the attorney-client relationship has irreparably broken down. (People v. Smith (1993) 6 Cal.4th 684, 696.) Whether the proper showing has been made lies within the trial court's discretion, which will not be overturned on appeal absent a clear showing of abuse. (Id. at pp. 695-696.)
Preliminarily, the motion that Edwards had prepared was never presented to the trial court; thus, we do not know whether Edwards envisioned asking the court to: (a) appoint substitute counsel; or (b) discharge counsel and proceed to trial in pro per under Faretta v. California (1975) 422 U.S. 806, 807 (Faretta). This distinction is critical because "[a] request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative. [Citation.]" (People v. Crandell (1988) 46 Cal.3d 833, 854-855, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7 ["Requests under both Marsden and Faretta must be clear and unequivocal; the one does not imply the other."].) Our review of the reporter's transcript reveals that Edwards never requested substitution of counsel. Moreover, based on the colloquy between Edwards and the court, it appears Edwards sought to discharge Powell and be allowed to represent himself. Accordingly, the trial court was under no obligation to conduct a Marsden hearing.
Even if we construed Edwards's statements to the trial court as a request for new counsel, we would conclude that the trial court properly discharged its duty under Marsden. Edwards initially complained about Powell not visiting him and calling him a "dummy." The trial court heard from Powell regarding the comment, and confirmed that Powell was ready for trial. In response to the trial court's inquiry whether he had other "issues of conflict" that he wanted to bring to the court's attention, Edwards complained that Powell was not ready for trial. Powell confirmed, however, that he had discovery materials from former counsel. Moreover, while it is reasonable to assume that Powell was not ready for trial when he asked Edwards to waive time about a week earlier, Powell represented to the court that he was currently ready for trial. The court then gave Edwards and Powell an opportunity to speak to each other in private. Edwards later indicated that they had resolved their issues. Under these circumstances, no additional inquiry by the court was needed.
Edwards's criticism of the court questioning him in the presence of the prosecutor is without merit as there is no fixed rule requiring that the prosecutor be excluded from a Marsden hearing, at least when his or her exclusion is not requested by the defendant or counsel. (People v. Madrid (1985) 168 Cal.App.3d 14, 18.) Here, no request was made by Edwards or Powell to exclude the prosecutor. In any event, Edwards's complaints did not involve the type of information that would be injurious if disclosed to the prosecution. Accordingly, we find no error in how the trial court conducted the hearing, nor any abuse of discretion in not relieving counsel.
II. Evidentiary and Instructional Issues
A. Admission of Civil Settlement Agreement
1. Facts
Shapiro testified that Cappelano hired him to address the theft of her identity and its use to purchase two vehicles and refinance a house located in Fontana, California. During the eviction proceedings, Shapiro learned that Foster was willing to confess his actions to stop the eviction process. Accordingly, Shapiro assisted in drafting a declaration and sent it to Foster in early January. The men worked on the declaration over a course of at least four days. Shapiro indicated that Foster played an active role in creating the declaration. After reviewing the declaration, Foster signed it in front of a notary at the Fontana courthouse. Foster also executed a settlement agreement. The settlement agreement provided that Cappelano would release Foster from any tort claims in exchange for $10,000 and a full confession.
Before Foster executed the declaration, Shapiro had been in contact with the Fontana and Torrance Police Departments until he learned that the San Bernardino District Attorney's Office (San Bernardino DA) was the correct contact. Shapiro told the San Bernardino DA what had occurred and asked them to prosecute the matter. Shapiro could not recall whether he spoke to any attorneys or investigators from the San Bernardino DA. Shapiro later gave a copy of the declaration to the prosecutor in this case.
Outside the presence of the jury, the court held an Evidence Code section 402 hearing to explore whether Foster had signed the documents based on a request from law enforcement. Shapiro stated that he drafted the confession without the involvement of any law enforcement agency. Although he may have informed a law enforcement agency that he planned to obtain a confession, no agency asked him to do so, and he did not act based on direction from the San Bernardino DA or any other agency. Specifically, Shapiro contacted a number of law enforcement agencies in Los Angeles and San Bernardino Counties, but they "turned down" the matter for prosecution. Shapiro could not remember "much interest" in the case until he obtained Foster's confession. At the conclusion of the hearing, the court remarked that "the loop" had been closed on this issue.
2. Analysis
Foster contends the trial court erroneously admitted evidence of the declaration and civil settlement because Cappelano and Shapiro acted as police agents. He also asserts they improperly obtained his confession through the use of psychological coercion. We disagree.
The Government violates a defendant's Sixth Amendment right to counsel when it introduces statements which a Government agent deliberately elicited from the indicted defendant outside the presence of defense counsel. (See Massiah v. United States (1964) 377 U.S. 201, 205-206 (Massiah).) Massiah error occurs "once an adversary criminal proceeding has been initiated against the accused, and the defendant's constitutional right to the assistance of counsel has attached." (In re Wilson (1992) 3 Cal.4th 945, 950.) Here, there is no evidence that adversarial criminal proceedings had commenced against Foster. Rather, the evidence was uncontroverted that all law enforcement agencies Shapiro contacted had turned the matter down for prosecution. It was not until after Shapiro obtained Foster's confession that any law enforcement agency expressed an interest in the case. Thus, the Sixth Amendment was not implicated.
The evidence also fails to support Foster's assertions that Shapiro or Cappelano acted as a police agent, and used psychological coercion to obtain the evidence. Although evidence of police agency may be express or implied, no agency is shown "where law enforcement officials merely accept information elicited by [an individual] on his or her own initiative, with no official promises, encouragement, or guidance." (In re Neely (1993) 6 Cal.4th 901, 915.) The evidence here shows that Cappelano hired Shapiro to address the theft of her identity, that he drafted the confession without the involvement of any law enforcement agency, and did not act based on direction from any law enforcement agency. The evidence does not show official promises, encouragement, or guidance by any law enforcement agency, and thus does not support any inference of police agency.
The lack of police action renders Foster's mental state when executing the settlement irrelevant. In any event, there is no evidence that Shapiro or Cappelano coerced Foster's confession. Foster assisted Shapiro in drafting the declaration, and Foster signed the document in front of a notary in a public location. Foster's desire to stop the eviction proceedings against Edwards did not vitiate his free choice.
B. Alleged Violation of Attorney-Client Privilege
1. Facts
Foster testified in his own defense. He stated that Harold Mason brokered the Cappelano transaction. During re-cross examination, the prosecutor asked Foster why he did not bring up Mason's name at any time prior to trial. Foster stated that he left such decisions up to counsel, and that he had informed his counsel about Mason. Foster then testified that two public defenders appointed to represent him had refused to give him information and documents regarding his case.
The prosecutor asked Foster about conversations he had with defense counsel, including counsel's investigation. Foster responded that counsel wanted to know about the declaration he had signed for Cappelano, that Franklin's name had not surfaced as a possible victim, and that counsel stated they would "deal" with Franklin when she became a victim. At that point, the prosecutor asked Foster whether he thought "this was an important part of this entire transaction?" Defense counsel objected to the question as argumentative and asserted the attorney-client privilege. The trial court concluded that the privilege had been waived as to this inquiry.
2. Analysis
Foster contends the trial court abused its discretion and violated his Sixth Amendment right to counsel and Fourteenth Amendment right to due process by allowing evidence in violation of the attorney-client privilege. The Attorney General argues that Foster forfeited the claim by failing to raise it below. Foster asserts that, if we find his claim was forfeited by the failure to object below, he received ineffective assistance of counsel.
For purposes of analysis, we assume the prosecutor improperly elicited evidence protected by the attorney-client privilege, and that Foster did not forfeit the claimed error. We review error in receiving evidence in violation of attorney-client privilege under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Canfield (1974) 12 Cal.3d 699, 707-708.) The Watson standard is whether it is reasonably probable a result more favorable to the appealing party would have been reached in absence of the error. (Watson, supra, 46 Cal.2d at p. 836.)
Here, Foster claims the error was prejudicial because the questions substantially impacted his credibility. While the questions had some bearing on Foster's credibility, their impact cannot be characterized as "substantial" in light of Foster's confession, the testimony given by Cappelano and Franklin, and Foster's own testimony regarding his dealings with Cappelano and Franklin. Foster also asserts the questions suggested that defense counsel did not feel the need to seek information or documents because defense counsel believed his client was guilty. However, standing alone, Foster's testimony that counsel did not respond to his request for information does not reasonably support this suggested inference. In any event, the trial court properly instructed the jury that it must judge the credibility of the witnesses (CALCRIM No. 226) and that Foster is presumed innocent (CALCRIM No. 220). Simply put, it is not reasonably probable the jury would have reached a different result had it not learned of the privileged communications.
C. Unlawful Taking of Vehicle (Count 15)
1. Facts
The information alleged that defendants violated Vehicle Code section 10851, subdivision (a) by unlawfully taking a motor vehicle, specifically a "2007 Infiniti FX 35, VIN # JNRAS08U47X101694" owned by Franklin. California Department of Motor Vehicles (DMV) records listed Franklin as the registered owner of the car, and "Infinit[i] South Bay" as the legal owner. Although the purchase agreement for the Infiniti was signed "Glenda Franklin, " she denied signing the contract, or giving anyone permission to purchase the car on her behalf. The jury found both men guilty as charged.
2. Analysis
Defendants contend their convictions must be reversed because although the DMV records established Franklin was the owner of the Infiniti, she disclaimed ownership, and the prosecution presented no evidence showing who actually owned the car. We disagree.
It is a crime to drive or take a vehicle without the consent of the owner, "and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle." (Veh. Code, § 10851, subd. (a).) An "owner" is defined as including "a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents, or creates a security interest in the vehicle." (Veh. Code, § 460.)
Here, police found the Infiniti in Edwards's driveway; however, DMV records listed "Infiniti South Bay" as the legal owner of the car. The purchase agreement for the car revealed "Infiniti South Bay" as the "Creditor-Seller" of the Infiniti, and a representative for Nissan Motor Acceptance and Infiniti Financial Services testified that the purchase agreement indebted Franklin to Infiniti South Bay. This evidence established that while Edwards possessed the car, Infiniti South Bay owned it. Other evidence revealed that while investigating Franklin's identity theft, the Torrance police concluded that the Infiniti had been stolen. From this evidence, the jury could reasonably conclude that Infiniti South Bay did not consent to defendants' actions of taking and driving the car.
We reject defendants' assertion that the information or preliminary hearing testimony failed to give them fair notice of the charge against them: namely, that Infiniti South Bay owned the car, not Franklin.
As a threshold matter, defendants did not argue below that a variance existed between the pleading and proof. (People v. Borland (1996) 50 Cal.App.4th 124, 128 [correctness of information cannot be challenged for first time on appeal].) Had they done so, the information could have been readily amended to plead the name of the owner in conformity to the proof. (People v. Foster (1926) 198 Cal. 112, 118, 123 [substituting name of one employee for another, as person from whose immediate presence money was taken during a robbery].) In any event, to obtain reversal of a conviction on the ground there was a variance between the allegations of the information and the proof at trial, the variance must be material. (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 191, p. 398.) A number of courts have upheld convictions notwithstanding that the information stated erroneous names as owners of stolen property. (People v. Zabriski (1933) 135 Cal.App. 169, 172 [conflict in evidence concerning ownership of automobile taken or driven without owner's consent held not prejudicial where evidence clearly showed accused did not own the automobile]; People v. Larrabee (1931) 113 Cal.App. 745, 747; People v. Cloud (1929) 100 Cal.App. 792, 794; People v. Nunley (1904) 142 Cal. 105, 107-109; People v. Leong Quong (1882) 60 Cal. 107, 108.)
Here, any variance regarding the name of the owner of the Infiniti did not change the basic nature of the charge. The issue at trial was not who owned the Infiniti, but whether defendants intended to permanently or temporarily deprive the owner of the Infiniti to title or possession of the vehicle. Significantly, the identity of the stolen property was clearly plead and established at trial; thus, there is no chance that defendants could be prosecuted again for the same offense. Moreover, the evidence presented at the preliminary hearing paralleled the evidence presented at trial: the police found the Infiniti in Edwards's driveway in Georgia; the original sales contract for the car revealed Infiniti South Bay was the seller; the police had the car listed as stolen; and Franklin denied purchasing the car.
Accordingly, we conclude that any variance between the information and the facts presented at trial did not affect the defendants' substantial rights.
D. Cumulative Error
We have concluded that no prejudicial error occurred. Accordingly, there was no error to cumulate to defendants' prejudice. (People v. Sanders (1995) 11 Cal.4th 475, 565.)
III. Penal Code Section 4019 Credits
Prior to January 25, 2010, subdivisions (b) and (c) of Penal Code section 4019 provided that "for each six-day period in which a prisoner is confined in or committed to" a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553; undesignated statutory references are to the Penal Code.) Subdivision (f) provided that "if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Id. at p. 4554.) When defendants were sentenced in July 2009, the court calculated their conduct credit in accord with this version of section 4019.
In October 2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18) which, among other things, amended section 4019 to provide for the accrual of presentence credits at twice the previous rate for all prisoners except those "required to register as a sex offender, " "committed for a serious felony, as defined in Section 1192.7" or who have a prior conviction for a serious or violent felony. (Amended § 4019, subd. (b)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) New subdivisions (b)(1) and (c)(1) of section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to revised subdivision (f), "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody...." (Amended § 4019, subd. (f); see also Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) (Although section 4019 was again amended by urgency legislation, operative on September 28, 2010 (Stats. 2010, ch. 426, § 2), the new version of section 4019 does not affect this case as it applies only to cases involving crimes occurring on or after September 28, 2010.)
Defendants contend they are entitled to the enhanced presentence conduct credits provided by the amended version of section 4019, because the January 2010 amendment is retroactive. The issue of retroactive application of amended section 4019 has caused a split of authority in the Courts of Appeal, and the question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [amendment retroactive]; People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [amendment prospective].) A majority of published cases on the issue, none of which are yet final, agree that the section 4019 amendment is retroactive. (See People v. Bacon (2010) 186 Cal.App.4th 333, review granted October 13, 2010, S184782; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; People v. Weber (2010) 185 Cal.App.4th 337, review granted August 18, 2010, S184873; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314.)
While we await guidance from the Supreme Court, we side with the majority view that amended section 4019 applies retroactively. Accordingly, we remand the matter to the trial court for a determination of any additional presentence credits to which defendants may be entitled.
IV. Errors Conceded by the Attorney General
A. Failure to Instruct on Grand Theft
The jury found Edwards guilty of three counts of grand theft of personal property (counts 35-37). The jury also found both defendants guilty of conspiring to commit grand theft of personal property (count 48). Defendants assert, the Attorney General concedes, and we agree that defendants' convictions on these counts must be reversed based on instructional error.
The trial court must instruct on the general principles of law relevant to and governing the case, including all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) The failure to instruct on all elements of a crime is reversible per se. (Id. at p. 1314.) Here, the trial court failed to instruct the jury on the elements of grand theft. Although the trial court instructed the jury on conspiracy, it omitted any instructions on the elements of the target offense of grand theft of personal property. Thus, the matter must be remanded for resentencing and, in the prosecution's discretion, retrial of the counts for grand theft and conspiracy to commit grand theft.
B. Correction of the Abstracts of Judgment
Defendants point out that their abstracts of judgment incorrectly state that they committed all of the charged offenses in 2005. Edwards requests that his abstract be corrected to show the following: (1) counts 7-13, 16 and 18 occurred in 2006; (2) counts 15, 28-45, and 48 occurred in 2007; and (3) counts 46 and 47 occurred in 2008. The Attorney General concedes these defects.
Our review of Foster's abstract of judgment reveals the same defects. Accordingly, Foster's abstract of judgment should be corrected to show the following: (1) counts 7-13, 16 and 18 occurred in 2006; and (2) counts 15, 39, 40 and 48 occurred in 2007.
The probation officer's reports recommended that defendants pay a court security fee of $20 under section 1465.8, plus a $30 criminal conviction fee under Government Code section 70373 for each conviction. The trial court ordered that each defendant pay a "$50" court security fee. Defendants assert that the abstracts of judgment should be corrected to reflect the two separate fees, instead of a single assessment of $50.
The Attorney General concedes, and we agree, that all fees must be set forth with specificity in the abstract of judgment. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.) Accordingly, the abstracts of judgment should be corrected to specify the two separate fees that constitute the $50 assessment imposed by the trial court.
DISPOSITION
Edwards's convictions for counts 35, 36, 37 and 48, are reversed. Foster's conviction on count 48 is reversed. The matter is remanded. If the People do not file and serve upon the trial court and defendants, within 20 days from the date the remittitur issues, a written notice of the People's intention to retry defendants on the charges alleged in counts 35, 36, 37 and 48, the trial court shall forthwith resentence defendants. If the People do timely file and serve such written notice, the trial court shall sentence defendants at the appropriate time.
The trial court is to determine any additional presentence credits to which Edwards and Foster may be entitled under amended Penal Code section 4019, and modify the sentencing records accordingly.
The abstract of judgment for Edwards is ordered corrected to indicate: (1) counts 7-13, 16 and 18 occurred in 2006; (2) counts 15, 28-45, and 48 occurred in 2007; (3) counts 46 and 47 occurred in 2008; and (4) the "$50" court security fee is composed of a $20 fee under Penal Code section 1465.8, and a $30 court facilities assessment fee under Government Code section 70373.
The abstract of judgment for Foster is ordered corrected to indicate: (1) counts 7-13, 16 and 18 occurred in 2006; (2) counts 15, 39, 40 and 48 occurred in 2007; and (3) the "$50" court security fee is composed of a $20 fee under Penal Code section 1465.8, and a $30 court facilities assessment fee under Government Code section 70373.
The superior court is ordered to prepare amended abstracts of judgment showing these modifications and send them to the California Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.