Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C153934
Siggins, J.
Lee Roy McCullough appeals from a judgment following his conviction by a jury on two counts of sale of marijuana. He contends he is entitled to additional presentence conduct credits under Penal Code section 4019. We agree, and order his sentence modified to reflect the additional credits. McCullough also argues the trial court improperly imposed the aggravated term of imprisonment on one count, and ordered that the sentences on the two counts run consecutively. We conclude these challenges to the court’s discretionary sentencing choices were waived because they were not raised in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 353.) They are also without merit. Finally, McCullough contends the trial court abused its discretion when it allowed the prosecution to impeach his testimony with evidence of his prior conviction for possession of marijuana for sale. We conclude the error, if any, was not prejudicial. As modified to reflect the additional presentence conduct credits to be awarded McCullough under section 4019, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
McCullough was arrested following a brief pursuit after an undercover officer watched him selling marijuana at an Oakland intersection. Officers recovered marijuana from two of his apparent customers, and along the route he travelled while he was trying to escape from the police. He was charged with two counts of sale or transportation of marijuana with an allegation that he had a prior conviction for possession of marijuana for sale.
McCullough testified in his own defense. He was in town the evening of his arrest to visit his ailing mother. He took a walk and talked briefly with a friend of his who was driving by, but he was not selling marijuana. McCullough ran when he saw the police because they have a habit of harassing him and his family.
The jury found him guilty as charged and the court sentenced McCullough to the upper term of four years on the first count of sale of marijuana, and a consecutive year for the second count, for a total of five years. He timely appealed.
DISCUSSION
A. Conduct Credits
The court awarded McCullough credits of 40 actual days in custody and 20 days of conduct credit, for a total of 60 days of presentence credits. McCullough contends an amendment to section 4019 that became effective shortly after his sentencing increased the number of pretrial conduct credits available to eligible defendants, and should be applied to reduce his sentence. The issue is presently pending before our Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; see also People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; 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; People v. Otubuah (2010) 184 Cal.App.4th 422 , review granted July 21, 2010, S184314; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Norton (2010) 184 Cal.App.4th 408, review granted August 11, 2010, S183260); People v. Weber (2010) 185 Cal.App.4th 337, review granted August 18, 2010, S184873.) In the absence, as yet, of a decision from our high court, we hold the amendment applies retroactively.
The changes to section 4019 were effective January 25, 2010, as a result of Senate Bill No. 18. (§ 4019, as amended by Stats. 2009, ch. 28, § 50 (Sen. Bill No. 18 (2009-2010 3d Ex. Sess.).) Although McCullough was sentenced before the changes took effect, his sentence is not yet final for purposes of determining whether the amended statute should apply to his case. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Our review of this legal issue is de novo. (In re Chavez (2004) 114 Cal.App.4th 989, 994.)
At the time of McCullough’s sentencing, section 4019 provided for two days of conduct credit for every six-day period in custody. (Former § 4019, subds. (b) & (c), (f).) The effect of the amendment to section 4019 allowed eligible defendants to earn two days of conduct credit for every four days of actual custody. (§ 4019, subds. (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939.) Moreover, eligible defendants may ultimately earn two days of credit for every two days actually served: “It is the intent of the Legislature that 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....” (§ 4019, subd. (f).)
These credit ratios are not available to defendants who are required to register as sex offenders or were convicted of serious or violent felonies (§ 4019, subds. (b)(2) & (c)(2)), and conduct credits earned by defendants convicted of violent felonies are limited to 15 percent of actual confinement time. (§ 2933.1.)
We will apply section 4019 as effective January 25, 2010, in this case. Although penal statutes are generally presumed to operate prospectively unless the Legislature has specified, or at least clearly implied, retroactive application (§ 3; People v. Alford (2007) 42 Cal.4th 749, 753), in In re Estrada (1965) 63 Cal.2d 740 our Supreme Court delineated an exception to this general rule for statutory amendments that lessen punishment. The Estrada rule is based on a consideration that the California Supreme Court has described as “of paramount importance: ‘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.’ ” (People v. Nasalga (1996) 12 Cal.4th 784, 791-792.) Thus, “Estrada stands for the rule that when the Legislature amends a statute for the purpose of lessening the punishment, in the absence of clear legislative intent to the contrary, a criminal defendant should be accorded the benefit of a mitigation of punishment adopted before his criminal conviction became final.” (In re Chavez, supra, 114 Cal.App.4th at p. 999; see also People v. Rossi (1976) 18 Cal.3d 295, 299-300.)
Section 4019 was again amended later in 2010. However, those amendments apply only to crimes committed on or after the revised statute’s effective date. (§ 4019, subd. (g).)
Section 4019, as amended by Senate Bill No. 18, contains neither a savings clause nor an explicit indication of legislative intent regarding retroactivity, but it lessens punishment by increasing the number of credits eligible prisoners can earn for good behavior. (See People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [holding amendment that authorizes conduct credit applies retroactively]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment authorizing actual custody credits applies retroactively].) Pursuant to Estrada, therefore, the 2010 amendment effected in Senate Bill No. 18 applies retroactively to all judgments not yet final when it took effect.
Here, the trial court awarded McCullough 60 days of actual presentence custody credit and 20 days of presentence conduct credit. Under the amended version of section 4019, which we hold applies, McCullough is entitled to an additional 20 days of conduct credit, for a total of 80 days of presentence credits.
B. The Court’s Discretionary Sentencing Choices
When McCullough was sentenced, the court imposed the upper term of four years on the first count, and ordered that the sentence on the second count run consecutively. While McCullough now contends the court failed to give proper reasons for its discretionary sentencing choices, he did not raise these objections in the trial court, and they are forfeited. (People v. Scott, supra, 9 Cal.4th at p. 356 [“complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal”].) In any event, McCullough has not shown that the court erred.
The court did not abuse its discretion when it imposed the four-year term on the first count for sale of marijuana. McCullough had a prior felony conviction for possession for sale of marijuana, and, as the court observed, “he picked up this case approximately a year after he completed that probation, so it didn’t last long.” (See Cal. Rules of Court, rule 4.421(b)(2) [factors in aggravation include “[t]he defendant’s prior convictions as an adult... are numerous or of increasing seriousness”]; rule 4.408(a) [court may consider “additional criteria reasonably related to the decision being made”]; see also People v. Black (2007) 41 Cal.4th 799, 813 [a single aggravating circumstance is sufficient to support an upper term].) McCullough’s six prior misdemeanor convictions also supported imposition of the upper term, even though the court did not specifically refer to them during sentencing. (See People v. Black, supra, at p. 818, fn. 7; see also People v. Scott, supra, 9 Cal.4th at p. 353 [“Routine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention”].)
The imposition of consecutive sentences was also within the trial court’s discretion. The court found each of the sales of marijuana was separate from the other. California Rules of Court, rule 4.425(a)(1) permits consecutive rather than concurrent sentences when “[t]he crimes and their objectives were predominantly independent of each other;” or “[t]he crimes were committed at different times or separate places.” McCullough made two separate sales of marijuana to two separate customers, and the first transaction was complete before the second began. (See People v. Hunt (1982) 133 Cal.App.3d 543, 562.) The court’s additional comments regarding the “disdain he’s shown for the criminal justice system” do not compel reversal of an otherwise proper exercise of discretion. (See People v. Osband (1996) 13 Cal.4th 622, 728-729 [only a single factor is required to impose consecutive sentences]; cf. People v. Cruz (1988) 44 Cal.3d 1247, 1254 [defendant who fails to appear for sentencing under plea bargain does not lose the protections of § 1192.5 and must be allowed to withdraw his plea].)
C. Admission of McCullough’s Prior Felony Conviction for Impeachment
The trial court ruled in limine that McCullough could be impeached with a prior conviction for sale of marijuana, and declined to require the crime to be described as simply a prior felony. So, McCullough testified on direct examination that he was convicted in 2000 of possession of marijuana for sale. McCullough contends the court abused its discretion by allowing such impeachment evidence because the prior conviction was remote in time and so similar to the charged offense that “its admission in effect told the jury that appellant is a marijuana dealer.” McCullough also argues admission of the prior conviction was prejudicial because “it is reasonably probable that [his testimony] would have been believable, credible, in the absence of the admission of the prior conviction....” We disagree.
Evidence Code section 788 permits an attack upon the credibility of a witness with the fact that the witness has been convicted of a felony. (See also Cal. Const., art. I, § 28, subd. (f)(4) [“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding”].) Admission of such impeachment evidence is subject to the court’s discretion under Evidence Code section 352 to exclude evidence when its probative value is substantially outweighed by its danger for undue prejudice. (People v. Castro (1985) 38 Cal.3d 301, 312.) Factors to be considered include whether the prior conviction reflects on credibility, its nearness or remoteness in time, and whether the conviction is for “ ‘the same or substantially similar conduct for which the accused is on trial.’ ” (People v. Beagle (1972) 6 Cal.3d 441, 453; Castro, supra, at p. 307.) The trial court has “broad discretion to admit or exclude prior convictions for impeachment purposes, ... and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.” (People v. Collins (1986) 42 Cal.3d 378, 389-390.) “ ‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice.’ ” (People v. Green (1995) 34 Cal.App.4th 165, 182.)
Here, the court determined the probative value of the prior conviction was not outweighed by its prejudicial effect because the court intended to instruct the jury it could consider the prior conviction only in assessing McCullough’s credibility. The court declined to generally refer to the conviction as a felony on the ground it would lead the jury to speculate, and concluded that excluding it would give McCullough a false aura of veracity. (See People v. Beagle, supra, 6 Cal.3d at p. 453; accord, People v. Carpenter (1999) 21 Cal.4th 1016, 1056.) The court later instructed the jury it could consider McCullough’s prior felony conviction “only as it may bear on his believability, but [not] for any other purpose. [¶] You can’t, for example, think, well, if he’s been convicted of a crime before, it’s more likely he’s guilty here. You will not consider it for that purpose or any... other purpose other than credibility. It’s very important. We all agree that wouldn’t be very fair.”
“ ‘[N]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.’ ” (People v. Johnson (2010) 185 Cal.App.4th 520, 535.) “Prior convictions for the identical offense are not automatically excluded, ” and “ ‘[t]he identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.’ ” (People v. Green, supra, 34 Cal.App.4th at p. 183.) Whether to “sanitize” a prior conviction also presents a discretionary choice for the court. (See People v. Massey (1987) 192 Cal.App.3d 819, 825.) We conclude the court did not abuse its discretion in allowing McCullough to be impeached with his prior conviction for sale of marijuana.
Even if it were error for the court to admit the prior conviction without “sanitizing” it as requested by defense counsel, McCullough has not shown it was prejudicial, in light of the limiting instructions given by the court and the overwhelming evidence of his guilt. The police officer who observed both drug transactions identified McCullough as the seller, the marijuana was recovered from the buyers’ cars within a few minutes of the sales, McCullough fled from police, and additional bags of marijuana and cash were recovered along his route of escape. There is no reasonable probability that McCullough would have had a more favorable outcome if the prior conviction had been excluded. (See People v. Collins, supra, 42 Cal.3d at pp. 390-392; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the additional days of presentence conduct credit authorized by section 4019, as amended by Senate Bill No. 18, and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: McGuiness, P.J., Jenkins, J.