Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF148207. Kenneth G. Ziebarth, Jr., Judge. (Retired judge of the San Bernardino Super. Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
As a result of two altercations at a party in Quail Valley, where several people, including defendant, Aaris Stefan Richards, were drinking, defendant was charged with several crimes, including assault by means of force likely to produce great bodily injury on Nathan Barnes (count 1), and assaulting Barnes with a deadly weapon, a knife (count 2). (Pen. Code, § 245, subd. (a)(1).) Defendant was also charged with felony vandalism for damaging a BMW during a fight with Barnes (count 3). (§ 594, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of the lesser included offenses of simple assault in counts 1 and 2, and guilty of the felony vandalism charge. The trial court sentenced defendant to two years in prison, but suspended the sentence pending defendant’s successful completion of three years’ probation, including alcohol and anger management programs, and 240 days in jail—consisting of 60 days’ “straight time” with the balance to be served on weekends.
On this appeal, defendant claims insufficient evidence supports his simple assault conviction in count 2. He argues that, because the jury did not find him guilty of the greater, charged offense of assaulting Barnes with a knife, the evidence is necessarily insufficient to show he committed even a simple assault. We disagree and conclude substantial evidence supports the simple assault conviction in count 2.
Defendant also claims he is entitled to additional presentence custody credits under the October 2009 amendments to section 4019, which became effective January 25, 2010. Defendant was sentenced on January 21, 2010—four days before the amendments became effective. We conclude defendant is not entitled to additional custody credits under section 4019, as amended, because defendant was sentenced before the effective date of the new amendment and is not entitled to retroactive application.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. The UFC Fight
On January 10, 2009, several people, including defendant, were “hanging out” at the Quail Valley home of James Putt. At one point, defendant and Barnes challenged each other to a “UFC fight” in the yard, “just for fun.” The fight lasted a couple of minutes. After the fight, defendant and Barnes shook hands and said, “[g]ood fight.” Defendant got a bloody nose, but there were no hard feelings. Defendant was not charged with any crime in connection with the UFC fight.
A UFC fight involves martial arts and boxing.
2. The Knife Assault (Count 2)
Shortly after the UFC fight, defendant got into his car and began “doing donuts” in the circular driveway around Putt’s house. He drove away from the property, returned about 10 minutes later, and came into Putt’s house. Inside Putt’s house, defendant was being “loud” and “rowdy” and got into arguments with his girlfriend and Putt’s girlfriend, so Putt and Barnes asked him to leave. Defendant’s child was in Putt’s house, along with defendant’s girlfriend. Defendant said he wanted to take his child with him, but Putt told defendant he could not do so because he had been drinking. Putt pushed defendant out of his house, and the two of them fell to the ground.
Defendant got up, went to his car, pulled two 8- to 12-inch knives out of his trunk, and held them in his hands in upward positions. Putt, Barnes, David Vicars, and a fourth man, Damon, circled around defendant. Barnes was 10 to 15 feet away from defendant. After Putt told defendant he had called the police and defendant might want to leave before the police arrived, defendant dropped the knives and left.
Barnes and Vicars later told a sheriff’s deputy that defendant “lunged” at Barnes and attempted to stab him, while he was holding the two knives. Barnes also told the deputy that, after defendant lunged at him, he punched defendant in the mouth in self-defense, then defendant dropped the knives.
At trial, however, Putt, Barnes, and Vicars each denied that defendant “lunged” at anyone with the knives. According to Putt, defendant “kind of just stood there, ” while “everyone” was yelling at him to drop the knives and leave. Vicars testified: “It looked like a little bit of like a small like lunge or something but it wasn’t like a full jump.... For all I know he might have tripped on his foot. He kind of just leaned forward.” Barnes also denied that defendant made any “slashing motion” with the knives. Nor did defendant “advance” toward anyone with the knives.
3. The Second (Group) Assault (Count 1)
The facts underlying defendant’s other simple assault conviction in count 1 are not pertinent to the issues raised on this appeal—particularly defendant’s claim that insufficient evidence supports his assault conviction in count 3, which was based on the knife assault described above. Nevertheless, we briefly describe the facts underlying count 1 in order to place the knife assault in its broader context.
Shortly after defendant dropped the knives and left Putt’s property, either he or one of his brothers called Putt and told him, “we got something for you guys, ” and “they” were coming back to Putt’s house. Ten minutes later, defendant arrived back at Putt’s house with his two brothers, Aaric and Aadrian, and a fourth man, Matt. Some of the men “were holding pipes” and one of defendant’s brothers may have been holding a pool cue, but no witnesses saw any pipes or other weapons in defendant’s hands.
Meanwhile, Barnes and his girlfriend had gone to the store, but returned to Putt’s house several minutes after defendant, his brothers, and Matt arrived. As soon as Barnes stepped out of his girlfriend’s BMW, defendant and Barnes began throwing punches, and defendant threw Barnes onto the hood of the BMW. Aaric “got involved” in the fight too, while Aadrian and Matt “stood back and watched the whole thing.” No pipes or other weapons were used in the fight, however.
After the fight, which lasted about five minutes, defendant, his two brothers, and Matt got into defendant’s car and left. Barnes suffered several injuries, including an injured knee, a “busted lip, ” a fractured nose, and a fractured right tibia or femur. The hood of the BMW was smashed in, its passenger side mirror was broken off, and there were dents along the side of the car. The damages to the BMW totaled over $4,800.
B. Defense Evidence
Defendant testified in his defense. On January 11, defendant and several others, including Putt, Barnes, and Vicars, were drinking at Putt’s house. At one point, defendant was arguing with his girlfriend and Putt’s girlfriend Tracy intervened in the argument. After defendant told Tracy to “shut the fuck up, ” Putt told defendant to “[g]et the fuck out of my house right now” and began “shoving” defendant.
Putt pushed defendant outside and “tackled” him to the ground, after accusing defendant of hitting defendant’s girlfriend in the face. When defendant was on the ground, Damon kicked defendant in his jaw and called him “a fucking [n]igger.” Barnes and Vicars also kicked defendant in his head or upper body as he lay on the ground, while calling him “a [n]igger” or “fucking [n]igger.” Then, after defendant got up and began “stumbling” to his car, Barnes kept hitting defendant in the back of his head and face.
Defendant did not take any knives out of his car at that point. He drove home, then he put the knives in his car “to protect” himself, and drove back to Putt’s house to get his son. When he returned to Putt’s house, he was alone and five men, namely, Putt, Barnes, Vicars, Damon and “Mike V.” were outside. He became a “little scared” so he got out of his car and “immediately” walked to his back hatch, got the knives out, and held them in front of him with the blades pointed down. At that point, the five men were approaching him, and he told them to get out of his way so he could get his girlfriend and son.
Defendant said he did not “lunge” toward anyone with the knives, make any slashing motion with the knives, or throw the knives at anyone. When the five men were 10 to 20 feet away from him, he dropped the knives. Though he felt threatened as he was holding the knives, he “thought about it” and decided he did not want to end up “doing like life in prison or something for cutting people.” The men were yelling at him to leave, so he started walking toward his car and, as he did so, Barnes hit him in the back of his head three to five times.
Defendant went home a second time, but later returned to Putt’s house with his two brothers and his friend Matt. Defendant had no weapons in his hands, though his youngest brother was standing near the back of defendant’s car, holding a metal bar. Defendant was trying to get the attention of his girlfriend, who was still in Putt’s house, when Barnes pulled up.
Defendant “did a brisk jog” over to Barnes, but before he could ask Barnes why Barnes and the other guys had “jumped” him, Barnes hit him in the mouth, and the two of them began fighting. Defendant threw Barnes up onto the hood of the BMW, but no one else was involved in the fight, and no weapons were used.
III. DISCUSSION
A. Substantial Evidence Supports Defendant’s Simple Assault Conviction in Count 2
Defendant claims insufficient evidence supports his conviction in count 2 for the lesser included offense of simple assault. He argues that, in not finding him guilty of the offense of assaulting Barnes with a deadly weapon, a knife, in count 2, the jury necessarily rejected the evidence that he “lunged” at Barnes while holding two knives in his hands. And because the jury rejected that evidence, he argues it necessarily follows that he “took no action which would constitute an assault at all.” (Underlining omitted.) We disagree with this analysis.
In considering a claim that insufficient evidence supports a criminal conviction, we review the entire record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.) If the record contains substantial evidence, that is, evidence of reasonable, credible, and solid value such that a jury comprised of reasonable persons could have found the defendant guilty of the offense beyond a reasonable doubt, we affirm the judgment of conviction. (Ibid.)
A simple assault “is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (§ 240; People v. Williams (2001) 26 Cal.4th 779, 785.) A simple assault is a general intent crime which focuses on the nature of the act, and does not require a specific intent to injure the victim. (People v. Williams, supra, at pp. 786-788.)
Judicial Council of California Criminal Jury Instructions, CALCRIM No. 915 instructed the jury that, in order to find defendant guilty of the lesser offense of simple assault in count 2, it had to find he (1) “did an act that by its nature would directly and probably result in the application of force to a person”; (2) he “did that act willfully”; (3) when he acted he was “aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone”; (4) when he acted he “had the present ability to apply force to a person”; and (5) he did not act in self-defense. (CALCRIM No. 915—Simple Assault.) (§§ 240, 241, subd. (a).) The instruction also told the jury that the People did not have to prove defendant “actually touched” Barnes, or “actually intended to use force against [Barnes] when he acted, ” in order to prove defendant guilty of simple assault.
Simple assault is a lesser included offense of assault with a deadly weapon, the charged offense in count 2. (§ 245, subd. (a)(1); People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748.) Assault with a deadly weapon contains all of the elements of a simple assault, plus the additional element of the use of a deadly weapon. (People v. McDaniel, supra, at pp. 747-748.)
Here, substantial evidence shows that after Putt pushed defendant out of his house, defendant retrieved two knives from the trunk of his car, and “displayed” them by holding them upright in his hands. At that point, Putt, Barnes, Vicars, and Damon circled around defendant and were yelling at him to drop the knives and leave, and Barnes was standing only 10 to 15 feet away from defendant.
By displaying the knives in an upright or threatening manner while Barnes was standing only 10 to 15 feet away from him, defendant did “an act that by its nature would directly and probably result in the application of force” to Barnes. (CALCRIM No. 915; § 240.) Riverside County Sheriff’s Deputy Greg Berry testified that law enforcement officers are trained in something called “the 21-foot rule.” The rule holds that if a person has a knife exposed within 21 feet of another person, the person holding the knife is able to lunge at the other person and stab him before the other person can move out of the way.
Based on the totality of the evidence, defendant was guilty of not only a simple assault, but an assault with a deadly weapon. (People v. Chance (2008) 44 Cal.4th 1164, 1170 [“An assault occurs whenever ‘“[t]he next movement would, at least to all appearance, complete the battery.’”’]; People v. Vorbach (1984) 151 Cal.App.3d 425, 429 [holding knife in threatening manner sufficient for assault with deadly weapon].)
The People did not have to prove that defendant “lunged” at Barnes while holding the knives in order to prove he was guilty of either the charged offense or the lesser included offense of simple assault. The jurors nonetheless may have not have been convinced beyond a reasonable doubt that defendant “lunged” at Barnes while holding the knives, and thus felt that the conduct was not of such an aggravated nature so to warrant convicting him of the charged offense. The jury’s simple assault verdict may have simply been a product of jury lenity. (See, e.g., United States v. Powell (1984) 469 U.S. 57, 65; People v. Pettaway (1988) 206 Cal.App.3d 1312, 1325.)
In any event, defendant’s simple assault conviction does not depend on the evidence that defendant “lunged” at Barnes or at anyone else while holding the knives. The evidence that defendant held the knives in a menacing or threatening manner, in close proximity to Barnes, is sufficient.
B. Defendant is Not Entitled to Additional Presentence Custody Credits
At sentencing on January 21, 2010, defendant was awarded 27 days’ total custody credits, consisting of 19 days actually served, and eight days’ good conduct/work credit, calculated under the version of section 4019 that was in effect on January 21, 2010. Defendant claims that because his judgment of conviction was not final on January 21, 2010, the date he was sentenced, he is entitled to additional good conduct/work credits under the October 2009 amendments to section 4019, which became effective January 25, 2010. We disagree.
A defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) A defendant may also earn additional presentence credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (id., subd. (c)). “‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
The California Supreme Court has stated: “‘[T]he court imposing a sentence’ has responsibility to calculate the exact number of days the defendant has been in custody ‘prior to sentencing, ’ add applicable good behavior credits earned pursuant to section 4019, and reflect the total in the abstract of judgment. (§ 2900.5, subd. (d);....)” (People v. Buckhalter (2001) 26 Cal.4th 20, 30.) “The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges.” (Id. at p. 36.) Section 4019 allows a defendant to accrue credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)(1)) or by his or her good behavior (id., subd. (c)(1)).
In October 2009, the Legislature passed Senate Bill No. 18, which, among other things, amended section 4019 to increase conduct credits for defendants who have no current or prior convictions for serious or violent felonies and who are not required to register as sex offenders. (§ 4019, subds. (b)(1), (c)(1).) The amendments became effective on January 25, 2010. (Stats. 2009-2010, 3rd Ex.Sess. 2009, ch. 28, § 50, pp. 4427-4428.)
Section 4019 was amended again, effective September 28, 2010, to return to its version in effect prior to January 25, 2010. (Stats. 2010, ch. 426 § 2, p. 2088.) The statute provides that the September 28, 2010 amendments apply only to crimes committed after September 28, 2010. (§ 4019, subd. (g).) Defendant’s crimes were committed on January 10 and 11, 2009.
Under section 4019, as amended effective January 25, 2010, defendants are eligible to earn two days of conduct credits for every two days of actual custody. (§ 4019, subds. (b)(1), (c)(1).) Under the statute in effect on January 21, 2010, the day defendant was sentenced, defendants were eligible to earn only four days of conduct credits for every six days of actual custody. (Former § 4019, subds. (b)(1), (c)(1).)
Defendant’s conduct credits were calculated under the version of section 4019 that was in effect on January 21, 2010, the day he was sentenced. This was proper. The trial court was required to apply the version of section 4019 that was in effect on the date defendant was sentenced, and not, as defendant claims, the version of the statute that became effective four days later, on January 25, 2010.
“A new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.” (People v. Ledesma (2006) 39 Cal.4th 641, 664.) Despite this general principle, however, the California Supreme Court has held that, “where the amendatory statute mitigates punishment and there is no saving clause, ... the amendment will operate retroactively so that the lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d 740, 748.)
The question presented in this case—whether the January 25, 2010, amendments to section 4019 apply retroactively to defendants sentenced before January 25, but whose judgments were not final as of January 25, has resulted in a split of authority among the Courts of Appeal and is currently pending before the California Supreme Court.
Cases under review and holding that the January 25 amendment to section 4019 applies retroactively include, without limitation, People v. Brown (2010) 182 Cal.App.4th 1354, 1364-1365 (Third. Dist.), review granted June 9, 2010, S181963 and People v. Landon (2010) 183 Cal.App.4th 1096, 1099, 1108 (First Dist., Div. Two), review granted June 23, 2010, S182808.
We conclude that the January 25 amendment to section 4019 was intended to apply prospectively only. First, the amendment does not inevitably result in a reduction of a prisoner’s punishment. The statute affects credits only, not the actual sentence. Second, another portion of the statute affecting a different section (§ 2933.3, subd. (d)), was expressly made retroactive, but the Legislature failed to make a similar provision as to the amendment to section 4019.
Third, the statute’s purpose is to motivate good conduct among prisoners, to maintain discipline, and to minimize threats to prison personnel. “Reason dictates that it is impossible to influence behavior after it has occurred.” (In re Stinnette (1979) 94 Cal.App.3d 800, 806.) In such circumstances, where the purpose is to influence behavior and not necessarily to reduce punishment, the prospective-only operation of the statute is reasonably related to a legitimate public purpose, and does not violate equal protection if applied to some prisoners (to whom it applies currently) but not others (whose past conduct is already completed).
Also, as the People point out, the amending bill was a fiscal emergency enactment. Although defendant urges that awarding more conduct credits has the effect of saving money by releasing prisoners earlier, it is nevertheless true that the Legislature did not answer fiscal concerns by directly enacting early releases. Rather, it simply provided that some prisoners would have the opportunity to increase the rate at which they accrued conduct credits. The Legislature’s concerns in the enacting bill were comprehensive, and did not manifest an intent to retroactively reduce prison sentences. The presumption of prospective application has not been rebutted in this case. Thus we conclude that the January 25 amendment to section 4019 applies prospectively only.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., McKinster J.
Cases under review and holding that the January 25 amendment to section 4019 applies prospectively only include, without limitation, People v. Rodriguez (2010) 183 Cal.App.4th 1, 5 (Fifth Dist.), review granted June 9, 2010, S181808 (section 4019 held prospective only) and People v. Otubuah (2010) 184 Cal.App.4th 422, 436 (Fourth Dist., Div. Two), review granted July 21, 2010, S184314.