Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF127354A, Michael E. Dellostritto, Judge.
Amy K. Guerra, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Poochigian, J., and Franson, J.
A jury convicted appellant, Brandon Chance Steffan, of felony receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and possession of an instrument or tool with the intent to feloniously enter a building (§ 466), a misdemeanor. In a separate proceeding, the court found true an enhancement allegation that appellant had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison sentence of four years and awarded appellant 183 days of presentence custody credit, consisting of 123 days of actual time credit and 60 days of conduct credit.
All statutory references are to the Penal Code.
On appeal, appellant contends (1) the court, in violation of appellant’s constitutional right to due process of law, instructed the jury that “slight” evidence was sufficient for conviction, and (2) he is entitled to additional presentence custody credit under an amendment to former section 4019, effective January 25, 2010, which increased the rate at which persons meeting the statute’s eligibility requirements could accrue conduct credit. We will affirm.
Section 4019 has been further amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426 (S.B. 76), § 2.) The September 2010 amendment does not affect this case and does not change our analysis in this matter.
FACTS
On March 24, 2009, Carlos Velasco discovered that his son’s 1994 Honda Civic automobile had been stolen. On March 31, 2009, appellant was driving the stolen Honda when he was stopped by California Highway Patrol Officer Aaron Taylor for a traffic violation.
Immediately upon making the stop, Officer Taylor, using the computer in his patrol car, determined that the license plate on the car was assigned to a 1997 Honda. Later during the stop, the officer determined that the vehicle identification number on the car appellant was driving matched that of the stolen 1994 Honda.
Upon looking inside the car, Officer Taylor noticed that there was no key in the ignition and that the ignition was slightly damaged. He asked appellant where the ignition key was, and appellant pointed out that it was on the dashboard. Appellant stated he had put it there as the officer was walking up to the car because he (appellant) did not want the officer to think he would try to drive off in the car and he thought the officer would prefer that the key not be in the ignition. Officer Taylor noticed that the key had a Ford motor vehicle insignia on it, and that it appeared to have been “altered or shaved.”
Officer Taylor asked appellant for the registration and documentation of insurance and title. Appellant was unable to produce any of these items. He later told another investigating officer the following: Appellant bought the car from an individual at a swap meet three days previously; appellant agreed to pay $500 for the car; he gave the seller $250 at the swap meet and agreed to give him the balance of the purchase price at a later date, at which time he would receive the “paperwork” for the car; and he knew the first and last name of the seller, but he had no “contact information.”
In a search of the car, officers found nine keys, from different automobile manufacturers. The keys had been “shaved” or “filed.” Keys that have been altered in this way can be used to start other cars.
DISCUSSION
Claim of Instructional Error
The court instructed the jury with CALCRIM No. 359, as follows: “The defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that the other evidence shows that the charged crime was committed. [¶] The other evidence may be slight and need only be enough to support a reasonable inference that the crime was committed. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.” (Italics added.)
Appellant’s claim of instructional error focuses on the portion of the instruction italicized above. He argues that his statements were only “minimally incriminating, ” and that “[i]nstructing the jury that [his] statements, which only support a partial inference of guilt, needed only ‘slight’ additional evidence to return a guilty verdict, impermissibly lightened the prosecution’s burden of proof and rendered the instruction unconstitutional.” We disagree.
The People contend appellant has forfeited this argument by failing to raise it below. We assume without deciding that appellant’s challenge to CALCRIM No. 359 is properly before us.
“The corpus delicti rule requires some evidence that a crime occurred, independent of the defendant’s own statements.” (People v. Ledesma (2006) 39 Cal.4th 641, 721.) The rule, as embodied in CALCRIM No. 359, instructs the jury as to how it should use the defendant’s out-of-court statements. The rule requires the jury to take a preliminary step before using the defendant’s out-of-court statements in considering whether the prosecution has proven guilt beyond a reasonable doubt. That is, the jury must first determine whether a crime was committed, “i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168.) “This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]” (Id. at p. 1169.) In making this determination, a jury cannot rely solely on a defendant’s extrajudicial statements; there must also be some independent proof of the crime. “The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.] There is no requirement of independent evidence ‘of every physical act constituting an element of an offense, ’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent evidence is present, the defendant’s extrajudicial statements may then be considered for their full value to strengthen the case on all issues. [Citations.]” (Id. at p. 1171, italics added.) Put another way, the People may rely solely on a defendant’s statements to convict him after they have proven by other evidence, which may be slight, that a crime occurred.
Thus, CALCRIM No. 359 correctly instructs the jury on the corpus delicti rule, as laid out in Alvarez, that it “may only rely on the defendant’s out-of-court statements to convict him if [it] conclude[s] that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed.” The instruction then goes on to expressly reinstruct the jury that it cannot convict defendant, unless the People have proven their case beyond a reasonable doubt.
Contrary to appellant’s claim, this instruction does not lessen the prosecution’s burden of proof. As demonstrated above, the instruction guides the jury’s use of a defendant’s out-of-court statements. Nor does the “slight evidence” language in the instruction contradict the “reasonable doubt” language. The “slight evidence” language and the “reasonable doubt” language address different points. One is a preliminary finding the jury must make, that a crime was committed, and one is the ultimate finding, that defendant was the perpetrator of the crime.
In addition, the court correctly instructed the jury with CALCRIM No. 220, properly defining reasonable doubt and the requirement that the People prove each element of the offense to that standard. On this record, we conclude the jury could not have misunderstood the requisite burden of proof.
Appellant relies on three federal cases: United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray), United States v. Hall (5th Cir. 1976) 525 F.2d 1254 (Hall), and United States v. Durrive (7th Cir. 1990) 902 F.2d 1221 (Durrive), all of which deal with conspiracy instructions, and not CALCRIM No. 359, or any other state’s corpus delicti instruction. In Gray, the jury was instructed on the elements of conspiracy and then told that “[t]he Government need only introduce slight evidence of a particular defendant’s participation, once the conspiracy is established, but must establish beyond a reasonable doubt that each member had a knowing, special intent to join the conspiracy.” (Gray, at p. 500.) The court held that giving this instruction was reversible error because “The ‘slight evidence’ reference can only be seen as suffocating the ‘reasonable doubt’ reference.” (Ibid.) In Hall, the court stated that an instruction substantively identical to the instruction at issue in Gray “should not be used in the charge to a jury” because it “reduced the level of proof necessary for the government to carry its burden by possibly confusing the jury about the proper standard or even convincing jury members that a defendant’s participation in the conspiracy need not be proved beyond a reasonable doubt.” (Hall, at p. 1256, fn. omitted.) And, in Durrive, the court stated, “It would be improper for a district court to charge a jury that only substantial evidence is needed to connect a person with a conspiracy. Such an action would only confuse the jury and would likely undermine the fundamental requirement of proof of guilt beyond a reasonable doubt for all elements of a crime.” (Durrive, at p. 1229, fn. 6.)
These cases are inapposite. In each of them, the instructions at issue permitted the jury to find that the defendant committed the offense of conspiracy on proof that did not establish beyond a reasonable doubt that the defendant committed the offense ― on “slight” evidence in Gray and Hall and “substantial” evidence in Durrive. Here, by contrast and as demonstrated above, the “slight evidence” language referred to a preliminary determination, and did not tell the jury that it could convict on a standard of less than beyond a reasonable doubt. Therefore, the cases cited by appellant do not support his contention.
Conduct Credit
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced, in July 2009, the court calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019, as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) However, as indicated above, the Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue conduct credit at the rate of four days for every four days of presentence custody. (Former § 4019, as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B. 18), § 50.)
Appellant argues that the January 2010 amendment applies retroactively, and that therefore he is entitled to additional conduct credit. We disagree and conclude the January 2010 amendment applies prospectively only.
We assume without deciding that none of the statutory factors that would disqualify appellant for increased credit under the January 2010 amendment are applicable to him.
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘“clear and compelling implication”’” from any other factor(s), that it intended the amendment to operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the January 2010 amendment to section 4019.
We conclude further that prospective-only application of the January 2010 amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement; and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
This court, in its “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing” of February 11, 2010, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the January 2010 amendment to section 4019, we would deem raised, without additional briefing, the contention that prospective-only application of the amendment violates equal protection principles. Accordingly, we deem that contention raised here.
The case of People v. Sage (1980) 26 Cal.3d 498 does not compel a different result. In that case, which involved a prior version of section 4019 that allowed presentence conduct credits to misdemeanants, but not felons, the California Supreme Court found that there was neither “a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.” (Sage, at p. 508.) Here, however, the purported equal protection violation is temporal, rather than based on the defendant’s status as misdemeanant or felon. Therefore, Sage is inapposite.
The issue of whether the January 2010 amendment to section 4019 applies retroactively is currently before the California Supreme Court in numerous cases, including this court’s decision in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.
DISPOSITION
The judgment is affirmed.