Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. KA088147, Charles E. Horan, Judge.
Tracy Gatlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
Defendant and appellant George J. Arnott was convicted of petty theft with a prior conviction (Pen. Code, § 666), receiving stolen property (Pen. Code, § 496, subd. (a)), and theft of access card account information (Pen. Code, § 484e, subd. (d)). Defendant admitted various prior convictions. The trial court sentenced defendant to six years in state prison and gave defendant 206 presentence custody credits. On appeal, defendant contends he is entitled to additional presentence custody credits under Penal Code section 4019 and no substantial evidence exists to support his conviction of theft of access card account information.
Under amendments to Penal Code section 4019 that we conclude are retroactive, defendant is entitled to 70 additional days of presentence local conduct credits, and we remand the cause to the trial court with directions to modify the abstract of judgment accordingly. We affirm the judgment of conviction of theft of access card account information, finding it is supported by substantial evidence.
1. Defendant Is Entitled to Additional Conduct Credits.
Defendant contends he is entitled to additional presentence conduct credits under amendments to Penal Code section 4019 (hereafter section 4019) that became effective while defendant’s appeal was pending. We agree with defendant that the amended statute should be given retroactive effect.
To summarize: Section 4019 was amended effective January 25, 2010 (the January 2010 amendment). (Former § 4019, as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) The statute was amended again effective September 28, 2010, but the new amendments apply to prisoners confined for crimes committed on or after that date. (§ 4019, subd. (g).) The January 2010 amendment resulted in an increase in the number of presentence good conduct and work time credits to be awarded to certain classes of offenders as an offset against a prison sentence. As applicable to defendant, under the statute in effect before the January 2010 amendment, a term of six days would be deemed to have been served for every four days spent in actual custody, giving defendant “a total of two days of conduct credit for every four-day period of incarceration....” (People v. Dieck (2009) 46 Cal.4th 934, 939.) Under the January 2010 amendment, “a term of four days will be deemed to have been served for every two days spent in actual custody.” (Former § 4019, subd. (f)), giving defendant two days of conduct credit for every two days in custody.)
There is a split of authority among our appellate districts on the retroactivity of the January 2010 amendment to section 4019 (and the issue is now on review before the Supreme Court). This division has joined the courts holding that retroactive application is dictated. Briefly stated, when the Legislature enacted the January 2010 amendment, it did not expressly declare whether or not the amendment should be given retroactive effect. Penal Code section 3 provides that no part of the code is retroactive unless expressly declared to be so. Nevertheless, it is also well established that a criminal defendant, absent a saving clause, “is entitled to the benefit of a more recent statute which mitigates the punishment for the offense....” (People v. Babylon (1985) 39 Cal.3d 719, 725.) And, “[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then... it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744.)
(See People v. Bacon (2010) 186 Cal.App.4th 333 [2d Dist., Div. 8], review granted Oct. 13, 2010, S184782; see also, e.g., People v. Keating (2010) 185 Cal.App.4th 364 [2d Dist., Div. 7], review granted Sept. 22, 2010, S184354; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5], review granted July 21, 2010, S183552; but see, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 [6th Dist.], review granted July 28, 2010, S183724.)
Consequently, and in accordance with the reasoning in the majority of published decisions on the issue, we conclude the January 2010 amendment to section 4019 should be applied retroactively to cases not yet final as of the date of its enactment. Here, defendant was in presentence custody for 138 days. He was awarded 68 days of local conduct credits under the former statute (two days for every four days spent in actual custody), but under the January 2010 amendment he is entitled to 138 days (two days for every two days spent in actual custody).
2. Substantial Evidence Supports the Conviction of Theft of Access Card Information.
“ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; accord, People v. Staten (2000) 24 Cal.4th 434, 460 [“critical inquiry” is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt].) We must confirm that the evidence supporting the verdict is “ ‘reasonable, credible, and of solid value, ’ ” but refrain from reweighing the evidence and substituting our evaluation of the credibility of witnesses for that of the trier of fact. (People v. Ochoa, at p. 1206.) This same standard applies whether the evidence is direct or circumstantial. (People v. Prince (2007) 40 Cal.4th 1179, 1251.) Under this deferential standard of review, the record supports defendant’s conviction of theft of access card account information.
Four victims testified at trial that they had left letters containing checks in their mailboxes in front of their residences for the postal carrier to pick up. One of the victims was home when her mail was taken from her mailbox where she had left it for the postal carrier to collect. From the couch in the living room where she was sitting, she saw defendant get out of a car, run to the front of her house, grab her mail, get back in the car and leave. The victim went outside and saw her mail was gone. She identified three checks that defendant had taken. The victim identified defendant in court. She had a security camera outside her home that filmed defendant as he got out of the car, went to the front of her house, took her mail, and drove off. The jury viewed the video.
A deputy sheriff testified that he was on routine patrol in the early morning hours and saw defendant with two other people sitting in a parked car. As the patrol car passed, defendant leaned back so as to avoid detection. The deputy stopped to investigate and saw “a large amount of mail scattered throughout the car, ” which he determined did not have the names of any of the people in the car. The mail included checks that had not been cashed. The deputy booked all of the mail into evidence. A United States postal inspector reviewed the contents of the mail that the deputy had recovered from defendant’s car and identified the checks belonging to the four victims.
This is substantial circumstantial evidence from which the jury could reasonably infer that defendant possessed the victims’ checks with intent to defraud. (People v. Peters (1982) 128 Cal.App.3d 75, 82-83 [sufficient evidence supported conviction of fraudulent possession of blank checks with intent to pass and defraud another based on total circumstances, including defendant having stolen checkbook and false identification at time of arrest]; People v. Norwood (1972) 26 Cal.App.3d 148, 159 [fraudulent intent may be inferred from defendant’s unauthorized possession of a traveler’s check and two other blank checks]; cf. People v. McFarland (1962) 58 Cal.2d 748, 754 [possession of stolen property under suspicious circumstances justifies inference that defendant knew the goods were stolen].)
In addition, the postal inspector testified she had received extensive formal training dealing with mail theft and conducted 200-300 investigations of mail theft. She testified that from talking with various suspects, she learned that the suspects often trade stolen mail for drugs, particularly methamphetamine. She explained the account numbers and router numbers on the checks may be used to create counterfeit checks, because check stock is readily available in office supply stores, or the checks may be washed in chemicals that erase the payment information so the suspect can write in another payee and payment amount.
Defendant contends the postal inspector’s testimony was based solely on unreliable hearsay information. Defendant is mistaken. The postal inspector’s opinion was based on her extensive training and experience in mail theft investigations. Defendant did not object to the admission of the inspector’s testimony at trial or seek a limiting instruction. (See People v. Montiel (1993) 5 Cal.4th 877, 919 [“Because an expert’s need to consider extrajudicial matters [hearsay], and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this areamust generally be left to the trial court’s sound judgment”].)
In any event, an expert may properly rely on hearsay statements obtained during criminal investigations in other cases in forming an opinion. (People v. Gardeley (1996) 14 Cal.4th 605, 617-619; People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464 [“a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies”].) The postal inspector’s expert testimony provided additional substantial evidence of intent to support the conviction of theft of access card account information.
DISPOSITION
The cause is remanded to the trial court with directions to prepare an amended abstract of judgment reflecting total presentence custody credits of 276 days, consisting of 138 days of actual custody credits and 138 days of good time/work time credits, and to transmit a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: RUBIN, ACTING P. J. FLIER, J.