Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA362199 Drew E. Edwards, Judge.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Maurice Bowman of possession of ammunition by a person prohibited from possessing a firearm. (Pen. Code, § 12316, subd. (b)(1).) Defendant admitted that he suffered a prior felony conviction within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).) The trial court denied defendant’s motion to strike his prior conviction for sentencing purposes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to the middle term of two years doubled to four years under the Three Strikes law. The trial court awarded defendant a total of 422 days of presentence credit consisting of 211 days of actual custody credit and 211 days of conduct credit.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant’s appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. On November 3, 2010, we gave notice to defendant that counsel had failed to find any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant filed a letter brief that raises a number of issues. We reviewed the record and asked the parties to submit supplemental letter briefs addressing whether the trial court erred in calculating defendant’s presentence credit. We affirm the judgment of conviction, and order the abstract of judgment modified to reflect 211 days of actual custody credit and 104 days of conduct credit for a total of 315 days of presentence credit.
BACKGROUND
Defendant, a convicted felon, lived alone in a small, one-car detached garage on his grandmother’s property at 5701 Cimarron Street in Los Angeles. About 6:30 p.m. on September 16, 2009, Los Angeles Police Department Officer Jason Malik and a team of officers conducted a parole compliance search of defendant’s residence. Defendant was not present. At least three officers searched the garage. Officer Malik searched in drawers and under a couch for contraband, including weapons and bullets. Officer Malik did not find any bullets, weapons, or “magazines” in the garage.
Officer Malik then conducted a cursory search of the main residence to determine if defendant was present. Officer Malik found two magazine clips for a pistol in a laundry room that was located between the main house and the garage. One of the magazine clips was fully loaded with 10 rounds of.40 caliber, hollow point ammunition; the other magazine clip—for.25 caliber ammunition—was empty. Officer Malik left the residence. Other officers waited near defendant’s residence for defendant to return.
About an hour later, officers located defendant at his residence. Officer Brian Collins searched the garage and found a box of ammunition behind a couch. Although the box was marked “revolver cartridges, ” the box contained 17 rounds of.25 caliber automatic ammunition. The ammunition fit the.25 caliber magazine clip that Officer Malik found in the laundry room. Defendant was arrested.
In defendant’s behalf, defendant’s grandmother, Elaine Smith, testified that “around” September 16, 2009, she and a neighbor went to the laundry room after the initial police search and found one or more “bullet cases” on top of the dryer. Smith suggested to her neighbor, “They must have left it here because it wasn’t there this morning.” Smith testified that the laundry room was never locked and was accessible to everybody in the house.
According to Smith, after defendant returned home, the police arrived, placed defendant in handcuffs, and took defendant into custody. Smith asked an officer who was approaching the garage why he had to “go back there again, ” having already searched the garage. The officer responded, “That’s what we have to do, ma’am.” The search lasted a “couple of minutes.”
Kimya Moore, Smith’s and defendant’s neighbor, testified that he went to Smith’s house on September 16, 2009, to check on Smith after he noticed an “abnormal amount of officers surrounding” her house. Moore testified that he and Smith entered Smith’s house to observe the house’s condition following the police search. Moore and Smith then went to the laundry room where Moore observed “holsters.”
The holsters about which Moore testified appear to be the same items Smith described as “bullet cases.”
According to Moore, he and Smith “notified” defendant and told him to come home. When defendant arrived home, Moore and Smith asked him if the bullet cases or holsters were his. Defendant said, “No.” When the police arrived, they detained Moore and defendant. As Moore and defendant were detained, an officer went back into the garage where he remained for a very short time.
Defendant’s mother, Toni Wilmore, also lived at 5701 Cimarron Street. Wilmore testified that she saw defendant leave sometime after 3:00 p.m. on September 16, 2009. About 4:20 or 4:30 p.m., Wilmore went to the laundry room to retrieve her socks from the dryer. At that time, Wilmore did not see weapons magazines or magazine holsters in the laundry room. At 5:00 p.m., Wilmore left for work.
Wilmore testified that later she and a neighbor named “Brooks” went to the police station where Wilmore spoke to an officer who said that the police had found ammunition in the laundry room. The officer did not say that ammunition had been found in the garage. According to Wilmore, the officer “specifically” said that “the only thing they found was in the laundry room.”
Defendant’s neighbor, Antoinette Brooks, testified that on September 16, 2009, she saw defendant leave the house around 3:00 or 3:30 p.m. Thereafter, Brooks saw “family member” “Ray-Ray” and another “young man” standing near the rear of the garage by the laundry room. According to Brooks, Ray-Ray was the sort of person whom trouble seemed to follow.
According to Brooks, Wilmore called her later that evening when Brooks was at Home Depot. Wilmore told Brooks that the police were at Smith’s house looking for defendant and that Smith was “shaken.” Wilmore asked Brooks to go to Smith’s house and try to calm Smith. When Brooks arrived, the police were removing defendant from the property. As the police placed defendant in handcuffs and searched him, Brooks noticed the trunk of a black, unmarked, police car pop open. A police officer reached into the trunk and walked towards Brooks and defendant. Apparently, in reference to a box that appeared similar to the box of ammunition allegedly found in defendant’s residence, defendant asked the officer “what was that, and he kind of nodded his head at the one that was cuffing [defendant] and said ‘A box of matches.’” The officer then returned to the patrol car and placed the item in the trunk.
Brooks testified that she took Wilmore to the police station. There, Brooks spoke with an officer about the incident and stated that she did not know “what went wrong.” Brooks said that she had spoken with defendant “since he had been out” and that she was “fond” of defendant for having looked for work and for “what he had done with himself.” According to Brooks, the officer told her and Wilmore, “[I]f I was you, all I would say is that everyone has access to the laundry room because there was nothing found in his living quarters and that’s all you have to say.” Brooks continued, “And he knew that because that’s what he was told, that there was nothing found inside the living quarters where he slept.”
DISCUSSION
I. Defendant’s Issues
In his supplemental letter brief, defendant raises 10 “issues” for appeal that he wishes this court to consider. Fairly construed, defendant’s “issues” appear to raise two contentions: (i) that the prosecutor engaged in misconduct in his opening statement, and (ii) that insufficient evidence supports defendant’s conviction due to issues of witness credibility and conflicts in the evidence. Defendant’s issues are without merit.
A. Prosecutorial Misconduct
Defendant first appears to contend that the prosecutor engaged in misconduct by failing to tell the jury in his opening statement that after the initial search the officers left “having confidence that a thorough search proved that their search was complete, and no further searching was necessary.” Because defense counsel did not object in the trial court to the prosecutor’s statement on the grounds of misconduct, the contention was forfeited. (People v. Clair (1992) 2 Cal.4th 629, 662.) Even if the claim was not forfeited, there was no misconduct because the prosecutor did not use “deceptive or reprehensible methods to persuade the jury.” (People v. Friend (2009) 47 Cal.4th 1, 29.) It was not the prosecution’s theory of the case that the evidence would show that a second search of the garage was unnecessary—that was defendant’s theory of the case. Moreover, the prosecutor asked Officer Malik on direct examination whether he considered his initial search of the garage to be “thorough.” Officer Malik responded, “I don’t know what you would call thoroughly but checked it again to make sure Mr. Bowman wasn’t in there and there wasn’t anything obvious sitting out.” Office Malik testified that in his first search of the garage, bullets would have been “particularly important” to him, and he did not locate any bullets, weapons, or magazines in the garage. The officers’ search included looking in drawers and under the couch. Officer Collins found ammunition behind the couch in the second search.
B. Insufficient Evidence
Defendant next apparently raises a claim that his conviction is not supported by sufficient evidence based on alleged credibility issues with certain of the prosecution’s witnesses and conflicts in the evidence. “‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) In determining whether substantial evidence supports a conviction, “we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses.” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.)
In support of his claim of insufficient evidence, defendant states that Officer Gerardo Velasco testified at defendant’s preliminary hearing that he found the bullets behind the couch in the garage, then corrected himself and stated that Officer Collins found the bullets, and then testified at trial that Officer Malik told him the bullets were recovered from defendant’s residence; Officer Collins initially testified that the bullets were not in plain sight, and then later testified that they were in plain sight; Officers Malik and Collins claimed to have had 12 and 13 and a half years of experience conducting parole and probation searches, but denied “containing evidence on the search” (apparently a claim that the officers failed to preserve evidence for fingerprint or DNA testing); Officer Collins testified that he did not know if he was told to have the garage searched a second time, and then testified that he was told to search the garage again; Officer Collins did not testify as to who told him to conduct the second search of the garage; preservation of evidence and officer safety were the reasons given for “containing” defendant’s residence, but no evidence was preserved; Officer Velasco testified that he did not see defendant in possession of ammunition, but also testified that defendant was arrested because he was in possession of ammunition; Officer Malik testified that he was assigned to a team that was conducting parole and probation searches apparently pursuant to a list of parolees and probationers and defendant’s “uncle was to be among that list also”; the garage was unlocked when defendant was not home, so he had no control of the garage when he was not there; and Officer Malik testified that he looked only for obvious contraband in performing parole and probation searches, yet he performed an extensive search of the garage and, upon finding bullets and magazines stopped his search without looking for “accessories” to the items he claimed to have found. Because the issues defendant identifies concern credibility issues and evidentiary conflicts, matters that the jury and not we resolve, we reject defendant’s insufficient evidence claim. (People v. Little, supra, 115 Cal.App.4th at p. 771.) Notwithstanding possible contradictory evidence, the evidence of ammunition in defendant’s premises constituted the necessary substantial evidence supporting the verdict.
II. Defendant’s Presentence Credit
Defendant was arrested on September 16, 2009, and sentenced on April 14, 2010, and thus was in actual custody for a period of 211 days. At defendant’s sentencing hearing, the trial court awarded defendant 211 days of actual custody credit and an additional 211 days of conduct credit. In our request for supplemental briefing, we noted that defendant admitted that he suffered a prior conviction for assault with a semiautomatic firearm (§ 245, subd. (b)) which is a serious felony under section 1192.7, subdivision (c)(31), and asked the parties to address the issue of the proper calculation of defendant’s conduct credit under the version of section 4019 in effect at the time of his sentencing. Defendant’s counsel submitted a letter brief stating that he has nothing to add to his opening brief. Respondent argues that the trial court erred in awarding defendant 211 days of conduct credit and that the proper award of conduct credit is 104 days. We agree with respondent.
Prior to January 25, 2010, subdivisions (b) and (c) of section 4019 provided that for “each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, ” one day would be deducted from the prisoner’s period of confinement if the prisoner performed assigned labor and one day would be deducted if the prisoner complied with the facility’s rules and regulations. Subdivision (f) of that version of section 4019 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.”
Collectively, such worktime credit (§ 4019, subd. (b)) and behavior credit (§ 4019, subd. (c)) is referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
Section 4019 was amended effective January 25, 2010 (Stats. 2009-2010 (3rd Ex. Sess.) ch. 28, §50) to provide that prisoners may earn presentence credit at double the previous rate—under new subdivisions (b)(1) and (c)(1), work credit and conduct credit is deducted at the rate of one day for each “four-day” period of confinement. Subdivision (f) was amended to provide, in part, 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....” This enhanced credit under section 4019, however, was not available to defendants who had a prior conviction for a serious felony as defined in section 1192.7. (Former § 4019, subds. (b)(2), (c)(2).) Defendants who had a prior conviction for a serious felony earned conduct credit at the prior rate of six days for every four days spent in actual custody. (Former § 4019, subd. (f).)
Effective September 28, 2010, section 4019 was again amended. (Stats. 2010, ch. 426 (S.B.76).)
Here, the trial court’s award of 211 days of conduct credit represents an award of enhanced credit under former section 4019. This was error. Defendant admitted that he suffered a prior conviction for assault with a semiautomatic firearm in violation of section 245, subdivision (b), which is a serious felony under section 1192.7, subdivision (c)(31), and thus defendant was not eligible for enhanced custody credit under amended section 4019. Instead, the trial court should have awarded defendant conduct credit using the prior rate of six days for every four days spent in actual custody. (Former § 4019, subd. (f).) Applying that rate, defendant was entitled to 104 days of conduct credit. (People v. Fry (1993) 19 Cal.App.4th 1334, 1341 [“credit is calculated by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody”].) Thus, defendant was entitled to an award of 211 days of actual custody credit and 104 days of conduct credit for a total award of 315 days of presentence credit. The abstract of judgment is ordered modified to reflect such an award.
We have otherwise examined the entire record and are satisfied that defendant’s counsel has fully complied with his responsibilities and that no other arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The abstract of judgment is ordered modified to reflect 211 days of actual custody credit and 104 days of conduct credit for a total award of 315 days of presentence credit. The judgment otherwise is affirmed.
We concur: ARMSTRONG, Acting P. J., KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.