Opinion
As Modified Aug. 19, 1991.
Opinion Vacated Dec. 3, 1991.
Certified for Partial Publication
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of the Statement of Facts and Part I.
Previously published at 233 Cal.App.3d 121
Richard Aubrey, under appointment by the Court of Appeal, Santa Rosa, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Sr. Asst. Atty. Gen., Edgar A. Kerry and Louis M. Vasquez, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
OPINION
FRANSON, Associate Justice, Assigned.
STATEMENT OF THE CASE
A jury convicted James Edward Buckner of possession of heroin (Health & Saf. Code, § 11350, subd. (a)); possession of cocaine (same); being under the influence of a controlled substance (Health & Saf. Code, § 11550); and possession of narcotics paraphernalia (Health & Saf. Code, § 11364). Probation was denied and Buckner was sentenced to three years in prison. Notice of appeal was timely filed.
See footnote *, ante.
DISCUSSION
I. There was no error in giving CALJIC No. 2.70
See footnote *, ante.
II. There was no duty to instruct on intoxication
Buckner contends the trial court had a duty to instruct, sua sponte, on the defense of intoxication, and its failure to do so requires reversal. He is incorrect.
CALJIC No. 4.21 (1989 rev.) (5th ed. pocket pt.) provides:
" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.]" (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.) This duty includes an obligation to instruct on defenses and their relationship to the elements of the charged offense. (Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)
In People v. Foster (1971) 19 Cal.App.3d 649, 97 Cal.Rptr. 94, the court, construing former Penal Code section 22, noted that voluntary intoxication could not be considered when the crime charged merely required a general intent, i.e., an intent to do the proscribed act. However, it could be considered in determining whether a particular purpose, motive, or intent actuated the accused. (Id. at p. 654, 97 Cal.Rptr. 94.) Under circumstances where the jury could consider voluntary intoxication, the trial court had a duty to convey the rule by proper instruction and failure to do so constituted error. (Id. at pp. 654-655, 97 Cal.Rptr. 94.)
Further statutory references are to the Penal Code.
Foster recognized that in order to convict an accused of narcotics possession, a general intent to possess and knowledge the substance is a narcotic, are required. While "knowledge" is not the same as "specific intent," it is still a mental state. (Foster, supra, at p. 655, 97 Cal.Rptr. 94.) Accordingly, "where knowledge is a requisite element of a crime, the court must instruct, on its own motion, that in determining the existence of such knowledge the jury may take into consideration the fact that the accused was intoxicated at the time he committed the act in question if there is evidentiary basis for such instruction." (Id. at pp. 655-656, 97 Cal.Rptr. 94.)
At the time Foster was decided, section 22 provided:
"No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act."
In 1981, section 22 was rewritten. (Stats.1981, ch. 404, § 2, p. 1592.) Subdivision (b) provided: "Whenever the actual existence of any mental state, including, but not limited to, purpose, intent, knowledge, or malice aforethought, is a necessary element to constitute any particular species or degree of crime, evidence that the accused was voluntarily intoxicated at the time of the commission of the crime is admissible on the issue as to whether the defendant actually formed any such mental state." (Emphasis added.)
In 1982, section 22 was again amended. (Stats.1982, ch. 893, § 2, pp. 3317-3318.) It now provides:
"(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act.
"(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.
"(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (Emphasis added.)
Thus, prior to the 1982 amendment, evidence of voluntary intoxication was admissible on the issue of whether the defendant formed a mental state, whenever a mental state was a necessary element of the crime charged. The clear effect of the 1982 amendment was to limit evidence of voluntary intoxication "to the issue of whether the defendant (a) actually formed a required specified intent, (b) premeditated, (c) deliberated, or (d) harbored malice aforethought, when a specific intent crime is charged." (Legis. Counsel's Dig., Sen. Bill No. 2035, 6 Stats. 1982 (Reg.Sess.) Summary Dig., p. 296, emphasis added.)
Buckner points out that evidence of voluntary intoxication remains relevant despite the elimination of the defense of diminished capacity. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1178-1179, 270 Cal.Rptr. 286, 791 P.2d 965.) However, unlike the crimes at issue in Ramirez, while possession of narcotics requires knowledge, it is not a specific intent crime. (See People v. Foster, supra, 19 Cal.App.3d at p. 655, 97 Cal.Rptr. 94.) Nor is "knowledge" one of the mental states, enumerated in subdivision (b) of current section 22, regarding which evidence of voluntary intoxication is now admissible. Hence, under current section 22, evidence of voluntary intoxication is no longer admissible to refute the mental state of "knowledge." Accordingly, Foster is inapplicable on this point. Buckner was not entitled to an instruction on the effect of voluntary intoxication, such an instruction having been precluded by the 1982 amendment of section 22.
III. Buckner is entitled to 34 days of custody credits
The trial court awarded Buckner 71 actual days, plus 18 days of conduct credits, for total credits of 89 days. The parties agree Buckner had 71 days of actual custody to his credit. The question is whether the 71 days entitle Buckner to 34 or 36 days of conduct credits.
The question arises from cases interpreting the conduct credit statute, section 4019. Since the early 1980's, many courts simply approximated the appropriate conduct credit by multiplying the actual custody days by 1.5, a formula first suggested in In re Allen (1980) 105 Cal.App.3d 310, 315, 164 Cal.Rptr. 319. As a result, in several cases the defendant was given an odd number of conduct credit days. (See., e.g., People v. Moore (1989) 211 Cal.App.3d 1400, 1420, 260 Cal.Rptr. 134 [395 actual days, 197 conduct credits]; People v. Levitt (1984) 156 Cal.App.3d 500, 519, 203 Cal.Rptr. 276 [443 actual days, 221 conduct credits]; People v. Dunnahoo (1984) 152 Cal.App.3d 561, 579, 199 Cal.Rptr. 796 [7 actual days, 3 conduct credits].)
If full credits are earned under the statute, however, the conduct credits cannot result in an odd number of days. "It is the intent of the Legislature 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." (§ 4019, subd. (f).)
In People v. Smith (1989) 211 Cal.App.3d 523, 259 Cal.Rptr. 515, the Third District explained the application of this language. "Credits are given in increments of four days. No credit is awarded for anything less. Here defendant was in actual custody 211 days. This is equivalent to fifty-two sets of four days, with three extra. For these 52 sets, defendant is entitled to 104 days of conduct credit--52 for labor and 52 for compliance with rules and regulations. He is entitled to no additional credits for the extra three days. The trial court erred in awarding 105 days of conduct credits. Defendant was only entitled to 104 days. Under the statutory scheme, 'rounding up' is not permitted." (Id. at p. 527, 259 Cal.Rptr. 515; see also People v. Bobb (1989) 207 Cal.App.3d 88, 97, 254 Cal.Rptr. 707.)
Division Seven of the Second District recently agreed: "[W]e would violate the clear language of the statute and the Legislature's intent by mechanically multiplying the amount of actual days by one and one-half. Instead we adopt the method of calculation set forth in Smith. " (People v. Bravo (1990) 219 Cal.App.3d 729, 735, 268 Cal.Rptr. 486.)
Buckner makes two arguments against application of the Smith/Bobb/ Bravo decisions. In one, Buckner contends the statute is ambiguous, and therefore must be construed by resolving all doubts in his favor. He argues the statute's purpose--to encourage appropriate conduct by those in custody--"may best be carried out by an award which recognizes continuous good conduct and not only conduct divisible by fours." We disagree. The statement of intent in section 4019, subdivision (f) is clear: "a term of six days will be deemed to have been served for every four days spent in actual custody." There is no room in that statement for the inference that a term of three days will be deemed to be served for every two days spent in actual custody--the formula Buckner wishes to apply. Nor will we second-guess the method the Legislature has implemented to effectuate its intent.
Buckner's other argument is that the interpretation and method of calculation adopted in Smith, Bobb and Bravo violates equal protection guarantees. "[A]ccording to respondent's calculation, appellant serves a sentence which is at least two days longer than a felon who serves this entire sentence in state prison. The distinction between the detainee/felon . and the felon who serves no presentence time raises equal protection problems. (People v. Sage (1980) 26 Cal.3d 498, 507 [165 Cal.Rptr. 280, 611 P.2d 874].)"
In People v. Rosaia (1984) 157 Cal.App.3d 832, 203 Cal.Rptr. 856, this court thoroughly discussed and rejected a similar equal protection argument, pointing out that the "good conduct" credits at issue in Sage are no longer available to sentenced prisoners. (See § 2931, subd. (d).) Instead, under section 2933 sentenced prisoners are entitled only to worktime credits. In Rosaia we concluded that the worktime credits available under section 2933 serve a legislative purpose "to provide structured work experience for sentenced prisoners to aid in their rehabilitation and increase their chances for successful reintegration into the mainstream of society." (157 Cal.App.3d at pp. 847-848, 203 Cal.Rptr. 856.) Because the credits under section 2933 are not automatic, as contrasted with the "virtual automatic entitlement available under section 4019," the distinction between detainees and sentenced prisoners is not invidious and "does not constitute a denial of equal protection." (Id. at p. 848, 203 Cal.Rptr. 856.)
We disapproved Rosaia on other grounds in People v. Horn (1989) 213 Cal.App.3d 701, 708, 261 Cal.Rptr. 814.
Division One of the First District recently considered a similar equal protection contention in People v. DeVore (1990) 218 Cal.App.3d 1316, 267 Cal.Rptr. 698. After citing eight appellate cases rejecting the argument (id. at p. 1319, 267 Cal.Rptr. 698), the DeVore court likewise concluded the statutory scheme does not constitute a denial of equal protection (id. at p. 1320, 267 Cal.Rptr. 698).
We see no point in reiterating the reasons given by this court in People v. Rosaia, supra, 157 Cal.App.3d 832, 203 Cal.Rptr. 856, and by every other appellate court addressing the issue. The law on this point is settled and we adhere to it.
Under the Smith/Bobb/Bravo formula, Buckner's 71 actual days are divided by 4, resulting in 17 sets of 4 days, with 3 days left over. Buckner is entitled to credits of 17 days for labor and 17 days for compliance with rules and regulations, and nothing for the remaining 3 days. (In other words, the number of sets of 4 days is multiplied by 2.) He is thus entitled to 34 days of conduct credits, and the abstract of judgment should be amended to reflect that entitlement.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment which reflects an award of 71 days actual credits plus 34 days conduct credits, for a total award of 105 days credit, and to forward a certified copy of same to the appropriate authorities. As so modified, the judgment is affirmed.
MARTIN, Acting P.J., and THAXTER, J., concur.
"In the crime of __ of which the defendant is accused [in Count[s] __ of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to __] [mental state[s] of __]. [p] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such [specific intent] [mental state]. [p] If from all the evidence you have a reasonable doubt whether the defendant formed such [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]]."