Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS090761A
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Ricky Kidd was convicted by jury of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1) and possession of cocaine base for sale (§ 11351.5; count 2). The jury further found that the offenses were committed upon the grounds of, or within 1000 feet of, a school (§ 11353.6, subd. (b)). Defendant admitted having suffered three prior convictions (§ 11370.2, subd. (a)), and having served two prior prison terms (Penal Code, § 667.5, subd. (b)). The trial court denied probation and sentenced defendant to 15 years in prison. Defendant was granted 157 actual days, plus 78 days conduct credit, for a total of 235 days of presentence custody credits. He was also ordered to pay various fines and fees, including a restitution fine pursuant to Penal Code section 1202.4, subdivision (b).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, defendant contends that: (1) the trial court abused its discretion by admitting evidence of his prior convictions for transportation for sale of heroin; (2) the punishment on the possession-for-sale count should have been stayed under Penal Code section 654; (3) the restitution fine must be reduced; (4) there are errors in the abstract of judgment; and (5) he is entitled to additional conduct credit pursuant to amended Penal Code section 4019.
For reasons that we will explain, we agree that the punishment on the possession-for-sale count should have been stayed under Penal Code section 654 and, after correcting clerical errors, we will affirm the judgment as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by first amended information with transportation of a controlled substance, cocaine base (§ 11352, subd. (a); count 1), possession for sale of cocaine base (§ 11351.5; count 2), and possession of a controlled substance, cocaine base (§ 11350, subd. (a); count 3). The information further alleged that the offenses in counts 1 and 2 were committed “upon the grounds of, and within 1000 feet of” a school (§ 11353.6, subd. (b)); that defendant had suffered three prior convictions within the meaning of section 11370.2, subdivision (a) and one prior conviction within the meaning Penal Code section 1203.07, subdivision (a)(11); and that he had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Prior to trial, defendant filed a motion seeking to exclude evidence of his prior convictions for “narcotics sales” pursuant to Evidence Code sections 352 and 1101, subdivision (b). Defendant also sought to bifurcate trial on the prison prior allegations and the section 11370.2 prior allegations. The People filed a pretrial motion seeking an order allowing them to introduce into evidence defendant’s prior convictions under section 11352 for drug “sales, ” explaining that they intended “to introduce the facts of the prior convictions as Evidence Code [section]1101(b) evidence on the issue of whether... defendant possessed the cocaine base with the intent to sell it.” The trial court ruled that the People could introduce evidence of defendant’s prior convictions to show his “[k]nowledge and/or intent” in the present case. The court granted defendant’s request to bifurcate trial on the prior allegations.
The Trial Evidence
Nicholas Borges, a narcotics detective for the Seaside Police Department, testified as an expert in the “sale and possession of cocaine base.” He also testified about defendant’s conduct in Seaside on February 11, 2009, around 12:00 noon. Defendant was driving a car when he turned onto the same street as Detective Borges. Detective Borges, who was driving an unmarked patrol vehicle, began following defendant. He knew defendant “from being around the city” and “from his prior conviction in [19]99.” Detective Borges did not see anyone in the car other than defendant.
Detective Borges followed defendant for approximately two minutes until defendant proceeded up an inclined driveway towards the parking lot of a middle school. Detective Borges then lost sight of defendant. The parking lot was next to, and not more than 30 feet away from, the school building. It was a school day and there were children on the sidewalk and near the driveway. The detective parked on the street in front of the school and within three minutes, he saw defendant again. After defendant exited the driveway in his vehicle, Detective Borges continued to follow him.
Detective Borges requested that a marked patrol car “pull [defendant] over.” The stop occurred in front of defendant’s house. Defendant tried to get out of the car after it was stopped. He appeared “very nervous” and repeatedly stated that the car was not his.
Defendant and the car were searched. Defendant did not appear to be under the influence, so Detective Borges did not do a “full evaluation of him.” In the car, there was a pack of cigarettes in the driver’s side door panel. In the center console area, underneath the emergency brake, there were a cell phone and a Travelodge notepad. There were also Travelodge keys in the center console. In addition, near the gear shift, there was a Jack in the Box cup that was approximately one-quarter full with a brown liquid. In the liquid, there were cigarettes and a clear, “plastic sandwich like baggie” which was tied off in a knot. The baggie contained “about six” “off-white, rock-like substances” that were each individually wrapped in plastic. As Detective Borges was looking at the baggie, which was “on top” of the liquid, “the rock portion of it... was beginning to slowly sink.” The rocks were later determined to be cocaine base with a total gross weight of approximately six grams.
The rocks of cocaine base were admitted into evidence at trial. Detective Borges testified that there were six rocks. He also testified that sometime after he found them, he opened the wrapping on one rock to test and confirm it was cocaine base, that each rock was approximately one gram, and that the total weight of all the rocks was six grams. He further testified that the drugs were sent to the Department of Justice. The drug report from the California Department of Justice, which was admitted into evidence, reflects that “[o]ne of five bindles” was analyzed and that the gross weight of “all five bindles” was 6.1 grams.
During the search and subsequent arrest of defendant, Detective Borges answered the cell phone twice. There was “no indication” that the callers, who asked for defendant, were “looking to buy drugs.” Detective Borges also checked the cell phone for text messages, but there was no “indication” of any drug sales. Detective Borges testified that of the arrests he had made in the past year for sales of crack cocaine where the arrestee had a cell phone, it was “fairly common” for there to be text messages or phone calls relating to sales.
After the car was searched, a search was conducted of defendant’s house. Defendant’s brother and nephew also lived at the house. The house had three bedrooms, although only two were being used as bedrooms. In a bedroom that Detective Borges believed was defendant’s, he found a box of plastic sandwich bags in a dresser drawer. The bags were “consistent with” the ones containing cocaine base that were found in the car. At trial, Detective Borges acknowledged that defendant did not tell him it was his bedroom. When asked how many items in the bedroom had defendant’s name on them, Detective Borges testified that he found defendant’s California driver’s license, “another identifying card, ” and two or three bills or pieces of mail. However, he also found identification and mail with defendant’s brother’s name on them in the same bedroom.
The Travelodge notepad that was found in the car had the following handwritten on it:
“OZ
30000
“¼ LB
110000
“½ LB
200000
“1 LB
380000
“GRAND
DADDY”
Detective Borges believed that the document was associated with narcotics transactions and that it appeared to be a “price guide” reflecting “weight and price” and “possibly profits to illegal drugs.” He stated that the street value of crack cocaine was approximately $80 per gram, that one ounce is equal to 28.5 grams, and that one ounce of crack cocaine costs between $900 and $1,200. He testified that the figures in the notepad could “be consistent with cocaine base, ” although the figures were “low.” He stated that the figures in the notepad were “most identical to the price guide” that he had for the “weight and dollar amount of marijuana.” He also indicated that he would not expect to see a pound of crack cocaine and that he was more likely to see a pound of marijuana. Detective Borges testified that defendant was 54 or 55 years old.
Regarding the Travelodge keys found in the car, at least one of the keys was associated with room 142 of a Travelodge that was located “several miles” away. Detective Borges went to the room that same day, but no one was present. He searched the room and found male and female clothing but no “contraband associated with drugs.” Based on the clothing that he found, Detective Borges believed that defendant stayed in the room.
The vehicle that defendant was driving was registered to Tonya Manning. The day after defendant’s arrest, Detective Borges interviewed Manning at room 142 of the Travelodge, where she was staying. Detective Borges testified that Manning appeared sober, and there was no sign that she either used or was involved in the sale of crack cocaine.
In evaluating Manning, Detective Borges was looking for indicia of personal use “similar” to what he had been looking for with respect to defendant, such as “burnt, cracked, or discolored fingertips” and “chapped or discolored lips.” According to Detective Borges, these are “all signs of someone who’s a drug user from holding hot pipes.” He also looks at the eyes, including whether the person has “blown pupils, or pupils outside of regular range.” Detective Borges explained that if someone had recently smoked crack cocaine and was under the influence, the person’s pulse rate would have increased significantly, the person would have “some type of racing breathing, ” the person might be agitated or unable to keep still, and the person’s pupils would be dilated “significantly.” According to the detective, the symptoms could last two or more hours.
Detective Borges also stated that “[c]rack cocaine is most commonly smoked out of a pipe.” He explained that crack pipes are “[m]ost commonly” made out of glass, but metal tubes are also used. He stated that crack cocaine users, even occasional or recreational users, get burns on their fingertips as a result of holding hot glass or metal pipes. Detective Borges has “heard” of people putting crack in cigarettes, but “it’s very rare”; he has only “dealt with” three people at most who have “told [him] that.” He believed they would not get “cracking” on the skin if they used a cigarette. The detective also admitted that crack cocaine “could be” smoked in a marijuana pipe. He “assume[d]” that if someone smoked crack cocaine in a wooden marijuana pipe, the person’s fingers would not have the same burn marks.
Detective Borges testified that if someone is dealing drugs only out of a house, he would expect to find in the house a digital scale and “baggies, “perhaps pay-owe sheets, ” which are a record of customers’ purchases and what they owe, and “maybe a phone book of customer numbers.” A large amount of cash might also be in the house. In this case, the only item that the detective found at defendant’s house “indicating sales” was the box of plastic sandwich bags. Similarly, when defendant’s car was searched, the detective did not find a scale, a pay-owe sheet, cash other than $24, or a telephone book with customer information. Likewise, the search of the Travelodge room did not reveal a scale, cash, or a phone book with customer information.
Detective Borges testified that a “pay-owe sheet” would not be needed if the dealer was requiring “cash up front.” Regarding scales, he acknowledged that “most crack dealers at some point in the process of packaging are using a digital scale.” He explained, however, that many “experienced dealers... know not to have a scale with them at anytime because it could hurt them later on.” Second, they do not have to use a scale for small amounts because “they’re able to look at the drugs and eyeball approximately what it would weigh out to.”
Detective Borges believed that defendant possessed the cocaine base in this case for sale. In explaining his conclusion, he referred to the content of the Travelodge notepad. He also made reference to the packaging of the drugs, stating: “It’s very uncommon for drug users to have multiple individually wrapped rocks for two reasons. Number one is that the price of it is very expensive, and most addicts will get something immediately available to them, such as [a] rock, half of a rock, et cetera. [¶] Number two, the main reason why drugs like this are packaged this way is because more than likely they’ve already been preweighed and they’re packaged for the immediate transaction in the street.” Detective Borges further observed that defendant had only $24 on him, had admitted being unemployed, and “had no legitimate way of showing how he had any money at all.” The detective also pointed out that no paraphernalia was found in the vehicle, defendant’s bedroom, or “the hotel that he was suspected of staying at.” Detective Borges explained that “[d]rug users will have, at some point, a pipe so that they can use the drugs” and that it is “very uncommon for them to have the drugs before the paraphernalia to use it.” In concluding that defendant possessed the cocaine base for sale, Detective Borges also relied on the fact that defendant had a prior “sales” conviction, although he testified that he would have the same opinion even if defendant did not have the prior conviction.
Detective Borges was aware of the “Costco discount, ” which in the “drug world” meant the “more you buy, the less you pay.” He also acknowledged that if a dealer was “prepackaging grams, ” and if someone wanted six grams, then the dealer would sell the person “[s]ix individually wrapped grams... because that’s what [the dealer has] prepackaged.” He explained, however, that it was “uncommon for someone to buy six rocks.” Rather, the drug is commonly sold “[s]tarting from the ounce and below, and quarters, ” so “typically... they’re bought and sold, by grams, quarter ounces, half ounces, ounces, et cetera.” He also testified that there would be no reason for a crack cocaine user to individually wrap rocks of crack cocaine.
The parties stipulated, and the jury was informed, that defendant “was convicted of two counts of transportation for sales of heroin, a controlled substance, on December 9, 1999, ” and that in the present case, “the cocaine base confiscated by the police... was a usable amount of cocaine.”
Jury Verdicts, Findings on the Priors, and Sentencing
In June 2009, the jury found defendant guilty of transportation of a controlled substance (§ 11352, subd. (a); count 1) and possession of cocaine base for sale (§ 11351.5; count 2). The jury further found that the offenses were committed upon the grounds of, or within 1000 feet of, a school (§ 11353.6, subd. (b)). Defendant thereafter admitted all priors alleged in the first amended information.
The jury was instructed that count 3, possession of cocaine base, is a lesser crime to count 2, possession of cocaine base for sale, and that if it found defendant guilty of the greater crime, it was not to complete the verdict form for the lesser crime.
The first amended information alleged and the jury found to be true an enhancement within the meaning of section 11353.6, subdivision (b). The abstract of judgment incorrectly refers to the applicable statute as “HS 11356.6(b).” We will order the abstract corrected accordingly.
On July 17, 2009, the court denied probation and sentenced defendant to 15 years in prison. The sentence consisted of the middle term of four years on count 1 (transportation of a controlled substance); a consecutive middle term of four years for the enhancement under section 11353.6, subdivision (b); a concurrent middle term of four years on count 2 (possession for sale); three years consecutive for a prior conviction under section 11370.2, subdivision (a); three years for two other prior convictions under section 11370.2, subdivision (a), concurrent with each other but consecutive with the rest of the sentence; and one year consecutive for a prison prior (Pen. Code, § 667.5, subd. (b)). Defendant was granted 157 actual days, plus 78 days conduct credit, for a total of 235 days of presentence custody credits. He was also ordered to register pursuant to section 11590 and to pay various fines and fees, including a restitution fine pursuant to Penal Code section 1202.4, subdivision (b).
Defendant filed a timely notice of appeal on July 21, 2009.
III. DISCUSSION
Prior Offenses Evidence
The Evidence of Prior Convictions
Defendant’s prior convictions included two convictions in 1999 for transportation for sale of heroin under section 11352. Prior to trial, defendant filed a motion seeking to exclude evidence of the prior convictions pursuant to Evidence Code sections 352 and 1101, subdivision (b). Defendant denied that he possessed a controlled substance in the current case and contended that the “probative value of prior sales is substantially outweighed by the danger of undue prejudice as well as misleading the jury.”
The People filed a pretrial motion seeking to “introduce the facts of the prior convictions as Evidence Code [section] 1101(b) evidence on the issue of whether... defendant possessed the cocaine base [in the present case] with the intent to sell.” The People indicated that they had law enforcement witnesses who would testify that in 1999, defendant possessed controlled substances, that he was concealing a container that had heroin in it, and that he conducted “numerous hand to hand drug sales.”
At the hearing on the motions, defendant argued that his case was not a “typical intent case, ” where someone has drugs in their pocket and the issue is whether the drugs were for sale or for personal use. He explained that he did not know that the drugs were in the car, and only if the jury answered this question in the affirmative did his intent become relevant. Defendant argued that if the “jury hears an officer say it’s my opinion that he’s dealing because he dealt in the past, ” this would create a “back door of getting a conviction on someone who has a prior.” Defendant asserted that the evidence of possession for sale was “so slight” in this case that the officer had to rely on the prior convictions for “sales, ” and “[t]hat’s exactly what [Evidence Code section] 1101(a) says we are not allowed to do....”
The People argued that evidence of a prior crime was admissible under Evidence Code section 1101, subdivision (b) to prove intent and knowledge, and that a limiting instruction would address the claimed prejudice. The People also argued that it was reasonable for a law enforcement officer “to weigh everything about a person’s history in making an evaluation.” The People further asserted that although the prior convictions were ten years old, defendant had “been sentenced by courts of this county to a collective 12 years state prison in the last ten years. So he is committing crimes as soon as he gets out.” The People stated that the evidence concerning defendant’s prior convictions would show that defendant’s car was searched and heroin was found in it, that he was seen making “hand-to-hand sales, ” and that he “stash[ed]” heroin “in a couple spots which officers then retrieved....”
Defendant responded that the present case involved a “traffic stop” and “five rocks in a car, ” whereas his “prior” from 1999 involved a “[v]ery different scenario.” He characterized the prior case as involving “surveillance done on [him] over a week period. Numerous hand-to-hand transactions. Stashing heroin. Not crack cocaine; heroin.... [O]ver 100 bindles in total of heroin.” Defendant contended that the prior and present cases involved “a completely different drug, completely different operational technique, completely different crime, ” and that the prejudice outweighed the probative value.
The trial court ruled that the prior convictions from 1999 were admissible to show “[k]nowledge and/or intent.” The court explained: “The defense essentially acknowledges that their defense is going to be something to the effect of I didn’t know the stuff was there, but if I did know it was for personal use. That brings up the issue of knowledge. First of all, not knowledge of what the stuff is, but the knowledge that it was there; and intent in terms of intent for which it was possessed.” However, the court was “not inclined” to allow the People to present evidence of the “specific facts of the prior conviction” because it would necessitate an undue consumption of time and could confuse or mislead the jury.
During trial, the jury was informed of the parties’ stipulation that defendant “was convicted of two counts of transportation for sales of heroin, a controlled substance, on December 9, 1999.” The jury also heard testimony from Officer Borges that he believed defendant possessed the cocaine base in the present case for sale, in part, because defendant had a prior “sales” conviction. He also stated that he would have reached the same conclusion even if defendant did not have the prior conviction.
With respect to the prior convictions, the jury was instructed as follows: “During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. In this case the defendant’s two prior convictions for transportation for sale of heroin, a controlled substance, are admitted only for the following purposes: One, as evidence that can be utilized by the expert in forming his opinion. Two, as evidence on the element of intent in Count 2, possession of controlled substances for sale. And, three, as evidence of the element of knowledge in Counts 1 and 3, transportation of controlled substance, and possession of a controlled substance. Do not use this evidence for any other purpose.”
The Parties’ Contentions
On appeal, defendant contends that the trial court abused its discretion by admitting evidence of his prior convictions. Defendant argues that the prior convictions “were not sufficiently similar to the charge of possession [of] cocaine base for sale” and the evidence of the prior convictions was therefore unduly prejudicial. He further asserts that evidence against him was “weak, ” and “it is reasonably probable that the jury would have returned a more favorable result if it had not heard evidence of [his] prior convictions for sales.”
The People contend that the prior convictions were relevant to defendant’s knowledge and intent, that the evidence of the prior convictions was not unduly prejudicial, and that any erroneous admission was harmless.
Legal Principles
“Generally, the prosecution may not use a defendant’s prior criminal act as evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But evidence is admissible ‘when relevant to prove some fact (such as... intent [or]... knowledge...) other than his or her disposition to commit such an act.’ (Evid. Code, § 1101, subd. (b).)” (People v. Davis (2009) 46 Cal.4th 539, 602 (Davis).)
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result... tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).)
“In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 607 (Williams); see also People v. Pijal (1973) 33 Cal.App.3d 682, 687, 690-691 (Pijal) [evidence of the defendant’s prior narcotic offenses was admissible, where the defendant’s knowledge of the narcotic contents of the drug and intent to sell were at issue].) For example, in Williams, the defendant was convicted of possession of methamphetamine (§ 11377, subd. (a)), among other crimes. (Williams, supra, 170 Cal.App.4th at pp. 595, 605.) On appeal, the defendant argued that the trial court erred in admitting evidence of numerous uncharged crimes, including evidence that officers found four pieces of rock cocaine in his home in 1991 and that he was subsequently “convicted in 1993 for possessing a controlled substance. (Health & Saf. Code, § 11351.5.)” (Williams, supra, 170 Cal.App.4th at p. 598.) The Court of Appeal concluded that the incident was “relevant to establishing defendant’s knowledge.” (Id. at p. 607.)
“Because evidence of other crimes may be highly inflammatory, the admission of such evidence ‘ “ ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ” ’ [Citations.] Under Evidence Code section 352, the probative value of a defendant’s prior acts must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citations.] ‘We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.’ [Citation.]” (Davis, supra, 46 Cal.4th at p. 602; see also Ewoldt, supra, 7 Cal.4th at p. 404 [uncharged offenses have substantial prejudicial effect and may be admitted only if they have substantial probative value].)
Analysis
In this case, defendant was charged with transportation of a controlled substance, cocaine base (§ 11352, subd. (a); count 1), possession for sale of cocaine base (§ 11351.5; count 2), and simple possession (§ 11350, subd. (a); count 3). Regarding defendant’s prior convictions, the jury was instructed that it could consider evidence of his prior convictions on the element of knowledge for the transportation and simple possession charges (counts 1 and 3), and on the element of intent for the possession for sale charge (count 2). As to knowledge on the transportation and simple possession charges (counts 1 and 3), the jury was instructed that the People had to prove that the defendant knew of the presence of a controlled substance and knew of the substance’s nature or character as a controlled substance. Regarding intent on the possession for sale charge (count 2), the jury was instructed that the People had to prove that defendant intended to sell the controlled substance when he possessed it.
Regarding the issue of knowledge, we believe that defendant’s two prior convictions for transportation for sale of heroin were relevant to whether he knew there was a controlled substance in the car that he was driving, and whether he knew of the substance’s nature or character as a controlled substance. (See Williams, supra, 170 Cal.App.4th at pp. 598, 607.) We observe that defendant’s prior convictions involved a violation of section 11352, and the current case similarly involves, in count 1, a charge that he violated section 11352. Further, the facts that defendant in the past had transported for sale numerous bindles of a controlled substance and had the controlled substance in his vehicle, tends to suggest that defendant probably knew about the controlled substance and its nature in this case, where he was driving a car in which several, individually-wrapped rocks of a controlled substance were found. That the controlled substances in the prior case (heroin) and present case (cocaine base) were different or that they differed in total amount does not eliminate the probative value of defendant’s prior convictions.
Defendant contends that “if the jury believed the police officer’s theory that the baggie floated on the liquid because it recently had been put there by [defendant] there would be no need for the evidence of the prior sales to prove [defendant’s] knowledge.” Defendant relies on Ewoldt, supra, 7 Cal.4th at page 406, and asserts that “[a]ny minimal evidence of knowledge shown by the prior convictions would... be cumulative to the other evidence presented.”
Defendant’s reliance on Ewoldt is misplaced. In Ewoldt, the California Supreme Court held that evidence of the defendant’s uncharged misconduct was admissible to show that he committed, in accordance with a common design or plan, the charged offenses involving lewd acts. (Ewoldt, supra, 7 Cal.4th at p. 403.) The court explained, however, that the uncharged misconduct was not admissible to prove the defendant’s intent as to the charged lewd acts, because if the defendant engaged in the lewd conduct as described by the victim, “his intent in doing so could not reasonably be disputed.” (Id. at p. 406.) The court concluded that “the prejudicial effect of admitting evidence of similar uncharged acts, therefore, would outweigh the probative value of such evidence to prove intent.” (Ibid., italics & fn. omitted.) In this case, defendant’s prior convictions, along with other evidence, such as Detective Borges’s testimony concerning the floating and sinking of the substance in the cup, were circumstantial evidence of defendant’s knowledge about the substance. Although the jury could have found one piece of evidence persuasive on the issue of defendant’s knowledge, it does not necessarily mean that every other piece of circumstantial evidence on the issue should be excluded as cumulative.
We believe that defendant’s prior convictions were also admissible on the issue of intent with respect to the possession-for-sale count. One of the issues was whether defendant possessed the several, individually-wrapped rocks of cocaine base for sale, rather than for personal use. Defendant’s prior transportation for sale of numerous bindles of a controlled substance and the presence of the controlled substance in his vehicle tends to suggest that defendant probably harbored a similar intent to sell in this case, where he was driving a vehicle in which several, individually-wrapped rocks of a controlled substance were found. Further, although defendant points to differences in “the method of concealing the drugs... and the basic operation” between the cases, we believe those differences stem at least in part from the difference in amounts found in each case, which, as we have explained, does not lessen the probative value of the prior convictions.
Defendant’s reliance on People v. Valentine (1988) 207 Cal.App.3d 697 (Valentine) is misplaced. In Valentine, the People introduced evidence of intravenous drug use by the defendant, who was being tried for cultivating marijuana and possessing marijuana for sale. (Id. at pp. 699, 700.) The Court of Appeal observed that “the People did not make even an attempt to explain why the proffered evidence would be relevant and admissible under Evidence Code section 1101, subdivision (b).... [R]ather the People offered the hypodermic needles and syringes on the theory that someone involved in one type of narcotics activity would also be involved in smoking marijuana. ‘They kind of run in the same crowds’ said the prosecutor. This same argument was made by the prosecutor to the jury.” (Valentine, supra, 207 Cal.App.3d at p. 704.) Further, the trial court had stated that it was “reasonable” for the jury to believe that if the defendant “ ‘was using hypodermic needles for the administration of controlled substances, ’ ” then that could lead to an inference “ ‘that he is the owner or person in control of the marijuana plants.’ ” (Ibid.) The Court of Appeal disagreed and concluded that “[t]he evidence was not admitted for one of the lawful exceptions under Evidence Code section 1101, subdivision (b) but rather for the purpose of establishing an inference of [the defendant’s] propensity or disposition to commit crimes in general and ‘drug crimes’ in particular.” (Ibid.)
In this case, we believe there is a greater degree of similarity between defendant’s prior convictions for transportation for sale and the current charge for possession for sale, than between the uncharged conduct and charged offenses described in Valentine, Defendant’s prior convictions and the current charge involved defendant’s transportation or possession of controlled substances, some found in a car, and in quantities suggesting it was not for personal use. Those similarities make the prior convictions probative on the issue of defendant’s intent to sell in the present case. In Valentine, no similarity was articulated, and the prosecutor and the trial court improperly relied on the defendant’s uncharged conduct as propensity evidence.
Relying on Ewoldt, supra, 7 Cal.4th 380, defendant argues that the issue of whether he possessed the cocaine base was disputed, and therefore the trial court in this case “should have required a higher degree of similarity between the charged and uncharged offenses.”
In Ewoldt, the California Supreme Court noted the following: “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. ‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.] For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant left the store without paying for certain merchandise, the defendant’s uncharged similar acts of theft might be admitted to demonstrate that he or she did not inadvertently neglect to pay for the merchandise, but rather harbored the intent to steal it.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, italics omitted.)
In the present case, defendant acknowledges that his intent was at issue. As the trial court observed during the hearing on the parties’ pretrial motions, defendant’s defense was that he did not know the cocaine base was in the car, but if he did, it was for personal use. Indeed, during argument to the jury, defense counsel stated that the jury had to first determine whether defendant knew the cocaine was in the car, and if he did know, it then had to determine his intent. In view of this defense, whether defendant had the intent to sell the cocaine base was at issue and his prior convictions for transportation for sale were relevant to this issue.
As to the question of whether the prior convictions should have been excluded under Evidence Code section 352, we observe that the evidence of the prior convictions was no more inflammatory that the evidence concerning the present charge for possession for sale. In addition, defendant suffered convictions as a result of the uncharged offenses, so there was no danger that the jury might doubt that he committed the charged offenses but convict him anyway because of their belief that he committed the uncharged offenses. Further, the court’s refusal to allow evidence concerning the underlying facts of the prior convictions prevented any undue consumption of time concerning the prior convictions. Moreover, there was little danger of the jury confusing the issues or being misled, where it was informed of the fact of the convictions only and instructed to consider the prior convictions for the specified purposes only. (See Ewoldt, supra, 7 Cal.4th at p. 405; People v. Lindberg (2008) 45 Cal.4th 1, 25-26 (Lindberg).) In sum, we cannot say that the trial court abused its discretion in finding that defendant’s prior convictions were sufficiently similar to permit introduction of evidence of them under Evidence Code sections 1101 and 352 on the issues of knowledge and intent. In view of this conclusion, we are not persuaded by defendant’s claim that his right to due process was violated. (Lindberg, supra, 45 Cal.4th at p. 26 [in general, application of the ordinary rules of evidence does not impermissibly infringe on a defendant’s right to due process].)
Penal Code section 654The trial court imposed concurrent terms on the transportation and possession-for-sale counts. For the first time on appeal, defendant contends that the punishment on the possession-for-sale count should have been stayed under Penal Code section 654 because the conviction on that count “arose from the same act and the same intent” as the conviction on the transportation count. Defendant asserts that “the evidence failed to show that [he] had any other objective than to sell the cocaine.”
The People agree that the sentence for possession for sale should have been stayed. The People maintain that although Penal Code section 654 “does not bar imposition of sentencing on both possession and transportation of the same drug when either the transportation, the sale, or the possession involves only a portion of the drug [citation], here there is no indication from the trial evidence that [defendant] intended to sell only a portion of the cocaine.” We accept the People’s concession.
Penal Code section 654, subdivision (a) “ ‘precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. “Whether a course of criminal conduct is divisible... depends on the intent and objective of the actor.” [Citations.] “[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.” [Citation.]’ [Citation.]” (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208; Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, if the defendant harbored “multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268 (Cleveland); People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Whether there was a separate intent and objective for each offense within the meaning of Penal Code section 654 is a factual determination that must be upheld on appeal if it is supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730 (Osband).) Although the trial court in this case did not make express findings on the issue, “a finding that defendant’s crimes were divisible inheres in the judgment. If that implied finding is supported by the evidence, it must be upheld.” (People v. Nelson (1989) 211 Cal.App.3d 634, 638; Osband, supra, 13 Cal.4th at pp. 730-731.) Further, a defendant’s claim under Penal Code section 654 generally “is not waived by failing to object below.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
In this case, the rocks of cocaine base were individually wrapped and contained in a single baggie, and the jury found that defendant possessed cocaine base for sale. There was no evidence to suggest that some portion of the cocaine base was for defendant’s personal use. There was also no evidence that defendant’s possession of the cocaine base preceded the transportation or extended beyond. Thus, his possession and transportation of the cocaine base constituted an indivisible course of conduct with a single objective. (See People v. Thomas (1991) 231 Cal.App.3d 299, 306 (Thomas); People v. Solo (1970) 8 Cal.App.3d 201, 208, disapproved on other grounds in People v. Rogers (1971) 5 Cal.3d 129, 134, fn. 4.) Accordingly, defendant’s sentence for possession for sale (count 2) should have been stayed by the trial court, and we will modify the judgment accordingly. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; Thomas, supra, 231 Cal.App.3d at p. 307.)
Restitution Fine
Defendant contends that the restitution fine must be reduced. First, he argues that the trial court may not impose a restitution fine for the possession for sale conviction, because punishment for this conviction should have been stayed under Penal Code section 654. Second, he contends that the abstract of judgment, which reflects a $6,000 restitution fine, does not conform to the oral pronouncement of the court, and that the correct amount is $3,000.
The People concede that the restitution fine should be $3,000, because punishment, including the restitution fine, may not be imposed on the possession-for-sale count under Penal Code section 654.
Penal Code section 1202.4, subdivision (b) generally provides that a restitution fine must be imposed “[i]n every case where a person is convicted of a crime, ” unless the court “finds compelling and extraordinary reasons for not doing so.” The amount of the restitution fine is at the discretion of the court, but “shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony.” (Pen. Code, § 1202.4, subd. (b)(1).) Subdivision (b)(2) of Penal Code section 1202.4 provides that “the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” However, if the sentence for a felony conviction is stayed pursuant to Penal Code section 654, that felony conviction may not be considered as part of the court’s calculation of the restitution fine under the formula provided by subdivision (b)(2) of Penal Code section 1202.4. (People v. Le (2006) 136 Cal.App.4th 925, 934 (Le).)
In this case, defendant was convicted of two counts and ultimately sentenced to a total term of 15 years in prison. At sentencing, the trial court stated that it was imposing “a fine of $200 for each year of incarceration pursuant to [Penal Code section] 1202.4(b); an additional $200 suspended pursuant to 1202.45.” Based on this statement, it appears that the court orally imposed a restitution fine of $3,000.
However, the clerk’s minutes from the sentencing hearing, which were signed by the court, state that defendant is to “[p]ay a state restitution fine of $200 multiplied by the number of years of imprisonment, multiplied by the number of convicted Felony counts, (PC 1202.4(b)(2))” (Italics added.) Under the formula in subdivision (b)(2) of Penal Code section 1202.4, the restitution fine would be $6,000, and the abstract of judgment in fact reflects a restitution fine of $6,000.
On appeal, defendant and the People agree that the restitution fine should be reduced to $3,000. We agree that the fine must be reduced. To the extent the court intended to impose a restitution fine based on the formula set forth in Penal Code section 1202.4, subdivision (b)(2), it could not consider the conviction for possession for sale, as the punishment for that count should have been stayed pursuant to Penal Code section 654. (Le, supra, 136 Cal.App.4th at p. 934.) Based on the court’s oral pronouncement, we determine that the restitution fine is $3,000, and we will order the abstract of judgment modified accordingly. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“record of the oral pronouncement of the court controls over the clerk’s minute order”].)
Enhancements Under section 11370.2, subdivision (a)
The abstract of judgment reflects that as to count 1 (transportation of a controlled substance), two enhancements were imposed under section 11370.2, subdivision (a) for defendant’s prior convictions, and that as to count 2 (possession for sale), two enhancements under section 11370.2, subdivision (a) were stayed. On appeal, defendant argues that section 11370.2, subdivision (a) is a “status” enhancement, that such an enhancement applies “only to one count of conviction, ” and thus “[t]he enhancements to count 2 should have been stricken, not stayed.” The People agree that “the abstract of judgment should be amended to strike reference to the enhancements as to Count Two.”
The California Supreme Court has explained that “there are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. [Citations.]” (People v. Coronado (1995) 12 Cal.4th 145, 156.) The first type of enhancement is “attributable to the defendant’s status as a repeat offender. [Citations.] The second category of enhancements... arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. [Citation.]” (Id. at pp. 156-157.) “ ‘Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.’ [Citations.]” (People v. Williams (2004) 34 Cal.4th 397, 402.)
Section 11370.2, subdivision (a) provides for a three-year enhancement for each specified prior conviction. In People v. Tillotson (2007) 157 Cal.App.4th 517 (Tillotson), the trial court imposed an enhancement under subdivision (c) of section 11370.2 on each of two counts. (Tillotson, supra, 157 Cal.App.4th at p. 542.) The Court of Appeal determined that subdivision (c) of section 11370.2, which is worded similar to subdivision (a), is a status enhancement, and thus it “could be imposed but once to aggregate [the defendant’s] sentence.” (Tillotson, supra, 157 Cal.App.4th at p. 542.) The Court of Appeal struck the enhancement on the second count.
Section 11370.2, subdivision (a) states: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
Section 11370.2, subdivision (c) states: “Any person convicted of a violation of, or of a conspiracy to violate, Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
In this case, the trial court imposed the section 11370.2, subdivision (a) enhancements only once, and thus the references to those enhancements in count 2 should be deleted from the abstract of judgment.
Penal Code section 4019
The trial court granted defendant 157 actual days, plus 78 days of conduct credit, for a total of 235 days of presentence custody credits. The abstract of judgment indicates that the conduct credit was awarded under Penal Code section 2933.1.
First, defendant argues in his supplemental opening brief that the abstract of judgment should be corrected to reflect that the conduct credit was awarded under Penal Code section 4019, rather than Penal Code section 2933.1, as he did not suffer a conviction for a violent felony. The People concede the issue. We agree with the People’s concession. Penal Code section 2933.1 limits the amount of credit that may be earned by individuals who are convicted of specified violent offenses. (Pen. Code, §§ 2933.1, subds. (a) & (c), 667.5, subd. (c).) Defendant was not convicted of a specified violent felony and thus his presentence conduct credit was awarded pursuant to Penal Code section 4019. We will order the abstract corrected accordingly.
Second, defendant contends in his supplemental brief that pursuant to Penal Code section 4019 as amended effective January 25, 2010, he is entitled to an additional 78 days of conduct credit. He contends that the amendment to Penal Code section 4019 should be applied retroactively, thereby entitling him to additional conduct credit, because his conviction was not yet final when the amendment became effective. Defendant contends that retroactive application is compelled by both statutory construction and the equal protection clauses of the state and federal constitutions.
Penal Code section 4019 provides for presentence credit for worktime and for good behavior. (Pen. Code, § 4019, subd. (b)(1) & (c)(1).) These types of presentence credit are collectively referred to as “conduct credit.” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn.3 (Dieck).) The presentence credit scheme of Penal Code 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....” ’ [Citations.]” (Dieck, supra, 46 Cal.4th at p. 939.)
At the time defendant was sentenced in 2009, former Penal Code section 4019 provided that a defendant could accrue conduct credit at a rate of two days for every four-day period of actual presentence custody. (Former Pen. Code, § 4019, subds. (b), (c), & (f); Dieck, supra, 46 Cal.4th at p. 939.) Effective January 25, 2010, Senate Bill No. 18 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50) amended Penal Code section 4019 to increase the amount of presentence conduct credit that may be granted to certain offenders. As amended, Penal Code section 4019 now provides that an eligible defendant may accrue conduct credit at rate of four days for every four days of presentence custody. (Pen. Code, § 4019, subds. (b)(1), (c)(1), & (f).)
The issue of whether a statutory amendment applies retroactively is determined under the independent standard of review. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) The specific question of whether the amendment to Penal Code section 4019 applies retroactively has divided the appellate courts and is presently pending before the California Supreme Court.
For example, in the following cases, the appellate courts have determined that the amendment to Penal Code section 4019 applies retroactively: People v. Landon (2010) 183 Cal.App.4th 1096 [First App. Dist., Div. Two], review granted June 23, 2010, S182808; People v. Norton (2010) 184 Cal.App.4th 408 [First App. Dist., Div. Three], review granted August 11, 2010, S183260; People v. Pelayo (2010) 184 Cal.App.4th 481 [First App. Dist., Div. Five], review granted July 21, 2010, S183552; People v. House (2010) 183 Cal.App.4th 1049 [Second App. Dist., Div. One], review granted June 23, 2010, S182813; People v. Keating (2010) 185 Cal.App.4th 364 [Second App. Dist., Div. Seven], review granted September 22, 2010, S184354; People v. Bacon (2010) 186 Cal.App.4th 333 [Second App. Dist., Div. Eight], petn. for review pending, S184782; People v. Brown (2010) 182 Cal.App.4th 1354 [Third App. Dist.], review granted June 9, 2010, S181963.
We determine that Penal Code section 4019 applies prospectively. Penal Code section 3 provides that no part of the Penal Code is “retroactive, unless expressly so declared.” Penal Code section 3 thus reflects the general rule that legislative provisions are presumed to operate prospectively. “ ‘It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that... the Legislature[] intended otherwise. [Citations.]’ [Citations] ‘We may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. [Citation.]’ [Citation.] Nonetheless, ‘in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature... must have intended a retroactive application.’ [Citations.]” (People v. Whaley (2008) 160 Cal.App.4th 779, 793-794 (Whaley).)
The Legislature has not expressly declared that the amendment to Penal Code section 4019 operates retroactively, and we do not believe that there is a “ ‘ “clear indication” ’ ” from extrinsic sources that the Legislature intended a retroactive application. (Whaley, supra, 160 Cal.App.4th at p. 794.)
We are not persuaded by defendant’s argument that the amendment to Penal Code section 4019 should be applied retroactively because the Legislature enacted Senate Bill No. 18 during California’s fiscal emergency with the intention of reducing the prison population. (See Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) Although retroactive application of the amendment to Penal Code section 4019 might result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced, prospective application of the amendment would also result in savings.
We are also not persuaded by defendant’s citations to other portions of Senate Bill No. 18 which amended other credit statutes besides Penal Code section 4019. Defendant contends that some of those amendments include a saving clause, and the absence of a saving clause in the amendment to Penal Code section 4019 “demonstrates an intent” by the Legislature that “the amendment be retroactively construed.” Defendant cites, as an example, section 41 of Senate Bill No. 18, which amended Penal Code section 2933.3 to provide for additional credit to certain inmates who have completed training for inmate firefighter assignments. (Pen. Code, § 2933.3, subds. (b) & (c).) Amended Penal Code section 2933.3 further provides that “[t]he credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009.” (Id,, subd. (d).) Although defendant refers to subdivision (d) of Penal Code section 2933.3 as a saving clause, we believe that subdivision (d) may be characterized as an express retroactivity provision. Further, the failure of the Legislature to include a retroactivity provision in the same bill regarding amended Penal Code section 4019 would suggest that the Legislature did not intend for the amendment to Penal Code section 4019 to have retroactive effect.
Defendant also points to section 59 of Senate Bill No. 18. Defendant argues that section 59 “assigns to the CDCR the task of recalculating credits” and that the “CDCR would need to re-calculate the pre-sentence credits for a prisoner only if the change to [Penal Code] section 4019 applies retroactively to that prisoner.” We are not persuaded by defendant’s argument. As we have stated, Senate Bill No. 18 amended other credit statutes in addition to Penal Code section 4019, and at least one of those statutes, Penal Code section 2933.3, expressly provides for retroactive credit. Thus, the language in section 59 of Senate Bill No. 18 regarding the calculation of additional credits is pertinent to Penal Code section 2933.3, and the prospective application of Penal Code section 4019 would not make section 59 of Senate Bill No. 18 surplusage. Further, although defendant is correct when he states that “[t]here is no suggestion that section 59 was intended to apply to one or more of [Senate Bill No. 18’s] changes regarding credits, but not others, ” there is also no suggestion that section 59 of Senate Bill No. 18 was intended to apply to changes other than those that the Legislature expressly provided are to be applied retroactively, as in Penal Code section 2933.3, subdivision (d).
Section 59 of Senate Bill No. 18 states: “The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.”
Defendant’s reliance on People v. Hunter (1977) 68 Cal.App.3d 389 (Hunter) for the proposition that the amendment to Penal Code section 4019 operates retroactively is also misplaced. The defendant in Hunter sought retroactive application of the 1976 amendment to former Penal Code section 2900.5, which allowed a credit for “ ‘back time, ’ ” that is, “periods of incarceration in county jail awaiting trial and judgment, ” against a sentence imposed as a condition of probation. (Hunter, supra, 68 Cal.App.3d at p. 391.) The court determined that the amendment “must be construed as one lessening punishment, as the term is used in [In re Estrada (1965) 63 Cal.2d 740 (Estrada)].” (Hunter, supra, 68 Cal.App.3d at p. 393.) Following Estrada, the Hunter court ruled that the amendment to former Penal Code section 2900.5 must be applied retroactively. (Hunter, supra, 68 Cal.App.3d at p. 393.)
In Estrada, the California Supreme Court stated, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Estrada, supra, 63 Cal.2d at p. 748.) However, the rule in Estrada is not applicable in the present case because the amendment to Penal Code section 4019 does not necessarily lessen a defendant’s punishment. As we have discussed, Penal Code section 4019 allows a defendant to earn additional conduct credit, while Penal Code section 2900.5 provides that a defendant is entitled to additional custody credit for the sole reason that he or she is in presentence custody. (Contra, People v. Doganiere (1978) 86 Cal.App.3d 237, 240 [determining that Estrada applied where the amended statute provided for conduct credit because “it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe”].)
Defendant also relies on People v. Babylon (1985) 39 Cal.3d 719 (Babylon), where the California Supreme Court stated “the general principle that, absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal....” (Id, at p. 722.) In Babylon, the Legislature amended the statute under which the defendants were charged during the pendency of their appeals. (Ibid.) Under the amended statute, the defendants’ activities were not proscribed. (Ibid.) Because the amendments did not include a savings clause, the court concluded that the defendants were entitled to the benefit of the amended statute, and reversed the convictions. (Id. at pp. 727-728.) Babylon is obviously distinguishable from the present case because the statutory amendment addressed in Babylon decriminalized the acts for which the defendants had been convicted, while the amendment to Penal Code section 4019 provides only that a defendant may earn additional presentence conduct credit.
Nor are we persuaded by defendant’s contention that retroactive application is necessary based on equal protection principles under the authority of In Re Kapperman (1974) 11 Cal.3d 542 (Kapperman) and People v. Sage (1980) 26 Cal.3d 498 (Sage). Kapperman is not applicable because the issue raised in that case involved actual custody credit, not conduct credit. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) These two types of credit are distinguishable because custody credit is awarded automatically on the basis of time served (Pen. Code, § 2900.5), while conduct credit must be earned by a defendant (Pen. Code, § 4019). Sage is also inapposite. In Sage, the California Supreme Court discussed a prior version of Penal Code section 4019 that allowed presentence conduct credit to misdemeanants but not to certain felons. (Sage, supra, 26 Cal.3d at p. 507.) The Sage court concluded there was no rational basis, much less a compelling state interest, for the distinction. (Id. at p. 508.) In contrast, the issue in this case concerning the current amendment to Penal Code section 4019 is temporal, rather than based on the defendant’s status as a misdemeanant or felon.
Moreover, the primary purpose of the presentence credit scheme set forth in Penal Code section 4019 is the encouragement of “ ‘ “minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed....” ’ [Citations.]” (Dieck, supra, 46 Cal.4th at p. 939.) Since a defendant who was sentenced prior to the effective date of the amendment to Penal Code section 4019 cannot be retroactively encouraged to behave well during presentence custody, there is a rational basis for the Legislature’s implicit intent that the amendment to Penal Code section 4019 apply prospectively, and prospective application furthers the primary purpose of Penal Code section 4019.
In sum, we determine that the amendment to Penal Code section 4019 operates prospectively and that defendant is not entitled to additional presentence conduct credit.
IV. DISPOSITION
The judgment is ordered modified to reflect that the sentence on count 2 for possession of cocaine base for sale (Health & Saf. Code, § 11351.5) is stayed pursuant to Penal Code section 654. As so modified, the judgment is affirmed. The abstract of judgment is ordered modified to conform to the judgment by: (1) stating that the restitution fine is $3,000 (Pen. Code, § 1202.4, subd. (b)); (2) in the section regarding enhancements charged and found to be true, deleting the references to the two enhancements under Health and Safety Code section 11370.2, subdivision (a) for count 2; (3) stating that local conduct credits were granted pursuant to Penal Code section 4019; and (4) stating that the enhancements charged and found to be true for count 1 include Health and Safety Code section 11353.6, subdivision (b) rather than “HS 11356.6(b).” The clerk of the superior court shall prepare a copy of the amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
I CONCUR: MIHARA, J.
McAdams, J., Concurring and Dissenting.
I concur in the analysis and disposition of all issues except the application of amended Penal Code section 4019.
I dissent because I agree with the reasoning of the numerous cases that have held the amendments apply retroactively, including, most recently, People v. Keating (2010) 185 Cal.App.4th 364. In my view, such a conclusion follows from California Supreme Court precedent. As the Court reiterated in People v. Nasalga (1996) 12 Cal.4th 784, “provisions of a statute that have an ameliorative effect must be given retroactive effect, even where other provisions of the same statute clearly do not have such an effect.” (Id., at p. 796, following In re Estrada (1965) 63 Cal.2d 740.) I would therefore find the amendments to Penal Code section 4019 at issue here apply retroactively.
The California Supreme Court has recently granted review in several cases involving this issue, including those which have found the statute applies retroactively (People v. Brown, S181963; People v. House, S182813; People v. Landon, S182808) and those which found it applies prospectively only. (People v. Rodriguez, S181808; People v. Hopkins, S183724.) Several more petitions for review are pending.
On the other hand, some appellate courts, including this court, have concluded that the amendment applies prospectively. (See, e.g., People v. Hopkins (2010) 184 Cal.App.4th 615 [Sixth Dist.], review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990 [Second App. Dist., Div. Four], review granted September 22, 2010, S184957; People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth App. Dist., Div. Two], review granted July 21, 2010, S184314; People v. Rodriguez (2010) 183 Cal.App.4th 1 [Fifth App. Dist.], review granted June 9, 2010, S181808.)