Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. RIF148359 Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Eric Swenson and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
After two exterior air filters were stolen off a big-rig truck, the fingerprints of defendant Brian Lafayette Lincoln were found right where the thief would have put his hands.
As a result, defendant was found guilty of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and petty theft with a prior (Pen. Code, §§ 484, 666). A one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) was found true. He was sentenced to a total of three years in prison.
Defendant contends:
1. The trial court improperly excluded evidence offered to impeach the prosecution’s fingerprint expert.
2. The prosecutor improperly commented on defendant’s failure to testify.
3. Defendant could not be convicted of both grand theft and petty theft with a prior.
4. The trial court improperly imposed a court facilities assessment retroactively.
5. The sentencing minute order and the abstract of judgment mistakenly reflect a court security fee of $30 per count, rather than the $20 per count that the trial court imposed.
6. Defendant is entitled to presentence custody credits under the current version of Penal Code section 4019, which went into effect after he was sentenced.
The People concede that defendant’s conviction of petty theft with a prior must be reversed; we agree. We also agree that the appropriate court security fee is $20 per count, not $30 per count. Otherwise, we find no error.
I
FACTUAL BACKGROUND
Russell Baker worked as a truck driver. He drove a Kenworth truck that belonged to his employer, Scott & Simmons.
On November 18, 2008, at 5:00 a.m., Baker found that the truck’s two external air filters were missing. The air filters were “big chrome thing[s] on [either] side of the truck....” They had been there when Baker had last checked the truck, in the morning of November 17. The truck had always been washed and serviced out-of-state, never in California.
The police took five sets of fingerprints from parts of the truck that a person removing the air filters would have been likely to touch. James Edmonston, an expert fingerprint examiner with the Riverside County Sheriff’s Department, testified that three of the five sets of prints were usable, and all of the usable prints matched defendant’s prints. He added that his results had been verified by Teresa Ybarra, another examiner in his office.
Two new Kenworth filters would have cost a total of $1,970. The filters were actually replaced with non-Kenworth filters, which cost a total of $1,571.29.
II
THE EXCLUSION OF EVIDENCE OFFERED TO IMPEACH THE PROSECUTION EXPERT
Defendant contends that the trial court improperly limited his cross-examination of the prosecution’s fingerprint expert.
A. Additional Factual and Procedural Background.
On cross-examination, Edmonston conceded that “misidentifications... have been made” based on fingerprints — “there have been bad I.D.s....”
This exchange followed:
“Q. (BY [DEFENSE COUNSEL]): Are you aware of Mr. Mayfield in the Madrid bombings?
“A. Yes.
“Q. In this case, to briefly summarize, Mr. Brandon Mayfield was a Muslim American, an Oregon lawyer who was identified as the participant in the Madrid bombing, based on a so-called fingerprint matched by the FBI; is that correct?
“[PROSECUTOR]: Objection. Relevance, foundation.
“THE COURT: Sustained.
“Q. (BY [DEFENSE COUNSEL]): Are you aware whether there was a misidentification in the Brandon Mayfield and Madrid bombing case by the FBI?
“[PROSECUTOR]: Objection. Relevance, foundation.
“THE COURT: Sustained.
“Q. (BY [DEFENSE COUNSEL]): Do you use the same fingerprint identification methods as the FBI?
“A. Yes.
“Q. Are you aware of whether, in the... Brandon Mayfield and Madrid bombing case, there was a misidentification?
“[PROSECUTOR]: Objection. Foundation.
“THE COURT: Yes. Sustained.
“Q. (BY [DEFENSE COUNSEL]): How are you aware of the Brandon Mayfield case?
“[PROSECUTOR]: Objection. Relevance.
“[DEFENSE COUNSEL]: I’ll lay a foundation.
“THE COURT: Sustained. You did not identify Brian Mayfield in that case, did you?
“THE WITNESS: No, I did not.”
At defense counsel’s request, the trial court then heard argument outside the presence of the jury. Defense counsel explained that the Mayfield case was an instance in which the FBI, due to “sloppy work” and a “misapplication of [the] methodology, ” had made a false identification. He added that Edmonston “uses the same method of identification as did the FBI..., and he’s aware of that study.”
The prosecutor objected that the Mayfield case was irrelevant because “[[t]here’s no way I could talk to this witness... about what went wrong, what the problems were, what kind of prints they had.”
The trial court added, “Here’s the problem. He doesn’t have any personal knowledge of that case.” “I think you can examine him about his personal experience and his personal knowledge of misidentification on his part or on the part of the agency that he works for, but anything else is not relevant. Again, sheds more heat than light.”
Defense counsel argued, “[T]his witness is testifying as an expert.... He does not have to have personal knowledge of every fact that he ever reads and learns about.” Nevertheless, the trial court sustained the objection.
B. Analysis.
“‘“An expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably... be relied upon’ for that purpose.”’ [Citations.] Although an opinion may be predicated on hearsay, the trial court has discretion to ‘exclude from the expert’s testimony “any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.”’ [Citation.] ‘“[P]rejudice may arise if, ‘“under the guise of reasons, ”’ the expert’s detailed explanation ‘“[brings] before the jury incompetent hearsay evidence.”’”’ [Citations.]” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1325.)
“A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter... upon which it is based....” (Evid. Code, § 802.) Moreover, “a witness testifying as an expert... may be fully cross-examined as to... the matter upon which his or her opinion is based and the reasons for his or her opinion.” (Evid. Code, § 721, subd. (a).) “Thus, an adverse party may bring to the attention of the jury that an expert did not know or consider information relevant to the issue on which the expert has offered an opinion. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 434.)
The scope of the cross-examination of an expert is limited only with respect to “the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication....” (Evid. Code, § 721, subd. (b).) Here, although defense counsel did refer to a “study, ” the gist of the Mayfield case was not a text or treatise; rather, it had been in newspaper reports. In any event, even assuming evidence regarding the Mayfield case was subject to the limitations of Evidence Code section 721, subdivision (b), it was admissible because, as Edmonston evidently would have conceded, it was reliable. (Evid. Code, § 721, subd. (b)(3).)
The trial court, however, had discretion to exclude the evidence under Evidence Code section 352. Although it excluded it mainly because Edmonston did not have personal knowledge of it, the trial court apparently also reasoned that, to the extent that the evidence was admissible as the basis for an expert opinion, it was unduly prejudicial; the court remarked, for example, that it “sheds more heat than light.”
This was not an abuse of discretion. Edmonston had already admitted that false positive identifications could and did occur. As the prosecutor pointed out, the evidence would have required an inquiry into whether the relevant circumstances of the Mayfield case were similar to the relevant circumstances in this case; Edmonston might or might not have been aware of those circumstances, but even if he was, this threatened to consume an undue amount of time. Finally, the fact that a single false positive identification had occurred in a single case was purely anecdotal. It was not scientific evidence as to how likely a false positive was in this or in any other particular case.
Defendant also contends that the exclusion of the evidence violated his federal constitutional rights to due process and to confrontation. He failed to raise these constitutional arguments at trial. However, “the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal. [Citations.]
“In the latter instance, of course, rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
Thus, we conclude that the trial court did not err by excluding the evidence. If only out of an excess of caution, however, we also note that the asserted error was harmless.
Even assuming the trial court erred as a matter of state law, the error does not rise to the level of a federal constitutional violation. Due process was not violated, “[b]ecause the trial court merely rejected some evidence concerning a defense; it did not preclude defendant from presenting a defense.” (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) The confrontation clause was not violated, because “defendant can[not] show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation]....” (People v. Hamilton (2009) 45 Cal.4th 863, 943.) We therefore apply the state law harmless error standard.
As we have already discussed, the additional probative value of the evidence was minimal. Edmonston had conceded that false positives did occur. Also, the fact that a false positive had occurred in the Mayfield case had a negligible tendency to prove that a false positive occurred in this case. Accordingly, it is not reasonably likely that, if the evidence had been admitted, defendant would have enjoyed a more favorable verdict.
III
GRIFFIN ERROR
Defendant contends that the prosecutor improperly commented on his failure to testify, in violation of Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106] (Griffin).
A. Additional Factual and Procedural Background.
During the prosecutor’s closing argument, there was this exchange:
“[PROSECUTOR]: “You have no explanation offered by the defense as to how these fingerprints got there.
“[DEFENSE COUNSEL]: Objection. [¶]... [¶]
“THE COURT: Overruled. Rely on your own recollection.”
Later, during her rebuttal argument, the prosecutor stated: “All I know is that the prints were on the truck. Prints that had no reason to be on the truck were there. He’s offered no explanation. [¶] This defendant has offered you no explanation as to how those prints got there, no alibi witness, no, No, he was with me that night. You didn’t hear that, did you? There’s been no evidence given to you to explain why those prints got there.”
The prosecutor also argued: “Counsel made comments that Mr. Edmonston’s report was verified and I did not bring you Teresa Ybarra. She was the verifier on that report. Do you need Teresa Ybarra?... No, you don’t.... The subpoena goes both ways. If he thought there was something wrong with that[, ] counsel[] for the defense[] could have subpoenaed Ms. Ybarra..., and he could have questioned her. Obviously, he did not think it was important, because he did not do it.”
After the jury retired to deliberate, defense counsel objected to the prosecutor’s remarks concerning Ybarra. Primarily, he argued that defendant was entitled to a judgment of acquittal because the prosecution “did not present the verification....” However, he also argued, “Based upon the same statements of counsel, ... [i]t’s prosecutorial misconduct to indicate that the defense has to call someone.” (Italics added.) The trial court overruled his objections.
B. Analysis.
Under Griffin, “[t]he Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf. [Citations.]” (People v. Taylor (2010) 48 Cal.4th 574, 632-633.)
“When the defense fails to object to asserted misconduct at trial and request that the jury be admonished, the claim ordinarily is forfeited on appeal. [Citations.]” (People v. Williams (2010) 49 Cal.4th 405, 464.) This rule applies to Griffin error. (People v. Turner (2004) 34 Cal.4th 406, 420.) Here, defense counsel failed to preserve defendant’s present contention by objecting and requesting an admonition.
The first time the prosecutor referred to defendant’s failure to explain the fingerprints, defense counsel did object; however, he did not state any particular ground for his objection. The trial court evidently understood him to be objecting that the prosecutor was misstating the evidence, as shown by its admonition to the jury, “Rely on your own recollection.” Defense counsel did not correct the trial court and did not articulate a Griffin objection.
The second time the prosecutor referred to defendant’s failure to explain the fingerprints, on rebuttal, defense counsel did not object at all. He objected only to the prosecutor’s comments regarding Ybarra. Accordingly, defendant’s present contention has been forfeited.
Separately and alternatively, the contention lacks merit. “The Fifth Amendment does not prohibit the prosecution from commenting on the state of the evidence presented at trial, or on the defense’s failure to introduce material evidence or to call witnesses other than the defendant. [Citation.]” (People v. Taylor, supra, 48 Cal.4th at p. 633.)
People v. Lancaster (2007) 41 Cal.4th 50 is directly on point. There, the prosecutor noted that the defendant’s fingerprints had been found on a bottle at the scene of the crime; he added, “‘There’s been no explanation offered as to how they possibly could have been there.’” (Id. at p. 84.) Our Supreme Court held that this did not violate Griffin: “[T]he prosecutor’s statement was a fair comment on the state of the evidence, rather than a comment on defendant’s failure to personally provide an alternative explanation. [Citations.]” (Lancaster, at p. 84.) Here, identically, the prosecutor’s comment that defendant had not offered an alternative explanation for the presence of his fingerprints was not prosecutorial misconduct in violation of Griffin.
IV
DUAL CONVICTIONS FOR BOTH GRAND THEFT AND PETTY THEFT WITH A PRIOR
Defendant contends that he could not be convicted of both grand theft (count 1) and petty theft with a prior (count 2) because the latter is a lesser included offense of the former.
The People concede that this was error. We agree. (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116; see also People v. Anderson (2009) 47 Cal.4th 92, 106-108 [a combination of a sentencing factor and a lesser offense is not the functional equivalent of a greater offense].) Accordingly, we must reverse the conviction on count 2. We must also modify the sentence, as we will discuss further in parts V and VI, post.
V
THE COURT FACILITIES ASSESSMENT
Defendant contends that the trial court improperly imposed a court facilities assessment, because the applicable statute was not enacted until after the crime.
The trial court imposed a court facilities assessment, pursuant to Government Code section 70373 (section 70373), in the amount of $60, representing $30 per count.
Section 70373 was enacted in 2008, effective on January 1, 2009. (Stats. 2008, ch. 311, § 6.5, p. 2113.) It provides, as relevant here: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense... in the amount of thirty dollars ($30) for each... felony....” (Gov. Code, § 70373, subd. (a)(1).)
Our sister courts have unanimously held that section 70373 can and does apply to crimes committed before its enactment. (People v. Knightbent (2010) 189 Cal.App.4th 1105, 1111-1112 [Third Dist.]; People v. Phillips (2010) 186 Cal.App.4th 475, 477-479 [Fifth Dist.], petn. for review filed Aug.. 9, 2010; People v. Davis (2010) 185 Cal.App.4th 998, 1000 [Second Dist., Div. Four]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1494 [Third Dist.]; People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415 [Third Dist.]; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 3-7 [Yolo App. Div.].) We see no compelling reason to reconsider these holdings.
In part IV, ante, however, we held that defendant’s conviction on count 2 must be reversed. Accordingly, the appropriate court facilities assessment is $30.
VI
THE AMOUNT OF THE COURT SECURITY FEE
Defendant contends that the sentencing minute order and the abstract of judgment mistakenly reflect a court security fee of $30 per count instead of $20 per count. This contention turns out to subsume the question of whether the statutory amendment increasing the fee from $20 to $30 — which went into effect after the jury’s verdict but before sentencing — should apply.
Penal Code section 1465.8 (section 1465.8) requires the imposition of a court security fee “on every conviction for a criminal offense....” (§ 1465.8, subd. (a)(1).) Section 1465.8 was amended, effective July 28, 2009, so as to increase the fee from $20 to $30. (§ 1465.8, subd. (a)(1), as amended by stats. 2009-2010, 4th Ex. Sess., ch. 22, § 29, p. 5346.)
The jury returned its verdict on July 14, 2009. Defendant was sentenced on September 4, 2009.
In its oral pronouncement of judgment, the trial court ordered defendant to pay a court security fee of $40, representing $20 per count. The sentencing minute order and the abstract of judgment, however, reflect a court security fee of $60, representing $30 per count.
Ordinarily, the court’s oral pronouncement of judgment is controlling over the clerk’s minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) The People contend, however, that even if the trial court did impose a fee of $20, that amount was unauthorized and must be corrected to $30. (See People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3 [“‘[A]n unauthorized sentence... is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’”].) Defendant responds that the 2009 amendment to Penal Code section 1465.8 does not apply to crimes committed before its effective date.
We need not decide this question, however, because the fee applies solely to a “conviction.” Conviction, in this context, refers to the jury’s guilty verdict, not the ensuing sentence or judgment. (People v. Davis, supra, 185 Cal.App.4th at p. 1001.) Thus, even assuming the amendment can apply to crimes committed before its effective date, it still applies only to convictions that occur on or after its effective date. (Ibid. [discussing court facilities assessment under Gov. Code, § 70373]; see also People v. Alford (2007) 42 Cal.4th 749, 754 [in enacting section 1465.8, “the Legislature intended to impose the court security fee to all convictions after its operative date, ” italics added].) Here, because the relevant “conviction” occurred before the amendment went into effect, the amendment does not apply. (Davis, at p. 1001.)
We therefore conclude that the correct fee is $20 per count. In addition, because we are reversing defendant’s conviction on count 2 (see part IV, ante), the total amount of the fee must be reduced to $20.
VII
PRESENTENCE CUSTODY CREDIT
Defendant contends that he is entitled to the enhanced presentence custody credits provided by the amended version of Penal Code section 4019 (section 4019) that went into effect after he was sentenced.
When the crime was committed, as well as when defendant was sentenced, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, added by stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, pp. 4427-4428.)
After defendant was sentenced, he moved to correct his custody credits in accordance with the amended version of section 4019. The trial court denied the motion.
Defendant did not file a notice of appeal from the order denying the motion. We believe we can reach the issue nevertheless, because defendant is essentially arguing that the sentence, although authorized when imposed, is now unauthorized. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 [“an unauthorized sentence may be corrected at any time”].)
The question of whether a defendant sentenced prior to January 25, 2010, is entitled to the benefit of the amended version of section 4019 is currently before the Supreme Court. (People v. Brown, review granted June 9, 2010, S181963.) As that court will have the last word on the subject, we discuss the issue only summarily.
Under Penal Code section 3, “‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford, supra, 42 Cal.4th at p. 753.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.
Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Penal Code section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (Pen. Code, § 2933.3, subds. (b) & (c), added by stats. 2009-2010, 3d Ex. Sess., ch. 28, § 41, p. 4422.) By necessary implication, all other enhanced credits for all other defendants are prospective only.
We recognize that, under In re Estrada (1965) 63 Cal.2d 740, “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.” (Id. at p. 748.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.)
We therefore conclude that defendant is not entitled to any additional presentence custody credits.
VIII
DISPOSITION
The conviction of petty theft with a prior (count 2) is reversed. (See part IV, ante.) The total amount of the court facilities assessment is reduced to $30. (See part V, ante.) The total amount of the court security fee is reduced to $20. (See part VI, ante.) In all other respects, the judgment as thus modified is affirmed.
We concur: McKINSTER Acting P.J.KING J.