Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF112789A Louis P. Etcheverry, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Kern County detention officers beat James Moore to death after Moore became uncooperative while being booked at the Kern County Central Receiving Facility, a county jail. Defendant Daniel Thomas Lindini was one of the officers who used force against Moore. A jury found him guilty of involuntary manslaughter and assault under color of authority. The court imposed a two-year prison term for involuntary manslaughter and stayed the sentence for the assault.
In this appeal, Lindini argues that (1) the evidence presented at trial was insufficient to support the convictions; (2) he was denied due process of law on both counts because his assaultive acts as shown at the preliminary hearing were different from the acts shown at trial; (3) the court erred when it failed to tell the jury it must unanimously agree about which of several independently sufficient acts was the basis of its verdict on assault under color of authority; and (4) he is entitled to retroactive recalculation of presentence credits for good conduct and work time based on Penal Code section 4019 as amended effective January 25, 2010. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Information
On April 28, 2006, the district attorney filed an information against Lindini and two codefendants, detention officers Ralph Contreras and Roxanne Fowler. All three defendants were charged with second degree murder (Pen. Code, § 187, subd. (a), count one) and assault under color of authority (§ 149, count two). Lindini and Contreras were tried together.
Subsequent statutory references are to the Penal Code unless noted otherwise.
Trial evidence
a. Arrest and initial processing
The evidence at trial showed that on August 15, 2005, at about 6:00 in the evening, Kern County Sheriff’s Deputy Ryan Williams arrested Moore at a house in Bakersfield on suspicion of criminally threatening a woman. Williams handcuffed Moore and drove him to the central receiving facility. Moore was 30 years old, was six feet two and a half inches tall, weighed 233 pounds, and was wearing only boxer shorts. He used profane language, refused to identify himself, and followed Williams’s orders slowly, but he did not put up any physical resistance.
At the central receiving facility, Williams removed the handcuffs and carried out several sobriety tests because he thought Moore’s behavior indicated Moore might be under the influence of drugs or alcohol. Williams also took a sample of Moore’s urine for testing. The sobriety tests had no abnormal results. While Moore was going through these procedures, Williams observed that Moore’s demeanor was rapidly cycling. He would change quickly and repeatedly from cooperative and talkative to uncooperative and rigid. Williams searched Moore, who was still dressed only in boxer shorts. When Williams was finished, he turned Moore over to a detention officer for booking, telling the officer that Moore was “918, ” meaning mentally unstable. A later test of the urine sample was negative for drugs and alcohol.
b. First episode of force: nurse’s station
It was after the booking process began that Moore had violent encounters with officers. Witnesses testified to four distinct episodes of force being applied to Moore, with Moore’s condition progressively worsening after each episode.
The first took place when Moore was sent to a nurse’s station. Williams watched as a detention officer directed Moore to sit down to wait to be examined by the nurse. Moore said no and continued to refuse as the request was repeated. Three officers were now standing near Moore and two took out their pepper spray canisters and said they would spray him if he did not sit down. Moore continued to refuse, so the officers sprayed him. Williams turned away to avoid being sprayed, and when he turned back, Moore was face down on the floor and the officers were trying to get his arms out from under his chest to handcuff him. Eventually at least six officers were on top of Moore’s body. The officers were telling Moore to stop resisting, and Moore was saying they should get off of him because he could not breathe. Moore struggled, trying to knock the officers off him and to get into a fetal position with his knees under his body. Finally the officers handcuffed Moore behind his back and placed leg shackles on his ankles. Then they removed the handcuffs and put waist chains on, which held Moore’s hands and prevented them from moving more than a few inches from his sides. Lindini was not one of the officers involved in this episode.
Sergeant Todd Dearmore was the shift supervisor on duty and was involved in this first altercation, giving directions to the officers struggling with Moore. Once Moore was restrained, Dearmore ordered him placed in A-deck, where there was a cell with padded walls. Dearmore thought this was appropriate because Moore possibly had mental health problems. Moore resisted on the way to the cell. When an inmate has been struggling with officers and has been placed in restraints, medical staff are required to check the inmate. A nurse went to Moore’s cell, where he was lying on his stomach in the restraints, and examined him for injuries. She found redness from the restraints and directed that they be loosened, but noted no significant injuries.
Detention officers Alex Morales and Zuzet Garcia were among the detention officers who struggled with Moore near the nurse’s station. In their testimony, both emphasized Moore’s great strength and the unusual difficulty the officers had in controlling him. Morales heard Moore yell “please don’t kill me, ” or something similar. At one point, while Moore was face down on the floor with his head turned to the side, Garcia had her knee on Moore’s back and was using her arm to hold Moore’s head against the floor. Garcia’s knee and shoulder were hurt during the struggle.
c. Second episode of force: dress-out area
At 7:00 p.m. a shift change took place. The new shift was supervised by Sergeant Randall Holtz and Senior Detention Deputy Jaime Tellez. Tellez testified that she went with Holtz and Lindini to remove Moore from the padded cell so he could complete the booking process. Moore was still dressed in his shorts; he was cooperative.
The officers took Moore’s leg irons off and led him to the receiving area, where he was photographed at 7:35 p.m. Tellez then returned to her office and worked there for a while until she heard a “Code Red” on her radio. A code red is called when an inmate and an officer are fighting. Tellez ran to the receiving area. There, in a hallway near the dress-out area (where inmates change into jail clothes), Tellez saw Moore struggling with officers. Six or seven officers were there, trying to gain control of Moore. Officers present included Timothy Davis, Greg Cossel, Clinton Minor, Lisa Romero, Shannon Haiungs, Holtz, Lindini, and Contreras. The officers were trying to hold Moore down and put side-bar restraints on him. Side-bar restraints are handcuffs attached to chains that go around the waist and keep the inmate’s hands at his sides. Minor testified that this struggle began after he told Moore to change into jail clothes and Moore refused. Minor, Lindini, and another officer tried to change his clothes and he resisted. Moore had no restraints on at the beginning of the struggle.
Davis testified that he saw Lindini hit Moore twice on the top of the head, at the hairline, with his fist. Davis referred to this move as a “distractionary blow” and said Lindini used a “bent wrist, his elbow never cocked back.” Haiungs testified that while Moore was on the floor, she saw Contreras “go down full weight on one knee” on Moore. Haiungs’s view was partly obstructed. She thought the knee hit somewhere on Moore’s head, neck, or upper body. She did not remember whether Moore was facing up or down at the time. Tellez saw Contreras holding Moore face down with his knee between Moore’s shoulder blades. During the struggle, Tellez heard Moore say “‘what are you doing to me, why are you doing this to me.’” Finally, Davis saw Holtz apply “a carotid hold, carotid choke hold” to Moore. An officer applying a carotid hold places his arm around a subject’s neck from behind, with the elbow in front, and squeezes until the blood supply to the brain is cut off and the subject loses consciousness. The carotid hold caused Moore to lose consciousness for 5 or 10 seconds, during which time the officers finally succeeded in putting side bars and leg irons on him. It was Lindini who applied the side bars.
After Moore was restrained, Tellez saw that blood was coming from Moore’s eye, ear, and mouth and he was missing a tooth. Cossel saw a cut or abrasion above one of Moore’s eyes. Deputy Brian Carr saw blood on Moore’s ear and observed that Moore’s eyes were swollen. Carr heard Lindini say he had knocked Moore’s tooth out. He also heard Moore tell Lindini, “you didn’t have to kick my ass like that.” Tellez later heard Lindini deny he had knocked Moore’s tooth out, saying Moore already had that injury.
A nurse was called to examine Moore. The nurse checked Moore’s vital signs, wiped his face, and said he was okay. Holtz then ordered Contreras and detention officer Larry Johnson to take Moore by car to a hospital, since a policy required this after the application of a carotid hold. A carotid hold, if not applied correctly, can cause damage that results in internal swelling leading to asphyxiation.
Davis and Cossel testified that, during this episode, Moore again exhibited great strength and was unusually difficult to control. Davis said Moore “very easily” broke free of the officers’ attempts to hold him. Cossel said Moore had “super human strength” and was the most difficult person to control he had encountered in 18 years’ experience. Cossel’s knee and elbow were injured in the struggle, and he left his employment as a detention officer as a consequence.
d. Third episode of force: at the car
The third episode began when officers started moving Moore to put him in a car for transportation to the hospital. Moore declined to walk on his own, so officers had to lift and carry him. As they passed a door, Moore grabbed the door handle. Tellez tried unsuccessfully to pry his fingers off. Finally, Moore let go, causing the officers to topple over with him. They all got up and took Moore to an elevator. While they were riding in the elevator, Tellez heard Lindini and Contreras calling Moore obscene names.
After getting out of the elevator, Moore was seated in a chair to wait while Contreras and Johnson got their guns and batons in preparation for driving Moore to the hospital. They were going to take him to Kern Medical Center. While Moore was waiting, Tellez heard him say he wanted to go to Mercy Hospital, not Kern Medical Center. Tellez told him it had to be Kern Medical Center.
When it was time to move from the chair to the parking garage, Moore, still in leg irons and side-bar restraints, and with no shirt on, again refused to walk on his own and a group of officers had to support his weight as they moved him. Carr counted 14 officers going with Moore into the garage.
When they got to the car, Moore struggled against being placed inside. He repeatedly said he did not want to go to Kern Medical Center. He used various tactics to avoid being placed in the car, including stiffening his body, lodging his feet in a wheel well, and holding on to the exterior of the car. Seven or eight officers were involved in trying to get Moore into the car.
After at least four separate attempts to get Moore into the car, Tellez heard Holtz ask Johnson or Contreras for a baton. Holtz said, “ah, fuck it, where is the baton, give me the baton, ” or something similar. Then, swinging the baton with both hands, Holtz hit Moore two to five times in the legs. Moore said, “‘Holtz, why are you doing this to me, Holtz[?] What are you doing, Holtz[?]’” Haiungs saw an officer jabbing Moore in the gut or the kidneys with a baton. Carr testified that one of the officers tripped Moore and he landed on his back with a smack on the concrete. Moore rolled onto his side and Fowler ran over and kicked Moore with her boot, twice in the center of Moore’s face and once in Moore’s upper chest. Moore curled up in a ball to protect himself. Carr saw detention officer Angel Bravo get on top of Moore and punch him two or more times in the kidneys. Deputy Sheriff Marcus Hudgins testified that he saw Contreras stand over Moore as Moore lay on the floor and strike Moore once in the face with a baton. Haiungs saw Romero briefly standing with her boot on Moore’s collarbone as Moore lay on the floor.
Haiungs testified that at one point while Moore was sitting up on the floor, not struggling or doing anything else, but still refusing to get in the car, Holtz ordered Haiungs and Lindini to pepper spray Moore. Both of them sprayed Moore’s face. Moore closed his eyes and shook his head, but did not comply. Tellez testified that it actually was later, after an ambulance had been called and the effort to get Moore into the car was over, that Haiungs pepper sprayed Moore. Moore was being cooperative at the time. Tellez did not recall Lindini pepper spraying Moore.
Carr testified that he saw Contreras standing over Moore, balancing the tip of his baton on Moore’s face. Carr glared at Contreras and Contreras walked away. Carr thought Contreras’s action had no purpose but to “be demoralizing.” At one point, to avoid the officers, Moore wriggled under the car. Carr saw Lindini pull him out by the legs.
Johnson testified that, during the beating, he heard Moore cry for help and yell that the officers were killing him. Hudgins heard Moore say, “‘Just kill me.’” Carr testified that Moore moaned “help me, help me” as he lay on the floor.
Carr believed the beating was unjustified. “If someone is handcuffed and laying on the ground in restraints, they can’t defend themself, you can’t kick them in the face, ” he testified. Hudgins testified that Moore was not a threat to the officers during the beating.
Carr described Moore’s injuries after the beating: “His eyes were swollen shut. His face was covered in blood. He’s got-he’s got blood coming out of his nose, blood on his mouth. His face actually was crushed. You took a doll and squeezed the face in, a rubber doll, his face looked like it was caved in. It was swollen. Through here was actually crushed in. It was pretty nasty.” Carr also said Moore had blood coming from his ear.
With Moore in this condition, a decision finally was made to call an ambulance. As Moore lay on the floor, the officers stood around the garage waiting for the ambulance to come. Some smoked cigarettes.
e. Fourth episode of force: on the gurney
The fourth and final episode of force being applied to Moore took place after the ambulance arrived and emergency personnel were attempting to assist him. A Bakersfield City Fire Department truck was the first to respond to the call. It arrived at 10:26 p.m. Scott Dragoun, the engineer on the truck and an emergency medical technician, testified that he found Moore on his back, dressed only in underpants, with a pair of shorts around his ankles. He was shackled in leg irons and side bars and two officers were standing on the chains. Dragoun “observed bruising, swelling, and redness basically from his head to his toes.” Moore’s face was puffy and swollen. On his torso and thighs were linear bruises consistent with baton strikes. Dragoun noticed nothing remarkable about Moore’s throat area and found no indications of any internal head injury. Moore was alert and oriented to person, place, time, and event (i.e., the reason why he was receiving first aid); and his pupils responded normally to light. His pulse, respiration, and body temperature were normal and he did not need any basic life support measures. Brian McGrath, a firefighter and also an emergency medical technician, testified that Moore was cooperative with the fire department personnel. Moore told Dragoun, “‘I’m not doing anything and these people keep attacking me.’”
Hall Ambulance arrived two or three minutes after the fire truck. Brooke Brown, an emergency medical technician, and Ryan Gobler, a paramedic, were the ambulance crew. Both testified that Moore was calm when they first arrived. Brown got the gurney from the ambulance, placed it beside Moore and lowered it. According to Dragoun, several detention officers then placed their hands on Moore to lift him onto the gurney, and Moore began to resist being moved. He raised his chest and drew his legs up toward his chest. He was still restrained with leg irons and side-bar restraints and was not punching or kicking the officers. Captain Timothy Luken of the fire department, who came in the fire truck, testified that once Moore was on the gurney, he tried to avoid being strapped to it. Brown described Moore’s behavior as “just thrashing about” and not trying to kick or hurt anyone.
A number of officers responded by giving Moore an additional beating, however. Luken testified that several officers “jumped on” Moore while he was on the gurney. Haiungs, Luken, and Brown saw Romero straddle Moore and punch him two to four times in the testicles with her fists. Brown saw a second female officer also strike Moore in the groin. Haiungs and Brown said to stop, pointing out that Moore would not stop moving while being hit in that manner. Haiungs then secured Moore to the gurney, at the suggestion of one of the firefighters, by attaching one of the restraints to the gurney with a pair of handcuffs.
Johnson saw Contreras standing at the head of the gurney. Contreras was holding Moore’s head down with one hand and punching Moore in the face with the other. Dragoun witnessed this also. In his testimony, he specified that Contreras did not merely push Moore’s head down, but struck it from 10 to 12 inches above, sometimes with his forearm and sometimes with his fist. Contreras struck Moore more than three times and made contact in several places, including the top of Moore’s head, his nose, and his neck. The strike to Moore’s nose caused the nose to bleed profusely. At one point, Dragoun saw that Contreras’s other hand was covering both Moore’s mouth and his nose for about 20 seconds.
Luken and Brown also saw Lindini applying force to Moore’s head and neck. Luken testified that Lindini used “a forearm across the side of the face, cheek, neck area.” Lindini used “his forearm as a-just like a solid force to push down against the face and neck. It forced Mr. Moore’s face to the right.” Brown testified: “I see Mr. Lindini with his left arm across James’ throat, trachea, this area. And I see his right hand on James’ cheek pushing him so he is looking over his right shoulder kind of into the gurney.” Lindini “had weight on his forearm and enough pressure on his hand to keep James from, you know, moving his head when he was moving.”
The prosecutor elicited from Brown a detailed description of the way in which Lindini was applying his arm and hand to Moore’s head and neck. We reproduce this description because, as will be seen, Lindini’s actions at this point immediately preceded Moore’s respiratory and cardiac failure and were the centerpiece of the prosecution’s case against Lindini.
“Q. Ms. Brown, can you use words to describe specifically where this forearm was placed in relation to James Moore’s head or face? And if his head or face was turned towards the right, use that side of the face that the forearm made contact with.
“A. The forearm was across the trachea and the right hand was spread and it covered his cheek and his jaw, his mandible. It was just pushed to where his face was kind of buried into the gurney a little bit, like over his shoulder.
“[The prosecutor]: Record reflect that the witness was turning her head completely over her right shoulder so it appeared her cheek was in line with her right shoulder.
“THE COURT: So reflect.
“[By the prosecutor]:
“Q. Where is the trachea, Ms. Brown?
“A. The trachea is also called the windpipe, where the Adam’s apple is, the vocal chords. It is the airway.
“Q. Is it in front of the throat or does it encompass both sides and front of the throat?
“A. It just is in the front right here.
“Q. All right. Now, regarding the jaw line and the forearm, was the forearm, in comparison to the jaw line, was it parallel to the jaw line, perpendicular?
“A. It was parallel to the jaw line.
“Q. Okay. Would this forearm have been-would it have been on the neck itself or would it have been above the jaw line, if that makes sense?
“A. I’m not quite sure what you are asking.
“Q. Well, the forearm-I just want to make sure I can see it visually where it is in relation to James Moore’s head. Was it along his neck line, clearly his neck, or was it over the jawbone?
“A. It was the neck, over the neck line.
“[The prosecutor]: The record reflect that the witness took her right hand and motioned towards the left part of her neck in an angular fashion underneath the jawbone, along the neck bone from the back to the front.
“THE COURT: So reflect
“[By the prosecutor]:
“Q. This right hand, Ms. Brown, where was his right hand specifically on Mr. Moore’s face?
“A. It was kind of across his jaw but his hand was spread so it kind of covered his face like that. But it was this hand and so it was-his arm was extended in order to turn his head into the gurney.
“Q. When you say ‘his arm was extended, ’ was his arm completely straight where his elbow was locked?
“A. Yes.
“Q. And the position of this hand over James Moore’s face, was it along the left side of-the left side of his face or upon his left cheek?
“A. Yes.
“Q. How close was it, either on top or to the side of James’ mouth and nose, was his hand, if you can even tell?
“A. I could from the angle that I was at when I came around. I know that his hand was across this way and I know that his fingers were spread and however you can wrap your fingers around. I can’t give you exact location. But they were-it would have been like this.
“[The prosecutor]: The record reflect that the witness held up her left hand with fingers spread along her left cheek and it appeared her little finger and her ring finger went across her mouth and towards her nose area.
“THE COURT: So reflect.”
Luken was later recalled and gave similar testimony:
“Q. Can you tell us, in relation to the forearm of Mr. Lindini and James Moore’s jawbone, where specifically this forearm was that you saw? Does that make sense to you?
“A. I will try to describe it the best I can.
“Q. Please.
“A. It was a fluid circumstance so it could have moved up and down. But basically the time that I saw it was underneath the jaw, between the jaw and the collar bone, as the face is pushed to the right going across this portion of the patient.
“[The prosecutor]: May the record reflect that the witness, when answering that question, lifted his left hand up to his neck where his fingers were spread apart and his palm was facing his neck. He drug the tips of his fingers along the jaw line closer to the neck area and not along the face.
“THE COURT: Record so reflect.”
While this was happening, Brown moved to the head of the gurney and saw that Moore was not breathing. Brown called Gobler over, saying Moore was not breathing. She told Lindini to let go of Moore. Lindini did not let go, and Brown asked him a second and a third time. The third time, she took hold of Lindini’s collar “to let him know that it is you I’m talking to, you need to let go of him.” Lindini finally let go.
At about this time, the officers succeeded in buckling the gurney’s straps onto Moore and then stepped back from the gurney. Brown took Moore’s pulse and found it was faint. Moore took a gasp of air-what Dragoun described as an “agonal” breath, “generally the last respirations of a patient before they die”-and then his pulse stopped. The emergency personnel performed CPR. Gobler intubated Moore so he could be attached to a respirator. Moore was then loaded into the ambulance and taken to Mercy Hospital, after Brown argued with one of the officers, who said Moore had to go to Kern Medical Center. Brown explained that when a patient is in cardiac arrest, he goes to the nearest hospital. Contreras rode to the hospital in the passenger seat of the ambulance.
During the five-minute drive to the hospital, Moore’s pulse was restored. Brown, who was driving, heard Contreras reporting on the situation to someone by cell phone as they went.
f. Hospitalization and death
At the hospital, Moore was placed in a trauma bed and hospital personnel worked on stabilizing him. Brown saw Contreras approach and take a picture of Moore with his cell phone.
Johnson followed the ambulance to the hospital and saw Moore inside. He observed that Moore’s injuries were worse than they were when Moore was first placed on the gurney. Brown also observed that, by the time Moore arrived at the hospital, his injuries were worse than when she first arrived and found Moore on the floor. His eyes were now swollen shut, his face was covered with blood and blood was coming from his nose and ears.
The following morning, Contreras sent an e-mail message to Lindini and Tellez. The subject line read “Uncoop” and the message said, “this dude got fucked up!” Attached to the message were two photographs of Moore at the hospital.
Dr. Debra Hanks, who performed the autopsy, testified about Moore’s death. According to medical records she reviewed, Moore never regained the ability to breathe without a respirator. He was removed from the respirator and died on August 21, 2005, six days after the beating at the jail, after it was determined that he was brain dead.
g. Expert medical testimony
Hanks testified that the cause of Moore’s death was “head and neck injuries due to blunt force trauma.” Her autopsy report listed these head and neck injuries (among injuries to numerous other parts of Moore’s body). The blunt force head injuries included skull fractures above the eyes, nose fractures, and blood at the base of the skull. Hanks saw the blood at the base of the skull after she removed the brain. The blood was “at the base of the brain in the region of the pons and medulla, which is considered the brain stem of the brain.” Asked to explain the significance of this, Hanks testified, “In Mr. Moore’s case, given that he had extensive-he had several areas of blunt force trauma of-evidence of blunt force trauma to the head, that would raise serious concern about damage to the mid brain, the pons and the brain stem.” There also was blood in Moore’s ear canal which was consistent with a basilar skull fracture, i.e., a fracture of the bones at the bottom of the skull. It “takes significant blunt force trauma to the head” to cause this kind of fracture.
The blunt force injuries to the neck included a fracture and a hematoma of the thyroid cartilage (a portion of the cartilage forming the larynx), a hemorrhage around the right hyoid bone, a hematoma of the left neck strap muscles, and a severe hematoma of the left side of the tongue. Hanks also described a hemorrhage within the muscles at the back of Moore’s neck. That hemorrhage could have been caused by tearing of the arteries to the upper spinal cord, which in turn could have been caused by blunt force trauma either to the neck or to the head.
A hematoma is “a local swelling or tumor filled with effused blood.” (Webster’s New World Dict. (2nd college ed. 1982) p. 652, col. 2.)
The hyoid bones support the tongue and are located at its base. (Webster’s New World Dict. (2nd college ed. 1982) p. 689, col. 2.)
When she examined Moore’s brain, Hanks found it had experienced a cutoff of blood supply and a lack of oxygen. She also found the brain was swollen. These conditions were caused by the blunt force trauma to the head and neck.
The prosecutor asked Hanks a hypothetical question based on Lindini’s actions while Moore was on the gurney in the parking garage. He described the way in which Lindini forced Moore’s head to the side and applied his forearm to Moore’s neck and asked whether this would result in “injuries consistent with the injuries you observed during the autopsy.” Hanks answered:
“[I]f there’s been force applied to the neck in that fashion, my opinion would be that you’re basically moving the head so that you’re excluding the protection of the jaw that normally protects our upper neck and our lower brain. If you are turning that, now you are exposing the base of the brain, you are exposing the spinal cord, you are exposing the mid brain, to any forces that could apply as well as the neck and the larynx. So yes, force being applied in that direction can cause those injuries.”
The prosecutor posed another hypothetical based on Contreras’s actions while Moore was on the gurney in the parking garage, i.e., holding his head to one side with one hand and punching his head and neck with the other. Hanks testified that Moore’s injuries were consistent with that type of force as well. She also testified that forcing the head to one side farther than it should go would be likely to cause neck injuries like those suffered by Moore.
Although it was clear to Hanks that the cause of Moore’s death was blunt force trauma to the head and neck, she said that cause was “multifactorial, ” and she was not able to attribute his death to any one of the traumatic injuries or assign percentages of causation to any of those injuries. She did, however, state that damage to the brain stem can cause breathing to stop, and she pointed out that Moore never regained the ability to breathe on his own.
Dr. Frank Sheridan, Chief Medical Examiner of San Bernardino County, testified as an expert for the prosecution. He had a more specific opinion about the cause of death: blunt force trauma to the brain stem. He opined that the impacts damaged the brain stem, which caused the respiration failure; this in turn contributed to the cutoff of oxygen to the brain; and these things in combination with other trauma to the brain caused Moore’s death:
“[The] mechanism of death here is basically the brain gets this impact injury to the base of the brain and the breathing simply stops. Person stops breathing. And then, even though he was resuscitated, he can’t breathe any more. And from the initial resuscitation from the initial event, his brain is now suffering from hypoxia [i.e., lack of oxygen] plus the trauma and it swells.”
Sheridan could not say which particular applications of force caused the brain stem injury. This injury could have been the cumulative effect of a number of blows or there could have been one that was more responsible than the others. He did, however, state that the major injuries were caused by events that happened after the fire and ambulance crews arrived. This opinion was based on the paramedics’ finding that when they arrived, Moore’s score on the Glasgow scale was 15, a normal score. The Glasgow scale is used to assess the level of brain function or consciousness of trauma patients. Sheridan conceded that the presence of blood in the ear canal before that time could possibly undermine his opinion, since blood in that place would be an expected consequence of injury in the area of the brain stem. An earlier blow that did not cause the brain stem injury, however, could also explain the blood in the ear. If the blow that caused the bleeding in the ear happened more than a few seconds before the Glasgow score was determined, then that blow would not be the one that injured the brain stem, since the brain stem injury would quickly cause unconsciousness.
Sheridan testified about a pathology report containing one conclusion with which he disagreed. The report concluded that the hemorrhage at the base of the brain likely was a result of the swelling of the brain, not a direct result of head or neck trauma. Sheridan believed the hemorrhage was a direct result of trauma and was not secondary to the swelling.
The prosecutor posed a hypothetical for Sheridan based on Contreras’s actions while Moore was on the gurney in the parking garage: holding Moore’s head to one side with one hand and punching his head with the other. Sheridan did not think this by itself would cause Moore’s brain stem injury, but it could contribute to the cause of death. The prosecutor did not pose a similar hypothetical based on Lindini’s actions while Moore was on the gurney.
h. Expert testimony on reasonable use of force
Lieutenant Steven Hansen of the Kern County Sheriff’s Department, an instructor for the department in the use of defensive and control techniques, testified for the prosecution as an expert on the use of force by officers. He stated that it is unreasonable to use force intentionally to injure or punish a person. Officers should de-escalate the level of force when in a conflict, meaning that, as the subject becomes less of a threat, the use of force should diminish. For instance, if a person tries to punch an officer and the officer knocks the person down with his baton, the threat of a punch has been removed and the officer should not hit the person again with the baton. Officers should maintain a calm demeanor to help keep the situation from getting out of control and should avoid arguing, since arguing tends to raise the emotional pitch of a confrontation.
The prosecutor posed three hypotheticals for Hansen based on Lindini’s actions. First, he told Hansen to assume that a detention officer punched an inmate multiple times in the head around the hairline while two other officers were holding the inmate by the arms and struggling with him to put restraints on his wrists. This hypothetical was based on Lindini’s behavior in the dress-out area when Moore was resisting the order to change into jail clothes. Hansen said this would be unreasonable because punching the person would not help the officers do what they were trying to do. Second, the prosecutor told Hansen to assume that an inmate is sitting motionless on the floor in shackles and a detention officer sprays pepper spray in his face. This hypothetical was based on the actions of Lindini and Haiungs after the struggle at the car, when Moore and the officers were no longer physically fighting but Moore was still refusing to get in the car. Hansen said the use of pepper spray under these circumstances would be unreasonable because, again, it would not be likely to gain any objective for the officers and would mainly be a punishment.
Third, the prosecutor posed a hypothetical based on Lindini’s actions when Moore was on the gurney. He described the application of a forearm to the neck of a shackled, struggling inmate lying on a gurney, pressing down on the neck and forcing the head to the side. When asked whether this would be reasonable, Hansen replied:
“That’s hard to state. I would have to go back to the mind-set of the individual. Was he trying to get it along the jaw line or along the upper jaw and just misplaced his arm. You would have to be careful with that because, again, you are applying pressure to the arteries, maybe even applying some pressure to portions of the throat. So you would have to be careful of that. Without knowing the mind-set of the individual here, it would be hard for me to say that it was reasonable or unreasonable. I would-I would think that if I was doing that, and I realized that I had misplaced my arm, I would reposition my arm so that it was not there, that it was up along the jaw line.”
Closing argument
In his closing argument, the prosecutor stressed Lindini’s conduct at the head of the gurney and argued that it was a cause of Moore’s death: “And as [Brown] looked closer, Lindini had his forearm over James’ neck. This conduct, ladies and gentlemen, leads to brain stem damage, unconsciousness, death.” The prosecutor highlighted Lindini’s behavior at the gurney again later:
“Let’s look in greater detail at what Lindini did at the gurney. Captain Tim Luken observed the following, Lindini’s elbow was pointing down towards James’ chest. He does the demonstration for us. Then he is called back to further explain what he observed. He observed a forearm on James’ neck underneath the jawbone or underneath the jaw line. This forearm was pushing James’ head into the gurney in an upward motion and James couldn’t move his head when the forearm was applied.
“Now imagine that the gurney is here, as it was for Captain Luken. We all know that the gurney’s height was about here, for instance. He described leaning over, as did many of these witnesses. The force behind that forearm made it such that James could not move his head. Now we have heard James was incredibly strong. I believe one witness said that he raised his left arm and lifted the person completely off the ground, yet that forearm is placed on his neck line and he couldn’t move his head. Strong guy like that. Imagine the force behind that forearm.
“Brooke Brown said that there was a forearm across his neck. She said that it could have obstructed his airway, it could have prevented James from breathing. She saw a blow to the face first. Now, remember Brooke is at the base or the foot end of this gurney and she sees a blow come into her peripheral vision which causes her to look up to the head of the gurney. Somebody punched James in the face at the head of the gurney. And as she looks, she sees Lindini putting his forearm [on] the neck. This is the extent to which Lindini put his forearm, not only with Luken in that James couldn’t move his head, so imagine the force behind Lindini’s forearm. But the time that goes by as expressed by Brooke Brown, she is at the foot of the gurney, she sees Lindini with his forearm across the neck. She moves her position and starts walking around the gurney, the perimeter. She gets to Lindini, who is right next to Contreras, by the way, and she says, let go of him, he’s not breathing. Lindini won’t let go. He is frustrated. He is angry. She says, let go of him, he’s not breathing. Doesn’t even hear her, doesn’t do anything. Brooke Brown looks around for her partner, Gobler, makes eye contact with him, and sees a look of dismay on his face. She yells for him to come help, he’s not breathing. She turns, tells Lindini to let go, he’s not breathing. And grabs his collar to pull back. All that time that just went by before Brooke Brown finally gets Lindini to let go.
“We all know what happens. James Moore is not moving, he is limp, checked for a pulse, they start medical aid. That’s Lindini at the gurney for beating No. 3.”
In discussing causation during his closing argument, the prosecutor stressed the evidence that, just before Moore was placed on the gurney, he was responsive, he communicated with the medical personnel, and his Glasgow scale score was normal; while after Lindini’s and Contreras’s behavior a short time later, his brain had been rendered permanently unable to tell his body to breathe.
Verdict and sentence
The jury found Lindini not guilty of second degree murder and guilty of involuntary manslaughter (§ 192, subd. (b)), a lesser offense included in murder. It also found him guilty of assault under color of authority. Contreras was found guilty as charged.
The court sentenced Lindini to the lower term of two years for involuntary manslaughter. Pursuant to section 654, it imposed and stayed a sentence of 16 months for assault under color of authority. Contreras was sentenced to 15 years to life for second degree murder. His sentence for assault under color of authority was stayed pursuant to section 654.
DISCUSSION
I. Sufficient evidence
Lindini argues that the evidence presented at trial was insufficient to support the verdicts. When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d. 557, 578.)
A. Involuntary manslaughter
The court instructed the jury on the elements of involuntary manslaughter in accordance with CALCRIM No. 580. The instructions stated, among other things, that a person commits involuntary manslaughter if he (1) either (a) committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed or (b) committed a lawful act with criminal negligence; and (2) his act unlawfully caused a person’s death. Criminal negligence was defined as acting in a reckless way that creates a high risk of death or great bodily injury where a reasonable person would have known that acting in that way would have created that risk. The instructions also stated that “[a]n act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act.” Further, “[t]here may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.” Lindini does not challenge the correctness of these instructions.
Lindini first argues that the element of criminal negligence was not shown by substantial evidence because the application of his arm to Moore’s neck when Moore was on the gurney was not shown to be unreasonable. He claims that Hansen’s testimony supported the reasonableness of his action. He also says this application of force was reasonable in light of Moore’s resistance, because the control of Moore’s head would control the rest of his thrashing body and prevent him from biting and spitting at the officers. Lindini claims that the “only reasonable conclusion” is that he “was doing exactly what he was supposed to do.”
We do not agree. Hansen did not testify that applying a forearm to the neck of a person in Moore’s situation was reasonable. He testified that its reasonableness would depend on the “mind-set” of the officer, and that in any event the arm should have been moved off the throat and onto the jaw. The uncontradicted evidence established that, although Moore had been thrashing before he was rendered unconscious, his arms and legs were shackled and he was lying on his back on the gurney. According to Brown, Moore stopped breathing while Lindini’s arm was across his neck. Brown testified that she exclaimed that Moore was not breathing and told Lindini to let go. Lindini did not lift his arm off Moore’s neck until Brown had said this three times and had taken Lindini by the collar. Even if Moore had not lost consciousness and stopped breathing, and even if Lindini had not needed to be told three times after this to release the pressure from Moore’s neck, the jury properly could have found that a forearm across the neck was not a reasonable way to stop a shackled, supine inmate from thrashing or to avoid being spat on or bitten. Brown’s testimony that Lindini refused to let go even after being informed that Moore was not breathing makes it even clearer that the jury could properly infer that Lindini’s “mind-set” made his action unreasonable. Taking all this evidence together, the jury could rationally find, beyond a reasonable doubt, that Lindini’s action was not just unnecessary and not just unreasonable, but criminally negligent.
Lindini next argues that the evidence was insufficient to establish that his actions at the gurney satisfied the causation element of involuntary manslaughter. He points out that the evidence showed many blows to Moore’s head and neck by other officers, including those delivered by Contreras close to the time when he, Lindini, applied his arm to Moore’s neck. In light of this, he says, “it cannot be established with any degree of certainty” that his actions contributed to the injury to Moore’s brain stem.
Lindini is mistaken. One medical expert testified that Moore died of blunt force trauma to the head and neck and the other testified, more specifically, that Moore died of traumatic injury to his brain stem. One of the medical experts testified that an application of a forearm, pushing the head to the side and applying pressure to the neck, could injure the brain stem. Brown testified that Lindini was applying his arm in this way when Moore was found not to be breathing and continued applying it after being told to stop because Moore could not breathe. One of the experts explained that brain stem injury was what caused Moore to lose the ability to breathe. Moore never regained the ability to breathe after Lindini removed his arm. From this evidence taken together, the jury could rationally find, beyond a reasonable doubt, that Lindini’s action was a contributing cause of death.
Lindini contends that, because Contreras also applied his arm to Moore and struck him on the head and neck while he lay on the gurney, it is impossible to determine which of the two caused Moore’s death. Referring to the application of the forearm as an “arm bar, ” Lindini argues: “If one of the arm bars caused the damage to Moore’s brain stem … the other arm bar did not cause the damage, and was therefore a reasonable use of force.”
Lindini is again mistaken. There is no reason to assume that if Contreras caused damage to Moore’s brain stem then Lindini caused no damage to it or vice versa. The Supreme Court has held:
“‘“There may be more than one proximate cause of the death. When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if the conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.”’” (People v. Sanchez (2001) 26 Cal.4th 834, 847 (Sanchez).)
The jury could reasonably find that the pressure Lindini applied to Moore’s neck (a) was operative at the time of Moore’s death, and (b) was a substantial factor contributing to the fatal brain stem injury, even if (c) it acted with another cause, such as Contreras’s actions, to produce that injury.
Lindini attempts to distinguish Sanchez, supra, 26 Cal.4th 834, but in reality that case strongly supports the jury’s verdict. Rival gang members engaged in a shootout and one bullet-the evidence could not show whose-struck and killed a bystander. Both shooters were convicted of first degree murder upon theories of transferred intent. (Id. at pp. 838-839.) The Supreme Court concluded that Sanchez could be guilty of first degree murder, either through premeditation or through firing from a car with intent to inflict death, because the act of engaging in a gun battle was a substantial concurrent cause of the victim’s death even if the bullet that killed the victim was not fired by Sanchez. (Id. at p. 839.) If two gunfighters’ acts in carrying on a gunfight can both be concurrent causes of the death of a victim shot by only one of them, then certainly the acts of two assailants impacting a victim’s head and neck can both be concurrent causes of the victim’s death from a brain injury.
B. Assault under color of authority
The court instructed the jury that the elements of assault under color of authority are as follows:
“1. The defendant assaulted or beat another person;
“2. The defendant was a public officer;
“3. At the time of the assault or beating the defendant was engaged in the performance of his duties as a public officer; and
“4. The assault or beating was without lawful necessity.”
Lindini argues that there was insufficient evidence to establish that his actions against Moore were without lawful necessity. We disagree. As we have said, there was expert testimony that an arm across the neck under the circumstances that existed when Moore was on the gurney could be unreasonable, depending on the officer’s mental state. The evidence established that Moore was lying on a gurney in shackles at the time. Brown testified that Lindini refused to let go even after Moore stopped breathing until she had told him to let go three times and had taken hold of his collar. The jury could reasonably find that Lindini’s action did not serve a legitimate purpose of controlling Moore but instead served only to injure or punish him.
Lindini argues that the evidence also failed to show that several of his earlier actions were without legal necessity. We need not discuss these, since only one action was necessary to support the verdict.
II. Discrepancy between the culpable acts shown at the preliminary hearing and those shown at trial
Due process principles require that a defendant have adequate notice of the charges against him before he can be tried. When a prosecution is brought by information instead of by grand jury indictment, “notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination.…” (People v. Jennings (1991) 53 Cal.3d 334, 358.) A defendant’s due process rights can be violated if the preliminary hearing transcript does not give him sufficient notice of the circumstances of the the charged offenses. (People v. Jones (1990) 51 Cal.3d 294, 312, 317.) Lindini argues that his due process rights were violated because the evidence presented at his preliminary hearing did not include the primary evidence on the basis of which he was found guilty at trial, namely, the evidence that he was pressing his forearm against Moore’s neck when Moore stopped breathing on the gurney. He claims the evidence presented at the preliminary hearing was that he punched Moore in the face when Moore was on the gurney, a fact the prosecution did not attempt to establish at trial.
The record of the preliminary hearing does not bear out Lindini’s contention. Kern County Sheriff’s Department Sergeant Martin Downs, a detective, testified at the preliminary hearing. He interviewed Brooke Brown (then known as Brooke Strack). Brown recalled meeting a tall, bald officer with his uniform shirt unbuttoned and his undershirt showing. She identified a photograph of Lindini as “probably” being that officer. Brown told Downs she saw the same officer punch Moore in the face with his hand when Moore was on the gurney. She also described an officer pushing Moore’s head down on the gurney with one hand while pressing on his neck with the other forearm. She told him to let go when she saw that Moore was not breathing. Brown thought this was also the officer with the unbuttoned shirt, but she was not certain. A defense attorney asked Downs:
Hearsay testimony by a police officer is admissible at a preliminary hearing. (§ 872, subd. (b); Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070.)
“Okay, and then later on when you’re talking about the forearm and the officer obstructing the airway, you’re asking her about the identity, she says, ‘okay, I want to say it’s the same officer with the shirt but I honestly cannot say that, I don’t know if it is just because that officer stands out in my head, ’ correct?”
Downs replied, “I believe so, correct.”
This record was sufficient for purposes of providing Lindini with notice of the charges against him. Brown’s statements identified Lindini as one of the officers who assaulted Moore immediately before Moore stopped breathing and as possibly being the officer who was applying his forearm to Moore’s neck when Brown announced that Moore had stopped breathing. Additional exactness and certainty were not required. Lindini’s argument is, in effect, that it is not enough, at the preliminary hearing in a homicide case involving multiple defendants and multiple assaultive acts, to describe assaultive acts that caused the victim’s death and identify a defendant as a participant in some of those acts. It is not even enough to connect the defendant tentatively with the specific assaultive act that will be attributed to him at trial. It is also necessary, according to Lindini’s argument, to connect the defendant definitively with that specific act. There is no authority for this view.
To the contrary, the case law supports the view that a high degree of specificity in the preliminary hearing evidence is not required. In People v. Jones, supra, 51 Cal.3d 294, the Supreme Court upheld convictions of child molestation. The defendant’s primary argument was that the evidence was insufficient to support the convictions because the victim’s testimony was generic, i.e., did not include “many specific details, dates or distinguishing characteristics as to individual acts or assaults.” (Id. at p. 299.) The defendant also claimed that the generic nature of the testimony implicated his due process right to a preliminary hearing transcript furnishing the details of the charged offenses. Rejecting this contention, the Supreme Court cited and quoted with approval a concurring opinion in a Court of Appeal case: “[T]he defendant has no right to notice of the specific time or place of an offense, so long as it occurred within the applicable limitation period. ‘Beyond that, … the prosecution clearly has no duty to provide more explicit notice than human nature and science permit.’ [Citation.]” (Id. at p. 317.) We reasoned similarly in People v. Luna (1988) 204 Cal.App.3d 726, 748 (“So long as the evidence presented at the preliminary hearing supports the number of offenses charged against a defendant and covers the time frame or time frames charged in the information, a defendant has all the notice the Constitution requires. Should a defendant in such circumstances feel the lack of greater specificity hampers his ability to prepare a defense, he may demur”), overruled on other grounds by People v. Jones, supra, 51 Cal.3d at page 322.
In this case, the court and parties were not confronted with a child witness unable to recall the details of a large number of similar criminal acts taking place over a long period. A comparable difficulty, however, existed: Witnesses saw many officers attacking Moore during a short, frenzied period. Under these circumstances, we cannot say Lindini lacked fair notice of the charges because the preliminary hearing evidence did not definitively identify him as the officer who was pressing on Moore’s neck with his forearm when Moore stopped breathing.
The manner in which Lindini’s counsel cross-examined Brown at trial provides additional support for our conclusion that Lindini did not lack adequate notice of the charges. The trial transcript reveals that Lindini’s counsel was well aware of the possibility that the prosecution might rely on Brown to show that Lindini was the officer with his arm on Moore’s neck when Moore stopped breathing. Apparently intending to discredit Brown’s identification of Lindini, counsel read from the transcript of Brown’s deposition, in which Brown stated that at first she was unsure whether that officer was the one with his shirt open, but later became sure that it was Lindini when she was shown a photographic lineup. Pretrial discovery in the form of Brown’s deposition therefore must have alerted the defense to a likelihood that Lindini would be identified at trial as the officer whose arm was across Moore’s neck on the gurney when he stopped breathing. This helps to show that there was no due process violation. (People v. Jones, supra, 51 Cal.3d at pp. 317-318 [“In addition to the advance notice provided by the information and preliminary examination, the cases observe that defendant may learn further critical details of the People’s case through … pretrial discovery procedures”].)
Lindini cites People v. Pitts (1990) 223 Cal.App.3d 606, in which we reversed child molestation convictions because the evidence at the preliminary hearing did not give the defendants sufficient notice of the particulars of the offenses proved at trial. (Id. at p. 908.) The argument we rejected in that case was “essentially [that] defendants were on notice to defend against any and all lewd acts involving any child shown by preliminary hearing evidence to have been present during the molestations.” (Id. at p. 907.) Our holding does not imply anything similar to this rejected argument. We do not hold that Lindini was on notice to defend against any claims based on all the assaultive acts by any of the officers present. He was, however, on notice to defend against the charge that he contributed to Moore’s death by pressing his arm against Moore’s neck while Moore was on the gurney, since (1) Downs said at the preliminary hearing that Brown told him she might have seen Lindini doing this; and (2) Brown testified in her deposition that she was sure it was Lindini who did it.
In his reply brief, Lindini argues that it does not matter that he had notice of the evidence that he was the one applying his arm to Moore’s neck when Moore stopped breathing because, “up until the time of trial the position of the prosecution was that Contreras was the officer that applied the arm bar and that [Lindini] had merely thrown a punch at Moore while he was lying on the gurney.…” He cites no authority, however, for the view that the prosecution’s position is all a defendant has notice of. The case law shows that a defendant has notice of offenses shown by the evidence in the preliminary hearing transcript and additional evidence obtained through pretrial discovery.
Separately attacking his conviction of assault under color of authority, Lindini argues that evidence of several nonlethal actions he took against Moore was presented at trial but not at the preliminary hearing. These were the blows to Moore’s head at the hairline, the blow by which he knocked out Moore’s tooth, and the use of pepper spray, all of which took place before the fire and ambulance personnel arrived. If it was error to allow the jury to consider these acts when deliberating on the charge of assault under color of authority, the error was harmless under any standard.
It is clear from the conviction of involuntary manslaughter that the jury found (1) that Lindini contributed to Moore’s death by pressing his forearm against Moore’s neck, and (2) that action was criminally negligent. Since we have already said there was sufficient evidence to support these findings, and it is not disputed that Lindini was a public officer performing his duty at the time, it follows that the jury unanimously found that the application of the arm to Moore’s neck satisfied the elements of an assault under color of authority. The criminal-negligence finding for involuntary manslaughter implies the lack-of-lawful-necessity element of assault under color of authority, since it is not logically possible for an action that is criminally negligent to be done with lawful necessity. The question of whether they also found the offense based on the other assaults is therefore of no consequence.
Due to these conclusions, we need not discuss the People’s contention that Lindini forfeited the issue by failing to raise it in the trial court, or Lindini’s contention that the failure to raise it was ineffective assistance of counsel.
III. Unanimity instruction for assault under color of authority
As we have just said, there were several acts on the basis of which the jury could have found Lindini guilty of assault under color of authority. Lindini argues that the court, sua sponte, should have instructed the jury that it must decide unanimously which act, if any, constituted the offense. The People concede that the court erred by not giving that instruction sua sponte. They argue, however, that the error was harmless under any standard.
We agree with the People. As we have explained, when the jury found involuntary manslaughter based on Lindini’s application of his arm to Moore’s neck on the gurney, it necessarily also found an assault without legal necessity. Lindini was undisputedly a public officer performing his duty at the time. This means the jurors unanimously found all the elements of assault under color of authority. It could not be prejudicial error, therefore, that they were not told they must unanimously agree.
IV. Section 4019
Lindini was sentenced on January 19, 2010. He received seven days’ credit for time served plus two days’ credit for good conduct and work time. He raises two issues in connection with this credit, the same two issues we deemed raised in our standing order filed February 11, 2010: (1) whether under section 4019, as amended January 25, 2010, he is entitled to retroactive recalculation of presentence credits for good conduct and work time, and (2) whether applying the amendment to section 4019 prospectively only violates equal-protection principles. We conclude that Lindini is not entitled to additional credit under the amendment to section 4019 and that this result does not violate equal-protection principles.
All further references to “the amendment to section 4019” refer to the version that went into effect January 25, 2010.
Our Supreme Court has granted review on the question whether the amendment operates retroactively in People v. Brown, review granted June 9, 2010, S181963.
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional “conduct credit” for willingness to work and good behavior. (§ 4019, subds. (b) & (c); see People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender, is not being committed to prison for a serious felony, and has not suffered a prior conviction of a serious or violent felony, may accrue in-custody credit of four days for every two days spent in actual custody.
This amendment grants presentence credit more generously than it had been granted previously. The Legislature has since amended section 4019 again, effective September 28, 2010, expressly designating the amendment prospective only. (Stats. 2010, ch. 426, § 2.) This latest amendment restores the credit scheme that existed prior to the amendment of January 25, 2010.
Under section 3, it is presumed that a statute operates prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by clear and compelling implication from any other factors, that it intended the amendment to operate retroactively. Further, the rule in In re Estrada (1965) 63 Cal.2d 740 does not apply here for the reasons stated at greater length in our opinion in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808. The Estrada court held that a statute intended by the Legislature to mitigate punishment applies retroactively. The amendment to section 4019, however, was not intended to mitigate punishment. Instead, its purpose was to reduce incarceration costs by providing criminal defendants an opportunity to increase the rate at which they accrue conduct credit. Therefore, the amendment to section 4019 applies prospectively only.
Lindini argues that a provision of Senate Bill No. 18 (2009-2010 3d Ex. Sess.), the bill that amended section 4019, implies an intent on the Legislature’s part that the amendment be applied retroactively. This is section 59 of the bill, which provides that the Department of Corrections and Rehabilitation must implement the new law within a reasonable time, and specifies steps to be taken if there are “delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act.” (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.) Lindini contends that there would be no “additional” time credits for the Department of Corrections and Rehabilitation to grant if the amendment were applied prospectively only. The new law would simply be implemented by trial courts going forward, and inmates would arrive at state prisons with their credits already calculated under the new formula by the court. Therefore, he says, the Legislature must have meant the amendments to apply retroactively.
Section 59 of Senate Bill No. 18, however, need not be interpreted as applying to the amendments to section 4019 at all. Other sections of Senate Bill No. 18 deal with postsentence credits earned by inmates while in the custody of the Department of Corrections and Rehabilitation. For instance, section 41 of the bill amended section 2933.3 to increase credits for inmates assigned to conservation camps and inmates serving as inmate firefighters. (Stats. 2009, 3d Ex. Sess., ch. 28, § 41.) It is these provisions that require implementation by the Department of Corrections and Rehabilitation. Therefore, it is most reasonable to view section 59 of the bill as referring to these provisions, not to the amendments to section 4019.
We also conclude that prospective-only application of the amendment to section 4019 does not violate Lindini’s equal-protection rights. Prospective-only application of the amendment results in defendants sentenced prior to the effective date of the amendment being treated differently from defendants sentenced after the effective date. To withstand an equal-protection challenge, this distinction need only bear “a rational relationship to a legitimate state purpose.” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.) We conclude prospective-only application passes this rational-basis test. A principal purpose of section 4019 is to encourage good conduct. (People v. Brown (2004) 33 Cal.4th 382, 405 [“‘The presentence credit scheme, 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 on felony charges’”].) Defendants who were sentenced prior to the effective date of the amendment cannot be further motivated to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively provides a rational basis for applying the amendment prospectively only.
For these reasons, we conclude the amendment to section 4019 applies prospectively only, and Lindini is not entitled to receive additional credits.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, J., Cornell, J.