Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F03400
ROBIE, J.
A jury found defendant Ralph Lujan, Jr., guilty of unlawful taking or driving of a vehicle and sustained four strike allegations. The trial court sentenced defendant to 25 years to life.
On appeal, defendant contends: (1) the trial court abused its discretion in denying his severance motion; (2) the unlawful taking or driving of a vehicle count should be reduced to a misdemeanor; (3) his sentence constitutes cruel and unusual punishment; and (4) the court miscalculated his prejudgment custody credits. We award an additional 193 days of credit and otherwise affirm the judgment.
BACKGROUND
On March 14, 2005, Neeraj Chandra drove up to his South Sacramento house and found a white Volvo parked in his driveway. Chandra was remodeling his home and did not live there at the time. The side gate leading to the backyard was open and some of the boards had been broken. Chandra entered through the locked front door, searched the house, and found that a door leading to the backyard had been kicked open.
Chandra looked in the backyard and saw defendant by a storage shed in the right rear corner of the yard. He asked defendant what he was doing there. The two talked for about 30 minutes, first by the shed, then by the house, and concluding next to the Volvo. Before defendant drove off, Chandra recorded the VIN of the Volvo and asked for and received identification from defendant. After defendant left, Chandra noticed clothes and tools he stored in the garage had been removed and placed in a garbage bag inside the house.
On March 29, 2005, Jose Venegas left his green Plymouth Voyager in the parking lot of his apartment complex to go back in his apartment. Venegas left the keys in his van, and was gone for two to three minutes. When Venegas returned, the Voyager was gone.
Venegas did not know defendant and never gave him permission to use his van. When the van was found on April 16, tools Venegas had carried in the van were missing, the rear seats were gone, the ignition was “punched,” and the steering column had been stripped. The alterations to the ignition and steering wheel made it possible to drive the van without a key.
“Punched” refers to removing the place on the ignition where the key is inserted.
In April 2005, defendant was living in a house next door to Tashawn Coleman. Coleman saw defendant drive two different vans, one “grayish” and the other green. Coleman identified the green van as the one stolen from Venegas. She saw defendant drive the green van up to his residence and park it on the street on April 15, 2005.
Sacramento police officers patrolling Coleman’s neighborhood determined that a green van parked next door to her house had been reported as stolen. The officers looked inside the van before going to Coleman’s backyard, where they interviewed her. After the interview, the officers looked into the yard next door and found defendant hiding under a boat. They then hopped the fence and arrested defendant. The van was the one stolen from Venegas and latent fingerprints from defendant were taken from the van.
Defendant, his brother Ronald Montez, half-brother Jose Vasquez, stepfather Ray Montez, and his former housemate Brian Goss testified for the defense. Defendant’s story, supported by the other defense witnesses on various points was as follows: Defendant had been living with Vasquez in Goss’s garage but had to move out by April 14 or 15 due to Goss being evicted. He owned a gray van, but it was inoperable at the time of the move. Lacking a means to remove his property from his former residence, defendant rented a van from Reyno Barraza, an acquaintance of Vasquez.
After borrowing $100 from his stepfather, defendant went to a gas station and met with Barraza. Barraza then followed defendant and Vasquez to Goss’s house, where defendant rented the van for $50 and a saw. Barraza told defendant he had lost the keys, so the van was started with a pronged device in the ignition.
Barraza did not ask defendant for identification or proof of insurance but the two exchanged phone numbers so Barraza could call to get his van back. When cross-examined, defendant admitted he had not contacted Barraza. According to defendant, this type of arrangement, called a “G-ride” in some neighborhoods, was done “all the time” in this area. Defendant did not know the van was stolen and did not check the registration, believing Barraza owned it.
Defendant unsuccessfully tried to jump the fence when the police showed up, and after that failed, tried to hide under a boat. Defendant hid from the officers because of outstanding traffic warrants.
Defendant’s testimony regarding the burglary charge was not supported by the other defense witnesses. He went to Chandra’s house looking for work. Defendant showed his identification to Chandra to demonstrate he had not done anything to the house.
Defendant was charged with two counts of burglary based on the incident at Chandra’s house, and one count of unlawful taking or driving of a vehicle based on the theft of Venegas’s van. The trial court denied defendant’s motion to sever the burglary counts from the unlawful taking or driving of a vehicle count. One of the burglary counts, alleging burglary of Chandra’s shed, was subsequently dismissed on the People’s motion at the close of evidence. The jury found defendant guilty of the unlawful taking or driving of a vehicle count, but could not reach a verdict on the remaining burglary count, and the court declared a mistrial on that count.
DISCUSSION
I
The Severance Motion
Defendant contends the trial court erred in denying his severance motion. He argues the trial court’s action prejudiced him by allowing the prosecution to join two weak cases together, thus allowing the jury to convict defendant through a spillover effect rather than the strength of the prosecution’s case.
Penal Code section 954 provides, in part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” “Because consolidation ordinarily promotes efficiency, the law prefers it.” (People v. Ochoa (1998) 19 Cal.4th 353, 409.)
Denial of a severance motion is reviewed for abuse of discretion. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) “When . . . the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant’s severance motion. [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.)
Denial of a severance motion may be an abuse of discretion if “‘a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges.’” (People v. Bradford, supra, 15 Cal.4th at p. 1315.) Cross-admissibility is not required to jointly try offenses of the same class of crimes. (Pen. Code, § 954.1.) Defendant contends the unlawful taking or driving of a vehicle case against him was weak because his story that he had rented the van from Barraza was “a completely plausible explanation that was consistent with the circumstantial evidence, was supported by the testimony of the other witnesses, and was not contradicted in any way.” We reject defendant’s characterization of the strength of the case against him.
The defense at trial, that defendant innocently rented the van, is contradicted by his attempts to flee or hide from the police when they were looking for him. The very informal nature of the alleged rental agreement, where defendant, who was almost a total stranger to Barraza, did not provide him with any information other than a phone number, stretches the bounds of credulity. Defendant’s story is further weakened by his inability to provide any contact information for Barraza, even though he claimed to have been given Barraza’s phone number as the sole means of arranging a return of the van.
Defendant was seen driving the stolen van to his residence the day before his arrest. Certain characteristics of the van indicated that it had been stolen. The van was started with a pronged device rather than a key, and the steering column had been stripped and the back seats removed. Taken together, the alterations to the van, defendant’s flight from police, and the many inconsistencies in his story provide a strong case for defendant’s guilt.
We also find the prosecution’s case on the burglary charges to be strong. Defendant was found in Chandra’s backyard, and there was strong evidence of someone breaking into Chandra’s house and backyard. Defendant’s intent to steal can be inferred from the items removed from Chandra’s garage to the house. Although the jury could not reach a verdict on the burglary charge, it is still inaccurate to characterize the prosecution’s case as weak.
The trial court allowed the joinder of two strong cases involving the same class of crimes. It was well within the trial court’s discretion to deny defendant’s motion to sever.
II
Reduction Of The Vehicle Conviction To A Misdemeanor
Defendant next contends the trial court abused its discretion in refusing to reduce the offense to a misdemeanor pursuant to Penal Code section 17, subdivision (b) (§ 17(b)). We again disagree.
Section 17(b) allows a trial court to choose between alternative felony or misdemeanor punishment based on the language of the charging statute. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) Vehicle Code section 10851, subdivision (a), provides that a person convicted of unlawful taking or driving of a vehicle “shall be punished by imprisonment in county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.”
In determining whether to exercise section 17(b) discretion, the trial court should consider the nature of the offense, defendant’s appreciation of and attitude toward the offense, his or her behavior at trial, and the general objectives of sentencing. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.)
Defendant requested reduction of his offense to a misdemeanor, arguing this was warranted due to the nature of the crime and his personal circumstances. The defense also presented statements regarding his good character and efforts to help others, including the “outstanding job” he did in speaking to high school students about the realities of crime and prison life.
In ruling against defendant, the court recognized it had the discretion to reduce his felony to a misdemeanor, taking into consideration his record, whether his crime was aggravated, and defendant’s “background, character, and prospects . . . .” It also noted defendant’s extensive criminal record, including juvenile offenses, a 1974 murder conviction, and convictions for robbery, assault, burglary, possession of a controlled substance, along with numerous prior prison terms and parole violations.
In concluding, the trial court declared that if his motion to reduce the felony was not granted, defendant would be sentenced under the three strikes law. The trial court then stated:
“It doesn’t necessarily mean I like the law. But I’m required to follow it. And I see no basis where I can based upon Mr. Lujan’s prior record and all those other matters that I referred to where I can reduce the present offense to a wobbler.
“If, in fact, I would do that then, of course, there’s a consideration, would I have abused my discretion and with the record, your record, I am satisfied an Appellate Court would say I abused my discretion and they’d have you back here for resentencing.
“And in all honesty, listening to your brother and to your father I would seriously try to consider doing it if I could. But your record is just too bad. I mean at some point the responsibility rests with you and not necessarily the people who support you.
“And while you may have done a good job for others, you have not done a good job for yourself and the motion is denied.”
Defendant claims the trial court demonstrated a misunderstanding of its discretion by mechanically relying on his criminal record rather than taking into consideration all the circumstances relevant to a section 17(b) motion. He is wrong, as the excerpts from the record show.
The trial court understood its discretion and the factors it must consider. In ruling against defendant, the court determined that his extensive criminal record outweighed any mitigating considerations. As that decision is an appropriate exercise of the court’s discretion, we will not reverse it on appeal.
III
Cruel And Unusual Punishment
Defendant also contends his 25-years-to-life sentence constitutes cruel and unusual punishment under the federal Constitution’s Eighth Amendment.
The United States Supreme Court has upheld sentencing under the three strikes law against claims of cruel and unusual punishment based on arguments the sentences were “disproportionate,” even where the current crimes were not serious felonies. (See Ewing v. California (2003) 538 U.S. 11, 19-20 [155 L.Ed.2d 108, 116-117].) In Ewing, the Supreme Court upheld a 25-years-to-life sentence where the defendant was convicted of stealing $399 golf clubs and had three convictions for burglary, one for robbery, and several other misdemeanor and felony convictions. (Id. at pp. 17-19 [155 L.Ed.2d at pp. 115-116].)
Defendant’s unlawful taking or driving of a vehicle conviction is similar to the grand theft conviction in Ewing, and his long criminal record, which includes a prior conviction for murder, two prior convictions for robbery, and convictions for burglary, petty theft with a prior, receiving stolen property, and possession of a controlled substance, is even more culpable than Ewing’s. Since defendant is at least as culpable as the defendant in Ewing, his sentence is not so disproportionate as to violate the Eighth Amendment.
IV
Presentence Credits
Defendant contends and the People agree the trial court erred in computing defendant’s presentence credits. We accept the People’s concession.
The trial court credited defendant with 524 days of custody credit and 78 days of conduct credit for a total of 602 days.
Defendant was arrested and placed in custody on April 16, 2005, and sentenced on September 28, 2006. Thus, defendant is entitled to 531 days not the 524 days awarded by the trial court.
The trial court awarded defendant 78 days, which is 15 percent conduct credit. When a prisoner is confined in county jail following arrest and prior to the imposition of sentence for a felony conviction, he is entitled to good time/work time credit calculated at the rate of two days for each four-day period in which he is confined, such that “a term of six days will be deemed to have been served for every four days spent in actual custody.” (Pen. Code § 4019, subds. (a)(4), (b), (c), (f).)
An exception to this rule applies when the conviction is for a “violent felony” as listed in Penal Code section 667.5; under those circumstances, conduct credit is limited to 15 percent of the actual period of confinement, pursuant to Penal Code section 2933.1.
Since defendant was convicted of unlawful taking or driving of a vehicle, which is not a violent felony within the meaning of Penal Code section 667.5, he was entitled to custody credit as computed under Penal Code section 4019. Presentence conduct credit for the time defendant spent in a local facility is calculated under Penal Code section 4019 “‘by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody. [Citation.]’ [Citation.]” (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.) Defendant is thus entitled to 264 days of conduct credit instead of the 78 days awarded by the trial court.
The trial court should have awarded defendant 795 days of presentence custody credit rather than the 602 days it awarded. The abstract of judgment must be amended to reflect these numbers.
DISPOSITION
The judgment is modified to reflect that defendant is entitled to 531 days of actual credit plus 264 days of conduct credit for a total of 795 days of presentence credit. As modified the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment to reflect this change to defendant’s presentence credit. The trial court is further directed to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., BUTZ, J.