Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS070833.
RUSHING, P.J.
Defendant Tommy Eugene Thomas was charged with attempted murder, aggravated assault, and unlawful possession of ammunition after he stabbed a friend with a barbecue fork following a fight over a game of dominoes. The jury acquitted him of attempted murder but found him guilty on the assault and ammunition charges. On appeal he contends that these two charges should have been tried separately, that evidence of handgun holsters found in his house should have been excluded, that the trial court erred by instructing the jury too broadly on the doctrine of contrived self-defense, and that he is entitled to additional sentence credits. We conclude that the first two claimed errors were harmless by any standard; that there was no error in the challenged instruction; and the that defendant is not entitled to additional credits. Accordingly we will affirm the judgment.
Background
Prosecution Account
Defendant sometimes held parties in a converted garage at his Seaside home known as the “boom-boom room.” On February 4, 2007, he hosted a party there to watch the Super Bowl football game. Guests included his girlfriend Sheila Castillo and two male friends, Curtis Thomas and Tony Goodrich. Defendant’s then-best friend, Sidney Thissel, arrived around the time the game started, which was late afternoon. Also present, at least when the events at issue here took place, was Sidney’s brother Kevin. Alcohol and marijuana were consumed. Later that evening defendant’s blood alcohol content was tested at.147. Kevin’s blood alcohol content was.146.
After the football game some of the male partygoers, including defendant, Sidney, and Kevin, began playing dominoes. Each game required a $5 contribution to a pot which was apparently taken by the first player to accumulate a prescribed number of points by scoring in individual “hands.”
According to defendant, the last game required a $10 contribution. Sidney denied that the stake ever went up from $5.
Sidney testified that after several games were played without incident, Tony Goodrich “played bogus”: he “knocked, ” meaning he said he was unable to play a tile, when in fact he could have played a tile. This required him to leave the game. Shortly thereafter, apparently, Sidney also played bogus. He too would have been required to leave the game, at least on timely objection by a player, but he apparently resisted doing so on the ground that his illegal play was only noticed by Curtis Thomas (no relation to defendant), who was only keeping score, not actually playing. Further, according to Kevin and Sidney, the bogus play was only called after the hand was over, which was apparently, in some opinions, too late. In any event Sidney began arguing with defendant, who believed he was on the verge of winning the game.
According to Kevin and Sidney, Kevin decided at this point to take his money out of the pot and leave the party. He announced this intention. Defendant objected. Kevin took some money, as well as his cell phone and keys, off the table. Defendant punched him in the mouth, and Kevin punched defendant in the eye. The two men “locked up and went to the floor, ” where they started “wrestling.” After maybe half a minute, others pulled them apart. Either while they were wrestling, or while they were being separated, defendant bit Kevin on the chest.
Kevin threw the money he had taken onto the floor. Defendant was bleeding from a cut above his eye. He was escorted to the door and ran into the main house. Sidney and Curtis told Kevin to leave. Testifying over a relevance objection, Sidney said that he was fearful for Kevin’s safety because he knew that defendant “ha[d] guns in the house, ” and had seen them there. Kevin himself testified that he was “sure [defendant] had a gun.” Asked if defendant had “display[ed] a gun... that night, ” Kevin replied, “Not that night.”
Kevin left the party and walked toward his car. Defendant came out of the house and ran after him. Kevin had reached his car, and was trying to put his keys in the door, when he saw “somebody running toward me fast, ” whereupon he turned and saw it was defendant. Defendant did not say anything, and Kevin could not tell if he had anything in his hands. Kevin “t[ook] off running” and they “ran a little bit, ” but as defendant caught up with Kevin, Kevin asked “what did he have? I mean, are you going to shoot me, or what?” Defendant stabbed him in the side with a barbecue fork he had been using to cook that day. According to Kevin, defendant tried to stab him a second time, but he managed to fend him off until Sidney and others reached them. When they did, defendant ran back to the house.
Kevin gave two other versions of this utterance: “[W]hat are you going to do, shoot me?” and “You going to shoot me, man?”
Sidney testified that when defendant came out of the house and ran after Kevin, Sidney and Curtis Thomas followed. Defendant “r[a]n up on” Kevin as the latter was trying to get into his car. Defendant was “screaming.” Kevin turned to face him and threw his hand up in a way that looked to Sidney like there was going to be a fistfight. Defendant made a motion with his hand that looked “like he was throwing a punch or something.” By the time Sidney reached them he knew defendant was swinging something in his hand, though he could not see exactly what it was. After Sidney and Curtis separated them, Kevin said defendant had gotten him “bad.” Kevin fell to the ground. Defendant “took off running back to the house.”
Defendant’s Account
Defendant testified that he supplemented his income by selling his Louisiana cooking both for take-away and to guests at his parties. On this occasion, Sidney had said that he wasn’t going to eat anything because he intended to eat at another party. On that basis he had contributed nothing for food. But throughout the day he kept “sampling” food, using a barbecue fork and tongs to take it. This “bothered” defendant. Eventually, after the men had begun playing dominos, defendant decided to put a stop to Sidney’s depredations by delivering most of the remaining food to his neighbor. While placing it in a container he wiped off the foot-long barbecue fork Sidney had been using to serve himself and “tuck[ed] it down my belt.” When one of the domino players called a cigarette break, defendant tried to deliver the food to the neighbor. No one was home, so he set the food on his own refrigerator. He “tuck[ed]” the barbecue fork “down in my belt, ” he testified, so that he could use it to clean up after the domino game. According to him, that is where it remained until he used it to stab Kevin.
The defense contended that Kevin’s blows in the boom-boom room inflicted a concussion, which impaired defendant’s judgment and memory and affected his mental state. Consistent with this theory, defendant’s account of the evening’s violence was somewhat hazy on many points. He remembered “get[ting] into an altercation with Sidney.” He remembered Kevin standing up, grabbing money off the table, and “going through it, ” perhaps counting it. He remembered reaching to grab it. He remembered being struck, but did not know “which one of them hit me.” He remembered “biting him, ” and then standing up after “they pulled him off of me.” He felt that he “must have lost consciousness” at some point because “I don’t know how I got on the floor.”
Defendant testified that after being separated from Kevin, he went into the house to see “how serious” the injury to his eye was. He did not remember seeing any money on the floor or the table in the boom-boom room. Now, after examining his injury, he left the house to find Kevin in order, apparently, to get back the money out of which he felt he had been cheated. At any rate, as he caught up with Kevin, the latter said, “ ‘What you going to do, shoot your brother?’ ” Defendant “said I just want my money back.” Kevin fumbled with his pocket, and defendant thought he saw “a clip with a knife, a razor knife, ” that he knew Kevin sometimes carried. He had seen Kevin use the knife to cut sheet rock. Kevin “never actually got it out, ” but defendant thought he was about to do so. Thinking “to defend [him]self, ” defendant “recalled having a fork” and “just reacted.” “[T]he fork was just there, and I just took it and I stabbed him.” Afterwards, when everyone went to Kevin’s aid—including defendant’s girlfriend Sheila—defendant thought “everybody was on [Kevin’s] side, and I just snapped the fork, ” apparently meaning he broke it in two. He took it into the house and placed it on the freezer, where officers found it.
Search of House
Police officers arrived and searched the area for the weapon used in the stabbing. Finding none, they obtained a search warrant and searched defendant’s house. They entered through the kitchen, where they found the barbecue fork, with blood still on it, sitting on a waist-high freezer. They nonetheless performed a “protective sweep, ” which means to enter every room in the house in order to “make sure there’s no other people inside the house, for safety.” One of the rooms—defendant’s bedroom, judging from the presence of his driver’s license, a business card, and men’s clothing—looked like “it had been gone through, somebody had been in there just prior to us getting there.” Lying near the door was an empty handgun holster. A second holster lay next to the bed. Underneath the bed an officer found a “plastic-type storage container” holding a seven-shot handgun magazine (clip) with five live bullets in it, plus ammunition boxes containing handgun cartridges.
Character Evidence
In support of the contention that defendant had suffered a concussion, defense counsel elicited testimony from Sidney that the events of the evening were so unexpected as to shock those present. Some, including Sidney, were crying. Sidney had known defendant to verbally threaten people, but had never seen him exhibit violent activity “like that” toward himself or Kevin. He had never seen defendant react like that even in arguments with complete strangers. He thought defendant might have been on drugs or something—that something was wrong with him. He agreed that defendant’s conduct was “out of character.” On redirect questioning by the prosecutor, however, Sidney acknowledged that he had seen defendant “get violent” with others “[a] few times, probably three or four.” Defendant, he said, has “got attitude.” Sidney had seen defendant get in a fight before, which he won. Defendant and Kevin had “played around” before, wrestling, too. Defendant usually got the better of those matches because he “knows how to wrestle better.” As between himself and Kevin, defendant seemed the more dominant. But Sidney agreed with the prosecutor that, on this occasion, Kevin “got the best of Tommy Thomas, ” and “[e]verybody knew it.” Defendant seemed embarrassed, angry, like he wanted to get even.
In connection with the ammunition charge and as a result of defendant’s testifying, the jury also learned that defendant had suffered unspecified felony convictions in 1993 and 1994.
Proceedings
Defendant was charged in a three-count information with attempted murder (Pen. Code, §§ 664, 187, subd. (a)), assault by means of a deadly weapon or with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and possession of ammunition while prohibited from possessing firearms by virtue of prior felony convictions in 1992 and 1995 (§ 12316, subd. (b)(1)). By way of enhancements, it was alleged in count one that he had personally used a deadly weapon (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(24)), and in counts one and two that he had inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8), 667.5, subd. (c)(8)).
All further statutory citations are to the Penal Code.
At trial, no real defense was offered to the ammunition charge. As to attempted murder and assault, the chief defense theory was self-defense, i.e., that defendant stabbed Kevin in the reasonable belief that Kevin was pulling a knife from his pocket with which to attack defendant. The jury was instructed on two additional defenses bearing only on the attempted murder charge: (1) imperfect self-defense, i.e., defendant stabbed Kevin in the mistaken but unreasonable belief that he needed to use force to defend himself, and therefore lacked the malice necessary for murder; and (2) heat of passion, i.e., defendant acted in the heat of passion, as the result of provocation, and therefore, again, lacked malice.
The jury acquitted defendant entirely on count 1. On count 2, the jury found him guilty of assault with a deadly weapon, but found that he did not inflict great bodily injury. The jury also found him guilty of possessing ammunition as alleged in count 3.
Defendant moved to reduce the remaining charges to misdemeanors pursuant to section 17, subdivision (b)(1). The court granted the motion as to the assault charge, denied it as to the ammunition charge, suspended the imposition of sentence, and placed defendant on probation with conditions including 240 days in jail. This timely appeal followed.
Discussion
I. Evidence of Guns
In a supplemental trial brief filed on the opening day of trial, defendant moved to sever the ammunition charge and try it separately from the charges of attempted murder and assault. He also moved to exclude any evidence of the holsters found by police in his bedroom. The motions were made on the ground that the ammunition and holsters were “not in any way factually a part of the transaction that is the subject of the other counts but will unduly and unfairly prejudice defendant in the eyes of the jury” which might view these items “as an indication that defendant is dangerous or violent.” Defendant also noted that proof of the ammunition charge would require evidence that defendant had been convicted of a felony, which would unfairly prejudice him in the defense of the assaultive charges. The prosecutor said that as part of his case on the attempt and assault charges, he intended to offer evidence showing that Sidney and Kevin Thissel “knew of Mr. Thomas’s guns in the house, ” having seen them. He described this evidence as relevant in that “the fear of these guns after a fist fight took place and Mr. Thomas was badly injured, knowledge of those guns would cause fear in anybody for the victim to run, or Kevin Thissel to run away.” The court adopted this view, explaining, “I’m not inclined to bifurcate Count 3 on the basis that the ammo’s prejudicial because I think it’s going to end up coming in any case through the testimony of—Kevin Thissel is going to testify that he got out of there because he was afraid he was going to get shot. And his credibility, obviously, is going to be under serious attack from the defense. Then I think the ammunition and the holster kind of bolsters the credibility that he had that fear.”
This ruling is the target of defendant’s first two claims of error, i.e., that the court should have severed the ammunition charge from the other charges and should have found the holsters inadmissible as to the attempt and assault charges. These points share the premise that the court committed reversible error by exposing the jury, in connection with counts 1 and 2, to evidence that guns were kept in defendant’s house.
This premise founders on the harmless error rule, i.e., the principle that before any judgment can be reversed for error, it must appear that the error “has resulted in a miscarriage of justice.” (Cal.Const., art. VI, § 13; see § 1258 [appellate court “must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties”]; id., § 14014 [error does not render proceeding invalid “unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right”].) Ordinary error requires reversal “only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 7, p. 450.) A reasonable probability for these purposes does not mean an absolute probability; the likelihood that the error affected the outcome need not be greater than the likelihood that it did not. (People v. Ross (2007) 155 Cal.App.4th 1033, 1055, citing People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918; College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) The test is satisfied, and prejudice appears, if the case presents “an equal balance of reasonable probabilities.” (People v. Watson, supra, 46 Cal.2d at p. 837.)
A careful review of the present record persuades us that it is extremely unlikely that the evidence of ammunition and holsters had an unfavorable effect on the verdict. Indeed, as to the verdict on count 1—attempted murder—it may well have had an effect favorable to defendant. On that count the jury acquitted him not only of the charged offense but of the lesser included offense of attempted voluntary manslaughter. The most likely explanation for this result is that the jury was unable or unwilling to find that defendant acted with the requisite intent to kill when he stabbed Kevin with the barbecue fork. One fact clearly casting that element in doubt was defendant’s apparent access to guns. Given the evidence that guns had been in the house very recently—in all likelihood, at the time of the stabbing—defendant would presumably have used something more suitable than a barbecue fork if he had intended to kill Kevin. And although defense counsel did not argue this point, it was placed before the jury by way of a recorded jailhouse conversation in which defendant repeatedly stated “it ain’t no damn attempted murder, ” and described a potential argument by his attorney that “if I was tryin’ to kill him, I would’ve done more than that. Uh, I got knives and stuff....” The prosecutor even underlined the point by cross-examining defendant about these remarks. In our view it was a strong argument and one on which the jury was likely to place considerable weight. With respect to count 1, then—the most serious charge brought against defendant—the evidence of holsters and ammunition was far from prejudicial.
The jury was duly instructed that such an intent is required for both attempted murder and the lesser included offense of attempted manslaughter. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1546-1547.)
Nor could the challenged evidence have prejudicially affected the outcome on the charge of unlawful possession of ammunition. The ammunition would obviously be admissible in a separate trial of that offense, and if the evidence of holsters would not, neither could it have any effect on the result, which was more-or-less preordained. No real defense was offered to the ammunition charge. Defense counsel made no jury argument at all concerning it. Defendant suggested on the stand that the ammunition was “Sydney’s [sic] stuff.” But ownership of the ammunition was not the issue; culpability flows but from its possession, which defendant practically admitted as a matter of law by acknowledging that he had placed and kept it under his bed. The verdict on count 3 could not therefore have been affected by the evidence now challenged on appeal. Indeed defendant does not challenge the verdict on that count before this court. He prays only that we “reverse his assault conviction.”
The question thus presented is whether it is reasonably probable that the jury would have acquitted defendant of assault (count 2) if it had not been exposed to evidence of ammunition and holsters. But defendant admitted that he stabbed Kevin with a barbecue fork. The jury was offered only one rational ground on which to acquit him of assault. Thus trial counsel told the jury, “This is a self-defense case.” The entire defense of count 2 rested on the premise that defendant might have stabbed Kevin because he reasonably believed Kevin was about to attack him with a knife. To be sure, defendant did not have to affirmatively prove that he acted in self-defense. As the jury was properly instructed, the burden lay on the prosecution to prove beyond a reasonable doubt that defendant “did not act in self-defense.” (See People v. Ross, supra, 155 Cal.App.4th at p. 1050.) The question of prejudice thus devolves to this: Is it reasonably probable that a jury not exposed to evidence of holsters and ammunition would have entertained a reasonable doubt as to whether defendant acted in self-defense? Having reviewed the record with considerable care we find it impossible to answer that question affirmatively.
The point is echoed in defendant’s brief on appeal: “Appellant’s sole defense to the charges of assault and attempted murder was that he had acted in reasonable self-defense.” This is inaccurate as to the attempted murder charge but entirely accurate as to the assault charge, which is the only one at issue on this appeal.
First, even if the jury had not heard the evidence of holsters and ammunition it would have heard other evidence to the effect that defendant possessed guns. The subject was first mentioned when the prosecutor elicited testimony from Sidney Thissel that after the fight in the boom-boom room, he advised his brother Kevin to leave the scene out of “some fear, ” as Sidney said, “about what was going to happen next.” Asked what he feared, he replied, “Well, [defendant] has guns in the house.” After the court overruled a relevance objection, Sidney repeated this statement and affirmed that he had “seen guns” in defendant’s bedroom. The prosecutor also elicited testimony from Kevin Thissel that he was “sure” defendant “had a gun, ” though none was displayed “that night.” Further, both defendant and Kevin testified that just before the stabbing, Kevin asked if defendant was about to shoot him.
Defendant does not challenge the admission of the evidence just described. He thus implicitly concedes that the jury properly heard some evidence of his possession of guns. And indeed it would be hard to contend otherwise. As the prosecutor argued to the jury, Kevin’s fear that defendant might have a gun would tend to show that Kevin was not about to attack defendant when defendant stabbed him. The more reason Kevin had to entertain such a fear, the less likely he would be to initiate further hostilities. Moreover, the greater his fear of getting shot, the more likely it was that the fear would be manifest to defendant, and the less reasonable would be defendant’s professed belief that Kevin was about to attack him.
The prosecutor argued, “So we kind of know that Kevin’s mind, he thought Tommy had a gun. Tommy supports that. Kevin’s thinking he might have a gun. What’s the last thing you want to do if you think somebody has a gun? Pull out a knife? [¶] This goes to the point of, regardless of whether or not he had [a knife] in his pocket, was he—if he thinks Tommy Thomas has a gun, the last thing he’s going to do is pull out a knife. I’m not saying he had one, but [if] he did have one, he’s not going to reach for that knife if he thinks—because that’s the surest way to get shot: You pull out a knife.”
Given that the jury was properly made aware of Kevin’s belief that defendant might have a gun, and of the well-grounded quality of that fear, since defendant sometimes had guns in the house, a finding of prejudicial error would require a conclusion that the evidence challenged here—defendant’s possession of ammunition and holsters—so enhanced the incriminating tendency of other gun evidence as to adversely affect the jury’s verdict. We see no basis for such a conclusion. It is true that the ammunition and holsters tended to corroborate or ratify the testimony of Kevin and Sidney about the presence of guns, but to that extent it was legitimately probative. It tended to show that defendant had at least two guns in the house that night, as distinct from an unspecified past times, but it is difficult to see how this inference would inflict any significant harm above and beyond the fact that he sometimes had guns. Indeed, as we have noted, it is this inference that gave the evidence of ammunition and holsters its exculpatory potential in connection with the more serious charge of attempted murder.
The fundamental difficulty in defendant’s self-defense theory is that it was extremely weak in its own right. It called upon the jury to choose between two competing hypotheses or narratives to explain defendant’s stabbing of Kevin. The prosecution’s narrative was that defendant had simply attacked Kevin in a rage flowing from the injury and humiliation defendant had suffered in their fight in the boom-boom room. Every part of this hypothesis was supported by, or at least easily reconciled with, all of the evidence except defendant’s own testimony, and it could be fairly readily reconciled even with much of his testimony. There could be little doubt that the fight in the boom-boom room had put defendant into an extremely agitated state of mind, and there was ample basis to infer that it went beyond agitation to something approaching frenetic apoplexy. His biting of Kevin could readily be viewed as the act of a man out of control. After they were separated defendant “ran” out of the room and into the main house. A few minutes later, Sidney testified, defendant was “screaming” as he charged after the departing Kevin. The enraged state depicted by this evidence furnished a simple and entirely plausible explanation for everything that followed.
As Kevin described it to investigators, defendant “lunge[d]” at him and bit him “as they was breaking us up.”
This view may have been strengthened by the testimony of defense experts to the effect that defendant had suffered a concussion that could impair his judgment; cause him to misperceive stimuli, especially possible threats; and impair his ability to inhibit his behavior—especially, again, his reaction to perceived threats. This testimony probably played a favorable role in securing an acquittal on count 1 in that it tended to dispel any inference that defendant set out to kill Kevin. As noted below, however, it had little if any proper tendency to support the claim of self-defense.
The defense theory, in contrast, could avoid logical incoherence only with the aid of a number of dubious inferences and highly indulgent suppositions. First, it had to furnish some colorable alternative explanation for defendant’s pursuit of Kevin—i.e., some purpose other than to avenge defendant’s defeat in the boom-boom room. Then it required the supposition, as at least a colorable possibility, that after catching up to Kevin defendant suddenly formed the reasonable belief that Kevin was about to attack him, so as to justify what was in effect a preemptive strike. Neither of these premises rose much above the level of absurdity.
To begin with, the defense failed to provide a coherent explanation for defendant’s following Kevin to the latter’s car. Defense counsel told the jury that defendant did so because he had “decided [he was] going to go talk to Kevin about getting money back.” (Italics added.) But defendant never said he was merely planning to “talk” to Kevin. Indeed he never squarely explained why he followed Kevin to his car. Asked that question by his own attorney, he gave a characteristically non-responsive, or only inferentially responsive, answer: he had “lost every game that day” but had “pretty much won” the last one, when “they cheated and just take the money. That’s not how the game—doesn’t supposed to go that way.” Standing alone, this testimony suggests more a desire to punish dishonorable conduct than a mere intention to “talk” about “getting money back.”
Defendant testified, however, that upon reaching Kevin at the latter’s car, after the latter asked, “ ‘What you going to do, shoot your brother?’ ” defendant replied, “I just want my money back.” It was then that Kevin fumbled in his pocket, reaching—defendant thought—for a knife. But this “want my money back” premise was thoroughly discredited by prosecution testimony, objective evidence, and discrepancies in defendant’s own account.
Defendant never explained what he supposedly meant by “my money.” The evidence overwhelmingly favored a finding that Kevin took only his own stake in the game, if that. Sidney testified that immediately before the first altercation, Kevin had said, “[T]here’s too much bogus playing. I want to get my money, ” meaning his “five bucks.” (Italics added.) Defendant replied, “[N]o, you’re not getting your money.” (Italics added.) Kevin “grab[bed] his money, ” whereupon defendant “sock[ed] him in the mouth.” Kevin also testified that he “grabbed my money off the table, ” whereupon defendant struck him. (Italics added.) Unless wholly disbelieved, this testimony established that the only money Kevin ever took, or tried to take, or announced an intention to take, was his own contribution to the pot. No one—including defendant—attributed any statement to Kevin about taking the whole pot, though any attempt to do so would seemingly have demanded some explanation. This was not a hold-up. If he tried to take the other players’ money he would be outnumbered three to one. Nor did anyone suggest that he was on the verge of winning the game, so as to treat the pot as constructively his. It would simply be nonsensical for him to attempt to scoop up the entire pot. Yet this is what defendant’s theory required him to believe, and what he apparently professed, if only obliquely, to believe. Thus on cross-examination he defended the premise that “Kevin took all the money” by saying that when Kevin got up from the game, “[h]e picked it all up.” But on direct examination defendant had provided a crucial further detail: Kevin “stood up” immediately before the fight and “grabbed the money off the table and was fumbling, was going through it.” (Italics added.) True, defendant immediately denied that he understood this behavior: “ I don’t know if he was counting it or what.” But that very denial smacks of an attempt to divert the jury from the obvious inference: Kevin was “going through” the money in order to extract his own contribution from the pot, just as he and Sidney testified he did, after announcing the intention to do so.
Defendant’s professed belief that Kevin had taken the entire pot also conflicted, at least arguably, with a photograph showing money on the game table and on the floor. Defendant testified that he did not recall seeing this money, and in all fairness it is possible that Kevin threw some or all of it down after defendant had left the boom-boom room. But the record still afforded no apparent basis for defendant to believe that Kevin had taken the entire pot.
Indeed the record affords some basis to doubt that defendant did believe this, or at least believed it consistently. What he supposedly said to Kevin just before stabbing him was “I just want my money back.” (Italics added.) This suggests money of which he previously had possession. But defendant did not claim to have ever possessed the whole pot or even to have won it when the game fell apart. He said only that the game “was almost over” and he “had pretty much won that game.” Nor did he claim an entitlement to the whole pot when cross-examined on the subject. Asked whether he was pursuing Kevin to “try and get your $10 back, ” defendant replied, “It was 30 bucks because it’s three people.” This bewildering statement seems to mean that defendant was intending to recover his own $10 contribution plus the contributions of two other players. This would suggest that he viewed Kevin as entitled to keep his own $10 contribution. This of course would be a fatal inference if the jury found, consistent with the testimony of both brothers, that Kevin had taken only his own contribution and that defendant knew it.
Nor was there much likelihood that reasonable jurors would find plausible the defense version of events after defendant caught up with Kevin. According to defendant, Kevin expressed the fear that defendant was going to shoot him; defendant replied that he only wanted his money back; Kevin then fumbled with something in his pocket, which defendant supposed must be the “razor knife” defendant knew him to keep there; defendant formed the belief that Kevin was about to attack him with it; whereupon defendant launched a preemptive strike with the barbecue fork that happened to be hanging on his belt.
There is little likelihood that any reasonable juror hearing the evidence in this matter would have found any of these statements, other than the first, remotely credible. Most importantly, there was no evidence of any conduct by Kevin that could give rise to a belief, reasonable or otherwise, that he was about to attack defendant. All he did, according to defendant, was “fumble[] in his pocket a couple of times.” Defendant acknowledged that he never saw a knife—Kevin “never actually got it out”—and there is no evidence that Kevin in fact had a knife, although defense counsel suggested in argument that it was possible. Defendant himself refused even to state unequivocally whether, at the time of trial, he believed he had seen a knife. First he testified that Kevin “went for his pocket, and I feel that—I thought I saw his—he keeps a clip with a knife, a razor knife, and I just thought to defend myself.” He then acknowledged that Kevin “never actually got it out.” But asked on cross-examination to affirm that he “never saw Kevin's knife that night, ” he replied, “I thought I did. [¶]... [¶] I thought I seen—when he went for his pocket, I thought I seen a silver, like, just like that one right there, a silver little clip on his pocket because I seen it before many times.” At most, then, he “thought” he saw the silver clip by which he knew Kevin’s “razor knife”—which his attorney described as a “type of box cutter blade”—was apparently held inside Kevin’s pants pocket. He did not testify that Kevin actually seemed to be disengaging the clip or otherwise beginning to remove the box cutter from his pocket. All he was willing to say unequivocally was that Kevin reached into a pocket where defendant believed he kept a box cutter.
Defense counsel attempted to add substance to this rather feeble threat by suggesting that defendant’s claimed belief was the result of Kevin in fact pulling something out of that pocket—most likely his cell phone, or possibly his keys. Counsel based this suggestion on Kevin’s testimony that he was trying to call 911 while fending off defendant’s attack, and on a pretrial statement in which he told officers that he pulled his keys from his pocket on the way to his car. But Kevin testified that both his phone and his keys were already in his hand when defendant approached him, and nothing in the evidence on which defense counsel relied was inconsistent with that testimony. Kevin’s attempt to call 911, as described by him, took place after defendant began his attack, and his pretrial statement placed the keys squarely in his hand well before defendant had approached near enough for either to pose a threat to the other. Further, counsel’s hypothesis—that Kevin actually drew something from his pocket—finds no support in defendant’s own testimony. He did not say that Kevin drew anything from his pocket. Defendant said that he thought he saw the box cutter’s silver pocket clip, and when Kevin reached for that pocket, defendant stabbed him. Defendant kept up his attack, he testified, until he saw that he “wasn’t in any more danger” because Kevin “wasn’t continuing to go with his pocket anymore.” In his version, in other words, he successfully prevented Kevin from pulling anything out of his pocket. This of course is irreconcilable with Kevin’s account, in which defendant continued the attack while Kevin tried to summon aid on his phone.
Kevin told police that he “ ‘ran out the gate, got my keys out of my pocket, and I was getting ready to get in my, uh, car, and out of my vision I seen him [i.e., defendant] coming.”
Counsel’s suggestion that defendant could have mistaken keys or a phone for a box cutter reflects a tacit recognition of what seems obvious to us, and must have been obvious to the jury: without having actually seen Kevin remove something from his pocket that could be mistaken for the box cutter, defendant had no reasonable basis to suppose that Kevin was going to attack him. But defendant himself ascribed no conduct to Kevin beyond “fumbl[ing] in his pocket.” By defendant’s own account, he had just demanded that Kevin give him his “money back.” Even assuming he saw the clip by which Kevin secured his box cutter, defendant had no way of knowing—under his own testimony—whether Kevin was reaching into his pocket for the knife, or reaching in for the money defendant had just demanded. In his account he made the demand and then immediately, without allowing Kevin any opportunity to comply or otherwise respond, attacked him.
No extrinsic objective circumstances lent the claimed perception of threat any greater weight. There was no suggestion that Kevin had ever pulled a knife on anyone, let alone that defendant was aware of any such conduct. There was no evidence that Kevin had ever used or threatened to use the box cutter as a weapon. Defendant knew that Kevin was “in construction, ” and had seen him use the knife to cut sheet rock.
Defendant continues to suggest that his “concussed state” was relevant to the reasonableness of the threat as perceived by him. However, “[s]elf-defense requires not only that the defendant honestly believe in the necessity of using force, but also that the belief be objectively reasonable.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 70, p. 404, italics added.) While a defendant’s personal situation and knowledge are relevant to this question, his or her subjective mental condition is not. Thus evidence that a mental illness caused a prisoner to hear voices warning him of an impending attack by guards has no proper bearing on the reasonableness of his perception of imminent danger. (People v. Jefferson (2004) 119 Cal.App.4th 508, 520.) Under the objective standard, “[t]he issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a ‘reasonable person’ in defendant’s situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger of bodily harm.” (Id. at p. 519.)
At the same time, other objective circumstances strongly suggest that Kevin did not pose a real or apparent threat to defendant at the moment defendant stabbed him. Both men agreed that immediately before the stabbing, Kevin voiced the fear that defendant might be “going to shoot” him. Kevin quoted himself as saying something along the lines of “You going to shoot me, man?” Defendant’s version was, “What are you going to do, shoot your brother?” As we have previously noted, this statement was highly germane both to the existence of a threat to defendant, and to the objective reasonableness of defendant’s professed perception of a threat. As the prosecutor emphasized to the jury, a man who fears that his adversary has a gun does not ordinarily pull a knife. Of course a desperate man might do anything, but Kevin’s remark did not smack of desperation. On the contrary, it seemed more an attempt at supplication or cajolery, and in any event of dissuasion—all the more in defendant’s version, where it explicitly appealed to a sense of fraternity. Nor did defendant suggest that he thought Kevin was merely shamming, or trying to distract him or put him off his guard. Defendant did not attempt to explain his reaction to Kevin’s statement at all. Indeed in defendant’s account, Kevin’s expression of fear had no effect on defendant at all. It was as if Kevin had spoken in an alien tongue.
Indeed a reasonable juror might entertain the thesis that defendant’s conduct was the opposite of what one would expect from a reasonable man in defendant’s position. Kevin had just confessed a fear that defendant had a gun. As long as he entertained that fear, he might reasonably be expected to refrain from attacking defendant. Thus a reasonable person in defendant’s position, if genuinely seeking to avert imminent violence to himself, would have done well to encourage his adversary’s erroneous belief, or at least leave it alone. Instead defendant immediately dispelled it by, in counsel’s words, “pok[ing] him with this fork.”
The fortuitous presence of “this fork” on defendant’s person presents perhaps the greatest of all the implausible turns in the defense narrative. Any reasonable juror would wonder why a man seeking to confront another about money, as defendant professed to be doing, would carry a barbecue fork with him. Defendant’s explanation was that Sidney had been pilfering food earlier in the evening, and in order to stop this, defendant had taken the barbecue fork and “tuck[ed] it down [his] belt, ” out of Sidney’s reach. But this testimony, on which the entire defense depended, strained credulity in at least two ways. First, defendant testified that Sidney had also been using tongs to take food. These would seem at least as useful a tool for pilferage as a fork and thus one defendant would be just as anxious, if not more anxious, to get out of Sidney’s reach. If defendant were going to tuck the fork down his belt—and keep it there—would not he do the same thing with the tongs? And if he were going to put the tongs somewhere else, would he not put the fork there too? The most obvious explanation for defendant’s carrying the fork into his confrontation with Kevin, but not the tongs, is that the fork would be handy for “pok[ing]” his adversary, whereas the tongs would be useless.
Leaving the tongs aside, defendant’s account required him to keep the fork on his person from the time he tucked it there until the time he stabbed Kevin with it. This necessarily included the time when he wrestling with Kevin on the floor of the boom-boom room. The prosecutor, understandably, belittled this scenario. And indeed defendant’s own account suggested a far more plausible course of events. He testified that between the time he took possession of the fork and the time of his fight with Kevin, he had deposited the leftover food in the kitchen after an unsuccessful attempt to deliver it to his neighbor. Surely it was more logical—and likely—that he left the fork in the kitchen along with the food. Of course that inference would torpedo the self-defense claim, since it would mean that defendant did not just happen to find the fork hanging on his belt at the opportune moment when, he thought, Kevin was about to attack. More likely he deliberately armed himself with it as he left the house, after examining his wounds and consulting his injured pride. The kitchen was also where he left the fork after attacking Kevin at the latter’s car, and where the police found it when they searched the house. All this lends the more incriminating hypothesis a credibility wholly lacking from his claim that he wore it on his person while playing dominoes, exchanging punches, and finally engaging in colluctation on the floor with Kevin.
“Now, Tommy Thomas testified that the knife that he had that he stabbed Kevin with, he had this knife in his belt loop or inside his belt, I guess, somehow stuck it down his belt like this and, you know, then across so it doesn’t, you know, sit in his crotch area while he’s playing dominos. That in itself is kind of hard to believe. But what’s even harder to believe that during the fight, the punching, the wrestling around on the ground, gee, wouldn’t there at least have been some torn clothing or some poking or whatever in that vicinity of either him or Kevin? No. [¶] But he had to get [sic; probably ‘give’] a reason. He had to sit up there and tell you why he had that knife in his possession other than retaliation. He said Sidney was picking up the foods, sampling the food, he wasn’t paying for it, so I had to take the fork that Sidney was using to keep him from sampling. That’s a stretch. Defense attorney didn’t question Kevin or Sidney on that at all. He could have asked him [sic; ‘them’] questions about that. He stayed clear of that because it just simply wasn’t true that this gentleman had this knife or this weapon in his belt to keep people from picking up the food.”
Nor did defendant’s conduct after the stabbing lend any credibility to his claim that he had acted in self-defense. As the prosecutor pointed out to the jury, defendant did not “stop to help Kevin” after stabbing him, as might be expected “if you stab somebody mistakenly believing [they] have a weapon and you found out they didn’t.” Instead, according to both Sidney and Kevin, defendant “took off running back to the house.” Nor is there any evidence that defendant exhibited anything like regret about his actions or trepidation that they might be misunderstood. By his own account, the perception that “everybody was on his[, ] [i.e., Kevin’s] side” made him so angry that he snapped the barbecue fork in two.
Defendant testified only that he “walked down the street, ” where he encountered his girlfriend Sheila, whom he “vaguely remember[ed] telling... something.”
Further, as the prosecutor emphasized, the defense failed to credibly establish that defendant told anyone at the scene that he had stabbed Kevin in the belief that Kevin was about to attack him. Instead he told officers “something along the lines of ‘KT hit me first. I want to press charges against him.’ ” Defendant testified that he eventually mentioned a knife to his girlfriend, Sheila, as well as to his first attorney. Pressed to specify when he had told Sheila, he attempted to suggest that he might have “said something to her” at the scene, immediately after the stabbing. This testimony was so vague and tentative as to invite an inference of evasiveness, if not prevarication. Moreover, as the prosecutor emphasized, defendant did not mention a knife in a recorded jailhouse conversation with Sheila, apparently some six days after the stabbing, in which he described other potential defenses to her.
As a result of this taciturnity, no one searched Kevin’s person to ascertain whether he in fact had a knife. This left it open to defense counsel to suggest to the jury that he might in fact have had one.
Asked “When did you tell Sheila that about this knife?” defendant replied, “I actually recall myself—I thought I said something to her after she asked me ‘What did you do?’ Because I thought she was mad at me. And, well, I don’t know if she recalled or she heard.” (Italics added.) A reasonable juror could hardly help wondering why someone in defendant’s position might fail to clearly communicate to his girlfriend why he felt justified in stabbing his best friend’s brother, or why he might expect her to forget, if she heard, such an explanation. Indeed a reasonable juror might wonder why he would be ruminating about this possibility on the stand. Would he not know what she remembered him saying:? Surely they had discussed it. The pervasive equivocation, coupled with the unwillingness to even specify what he “thought [he] said, ” left virtually nothing for the jury to believe—or disbelieve.
In support of his habeas petition, which we deny by separate order, defendant presents a declaration in which Sheila Castillo avers that defendant told her about the perceived occasion for self-defense in an earlier jailhouse conversation, a day or two after the stabbing, . Appellate counsel faults trial counsel for failing to determine whether the conversation was recorded by jail authorities. Even if such a recording had been presented, however, it would only establish that defendant mentioned the self-defense claim well after the fact—long enough to calm down and consider the seriousness of his situation. It was his failure to refer to self-defense at the scene that the prosecutor justly identified as incriminating.
As against this patchwork of highly improbable inferences, the prosecution’s retaliation theory provided a simple and easily credited explanation for defendant’s entire course of conduct, from the moment the party broke up in the boom-boom room to the stabbing by Kevin’s car: Upon being separated from Kevin, defendant—perhaps stunned by a concussion, as the defense insisted—goes to the house and examines his wounded brow. Growing enraged at the injury to his body and his pride, he charges out of the house, snatching up the first weapon he sees, and pelts screaming after Kevin, whom he stabs without provocation or preamble. Comparing this simple and plausible narrative to the tortured labyrinth of unlikelihoods proffered by the defense, we see virtually no possibility—let alone a reasonable probability—that exclusion of the evidence of ammunition and holsters would have caused the jury to sustain the claim of self-defense.
Defendant asserts that the jury’s exposure to the evidence of ammunition and holsters amounted to a denial of due process because it led to a guilty verdict based on who he is, not what he had done. (See McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385.) He notes that because of the denial of the motion to sever, the jury was exposed to evidence that he had suffered a prior felony conviction. It is true that, because his status as a convicted felon was an element of the offense of unlawfully possessing ammunition, evidence of a prior conviction was necessarily presented. The evidence took the form, however, of a stipulation “that Mr. Thomas has suffered a prior felony conviction which makes it unlawful for him to possess ammunition.” For the reasons already stated, we do not believe there is any likelihood that this evidence produced an outcome less favorable than defendant would have achieved without it. Further, defendant’s criminal history was separately elicited by the defense, in anticipation of its use for impeachment, when he took the stand on his own behalf. Defendant could not possibly have presented his self-defense claim without testifying, and he could not possibly have prevailed on the assault charge except on a claim of self-defense. The relatively innocuous stipulation concerning a prior conviction could not possibly have affected the outcome.
II. Instruction on Negation of Self-Defense by Provocation
Defendant contends that the trial court erred by instructing the jurors on contrived self-defense without telling them that the rule applies only where the defendant acts with intent to kill.
The court instructed as follows: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) Defendant contends that the stated principle only properly applies in situations where the defendant acts with the intent to create an occasion to kill, and not merely assault, the victim. His argument is based on statements of the rule in two early homicide cases. In People v. Hecker (1895) 109 Cal. 451, 462, the court wrote, “Self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, though his fraud, contrivance, or fault, to create a real or apparent necessity for killing.” (Italics added.) The Hecker court in turn cited People v. Robertson (1885) 67 Cal. 646, 648-649, which states, “[I]f the circumstances of a combat following an assault show that from the outset the words and acts of the defendant indicated an intention to kill, or to take his assailant at an unfair advantage to kill him under the color of the assault, it is murder. [Citation.]” Relying almost entirely on these decisions, defendant asserts that the provocation of a quarrel will not overcome a claim of self-defense unless the defendant had an “intention to force a deadly issue, to kill, before initiating the quarrel.” (Italics defendant’s.)
Defendant also cites People v. Quatch (2004) 116 Cal.App.4th 294, 301, but with no explanation of its relevance beyond a “[s]ee also” signal and the parenthetical précis, “conviction reversed where trial court failed to instruct that defendant could reasonably react to sudden and perilous counterassault.”
Oddly, defendant states that CALCRIM No. 3472 is “based upon an early California Supreme Court decision, ” but does not actually acknowledge, let alone discuss, any of the three decisions cited in the notes following the instruction. One of them was a homicide prosecution, and as such may be consistent with the limitation advocated by defendant. (People v. Olguin (1995) 31 Cal.App.4th 1355, 1381.) The second, however, was a civil suit for tortious assault. (Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 743-744.) The third seems directly on point here: it was a prosecution for criminal assault, in which the court found no fault in an instruction stating “the recognized principle of law ‘that self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for making a felonious assault.’ ” (People v. Hinshaw (1924) 194 Cal. 1, 26.) It is true that this language alludes to “forc[ing] a deadly issue, ” but we see no reason to interpret this to mean that the defendant must have set out with the intent to kill the victim; indeed the concluding phrase suggests the contrary, that the defendant need only intend to secure an occasion to launch a physical attack. The phrase “force a deadly issue” may be understood to express a recognition that nearly any physical confrontation has lethal potential, if only by mischance. Violence by its nature is not easily controlled, and its consequences often exceed the foreseen.
In Fraguglia the rule is stated as follows: “ ‘The law does not permit any person to voluntarily seek or invite a combat, or to put himself in the way of being assaulted, with the purpose that he may have a pretext to injure his assailant. The right of self–defense does not imply the right of attack, and it will not avail in any case where the difficulty is set off and induced by the party, by any wilful act of his, or where he voluntarily and of his own free will enters into it. The necessity being of his own creation, will not operate to excuse him.’ ” (Fraguglia v. Sala, supra, 17 Cal.App.2d at p. 743.)
In any event the rule has been stated and applied in assault cases without any reference to a “deadly issue” since at least 1958, when a court wrote, “The plea of self-defense is not available to one who has sought a quarrel with the design or apparent necessity for making an assault.” (People v. Duchon (1958) 165 Cal.App.2d 690, 693.) In People v. Garcia (1969) 275 Cal.App.2d 517, 523, the court stated the principle as follows: “A man has not the right to provoke a quarrel, go to it armed, take advantage of it and then convert his adversary’s lawful efforts to protect himself into grounds for further aggression against him under the guise of self-defense.” (See also People v. Martin (1980) 101 Cal.App.3d 1000, 1011; 6 Am.Jur.2d (2008) Assault & Battery, § 55, pp. 49, fn. omitted [“The right of self defense ordinarily may not be claimed by a person who provokes or initiates an assault, unless that person withdraws in good faith from the conflict and announces his or her intention to retreat.”].) The principle is manifestly a settled part of the common law.
Defendant suggests no sound consideration of policy that would be served by the limitation he proposes, and we detect none. Such a limitation would be a license to provoke a fight, and thereby bring about a breach of the peace, with perfect impunity, just so long as one acts without homicidal purpose. To describe such a regime is to repudiate it. The instruction expresses a common-sense principle of fairness, as well a necessary condition of civilized life: No one should be entitled under law to contrive an occasion for conflict and then exploit the occasion to inflict violence. The soundness of this rule is wholly unrelated to the gravity of the consequences intended or foreseen by the contriver. Defendant offers no basis for his assertion to the contrary. He relies entirely on the supposition that the statement of the principle in one or two early cases must be treated as the complete and final expression of the rule, in pure and unalterable form, such that we must disregard succeeding precedent applying the principle to a broader class of cases. We reject this approach and the result defendant draws from it. Accordingly we find no error in the trial court’s failure to condition the instruction on a finding that defendant acted with the intent to kill.
III. Pre-Sentencing Confinement Credits
A. Ameliorative Statute
We granted defendant leave to file a supplemental brief challenging the trial court’s calculation of presentence custody credits under Penal Code section 4019 (§ 4019). For a period of some eight months beginning on January 25, 2010, section 4019 granted presentence credits to some defendants at a rate of four days for every two days actually served. (Former § 4019, subds. (b)(1), (c)(1), (f), as amended by Stats. 2009 3d Ext. Sess., ch. 28, § 50; repealed by Stats. 2010, ch. 426, § 2; see Stats. 2010, ch. 426, § 2, subd. (g) [repealing version applicable only as to offenses committed after effective date].) Defendant contends that this more lenient formula should have applied to him, even though his offense was committed, and indeed he was sentenced (and his credits calculated), before the statute was adopted. In other words, he contends that the amendment applied retroactively to him, such that his credits must be recalculated in accordance with it.
Defendant offers three arguments in support of retrospective application. First he contends that “an ameliorative statute, such as section 4019, must be applied retroactively.” This contention rests ultimately on the rule of In re Estrada (1965) 63 Cal.2d 740, that where the Legislature amends a criminal statute by reducing the punishment imposed, the amendment inures to the benefit of a defendant who violated the statute before the amendment took effect, provided the judgment of conviction was not yet final on that date. The court there viewed the core problem in such a case as “one of trying to ascertain the legislative intent.... Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional. It has not done so. We must, therefore, attempt to determine the legislative intent from other factors.” (Id. at p. 744.) The court then reasoned that a reduction in punishment betokened a legislative belief that the previous punishment was too harsh: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745, italics added.) In other words, having manifested the view that the prior punishment was excessive, the Legislature cannot be supposed to have meant to continue to inflict that punishment on persons still procedurally eligible for relief.
Here this rationale breaks down because it does not appear that the Legislature was motivated by a belief that the prior punishment was excessive; rather it was concerned with the costs of an overburdened prison system in the context of an ongoing budget crisis. The bill including the amendment recited that it was intended to “address[] the fiscal emergency declared by the Governor by proclamation issued on December 19, 2008, pursuant to subdivision (f) of Section 10 of Article IV of the California Constitution.” (Stats. 2009, 3d Ext. Sess., ch. 28, § 62 (Chapter 28); see Sen. Bill 18, 2009-2010 3d Ext. Sess., as introduced Jan. 5, 2009.) Many of the bill’s provisions had the effect of reducing the average time spent by convicted defendants in state prison, either by effectively shifting incarceration to local facilities or—in the case of the amendment at issue here—reducing their total time in confinement. Most of the bill was devoted to raising the monetary threshold at which various property-related offenses become felonies rather than misdemeanors. (Chapter 28, §§ 1-35, 51-57.) This would naturally tend to produce more misdemeanor and fewer felony convictions, resulting in shorter sentences and fewer commitments to state prison, though with the side effect of more incarceration in local jails. (See §§ 17, subd. (a) [defining felony as crime “punishable with death or by imprisonment in the state prison”]; 19 [if not otherwise specified, misdemeanor is “punishable by imprisonment in the county jail not exceeding six months”].) The bill also adopted the California Community Corrections Performance Incentives Act of 2009 (§§ 1228-1233.8), in the express hope of “reduc[ing] the number of new admissions to state prison, saving taxpayer dollars and allowing a portion of those state savings to be redirected to probation for investing in community corrections programs.” (Chapter 28, §§ 36, 58; § 1228, subd. (d)(4).) To prevent costly recommitments of parolees when not necessary, the bill limited the power of correctional officials to recommit certain low-risk parolees (id., § 48), and established a “Parole Reentry Accountability Program” to provide alternatives to re-imprisonment (id., § 49).
Most pertinent here, of course, are the bill’s numerous provisions affecting credits earned while under confinement, e.g., limiting the amount of credit that could be “denied or lost” based upon specified forms of misconduct (Chapter 28, § 37), and easing or increasing the credit allowed under various conditions (id., §§ 38, 39, 41, 50). All of these provisions would tend to shorten the time actually spent in confinement for a given offense. But given their overarching fiscal purpose, the inference of commutative intent which formed the foundation for the holding in Estrada seems weak at best. Certainly the Legislature cannot be supposed to have concluded that the punishment inflicted under the former regime was too severe in its own right. At most it concluded that the punishment could be relieved somewhat without producing unacceptable effects. What constituted “unacceptable” effects had to be considered in light of the alternative course of action, which was to continue to incur the public expenditures necessitated by the prior regime. Thus the real nature of the (inferred) legislative judgment was that the benefit of the fiscal relief occasioned by the measure outweighed whatever harms it might cause. To put it simply, the Legislature manifested a belief that the prior regime cost too much—not that its effects were too harsh.
The Legislature may also have been influenced by the epic overcrowding of California prisons, which has been the subject of successful constitutional challenges in federal court, culminating most recently in the United States Supreme Court’s affirmance of an order “requir[ing] the State to reduce overcrowding in its prisons” by, if necessary, “releas[ing] some number of prisoners before their full sentences have been served.” (Brown v. Plata (May 3, 2011) 563 U.S. ___ [131 S.Ct. 1910, 1922, 2011 U.S.Lexis 4012, *14, 15].) That case illustrates the kind of balancing in which the Legislature presumably engaged here. The lower court had found that a reduction in prison crowding, by means such as increasing conduct credits, could produce “public safety benefits” that would “substantially offset, and perhaps entirely eliminate” any adverse effects on public safety. (Id. at p. ___ [131 S.Ct. at p. 1943, 2011 U.S. Lexis 4012, 75].)
This view is borne out by several features of the amendment under scrutiny. For one, it did not refer to specific conduct, but instead applied to all persons convicted of crimes within whatever temporal window applied. Some of the provisions of the larger bill specified a temporal window, e.g., section 2933.3 was amended to grant new credits to prisoners serving as “inmate firefighter[s]” or undergoing training to do so, but declared that such credit would “only apply to inmates who are eligible after July 1, 2009.” (Chapter 28, § 41.) This credit obviously had a substantive policy justification: to encourage prisoners to train and serve as firefighters. But that objective could not be advanced by extending the credit to prisoners whose only service or training predated the adoption of the bill. Nonetheless the credit was made partially retroactive, manifestly for the purpose of shortening more sentences than would be shortened by a provision addressed to the substantive objective alone. In short, the Legislature had one eye on the substantive goal and the other—the dominant one—on the savings to be achieved.
Defendant quotes People v. Babylon (1985) 39 Cal.3d 719, 722, for a categorical rule that “ ‘[a]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal.’ ” But the court there only issued that statement as a “general principle.” (Ibid.) Moreover the court was concerned not with an amendment mitigating punishment, but with one amending a statute in such a way that the defendant’s conduct is no longer criminal. The defendants had been convicted of facilitating the piracy of cable television signals, but while their appeal was pending the statute was amended so as to no longer proscribe their conduct. This amendment triggered “ ‘ “the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State’s condemnation from conduct deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct.” ’ ” (Id. at p. 728, quoting People v. Rossi (1976) 18 Cal.3d 295, 304, quoting Bell v. Maryland (1964) 378 U.S. 226, 230.) (Italics added.) Two other cases cited by defendant are also concerned with the retroactivity of legislation decriminalizing the conduct for which the defendant was convicted. In People v. Wright (2006) 40 Cal.4th 81, 90, the court alluded to the retroactive application of the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5) and the Medical Marijuana Program (Health & Saf. Code, §§ 11362.7 et seq.), both of which decriminalized marijuana-related conduct under specified conditions. In People v. Rossi, supra, 18 Cal.3d 295, 299-300, the court gave retroactive effect to an amendment decriminalizing oral copulation between consenting adults. In doing so it rejected the respondent’s rather astonishing suggestion that Estrada should be followed only when the Legislature reduces punishment and not when it eliminates punishment altogether.
In both People v. Babylon, supra, 39 Cal.3d at page 727, footnote 10, and People v. Rossi, supra, 18 Cal.3d at page 301, the court stated that the rationale of Estrada applies “a fortiori” to decriminalization. The phrase “a fortiori” means “with greater reason or more convincing force, ” and is “used in drawing a conclusion that is inferred to be even more certain than another.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 21.) The reciprocal proposition is that the cited statement, though true in a specific instance or circumstance, may be less categorically true than the conclusion for which it is cited. Here both classes of statutes—those ameliorating punishment and those eliminating it altogether—may, without more, suggest an intent by the Legislature to withhold, or reduce, the state’s condemnation of formerly criminal conduct. But while this inference is a strong one in cases of decriminalization, it may be less strong in cases of amelioration, particularly if an alternative explanation for its action appears. Thus if the Legislature decides that specific conduct should no longer be punished as a crime, and no other indicia of intent appear, it seems a natural and obvious inference that the Legislature has made a normative or policy judgment that, in fairness and reason, equally justifies relief to those currently being threatened with punishment for that conduct—or already being punished, at least where relief will not offend principles of the finality of judgments. And the same may ordinarily be true, if less starkly so, when the Legislature reduces punishment. But if an alternative reason for the Legislature’s action appears, the basis for these ameliorative inference is weakened, if not destroyed. That appears to be the case here. The Legislature’s grant of additional credit under section 4019 appears to reflect a belief not that the punishment imposed under the prior regime was excessive, but that it was too expensive and could be ameliorated without engendering unacceptable adverse consequences.
Even in cases of decriminalization the inference may not always be sound. The Legislature might decide that while a particular species of conduct remains fully worthy of condemnation, it is less effectively addressed by criminalization than by some other method or mechanism. In that case statutory amendments decriminalizing the conduct and adopting a non-penal approach would not necessarily betoken a legislative finding that the conduct was any less reprehensible or its practitioners any less deserving of punishment. In such a case it might be open to prosecuting authorities to argue that the usual inference of commutative intent does not apply. Such an argument might be particularly strong if the Legislature has made no provision for bringing earlier cases within the newly adopted regime.
B. Section 59
Defendant’s second ground for claiming retroactive effect is that another provision of Chapter 28 “evinces the Legislature’s intent that the amended statute be retroactive.” He cites Section 59 of the act, which addresses the effect of delays by correctional authorities in “implement[ing] the changes made by this act regarding time credits.” (Chapter 28, § 59.) The provision goes on to state that “[a]n inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act, ” but that “to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable.” (Ibid.) This language may well presuppose that some credit provisions would be applied to persons who were already in prison, but as already noted, one other section of the bill was explicitly made partly retroactive. (Chapter 28, § 41, amending § 2933.3.) Moreover other sections provided for additional credits to be earned in prison, as distinct from those already earned, as under section 4019, in presentence confinement. (See Chapter 28, § 38 [amending § 2933 to eliminate “worktime” requirement for prison custody credits]; id., § 39 [adding § 2933.05 to allow up to six weeks per year in “program credit reductions” from term of confinement based upon successful completion of “specific program performance objectives for approved rehabilitative programming”].) These provisions could be applied to existing inmates without raising any question of retroactivity; they did not involve determinations typically made at sentencing, as under section 4019, but administrative determinations made during the course of an inmate’s imprisonment. The Legislature’s adoption of section 59 is fully explained by the presence of these other provisions; it provides at best weak support for an inference that the amendment to section 4019 was intended to operate retroactively.
C. Equal Protection
Finally, defendant contends that “equal protection principles require the statute be applied retroactively.” Citing In re Kapperman (1974) 11 Cal.3d 542, he contends that “[t]o discriminate against those whose convictions are not yet final on appeal in the provision of enhanced custody credits violates these principles.” There is “no rational basis, ” he asserts, to grant him fewer credits based merely on the date of his sentencing. However a rational basis for this distinction is readily apparent: the award of credits under section 4019 is fundamentally intended to motivate defendants to maintain good behavior while confined in county jail awaiting sentencing. An increase in the rate of credits will presumably have some tendency to increase the motivational effect. It can have no such effect on defendants who have already been sentenced on its effective date.
D. Non-Citable Authority
As defendant acknowledges, the Courts of Appeal have disagreed over the retroactivity of the January 2010 amendments to section 4019. This court has previously held the statute not retroactive, but the Supreme Court granted review in that decision, rendering it uncitable as authority. (People v. Hopkins, review granted July 28, 2010, S183724; see Cal. Rules of Court, rules 8.1115, 8.1105(e)(1).) The high court deferred further action pending its review of a case from the Third District which had reached the opposite conclusion. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) At least 12 published decisions have addressed the issue, of which 8 have held the amendment retroactive and 4 have held it prospective-only. The Supreme Court has granted review, however, in all of these cases.
Applying the amendment retroactively are People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182183; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183522; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354; People v. Delgado (2010) 184 Cal.App.4th 271, (B213271, Apr. 29, 2010), rehg. granted May 26, 2010, ; People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676;
E. Conclusion
Pending further guidance from the Supreme Court, we again conclude that the January 2010 amendments to section 4019 do not support the inference on which the rule of Estrada depends. Accordingly, they do not apply retroactively to entitle defendant to additional credits.
We note a subtle but critical difference between the question presented here and the one we addressed in People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2001, S192784, where we said that a provision of the 2010 amendments disqualifying certain defendants from the increase in credits operated to increase their punishment so as to trigger a requirement of pleading and proof. (See also People v. Koontz (B224697/B224701), 2011 Cal. LEXIS 5361 review granted May 18, 2011, S192116.) The question there was the effect of a disqualifying fact, i.e., whether it operated to increase the defendant’s punishment in comparison to what he would have suffered in its absence. The present case presents a similar-sounding inquiry, i.e., whether a statutory amendment increased (or reduced) the defendant’s punishment—but that is fundamentally a temporal question. Here, the statute is inspected not for its disparate impact on different classes of defendants to whom it clearly applies, as in Lara, but for the differing effects of different versions of the statute, as a step to determining whether it applies retroactively. As noted above, the dispositive concern here is legislative intent, whether inferred or imputed. In cases like Lara, legislative intent is not at issue; rather the question is whether application of the statute triggers the defendant’s fundamental right to pleading and proof of all facts relied upon to inflict punishment upon him.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
At the same time, a presumption in favor of retroactively applying ameliorative amendments may have the salutary effect of encouraging the Legislature to directly state the intended effect of arguably commutative penal statutes on cases predating their enactment. Many would find it tragic, and unjust, for a class of offenders whose more recent fellows had been legislatively excused from criminal culpability to remain under durance solely because the Legislature forgot about them.
Denying retroactive application are People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Hopkins, supra, 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957.
The Supreme Court has also granted review in a number of unpublished decisions. In some unpublished decisions, where it appears that the defendant can suffer no immediate prejudice because he has only recently commenced serving a prison term, the court has denied review “without prejudice to any relief to which defendant might be entitled” after Brown is decided. (E.g., People v. Spencer (H035086, Mar. 8, 2011), review den. May 11, 2011, S191889; People v. Myrie (B218790, Jan. 18, 2011), review den. May 11, 2011, S190619.).