Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA085664 Mike Camacho, Judge.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Fortino Villalobos was convicted in count 1 of receiving stolen property in violation of Penal Code section 496, subdivision (a) (all statutory references are to this code) and in count 2 of being a felon in possession of a firearm in violation of section 12021, subdivision (a)(1). He claims his violation of section 12021 was based on a mistake of fact and thus it was error for the trial court to deny his motion for acquittal or for new trial. He also seeks correction of his presentence credits based on the retroactivity of section 4019, and a modification of his sentence for the receiving count, based on an amendment to section 496. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Appellant owned a Nextel store in La Puente. Next door was Caliber Designs, a drafting and construction business. In January 2008, a computer tower was taken from Caliber Designs. Mail also reportedly was stolen from the company. Martha Carrillo, a United States Postal Inspector, investigated the theft, then obtained a search warrant for appellant’s home.
The warrant was executed on March 7, 2008. Inspector Carrillo handed a copy of the search warrant to appellant and told him the inspectors were looking for a specific letter. She asked appellant if there were any sharp objects, guns, or any type of paraphernalia which could injure the inspectors. Appellant told Inspector Carrillo there were a couple of pellet guns throughout the house, and a rifle and computer tower under his bed. He stated the rifle had belonged to his father, and that it was inoperable. The letter was found in the dining room.
The parties stipulated at trial that a United States Postal Inspector, qualified as an expert, examined the rifle and found it operable.
Appellant was charged in count 1 with receiving stolen property, and in count 2 with being a felon in possession of a firearm. As to count 2, appellant presented a mistake of fact defense, based on his belief that all six of his prior felony convictions had been reduced to misdemeanors, when only two actually had been reduced. He was convicted as charged, and the court denied his motions for dismissal or for a new trial. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant’s prior felony for purposes of the charge of felon in possession arose from his 1994 conviction of six felony counts in Orange County Superior Court, case No. 94WF0840. That case was transferred to Los Angeles County for probation purposes, and renumbered with case No. KA038648. Appellant completed probation, and in 2002, he filed a petition to have the offenses reduced to misdemeanors pursuant to section 17, subdivision (b)(3). The petition listed violations of former section 487.1 and section 470 as the offenses to be reduced; it did not specify that there were five counts of violation of section 470 that he sought to have reduced to misdemeanors. The record does not contain the court’s ruling on the petition, but the parties agree that the court granted the petition to reduce the felonies to misdemeanors only as to counts 1 and 2, not as to counts 3 through 6.
At trial in this case, appellant argued that the failure to reduce the remaining four counts resulted from clerical error, and that he was unaware that they had not been reduced. According to appellant, when his petition to reduce the felony convictions to misdemeanors was heard, the court did not inform him that it was reducing only the first two counts. The court denied appellant’s section 995 motion to dismiss count 2.
Over the People’s objection, the court instructed on mistake of fact as a defense: “The defendant is not guilty of unlawful possession of a firearm by a person previously convicted of a felony if he did not have the intent required to commit the crime because he actually and reasonably did not know a fact or actually, reasonably and mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as he actually and reasonably believed them to be, he did not commit unlawful possession of a firearm by a person previously convicted of a felony. [¶] If you find that the defendant believed that his prior felony convictions were reduced to misdemeanors and if you find that belief was actual and reasonable, he did not have the intent required for unlawful possession of a firearm by a person previously convicted of a felony. [¶] If you have a reasonable doubt about whether the defendant had the intent required for unlawful possession of a firearm, you must find him not guilty of that crime.” In closing statement, defense counsel argued in detail the basis for appellant’s belief that the felony convictions had all been reduced to misdemeanors.
The jury convicted appellant of unlawful possession of a firearm. He then moved for acquittal or for new trial. Appellant claims the court erred in denying these motions. We disagree.
The case on which appellant relies is People v. Bray (1975) 52 Cal.App.3d 494. In that case, the defendant pled guilty in Kansas to being an accessory after the fact. He was placed on summary probation, which he completed successfully. Bray then moved to California. When he sought to register to vote, he asked the deputy of the registrar of voters whether he would be allowed to vote in light of his problems in Kansas. The deputy could not answer the question and recommended that Bray state on the registration form that he had been convicted of a felony, and then complete a supplementary form indicating his uncertainty about whether he had actually committed a felony. Bray did so and was allowed to vote. When he applied for a job as a security guard, he stated he had been arrested or charged with a crime, but had not been convicted of a felony. He explained the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard. Bray was later found in possession of two guns, and was charged and convicted of violation of section 12021. (Id. at pp. 496-497.)
On appeal he argued that conviction under section 12021 requires proof that he knew he was a felon, and that the court erred in refusing to instruct on mistake of fact as a defense. (Id. at p. 497.) The court agreed that under these unusual circumstances, the jury should have been instructed on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (Id. at p. 499.) But the court cautioned that its decision should not be interpreted to mean such instructions are required “every time a defendant claims he did not know he was a felon.... It is only in very unusual circumstances such as these that the giving of these instructions is necessary.” (Ibid.)
In People v. Snyder (1982) 32 Cal.3d 590, 595, the defendant was charged with a violation of section 12021 based on a conviction for sale of marijuana. At trial the court refused to admit her proffered evidence that she mistakenly believed that her prior conviction was a misdemeanor and that she was not a felon. The Supreme Court distinguished these facts from the “unusual circumstances” in Bray:“In the present case, unlike Bray, defendant made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status.” For this reason, the court concluded that “the trial court properly excluded evidence of defendant’s asserted mistake regarding her status as a convicted felon.” (Id. at pp. 594, 595.)
The facts in the present case are somewhat different from those in Bray and Snyder. Appellant sought to have his felonies reduced to misdemeanors, and claims he did not realize only two of the six counts were reduced. Without the actual order on the petition, it is difficult to evaluate whether his claim was justified. But the trial court considered the rap sheet produced by the prosecution, and recognized there was some ambiguity with respect to which of appellant’s convictions had been reduced to misdemeanors. We need not decide whether these circumstances were sufficiently “unusual” as to require instruction on mistake of fact, as in Bray, since the court gave the requested instruction and permitted defense counsel to argue the defense. The jury rejected that defense.
Appellant’s claim is that the court should have granted his motion for acquittal under section 1118.1, or his motion for a new trial because there was evidence of his mistake. He relies on the court’s statement that it seemed to serve no purpose that appellant would seek to expunge only two of the six felony counts, “[s]o the inference being that what he thought he was receiving for one or two listed pertained to all of them. That’s understandable. That is a reasonable inference. And obviously it was at some point granted by the court....” But the court was at that point explaining the basis for allowing appellant to present evidence of mistake of fact and the justification for the mistake of fact instruction.
In ruling on a motion for acquittal under section 1118.1, “the trial court must consider whether from the evidence presented, including all reasonable inferences to be drawn therefrom, there is any substantial evidence to support a finding of each element of the offense charged.” (People v. Dalerio (2006) 144 Cal.App.4th 775, 780.) “We employ the same test on appeal: We review the whole record in the light most favorable to the judgment below to determine whether there is evidence which is reasonable, credible and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.)
In ruling on a motion for new trial on the ground the verdict is contrary to the evidence under section 1181, subdivision (6), the trial court must make an independent determination as to the probative value of the evidence. (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.) The trial court has broad discretion in ruling on a motion for new trial, and on appeal there is a strong presumption that it properly exercised that discretion. (People v. Seaton (2001) 26 Cal.4th 598, 693.) “The trial court’s factual findings, express or implied, will be upheld if supported by any substantial evidence.” (People v. Dickens, supra, 130 Cal.App.4th at p. 1252.)
Applying these deferential standards, we find the evidence supports the trial court’s denial of the motions for acquittal and for new trial. Appellant argued that he mistakenly believed all six of his convictions had been reduced from felonies to misdemeanors, but what he presented to support that claim was his petition to have the crimes reduced. He did not produce evidence of the court’s ruling on that petition. The absence of the most probative evidence supports the inference that there was no mistake of fact with respect to the reduction of the remaining four felonies. The existence of an ambiguity in appellant’s rap sheet did not fill that evidentiary gap, since there was no evidence that appellant had seen that document prior to the charged offense. This evidence, viewed in the light most favorable to the trial court’s rulings, is sufficient to support the denial of both motions.
II
In a supplemental brief, appellant claims his presentence custody credits must be increased pursuant to the 2009 amendment to section 4019. Section 4019 provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor (subd. (b)) and for complying with the penal institution’s rules and regulations (subd. (c)). In 2009, as part of Senate Bill No. 3X 18, the Legislature amended subdivisions (b) and (c) of section 4019 to provide for the accrual of presentence credit at twice the previous rate, with certain exceptions. (See § 4019, subds. (b) & (c), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Appellant claims the amendment should be applied retroactively to his case, because it was not yet final on January 25, 2010, the effective date of the amendment.
Courts are divided on the retroactive application of the amendment, and the California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990, review granted September 22, 2010, S184957. We conclude the amendment does not apply retroactively and that appellant is not entitled to additional custody credits based on the amendment.
Section 3 of the Penal Code provides that no part of that code is retroactive, “unless expressly so declared.” A new statute is thus presumed to operate prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) Legislative intent is the paramount consideration in ascertaining whether a statute should be applied retroactively. (People v. Nasalga (1996) 12 Cal.4th 784, 792.)
Where, as here, there is no express statement of legislative intent, we look to other factors to determine that intent. (In re Estrada (1965) 63 Cal.2d 740, 744.) Elsewhere in Senate Bill No. 3X 18, the Legislature expressly provided for limited retroactive application of enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009. (See § 2933.3, as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 41.) The Legislature thus demonstrated that it could, if it wished, provide for the retroactive application of the amendment to section 4019. Its failure to do so gives rise to the inference that it did not so intend. Finding no clear and compelling implication that the Legislature intended the amendment to apply retroactively, we conclude that the amendment applies prospectively.
III
Appellant was sentenced to the upper term of three years in state prison for violation of section 496. He claims he is entitled to a reduction in his sentence based on an amendment to section 496, subdivision (a), effective January 1, 2010. We find no change in the applicable sentence.
The amendment (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 23) substituted “nine hundred fifty dollars ($950)” for “four hundred dollars ($400)” in three places. These changes do not affect appellant’s sentence.
Section 496, subdivision (a) provides, as it did at the time appellant was sentenced: “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.” In the court’s discretion, the crime was thus punishable as a felony by imprisonment in the state prison or as a misdemeanor by imprisonment in the county jail. (§ 17, subd. (b).) The court exercised this discretion by sentencing appellant to three years, the upper term for a felony. (§ 18.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.