Filed 4/22/13 P. v. Alston CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055052
v. (Super.Ct.No. FWV1100368)
DENNIS JOHN ALSTON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed with directions.
Rex Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton, and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
This case arises from defendant Dennis John Alston ordering items over the
Internet and paying for them with forged money orders. Defendant appeals from
judgment entered following jury convictions for forgery (Pen. Code, § 470, subd. (d);1
counts 1-4) and possession or display of a driver‟s license or identification card with
intent to commit forgery (§ 470b; counts 6-8). The jury also found true one prison prior
(§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The
jury found defendant not guilty of count 5 for forgery. The trial court sentenced
defendant to six years on count 1, and to consecutive terms of one year four months for
each of the other counts, for a total prison term of 15 years.
Defendant contends his convictions for counts 6 through 8 must be reversed
because there was insufficient evidence that he intended to commit forgery. As to counts
6 and 7, defendant argues sentencing should be stayed because the crimes were not
incidental to the offenses alleged in counts 1 through 4, and were not committed with a
single intent and objective. Defendant also argues there was insufficient evidence to
support the prior strike allegation and his presentence good conduct credits must be
recalculated under the recently amended version of section 4019. Defendant also
requests this court to order the trial court to correct the abstract of judgment to reflect
accurately only one prison prior.
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 We conclude there was no error, other than that the sentencing minute order and
abstract of judgment incorrectly state defendant had more than one prison prior. We
therefore affirm the judgment, but instruct the trial court to correct the November 8,
2011, minute order and abstract of judgment to reflect that defendant had only one prison
prior.
II
FACTS
Counts 1 and 6
On February 27, 2010, defendant rented a mailbox at Postal Annex, located at
7426 Cherry Avenue in Fontana. In order to rent the mailbox, defendant filled out two
applications using the fictitious name of Daryl Wilson, and presented a California
identification (ID) card and a Department of Veteran Affairs Medical Center employee
ID card (VA ID card) (count 6). Both forms of identification were in the name of Daryl
Wilson, with defendant‟s photograph on the ID cards.
In March 2010, Brandywine Jewelry Supply (Brandywine) received an $841.50
mail order from Daryl Wilson, for silver wire, silver beads, and silver charms. A
Western Union money order (No. 14-037480295) accompanied the order (count 1). The
$900 money order was signed in the name of Daryl Wilson. Wilson requested overnight
delivery of the silver to 7426 Cherry Avenue, in Fontana, California. Because the money
order was counterfeit, the money order was returned to the bank unpaid. A $9 Western
Union money order, bearing the same number (No. 14-037480295) as the $900 money
order, was issued in February 2010. Lisa Allen, the owner of Brandywine, reported the
3 incident to the Fontana Police Department. A detective retrieved the package from Postal
Annex before defendant picked it up, and returned the package to Brandywine.
In September 2010, Brandywine received a mail order for sterling wire from
Finest Degree Jewelry in Ontario California. The order included a $500 Chase Bank
(Chase) money order (No. 1983491332), signed by Dwayne Wilson. Because the
handwriting on the money order was similar to the writing on defendant‟s money order
rejected in March 2010, Allen did not deposit the money order or ship the requested
product. Chase informed her that the money order had already been cashed. Allen
notified the police of the incident.
Counts 2, 3, 4, and 7
On June 4, 2010, defendant again used the fictitious name of Daryl Wilson, doing
business as Finest Design, to rent a mailbox at Mail Plus and More, located at 1000 West
Fourth Street in Ontario. Defendant filled out an application and mailbox rental
agreement in the name of Daryl Wilson, and presented the same two forms of
identification used for the Postal Annex mailbox rental (count 7).
In September 2010, Unique Wire Weaving received a mail order from Dwayne
Wilson of Design Finest Jewelers, for silver mesh wire. A $850 Chase money order (No.
1983491332), signed by Dwayne Wilson, accompanied the order (count 2). Wilson
requested overnight delivery to 1000 West Fourth Street, Ontario, California. A week or
two after Unique Wire Weaving shipped the order, Unique Wire Weaving learned the
money order was counterfeit. The company manager, Howard Gabriel, notified
4 defendant by email that the money order had been rejected by the bank, but received no
response from defendant.
In October 2010, Streakwave Wireless received a mail order from Dwayne Wilson
for telephone equipment, along with a $700 Chase money order (No. 1983491334) (count
3). Wilson requested overnight delivery to 1000 West Fourth Street, Ontario, California.
About a week after the order was shipped to defendant, Streakwave Wireless learned that
the money order was counterfeit.
Also in October 2010, Paul H. Gesswein and Company (Gesswein) received a
mail order from Dwayne Wilson of Finest Degree Jewelers for fourteen 18-carat gold
lobster claw clasps, along with a $700 Chase money order (No. 1983491334) from
Dwayne Wilson (count 4). Wilson requested overnight delivery to 1000 West Fourth
Street, Ontario, California. Within a few days of shipping the order to defendant,
Gesswein discovered the money order was counterfeit. On April 26, 2010, and October
26, 2010, defendant sold gold scrap to Grand Jewelers. The owners of Grand Jewelers
recalled that the items purchased from defendant in October probably included 18-carat
gold lobster claw clasps. Defendant provided a California driver‟s license (CDL) bearing
his actual name and an address on Adams Street in San Bernardino, but also provided his
current address in Ontario at the Motel 6.
Counts 5 and 8
On December 27, 2010, defendant rented a mailbox at Fast Mailbox Plus, located
at 10330 Central Avenue in Montclair. Defendant filled out a mailbox rental application
and signed a mailbox service agreement using the fictitious name of Jerry Green, doing
5 business as Calvin Johnson. Defendant verified his identity as Jerry Green, with two
forms of identification, a CDL and a VA ID card (count 8). The CDL and VA ID card
were in the name of Jerry Green but showed defendant‟s photo.
In December 2010, Pookies Antique Treasures (Pookies) received a mail order for
a silver pitcher, along with a $800 Chase money order (No. 1983491333) from Cal
Johnson (count 5). Johnson requested the pitcher be shipped by overnight delivery to
defendant‟s mailbox at his Fast Mailbox Plus address. After shipping the order, Pookies
learned the money order was counterfeit.
Investigation
On June 9, 2010, Ontario Police Department Corporal Michael Nevin contacted
defendant at Motel 6 in Ontario, regarding an unrelated fraud investigation. Defendant
had been living at the Motel 6 under his own name since April 8, 2010. During a search
of defendant‟s room, Nevin found the following items:
1. A California ID card and VA ID card in the name of Daryl Wilson, with
defendant‟s photograph on the cards;
2. Pieces of paper with Veterans Affairs Medical Center information used to create
the VA ID card;
3. A Chase money order, dated April 9, 2010, for $100;
4. Versions of the same money order with different dollar amounts, money order
numbers, and dates;
5. Money orders that were cut and pasted together or had Wite-Out on them;
6. Versacheck paper used for checks;
6 7. A list of products used to wash checks;
8. Pieces of paper indicating defendant had practiced making counterfeit Chase
money orders;
9. Pieces of paper regarding a Design Finest Yahoo email account;
10. Printouts and orders from website companies selling crafts, jewelry and precious
metals.
Defendant told Nevin that he was unemployed and had made the money orders
found in his motel room. Nevin later learned that the identification number on the
California ID card found in defendant‟s room, belonged to Elena Medovaya, not to
defendant or his alias, Daryl Wilson. Defendant‟s actual driver‟s license also showed a
different name, number and address than the name and address on the California ID card
found in his room with defendant‟s photograph on it.
On December 28, 2010, Ontario Police Department Officer Alicia Cabrera
contacted defendant in the lobby of the same Motel 6 where defendant had previously
been residing. Defendant had returned to the motel after moving out in June 2010, and
had been living there under his own name since September 7, 2010. Cabrera encountered
defendant sitting at a computer in the motel lobby, looking at an antique metals website.
Cabrera found, on a desk next to defendant, a piece of paper listing his address at Fast
Mailbox Plus as “your new address.” Cabrera also found on the desk printouts
confirming the Pookies order and orders he had placed with other vendors. Cabrera
found in defendant‟s motel room the following items:
1. Tools used to make counterfeit money orders and ID cards;
7 2. Papers and notes for making ID cards for Calvin Johnson and Jerry Green;
3. Printouts for mail-orders;
4. A printout on lobster claw clasps;
5. Keys for defendant‟s Fast Mailbox Plus mail box and for entering the Fast
Mailbox Plus store;
6. A piece of paper with eight social security numbers on it.
III
SUFFICIENCY OF EVIDENCE OF INTENT TO COMMIT FORGERY
Defendant contends there was insufficient evidence that defendant possessed false
VA ID cards and California ID cards, with intent to commit forgery in violation of
section 470b.
We apply the substantial evidence standard of review when considering whether
there was sufficient evidence to support defendant‟s convictions. In doing so, this court
must “review the whole record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People
v. Johnson (1980) 26 Cal.3d 557, 578.) “Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless
the testimony is physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149,
1181; see also People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.)
8 A conviction for violating section 470b requires evidence of intent to commit
forgery. Section 470b provides: “Every person who displays or causes or permits to be
displayed or has in his or her possession any driver‟s license or identification card of the
type enumerated in Section 470a with the intent that the driver‟s license or identification
card be used to facilitate the commission of any forgery, is punishable by imprisonment
in a county jail for not more than one year, or by imprisonment pursuant to subdivision
(h) of Section 1170.” Section 470a includes “any driver‟s license or identification card
issued by a governmental agency,” such as a California ID card or VA ID card.
The offense of forgery (§ 470, subd. (a)) has three elements, namely, “a writing or
other subject of forgery, the false making of the writing, and [an] intent to defraud.”
(People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741.) “An intent to defraud is an
intent to deceive another person for the purpose of gaining a material advantage over that
person or to induce that person to part with property or alter that person‟s position by
some false statement or false representation of fact, wrongful concealment or suppression
of the truth or by any artifice or act designed to deceive.” (People v. Pugh (2002) 104
Cal.App.4th 66, 72.)
In the instant case, defendant was convicted of counts 6 through 8 for possessing
false ID cards with intent to commit forgery in violation of section 470b. Defendant was
charged with committing count 6 on February 27, 2010, by presenting a California ID
card and VA ID card for the purpose of renting a mailbox at Postal Annex, using the
alias, Daryl Wilson. Defendant allegedly committed count 7 on June 4, 2010, by using a
California ID card and VA ID card to facilitate renting a mailbox at Mail Plus and More,
9 using the alias, Daryl Wilson. Defendant was charged with committing count 8 on
December 27, 2010, by presenting a California ID card and VA ID card for the purpose
of renting a mailbox at Fast Mailbox Plus, using the alias, Jerry Green, doing business as
Calvin Johnson. In each instance, defendant rented mailboxes using ID cards with his
photograph but with aliases. Defendant used the mailboxes to facilitate theft from
various companies by placing orders of merchandise, with the merchandise delivered to
defendant‟s rented mailboxes. The trier of fact could reasonably find that defendant
rented the mailboxes with fake ID cards so as to avoid being identified as the perpetrator
of defendant‟s acts of mail order fraud.
Defendant argues there is insufficient evidence that defendant intended to use the
false ID cards to facilitate paying for the mail orders with counterfeit money orders.
Defendant notes that the fake ID cards were allegedly presented on the dates he filled out
and signed the three mailbox rental applications and agreements. Defendant argues that
there is no evidence that at that time, he intended to use the fake ID cards to facilitate
creating counterfeit money orders sent to the mail order businesses. He acknowledges
that the fake ID cards were used to rent mailboxes intended to be used to facilitate the
theft of merchandise from Internet mail order businesses but asserts this was not
sufficient for a finding of violating section 470b. He claims there was no evidence that
renting the mailboxes under the false names facilitated the mail order thefts. In addition,
defendant argues section 470b is not violated by possessing or displaying a fake ID card
with intent to facilitate theft. There must be intent to use the fake ID card to facilitate
10 forgery, rather than merely theft. The ID cards were not used to cash forged checks or
for use during a purchase with a stolen credit card.
We conclude there was more than sufficient evidence defendant had the intent to
use fake ID cards to facilitate the commission of a forgery. The prosecutor argued with
regard to intent to commit a forgery, that defendant‟s “plan is open these PO Boxes under
a fake name so that he can later commit forgery, counterfeiting money orders, and having
the merchandise sent to that PO Box and making it difficult to track him down as a
perpetrator because he‟s opening it up under a fake name.” It is undisputed defendant
used falsified ID cards to rent mailboxes. There was also substantial evidence defendant
presented the fake ID cards with intent to defraud the mail order company owners, whom
defendant paid with counterfeit money orders and told to deliver merchandise to the
rented mailboxes. Defendant intended to deceive the mail order business owners and
mailbox companies as to his actual identity in the event the business owners attempted to
locate him and hold him accountable for the thefts.
Defendant argues there nevertheless was insufficient evidence of violating section
470b (counts 6, 7, and 8) because there was no evidence that, when defendant presented
the fake ID cards to the mailbox rental companies, he intended to commit a forgery.
Defendant claims the evidence only shows that he intended to rent mailboxes under
fictitious names. But the jury could reasonably find that, when he rented the mailboxes,
he intended to do this as part of his scheme to use forged money orders to purchase mail
order merchandise, which would be delivered to defendant‟s rented mailboxes. Using the
fictitious mailbox names, verified by the fake ID cards, further facilitated the forgery
11 scheme because the mail order vendors were more likely to view defendant‟s mail orders
as legitimate if the name on the counterfeit money orders matched the name used for the
mailbox rentals. There was thus substantial evidence showing that defendant‟s use of the
fake ID cards was intended to facilitate a scheme of committing forgery and theft of mail
order merchandise, without defendant being detected as the perpetrator of the forgery
offenses.
IV
STAYING SENTENCES ON COUNTS 6 AND 7
Defendant contends that, if this court concludes there was sufficient evidence
establishing that he possessed false ID cards with intent to use them to facilitate the
forgeries alleged in counts 1 through 4, then defendant‟s sentences on counts 6 and 7
should be stayed under section 654.
Whether multiple convictions should be stayed pursuant to section 654 is
primarily a factual question which will not be disturbed on appeal if supported by
substantial evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) “[W]e
consider the evidence in the light most favorable to respondent and presume the existence
of every fact the trier could reasonably deduce from the evidence.” (Ibid.) Section 654,
subdivision (a), states as follows: “An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” The purpose of section 654 is to ensure
12 punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203,
1211.)
Section 654 “applies not only where there was but one act in the ordinary sense,
but also where there was a course of conduct which violated more than one statute but
nevertheless constituted an indivisible transaction. [Citation.] Whether a course of
conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If
all the offenses were incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545,
551.) “On the other hand, if the evidence discloses that a defendant entertained multiple
criminal objectives which were independent of and not merely incidental to each other,
he may be punished for the independent violations committed in pursuit of each objective
even though the violations were parts of an otherwise indivisible course of conduct.”
(Ibid.) Thus, when a course of conduct is at issue, the focus of inquiry is whether the
defendant entertained single or multiple criminal objectives. (People v. Macias (1982)
137 Cal.App.3d 465, 470.)
In considering whether to apply section 654, the court in People v. Curtin (1994)
22 Cal.App.4th 528, 532, found it was appropriate to stay under section 654 the
defendant‟s conviction for forgery of a check, because forgery and burglary were “part of
the same indivisible transaction” and were “committed for a single criminal objective, to
cash the check.” (Ibid.) The facts of this case, however, are distinguishable from those
in Curtin. Here, defendant planned and carried out a relatively sophisticated scheme in
which he rented mailboxes using fabricated falsified ID cards with aliases in February
13 2010 (count 6) and June 2010 (count 7). Later, in March 2010, September 2010, and
October 2010, defendant used forged money orders to purchase merchandise from
various online vendors, with the merchandise delivered to defendant‟s rented mailboxes.
Defendant‟s use of the false ID‟s (counts 6 and 7) occurred separate from the later acts of
forgery (counts 1 through 4), in which defendant purchased mail order merchandise using
forged money orders. The trial court could have reasonably found that defendant‟s use of
the false ID‟s to rent mailboxes was not “part of the same indivisible transaction” as the
subsequent mail order thefts, or necessarily “committed for a single criminal objective.”
Even though it is apparent defendant‟s overall objective was to obtain mail-order
merchandise paid for with forged money orders, he had separate objectives when he used
false ID cards to rent mailboxes on different dates and at different locations. “It seems
clear that a course of conduct divisible in time, although directed to one objective, may
give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d
625, 639, fn. 11.) Accordingly, we conclude it was appropriate for the trial court to
impose separate sentences for each of the forgery convictions (counts 1-4), as well as
separate sentences for counts 6 and 7 for using false ID cards for the purpose of renting
mailboxes, rather than staying execution of the sentences on counts 6 and 7 under section
654.
V
STAYING SENTENCING ONLY ON COUNT 7
Citing People v. Spirlin (2000) 81 Cal.App.4th 119 (Spirlin), defendant contends
his sentence on count 7 must be stayed under section 654 because counts 6 and 7 (using
14 false ID cards to rent mailboxes) involved indivisible acts or transactions with the same
objectives of renting a mailbox for the purpose of purchasing merchandise using
counterfeit money orders.
In count 6, defendant was convicted of presenting to the mailbox rental company,
Postal Annex, a false California ID card and VA ID card on February 27, 2010. The ID
cards were in the name of Daryl Wilson. In count 7, defendant was convicted of
presenting to the mailbox rental company, Mail Plus and More, on June 4, 2010, the same
false California ID card and VA ID card used on February 27, 2010. Defendant argues
there was no evidence that he did not remain in constructive possession of the ID cards
throughout the entire time he entered into both mailbox rental transactions (from June
through June 2010), and therefore he could be sentenced only once for possessing the
false ID cards.
We conclude the evidence was sufficient to support findings that counts 6 and 7
involved divisible acts or transactions with separate objectives, and therefore the trial
court appropriately sentenced defendant separately for each count. Counts 6 and 7
involve two completely separate incidents, occurring over four months apart, at different
mailbox companies. Therefore, even though defendant used the same ID cards to rent
both mailboxes in furtherance of his scheme of purchasing mail-order merchandise with
counterfeit money orders, defendant committed separate acts of renting two different
mailboxes from different companies on separate occasions. Therefore counts 6 and 7
could reasonably be found to involve independent violations subject to imposition of
separate sentencing.
15 Defendant‟s reliance on Spirlin, supra, 81 Cal.App.4th 119 is misplaced. The
defendant in Spirlin was convicted of two robberies while personally armed, and three
counts of being a felon in possession of a handgun. The three handgun possession counts
were derived from defendant‟s possession of the same gun during two robberies and
when he was arrested. Defendant was sentenced separately for each of the three gun
possession counts. The court in Spirlin held that sentencing on two of the counts must be
stayed under section 654, because defendant‟s possession of the handgun was a single act
with a single objective, and defendant had continuous, constructive possession of the gun
from a couple of months before the robberies until the defendant‟s arrest, when the gun
was found in his apartment.
Spirlin is distinguishable because, unlike counts 6 and 7, the gun possession
offense (§ 12021) in Spirlin did not require any specific criminal intent. Also a section
12021 gun possession crime may be committed by either actual or constructive
possession as long as possession is intentional. (Spirlin, supra, 81 Cal.App.4th at p. 130.)
In Spirlin the court concluded there was sufficient evidence of constructive possession to
establish defendant was in continuous possession of the gun. Therefore the defendant‟s
intent to possess the gun did not change each time he committed a robbery or when he
was arrested. (Id. at p. 131.) The court thus held defendant‟s possession of the gun was a
single act with a single objective and the trial court to stay imposition of sentence on two
of the gun possession counts.
Here, possession of the false ID cards was not all that was required for defendant‟s
count 6 and 7 convictions. Unlike in Spirlin, counts 6 and 7 are specific intent crimes,
16 which require specific intent to facilitate a forgery and defraud another person. Although
there was evidence defendant used the same false ID cards in counts 6 and 7, there was
also evidence that he rented different mailboxes in counts 6 and 7, at different locations,
from different companies, on different dates, and each mailbox was used for different,
separate transactions, involving different clients. This evidence established that counts 6
and 7 involved divisible acts and transactions with separate objectives, and therefore the
trial court was not required to stay sentencing on count 7 under section 654.
VI
PRIOR STRIKE ALLEGATION
Defendant contends there was insufficient evidence to support the jury‟s true
finding that he had a prior strike conviction for robbery. Defendant argues that the
prosecution did not submit any copies of Los Angeles Superior Court records of the prior
conviction.
Normally, proving the fact and nature of a prior conviction is done by introducing
“certified documents from the record of the prior court proceeding and commitment to
prison, including the abstract of judgment describing the prior offense.” (People v.
Delgado (2008) 43 Cal.4th 1059, 1066.) “„[The] trier of fact is entitled to draw
reasonable inferences from certified records offered to prove a defendant suffered a prior
conviction. . . .‟ [Citations.] „[O]fficial government records clearly describing a prior
conviction presumptively establish that the conviction in fact occurred, assuming those
records meet the threshold standards of admissibility. (See Evid. Code, § 664 [“It is
presumed that official duty has been regularly performed”].) Some evidence must rebut
17 this presumption before the authenticity, accuracy, or sufficiency of the prior conviction
records can be called into question.‟ [Citation.]” (Ibid.) “[I]f the prosecutor presents, by
such records, prima facie evidence of a prior conviction that satisfies the elements of the
recidivist enhancement at issue, and if there is no contrary evidence, the fact finder,
utilizing the official duty presumption, may determine that a qualifying conviction
occurred. [Citations.]” (Ibid.)
“On review, we examine the record in the light most favorable to the judgment to
ascertain whether it is supported by substantial evidence. In other words, we determine
whether a rational trier of fact could have found that the prosecution sustained its burden
of proving the elements of the sentence enhancement beyond a reasonable doubt.”
(People v. Delgado, supra, 43 Cal.4th at p. 1067.)
The jury in the instant case found true the allegation that defendant was convicted
of robbery on August 6, 1987, in case No. A098955, in Los Angeles County. The People
introduced exhibit 79 to prove the prior strike allegation. Exhibit 79 included the
preliminary hearing transcript and documents prepared by a probation officer, including a
probation officer report stating defendant was convicted of robbery, for which he was
granted probation on February 2, 1990. Included with the report was an order dated
December 22, 1994, revoking probation. Defendant complains that the probation report
order is not file stamped and does not constitute part of the record of the prior conviction.
But the report includes an order signed by the judge, revoking probation. Therefore the
documents were properly considered by the court in support of the prior conviction
allegation.
18 The prosecution also submitted a supplemental probation report filed on October
30, 1995. Defendant argues the report does not mention a conviction for robbery
occurring in 1987. Defendant complains a third document, which is another probation
officer‟s report, is dated “read and approved” on December 11, 1990 by the probation
officer and counsel, and states defendant was convicted of a robbery, but the document is
not file stamped. The document is stamped, “COURT COPY,” is signed by the judge,
and is dated December 15, 1989. Another probation report stamped “court copy” and
dated October 22, 1990, states that defendant was convicted of robbery, he was granted
probation in February 1990, and the probation officer recommended revoking probation
because defendant was arrested and charged with burglary in September 1990. Another
probation report stamped “COURT COPY,” stated defendant pled guilty and was
convicted of robbery on August 6, 1987. Federal charges were dismissed. Defendant
asserts the report should not be considered because it is not file stamped, is not dated, and
a judge did not sign the report, confirming the judge read and considered it.
Defendant argues none of the probation reports could be considered part of the
record of defendant‟s prior robbery conviction because they are not file stamped, with the
exception of one report, which was filed eight years after the prior conviction and the
report makes no mention of the robbery conviction. Nevertheless, we conclude the
documents the prosecution relied upon in proving defendant‟s prior robbery conviction
contain reliable certified probation reports and court documents from which the jury
could reasonably find that defendant suffered the alleged prior robbery conviction. The
documents were certified as official records of the Los Angeles County Superior Court
19 and therefore provided sufficient evidence to support the trial court‟s finding the prior
strike allegation was true. (Evid. Code, §§ 664, 1280.)
VII
GOOD CONDUCT CREDITS UNDER SECTION 4019
Defendant contends the trial court miscalculated his presentence good conduct
credits under the amended version of section 4019, effective October 1, 2011. He argues
that his constitutional equal protection rights were violated by the trial court not applying
the amended version retrospectively. We disagree.
Defendant committed the charged crimes in February, March, June, September,
and October 2010. He was sentenced on November 8, 2011. Defendant was in custody
because of a parole violation from June 9, 2010, through September 7, 2010 (91 days).
He returned to custody on December 28, 2010, and remained in custody through the date
of sentencing on November 8, 2011 (316 days). At the sentencing hearing, the trial court
awarded defendant 407 days of actual custody credit. Because defendant had a strike, he
received only 202 days of good conduct credit under the 1982 version of section 4019,
for a total of 609 days of credit.
Operative October 1, 2011, the Legislature amended section 4019 to allow all
defendants serving presentence time in county jail to be eligible for day for day credit.
(Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, Stats. 2011, ch. 39, § 53, and Stats. 2011,
1st Ex. Sess. 2011-2012, ch. 12, § 35.) Section 4019 now provides that “a term of four
days will be deemed to have been served for every two days spent in actual custody.”
(§ 4019, subd. (f).) The only defendants who are excluded from section 4019‟s current
20 day for day credit provisions are those who have a current violent felony or murder
conviction. (See §§ 2933.1, subd. (c), 2933.2, subd. (c).) By its express terms, the
amendment to section 4019 applies only to defendants whose crimes were committed on
or after October 1, 2011. (§ 4019, subd. (h).) Additionally, subdivision (h) expressly
provides that this change “shall apply prospectively and shall apply to prisoners who are
confined to a county jail, city jail, industrial farm, or road camp for a crime committed on
or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall
be calculated at the rate required by the prior law.” (§ 4019, subd. (h).)
Defendant argues that, despite the express terms of section 4019, he is entitled to
additional presentence conduct credit on the ground that the equal protection clause
required that the recently amended section 4019 be applied to him retroactively. Based
on our Supreme Court‟s recent decisions in People v. Brown (2012) 54 Cal.4th 314
(Brown) and People v. Lara (2012) 54 Cal.4th 896 (Lara), we conclude that equal
protection principles do not require retroactive application of the October 1, 2011,
amendment to section 4019.
In Lara, the Supreme Court explained it rejected the defendant‟s equal protection
argument because, as stated in Brown, supra, 54 Cal.4th at pages 328-330, “„“[t]he
obvious purpose”‟ of a law increasing conduct credits „“is to affect the behavior of
inmates by providing them with incentives to engage in productive work and maintain
good conduct while they are in prison.” [Citation.] “[T]his incentive purpose has no
meaning if an inmate is unaware of it. The very concept demands prospective
application.”‟ (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.)
21 Accordingly, prisoners who serve their pretrial detention before such a law‟s effective
date, and those who serve their detention thereafter, are not similarly situated with respect
to the law‟s purpose. (Brown, at pp. 328-329.)” (Lara, supra, 54 Cal.4th at p. 906, fn. 9;
see also People v. Ellis (2012) 207 Cal.App.4th 1546, 1551 [appellate court held that the
Brown court‟s reasoning and conclusion applied equally to the Oct. 1, 2011, amendment
to § 4019, and that amendment did not apply retroactively].)
Defendant‟s reliance on In re Kapperman (1974) 11 Cal.3d 542 for the proposition
section 4019 must be applied retroactively to defendant, is also misplaced and resolved
by well settled law. As explained in People v. Ellis (2012) 207 Cal.App.4th 1546, 1552:
“Brown rejected the notion the case before it was controlled by In re Kapperman (1974)
11 Cal.3d 542 . . . , in which the court held equal protection required retroactive
application of a statute granting credit to felons for time served in local custody before
sentencing and commitment to state prison, despite the fact the statute was expressly
prospective. (Brown, supra, 54 Cal.4th at p. 330.) Brown found Kapperman
distinguishable: „Credit for time served is given without regard to behavior, and thus
does not entail the paradoxical consequences of applying retroactively a statute intended
to create incentives for good behavior. Kapperman does not hold or suggest that
prisoners serving time before and after the effective date of a statute authorizing conduct
credits are similarly situated.‟ (Brown, supra, at p. 330.)”
We agree with the reasoning and conclusions of Brown, Lara, and Ellis and,
therefore, we reject defendant‟s argument that he was entitled to additional good conduct
credits.
22 VIII
CORRECTION OF ABSTRACT OF JUDGMENT
Defendant requests this court to order the abstract of judgment and sentencing
minute order dated November 8, 2011, corrected to show that the jury only found one
prison prior allegation true. The People agree with the request.
The jury found that defendant had four prior convictions. The jury also found one
prior prison term. The sentencing minute order dated November 8, 2011, incorrectly
states that there were four prison priors, for which the trial court imposed a one-year
prison term for each of the prison priors, totaling four years, with three years stayed. The
abstract of judgment incorporates the incorrect information stated in the November 10,
2011 minute order; that defendant suffered four prison priors, rather than only one. As
the parties acknowledge, the November 8, 2011, minute order and the abstract of
judgment filed on November 10, 2011, must be amended to show that defendant
sustained only one prison prior. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral
pronouncement of sentence controls over conflicting minute order].)
IX
DISPOSITION
The matter is remanded to the trial court with directions to amend the November
8, 2011, minute order to show that the jury found only one prison prior allegation true
and the trial court imposed sentencing on only one prison prior. The trial court is
23 further instructed to forward a corrected abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
KING Acting P. J.
MILLER J.