Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF124889A. Michael E. Dellostritto, Judge.
Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Jeffrey B. Grant, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
Detjen, J.
Defendant, Shakuur Abdalkhaliq Rahmaan, was convicted of one count of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a). He appeals claiming the prosecutor committed misconduct during closing argument, he is entitled to additional conduct credits pursuant to Penal Code section 4019, and the assessment imposed pursuant to Government Code section 70373 is unauthorized. In addition, he requests us to review the evidence based on his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess)) to determine whether the trial court erred. We affirm.
Facts
Police officers Mason Woessner and Ryan Kroeker were on duty in the early morning hours of September 15, 2008. They saw defendant in front of a window of an apartment. Woessner saw defendant talking to the person inside the apartment. Defendant put his hand up into the open window and a short time later his hand came down. The officers made their presence known. Defendant was surprised and nervous. Kroeker saw an object fall from defendant’s hands and noticed he was moving his feet in an odd manner.
Defendant was asked why he was in the parking lot and he said he was there to visit friends and later said he was there to meet his girlfriend. Defendant’s car was several feet away and the driver’s door was slightly ajar. The engine of the car was off. An off-white chunky substance was found smashed in the area where defendant was standing when Kroeker saw him drop something. The substance was cocaine base.
Neither officer saw an actual exchange between defendant and the person in the window. Defendant did not have any drugs or paraphernalia on his person or in his car.
I. Pitchess Motion
Defendant requests that we conduct an independent review of the materials presented to the trial court in response to his Pitchess motion. (Pitchess, supra, 11 Cal.3d at p. 535.) In his motion, he sought review of the personnel records of Officers Kroeker and Woessner for prior incidents involving dishonesty, false arrest, illegal detention, the fabrication of charges, and/or the fabrication of evidence or reports. (People v. Mooc (2000) 26 Cal.4th 1216, 1232.) At the Pitchess hearing, the trial court reviewed the personnel files of both officers, as well as a number of Internal Affairs files. Based on the court’s review of these documents, it ordered that information regarding several of the Internal Affairs investigations be disclosed to counsel. Defendant does not assert that the information ordered to be disclosed was not properly disclosed to him.
We have received and reviewed the files presented to the trial court and conclude the trial court did not abuse its discretion. There is nothing else in the personnel files which might be relevant to defendant’s case.
Respondent claims that we need not review the trial court’s decision at the Pitchess hearing because the court granted the motion. Respondent is mistaken. The trial court did not disclose all of the information presented. Thus, there could be materials the trial court ordered not to be disclosed that should have been disclosed. We cannot make this determination without reviewing the entire record.
II. Alleged Prosecutorial Misconduct
The court made several pretrial in limine rulings and ordered that the rulings would remain in full force and effect for the duration of the trial. Included was a ruling that the prosecution was not to argue or insinuate that defense counsel’s remarks should be treated with skepticism or caution. In addition, the court ruled the prosecution could not analogize everyday decisionmaking to the standard of proof of beyond a reasonable doubt.
During the prosecutor’s initial argument to the jury, he stated, “You are smart. Use your common sense. This case is not complicated.” Defense counsel did not object to this statement by the prosecutor.
Defense counsel made her argument to the jury. In her argument, she repeatedly said that there were things in this case that did not make common sense or did not make sense.
Defense counsel continued her argument by using a tool to help the jury think about reasonable doubt. Although the tool is not a part of the record on appeal, we can glean from the argument that the tool was some sort of chart listing different burdens of proof. Beyond a reasonable doubt was listed as the highest standard that exists in the American legal system. Defense counsel described the preponderance of the evidence standard, and the clear and convincing evidence standard. Defense counsel then spoke about determinations that would not amount to a guilty verdict based on proof beyond a reasonable doubt, such as if the jury is suspicious of defendant, has a strong suspicion of his guilt, or thinks he is probably guilty.
The prosecutor began his closing argument by stating that defense counsel had placed reasonable doubt on the top of the chart. The prosecutor pointed out that there are other concepts that are above reasonable doubt, such as above all possible doubt and above all imaginary doubt. The prosecutor stated that defense counsel had only shown the part of the chart that helped her position the most. The prosecutor argued that nothing is 100 percent certain, and defense counsel brought up several concepts and ideas to try and “confuse you from what really happened.”
The prosecutor continued his argument and stated, “I’m not going to confuse the issues anymore than they need to be or anymore than [defense counsel] has tried to confuse the issues. [¶] … [¶] And don’t be intimidated by this high standard of reasonable doubt that seems like it’s so insurmountable. If it was as high as [defense counsel] would like you to believe, nobody would be convicted of anything.”
After the prosecutor completed his argument, the court told the jury that there had been discussions about some of the instructions they had already heard and, in particular, the reasonable doubt instruction. The court told the jury there was an instruction on reasonable doubt and then the court asked the jury to read the instruction. Defense counsel did not object to any portion of the prosecutor’s final argument to the jury.
Defendant now claims the prosecutor’s argument violated two in limine rulings by the court; when the prosecutor argued to the jury that defense counsel was intentionally misleading them and by “profoundly” misrepresenting the beyond a reasonable doubt burden of proof. Defendant argues the prosecutor’s misconduct “poisoned the heart” of his defense and amounted to “flagrant foul play.”
“To preserve a claim of prosecutorial misconduct for appeal, ‘“the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have [otherwise] cured the harm caused by the misconduct.” [Citations.]’” (People v. Bennett (2009) 45 Cal.4th 577, 595.)
Defendant contends that he was not required to make an objection because he objected to these comments before trial, and the trial court ruled that the prosecutor could not argue or insinuate that defense counsel’s remarks should be treated with skepticism or caution and could not analogize everyday decisionmaking to the standard of proof of beyond a reasonable doubt. In addition, when it ruled on these motions, the trial court ordered that the rulings would remain in full force and effect for the duration of the trial. Assuming for the sake of argument, the closing arguments by the prosecutor violated the pretrial rulings of the court, and the rulings alleviated the duty of defense counsel to object, the court’s ruling does not excuse defense counsel’s failure to request an admonition. As previously set forth, to preserve a claim of prosecutorial misconduct defense counsel must object and request an admonition. Defense counsel has forfeited his right to raise the issue of prosecutorial misconduct because he did not request an admonition after the claimed misconduct occurred.
In any event, we would not characterize the comments made by the prosecutor, regarding defense counsel trying to confuse the issues, as misconduct. The prosecutor did not accuse defense counsel of fabricating evidence nor did he accuse defense counsel of deceiving the jury about the facts. In People v. Dykes (2009) 46 Cal.4th 731, the defendant claimed on appeal that the prosecutor demeaned him during argument when he stated: “‘Mr. Strellis [defense counsel] wants to try to confuse you about what the meaning of the special circumstance instruction is. Well, he’s a skilled attorney, and he’s doing the best he can.’” (Id. at p. 772.) The Supreme Court found that “such comments fall within the broad scope of permissible comment.” (Ibid.)
Defendant contends the prosecutor’s remarks trivialized the beyond a reasonable doubt standard. “‘Although counsel have “broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]”’ [Citations.] In particular, it is misconduct for counsel to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266 (Katzenberger).)
We do not view the prosecutor’s remarks as either misstating the burden of proof or trivializing the beyond a reasonable doubt standard. The prosecutor was merely responding to defense counsel’s argument regarding the burdens of proof and illustrating that there are levels of proof in this world that are higher than beyond a reasonable doubt. There was no misconduct.
In any event, the court told the jury they had been instructed on the concept of reasonable doubt, and the court directed the jury to read the instruction on their own. Thus, the jury was alerted to the dispute between defense counsel and the prosecution on the concept of beyond a reasonable doubt and directed by the court to review the jury instruction. We presume they followed the instructions of the court and were not confused or misled by the arguments of counsel. (Katzenberger, supra, 178 Cal.App.4th at p. 1269.) Thus, defendant’s claims of misconduct did not result in prejudice.
III. Penal Code Section 4019 Conduct Credits
Under Penal Code section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credits are called, collectively, conduct credits. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When defendant was sentenced in February 2009, the court calculated his conduct credit in accord with the version of Penal Code section 4019 then in effect. Effective January 25, 2010, section 4019 was amended to award a larger amount of presentence custody credits to eligible defendants. Defendant contends that because his conviction is not yet final, his conduct credits should be calculated under the more generous version of section 4019 (effective January 25, 2010) and not the less generous version in effect at the time he committed his crime. He claims the more generous credits given under section 4019 must apply retroactively to his case because the amended statute would lessen his punishment and his case is not yet final as it remains pending on appeal. In addition, defendant argues that the failure to apply the statute retroactively is a denial of equal protection under the California and federal Constitutions. We disagree and conclude the amendment applies prospectively only.
Penal Code section 4019 was amended by urgency legislation, operative on September 28, 2010 (Stats. 2010, ch. 426, § 2.) These amendments were expressly made to apply only to cases involving crimes occurring on or after the effective date of September 28, 2010. Thus, the new version of section 4019 does not affect this case and does not change our analysis in this matter. Unless otherwise noted, all subsequent references to section 4019 or its amendments refer to the version of section 4019 effective January 25, 2010, and not the newest version of section 4019.
This issue is currently before the California Supreme Court in several cases including our opinion in People v. Rodriguez, S181808, and the lead case of People v. Brown, S181963.
Under Penal Code section 3, it is presumed that a statute operates prospectively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘“clear and compelling implication”’” from any other factor(s), that it intended the amendment to operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case (which reduced the punishment for a particular offense) applied retroactively. However, the factors upon which the court based that conclusion--that the Penal Code section 3 presumption was rebutted in that case--do not apply to the amendment to Penal Code section 4019.
We further conclude that prospective-only application of the amendment does not violate appellant’s equal protection rights. Defendant cites In re Kapperman (1974) 11 Cal.3d 542 and People v. Sage (1980) 26 Cal.3d 498 in support of his equal protection argument. Both cases are inapposite. Kapperman involved a prior version of Penal Code section 2900.5 that allowed presentence credit only to defendants sentenced after March 4, 1972, (Kapperman, supra, 11 Cal.3d at p. 544) and Sage involved a prior version of Penal Code section 4019 that allowed presentence conduct credits to misdemeanants, but not felons (Sage, supra, 26 Cal.3d at p. 508). In each case, the California Supreme Court found that the restrictions of each statute lacked the required rational basis/legitimate public purpose needed to satisfy equal protection. (Kapperman, supra, 11 Cal.3d at p. 550; Sage, supra, 26 Cal.3d at p. 508.)
The purported equal protection violation at issue here is different; it is temporal, rather than based on whether the defendant is sentenced to prison or based on defendant’s status as a misdemeanant or felon. One of Penal Code section 4019’s principal purposes, both as formerly written and as amended, is to motivate good conduct. Defendant, and those like him who were sentenced prior to the effective date of the amendment, cannot be further enticed to behave themselves during their presentence custody. The fact that a defendant’s conduct cannot be influenced retroactively, provides a rational basis for the Legislature’s implicit intent that the amendment only apply prospectively.
Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
IV. Government Code Section 70373 Assessment
Defendant’s crime occurred on September 15, 2008. He was convicted on January 9, 2009. At his sentencing hearing on February 9, 2009, the trial court imposed several fees and assessments, including a $30 assessment pursuant to Government Code section 70373.
The fee mandated by Government Code section 70373 is a $30 fee. The reporter’s transcript indicates the court imposed a $20 fee. The clerk’s transcript sets forth the correct amount of $30. Defendant’s argument speaks of the $30 fee. Because there is no dispute, we find the clerk’s transcript to be controlling.
Defendant contends the Government Code section 70373 assessment is unauthorized and must be stricken because his crime occurred before January 1, 2009, the effective date of that statute.
Agreeing with the opinion of the Third Appellate District in People v. Castillo (2010) 182 Cal.App.4th 1410, this court recently held the assessment applies to convictions that occur after the statute’s effective date regardless of the date of the underlying offense. (People v. Phillips (2010) 186 Cal.App.4th 475.)
Disposition
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Kane, J.