NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A125781

Transcription

1 Filed 9/30/10 P. v. Romero CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR ROMERO, Defendant and Appellant. A (Sonoma County Super. Ct. Nos. SCR533434, SCR & SCR535481) Julio Romero appeals from a judgment following his conviction of three drugrelated offenses and guilty plea to additional crimes committed while he was on bail for the drug charges. He contends that (1) the trial court erred when it denied his motion to suppress evidence; and (2) he is entitled to the benefit of a recent amendment to Penal Code section 4019, 1 which increased the number of conduct credits available to eligible defendants. We agree with his latter contention and order the sentence modified to reflect the additional credits authorized under section 4019 as amended. As so modified, we affirm the judgment. There is no merit in Romero s argument that the court should have suppressed evidence relating to his drug offenses. Code. 1 Unless otherwise indicated, all further statutory references are to the Penal 1

2 BACKGROUND The Primary Case [No. SCR533434] The facts are taken from the hearing on Romero s motion to suppress evidence. At 3:00 a.m. on March 14, 2008, Santa Rosa Police Officer Brian Mann observed a green Toyota Corolla with expired registration tags driving one or two car lengths ahead of him. The officer did not see any temporary registration sticker on the car. When he activated his forward red light, the Toyota slowed but continued for approximately two blocks before it turned into a lot and parked. Just before the car turned, Officer Mann saw what appeared to be small cellophane bags come out of the driver s window. The driver was codefendant Kasey Lawrence, and defendant was in the front passenger s seat. A registration check conducted through the police dispatch center indicated the Toyota s registration expired in October Officer Mann searched defendant and found a small baggie containing a crystalline substance that appeared to be methamphetamine. Inside the Toyota police found a box containing a scale, a hundred-gram weight, a foam pad, two cell phones, some small pills, a piece of paper with names and numbers written on it, and more of the crystalline substance. More of the substance was found scattered on the passenger s side floor, seat and door, and on the ground outside the passenger s door. Mann later found four more knotted baggies in the area where he had seen bags tossed from the car. They had been ripped open, but still contained a small amount of crystalline substance. The Toyota belonged to defendant s mother, Maria Morfin. Sometime between November 2007 and February 2008, Morfin obtained a temporary registration permit that was valid through April 2008, and put it on the car s rear window. Morfin left the permit in the car until February 2009, when she removed it to give it to her son s attorney. Photographs of the Toyota taken on December 30, 2008, show a temporary registration permit on the inside of the back window. Defendant moved pursuant to section to suppress the items found during the traffic stop. The court denied the motion, and defendant was convicted by a jury of possessing methamphetamine, transporting methamphetamine, and misdemeanor 2

3 possession of diazepam for sale. The trial court found true a prior prison term allegation pursuant to section 667.5, subdivision (b). Case Nos. SCR and SCR While defendant was out on bail in case no. SCR533434, he was charged in a separate incident as a convicted felon in possession of a firearm and ammunition, carrying a loaded firearm in public, and possession of methamphetamine. Defendant entered a guilty plea to possessing ammunition, a no contest plea to the remaining counts, and admitted the prior prison conviction allegations and bail enhancement. Also while he was on bail in the primary case, defendant was charged in a separate case, number SCR542851, with possession of a controlled substance (Vicodin, Valium, Clonopin, and/or Methadone) and falsely identifying himself to a police officer. The information included a bail enhancement and the two prior prison term allegations. The court sentenced defendant in all three cases to an aggregate term of 11 years and four months in state prison. Defendant filed timely appeals in each case. DISCUSSION I. Suppression Motion Defendant contends Officer Mann lacked probable cause for the traffic stop, and that, as a result, the trial court should have excluded all the evidence of narcotics. He also maintains he should have been allowed to withdraw his pleas in the two subsequent cases, which he claims were entered due to his conviction in the primary case. We disagree. A. Legal Principles A detention is constitutionally reasonable if the circumstances known or apparent to the detaining officer include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect 3

4 the same criminal activity and same involvement by the person in question. (People v. Daugherty (1996) 50 Cal.App.4th 275, 285.) Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like articulable reasons and founded suspicion are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances the whole picture must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230, quoting United States v. Cortez (1981) 449 U.S. 411, ) In reviewing the denial of a motion to suppress evidence we review the record in the light most favorable to the People, uphold the trial court s express and implied factual findings if supported by substantial evidence, and independently apply the appropriate federal constitutional standards to those facts. (People v. Valenzuela (1999) 74 Cal.App.4th 1202, ; In re Arturo D. (2002) 27 Cal.4th 60, 77.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court and all presumptions favor its findings. (People v. Leyba (1981) 29 Cal.3d 591, 597; People v. James (1977) 19 Cal.3d 99, 107.) B. Analysis A traffic stop is justified at its inception when an officer has a reasonable suspicion that the driver has violated the Vehicle Code or some other law. (People v. Bell (1996) 43 Cal.App.4th 754, 761.) The facts here supported Officer Mann s reasonable suspicion that the Toyota was being driven in violation of the Vehicle Code, without a valid, current registration. (Veh. Code, 5204; see also Veh. Code 4600.) The traffic stop was effected late at night, and the officer testified that he did not see the temporary permit on the car. The trial court reasonably found Officer Mann s testimony was credible and the court drew a permissible inference that even though the temporary registration tag was on the car at the time of the stop, it was not visible to the officer for 4

5 whatever reason. It was therefore reasonable for the officer to stop the Toyota to investigate its registration. 2 People v. Hernandez (2008) 45 Cal.4th 295, 298, on which defendant relies, is inapposite. The arresting officer there saw a temporary registration tag on the defendant s vehicle but pulled him over anyway because, in his experience, such permits are very often forged or have been issued for a different vehicle, or the vehicle itself is stolen. Here, in contrast, Officer Mann did not see the temporary registration tag. More on point is In re Raymond C. (2008) 45 Cal.4th 303, , where the court held a traffic stop did not violate the Fourth Amendment because the arresting officer did not see the temporary permit on a car s front window before he pulled it over. Here, as in Raymond, Officer Mann acted reasonably when he stopped the Toyota to investigate whether it was being driven in violation of vehicular license requirements. The trial court correctly denied defendant s motion to suppress. II. Conduct Credits Under Section 4019 The court awarded defendant presentence credits in the primary case (no. SCR533434) for 381 actual custody days and, pursuant to section 4019, 190 days of conduct credit, for a total of 571 days. The court awarded defendant 380 days of custody credit and 190 days of conduct credit (570 total) in case no. SCR , and 372 days of custody credit and 186 days of conduct credit in case no. SCR (558 total). Defendant contends that a recent amendment to section 4019, which increased the number of pretrial conduct credits available to eligible defendants, should be applied retroactively to his sentence. The issue is presently pending before our Supreme Court (People v. Brown, review granted June 9, 2010, S181963; see also People v. Rodriguez, review granted June 9, 2010, S181808; People v. Landon, review granted June 23, 2010, S182808; People v. House, review granted June 23, 2010, S182813; People v. Hopkins, review granted July 28, 2010, S183724; People v. Otubuah, review granted July 21, 2 Officer Mann s observation of baggies flying out of the driver s window before the car came to a stop provided an independent basis for him to suspect that its occupants were committing a drug violation, albeit after he already initiated the traffic stop. 5

6 2010, S184314; People v. Weber, review granted August 18, 2010, S ) In the absence, as yet, of a decision from our high court, we hold the amendment applies retroactively. We therefore order the judgment amended to reflect the additional credits to which defendant is entitled under the amended statute. The changes to section 4019 were effective January 25, ( 4019, as amended by Stats. 2009, ch. 28, 50 (Sen. Bill No. 18 ( d Ex. Sess.).) Although defendant was sentenced before the changes took effect, his sentence is not yet final for purposes of determining whether the amended statute should apply to his case. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Our review of this legal issue is de novo. (In re Chavez (2004) 114 Cal.App.4th 989, 994.) When defendant was sentenced, section 4019 provided for two days of conduct credit for every six-day period in custody. (Former 4019, subds. (b) & (c), (f).) As amended, section 4019 now allows eligible defendants to earn two days of conduct credit for every four days of actual custody. ( 4019, subds. (b) & (c); People v. Dieck (2009) 46 Cal.4th 934, 939.) Moreover, eligible defendants may ultimately earn two days of credit for every two days actually served: It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.... ( 4019, subd. (f).) 3 We will apply section 4019 retroactively in this case. Although penal statutes are generally presumed to operate prospectively unless the Legislature has specified, or at least clearly implied, retroactive application ( 3; People v. Alford (2007) 42 Cal.4th 749, 753), in In re Estrada (1965) 63 Cal.2d 740 our Supreme Court delineated an exception to this general rule for statutory amendments that lessen punishment. The Estrada rule is based on a consideration that the California Supreme Court has described as of 3 The new credit ratios are not available to defendants who are required to register as sex offenders or were convicted of serious or violent felonies ( 4019, subds. (b)(2) & (c)(2)), and conduct credits earned by defendants convicted of violent felonies are limited to 15 percent of actual confinement time. ( ) These exclusions are not applicable here. 6

7 paramount importance: 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. (People v. Nasalga (1996) 12 Cal.4th 784, ) Thus, Estrada stands for the rule that when the Legislature amends a statute for the purpose of lessening the punishment, in the absence of a clear legislative intent to the contrary, a criminal defendant should be accorded the benefit of a mitigation of punishment adopted before his criminal conviction became final. (In re Chavez, supra, 114 Cal.App.4th at p. 999; see also People v. Rossi (1976) 18 Cal.3d 295, ) Section 4019, as amended by Senate Bill No. 18, contains neither a savings clause nor an explicit indication of legislative intent regarding retroactivity, but it lessens punishment by increasing the number of credits eligible prisoners can earn for good behavior. (See People v. Doganiere (1978) 86 Cal.App.3d 237, [holding amendment that authorizes conduct credit applies retroactively]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment authorizing actual custody credits applies retroactively].) Pursuant to Estrada, therefore, the 2010 amendment applies retroactively to all judgments not yet final when it took effect. The People argue that Estrada, which concerned the term for a particular offense, and Hunter, which concerned actual custody credits, are inapplicable to amendments that involve conduct credits because the latter are designed to encourage future good behavior, not reduce punishment for a past crime. We disagree. As Doganiere observes in rejecting the same distinction, [u]nder Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe. (People v. Doganiere, supra, 86 Cal.App.3d at p. 240.) The People s reliance on In re Stinnette (1979) 94 Cal.App.3d 800 does not support an argument that the legislative intent behind the amendment of section 4019 was 7

8 limited to motivating good behavior (and, perhaps, thereby achieving budgetary savings). Stinnette concerns an amendment to the 1977 Determinate Sentencing Act that allowed prisoners to earn conduct credits. The amendment expressly provided for prospective application, and therefore the issue before the court was whether this prospective application violated equal protection. (Id. at p. 803.) The court concluded it did not. (Id. at pp ) But the amendment to section 4019, unlike the amendment to the Determinate Sentencing Act challenged in Stinnette, does not specify the Legislature s intent regarding its retroactive or prospective application. Stinnette s conclusion that promoting good conduct among prisoners is a rational basis for the explicit legislative decision to give the Determinate Sentencing Act only prospective effect tells us nothing about the Legislature s intent in amending section Moreover, while the People urge that the legislative aims underlying the amendment were those of encouraging good behavior and addressing the state s fiscal crisis, those aims are entirely compatible with reducing punishment for particular categories of prisoners. Here, the trial court awarded defendant 381 days of actual presentence custody credit and 190 days of presentence conduct credit in the primary case (no. SCR533434), for a total of 571 days. Under the amended version of section 4019, which we hold applies retroactively, defendant is entitled to an additional 190 days of conduct credit in the primary case, for a total of 761 days (381 actual days in custody and 380 conduct credits). In case numbers SCR he is entitled to an additional 190 days of conduct credit, and in SCR to an additional 186 days of conduct credit. DISPOSITION The trial court is directed to prepare an amended abstract of judgment reflecting the additional days of presentence conduct credit authorized by section 4019, as amended by Senate Bill No. 18, and to forward a certified copy of the amended abstract 8

9 to the California Department of Corrections and Rehabilitation. As amended, the judgment is affirmed. Siggins, J. We concur: McGuiness, P.J. Jenkins, J. 9