NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Transcription

1 Filed 5/13/11 P. v. Paul CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. RONALD LEON PAUL, Defendant and Appellant. A (Alameda County Super. Ct. No. C154633, C161332) Ronald Paul appeals from an order finding that he violated his probation and an order sentencing him to state prison. He contends the trial court erred by: admitting a routine police department laboratory report at the probation violation hearing; failing to state specific reasons for denying probation and imposing the state prison sentence at the sentencing hearing; and miscalculating his presentence custody credits. We will order the trial court to amend its sentencing order and abstract of judgment with respect to the custody credits; with this amendment, the orders will be affirmed. I. FACTS AND PROCEDURAL HISTORY A. Underlying Offense and Prior Probation Violation In February 2007, Paul was charged with possession of cocaine base for sale (Health & Saf. Code, ) and possession of heroin for sale (Health & Saf. Code, 11351). The information alleged three prior prison term commitments (Pen. Code, 667.5, subd. (b)) and two prior narcotic-related convictions (Pen. Code, , 1

2 subds. (a)(11), (a)(3); Health & Saf. Code, , subd. (a), 11370, subds. (a) and (c), ). In July 2007, pursuant to a negotiated disposition, Paul entered a plea of no contest to possession of cocaine base for sale and admitted his priors. The trial court suspended imposition of sentence and placed Paul on probation for five years on certain terms and conditions, including that he obey all laws. In January 2008, Paul admitted that he had violated the terms of his probation. The trial court ultimately reinstated probation on terms including that he obey all laws. B. Probation Revocation In June 2009, another petition was filed to revoke Paul s probation, on the ground that he again violated Health and Safety Code section Paul s probation was revoked. A contested probation violation hearing was then held on August 17 and 18, Evidence at the hearing included the following. On June 2, 2009, at approximately 3:00 p.m., Oakland Police Officers Menandro Madlansacay and Hewitt conducted a traffic stop of a green Lexus in the 1900 block of 14th Avenue, after observing the driver fail to stop at a stop sign. The Lexus was driven by Paul; his girlfriend, Tempest Brown, was a passenger. Paul stated he was on parole. Oakland Police Officer Tran responded to the scene and conducted a search of the Lexus. The officer recovered a digital scale with white dusty particles and a box of sandwich baggies from the trunk, along with $76 from the center console. Officer Tran also conducted a search of Paul s person, finding $850 in Paul s right front pants pocket and $269 from his left front pants pocket. The Lexus was registered to Paul at 610 East 18th Street, apartment G, and it had previously been observed in the parking lot of the apartment complex. A search of a bedroom in that residence produced a Department of Motor Vehicles renewal form, a receipt, an expired driver s license, a Visa card, citations for the green Lexus, and other 2

3 documents bearing Paul s name, as well as indicia for Brown. 1 A search of the dresser in that bedroom resulted in the seizure of three one-ounce twists of suspected cocaine base packaged in a baggie inside a man s crew sock, another digital scale with white residue, and another box of sandwich bags. Officer Hewitt testified that, while transporting Brown to jail, Brown said that she was carrying cocaine and marijuana inside her body, and that the cocaine inside her and the cocaine in the dresser belonged to her. Brown was searched at the jail after her arrest. Some suspected marijuana and 21 twists of suspected cocaine were found in her vagina. At the hearing, Officer Madlansacay identified the three suspected baggies of contraband seized from the bedroom dresser and the suspected contraband taken from Brown, and testified that he delivered this contraband in sealed envelopes to the narcotics deposit box at the police station for testing. The prosecution then offered into evidence People s Exhibit 2B-1, purporting to be an Oakland Police Department Criminalistics Division analysis report. The report indicated that one of the baggies taken from the dresser contained approximately grams of cocaine base, and one of the twists taken from Brown contained a rock of cocaine weighing 0.67 grams. Defense counsel objected to the admission of the report, on the ground that it constituted inadmissible hearsay and the prosecution had not sufficiently demonstrated its trustworthiness. The court took the matter under submission and proceeded with the hearing. Officer Madlansacay testified that he had observed sales of narcotics in the area of 6th Avenue and East 18th Street and opined that, in his experience, the suspected narcotics seized from the dresser and Brown s person were packaged in a manner consistent with cocaine base packages offered for sale. Officer Karsseboom was qualified at the hearing as an expert in the field of the sale of, and possession for sale of, cocaine base. The prosecutor presented Officer 1 The parties stipulated that Brown would testify that Paul did not reside with her but stayed in her apartment off and on or occasionally. 3

4 Karsseboom with the following hypothetical: Q.... If a man and a woman are pulled over in a car; the car is searched. There are plastic sandwich baggies found in the car as well as a digital scale with a white residue. The woman is later found to be in possession of 21 individually-wrapped rocks of cocaine in her vagina. She is not on probation; she is not on parole. A subsequent search of both the man and [the] woman s home is conducted of their apartment. In that apartment is found a digital scale with white residue on it, the same sandwich baggies that were found in the car, and three ounces, approximately, of cocaine base in a plastic bag divided up into one-ounce increments contained in a dresser drawer that has men s socks in it. Officer Karsseboom opined that the male in the hypothetical possessed the narcotics for purposes of sale and the woman possessed the narcotics on another s behalf or to sell herself. Toward the end of the hearing, the court returned to the issue of the admissibility of the criminalistics laboratory report, which the court summarized as follows: Okay. And then what what can I take from the face of the document? That is that it is entitled Analysis Report Criminalistics Division Oakland Police Department. It has your client s [Paul s] and Ms. Brown s name on it. It has delivered by the officer who testified. The date corresponds; the description of the items that were found in the envelopes when they were opened here in court is the same. It was stapled to one of the envelopes when it came into court. The court ruled there was sufficient indication of the document s source and reliability to render it admissible. At the conclusion of the hearing, the court found that Paul had violated his probation. The matter was continued for sentencing. C. Sentence The sentencing hearing was held on September 25, The defense argued that Paul should be reinstated on probation because he was gainfully employed, he had a place to live and the support of his family, he was not armed at the time of the offense, and the offense was not serious or violent. The prosecution responded that probation was inappropriate given Paul s extensive history of drug-related offenses. The court denied probation and imposed a state prison sentence of nine years, based on the low term of 4

5 three years for possession of cocaine base for sale plus three years for each of two prior convictions for sales; Paul s third sales prior was stricken. Paul was awarded presentence custody credits in the amount of 690 days (460 actual days plus 230 conduct days). The defense did not object to the sentence on the ground that the court had failed to set forth reasons for the denial of probation. This appeal followed. 2 II. DISCUSSION As mentioned, Paul contends the criminalist s lab report was inadmissible at the probation violation hearing, the court failed to state reasons for the denial of probation and imposition of a state prison sentence at the sentencing hearing, and Paul is entitled to additional presentence custody credits. We address each contention in turn. A. Admission of Criminalist s Lab Report Paul does not dispute the trial court s finding that the criminalist s laboratory report bore sufficient indicia of reliability. Instead, he asserts that the report constituted testimonial hearsay and its admissibility thus required a showing of good cause, not just indicia of reliability. Urging that good cause was not shown, Paul argues that the admission of the laboratory report without live testimony violated his constitutional right to confront the prosecution s witnesses. 1. Legal Standard for Admissibility of Hearsay at Probation Revocation Hearing It is well established that relaxed rules of evidence govern[ ] probation revocation proceedings. (People v. Brown (1989) 215 Cal.App.3d 452, 454; see also Jones v. Superior Court (2004) 115 Cal.App.4th 48, [distinguishing trials from probation revocation proceedings].) Under this approach, hearsay evidence that is inadmissible to 2 According to the notice of appeal, the appeal is taken from the order of September 25, 2009, which is the sentencing order. The notice of appeal also indicates that it follows a contested violation of probation. We construe the notice of appeal broadly to challenge both the finding that Paul had violated his probation and the sentence imposed by the trial court. 5

6 prove guilt in a criminal trial may be admissible to prove an adult probation violation under certain circumstances. (In re Eddie M. (2003) 31 Cal.4th 480, 501.) A probationer has only a limited right to cross-examine and confront witnesses at a probation revocation hearing. Probation revocation proceedings are not criminal trials to which the Sixth Amendment right to confrontation applies. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson).) Instead, a limited right to confrontation at probation proceedings stems from the due process clause of the Fourteenth Amendment. (Johnson, at p ) At a probation hearing, due process requires that the defendant generally be given the right to confront and cross-examine witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 (Gagnon).) Thus, to satisfy due process, the admission of a preliminary hearing transcript in lieu of live testimony at a probation revocation hearing requires a showing of good cause. (People v. Winson (1981) 29 Cal.3d 711, [admission of transcript of witness s preliminary hearing testimony at a revocation hearing required showing of unavailability or other good cause] (Winson); People v. Arreola (1994) 7 Cal.4th 1144, [admission of transcript of witness s preliminary hearing testimony required showing of good cause] (Arreola); see People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197, [admission of probation officer s testimony regarding out-of-court statements by treatment program administrator required showing of good cause] (Shepherd).) Good cause may be demonstrated by a showing that the declarant is unavailable, the declarant can be brought to the hearing only through great difficulty or expense, or the declarant s presence would pose a risk of harm to the declarant. (Arreola, supra, 7 Cal.4th at pp ) On the other hand, for the admission of routine documentary hearsay evidence at a probation hearing, due process requires only a showing of sufficient indicia of the document s reliability. (People v. Maki (1985) 39 Cal.3d 707, 709 [car rental invoice and hotel receipt] (Maki); Johnson, supra, 121 Cal.App.4th at pp [laboratory report showing that seized substance was cocaine]; see Arreola, supra, 7 Cal.4th at 6

7 pp [distinguishing documentary hearsay evidence from testimonial hearsay evidence].) Sufficient reliability appears from admissible testimony, or the document itself, indicating that the document is what it purports to be, and the absence of any evidence to the contrary. (Maki, supra, 39 Cal.3d at p. 717 [invoice and hotel receipt had sufficient indicia of reliability where they each bore the issuing company s name and the defendant s signature, the documents appeared to be of the type customarily relied upon, and there was no evidence tending to contradict the information in the invoice or the inference for which it was used]; Johnson, supra, 121 Cal.App.4th at pp [laboratory report showing seized substance to be cocaine was properly admitted at a probation revocation hearing, where a police officer testified that the report was identified by case number and by the defendant s name and came from the crime laboratory that routinely tested narcotics for the police department, and defense counsel made no claim that the report was untrustworthy in any specific way]; see United States v. Penn (11th Cir. 1983) 721 F.2d 762, 766 [laboratory reports trustworthy and reliable because they were regular reports of a company whose business it is to conduct such tests and there was general corroboration of the allegation the defendant had been taking drugs, in the absence of any evidence tending to contradict defendant s drug usage or accuracy of the lab tests].) The question in this case, therefore, is whether the criminalist s laboratory report showing an analysis of the material seized from Paul s dresser and Brown s person is testimonial or documentary for purposes of due process. In this regard, we need not write on a blank slate. As this appellate district ruled several years ago, a laboratory report of this type is to be deemed documentary, not testimonial. (Johnson, supra, 121 Cal.App.4th at pp ) 2. Paul s Interpretation of Melendez-Diaz is Incorrect Paul nonetheless contends the laboratory report should be considered testimonial evidence, rather than documentary evidence, based on the ruling in Melendez-Diaz v. Massachusetts (2009) 557 U.S., 129 S.Ct (Melendez-Diaz). There, the United States Supreme Court decided that a certain laboratory report, which stated that 7

8 contraband had tested positive for cocaine, was an affidavit prepared for a criminal prosecution and thus constituted testimonial evidence for the purpose of the Sixth Amendment confrontation clause. (Melendez-Diaz, at p. 2532; see Crawford v. Washington (2004) 541 U.S. 36, 59 [because of a criminal defendant s Sixth Amendment right to be confronted with the witnesses against him, [t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine ] (Crawford).) Acknowledging that Melendez-Diaz pertained to evidence that was introduced in a criminal trial and was decided under the Sixth Amendment which is inapplicable to probation revocation hearings Paul argues that, because Melendez-Diaz characterized a laboratory report as testimonial hearsay, it has significance for the test to be applied under the due process clause of the Fourth Amendment. Specifically, Paul urges, the admissibility of the criminalist s laboratory report in this case should meet the good cause standard required for admission of testimonial hearsay in probation revocation proceedings (Arreola, Winson, Shepherd), rather than the reliability standard for admission of documentary hearsay in probation revocation proceedings (Maki, Johnson). Johnson already addressed this essential issue, rejecting the argument that Crawford s definition of statements as testimonial required a higher threshold for admissibility than our Supreme Court required in Maki. The court in Johnson explained: Johnson contends the laboratory report amounted to testimonial hearsay, because the person completing the report would have expected it to be used for criminal prosecution. Setting aside the problem that a probation revocation hearing is neither a prosecution nor a trial, we believe Johnson misapprehends Crawford s discussion of what amounts to testimonial hearsay. A laboratory report does not bear testimony, or function as the equivalent of in-court testimony. If the preparer had appeared to testify at Johnson s hearing, he or she would merely have authenticated the document. In Arreola, our Supreme Court explained: There is an evident distinction between a transcript of former live testimony and the type of traditional documentary evidence involved in [Maki] 8

9 that does not have, as its source, live testimony. [Citation.]... [T]he need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness s demeanor. [Citation.] Generally, the witness s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action. (Arreola, supra, 7 Cal.4th at p ) (Johnson, supra, 121 Cal.App.4th at pp ) 3 Paul now urges that Melendez-Diaz s characterization of the laboratory report means that Johnson was wrong to characterize a laboratory report as documentary. 4 His argument, however, is unpersuasive: Melendez-Diaz followed Crawford in the context of the Sixth Amendment in criminal trials; for the reason Crawford was inapposite to the context of due process in probation revocation proceedings in Johnson and the case now before us, Melendez-Diaz is inapposite as well. 3 Paul contends the conclusion in Johnson that the laboratory report was not testimonial was dictum, because the court concluded the Sixth Amendment did not apply to probation revocation hearings. He is incorrect. The court in Johnson prefaced its discussion with the following: Sixth Amendment cases, however, may provide helpful examples in determining the scope of the more limited right of confrontation held by probationers under the due process clause. [Citation.] Even in that respect, Crawford lends no support to Johnson s attempt to exclude the laboratory report. (Johnson, supra, 121 Cal.App.4th at p. 1412, italics added.) 4 Even more broadly, Paul seems to argue in his opening brief that Crawford implicitly overruled Maki, because although Maki was a due process case it relied on Sixth Amendment values. He further argues that Johnson, which held that Crawford has no application to a probation revocation hearing, should be disregarded. (Johnson, supra, 121 Cal.App.4th 1409.) Paul concludes: Thus, the right to confrontation at a revocation hearing is governed by Winson and Arreola in that the prosecution may introduce documentary evidence in lieu of live testimony only upon a showing of good cause. These arguments fail for the same reasons his current arguments fail. 9

10 To put it another way, the problem with Paul s argument is that it mixes apples with oranges. He presupposes that the distinction between testimonial and nontestimonial hearsay in the context of the Sixth Amendment confrontation clause in criminal trials should be the same as the distinction between what has been called testimonial and documentary hearsay in the context of due process at a probation revocation hearing. In the fruit salad of constitutional analysis, however, the apple and orange remain distinct. The characterizations of testimonial and non-testimonial hearsay in Crawford and Melendez-Diaz were derived from the history and purpose of the confrontation clause of the Sixth Amendment. (See Whorton v. Bockting (2007) 549 U.S. 406, 419 [Crawford was based on United States Supreme Court s original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the Crawford rule would be to improve the accuracy of factfinding in criminal trials ].) On this historical premise, Melendez-Diaz found that certificates of the state laboratory analysis of seized material were affidavits, which fell within the core class of testimonial statements covered by the confrontation clause of the Sixth Amendment, since they were affirmations made for the purpose of establishing and proving some fact, and were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for trial. (Melendez-Diaz, supra, 129 S.Ct. at p ) This, however, is not the standard of demarcation between so-called testimonial and documentary hearsay in cases addressing due process claims in probation revocation proceedings, which are not tethered to the historical underpinnings of the Sixth Amendment. Unlike the strict Sixth Amendment confrontation clause analysis, due process takes a broader and more flexible approach, incorporating the nature of the hearsay into a balancing of interests. For due process purposes, the need for confrontation is less when the evidence is a document such as a laboratory report, as opposed to a preliminary hearing transcript or an out-of-court statement of a treatment program supervisor, for which the need to observe the witness s demeanor is obviously 10

11 greater. (Arreola, supra, 7 Cal.4th at p ) Whether called testimonial or documentary, therefore, the distinction between the admission of hearsay purporting to recount the oral statements of a third-party and the admission of a routine report of a laboratory analysis are significant for due process, and nothing in Melendez-Diaz changes or challenges the Maki-Johnson approach in the due process context Paul s Reliance on Shepherd is Misplaced Paul also directs our attention to Shepherd, supra, 151 Cal.App.4th 1193, which ruled that the good cause standard used in Winson and Arreola, rather than the more lenient standard of indicia of reliability in Maki and Johnson, applied to a witness s live testimony regarding a declarant s out-of-court statement. Shepherd is distinguishable from the matter at hand. At issue in Shepherd was whether a probation officer could testify about what another person told him concerning the defendant s performance in a treatment program. (Shepherd, supra, 151 Cal.App.4th 1198.) At issue in the case now before us, by contrast, is the admissibility of a routine laboratory report merely confirming the nature 5 There is, of course, a big difference between the Sixth Amendment confrontation clause and the Fourteenth Amendment due process clause. Application of the Sixth Amendment confrontation clause in criminal trials depends upon whether the hearsay is testimonial. (Davis v. Washington (2006) 547 U.S. 813, 821; People v. Cage (2007) 40 Cal.4th 965, 981, fn. 10.) There is no balancing test. (Crawford, supra, 541 U.S. at pp , ) By contrast, the Fourteenth Amendment due process right in probation (and parole) proceedings is a practical accommodation of competing interests and therefore applies to hearsay with a flexible rather than absolute rule. (Morrissey v. Brewer (1972) 408 U.S. 471, 472, ; Gagnon, supra, 411 U.S. at pp & fn. 5, ) The United States Supreme Court in Morrissey declared: We emphasize there is no thought to equate this second stage [the hearing procedure] of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial. (Morrissey, supra, 408 U.S. at p. 489, italics added.) The United States Supreme Court in Gagnon stated: While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions and documentary evidence. (Gagnon, supra, 411 U.S. at p. 783, fn. 5.) 11

12 of substances that officers had suspected and seized as contraband. Holding that good cause is necessary for a probation officer to testify about what he was told by someone else, tells us nothing about the standard to be applied to a routine laboratory report from the police department s criminalist unit. The court in Shepherd did cite to Crawford when it concluded that testimony of the declarant s out-of-court statement was testimonial evidence. (Shepherd, supra, 151 Cal.App.4th at pp ) But it would be folly to read too much into that citation. The court did not rule that the Crawford test for testimonial evidence must always be used to distinguish between testimonial and documentary evidence for due process purposes, and it most certainly did not purport to overrule Johnson or conclude that a laboratory report was not documentary evidence for purposes of admission at a probation revocation hearing. Moreover, the appellate division and authoring justice who penned Shepherd also decided Johnson: if there had been any intent in Shepherd to undo what was said in Johnson let alone to embark upon a new due process analysis contrary to our Supreme Court s decision in Maki that intention certainly would have been more directly stated and discussed. Shepherd does not change our long-standing rule that a routine laboratory report may be admitted at a probation revocation hearing upon a showing of its trustworthiness or reliability. 4. The Court Did Not Err In Admitting the Laboratory Report We therefore determine whether the trial court erred in deciding there was sufficient indicia of reliability for admission of the laboratory report. In this regard, the court did not abuse its discretion, and indeed Paul makes no argument to the contrary. While the laboratory report has not even been included in the record, the transcript of the sentencing hearing indicates that the report identified itself as an analysis by the Oakland Police Department s criminalist division, bore Paul s name and a date corresponding to the seizure of the contraband in this case, and analyzed the type of contraband that was seized from Paul and Brown. Paul did not contend in any specific way that there was anything untrustworthy about the document at the hearing. (See 12

13 Johnson, supra, 121 Cal.App.4th at pp [laboratory report showing seized substance to be cocaine was properly admitted at a probation revocation hearing, where a police officer testified that the report was identified by case number and by the defendant s name and came from the crime laboratory that routinely tested narcotics for the police department, and defense counsel made no claim that the report was untrustworthy in any specific way].) Furthermore, there was evidence that Brown acknowledged that the white powder seized from the residence and her person was cocaine, and although Paul denied the cocaine was his, he did not dispute that it was, indeed, cocaine. The trial court did not err in admitting the laboratory report into evidence. B. Reasons for Denial of Probation and Imposition of State Prison Sentence Where the imposition of sentence was originally suspended and the defendant was placed on probation, a subsequent sentence to state prison upon revocation of probation is a sentencing choice requiring a statement of reasons. (Cal. Rules of Court, rule 4.406(b)(2).) A requirement of articulated reasons to support a decision may be essential to meaningful review, act as a guard against careless decisions, insure that the judge analyzes the issue and the grounds for the decision, and aid in preserving public confidence. (See People v. Martin (1986) 42 Cal.3d 437, ) In this context, the record must clearly reflect the trial court understands that two separate and distinct decisions are involved: (1) to revoke [probation]; and (2) to sentence to state prison rather than to place on probation on new or modified conditions. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 795 (Hawthorne).) Paul contends the trial court erred by failing to state reasons for denying probation and imposing state prison. His argument has no merit, for several reasons. First, Paul did not object on this basis at the sentencing hearing. Although his defense counsel argued that Paul should be reinstated on probation, counsel never objected on the ground that the court failed to state adequately its reasons for refusing to 13

14 grant probation or imposing a state prison term. His claim is therefore forfeited. (People v. Scott (1994) 9 Cal.4th 331, ) 6 Second, his claim has no merit. Although the court did not formally state its reasons for denying probation and sending Paul to prison, the reasons are obvious from the reporter s transcript. Before the court pronounced sentence, it heard from defense counsel, who argued that Paul deserved yet another opportunity on probation because he was gainfully employed, had family support, and his offense was not serious or violent. The prosecutor countered that probation was inappropriate in light of Paul s extensive history of drug-related offenses, his pending Health and Safety Code section charge, and the fact he was on probation for another drug offense when he perpetrated his latest offense. It is therefore clear from the record of the sentencing hearing that the court simply did not agree with the defense s position that the circumstances, even as recited by defense counsel, justified giving Paul another grant of probation. The record is thus sufficient for meaningful appellate review (which Paul does not even seek) of the trial court s basis for imposing state prison. And of course, the court was plainly aware of its obligation to consider appropriate sentencing options, as well as its obligation to decide whether probation should be revoked, since the court ordered a separate hearing for the very purpose of sentencing. Third, Paul has not demonstrated a reasonable probability of a better result on remand. (People v. Watson (1956) 46 Cal.2d 818, 836.) As Paul acknowledges, no remand for resentencing is required in this context unless there is a reasonable probability that a different result will ensue. (See People v. Kellett (1982) 134 Cal.App.3d 949, ; People v. Mobley (1983) 139 Cal.App.3d 320, ) Here, the report from the probation department observed that Paul was statutorily ineligible for probation under Penal Code section , subdivision (a)(1). It also cited five aggravating factors: the 6 Paul alternatively contends that his attorney failed to provide effective assistance of counsel by not making a more specific objection. This argument is meritless, because it is not reasonably probable that the trial court would have reinstated Paul s probation on modified terms if defense counsel had objected and asked for a statement of reasons for the imposition of state prison. (See discussion post.) 14

15 underlying crime indicated planning and sophistication; Paul s prior convictions are numerous and of increasing seriousness; Paul served three prior prison terms; Paul was on parole when he committed the underlying offense; and Paul s prior performance on probation and parole had been unsatisfactory. On this record, Paul has not demonstrated that the trial court would have reinstated probation on modified terms if Paul had asked for the reasons underlying the decision to send him to prison, or that the court would rule differently upon remand. Paul argues that probation was appropriate because Paul was not armed, Brown claimed the drugs were hers, and Paul was gainfully employed, was a productive member of society, had family support and a place to live, and had not committed a serious or violent felony. But all of these circumstances were presented to the judge at the sentencing hearing or were within his knowledge from presiding over the probation violation hearing; yet the judge still denied probation and imposed a state prison term. Paul s argument, therefore, only proves there is nothing in the record to suggest that the court would change its mind and grant probation upon remand. Paul next contends the record does not reflect that the judge knew he could impose probation on modified terms. There is, however, no indication that the judge was unaware of this possibility. Nor is there even a hint that any possible modification of the terms of probation would have adequately addressed Paul s predilection for possessing cocaine for sale even while on probation for the very same offense, or make it more likely that he would complete probation satisfactorily. Based on the record, no form of probation, whether on modified terms or not, would be appropriate. Lastly, Paul s reliance on Hawthorne, supra, 226 Cal.App.3d 789 is misplaced. There, the trial court ruled that it was unquestionably clear the defendant s in violation of the terms of his probation, and the motion to revoke is granted, and then sentenced the defendant to state prison without a further hearing or discussion. (Id. at p. 791.) The court s failure to give a statement of reasons in support of its decision to impose a state prison sentence was not harmless, because the record should have clearly reflected that the trial court understood that two distinct decisions were involved revocation and 15

16 imprisonment while the court s statement had focused directly and exclusively on the decision to revoke, and that statement ( it is unquestionably clear the defendant s in violation of the terms of his probation ) did not satisfy the obligation to give a statement of reasons for choosing state prison over probation. (Id. at p. 795.) In the matter before us, by contrast, the court found that Paul had violated his probation on August 18, 2009, and continued the matter for sentencing; at the sentencing hearing on September 25, 2009, the court listened to defense counsel s argument in favor of returning Paul to probation, and then ruled that the request for probation would be denied. It is crystal clear the court knew there was a difference between revoking probation and sentencing him to state prison rather than placing him again on probation. Paul fails to establish reversible error. C. Presentence Custody Credits The court awarded Paul 230 days of presentence conduct credits, based on 460 actual days of presentence custody, at the sentencing hearing on September 25, Paul asserts that an amended version of Penal Code section 4019 should be applied retroactively to increase the number of conduct credits from 230 days to 460 days. Former section 4019 provided in relevant part that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody. (Former 4019, subd. (f), italics added.) By amendment effective January 25, 2010, the statute provided in relevant part 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), italics added, as amended by Stats , 3d Ex. Sess., ch. 28, 50, eff. Jan. 25, 2010.) 7 In People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S (Pelayo), we concluded that the amended presentence conduct credit provisions of section 4019 were retroactive as to all sentences not yet final on direct appeal at the time the amendments went into effect. The California Supreme Court has granted review This provision was deleted by Stats 2010, ch 426, 2, effective September 28, 16

17 of the issue, both in cases that reached the same conclusion as we did, and in cases that reached the opposite conclusion. (E.g., People v. Brown, review granted June 9, 2010, S181963; People v. Rodriguez, review granted June 9, 2010, S ) Pending our Supreme Court s resolution of the issue, we continue to be of the view that the amendment to section 4019 applies retroactively. We therefore incorporate and adopt our reasoning in Pelayo. Accordingly, Paul s conduct credits should have been calculated based on the rule that a term of four days is deemed to be served for every two days in custody. Paul should have been awarded 460 days of presentence conduct credits, bringing the total credits from 690 to 920 days. III. DISPOSITION The trial court shall amend its sentencing order of September 25, 2009, and the abstract of judgment to reflect 460 days of presentence conduct credits rather than 230, and total presentence credits of 920 days rather than 690. With such amendment, the orders of August 18, 2009, and September 25, 2009, are affirmed. NEEDHAM, J. We concur. JONES, P. J. BRUINIERS, J. 17