IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

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1 Filed 9/24/09 P. v. Laureano CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. LEOVIC ARANETA LAUREANO, Defendant and Appellant. A (Marin County Super. Ct. No. SC150232B) Defendant Leovic Araneta Laureano appeals a judgment entered upon a jury verdict finding him guilty of commercial burglary (Pen. Code, 1 459) (count 1), identity theft ( 530.5) (count 2), sale and transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 3), receiving stolen property ( 496, subd. (a)) (count 4), possession for sale of methamphetamine (Health & Saf. Code, 11378) (count 5), and possession of a forged driver s license ( 470b) (count 6), and finding true various allegations of circumstances in aggravation. The trial court found the midterm appropriate, and imposed a sentence of three years on count 3 as the principal term, consecutive eight-month terms for counts 1, 2, and 6 as subordinate terms, and a concurrent two-year term for count 4. Defendant contends on appeal that the trial court erred in submitting the aggravating circumstance allegations to the jury, and that he is entitled to additional presentence credits. We agree that defendant is entitled to additional actual time and conduct credits for the period between his initial sentencing 1 All undesignated statutory references are to the Penal Code. 1

2 and the date he was sent to the California Rehabilitation Center (CRC) and for the period between his exclusion from CRC and his resentencing, and that he is entitled to actual time credits for the full time he spent at CRC. We shall remand the matter to the trial court to calculate those credits. In all other respects, we shall affirm the judgment. I. BACKGROUND On January 30, 2006, someone took Mardelle Conn s purse from the back of her chair as she ate in a restaurant. Her driver s license and credit cards were in the purse. On June 7, 2006, someone stole Jeffrey Grubler s backpack, which contained his birth certificate, driver s license, and credit card. On approximately October 10, 2006, someone broke into Chad Hagood s car and stole a laptop computer, his day planner, and a bag containing information on real estate transactions he was working on. One of Hagood s clients, Robert Coney, had given him personal information, including copies of his birth certificate, pay stub, social security card, and driver s license information. Defendant and his codefendant, Dennis Joseph Lastra, 2 went to Mike s Bikes in Sausalito on October 22 to buy a bicycle using $7,500 credit obtained through a third party finance company, American General. Defendant filled out a form initially putting the bicycle in the name of Robert Coney, but changed the name Robert to Steve, saying he was buying the bicycle for his brother and wanted it in his brother s name. 3 He decided to add a second bicycle and other equipment onto the order. Lastra had very limited involvement in the transaction, while defendant spoke with the sales associate about the sale and filled out most or all of the paperwork. The manager of the store, Bijan Kazemi, checked defendant s identification, which was in the name of Robert Coney, noticed that the word expires was misspelled, and suspected it was a fake identification. Kazemi asked for a second form of identification, and defendant and Lastra left, saying they would return. Kazemi called the sheriff s office, gave them the 2 The jury deadlocked on the charges against Lastra, and the trial court declared a mistrial as to those charges. 3 Coney had never applied for credit at Mike s Bikes. 2

3 driver s license number, and was told the license was fake. Defendant and Lastra later returned to Mike s Bikes. After they started filling out the rest of the paperwork, Deputy Sheriff Mike Brovelli arrived at the bike shop. Brovelli asked defendant his name, and defendant said it was Robert Coney. He showed Brovelli identification with Robert Coney s name and address, but defendant s own picture. Brovelli asked if the identification was fake, and defendant admitted that it was. He told Brovelli he earned his living by using fake identifications to buy merchandise. Inside the truck defendant and Lastra had been using, Brovelli and Deputy Sheriff Kirk Mercereau found a black bag. In a slit on the interior of the bag there was a clear bag, which contained grams of a substance that was later determined to be methamphetamine. The bag also contained a small amount of marijuana, a hypodermic needle, two cell phones, and a planner. The planner contained the addresses, phone numbers, and social security numbers of several people, including Coney. Grubler s birth certificate was also found in the planner. In addition, the black bag contained several driver s licenses, credit cards, gift cards, a counterfeit detection pen, and a computer memory stick. The licenses had different people s names and license numbers, including Conn s, but showed defendant s photograph. Copies of Coney s tax returns, checks and credit reports, as well as Hagood s day planner were also found in the truck. After being advised of his rights, defendant told Brovelli the bag belonged to him, and that the substance found in the bag was probably speed. He told Brovelli he injected methamphetamine, and that the last time he had done so was three days beforehand. Jesse Klinge of the Marin County Sheriff s Department s Major Crimes Task Force 4 testified that a normal dose of methamphetamine was one-tenth of a gram, which would typically provide a high lasting four to six hours. A real high-end user, someone who is a total addict might use as much as a gram a day or in rare cases a little 4 The Major Crimes Task Force specialized almost exclusively in narcotics investigations. 3

4 more. In Klinge s opinion, a person in possession of grams of methamphetamine or approximately 180 doses would possess it for purpose of sale, rather than for personal use. Possession of three and a half grams would be on the high end for personal use, and possession of anything above that amount was likely to be for purposes of sale. The value of the methamphetamine in the truck was between $500 and $700. II. DISCUSSION A. Jury Trial of Aggravating Factors The jury heard evidence and rendered its verdicts between March 8 and March 16, 2007, after the United States Supreme Court held in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), that California s determinate sentencing law (DSL) did not comply with the constitutional right to a jury trial. [U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Id. at p. 281; see also People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).) At the time, the DSL specified that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Former 1170, subd. (b).)... As summarized in Cunningham, supra, 549 U.S. at page [127 S.Ct. at p. 826], California s DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts whether related to the offense or the offender beyond the elements of the charged offense. The high court concluded in Cunningham that for Sixth Amendment purposes, the middle term under the DSL was the maximum term that could be imposed on the basis of the jury s verdict alone. (549 U.S. at p. [127 S.Ct. at p. 868].) (Sandoval, at p. 836, fn. omitted.) In response to Cunningham, the Legislature amended the DSL effective March 30, 2007, to provide in part: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court s 4

5 discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected.... ( 1170, subd. (b); see also Historical and Statutory Notes, 50C West s Ann. Pen. Code (2009 supp.) 2007 Legislation, foll. 1170, pp ; Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) This amendment was made after the jury s verdicts but before defendant was sentenced. In July 2007, our Supreme Court in Sandoval, after concluding that a defendant s constitutional right to a jury trial had been violated by the imposition of an upper term, remanded the case for resentencing, and held that the trial court could exercise its discretion to impose any of the three terms available in a manner consistent with the revisions to the DSL. (Sandoval, at pp , ) Trial in this matter took place during the brief period after the decision in Cunningham and before the decision in Sandoval, a time during which trial courts scrambled to determine how to apply [the] academic holding [of Cunningham] to the real world of criminal cases pending trial. (Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1481.) Acknowledging the high court s decision in Cunningham, the trial court submitted to the jury special verdict forms asking it to find, as to each count, whether defendant was guilty beyond a reasonable doubt of three aggravating factors: that the manner in which the crime was carried out indicated planning or professionalism; that the defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; and that the crime involved a large quantity of contraband. The jury found the allegation of planning or professionalism true as to counts 1, 2, 3, 4, and 5; the allegation that defendant induced others to participate in the crime or occupied a position of leadership true as to counts 1, 2, 3, and 4; and the allegation that the crime involved a large quantity of contraband true as to all counts. Defendant contends that the trial court should not have submitted the special verdicts to the jury, that if it did so it should have submitted them after the jury decided his guilt or innocence of the charged crimes, and that he was prejudiced by the procedure 5

6 the trial court followed. In particular, he relies on Sandoval to argue that the circumstances in aggravation should not have been submitted to the jury in this manner. In Sandoval, our Supreme Court declined to order a jury trial of aggravating circumstances, noting the complications and confusions inherent in such a procedure, and indicating that a jury is not well suited to make findings on many of the aggravating circumstances listed in the California Rules of Court, because the listed circumstances may include imprecise terms that implicitly require comparison of the particular crime at issue to other violations of the same statute. (Sandoval, supra, 41 Cal.4th at p. 849.) As examples of such factors, the court cited the determination of whether [t]he victim was particularly vulnerable, or whether the crime involved... taking or damage of great monetary value or a large quantity of contraband. (Cal. Rules of Court, rule 4.421(a)(3), (9), (10), italics added.) (Ibid.) We need not decide whether the procedure the trial court followed was proper, because we see no possibility that it affected either the verdicts or the sentence. Defendant contends that he was prejudiced by the trial court s refusal to have the aggravating circumstances tried in a bifurcated proceeding, arguing that the submission of the question of aggravating factors skew[ed] the jury toward guilt ; according to defendant, his guilt was presupposed when the jury was allowed to consider such issues as planning and professionalism, whether [he] induced others or occupied a leadership position, or what constituted a large quantity of contraband. 5 He also argues the procedure improperly allowed the jury to speculate on his punishment during its deliberations about his guilt. We reject these contentions. The trial court instructed the jury pursuant to CALCRIM No that if it found defendant guilty of the crimes charged, or a lesser included offense, it must then decide whether, for each crime, the People had proved the additional allegations. Thus, the jury was clearly instructed that it 5 Defendant acknowledges that at trial, he essentially conceded guilt as to all counts except transportation and possession for sale of methamphetamine (counts 3 and 5), but contends the procedure the trial court followed impermissibly swayed the jury as to the methamphetamine counts. 6

7 should consider the additional allegations only after it had found defendant guilty of the crimes in question. We presume the jury was able to understand and follow this instruction, and nothing supports defendant s contention that the allegations tainted the jury s determination as to defendant s guilt. (See People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Wilson (2008) 43 Cal.4th 1, 29.) This is not a case in which the evidence in support of the enhancement allegations might have swayed the jury in considering defendant s guilt of the offenses in question. In People v. Calderon (1994) 9 Cal.4th 69, our Supreme Court considered whether a trial court abused its discretion in denying a defendant s request for bifurcation of the trial on prior conviction allegations. The court declined to require bifurcation of the truth of prior conviction allegations in all trials, concluding instead that the denial of a request for bifurcation was an abuse of discretion in cases where admitting evidence of the alleged prior conviction would pose a substantial risk of undue prejudice to the defendant. (Id. at pp , ) Here, all of the evidence relevant to the aggravating factors the planning and professionalism involved in the crimes, defendant s role as a leader, and the amount of contraband was integral to defendant s guilt of the crimes themselves. (See People v. Hernandez (2004) 33 Cal.4th 1040, [no abuse of discretion in denying bifurcation of gang enhancement where gang enhancement was attached to the charged offense and..., by definition, inextricably intertwined with that offense ].) Defendant s contention does not seem to be that the jury s finding of the truth of the aggravating factors impermissibly affected his sentencing. In any case, we would reject such a claim, as the trial court sentenced defendant to the midterm, rather than the upper term. In addition, the trial court sentenced defendant after our Supreme Court issued its ruling in Sandoval, and although the court did not mention Sandoval, we would have no reason to conclude the trial court did not exercise its discretion in accordance 7

8 with that decision. 6 In the circumstances, defendant suffered no prejudice from the submission of the aggravating factors to the jury. B. Additional Conduct and Worktime Credits After sentencing defendant on August 22, 2007, the trial court suspended the criminal proceedings and committed defendant to CRC pursuant to Welfare and Institutions Code section On May 13, 2008, CRC notified the trial court that it had evaluated defendant and concluded he was not suitable for the Civil Addict Program because he had a prior out-of-state conviction for rape of a child and the program was not designed to treat sex offenders. CRC noted that defendant had been received by the Civil Addict Program on August 28, 2007, and calculated that as of May 13, 2008, he had been in custody at CRC for 257 days, to be applied to his sentence time. On May 23, 2008, the trial court reinstated criminal proceedings and committed defendant to prison for the previously suspended sentence, awarding him 257 days credit for his time at CRC, but no good conduct or worktime credits for that period. The court did not include any other credits beyond those included when defendant was originally sentenced in Defendant contends the trial court miscalculated his credits for actual time, good conduct ( 4019) and worktime ( 2933). 7 Defendant makes several contentions: (1) that 6 Although Sandoval by its terms applies only to resentencing, its analysis applies as well to the initial sentencing for crimes committed before Sandoval was announced. (See People v Superior Court (Brooks) (2007) 159 Cal.App.4th 1, 8.) 7 Section 4019 provides time credits for work and good behavior for prisoners confined in a county or city jail, industrial farm, or road camp, including on days from the date of arrest to the date the prisoner begins serving the sentence. We shall refer to credits under section 4019 as conduct credits. Section 2933 provides in part: (a) It is the intent of the Legislature that persons convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Director of Corrections for performance in work, training or education programs established by the Director of Corrections. Worktime credits shall apply for performance in work assignments and performance in elementary, high school, or vocational education programs.... For every six months of full-time performance in a credit qualifying program, as designated by the director, a prisoner shall be awarded worktime credit reductions from his or her term of confinement of six months.... Except as provided in 8

9 he is entitled to five additional actual days credit between his original commitment to CRC on August 22, 2007, and the time he arrived at CRC on August 28, 2007, and to conduct credits for that time; (2) that he is entitled to 10 additional actual days credit between his discharge from CRC on May 13, 2008, and his sentencing on May 23, 2008, and to conduct credits for that time; (3) that he spent 260 days at CRC before being excluded, rather than 257, and is therefore entitled to an additional three days actual time credit; and (4) that he is entitled to worktime credits for the time he spent at CRC before his exclusion. The Attorney General concedes that defendant is entitled to actual time credits and conduct credits under section 4019 for the time he spent waiting to be transported to CRC and for the period between the time he was discharged and his sentencing, and does not appear to dispute that defendant is entitled to additional actual time credits based on the full length of his commitment at CRC. We agree that defendant is entitled to these additional credits. (See People v. Nubla (1999) 74 Cal.App.4th 719, (Nubla).) On remand, the trial court shall recalculate the number of credits to which defendant is entitled to include actual time and good conduct credits for the period from defendant s August 22, 2007, sentencing to his August 28, 2007, arrival at CRC, and the period from May 13, 2008, to May 23, 2008, as well as actual time credits for the period between August 28, 2007, and May 13, The parties disagree, however, on the question of whether defendant is entitled to worktime credit under section 2933 for the time he spent at CRC. As explained in Nubla: It is settled that a defendant is not entitled to worktime or conduct credits for time served at CRC. [Citations.] A defendant is, however, entitled to Penal Code section 4019 subdivision (a) of Section 2932, every prisoner willing to participate in a full-time credit qualifying assignment but who is either not assigned to a full-time assignment or is assigned to a program for less than full time, shall receive no less credit than is provided under Section We shall refer to these credits as worktime credits. [Q]uasiworktime credit is available on a one-for-two basis to prison inmates who are willing but unable to perform a full-time assignment. (People v. Rodriguez (1997) 52 Cal.App.4th 560, (Rodriguez); Cal. Code Regs., tit. 15, 3044, subd. (b)(3).) 9

10 conduct credits from the time of his or her exclusion from CRC for time spent either at CRC or in county jail. [Citation.] It also has been held that at least in some instances a defendant who has been excluded from CRC is entitled to worktime credits notwithstanding that after exclusion the defendant continues to be held at the CRC institution. (Nubla, supra, 74 Cal.App.4th at p. 731; People v. Guzman (1995) 40 Cal.App.4th 691, 695.) The court in Nubla relied on the decision in Rodriguez, in which the Court of Appeal concluded that a defendant who had been excluded from CRC for medical reasons should receive the same worktime credits under section 2933 that were available to prison inmates who were willing to participate in work or educational programs, and that the credits should apply from the date of the formal notification that she was not suitable... to the date of her return to Napa County custody.... (Rodriguez, supra, 52 Cal.App.4th at p. 565.) Defendant argues, however, that he is entitled to worktime credits under section 2933 for the time he spent at CRC before he was formally excluded. He relies on People v. Mitchell (2004) 118 Cal.App.4th 1145 (Mitchell). The trial court there sentenced the defendant to state prison, suspended execution of sentence, and committed the defendant to CRC for treatment. Three weeks after arriving at CRC, the defendant was declared ineligible for CRC because he was on parole at the time of his commitment. He was transferred to the county jail for resentencing approximately three months later. (Id. at p ) After deciding that the defendant was entitled to credits under either section 4019 or section 2933 for the period from the time he was declared ineligible for CRC commitment until he was transferred to the county jail for resentencing, the court went on to conclude that he was entitled to worktime credits under section 2933 for the three weeks the defendant spent at CRC before being formally excluded. (Mitchell, at pp ) The court based this conclusion on the fact that, in light of CRC s policy of not accepting parolees, the defendant was not eligible for a CRC commitment at the time he arrived at CRC, and went on to state, In our view, ineligibility that is neither the result of the defendant s postsentencing conduct nor within his control voids the commitment and triggers the defendant s right to receive the same credits he would have 10

11 received had he been sentenced to prison in the first instance. [Citations.] Equal protection permits no other result where, as here, there is nothing in the record to suggest [the defendant] received treatment or any other benefit during any of the time he was confined at CRC. (Id. at p ) The Court of Appeal concluded it was likely that during the three weeks the defendant spent at CRC before being excluded, he did not receive any benefit but instead spent those 21 days somewhere in the midst of a bureaucratic maze and that he was entitled to section 2933 credits for those days. (Mitchell, at p ) The situation before us is different from that at issue in Mitchell. Rather than being at CRC for only three weeks, a time that the Court of Appeal concluded was probably spent in a bureaucratic maze, defendant here was at CRC for more than eight months, and his attorney told the court that defendant was benefiting from the program at CRC (italics added), to the point that he wished to be housed there after his second sentencing. In these circumstances, it was appropriate for the trial court to apply the general rule that a CRC committee is not entitled to worktime credits for time spent at CRC before being formally excluded. III. DISPOSITION The cause is remanded to the trial court with directions to recalculate Laureano s actual day credits and section 4019 credits in a manner consistent with the views expressed in this opinion, to prepare a corrected abstract of judgment, and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. We concur: RIVERA, J. REARDON, Acting P.J. SEPULVEDA, J. 11