THE PEOPLE v. JOSE ROLANDO AVILES

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE ROLANDO AVILES, Defendant and Appellant.

F059014

Decided: February 24, 2011

Alan K. Mason, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

Defendant Jose Rolando Aviles was convicted of various charges after he was observed shoplifting in a grocery store.   On appeal, he contends (1) the trial court erred by admitting the preliminary hearing testimony of an unavailable witness, (2) insufficient evidence supported the conviction for petty theft with a prior theft-related conviction, and (3) the amended version of Penal Code section 4019 should have applied retroactively.1  We will reduce the conviction for petty theft with a prior theft-related conviction to petty theft, and remand for resentencing.   In all other respects, we will affirm the judgment.

PROCEDURAL SUMMARY

On June 11, 2009, the Merced County District Attorney charged defendant with burglary (§ 459;  count 1), petty theft with a prior conviction (§§ 488, 666;  count 2), criminal threats (§ 422;  count 3), two counts of battery (§ 242, a misdemeanor;  counts 4 & 5), trespassing (§ 602, subd. (m);  count 6), providing false information to a peace officer (§ 148.9, subd. (a), a misdemeanor;  count 7), and resisting a peace officer (§ 148, subd. (a), a misdemeanor;  count 8).

On July 24, 2009, a jury found defendant guilty of second degree burglary (count 1), petty theft (count 2), simple assault (the lesser included offense of count 5), and providing false information to a peace officer (count 7).   The jury found him not guilty on counts 3, 4, 6 and 8.

In a bifurcated proceeding, defendant admitted a 1976 prior theft conviction on count 2 and the trial court found true the prior conviction and incarceration term pursuant to section 666.

On October 23, 2009, the trial court granted defendant three years of formal probation, including six months in the county jail.   The court awarded defendant 100 days of actual custody credit and 50 days of conduct credits for a total of 150 days of credit.

On October 27, 2008, Save Mart's loss prevention officer, Colunga, saw defendant stuffing items into a plastic Save Mart bag in a store aisle.   Defendant had been barred from the store due to his previous shoplifting.   When Colunga approached defendant, he began walking away from Colunga and toward an exit.   Colunga told him he needed to stop.   As defendant got close to an exit, he threw the bag to the side and said, “I got nothing, I got nothing.”   Colunga told him to stop so he could confirm he had nothing inside his clothes.   Defendant refused and acted as though he might do something aggressive.   Colunga and another employee escorted him to the office.   When Colunga produced handcuffs, defendant jumped up, pushed Colunga, then pushed the other employee and tried to run past him out of the office.   The employee grabbed defendant and other employees joined the struggle.   Eventually, they tumbled to the ground and defendant was handcuffed.   The employees picked up defendant, walked back to the office, and put him in a chair.   At that point, defendant told Colunga he knew where he worked and he was going to come back and kill him.   When the police arrived, defendant identified himself with a false name.   He yelled at Colunga and the other employees.2

Defense Evidence

Defendant testified that he, his wife, and his daughter stopped at Save Mart to pick up some cereal and bread.   His wife got a call while in the car, so he told her to meet him inside in the checkout line.   Once inside, he found a plastic bag in his pants, which he believed his daughter had put in his pocket.   He got the idea to put things into the bag.   When Colunga approached him, he asked Colunga to let him go because he had done nothing.   Defendant told Colunga he had put the “stuff” back and he was sorry.   He apologized because he felt bad and he should have just done what he was supposed to do by waiting in the line for his wife.   He realized his actions were suspicious, but he had a change of heart and put the items back.   Nevertheless, Colunga took him to the office.   When defendant saw the handcuffs, he got nervous and tried to run.   He told Colunga that God was going to punish him for calling the police over a loaf of bread and a box of cereal.

Defendant testified that the name he gave the officers was his father's name.

When asked if he had ever been convicted of a felony, defendant said he had pled no contest to charges arising from a paycheck someone had given him.

On cross-examination, defendant testified that he felt bad because he knew what he was doing was wrong.   As he stood in the aisle, he thought about stealing, but he had a change of heart and he did not go through with the intent to steal.   Defendant explained that he picked up the items in one of the aisles, then put the items back when he dropped the bag at the cheese section about 15 feet from the store's exit.   He said he dropped the bag there at least 30 or 45 seconds before Colunga contacted him.   He was ready to leave the store when Colunga blocked him and told him he could leave if he told him where the items were.   After defendant pointed to the bag, Colunga told him to follow him to the office.   Defendant thought Colunga was upset because he could not catch him stealing.

Defendant intended to steal only a box of cereal and a loaf of bread.   He did not remember taking a beer.   He denied telling Colunga he would come back and kick his ass.

Defendant testified that in 2002, he had been arrested and convicted for possessing an unauthorized check.   It had not been explained to him that it was a conviction for passing completed checks with the intent to defraud, a violation of section 475, subdivision (c).

Defendant also testified that he had gotten in trouble in Petaluma in 1977 when he was very young.   He did not remember being in trouble in the 1990's in South San Francisco.   When shown his rap sheet, defendant explained it contained misdemeanors and the prosecutor was trying to make him look like a bad criminal.

Defendant's common law wife testified that she waited in the car while defendant went into Save Mart. She shopped there at least once per week.   She assumed defendant had money when he went inside the store.   She kept her eye out for defendant, but she did not see him waving at her to pay.   After about 15 minutes, an officer came to her car and spoke to her about defendant.   Defendant later told her he had a discount ticket for buying groceries when he went into Save Mart. She had never heard or seen defendant use his father's name.

DISCUSSION

I. Admission of Preliminary Hearing Testimony

Defendant contends his Sixth Amendment right to confront witnesses was violated when the trial court admitted the prior preliminary examination testimony of Colunga after the court's finding that he was unavailable under Evidence Code section 240.   Defendant argues that at the preliminary hearing, he had not yet been charged with burglary and theft, and therefore he possessed a different interest and motive in his cross-examination of Colunga.   Defendant says he would not have been motivated to ask questions designed to refute the burglary and theft charges because they had not yet been brought.   Defendant explains that Colunga was the only prosecution witness who could establish the taking and asportation elements of the petty theft charge, and therefore the error was not harmless.

The People counter that because the charges were factually intertwined, defendant's interest and motive in cross-examination were not materially different at the two proceedings.   The People further assert that any error was harmless beyond a reasonable doubt in light of defendant's admission to every element of larceny while on the stand.

The confrontation clause of the Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant to confront and cross-examine witnesses who testify against him.  (Crawford v. Washington (2004) 541 U.S. 36, 42.)  “The right of confrontation is not absolute, however, and may ‘in appropriate cases' bow to other legitimate interests in the criminal trial process.  [Citations.]  An exception to the confrontation requirement exists where the witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant, and was subject to cross-examination by that defendant.  [Citations.]”  (People v. Carter (2005) 36 Cal.4th 1114, 1172.)

“California permits the use of the prior testimony of a witness against a criminal defendant only when the unavailability of the witness and the reliability of the testimony are established. (§ 686;  Evid.Code, § 1291, subd. (a)(2).)”  (People v. Carter, supra, 36 Cal.4th at p. 1172.)  “The testimony is deemed reliable if ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’   (Evid.Code, § 1291, subd. (a)(2).)”  (Ibid.) The preliminary hearing testimony of an unavailable witness may be admitted under these principles.   (Id. at pp. 1172-1173.)

Here, it is undisputed that defendant had the opportunity to cross-examine Colunga at the preliminary hearing and, therefore, the threshold criterion for admissibility of his prior testimony was met.  (Crawford v. Washington, supra, 541 U.S. at p. 59;  People v. Carter, supra, 36 Cal.4th at p. 1172.)   Defendant argues, however, that his opportunity for cross-examination was inadequate because he was facing fewer charges than those on which he was later tried.   This argument is without merit.

The cross-examination conducted at the prior hearing need not be an exact substitute for cross-examination that would be conducted at trial if the witness were present.  (People v. Zapien (1993) 4 Cal.4th 929, 975.)   “Frequently, a defendant's motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial.   For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only ‘similar.’  [Citation.]  Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions-not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution.   [Citations.]”  (Ibid.) Generally, at both the preliminary hearing and trial, the defendant's underlying interest and motive for cross-examination of a witness for the prosecution are similar-to discredit the witness's account of the criminal activity.  (People v. Wharton (1991) 53 Cal.3d 522, 590.)

In this case, the subsequent changes in the charges did not render the cross-examination of Colunga less valuable.   At defendant's preliminary hearing, both the prosecutor and defense counsel asked Colunga questions about his initial observation of defendant in the store.   Colunga explained he saw defendant holding a bag and stuffing items into it.   Then, as Colunga approached, he saw defendant throw the bag to the side.   Colunga's testimony established that defendant took the store property and carried it with him some distance before abandoning it.   Nothing in the preliminary hearing record suggests there was any impediment to defense counsel's ability to discredit the account of the facts by Colunga to the fullest extent permitted by law.  (People v. Wharton, supra, 53 Cal.3d at p. 590.)   We conclude that defendant's interests and motives at the preliminary hearing were sufficiently similar to those at trial to satisfy the requirements of similar interest and motive demanded by the confrontation clause, as well as Evidence Code section 1291, subdivision (a).  (People v. Carter, supra, 36 Cal.4th at pp. 1172-1173;  People v. Zapien, supra, 4 Cal.4th at p. 975.)  “ ‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’  [Citations.]”  (United States v. Owens (1988) 484 U.S. 554, 559.)   While Colunga's cross-examination might not have been as extensive as defendant would wish, we conclude that it comports with the confrontation clause's guarantee of an opportunity for effective cross-examination.  (Ibid.)

Furthermore, defendant himself provided evidence of the taking and asportation elements of petty theft in his trial testimony.   Thus, any deficiency in cross-examination of Colunga regarding these elements was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24.)

II. Sufficiency of the Evidence-Section 666

Defendant contends insufficient evidence supported his conviction for petty theft with a prior theft-related conviction because there was no evidence he was incarcerated for that conviction, as required by section 666.   The People conceded at oral argument.   Now both parties concur that we should reduce defendant's conviction to simple petty theft, a misdemeanor.

We agree and, pursuant to section 1260,3 will reduce the conviction to petty theft, a violation of section 488, and remand for resentencing.

III. Section 4019

Lastly, defendant contends the amended version of section 4019 applied to him retroactively and therefore he was entitled to more custody credits.4  He recognizes that this court has held the statute does not apply retroactively (People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808).  We decline defendant's invitation to reconsider our position.

Under section 3, it is presumed that a statute does not operate retroactively “ ‘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 operate retroactively.  (Id. at p. 754.)   Therefore, the amendment applies prospectively only.

We recognize that in In re Estrada (1965) 63 Cal.2d 740, the 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 its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.

We conclude further that prospective-only application of the amendment does not violate appellant's equal protection rights.   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].)

DISPOSITION

The conviction for petty theft with a prior theft-related conviction (§§ 488/666) is reduced to petty theft (§ 488), a misdemeanor.   In all other respects, the judgment is affirmed.   We remand the matter for resentencing and for issuance of a new abstract of judgment.

Kane, Acting P.J.

WE CONCUR:

Poochigian, J.

Detjen, J.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise noted..  FN1. All statutory references are to the Penal Code unless otherwise noted.

FN2. The prosecution witnesses included Colunga, who was unavailable at trial.   His preliminary hearing testimony was read to the jury..  FN2. The prosecution witnesses included Colunga, who was unavailable at trial.   His preliminary hearing testimony was read to the jury.

FN3. Section 1260 provides:  “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”.  FN3. Section 1260 provides:  “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”

FN4. The amended version of section 4019 became effective in January 2010.  (Stats.2009-2010, 3d Ex.Sess.2009, ch. 28, § 50.)  Section 4019 was further amended, effective September 28, 2010.  (Stats.2010, ch. 426, § 2.) The September 2010 amendments do not affect this case or change our analysis..  FN4. The amended version of section 4019 became effective in January 2010.  (Stats.2009-2010, 3d Ex.Sess.2009, ch. 28, § 50.)  Section 4019 was further amended, effective September 28, 2010.  (Stats.2010, ch. 426, § 2.) The September 2010 amendments do not affect this case or change our analysis.