PEOPLE v. AVILA

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jaime AVILA, Defendant and Appellant.

No. B064818.

Decided: June 30, 1993

Lisa M. Bassis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

Appellant, Jaime Avila, appeals from a judgment of conviction for the unlawful driving or taking of an automobile in violation of Vehicle Code section 10851, subdivision (a).   We affirm the judgment of conviction but modify the sentence to conform to the legislative scheme effective January 1, 1993, for punishment of violations of that statute.

FACTS AND PROCEEDINGS BELOW

In the early morning hours of July 27, 1991, Lewis Barker parked his 1990 Honda automobile on a street in Cerritos.   The next morning he discovered the car was gone and reported it stolen to the police.

During the evening of July 28, 1991, the police observed appellant commit a moving violation in a 1990 Honda.   A routine check revealed the car had been reported stolen.   The officer gestured to the driver to pull over but the driver instead sped up and made a quick turn onto a side street.   As the car turned the corner it was momentarily out of the officer's sight.

The officer visually identified appellant as the driver of the car.

As the officer followed appellant onto the side street, he saw appellant standing near the driver's side of the Honda which was now parked at the curb.   Some people were standing in front of the house where the Honda was parked, including one James Perkins who was well known to the police.   Appellant was arrested and taken into custody.

Appellant testified in his own defense at trial.   He claimed he and his wife had been at that house for over an hour visiting a female friend.   He testified he and Perkins were leaving the house to go out for a drink when he was arrested.   In rebuttal, the officer testified no woman identifying herself as either appellant's wife or friend inquired after appellant's welfare at the scene.

In an amended information, appellant was charged with the unlawful driving or taking of an automobile (Veh.Code, § 10851, subd. (a)).  The information also alleged appellant had suffered five prior felony convictions for robbery, burglary, attempted grand theft and two for possession for sale of a controlled substance.

Trial was to a jury which found him guilty as charged.   Trial of the prior felony conviction allegations was bifurcated and tried to the court sitting without a jury.   The court found true the allegations appellant had served two prior prison terms (Pen.Code, § 667.5, subd. (b)) and added two years to the mid-term of three years imposed for the conviction for unlawful driving or taking of an automobile (Veh.Code, § 10851, subd. (a)).

Appellant appeals from the judgment of conviction and sentence.

DISCUSSION

I. APPELLANT'S CASE WAS NOT PREJUDICED BY HIS COUNSEL'S ALLEGED INEFFECTIVENESS.

Appellant alleges he was denied effective assistance of counsel because counsel failed to object and request an admonition when the prosecutor asked whether he had a prior conviction for possession for sale of a controlled substance in violation of the trial court's ruling.

 “Defendant bears the burden of proving ineffective assistance of counsel.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable.  (People v. Ledesma (1987) 43 Cal.3d 171, 216–218, 233 Cal.Rptr. 404, 729 P.2d 839;  see also People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144;  Strickland v. Washington (1984) 466 U.S. 668, 687–696, 104 S.Ct. 2052, 2064–2069, 80 L.Ed.2d 674.)   When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation.   If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation’ (People v. Pope, supra, 23 Cal.3d at p. 426 [152 Cal.Rptr. 732, 590 P.2d 859] ), the contention must be rejected.”  (People v. Haskett (1990) 52 Cal.3d 210, 248, 276 Cal.Rptr. 80, 801 P.2d 323.)

Prior to appellant's testimony defense counsel requested a ruling which would limit the prosecution's use of appellant's prior convictions for impeachment purposes.   Counsel argued to exclude appellant's 1983 convictions as being too remote in time, but conceded the propriety of impeachment for the 1987 conviction.   The trial court disagreed the 1983 convictions were too remote given appellant's continuing criminal activity.   The court, nevertheless, exercised its discretion to prevent impeachment on appellant's convictions for possession for sale of controlled substances because the arresting officer had testified the area where appellant was arrested was a “heavy narcotics area.”

Specifically, the trial court ruled:  “Possession for sale of a controlled substance, since there has been testimony in regard to this being a narcotic hangout, it might be detrimental to the defendant.  [¶] I might be more inclined to limit it to the robbery, to the burglary, and to the attempted grand theft property, but those obviously deal with moral turpitude.   I find them recent by way of time.   I don't find them similar to the charges against the defendant, save and except maybe the grand theft and burglary, as being a theft, but notwithstanding that, they're not directly related, so in the weighing process, the court would allow impeachment for the robbery, the burglary, and the attempted grand theft.”

On cross-examination the prosecutor asked appellant whether he had been convicted of the felonies deemed proper impeachment by the court, as well as whether he had been convicted of possession for sale of a controlled substance.   Appellant answered in the affirmative to each question.   Defense counsel did not object and did not request the trial court to admonish the jury.

 Whether intentional or inadvertent (People v. Bolton (1979) 23 Cal.3d 208, 214, 152 Cal.Rptr. 141, 589 P.2d 396), it is misconduct for a prosecutor to elicit evidence in violation of clear trial court rulings.   (People v. Bonin (1988) 46 Cal.3d 659, 689, 250 Cal.Rptr. 687, 758 P.2d 1217.)   However, failure to object and request an admonition in the trial court precludes review of the alleged misconduct on appeal unless an admonition would not have cured the harm caused by the misconduct.  (People v. Haskett, supra, 52 Cal.3d at p. 244, 276 Cal.Rptr. 80, 801 P.2d 323;  People v. Price (1991) 1 Cal.4th 324, 447, 3 Cal.Rptr.2d 106, 821 P.2d 610.)   Because the alleged misconduct in this case is not reviewable, appellant contends he was denied effective assistance of counsel by counsel's failure to object to the improper question.   The reason for counsel's omission does not appear in the record.   Appellant's claim of ineffective assistance of counsel may therefore be rejected out of hand.  (People v. Haskett, supra, 52 Cal.3d at p. 249, 276 Cal.Rptr. 80, 801 P.2d 323.)

 In any event, appellant has not demonstrated how the result might have been more favorable to him had counsel objected.   In the absence of a showing of prejudice from the alleged omission, a claim for ineffective assistance of counsel is also properly rejected.  (People v. Pensinger (1991) 52 Cal.3d 1210, 1276, 278 Cal.Rptr. 640, 805 P.2d 899.)

First, the effect of appellant's admission of a prior felony conviction for possession for sale of a controlled substance was effectively neutralized by trial court.   Immediately after appellant admitted the prior felony convictions, the trial court instructed the jury on the limited purpose for which they could consider this testimony.   The trial court instructed the jury:  “The fact that a witness has been convicted of a felony, if such be a fact, it may be considered by you only for the purpose of determining the believability of that witness․”

Secondly, appellant offered a neutral reason for being in the neighborhood.   He testified he often spent time in that neighborhood because he was born and raised there and still had many friends living in the area.

Third, the evidence did not suggest appellant went to that area or house to buy or sell drugs but drove there in an attempt to avoid police detection and to blend into the group of people usually milling about that residence.

Fourth, because appellant was impeached concerning his prior convictions for burglary, robbery and grand theft, the additional impeachment concerning his drug related conviction did not have a significant material impact in the prosecution for a wholly unrelated theft crime.

Finally, because of the foregoing reasons and because the evidence against him was so strong, we do not believe it is reasonably probable the result would have been more favorable had counsel objected to the prosecutor's question concerning the prior drug conviction or had the jury not heard that evidence.   As a result, we conclude neither the prosecutor's misconduct nor counsel's alleged failings constitute reversible error.1

II. APPELLANT DID NOT ADMIT THE TRUTH OF THE PRIOR CONVICTION ALLEGATIONS FOR ENHANCEMENT PURPOSES AND THEREFORE YURKO ADVISEMENTS AND WAIVERS WERE NOT REQUIRED.

Appellant next contends the trial court committed reversible error because the totality of the circumstances do not reflect he was either expressly admonished of his constitutional right to confrontation of witnesses or that he waived that right before he admitted his prior felony convictions.  (People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

“[P]rior to accepting a defendant's admission that he has suffered a prior conviction, when that prior is charged for the purpose of enhancing a term imposed under the Determinate Sentencing Act, the court must advise the defendant of, and obtain on the record, express waivers by the defendant of the constitutional rights he waives by his admission.   The court must also advise the defendant of the impact the finding of prior conviction will have on his term.   If the advice and waivers do not appear on the record the finding must be set aside on appeal if prejudice appears.  (In re Yurko (1974) 10 Cal.3d 857, 863–864 [112 Cal.Rptr. 513, 519 P.2d 561].)”  (People v. Karis (1988) 46 Cal.3d 612, 650, 250 Cal.Rptr. 659, 758 P.2d 1189.)   In People v. Howard, supra, 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the California Supreme Court reviewed the standard for reviewingYurko error involving explicit admonitions and waivers of the constitutional rights to jury trial, confrontation of witnesses and against compulsory self incrimination and adopted the federal constitutional standard.   Under that standard, a guilty plea or admission of prior convictions for sentence enhancement purposes is valid if the record affirmatively shows it is voluntary and intelligent under the totality of the circumstances.  (Ibid.)

In this case, trial of the prior convictions was bifurcated from the jury trial of the principal offense.   Appellant waived a jury trial on the priors and the record reflects an advisement of that right by the trial court and an express waiver of a jury trial by appellant.   Because the record does not also reflect explicit admonishment and waiver of the right of confrontation, appellant contends his prior felony conviction enhancements are invalid and must be stricken.2

 This argument might have merit if appellant in fact admitted the prior felony convictions and service of prison terms for enhancement purposes.   However, the record reflects he expressly refused to admit the prior convictions which were then tried to the court.3  Because appellant did not admit his prior felony convictions and prison terms for enhancement purposes, the prosecution was required to prove the necessary elements of proof under Penal Code section 667.5 subdivision (b) (see section III infra ).   In other words, the prosecution was required to present documentary evidence to prove appellant had prior convictions for which he served prior prison terms.

The fact appellant admitted at least the existence of prior felony convictions on cross-examination was not discussed until after the prosecution presented its proof of the prior convictions.   In response to the court's invitation to the defense to present whatever evidence it had in rebuttal, defense counsel responded he had no evidence to present and the prosecution's evidence did not prove the prior prison terms beyond a reasonable doubt.   At that point the court reminded defense counsel his client had admitted at least the existence of the prior felony convictions on cross-examination during the jury trial on the underlying offense.   The court stated its opinion appellant's testimony lent added credibility to the People's documentary evidence which paralleled appellant's testimony.   Thus, the record reflects, the trial court did not rely on appellant's testimony as the exclusive proof of his prior felony convictions and prison terms.

In sum, because appellant did not admit the truth of his prior felony convictions for enhancement purposes regarding service of prison terms, the trial court was not required to advise appellant of his constitutional right of confrontation and the penal consequences of admitting prior convictions, before trying the issue of the priors.

We consequently find no error.

III. THE PRIOR PRISON TERM ALLEGATIONS WERE PROVED BEYOND A REASONABLE DOUBT.

As noted, appellant received two additional years' punishment pursuant to Penal Code section 667.5, subdivision (b) based on the trial court's finding he had served two prior, separate prison terms.4  On appeal he contends the prosecution presented insufficient evidence to prove the truth of the prior convictions and prison terms beyond a reasonable doubt.

A sentence enhancement under Penal Code section 667.5, subdivision (b) requires proof the defendant (1) was previously convicted of a felony;  (2) was imprisoned as a result of that conviction;  (3) completed that term of imprisonment;  and, (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.   (People v. Jones (1988) 203 Cal.App.3d 456, 459, 249 Cal.Rptr. 840;  People v. Elmore (1990) 225 Cal.App.3d 953, 957, 275 Cal.Rptr. 315.)   Appellant contends the evidence produced by the prosecution to prove his prior felony convictions lacked proof of (3), i.e. that he actually completed the prior terms of imprisonment.

To prove the prior convictions the prosecutor offered a Penal Code section 969b “prison packet” which contained certified copies from the Department of Corrections, California Medical Facility, containing abstracts of judgment describing the convictions and prison sentences, documents detailing appellant's movement history within the prison system, a photo of appellant and a set of fingerprints.5

Appellant relies on the decisions in People v. Jones, supra, 203 Cal.App.3d 456, 249 Cal.Rptr. 840 and People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652.   The issue in those cases was whether the evidence presented by the prosecution was sufficient to prove the defendants had served and completed their terms of imprisonment for prior felony offenses as charged.   In both cases the court held the prosecutors had failed to present sufficient evidence to prove the defendant had completed prior prison terms and struck the enhancements.   In People v. Jones, supra, 203 Cal.App.3d 456, 249 Cal.Rptr. 840, the court found an abstract of judgment showing the fact of a felony conviction and a sentence to state prison was insufficient to prove the defendant in fact served a prior completed prison term.  (203 Cal.App.3d at pp. 459–460, 249 Cal.Rptr. 840.) 6  In People v. Green, supra, 134 Cal.App.3d 587, 184 Cal.Rptr. 652, the court found a certified copy of an abstract of judgment showing the defendant was sentenced to prison, documents showing the defendant had been transported soon thereafter from the county jail to a prison, and a receipt and envelope addressed to the defendant in prison, were insufficient to prove the defendant's sentence was completed.   On the other hand, the Jones court acknowledged a Penal Code section 969b “prison packet”—certified copies of prison records which are expressly exempted from the hearsay rule by statute—would have supplied a substantial evidentiary basis for proof of the prior prison terms.  (203 Cal.App.3d at 460, fn. 6, 249 Cal.Rptr. 840.)

These decisions have been criticized and have not been followed by other Courts of Appeal addressing the nature and quantum of evidence necessary to prove prior prison terms have been completed.  (See, e.g., People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271 [abstract of judgment sufficient where no evidence defendant escaped from prison or was released before sentence had been served];  People v. Crockett (1990) 222 Cal.App.3d 258, 271 Cal.Rptr. 500 [abstract of judgment and rebuttable presumption of Evidence Code section 664 that official duties are regularly performed constitute sufficient evidence prior prison terms completed];  People v. Elmore, supra, 225 Cal.App.3d 953, 275 Cal.Rptr. 315 [abstract of judgment and defendant's trial testimony sufficient evidence prior prison terms completed];  see also People v. Matthews (1991) 229 Cal.App.3d 930, 280 Cal.Rptr. 134 [certified copies of prison record satisfies burden of proof of a prior conviction but not uncertified copy of defendant's rap sheet].)

 However, based on the facts in this case, we need not decide which line of cases is more soundly reasoned.   Unlike all the other cases, here the trial court did not need to rely solely on an abstract of judgment nor on a presumption official duties were performed.   In this case the trial court determined appellant served and completed two prior prison sentences on the basis of certified documents from the Department of Corrections detailing appellant's every movement through the prison system.   Because Penal Code section 969b specifically authorizes proof of prior prison terms upon the presentation of certified copies from the Department of Corrections, we conclude substantial evidence supports the trial court's findings.7

IV. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO ORDER COMMITMENT PROCEEDINGS PURSUANT TO WELFARE AND INSTITUTIONS CODE SECTION 3051.

 Appellant contends the trial court abused its discretion in refusing to initiate commitment proceedings to commit him to the California Rehabilitation Center (C.R.C.) once the court learned he was addicted to heroin.

Welfare and Institutions Code section 3051 requires the court to initiate proceedings for the civil commitment of any person who appears to be addicted to narcotics or who is in imminent danger of addiction “unless, in the opinion of the judge, the defendant's record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.”  (Wel. & Inst.Code, § 3051.)  “[I]n deciding whether a defendant's ‘record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment,’ the court may consider, in addition to a defendant's prior convictions, such matters as his prior performance on probation or parole, and the nature and seriousness of the current offense.  [Citations.]”  (People v. Cruz (1990) 217 Cal.App.3d 413, 420, 266 Cal.Rptr. 29.)  “A trial court's preliminary determination under section 3051 of a defendant's fitness for rehabilitative treatment necessarily involves an assessment, based upon the defendant's record and probation report, whether the defendant's main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality.   Because this is inherently a qualitative judgment on the available information, the statute invests the court with ‘a broad discretion which will not be disturbed on appeal in the absence of abuse.’   [Citations.]”  (Ibid.)

However, reliance on any factor other than excessive criminality in finding a defendant unsuitable for C.R.C. commitment has been considered inappropriate.   (See, e.g. People v. Lopez (1978) 81 Cal.App.3d 103, 146 Cal.Rptr. 165.)   According to some Courts of Appeal, the statute indicates the final decision whether treatment should be begun or continued should be made only by professional experts.  (See, e.g. People v. Madden (1979) 98 Cal.App.3d 249, 261, 159 Cal.Rptr. 381.)   Because the trial court made no express finding of “excessive criminality,” appellant contends the trial court may have improperly relied on other exclusionary criteria in denying his request for commitment.

After sentencing and before remanding appellant to the custody of the sheriff, defense counsel informed the court appellant had expressed interest in C.R.C. commitment.

“MR. MIZEL:  [defense counsel]:  Your Honor, the probation report indicates on page 9 when the probation officer spoke to my client, he said that he began using heroin in 1973, and the only time that he's not used it is when he's been incarcerated.  [¶] He also indicated that at the time of the probation interview, he had used cocaine.  [¶] Mr. Avila indicated to me that he would like the opportunity to go to C.R.C.   I believe that he would be eligible.

“THE COURT:  Why do you believe that?

“MR. MIZEL:  I don't believe that there is anything in his record that would per se make him ineligible.

“THE COURT:  Has he ever been violated [sic] on parole?   You see, that I think it [sic] excludes him.

“MR. MIZEL:  Well, that is not—I think it's section 3056 [sic] of the Welfare and Institutions Code.   I don't know where that exclusionary situation came from or if in fact that's true.  [¶] If the court were desirous of sending him there—I mean—

“THE COURT:  Not in particular.

“MR. MIZEL:  You know, I mean, if he would be excluded, then he would be excluded.

“THE COURT:  Well, whether or not he's excluded, he's been to state prison before, few of his convictions related to narcotics, but related to thefts.   [¶] This one is clearly a theft case.  [¶] Anyway, assuming that were not to be granted, do you have any comments on what the sentence should be?

“․

“MR. MIZEL:  I would again urge the court to consider the C.R.C. alternative.  [¶] I think although my client has a moderately extensive record, he doesn't really have any violent crimes.”

We agree with appellant the trial court's findings are considerable less than clear.   However, a reasonable inference from this exchange is that appellant was not suitable for C.R.C. commitment due to his excessive criminality.   Because this conclusion is supported by the record it need not be disturbed on appeal.

A review of his probation report reveals appellant had been arrested 14 times as an adult on charges evenly split between theft and drug crimes.   Of these 14 arrests appellant has suffered six convictions, two involving possession for sale of a controlled substance and the rest for theft related crimes.   The other arrests did not result in convictions because they were apparently rejected for prosecution by the District Attorney's office.   The probation report further reflects appellant's performance on probation had been unsatisfactory.   In 1982 a grant of probation was revoked based on the filing of new criminal charges.

Thus, in light of the evidence before it, including the numerous arrests and convictions for crimes indicating a pattern of criminality, his poor performance on probation, as well as the nature of the unrelated joyriding conviction, the trial court could reasonably determine appellant's behavior demonstrated a “pattern of criminality, irresponsibility and indifference to the requirements and sanctions of the penal law.”  (People v. Sateriale (1966) 247 Cal.App.2d 314, 316–317, 55 Cal.Rptr. 500.)   Accordingly, we find no abuse of discretion in the court's refusal to initiate commitment proceedings to the C.R.C.  (People v. Cruz, supra, 217 Cal.App.3d at p. 421, 266 Cal.Rptr. 29;  People v. Flower (1976) 62 Cal.App.3d 904, 912, 133 Cal.Rptr. 455.)

V. MODIFICATION TO VEHICLE CODE SECTION 10851 EFFECTIVE JANUARY 1, 1993 REDUCING THE PRESCRIBED TERMS OF IMPRISONMENT REQUIRES REDUCTION OF APPELLANT'S SENTENCE.

At the time of the offense and sentencing for appellant's conviction of Vehicle Code section 10851, subdivision (a), that section provided for terms of punishment of two, three or four years.   The statute then in effect had a “sunset clause.”   By its express terms, the statute would only remain in effect until January 1, 1993, when it would be repealed unless additional legislation enacted before January 1, 1993, deleted or extended the date of repeal.  (Former Veh.Code, § 10851, subd. (g).)  No legislation extending or deleting the date of repeal was enacted before January 1, 1993.   Thus, on January 1, 1993, the penalties for violation of Vehicle Code section 10851, subdivision (a) returned to the earlier penalties of 16 months, two years or three years.  (Stats.1989, ch. 930, § 11.1;  Pen.Code § 18.)

 When a law in effect when the criminal act is committed is repealed or expires, and there is no savings clause, a new statute providing for a lesser punishment for that act will be given retroactive effect to all cases not yet reduced to final judgment.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434;  In re Estrada (1965) 63 Cal.2d 740, 746–747, 48 Cal.Rptr. 172, 408 P.2d 948, see also Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, 12 L.Ed.2d 822.)

In In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, the issue presented was which statute prescribed the proper punishment—the one in effect when the act was committed or the statute as later amended reducing the terms of punishment.   The court began its analysis by reviewing its earlier decision in People v. Harmon (1960) 54 Cal.2d 9, 4 Cal.Rptr. 161, 351 P.2d 329.   In that case the statute reducing the terms of punishment came into effect while the defendant's case was pending on appeal.   In a four to three decision the Harmon court held the punishment in effect when the act was committed should prevail.  (63 Cal.2d at p. 742, 48 Cal.Rptr. 172, 408 P.2d 948.)   However, the Estrada court “determined to reconsider the holding in that case.”   Upon such reconsideration the court expressly overruled Harmon on that point and held “in such situations the punishment provided by the amendatory act should be imposed.”  (Ibid.)

The court further concluded the lesser punishment of the new legislation should apply to all similar cases not yet reduced to final judgment.  “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.   The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.   This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.”  (63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948;  see also In re Fink (1967) 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161 and cases cited.)

In Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, the court considered whether provisions in Proposition 115, which redefined various special circumstance allegations to the benefit of defendants, would be given retroactive effect.   The court concluded such provisions, which were analogous to statutory amendments which lessened punishment, applied to pending cases.   As the court explained:  “Application of these provisions to trials of crimes committed before Proposition 115's operative date may change the legal consequences of a defendant's criminal conduct.   Such application is permissible, however, because the provisions favor defendants.   Although we usually presume that new statutes are intended to operate prospectively, that presumption ‘is not a straitjacket.’  (In re Estrada, supra, 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)   In past cases we have not applied the presumption to statutes changing the law to the benefit of defendants.   Instead, we have assumed that ‘[w]hen 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’ and ‘ “sufficient to meet the legitimate ends of the criminal law.” ’  (Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948, quoting People v. Oliver (1956) 1 N.Y.2d 152, 151 N.Y.S.2d 367, 134 N.E.2d 197.)   We have applied the same reasoning to statutes which redefine, to the benefit of defendants, conduct subject to criminal sanctions.  (People v. Rossi (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313.)   These authorities compel the conclusion that the provisions listed above may be applied to pending cases.”  (53 Cal.3d at p. 301, 279 Cal.Rptr. 592, 807 P.2d 434, fn. omitted;  see also People v. Vasquez (1992) 7 Cal.App.4th 763, 9 Cal.Rptr.2d 255 [firearm allegation reversed where statutory definition of “firearm” amended to delete such weapon while case pending on appeal].)

The People's attempts to distinguish the above authorities are to no avail.   As the court in Estrada explained, it is of no significance the statute proscribing a lesser punishment went into effect while the case was pending on appeal rather than before trial of the charges.  (In re Estrada, supra, 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.)

Nor does the “sunset” clause in the statute providing for temporarily increased punishment indicate a clear expression of legislative intent all offenses committed during the supposed three-year experimental period should be subject to the longer sentences.   If the Legislature in fact desired specific data for its supposed three-year experiment, it could have enacted a savings clause before January 1, 1993 for this purpose.   The absence of any such language in the statute indicates otherwise.

We acknowledge a panel of Division One of the Fourth Appellate District arrived at a contrary conclusion in People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121.   That panel determined the precedents of In re Estrada and its progeny did not apply in this situation.   In the Michaels court's view, the “sunset” provision of the statute, coupled with the declared purpose of the former amendment providing for increased punishment to deter automobile theft, constituted a “ ‘savings clause’ within the meaning of In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and [therefore the reduced punishment] should not be applied retroactively.”   (People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121.)   The court cited no authority for the novel proposition a “sunset” clause can be transformed into a “savings” clause without the Legislature expressly so stating.   Instead, the Michaels court apparently arrived at its conclusion persuaded by the result and rationale of the decision in In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564.

The Pedro T. court rejected retroactive application of the reduced punishment of Vehicle Code section 10851, finding it would unfairly benefit those defendants who delayed bringing their case to final judgment in the hopes of securing lesser punishment under the new legislation.   As that court put it, giving the reduced punishment retroactive effect would “provide the canny criminal—and the dedicated defense attorney—with an enormous loophole, where the Legislature signals its intention to reduce punishment several years in advance.”  (14 Cal.App.4th at p. 465, 17 Cal.Rptr.2d 564.)   Acknowledging it had no basis for discerning the reasons the Legislature allowed the amendment to lapse, the Pedro T. court reasoned “common sense tells us that where the Legislature increases the punishment for an offense for a limited period—perhaps as a test of its efficacy as a deterrent—the punishment must be applicable to all offenses committed within that period.”   (Ibid.)

 We find the Pedro T. court's reasoning unpersuasive.   First, the court's analysis rests on perfect hindsight, based on the fact the Legislature did not enact a savings clause or extend the life of the amendment.   The argument however ignores the possibility the Legislature could have enacted legislation any time up to December 31, 1992, to extend the higher punishment or to provide for a savings clause to ensure all crimes committed during the three-year period were punished consistently.   Purposeful delay in the hopes of lesser punishment would have been nothing more than a gamble.   The Legislature, however, chose neither option and allowed the amendment to expire.

Secondly, the court's analysis discounts the factual and procedural posture of the cases in which the Supreme Court developed the retroactivity rule for provisions benefitting defendants generally.   For example, in In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and In re Fink, supra, 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161, the defendants cases were delayed and not brought to final judgment because they had managed to escape and remained absent until the penal consequences for escape were reduced by the Legislature.   Nevertheless, these defendants were entitled to the reduced punishment.   Thus, the decisions of our highest court make clear even a defendant who has purposefully and deliberately delayed bringing his case to final judgment nevertheless is entitled to a beneficial change in the law where his case is not yet reduced to final judgment.   Consequently, this is not an effective basis on which to distinguish controlling precedent.   The court in In re Pedro T. acknowledges its disagreement with these decisions and their supposed practical effect of encouraging delay.  (14 Cal.App.4th at p. 466, 17 Cal.Rptr.2d 564.)   However, it is not the role of an intermediate court to diverge from clear precedent nor to usurp the role of the Legislature by effectively rewriting the statute.   For these reasons we disagree with the decisions in In re Pedro T., supra, 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564 and People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121.

Our conclusion, the reduced punishment should be applied retroactively in this case, is supported by the recent decision in People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152.   The Vaughan court, another panel of Division One of the Fourth Appellate District, reviewed the identical legislative provision at issue in the present case.   The Vaughan court disagreed with the decision in In re Pedro T. and held controlling precedent compelled the conclusion the statute providing for reduced punishment of offenses of Vehicle Code section 10851 must be applied retroactively to all pending cases.   In reliance on a century of United States Supreme Court decisions and the California Supreme Court decision in In re Estrada, the court found “[t]he controlling principle is ‘the universal common-law rule that when the legislature repeals a criminal statute or otherwise removes the State's condemnation from conduct’ the meliorated punishment must be applied to all cases not yet final on appeal.”  (People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, citing Bell v. Maryland, supra, 378 U.S. 226, 230, 84 S.Ct. 1814, 1817, emphasis in quotation.)   Consequently, the Vaughan court modified the judgment in the case pending before it to reflect the newly reduced punishment for offenses committed under Vehicle Code section 10851.

Under the authority of the decisions in In re Estrada, In re Fink and Tapia v. Superior Court, we conclude the lesser punishment authorized by the statutory provisions effective January 1, 1993 can and should apply in this case pending before us.   The trial court imposed the then mid-term of three years.   The mid-term under the new statute is two years.   Consequently appellant's sentence must be modified to reflect a base term of two years for the conviction under Vehicle Code section 10851, plus the two years for the prior prison term enhancements, for a total of four years.

DISPOSITION

The judgment is modified by striking the three-year term of imprisonment for the conviction of Vehicle Code section 10851, subdivision (a) and by inserting in its place a two-year term of imprisonment reflecting a total prison term of four years.   The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the modified abstract of judgment to the Department of Corrections.   As modified, the judgment is affirmed.

For the reasons well expressed in In re Pedro T. (1993) 14 Cal.App.4th 453, 463–466, 17 Cal.Rptr.2d 564, and People v. Michaels (1993) 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121, I dissent.   Appellant is not entitled to the lesser punishment provision of Vehicle Code section 10851, effective January 1, 1993, some 17 months after he violated that statute.  (But see People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152.)

As both In re Pedro T. and People v. Michaels explain, In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and People v. Vasquez (1992) 7 Cal.App.4th 763, 9 Cal.Rptr.2d 255 are distinguishable.   In fact, the author of People v. Vasquez, Justice Huffman, is also the author of People v. Michaels.

I would affirm the judgment.

FOOTNOTES

1.   Appellant equates a conviction of possession of controlled substances for sale with drug addiction and assumes the jury concluded he stole the car to raise money to support his drug habit.   However, by no leap of logic can we accept the conclusion every person who sells drugs is also addicted to those drugs and that every drug addicted person unlawfully takes someone's car to support his addiction.   Contrary to appellant's assertion, it is not reasonable to assume the jury made this speculative assumption under the facts of this case.

2.   Appellant concedes he knowingly and intelligently waived his right against compulsory self incrimination by testifying in his own defense at trial.  (See, e.g., People v. Mora (1984) 153 Cal.App.3d 18, 24, 199 Cal.Rptr. 904;  People v. Mack (1977) 66 Cal.App.3d 839, 861, 136 Cal.Rptr. 283;  People v. Ingram (1976) 60 Cal.App.3d 722, 726–727, 131 Cal.Rptr. 752.)

3.   The following colloquy occurred before trial of the priors:“THE COURT:  Mr. Mizel [defense counsel] had indicated at the side bench that he wished to admit or to waive jury as to the priors.“MR. MIZEL:  That's correct.“THE COURT:  Admit the priors or waive jury?“MR. MIZEL:  Waive jury.“THE COURT:  Okay. [¶] Mr. Avila, you have a right to have this jury determine whether or not you had been previously convicted as it is alleged in the amendment to the information.  [¶] Do you understand your right to a jury trial as to the five prior convictions?“THE DEFENDANT:  Yes, I do.“THE COURT:  Do you at this time waive and give up your right to this jury making that determination?“THE DEFENDANT:  Yes, I do.“THE COURT:  Do you have any questions?“THE DEFENDANT:  No, Sir.“THE COURT:  Counsel join?“MR. MIZEL:  Join.“THE COURT:  The People?“MS. CHUN [prosecutor]:  Yers [sic ].“THE COURT:  Okay.  [¶] Is there any reason then why I shouldn't excuse this jury?“MR. MIZEL:  None whatsoever.”

4.   Penal Code section 667.5 subdivision (b) provides in pertinent part:“[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

5.   Penal Code section 969b specifically authorizes proof of the fact a defendant suffered a prior conviction and served a term of imprisonment for that conviction by evidence of certified prison records.   That section provides:“For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, ․ the records or copies of records of any state penitentiary, reformatory, county jail or city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”

6.   The same division of the Second Appellate District Court of Appeal which decided People v. Jones, supra, recently reaffirmed this position in People v. Tenner (1992) 10 Cal.App.4th 1251, 13 Cal.Rptr.2d 200.  Tenner may no longer be cited as authority, however, as the Supreme Court granted review in that case on February 18, 1993, ––– Cal.4th ––––, 16 Cal.Rptr.2d 692, 845 P.2d 1084.

7.   Because the trial court determined the truth of the allegations of prior prison terms on the basis of a Penal Code section 969b “prison packet”, the trial court did not need to rely on the evidentiary presumptions that official duties were performed.  (Evid.Code, §§ 660, 664.)   We consequently need not reach the issue whether the evidentiary presumptions violate due process.Also, Penal Code section 969b specifically authorizes certified copies of prison records as evidence of the truth of the facts they purport to represent.   Consequently, these certified documents do not require additional authentication under the official records or business records exception to the hearsay rule.  (Evid.Code, §§ 1271, 1280.)

JOHNSON, Associate Justice.

LILLIE, P.J., concur.