THE PEOPLE v. JOHN SHELTON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

John Shelton appeals from the judgment entered following his conviction by jury on one count of sale of cocaine base (Health & Saf.Code, § 11352, subd. (a)).  Appellant asks us to conduct an independent review of the in camera hearing held pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ).   We have conducted an independent review of the Pitchess hearing and conclude that the trial court did not abuse its discretion in determining which material was discoverable.   Appellant's second contention is that he is entitled to additional conduct credit under the amendment to Penal Code section 4019.   We disagree and therefore affirm in all respects.

FACTUAL AND PROCEDURAL SUMMARY

On August 7, 2009, at about 4:00 p.m., Los Angeles Police Department Officer Alonzo Williams was working undercover as part of a narcotics buy team on San Julian Street between Sixth Street and Seventh Street in the City of Los Angeles.   Before going to the location, Officer Williams made copies of the money he was going to use to buy narcotics.

Officer Williams saw appellant standing on San Julian Street about 10 feet away from him, wearing sunglasses, a purple jersey, and jeans.   A man walked up to appellant and asked him for a “dime,” which Officer Williams explained was street vernacular for $10 worth of narcotics.   Officer Williams saw the man give appellant some currency and some coins, and appellant then gave the man a small item.

After the man walked away, Officer Williams approached appellant and asked him for a “dub,” which meant $20 worth of rock cocaine.   Appellant said he did not have a dub and only had a dime.   Officer Williams said “okay,” and appellant opened his hand to show him two off-white solids in a clear cigarette wrapper.   Officer Williams gave appellant a prerecorded $10 bill, and appellant gave him the two solids in the clear wrapper.

After receiving the solids, Officer Williams walked away and placed the items in a baggie.¹  He gave a prearranged signal to other officers that he had completed a transaction, and he gave them a description of appellant's clothing.   Officer Williams did not maintain visual contact with appellant, but he later identified him in a photo.   He also recovered the $10 bill that he gave to appellant and confirmed that it was the prerecorded bill.

Officer David Cho was a uniformed chase officer for the narcotics buy team, which is the officer who is called in to arrest someone after a transaction is completed.   Officer Cho received the call to arrest “a male black with dread locks wearing a purple sports jersey and blue jeans.”   He arrested appellant, who was on San Julian Street between Sixth Street and Seventh Street and was the only person matching the description.   Although Officer Cho sometimes needed to double check that he had the correct person before making an arrest, he said it was clear to him that appellant was the person who matched the description.

Officer Cho transported appellant to the police station and found a $10 bill, a $5 bill, and four $1 bills in appellant's front left pants pocket.   Officer Cho gave the money to a narcotics detective.   Officer Cho did not find any narcotics on appellant.

Officer Edgar Ramos was part of the undercover narcotics team, working as the point officer, who communicates with the chase officer and detectives and ensures the safety of the undercover buy officer.   He also was responsible for confirming that the correct person was taken into custody.

Officer Ramos watched Officer Williams throughout the entire transaction from across San Julian Street, about 30 to 35 feet away.   Officer Ramos saw Officer Williams give appellant money and saw appellant give Officer Williams a small item.   After Officer Williams walked away, Officer Ramos saw appellant start to walk slowly away before he was taken into custody by uniformed chase officers.

Detective Vip Kanchanamongkol supervised the operation.   He waited in his car listening to an audio transmission from Officer Williams.   When Detective Kanchanamongkol received the signal that a transaction had been completed, he drove to the location and saw the chase officers arrest appellant.   Detective Kanchanamongkol saw Officer Cho search appellant and find the money.   Detective Kanchanamongkol compared the money recovered from appellant with the xeroxed copy of the money Officer Williams previously gave him and confirmed that the $10 bill was the same bill.

Appellant did not present any witnesses.

Appellant was charged in a one-count information with sale/transportation/offer to sell a controlled substance, cocaine base (Health & Saf.Code, § 11352, subd. (a)).  It was further alleged that appellant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).  Appellant pled not guilty and denied the special allegations.   An amended information further alleged that appellant had suffered a prior narcotics conviction pursuant to Health and Safety Code section 11370.2, subdivision (a).

Appellant filed a Pitchess motion seeking discovery of the personnel records of Officer Williams.   Appellant contended that he did not have or sell any off-white solids and did not receive a prerecorded $10 bill.   The court granted the Pitchess motion and held a hearing.   At the Pitchess hearing, the court ordered the production of 10 records.

The jury found appellant guilty of sale/transportation/offer to sell a controlled substance (Health & Saf.Code, § 11352, subd. (a)).  Appellant waived his right to a jury trial on his prior convictions and then admitted a July 2008 conviction for a violation of Penal Code section 487.   Appellant also admitted he suffered a conviction under Health and Safety Code section 11359 in March 2008 and a conviction under Health and Safety Code section 11352 in March 1999.

At the sentencing hearing, the court denied appellant's oral motion for a new trial.   The court sentenced appellant to the midterm of four years, plus one year pursuant to Penal Code section 667.5, subdivision (b), for the prior conviction under Health and Safety Code section 11359.   The court exercised its discretion in the interests of justice to strike the other two convictions and so sentenced appellant to a total term of five years.   The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 150 days of actual custody and 74 days of good time/work time credit for a total of 224 days.   Appellant filed a timely notice of appeal.

After filing the notice of appeal, appellant filed a request in the trial court for additional custody credits.   The court denied the motion on the basis that it did not have jurisdiction while the case was on appeal.   We granted appellant's motion to augment the record to include the trial court's order.

DISCUSSION

I. Pitchess

Appellant contends, and respondent agrees, that we should conduct an independent review of the Pitchess proceedings.   We review the trial court's decision regarding the discoverability of material in police personnel files under the abuse of discretion standard.  (People v. Cruz (2008) 44 Cal.4th 636, 670.)  “A trial court abuses its discretion when its ruling ‘fall[s] “outside the bounds of reason.” ’  [Citation.]”  (People v. Waidla (2000) 22 Cal.4th 690, 714.)   The trial court's ruling here does not fall outside the bounds of reason.   We therefore affirm.

The record indicates that the court complied with the procedural requirements of a Pitchess hearing.   There was a court reporter present, and the custodian of records was sworn prior to testifying.  (People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1229, fn. 4;  People v. White (2011) 191 Cal.App.4th 1333, 1339–1340.)   The custodian of records complied with the requirement to bring all the records and submit them for the court to review and determine which documents were relevant.  (People v. Wycoff (2008) 164 Cal.App.4th 410, 414–415.)

The court ordered the production of 10 out of 12 records that it found dealt with dishonesty or fabrication of evidence by Officer Williams.   We have conducted an independent review of the transcript and the documents, and we find no error or abuse of discretion.

II. Penal Code section 4019

Appellant contends he is entitled to additional custody credits pursuant to the amendment to Penal Code section 4019.   We reject appellant's argument that the amendment should apply retroactively.

A. Retroactivity of Amendment

Penal Code section 4019, subdivisions (b) and (c), provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution's rules and regulations.   In 2009, the Legislature passed Senate Bill No. 3X 18, which, among other things, amended subdivisions (b) and (c) of section 4019 to provide for the accrual of presentence credit at twice the previous rate, with certain exceptions.  (See Pen.Code, § 4019, subds. (b) & (c), as amended by Stats.2009, 3d Ex.Sess.2009–2010, ch. 28, § 50.)   Appellant contends he is entitled to additional conduct credits because the amendment to Penal Code section 4019 should apply retroactively.   California courts are divided on whether the amendment applies retroactively or prospectively.²  We conclude that it does not apply retroactively and that appellant is not entitled to additional custody credits based on the amendment.

Section 3 of the Penal Code provides:  “No part [of the Penal Code] is retroactive, unless expressly so declared.”   Thus, “ ‘[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise.  [Citation.]’  [Citation.]”  (People v. Alford (2007) 42 Cal.4th 749, 753.)  “To ascertain whether a statute should be applied retroactively, legislative intent is the ‘paramount’ consideration․”  (People v. Nasalga (1996) 12 Cal.4th 784, 792.)

Where, as here, there is no express statement of legislative intent, we look to other factors to determine legislative intent.  (In re Estrada (1965) 63 Cal.2d 740, 744.)  In re Estrada addressed an amendment reducing the penalty for escape.   The court held that the amendment applied retroactively, reasoning 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.”  (Id. at p. 745.)   We believe, however, that increasing the rate at which credits are accrued does not represent a legislative determination that a prior punishment was too severe.

We note that, elsewhere in Senate Bill No. 3X 18, the Legislature expressly provided for limited retroactive application of enhanced conduct credits for prison inmates who have completed training as firefighters after July 1, 2009.  (See Pen.Code, § 2933.3, as amended by Stats.2009, 3d Ex.Sess.2009–2010, ch. 28, § 41.)   The Legislature thus demonstrated that it could, if it wished, provide for the amendment to section 4019 to have retroactive effect.   Its failure to do so gives rise to the inference that it did not so intend.   Finding no clear and compelling implication that the Legislature intended the amendment to apply retroactively, we conclude that the amendment applies prospectively and reject appellant's claim.

DISPOSITION

The judgment is affirmed

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The parties stipulated at trial that the substance was 0.15 grams of cocaine base..  FN1. The parties stipulated at trial that the substance was 0.15 grams of cocaine base.

FN2. The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div.Four), review granted Sept. 22, 2010, S184957.  (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096, (1st Dist., Div.Two), review granted June 23, 2010, S182808;  People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div.One), review granted June 23, 2010, S182813;  People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Rodriguez (2010) 182 Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.).  FN2. The California Supreme Court has granted review in cases that address the issue, including our decision in People v. Eusebio (2010) 185 Cal.App.4th 990 (2d Dist., Div.Four), review granted Sept. 22, 2010, S184957.  (See also, e.g., People v. Landon (2010) 183 Cal.App.4th 1096, (1st Dist., Div.Two), review granted June 23, 2010, S182808;  People v. House (2010) 183 Cal.App.4th 1049 (2d Dist., Div.One), review granted June 23, 2010, S182813;  People v. Brown (2010) 182 Cal.App.4th 1354 (3d Dist.), review granted June 9, 2010, S181963;  People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314;  People v. Rodriguez (2010) 182 Cal.App.4th 535 (5th Dist.), review granted June 9, 2010, S181808.)

WILLHITE, J. SUZUKAWA, J.