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The People v. Jose Rosales Adan


December 6, 2010


APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. (Super.Ct.Nos. BLF002353 & BLF004379)

The opinion of the court was delivered by: Ramirez P.J.

P. v. Adan CA4/2


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant Jose Rosales Adan challenges his convictions for possessing cocaine and methamphetamine for sale, along with his prison sentence of four years and eight months (Health & Saf. Code, §§ 11351 & 11378). Specifically, defendant argues: 1) the People presented insufficient evidence to establish that he possessed and knew about the drugs found in the home and the shed; and 2) he should be awarded additional custody credits under Penal Code section 4019 because the Legislature intended the recent revisions to be retroactive. As discussed below, we reject both contentions and affirm the judgment.


On March 29, 2007, at about 5:00 a.m., Riverside County Sheriff's Department deputies, along with a border patrol agent and his drug-sniffing K-9 dog, served a search warrant at defendant's residence. Defendant and an adult male were asleep in the living room. Another adult male was found to be sleeping in another trailer on the same property. This other trailer was without water, sewer or electricity. Defendant told the deputies that he slept in the west bedroom of the two-bedroom mobile home and kept his belongings there. Defendant did not appear to be under the influence and denied knowing there were drugs on the property.

In the west bedroom, the officers found the following items: a bag of methamphetamine underneath a t-shirt on the entertainment console, and a bag of methamphetamine and a roll of cash in the hood of a sweatshirt hanging in the closet. They also found a birthday card addressed to "Tio Chante" and a document from the Riverside County court with defendant's name on it. The closet contained men's clothing that appeared to approximately fit defendant.

In the kitchen, the officers found a plastic container of methamphetamine, a gram scale and plastic sandwich baggies together in a kitchen cabinet, and a 16-ounce container of "Horse Care Pure, MSN" which is used as a cutting agent to increase the volume of methamphetamine.

In the laundry room, officers found a sock containing 7.4 grams of cocaine, along with a gram scale and a container containing an unspecified cutting agent. The officers found a total of 181 grams of methamphetamine inside the home.

In a locked shed behind the residence*fn1 officers found a camera bag inside a box. The camera bag contained 228 grams of methamphetamine.

On June 24, 2009, the People filed a first amended information alleging that defendant possessed both methamphetamine and cocaine for sale. On June 30, 2009, a jury found defendant guilty of both counts. On October 23, 2009, the trial court sentenced defendant to the upper term of four years for the cocaine possession and a consecutive eight-month term for the methamphetamine possession. The court also sentenced defendant to serve a concurrent jail term for violating the terms of his probation on a 2002 conviction for inflicting corporal injury on a spouse (Pen. Code, § 273.5). This appeal followed.


1. Evidence of Possession

Defendant contends insufficient evidence was presented to show that he actually or constructively possessed any of the drugs seized in this case, or that he knew about the drugs. We disagree.

On review, we view the evidence in the light most favorable to the prosecution (People v. Maury (2003) 30 Cal.4th 342, 403), and we must presume in support of the judgment any facts which may reasonably be deduced from the evidence. (People v. Johnson (1993) 6 Cal.4th 1, 38.)

One may be liable for unlawful possession for sale of controlled substances based on either actual or constructive possession. (People v. Morante (1999) 20 Cal.4th 403, 417.) Possession may be imputed when contraband is found in a place immediately and exclusively accessible to the defendant, and subject to his or her dominion or control, or is subject to the joint dominion and control of the defendant and another. (People v. Francis (1969) 71 Cal.2d 66, 71.) Dominion and control may be inferred when the contraband is discovered in an accused's residence, automobile or personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)

Here, defendant admitted to the officers that he slept in the west bedroom and kept his belongings there. This alone would be enough from which the jury could infer that defendant both possessed and knew about the drugs and cash found in the bedroom. Further, the bedroom contained a document from the Riverside County court containing defendant's name. The room also contained a birthday card addressed to "Tio Chante" at the residence. The sheriff's deputies testified that "Chante" was a name by which they knew defendant from previous contacts.

The evidence is also sufficient to allow the jury to infer that defendant had knowledge of, access to and at least joint dominion and control over the items found in the laundry room, kitchen and shed. This is because the officers found defendant's personal papers and possessions at the residence, and he stated that he slept there. The officers found no such items belonging to another adult person--not the adult male found sleeping in the living room along with defendant, nor the adult male who lived in the other trailer on the property. The second bedroom in the mobile home contained only children's clothing, toys and children's movies. The key to the shed was found on the kitchen counter, also openly accessible to defendant. Thus, because the evidence shows that defendant was the only adult living in the residence, and because the evidence of possession for sale was found in several rooms of the residence, including defendant's bedroom and other areas easily accessible to him, the evidence was sufficient to establish that defendant possesses and had knowledge of the drugs and related items.

2. Custody Credits Under Penal Code Section 4019

Defendant contends that because this case is not final he is retroactively entitled to the increased custody credits provided for in the recent amendment to Penal Code section 4019. The impact of the amendment of Penal Code section 4019 has split our sister courts of appeal and is pending review in our Supreme Court. We conclude that the Legislature did not intend for the amendment to be applied retroactively and that this interpretation does not violate defendant's right to equal protection under the U.S. Constitution.

As an amendment to the Penal Code, the amendment of section 4019 "'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; see also Pen. Code, § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"]; In re E.J. (2010) 47 Cal.4th 1258, 1272 (In re E.J.) ["'[S]section 3 reflects the common understanding that legislative provisions are presumed to operate prospectively, and that they should be so interpreted "unless express language or clear and unavoidable implication negatives the presumption." [Citation.]' [Citation.] '[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application'"].) However, "[w]here the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (In re Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)

In People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Doganiere) [Fourth Dist., Div. Two] we held, on the basis of Estrada, that amendments to Penal Code section 2900.5 to provide credit for Penal Code section 4019 conduct credits were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 (Hunter) [amendment to Penal Code section 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This was based upon the conclusion that there is no legal significance between lessening the maximum sentence for a crime and increasing presentence credits, because both mitigate punishment. (See Hunter, at p. 393.)

Our Supreme Court has been consistent in describing the custody credit scheme as a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405 ["section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody"]; People v. Sage (1980) 26 Cal.3d 498, 510 (Sage) (conc. & dis. opn. of Clark, J.) ["The purpose of conduct credit is to foster good behavior and satisfactory work performance. [Citation.] That purpose will not be served by granting such credit retroactively"]; People v. Saffell (1979) 25 Cal.3d 223, 233 ["The purposes of the provision for 'good time' credits seem self- evident. First, and primarily, prisoners are encouraged to conform to prison regulations and to refrain from engaging in criminal, particularly assaultive, acts while in custody. Second, [prisoners are induced] to make an effort to participate in what may be termed 'rehabilitative' activities"].) Thus, we conclude that increases in custody credits should not be considered a mitigation in punishment. Because the custody credit scheme and, in particular, conduct credits are incentives or rewards for good behavior, increasing the rate at which credits are accrued does not represent a determination that a prior punishment was too severe. Thus, there is no presumption of retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)

Senate Bill No. 3X 18 is explicit that it is intended to address a declared fiscal emergency. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) However, the purpose of an amendment is not necessarily indicative of a legislative intent for or against retroactivity. (See People v. Nasalga (1996) 12 Cal.4th 784, 795 [increasing threshold amounts to address inflation only indicates consideration of decline of dollar and does not indicate intent for prospective application].) Defendant contends that retroactivity will further the goal of reducing prison population. While applying the increased conduct credits retroactively would reduce prison populations and conserve financial resources more quickly than a prospective only amendment, the Legislature could also have determined that a prospective application better balanced public safety concerns and the need to conserve financial resources by reducing the prison population. Thus, the goal of conserving financial resources by reducing prison population does not indicate intent for retroactivity.

Having searched for a legislative intent regarding prospective or retroactive application, we find no intent for retroactivity and thus, the Penal Code section 3 presumption is not rebutted. (In re E.J., supra, 47 Cal.4th at p. 1272 ["'[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application' [Citation.]"].) Thus, the amendment to Penal Code section 4019 applies prospectively and defendant is not entitled to an increase in his custody credits.

Neither does Kapperman, supra, 11 Cal.3d 542 or Hunter, supra, 68 Cal.App.3d at pages 389, 391-392, compel the conclusion that equal protection mandates that the statute be applied retroactively. This is because neither Kapperman nor Hunter is applicable here. Kapperman held that an express prospective limitation upon the statute creating presentence custody credits was a violation of equal protection because there was no legitimate purpose to be served by excluding those already sentenced. (Kapperman, supra, 11 Cal.3d at pp. 544-545.) Hunter held that an amendment to the same statute without an express limitation was to be interpreted in line with Kapperman and Estrada to apply retroactively. (Hunter, supra, 68 Cal.App.3d at pp. 391-393.) However, Kapperman and Hunter both addressed actual custody credits under Penal Code section 2900.5, not conduct credits. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.

Penal Code section 4019's primary purpose is to motivate good conduct. (People v. Brown (2004) 33 Cal.4th 382, 405.) Defendants who were sentenced prior to the effective date of the amendment cannot be further enticed to behave themselves during their presentence custody. Because a defendant's conduct cannot be influenced retroactively, a rational basis exists for the Legislature's implicit intent that the amendment apply prospectively. Accordingly, not granting defendant increased conduct credits does not violate his right to equal protection.


The judgment is affirmed.


We concur:





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