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The People v. Luis Valdez

December 9, 2010


(Monterey County Super.Ct.No. SS082275)

The opinion of the court was delivered by: Duffy, J.

P. v. Valdez CA6


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Luis Valdez pleaded guilty to receiving stolen property. In April 2009, pursuant to the terms of defendant's plea agreement, he was granted three-year probation. The court, after a contested hearing, found that defendant had violated probation. On January 12, 2010, he was found to be an unsuitable candidate for probation and was sentenced to two years in prison.

Defendant asserts that he should receive additional presentence conduct credits in accordance with an amendment to section 4019 of the Penal Code, effective January 25, 2010, that he contends should be applied retroactively to his circumstances.*fn1 We conclude that this amendment to section 4019 should not be applied retroactively to instances, such as presented here, where the defendant was convicted and sentenced prior to the effective date of the amendment, but the judgment did not become final until after such effective date. We will therefore affirm the judgment.


I. Underlying Offense

On the afternoon of September 3, 2008, a Salinas Police Officer was on patrol and encountered defendant and another male, Rene Rubio, standing next to a car in a parking lot. The officer, after speaking with the individuals, concluded that defendant was under the influence of a controlled substance. During a search incident to his arrest, the officer found two black gloves in defendant's rear pants pocket; based upon the officer's training and experience, persons often wear such gloves when they break into vehicles or residences. Rubio denied consent to a search of his car. There was a speaker box and two stereos in plain view in the car. Rubio denied that the stereo equipment had been stolen but refused the officer's request to inspect the serial numbers on the equipment to confirm Rubio's claim. The officer then placed Rubio under arrest and conducted a search of the car based upon both the arrest and because of Rubio's status as a probationer. The search yielded a number of items that were later determined to have been stolen, including a number of tools, stereo equipment, and cameras.

II. Probation Violation

On August 25, 2009, Deputy Probation Officer Kathy Longoria met with defendant. She reviewed his probation conditions and told defendant that he could wear nothing that was red or blue, including sports memorabilia, such as 49ers or Raiders apparel, and that he could not have anything in his house that could be regarded as gang-related. (She had been made aware of a prior incident in which defendant had worn red clothing.) Officer Longoria asked defendant why he wore red clothing; he responded that he wanted "to get close to Nortenos." She told defendant that he needed to make sure that his home was "cleared of anything that could be considered gang related."

The next day, Deputy Probation Officer Derek Rager and a partner responded to a call in which they made contact with defendant. He was wearing a San Francisco 49ers cap that was black with an "SF" emblem that was red. A gang expert testified that the cap had gang significance because the emblem was red and was thus associated with Nortenos. The "SF" emblem has also been associated with Northern California Surenos, referring to "Salinas finest or Sureno forever." Officer Rager called Officer Longoria to inform her that one of her probationers was wearing clothing that he believed to be gang-related.

On August 27, 2009, defendant reported to the Office of Probation and was taken to his home by Officer Longoria and two other officers. A probation search was conducted. There were a number of gang-related items found in defendant's bedroom, including multiple sweatshirts and a jacket, a CD with gang-related songs, and letters involving gang members or concerning gang activity.

A gang expert also testified that he observed defendant during the hearing and that he had a tattoo, "VGS," on the back of his head. The initials ...

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