IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE JESUS GARCIA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 081904)
The opinion of the court was delivered by: Cantil-sakauye,j.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following his convictions for two counts of felony evading a peace officer (Veh. Code, §§ 2800.2, 2800.4) and a misdemeanor conviction for unlawful display of evidence of registration (Veh. Code, § 4462.5), defendant Jose Jesus Garcia appeals the misdemeanor conviction. He contended the conviction was not supported by independent proof of the corpus delicti, the trial court erroneously denied his motion to dismiss this count based on insufficient evidence, and the special instruction as to that count was deficient as it omitted an element of the offense. We agree with defendant that there was insufficient evidence establishing the corpus delicti. Accordingly, we shall reverse the misdemeanor conviction. In their reply, the People seek review of the trial court's decision to order additional custody credits under Penal Code section 4019, arguing that section should be applied prospectively. We disagree.
On a Sunday night in April 2008, Yolo County Sheriff's Deputy Hector Bautista was on patrol in a marked police vehicle. Defendant was riding a motorcycle and drove past Bautista. Bautista followed him. Bautista ran a registration check of the motorcycle's license plate and was advised that the registration had expired in November 2007.*fn1 The registration sticker displayed on the motorcycle was a 2009 registration tag.
Deputy Bautista initiated a traffic stop based on his belief the vehicle registration had expired. Bautista activated the lights of his vehicle and the siren. Defendant sped up. As defendant fled from law enforcement, he drove in the lanes of oncoming traffic, reached speeds of over 100 miles per hour, and drove through multiple stop signs. Other police vehicles joined in the pursuit. Eventually, defendant stopped the motorcycle on the front lawn of a house and he was arrested.
At the jail, defendant waived his constitutional rights and in response to questioning about the police chase, defendant stated "he knew he was going to jail because of the expired registration and fake sticker and he was trying to make it home to his mom to give her a hug and a kiss."
Defendant was charged with evading a peace officer with reckless driving (count 1), evading a peace officer while driving in the opposite direction (count 2), driving under the influence of alcohol or drugs (count 3), unlawfully displaying evidence of registration (count 4), driving an unregistered vehicle (count 5) and driving a motorcycle out of classification (count 6). It was also alleged defendant had served a prior prison term.
Prior to trial, the court granted the People's motion to dismiss count 3, the charge of driving under the influence. At the end of the presentation of evidence, the court granted defendant's Penal Code section 1118.1*fn2 motion on counts 5 and 6, the infractions of driving an unregistered vehicle and driving a motorcycle out of classification. The court denied defendant's section 1118.1 motion as to count 4, the misdemeanor charge of unlawfully displaying evidence of vehicle registration.
The jury found defendant guilty of the two felony evasion counts and the misdemeanor unlawful display of vehicle registration. In bifurcated proceedings, the court found true the prior prison term allegation.
Defendant was sentenced to a total term of four years, including three years for count 1 and one year for the prison term enhancement. The sentence on count 2 was stayed pursuant to Penal Code section 654. A concurrent term of 60 days in county jail was imposed on count 4. Various fines and fees were imposed. Defendant was awarded 142 days' actual credit and 70 days' good time credit pursuant to section 4019, for an aggregate of 212 days' credit. On February 1, 2010, defense counsel requested the court recalculate custody credits, due to the amendment of section 4019. The court issued an order correcting the credits on February 5, 2010.
Defendant contends there was insufficient proof of the corpus delicti of count 4, unlawful display of evidence of registration, independent of defendant's extra-judicial statement. We agree.
"The corpus delicti rule requires that the corpus delicti of a crime be proved independently from an accused's extra-judicial admissions. [Citations.] 'The corpus delicti of a crime consists of two elements, the fact of the injury or loss or harm, and the existence of a criminal agency as its cause.' [Citation.] Such proof, however, may be circumstantial and need only be a slight or prima facie showing." (People v. Jennings (1991) 53 Cal.3d 334, 364.) "The People need make only a prima facie showing '"permitting the reasonable inference that a crime was committed."' [Citations.] The inference need not be 'the only, or even the most compelling, one . . . [but need only be] a reasonable one . . . .' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 301-302.)
Defendant was charged with unlawfully displaying a vehicle registration that was either not issued for his motorcycle or otherwise not lawfully used on that motorcycle with the intent to avoid compliance with vehicle registration requirements in violation of Vehicle Code section 4462.5. Thus, to satisfy the corpus delicti rule, the People were merely required to establish by evidence independent of defendant's extra-judicial admissions that the registration tag on the motorcycle was not lawfully used on that motorcycle and that defendant intended to avoid vehicle registration requirements, i.e., that the crime occurred and that a criminal agency was its cause.
Here, the only evidence other than defendant's statement was a photograph of the 2009 registration tag on the motorcycle and defendant's flight from Bautista. Defendant's flight created a reasonable inference of consciousness of guilt. This also would have supported an inference regarding intent; that is, to the extent a crime had been committed, it was done intentionally. This is not the only inference to be drawn from this evidence, but it is a reasonable one.
However, in addition to intent, there had to be evidence supporting an inference that the registration tag was unlawfully used on the motorcycle or had not been issued for that vehicle; that is, that the crime occurred.
There was no evidence that there was anything patently unlawful about the use of the 2009 tag. The photograph of the tag does not reveal any obvious defect or illegality. Thus, in this case, to establish the corpus of count 4 that the registration tag was unlawfully displayed, required some evidence that the vehicle had not been registered in 2009. This evidence was an integral part of the offense, and it is missing from this case.
The testimony of Bautista about the information obtained from the dispatcher that the registration was expired was admitted only for the limited purpose of showing why Bautista decided to initiate a traffic stop. It was not admitted, and cannot now be considered, to establish that in fact, the vehicle was last registered in 2007. There was no other evidence of that put forward. For example, the dispatcher was not called to testify directly and the Department of Motor Vehicles' records were not introduced. Thus, without defendant's extra-judicial admission that the registration was expired and the sticker was fake, there was no evidence, circumstantial or otherwise, to indicate that the crime occurred, i.e., that a vehicle registration was unlawfully displayed. So, while "[t]he People need make only a prima facie showing '"permitting the reasonable inference that a crime was committed"'" and that inference "need not be the only, or even the most compelling, one" (People v. Jones, supra, 17 Cal.4th at pp. 301-302), a legal inference cannot flow from the nonexistence of a fact. It can be drawn only from a fact actually established. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205.) An inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. (Ibid.) Were we to find that the 2009 sticker and defendant's flight created an inference that he had unlawfully displayed the vehicle registration with the intent to avoid the vehicle registration law, we would be engaging in just such conjecture.
Because there was no evidence independent of defendant's extra-judicial admission, we reverse the misdemeanor conviction in count 4.
In their answer brief the People contend the trial court erred when pursuant to defendant's request, the trial court corrected the custody credits awarded to defendant under section 4019.
The People argue this order is appealable as an unauthorized sentence under section 1238, subdivision (a)(10), which is subject to correction by the appellate court at any time.*fn3 Although the People did not file a separate appeal on this issue, it is cognizable on appeal. "Where a sentence is unauthorized, the People are permitted to challenge it either by way of their own appeal (§ 1238, subd. (a)(10)), or on a defendant's appeal. This is so because such a sentence is subject to judicial correction whenever the error comes to the attention of the trial court or a reviewing court. [Citations.]" (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1284.)
However, we do not agree that the trial court's application of the amended provisions of section 4019 resulted in an unauthorized sentence.*fn4 We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant . . . is not final]"; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].) Defendant is not among the prisoners excepted from the additional accrual of credit. (§§ 4019, former subds. (b)(2), (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Consequently, defendant was entitled to the additional custody credits.
The conviction on count 4 is reversed. In all other respects, the judgment is affirmed.
HULL , Acting P. J.