IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 22, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JULIO WILFRIDO RAMIREZ, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. (Super.Ct.No. RIF129512)
The opinion of the court was delivered by: Hollenhorst J.
P. v. Ramirez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a jury trial, defendant Julio Wilfrido Ramirez was convicted of possession of methamphetamine for sale (Health & Safety Code, § 11378). In a bifurcated proceeding, the trial court found true the allegation that he had served a prior prison term within the meaning of Penal Code*fn1 section 667.5, subdivision (b). On June 12, 2009, defendant was sentenced to three years in state prison. He appeals, contending he was denied the effective assistance of counsel. He further argues that he is entitled to additional conduct credits due to the amendment of section 4019.*fn2
On April 7, 2006, at approximately 3:00 p.m., Sergeant Michael Helmick of the Anaheim Police Department was conducting surveillance in Riverside. He observed defendant get into a black Yukon and drive to the home of Christina Valencia on Justin Lane in Moreno Valley. The sergeant detained defendant and conducted a parole search on his vehicle. The search revealed pay stubs from a business in Riverside with defendant's name and the Justin Lane address. Officers conducted a search of the house, even though defendant repeatedly said they could not go in his house.*fn3 Sergeant Helmick did not find any key to the Justin Lane home in the parole search of defendant. Defendant's listed parole address was in Anaheim.*fn4
Investigator Vargas testified that inside the Justin Lane home he had asked Ms. Valencia where defendant lived, and Ms. Valencia "motioned to [him] with her shoulder and her head pointing in the direction of the northwest bedroom."*fn5 A search of the bedroom produced two check stubs addressed to defendant at the Justin Lane home, men's clothing in the nightstand, men's and women's clothing in the closet, a wallet containing defendant's driver's license with the Anaheim address, a checkbook with defendant's name and the Anaheim address, a clear plastic bag with a substance that was suspected to be methamphetamine,*fn6 a small digital scale inside a soft case, and 17 empty Ziploc baggies. No drug paraphernalia that might indicate personal use were located, nor did defendant appear to be under the influence of a controlled substance at the time of the arrest. Investigator Vargas opined that defendant possessed the methamphetamine for sale. He also testified that 11.5 grams of methamphetamine is a usable quantity; however, he stated that typical methamphetamine users buy in small amounts of about 0.1 to 1 grams.
Defendant testified on his own behalf. He admitted to prior theft-related convictions. He acknowledged that he was on parole at the time of the search. He claimed that at the time of his arrest he had been dating Ms. Valencia for about a year, but he did not live with her. He stated that his residence was the Anaheim address; however, he used the Justin Lane address so he could secure work in Riverside. Defendant testified that Ms. Valencia used methamphetamine up to the time he was arrested. On the day of his arrest, Ms. Valencia had called him to let him know that he had left his wallet at the house. He admitted that some of the men's clothes found at the house were his, while other clothes belonged to Ms. Valencia's 12-year-old son. Defendant denied he had ever left his wallet, checkbook or clothes in the nightstand and stated he had never seen the drugs that were impounded on the day of his arrest.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he received ineffective assistance of counsel (IAC).
A. Standard of Review.
To prevail on the claim of IAC, defendant must demonstrate both that his attorney failed to act in the manner expected of a reasonably competent advocate and that it is reasonably probable a more favorable determination would have been made in the absence of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; In re Cox (2003) 30 Cal.4th 974, 1019-1020.) A failure on either showing will result in rejection of the claim. (In re Cox, supra, at pp. 1019-1020.)
B. Defendant's IAC Claims Need to Be Brought by Writ of Habeas Corpus
The People correctly point out that when a claim of ineffective assistance is made on direct appeal and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed, unless there could be no satisfactory explanation. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) Noting that defendant has filed a petition for writ of habeas corpus raising the same claims, the People argue that is the "correct vehicle to consider those arguments." We agree. However, defendant's petition fails to present any evidence of the reasons for trial counsel's tactics, because trial counsel failed to respond to defendant's inquiries. Accordingly, we will address defendant's IAC claims on appeal.
According to defendant, his trial counsel was ineffective when counsel: (1) failed to object to evidence that defendant was under surveillance by a unit dealing with career criminals; (2) entered into a stipulation regarding the legality of the search of the residence; (3) failed to impeach the officer's trial testimony with prior inconsistent statements; and (4) failed to object to instances of prosecutorial misconduct during closing argument when the prosecutor allegedly engaged in burden-shifting and misstating evidence.
1. Introduction of Surveillance Evidence
According to the trial testimony, Investigator Vargas and Sergeant Helmick were involved in "surveillance and apprehension of career criminals or those individuals that are involved in violent type[s] of criminal acts." Defendant was under surveillance prior to their initiating a search. He complains that because his trial counsel failed to object to this irrelevant evidence (even eliciting it), "[i]t served only to create a prejudicial inference that [defendant] was a career and violent criminal, once again involved in illegal activity." Further, defendant points out that in response to a juror's note questioning the reason for the surveillance, trial counsel asked that the jury be informed that defendant was under surveillance for possible possession of stolen AK-47s. Trial counsel planned to argue that the parole search was "outside the scope of what they were looking for," and that it went to the truthfulness of the officers, i.e., "what they put in the report and what they previously told somebody else." The juror's question went unaddressed.
To begin with, we agree with the People's observation that trial counsel acquiesced to defendant being under surveillance for the purpose of showing that the surveillance was conducted for such a short period of time it could not be verified that defendant was actually living at the Justin Lane residence as opposed to the Anaheim residence. The other reasons why trial counsel acquiesced became irrelevant when the jury did not hear that defendant was under surveillance for possible possession of stolen AK-47s. Nonetheless, assuming, without deciding, that trial counsel's performance was deficient, we cannot conclude that defendant was prejudiced, i.e., but for counsel's failure to object, defendant would have obtained a more favorable verdict. There was substantial evidence to support his conviction. Defendant referenced the Justin Lane residence as being his when he told the officers they could not go inside. The officers were directed to the bedroom used by defendant, where they found, inter alia, methamphetamine and other indicia of sales. Thus, the jury had every reason not to believe defendant's testimony that the methamphetamine was Ms. Valencia's.
2. Stipulation the Search was Legal
Defendant next faults his trial counsel for entering into a stipulation with the prosecution that the search was legal. Prior to trial, trial counsel indicated he would be addressing defendant's parole status. When the discussion turned to the validity of the search, trial counsel stated he would not raise the issue before the jury. Later, a stipulation that the search of Ms. Valencia's residence was lawful was read to the jury. Defendant contends that because the legality of the search was irrelevant, trial counsel's stipulation "assist[ed] the prosecution in meeting its burden of proof while providing no benefit to the defense." Moreover, defendant argues the stipulation "supported an inference that [he] was a known bad guy whom the police needed to search at will."
In response, the People argued the stipulation "did nothing to prejudice [defendant's] case," because the issue was "whether [defendant] possessed the drugs in question," not the legality of the search. We agree. Whether or not the search was legal had no weight on whether the methamphetamine was possessed by defendant. Likewise, we agree with the People's observation that stipulating to the legality of the search did not imply defendant was a bad person. Nonetheless, even if we assume counsel was deficient, given the evidence before this court, we cannot conclude that he was prejudiced.
3. Failure to Impeach Investigator Vargas
Defendant faults trial counsel for failing to impeach Investigator Vargas with his testimony at the preliminary hearing. Specifically, at trial, the investigator stated that in response to his question asking where defendant lived, Ms. Valencia motioned with her shoulder and her head in the direction of the northwest bedroom. However, previously at the preliminary hearing, the investigator testified that Ms. Valencia had responded that defendant "kept his property in her room and pointed to the northwest bedroom." According to the People, "[w]hether [defendant] lived there or kept his belongings there is a distinction without substance." We agree. The jury was asked to decide who possessed the drugs. Defendant testified that he did not live on Justin Lane, that only some of the clothes were his, and that his residence was in Anaheim. Right after Investigator Vargas testified as to Ms. Valencia's response to his question of where defendant lived, the trial court instructed the jury that it could consider the evidence only for the purpose of showing the investigator's subsequent conduct, not for the purpose of determining whether defendant actually lived in the particular bedroom. Nonetheless, even if trial counsel was deficient in failing to impeach Investigator Vargas's testimony, the evidence still supports the jury's findings. There was no prejudice.
4. Failure to Object on Grounds of Prosecutorial Misconduct
According to defendant, the prosecutor "made statements that are appropriately classified as prosecutorial misconduct." Specifically, defendant points out that the prosecutor (1) argued that the officers "watched [defendant] leave that morning" when there was no such testimony, and (2) impermissibly implied that defendant had the burden of proving his innocence when he stated that defendant could not "explain one piece of evidence." Defendant faults his trial counsel for failing to object to these alleged instances of prosecutorial misconduct.
Regarding the first statement that the officers had watched defendant leave that morning, the People argue the prosecutor reasonably commented on the evidence. We agree. "'[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'" (People v. Wharton (1991) 53 Cal.3d 522, 567.) A prosecutor's conduct violates California law if it involves the use of "'"deceptive or reprehensible methods"'" to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "'Prosecutorial comment is reversible as misconduct under the federal Constitution when it "'so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process'"'; improper comment that 'falls short of rendering the trial fundamentally unfair' is error under state law. [Citation.]" (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323.)
Turning to the record, we note the prosecutor's comment was made in response to trial counsel's argument that the evidence of surveillance was lacking. Specifically, trial counsel argued, "There's no records. There's no notes . . . There's nothing." And, "[t]he police came with a purpose, and that was for [defendant.] They followed [him]." In reply, the prosecutor argued, "Now, [trial counsel] also says that the only surveillance they did was followed him from work back to the house. That's absolutely, categorically not true. Sergeant Helmick said on the stand, they had surveilled him for one-and-a-half, two days. They watched him leave that morning, April 7th, 2006. He left the residence around 6:00 a.m. Goes to work in Riverside. They follow him back to that residence. The day before, they found him at that residence." Given Sergeant Helmick's testimony that defendant had been under surveillance for more than a day, but less than two, the prosecutor's allegedly offending comment was actually a fair comment on the evidence, so it is not likely an objection would have been sustained and a curative instruction would have been given.*fn7
Regarding defendant's claim that the prosecutor impermissibly implied defendant had the burden of showing his innocence, the record reveals the prosecutor was responding to defendant's claim that he had nothing to do with the methamphetamine found in the bedroom. The prosecutor argued that, if defendant had nothing to do with the drugs, he should have asked who did. Where did the scale and baggies come from? The prosecutor asked defendant whether he questioned Ms. Valencia about the methamphetamine. Thus, in closing argument, the prosecutor stated, "Anybody is accused of a crime they didn't do, . . . and if they know the evidence underlying it, the first thing they're going to do is try to find out what happened. In a second, he would have found out. Who is--is that your meth, Christina? Is that your meth? I know you use. They're hitting me for this. Not once. Not a peep. [¶] Three years, and he still can't explain the clothing. He wouldn't ask her one time. Why? Why would he? He knows who the meth belonged to. He knows who owned the clothes. He knows why his wallet is on top of the nightstand. He knows why his checkbook is inside it, and he knows why there's a meth scale and baggies inside that drawer."
"[P]rosecutorial comment upon a defendant's failure 'to introduce material evidence or to call logical witnesses' is not improper. [Citations.]" (People v. Wash (1993) 6 Cal.4th 215, 263, quoting from People v. Szeto (1981) 29 Cal.3d 20, 34.) "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Here, the prosecutor did not impermissibly imply that defendant had the burden to produce evidence to prove his innocence. There was no misconduct.
Even if trial counsel should have objected to either of the prosecutor's statements, defendant cannot establish prejudice. As previously noted, the evidence against defendant was substantial. Defendant cannot show a reasonable probability that a more favorable determination would have been made in the absence of trial counsel's failure to object. Therefore, his IAC claim fails.
III. AMENDMENT OF SECTION 4019
Defendant contends he is retroactively entitled to the increased custody credits provided for in the recent amendment to section 4019. The People disagree. The impact of the amendment of section 4019 has split our sister courts of appeal and is pending review in our Supreme Court.*fn8 Defendant's specific contentions are that the amendment should be interpreted to be retroactive and that the lack of retroactivity violates his right to equal protection. We disagree with both contentions.
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 § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared"]; In re E.J. (2010) 47 Cal.4th 1258, 1272 ["'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 section 2900.5 to provide credit for section 4019 conduct credits were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 (Hunter) [amendment to 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, supra, at p. 393.)
Defendant relies on Estrada and the mitigating effect of increasing the rate at which custody credits are earned to argue that the amendment of section 4019 was retroactive. Despite numerous cases applying Estrada, our Supreme Court has never cited either Doganiere or Hunter and has never stated that increases to the custody credit scheme are a mitigation of punishment. Instead, 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 (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, section . . . induces prisoners to make an effort to participate in what may be termed 'rehabilitative' activities."].) We conclude that increases in custody credits should not be considered a mitigation in punishment. Accordingly, the reasoning underlying our decision in Doganiere was flawed. Instead, 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, Estrada does not apply, and there is no presumption of retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546 (Kapperman).)
Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) 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 an intent for retroactivity.
Having searched for a legislative intent regarding prospective or retroactive application, we find no intent for retroactivity, and thus, the 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.'"].) Thus, the amendment to section 4019 applies prospectively and defendant is not entitled to an increase in his custody credits.
B. Equal Protection
Defendant relies on Kapperman, supra, 11 Cal.3d 542, in support of his contention that equal protection mandates that the statute be applied retroactively. Again, we disagree.
Kapperman is inapplicable 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.) However, Kapperman addressed actual custody credits under 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.
Section 4019's primary purpose is to motivate good conduct. (People v. Brown, supra, 33 Cal.4th at p. 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: RAMIREZ P.J. MCKINSTER J.