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The People v. James Jerome Carter

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES JEROME CARTER, DEFENDANT AND APPELLANT.

APPEAL from the Superior Court of Riverside County. H. Warren Siegel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified. (Super.Ct.No. RIF148364)

The opinion of the court was delivered by: Richli J.

P. v. Carter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

On August 27, 2008, defendant (who was homeless) entered a home in Lake Elsinore while the owner of the home and her children were visiting her sick mother. Defendant took a power drill and an extension cord from the garage. He was convicted of burglary and receiving stolen property. Defendant now contends:

1. The trial court erred by allowing the People to impeach him with a prior felony conviction that did not involve moral turpitude, and in any event it should have been excluded under Evidence Code section 352.

2. The trial court's refusal to instruct the jury with Judicial Council of California Criminal Jury Instruction (CALCRIM) No. 3403, the defense of necessity, violated his rights to due process and a fair trial.

3. The imposed sentence for receiving stolen property should have been stayed pursuant to Penal Code section 654.

4. He is entitled to additional custody credits due to an amendment to Penal Code section 4019 that became effective after he was sentenced.

We conclude there were no prejudicial trial errors. We agree that defendant's sentence for receiving stolen property should have been stayed, and we will so order. We otherwise affirm the judgment.

I

PROCEDURAL BACKGROUND

A Riverside County jury found defendant guilty of residential burglary (Pen. Code, § 459)*fn1 and a separate count of receiving stolen property (§ 496, subd. (a)). Defendant admitted in a bifurcated proceeding that he had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced on the burglary to the low term of 2 years, plus 2 years for the prior prison term enhancements, for a total of 4 years. The sentence of 1 year 4 months on the receiving stolen property conviction was sentenced concurrent to the burglary conviction.

II

FACTUAL BACKGROUND

A. People's Case-in-Chief

On August 27, 2008, Laura Maldonado lived with her five children in a house located on Prospect Avenue in Lake Elsinore. Maldonado and her children went to stay with her mother in the two weeks prior to the above date because her mother was ill. Maldonado had come back to the house off and on during the two weeks but never stayed the night.

Defendant frequently canvassed the area around Maldonado's house looking for cans and bottles to recycle. Maldonado had seen defendant on prior occasions and had given him cans to recycle. Maldonado had even asked defendant if he could get a lawn mower and mow her lawn and promised she would pay him.

Linda Villalobos lived across the street from Maldonado. Villalobos also had seen defendant almost weekly in the neighborhood picking up cans and bottles out of the trash cans.

About 9:30 a.m., on August 27, 2008, Villalobos observed defendant walk to the fence surrounding the Maldonado's house. Villalobos was aware that Maldonado and her family had been out of town for one or two weeks. Villalobos observed defendant enter the front gate to the house and pick up some bottles and cans from the front yard.

Defendant then walked to the front of Maldonado's house, looked in the front window, and tapped on it. He said "hello" several times and then went back to the side of the house. Defendant walked behind Maldonado's house and disappeared from Villalobos's view.

Villalobos observed defendant open Maldonado's garage from the inside and prop it up with a pole. Defendant emerged from the garage carrying "some tool" and an extension cord. Defendant put the tool and extension cord in his shopping cart (which was sitting up the street from the Maldonado home) and walked away pushing the cart. Villalobos called the police.

Riverside County Sheriff's Deputy Richard Vryheid responded to the call. When he arrived, he observed defendant pushing a shopping cart away from Maldonado's home and detained him.

At that same time, Maldonado returned to her house. She noted that her garage door was propped open; she had not left it that way. Maldonado was told by neighbors that someone had broken into her house. The back door that went from the garage to the house appeared to be "kicked open," although Maldonado had locked it and the garage when she left the house.

Maldonado entered her house and found it had been ransacked. She did not notice anything missing from inside the house. A power drill and extension cord were missing from the garage.

Deputy Vryheid looked through defendant's shopping cart and found an orange power drill and extension cord. There were also bottles and cans in the cart. The power drill and extension cord were identified as being the ones taken from Maldonado's garage. Maldonado did not give defendant permission to enter her home or take the power drill and extension cord from the garage.

Maldonado admitted the front yard was littered with toys and other items. The front gate lock was broken. The grass was unmowed at the time of the incident.

B. Defense

Defendant testified on his own behalf. He indicated he had been homeless for 18 years. He supported himself by collecting bottles and cans for recycling. He also did yard work and other odd jobs. In order to get food, he recycled or worked with various charities in Lake Elsinore. He sometimes did not know where he would get his next meal. He had been collecting bottles and cans on Prospect Street since 1982.

Defendant had spoken with Maldonado on several occasions. On August 27, defendant thought that Maldonado had abandoned her house because the gate to the back yard was broken, and the grass had not been cut. Also, he had not seen Maldonado for "awhile."

Defendant approached the house to ask for some cans. When no one answered his knock on the door or calls into the house, he went to the side of the house and called out again. He claimed the garage was partially opened. He did not look in the windows.

Defendant saw the extension cord sticking out of the garage and grabbed it. He then saw the power drill further in the garage. He lifted up the garage door and leaned in with his arm to grab the drill. He never propped open the door. He put the items in his shopping cart.

Defendant claimed he took the items because he thought the home was abandoned and wanted to get them before somebody else picked them up. Defendant admitted that Maldonado did not give him permission to take the items out of the garage. Defendant intended to hold on to the items for a month in case someone claimed them. After that time passed, he was going to sell them.

III

ADMISSION OF SIMPLE POSSESSION FOR IMPEACHMENT

Defendant contends that the trial court erred by admitting his prior felony conviction suffered in 2004 for simple possession of crack cocaine, as it did not involve moral turpitude. Moreover, even if the prior was admissible for impeachment purposes, the trial court should have excluded it under Evidence Code section 352 as more prejudicial than probative. The People have replied that the evidence admitted amounted to misdemeanor conduct, lying to a police officer, and was admissible as conduct involving moral turpitude.

A. Additional Factual Background

Prior to defendant testifying, the parties addressed his impeachment with a 2004 felony conviction for simple possession of crack cocaine. The trial court noted, "[A] conviction of a felony is a basis for impeachment if it's a felony not involving moral turpitude. Basically, in my mind it becomes Evidence Code 352, a prejudice question." The trial court noted, "So in my mind, what I'd like to have addressed is whether the admission of non moral turpitude prior felony is prejudicial under the circumstances of this case, because as a felony, it is clearly admissible in my mind." Defendant disagreed that a felony conviction for simple possession was admissible if it did not involve moral turpitude. Further, even if it was admissible, the probative value was outweighed by the prejudice.

The trial court ruled, "I'm going to allow the prior conviction of a felony, even though clearly it does not involve moral turpitude[,] to be used for impeachment because the legislature has said a conviction of a felony is a basis of impeachment of a witness. Once the defendant takes the stand, the same rules apply to the defendant as apply to any other witness who takes the stand. [¶] The issue of moral turpitude, again, as I read Castro,[*fn2 ] applies basically to a [Evidence Code section] 352 ruling. This conviction was fairly concurrent . . . . It's not many years old. We have discussed that situation in chambers earlier concerning convictions that were 15 or 20 years old, but this one certainly is reasonably related in time to the event. [¶] Here, again, I think that the same rules apply to the defendant when he testifies as to any other witness. Conviction of a felony is a basis under the Evidence Code for impeachment."

The parties revisited the issue at defendant's insistence that a felony that did not involve moral turpitude was inadmissible. The People, for the first time, argued that defendant lied to the police that he possessed drugs when he was detained in 2004, i.e. he engaged in misdemeanor conduct involving moral turpitude. Defendant argued that it was clear that for a felony conviction, only the fact of the conviction could come in, not the circumstances that led to the conviction. The trial court then inquired, "The issue is . . . if you impeach with a felony, is it appropriate to describe the felony or just ask have you ever been convicted of a felony." The People responded, "The Court and counsel [are] correct in that if it was just the nature of the conviction that we were discussing . . . , then with the felony just the fact that a conviction exists would be appropriate. However, in this case, in addition to it was the way he committed this particular felony that makes it reflect poorly on his willingness to tell the truth. Therefore, we can address . . . in this case the misdemeanor conduct that he's lying to the police officer." The People maintained that they could ask defendant if he had ever lied to the police, and if he denied it, they could bring in an officer to testify.

Defendant asked for an Evidence Code section 402 hearing for the officer's testimony. The trial court responded, "My ruling will stand. Let's bring in the jury." Defendant argued such a hearing was necessary because the statements violated Miranda.*fn3 The trial court responded, "All he's saying [is] if your client testifies a certain way, he can ask a question. Now whether he has the ability to then bring in proper evidence for impeachment is a separate issue. We haven't gotten there yet. Can he ask the question? Yes."

The following exchange occurred between the People and defendant during cross-examination:

"Q. Let's go back to your interactions with the police officers.

"A. Go ahead.

"Q. When you have spoken to police officers in the past, you've been honest with them; is that correct?

"A. Pretty much, sir, yes.

"Q. By pretty much, I detect equivocation. Have you in the past lied to police officers to cover-up your crimes?

"A. I have said certain things sometimes to let them know I wasn't being truthful because of my drug addiction.

"Q. So what you are saying sometimes when you speak to police officers, you are untruthful?

"[DEFENSE COUNSEL]: Objection, misstates the evidence.

"THE COURT: The jury has heard it. Ask another question.

"Q: . . . Why is it that you are sometimes dishonest with police officers?

"A. Because of committing a crime I don't want to be known as somebody who committed a crime in that area. I didn't want them to know I had a drug problem, which I did at that time had a drug problem I wasn't proud of.

"Q. You didn't want to tell people the truth about what you'd done because it was a crime?

"[DEFENSE COUNSEL]: Objection, vague, argumentative, vague as to time.

"THE COURT: Specify the time. Sustained.

"Q: . . . During these prior times where you've lied to police officers about your crimes, are you clear on which times?

"[DEFENSE COUNSEL]: Objection.

"THE COURT: Ask your question.

"Q: . . . In the past, we established you've . . . been dishonest with police officers because of a crime.

"A. Sir, I might have said something to a police officer, but that didn't hide the fact of who I am, what I did because most police in Lake Elsinore knew who I was and what I did.

"Q. You still lied to cover up a crime?

"A. I may have said something I didn't know I knew about this or that. I may lie in that incident, yes, sir, I did.

"Q. In fact, on September 1st, 2004, you were stopped; is that correct?

"A: I can't remember that far, sir.

"Q: The incident you are referring to, help me understand what incident.

"A. 2004 if I lied to police about drugs, that means I might have had drugs . . . . I told them I didn't have any. I didn't know what it was.

"Q. You had, in fact, told them you were wearing somebody else's pants?

"A: I don't remember like that.

"[DEFENSE COUNSEL]: Objection, argumentative.

"THE COURT: Overruled.

"Q. . . . You did lie?

"THE COURT: Go ahead. Another question.

"Q: . . . The reason why you were misinforming the police was because you were trying to cover-up a crime?

"[DEFENSE COUNSEL]: Objection, asked and answered.

"THE COURT: Overruled. Talking about '04?

"[PROSECUTOR]: Yes.

"THE COURT: Overruled.

"A: I might have been covering up a crime. I don't see what kind of crime you can cover up by having drugs in my pocket. It's on me, not anybody else."

B. Analysis

The California Constitution provides: "Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding. . . ." (Cal. Const., art. I, § 28, subd. (f).) The California Supreme Court, however, has interpreted that constitutional provision as meaning that, "[A] witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude. We reemphasize that even such admissibility is subject to trial court discretion under [Evidence Code] section 352." (People v. Castro, supra, 38 Cal.3d at p. 317.) In other words, "a felony conviction offered for impeachment is 'prima facie admissible' subject to the trial court's discretion under [Evidence Code] section 352, if it involves 'moral turpitude,' i.e., evidences a 'readiness to do evil.' [Citation.]" (Robbins v. Wong (1994) 27 Cal.App.4th 261, 271.}

"Whether a conviction involves [moral] turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions. [Citations.]" (People v. Collins (1986) 42 Cal.3d 378, 390.) The admissibility of a felony conviction involving moral turpitude to impeach a witness is left to the trial court's discretion. (People v. Maestas (2005) 132 Cal.App.4th 1552, 1556.)

Although in Castro the Supreme Court did not provide a list of the felony convictions that involve moral turpitude, it did hold that a felony conviction for simple possession of a controlled substance is not a crime involving moral turpitude and therefore may not be used to impeach a witness. (People v. Castro, supra, 38 Cal.3d at p. 317; see also People v. Vera (1999) 69 Cal.App.4th 1100, 1103.)

The trial court in the instant case clearly misunderstood the holding in Castro. It erred by finding that the fact of defendant's prior felony conviction for simple possession was admissible. However, such error did not affect the verdict in this case because the People never introduced the felony conviction. Rather, it admitted defendant's misdemeanor conduct, e.g., that he lied to police officers.

In People v. Wheeler (1992) 4 Cal.4th 284 (superseded by statute on other grounds in People v. Duran (2002) 97 Cal.App.4th 1448), which was decided after Castro, the court held "that if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence under section 28[, subdivision] (d)." (Wheeler, at p. 295.) In detailing the standard of admissibility, the court stated that "[m]isconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction. . . . [¶] Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.'" (Id. at pp. 295-296, fn. omitted.) Admission of such prior misconduct evidence remains subject to the trial court's discretion under Evidence Code section 352. (Wheeler, at p. 296.)

The People were entitled to inquire of defendant whether he had previously lied to police officers. Defendant's misdemeanor conduct of lying to a police officer was relevant to his credibility. We reject defendant's claim that the prosecutor was required to introduce evidence of the misdemeanor conduct and could not impeach defendant through questioning. Other courts have concluded a witness can be questioned about prior misconduct if such inquiry is made in good faith. (People v. Steele (2000) 83 Cal.App.4th 212, 223; see also People v. Doolin (2009) 45 Cal.4th 390, 442-443.) No other evidence was required, as we interpret defendant's responses as admitting he lied during the previous incident with police officers.

Although the trial court engaged in an Evidence Code section 352 analysis in admitting the fact of the felony conviction, it did not expressly make such determination as to the misdemeanor conduct. However, the trial court was not required to expressly weigh the prejudicial effect against its probative value on the record. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1080.) It had already determined the conduct was not too remote in time and understood that Evidence Code section 352 was relevant. Moreover, defendant never objected to this evidence on the ground it was more prejudicial than probative. (RT 118, 1701-71.}

Evidence Code section 352 gives the trial court the discretion to exclude evidence that is otherwise admissible if the court determines that the probative value of the evidence is "outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "For this purpose, 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that '"uniquely tends to evoke an emotional bias against defendant"' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

The evidence here was clearly probative to show defendant had lied in the past to cover up his crimes in order to impeach his testimony that he believed the house was abandoned. Further, the evidence was not unduly prejudicial. It did not consume an undue amount of time. Although the fact that defendant had lied to police officers in the past and had been in possession of drugs may have cast defendant in a negative light, it did not evoke the emotional bias necessitating its exclusion. Moreover, the jurors were not told defendant was convicted of the crime of simple possession. The conviction was not inadmissible under Evidence Code section 352.

Even if we were to find that the trial court erred by allowing in evidence that amounted to misdemeanor conduct, such error was harmless because it is not reasonably probable that a result more favorable to defendant would have been reached if the misdemeanor conduct had been excluded. (People v. Rodrigues, supra, 8 Cal.4th at p. 1127; People v. Watson (1956) 46 Cal.2d 818, 836.)

There was substantial evidence that defendant committed burglary and received stolen property. There is no dispute that defendant took the extension cord and power drill. He was found near Maldonado's house in possession of the items. Villalobos, an eyewitness, gave credible testimony that she saw defendant go to the back of the house and then prop open the garage door. Maldonado confirmed the door was propped open when she returned home and that she had not left it that way. Defendant testified that he only reached into the garage and never propped open the door. Moreover, although defendant claimed that he thought the home was abandoned because the lawn had not been mowed, Maldonado testified that she had asked defendant to help her with the lawn. Clearly, the jury had reason to disbelieve defendant's testimony regardless of his prior misdemeanor conduct, find that Villalobos's testimony was credible, and reject that defendant believed the home was abandoned.

Moreover, the jury was instructed with CALCRIM No. 316, which provided, "If you find that a witness has committed a crime or other misconduct, you can consider that fact only in evaluating the credibility of the witness's testimony. The fact that the witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact whether that fact makes that witness less believable." We presume the jury followed the instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)

Any error occasioned by the admission of defendant's prior conduct of lying to a police officer was harmless.

IV

DEFENSE OF NECESSITY

Defendant contends that the trial court erred by denying his request for the jury to be instructed with CALCRIM No. 3403,*fn4 the defense of necessity, because of his homelessness and need to provide for himself.

A. Additional Factual Background

The parties discussed the jury instructions in chambers. The trial court noted in open court it was not giving CALCRIM No. 3403 based on the facts of the case. The trial court found, "It's no emergency and not a legal necessity." Defendant's counsel disagreed, arguing that lack of food and shelter could be a "legal necessity, ongoing emergency." The People argued that defendant had a legal alternative; he had collected cans in order to support himself. The trial court refused the instruction.

B. Analysis

"To justify an instruction on the defense of necessity, there must be evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency. [Citations.]" (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035, fn. omitted.) "Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime. [Citations.]" (People v. Heath (1989) 207 Cal.App.3d 892, 901.)

There simply was no evidence supporting the instruction. Defendant had an alternative to committing the crime. He admitted he collected cans and went to charities for food. He also stated he was not going to sell the items immediately; he was going to wait a month. Defendant simply did not meet the elements of the defense of necessity, as he had a legal alternative to obtain food to sustain himself.

Defendant cites to In re Eichorn (1998) 69 Cal.App.4th 382. Defendant's reliance on Eichorn is misplaced. In Eichorn, the defendant was charged with committing a misdemeanor violation of a city's ban on sleeping in designated public places. (Id. at pp. 384-385.) The Eichorn court held that the defendant's proffered evidence showing that he was homeless due to his inability to afford to pay for housing and the lack of available beds in the city's homeless shelters the night of the violation justified a necessity defense, particularly since "[s]leep is a physiological need, not an option for humans." (Id. at pp. 389-390.) Eichorn does not stand for the proposition that a threat of homelessness or a need for money constitute a necessity justifying the commission of burglary.

Defendant relies on the premise that public policy supports his taking from an abandoned home to feed himself. However, the jury necessarily rejected that defendant acted under the reasonable belief that the home was abandoned. The jury was instructed on the mistake-of-fact defense. It provided, "The defendant is not guilty if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit the charged offenses. [¶] If you find that the defendant believed that he had a right to the property, and if you find that the belief was reasonable, he did not have specific intent or mental state required for the charged crimes."

The jury found defendant guilty of burglary, necessarily rejecting that he entered an abandoned house. Public policy does not condone defendant's entry into an inhabited dwelling to feed himself when other legal alternatives existed. The defense of necessity clearly had no application to this case.

V

STAY OF RECEIVING STOLEN PROPERTY SENTENCE

UNDER SECTION 654

Defendant contends, and the People agree, that the trial court improperly imposed a concurrent sentence for his receiving stolen property conviction when it should have been stayed pursuant to section 654. The trial court sentenced defendant to a concurrent sentence on the receiving stolen property count to the burglary. There was no objection from defendant's counsel.*fn5

"'Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.' [Citation.] It is the defendant's intent and objective that determines whether the course of conduct is indivisible. [Citation.] Thus, '"[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once."' [Citation.]" (People v. Le (2006) 136 Cal.App.4th 925, 931.) "Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]" (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

Burglary requires entry into a dwelling with the intent to commit a theft or other felony. (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) Receiving stolen property requires the knowing possession of stolen property. (§ 496, subd. (a).)

A defendant can be convicted of burglary and of receiving stolen property with respect to the property stolen in the burglary. (People v. Allen (1999) 21 Cal.4th 846, 866.) Other courts have found that despite being properly convicted of both crimes, one should only be sentenced on one of the crimes if the only property on which the receiving stolen property conviction was based was the property taken during the burglary. (Id. at p. 867; People v. Carr (1998) 66 Cal.App.4th 109, 113.)

We agree that, under the principles of section 654, defendant committed both offenses with the singular intent of stealing the drill and extension cord from Maldonado's garage, which was the only property possessed and taken from Maldonado. Thus, the sentence on receiving stolen property should have been stayed by the trial court.

VI

SECTION 4019 CREDITS

Defendant contends that he is entitled to the enhanced presentence custody credits provided by the amended version of section 4019. Under the new formula for conduct credits, he claims he is entitled to 94 additional days. The People respond that the amendment does not apply retroactively.

When the crime was committed, as well as when defendant was sentenced on September 18, 2009, section 4019 provided that a defendant was entitled to two days of conduct credit for every four days of presentence custody. (Former § 4019, added by Stats. 1982, ch. 1234, § 7, p. 4553.) Effective January 25, 2010, however, section 4019 was amended so as to provide that a defendant is entitled to two days of conduct credit for every two days of presentence custody. (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50, pp. 4427-4428.)

This issue of retroactive application of the current version of section 4019 has caused a split of authority in the Courts of Appeal, and that question is currently before the Supreme Court. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.) As it will have the last word on the subject, we discuss the issue only summarily.

Under section 3, "'[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.) Neither the bill that amended section 4019 nor the legislative history contains any such clear and compelling implication.

Indeed, there is one indication that the Legislature did not intend the amendment to be retroactive. Section 2933.3, subdivision (d), as amended by the same bill, provides that for prison inmates who have completed training as firefighters after July 1, 2009, an enhanced credit for prison time will apply retroactively to July 1, 2009. (§ 2933.3, subds. (b) & (c), Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 41, p. 4422.) Implicitly but necessarily, all other enhanced credits for all other defendants are prospective only.

We recognize that, under In re Estrada (1965) 63 Cal.2d 740, "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.) Presentence conduct credits, however, are not a mitigation of punishment. Rather, they are a means of encouraging and rewarding behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Austin (1981) 30 Cal.3d 155, 163.)

We therefore conclude that defendant is not entitled to any additional presentence custody credits.

VII

DISPOSITION

The judgment is modified to stay the sentence on defendant's conviction for receiving stolen property (§ 496) in count 2 pursuant to section 654. The superior court clerk is directed to prepare a corrected minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur:

McKINSTER

Acting P.J.

MILLER

J.


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