IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
March 2, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
CYNTHIA JOAN WITTS ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 09F04942)
The opinion of the court was delivered by: Butz ,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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Cynthia Joan Witts guilty of second degree burglary (Pen. Code, § 459),*fn1 and found defendant Sean Patrick Myers guilty of the same offense (ibid.) and petty theft with a prior (§ 666). The trial court sustained allegations that defendant Myers had a previous conviction for petty theft and had served a prior prison term. (§ 667.5.)
The court denied the motion of defendant Witts to reduce her offense to a misdemeanor (finding her conduct indicated a degree of sophistication, and citing her failure to take full responsibility for her actions). It nonetheless found hers to be an unusual case and granted formal probation (conditioned inter alia on a 120-day jail sentence), suspending imposition of judgment.*fn2 It determined she had one day of custody credit. The court also imposed various enumerated fines and fees. (It did not award direct restitution because the victim recovered all of its property.) The court set the reasonable value of defendant Witts' legal fees at $600, as to which she reserved her right to a hearing on her ability to pay.
The trial court also denied the motion of defendant Myers to reduce his convictions to misdemeanors. Declining to find his to be an unusual case making him eligible for probation, the court sentenced defendant Myers to the middle term on the burglary conviction (as enhanced with the prior prison term) and stayed execution of sentence on the theft conviction for an aggregate sentence of three years in state prison. It originally awarded 123 days of custody credits and 60 days of conduct credits; on application of appellate counsel, the court issued an amended abstract of judgment in May 2010 increasing the amount of conduct credit to 122 days. (Former § 4019, subds. (b)(1), (c)(1) & (f) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50 (hereafter former section 4019)].)
The ensuing appeal of defendant Witts is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accord with the latter, the Factual and Procedural Background includes any proceedings in the trial court pertinent to her appeal (along with the circumstances of her offense). In his appeal, defendant Myers asserts the trial court erred in denying his motion for acquittal. We shall affirm both the order granting probation to defendant Witts as well as the judgment of defendant Myers as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Myers waived a preliminary hearing; defendant Witts submitted the issue of probable cause on the police reports and moved to reduce her offense to a misdemeanor. The magistrate denied the motion and held her to answer, deeming the complaint to be the information. She entered a plea of not guilty.
Before trial, defendant Witts had been willing to plead to a misdemeanor. However, as it was part of a negotiated package that her co-defendant would not accept, she went to trial, where she did not testify and counsel did not present any evidence in her defense, make any argument, or question any of the witnesses (noting the strongest reasonable legal strategy for defendant Witts was to seek reduction of the offense to a misdemeanor).
A Wal-Mart "asset protection" employee testified that he kept the co-defendants under constant supervision after they entered the store in June 2009 and went to the cosmetics department, which was particularly subject to shoplifting, because they had reusable bags in their cart and this had become a preferred method of shoplifting. He also found it unusual that defendant Witts simply grabbed a plastic juice jug and tossed it in the cart without checking the price. The co-defendants appeared to him to be making joint decisions regarding the merchandise they were selecting. The asset protector specifically recalled defendant Myers at one point placing a pair of boots in the cart after browsing through the selections. Defendant Myers kept looking around as they walked. As they headed toward the exit, there were numerous items in the shopping cart, with the reusable bags on top of them.
Approaching the general exit, the two of them separated. Defendant Myers walked out the general exit. Defendant Witts went past all the general checkout counters and walked toward the checkout counters and exit for the food department. The asset protector followed defendant Myers while his supervisor followed defendant Witts. Defendant Myers walked about half of the 200 feet separating the general exit from the food exit and waited. Defendant Witts walked out the food exit less than a minute later without attempting to pay for the merchandise in her cart. She met up with defendant Myers. There were 37 items in the cart, valued at $188 (rounded) before taxes. The items were all unbagged; the reusable bags had been tucked into the cart's child seat.
When the co-defendants began to head out into the parking lot, the asset protectors detained them and asked about the unpaid merchandise in the cart. Defendant Myers did not seem visibly surprised at hearing this. Defendant Witts initially claimed she had been looking for defendant Myers, and offered to pay for the items. Defendant Myers challenged the right of the asset protectors to detain them and demanded that they call the police. A police officer and a sergeant responded. The police officer was responsible for the investigation.
As the police questioned the defendants (it is not clear whether one or both of them were present), the asset protectors heard defendant Witts admit that she had intended to shoplift the items before arriving at the store. The asset protector said he also heard defendant Myers initially deny any role in the selection of the goods or the departure from the store without paying for them; however, he heard defendant Myers eventually admit it was his fault that "they had come to do this because he was unable to provide for them without a job." The asset protector admitted that he had not included any quote of these admissions in his report, simply noting instead that they had made admissions. He acknowledged the possibility that he could be mistaken in attributing these statements to defendant Myers, "but not in this case." The police officer who questioned defendant Myers, however, did not recall him making the admissions that the asset protector had attributed to him.
Defendant Myers testified that defendant Witts was his ex-wife and the mother of his children, with whom he had been living. She had wakened him from a nap and asked him to go to the store with her. She did not say anything about intending to shoplift at any point before they entered the store. He did not pay any attention as they walked through the store while she shopped until he noticed a pair of boots that he liked, which he put in the cart. When it came time to check out, he indicated a "quickie line" that they should use. Defendant Witts was taking her time about getting in line, so defendant Myers got "miffed" and went outside to wait for her. As he left, he saw her walk off in the direction of customer service, where there were registers.*fn3 Defendant Myers smoked a cigarette while he waited.*fn4 When defendant Witts joined him outside, the asset protection personnel detained them. He was shocked to hear them claim that the items in the cart had been shoplifted. It did not occur to him that defendant Witts had joined him less than a minute after they had parted company. He did not make the statements the asset protector had attributed to him.
I. Defendant Witts
We appointed appellate counsel for defendant Witts. Counsel has filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel advised defendant Witts of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant Witts. Having undertaken an examination of the entire record, we do not find any arguable error that would result in a disposition that is more favorable to her, including the conduct credit issue we will address in part III. of the Discussion.
II. Defendant Myers
Before testifying, defendant Myers moved for acquittal. (§ 1118.1.) The trial court denied the motion without elaboration.
On appeal, defendant Myers contends the prosecution's case did not have substantial evidence of any intent on his part to commit a larceny when he entered the store. He focuses on the absence of any evidence other than the admissions during his interrogation that the asset protector had attributed to him (incorrectly stating that this was rebuttal evidence; the asset protector had also testified to this effect in the case-in-chief), which were not reflected in the asset protector's written report or confirmed in the police officer's testimony. He also points out that the asset protector allowed for the possibility that he could be mistaken about who made the statement.*fn5
The conflict between the testimony of the police officer and the asset protector, or the latter's concession of the possibility he might have been mistaken (which he asserted was not the case) do not, as defendant Myers supposes, make these admissions of an intent to steal before entering the store any less substantial. This is simply a question of the weight of the evidence, which is for the jury to evaluate. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) The testimony that defendant Myers made these statements was not "inherently improbable" such that we may disregard it on appeal. (Ibid.; accord People v. Mayberry (1975) 15 Cal.3d 143, 150.) The jury was instructed on treating unrecorded extra-judicial admissions with caution and the need for corroboration.*fn6 We therefore reject his argument.
III. Presentence Conduct Credits
The Supreme Court has granted review of our decision in People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963) to resolve a split in authority over the retroactivity of amendments to the provisions of former section 4019 governing the award of presentence conduct credits, which went into effect in January 2010. In our March 2010 miscellaneous order No. 2010-002, we had deemed this issue to be raised in all pending appeals without further briefing.
The Legislature subsequently revamped the statutory scheme for calculating these presentence conduct credits, which went into effect on September 28, 2010. (Stats. 2010, ch. 426, § 5.) For defendants sentenced to state prison, section 2900.5 continues to govern credit for actual presentence custody attributable to their convictions. (In re Marquez (2003) 30 Cal.4th 14, 19.) However, for defendants sentenced to prison who do not have any past or present convictions for "serious" or violent felonies, and who are not subject to registration as a sex offender, section 2933 (which previously had applied only to worktime credits in prison (see In re Jenkins (2010) 50 Cal.4th 1167, 1177 & fn. 5)) now governs their entitlement to presentence conduct credits. Under section 2933 as amended, these qualifying defendants receive one day's conduct credit for each day of actual presentence custody. (§ 2933, subd. (e)(1) [Stats. 2010, ch. 426, § 1].) This represents a beneficial change for defendants sentenced to prison whose cases are not yet final, because former section 4019 had required two-day increments of actual custody for the accrual of conduct credit. (§ 2933, subds. (b)(1), (b)(2), (e) & (f).) Since this issue is analogous to the issue embraced in our miscellaneous order No. 2010-002, we will also deem it raised without additional briefing.
Although the amendments to current section 4019 expressly apply only to crimes committed after their effective date (§ 4019, subd. (g) [Stats. 2010, ch. 426, § 2]), the Legislature did not include any similar provision about the effect of the changes to section 2933. Thus, by parity of reasoning to the conclusions in Brown (to which we adhere), the September 2010 amendments to section 2933 apply to all appeals still pending at the time of their enactment. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying Estrada to amendments involving custody credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [same].)
As the trial court granted probation to defendant Witts, she is not a prison inmate and therefore her entitlement to conduct credit is calculated only under former section 4019, which required a minimum period of actual presentence custody of four days before applying any conduct credits.*fn7 Her one day of actual custody therefore did not entitle her to any conduct credit.
As for defendant Myers, his 123 days of presentence custody now entitle him to 123 days of conduct credits, not 122. We thus modify the judgment to reflect this additional day of credit.
The order granting probation to defendant Witts is affirmed. The judgment of defendant Myers is modified to grant one additional day of presentence conduct credit in accordance with this opinion. The trial court is directed to prepare an amended abstract of judgment for defendant Myers and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment of defendant Myers is affirmed.
NICHOLSON , Acting P.J.