IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
WILMER EARL HARDEN ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. 06F10780)
The opinion of the court was delivered by: Robie, Acting P. J.
P. v. Harden
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendants Wilmer Earl Harden and Marcus Xavier McCauley sold drugs to a confidential informant who testified against them at trial. As a result, a jury found Harden and McCauley guilty of conspiring to sell cocaine base and of selling cocaine base. The court sentenced Harden to 3 years in prison and McCauley to 14 years in prison because of various enhancements.
Harden and McCauley both appeal. McCauley raises the following two contentions: (1) we should review the sealed transcript in relation to his motion to disclose peace officer personnel records to determine whether the trial court abused its discretion in denying the motion; and (2) the prosecutor committed misconduct in closing argument by vouching for the confidential informant, and trial counsel was ineffective for not objecting. Harden raises the following contention: he is entitled to additional conduct credits pursuant to the January 2010 amendments to former Penal Code*fn1 section 4019 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50 (former section 4019)). We agree with Harden's claim only.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, Donald Hatch was arrested for possessing drugs that he had obtained from McCauley. Later that month, Hatch entered into a contract with Sacramento Police Detective Jon Jennings to be a confidential informant. The contract required Hatch to testify "truthfully and completely" if he wanted to receive the benefit of the contract, which included a stipulated three-year prison sentence for his own drug possession charge.
In July 2006, Hatch negotiated over the telephone the purchase of eight ounces of cocaine for $3,600 from McCauley. The purchase took place in a house with Hatch, McCauley, and Harden present. Hatch gave Harden $3,600 that Hatch had obtained from Detective Jennings, and Harden gave Hatch eight ounces of rock cocaine. McCauley oversaw the transaction.
In December 2006, Hatch was arrested again on drug charges. In November 2007, Hatch was offered a plea deal for those charges of "four years and four months . . . conditioned upon his truthful testimony."
At trial in this case, Hatch stated he was testifying because the contract and plea deal required him to do so and that he was testifying truthfully. He then recounted the facts detailed above implicating both defendants.
The Trial Court Did Not Abuse Its Discretion
In Denying The Pitchess Motion
McCauley requests we review the sealed transcript and any documents in connection with his motion to compel disclosure of peace officer personnel records of Detective Jennings filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We have reviewed the transcript to determine if the trial court abused its discretion in denying the Pitchess motion. It did not. (See People v. Hughes (2002) 27 Cal.4th 287, 330.)
Trial Counsel Was Not Ineffective For Failing
To Object To The Closing Argument Because
The Prosecutor Did Not Commit Misconduct
McCauley contends the prosecutor committed misconduct in closing argument by "improperly vouch[ing] for the credibility of Hatch," and trial counsel was ineffective for failing to object.
The argument McCauley claims was improper occurred when the prosecutor discussed Hatch's credibility. The prosecutor referenced the contract Hatch signed in May 2006 requiring him to testify "truthfully and completely" if he wanted to receive the benefit of the contract, which included a stipulated three-year prison sentence for drug possession. The prosecutor also referenced the November 2007 plea deal entered into after Hatch was arrested on new charges where Hatch's attorney "conveyed the District Attorney's offer of four years and four months . . . conditioned upon [Hatch's] truthful testimony." After recounting this evidence, the prosecutor argued, "What does that mean? Where is Donald Hatch's motivation? Is it to lie and lose out on the benefits? Or is it to testify truthfully and gain those benefits?"
Because there was no objection to this argument, the prosecutorial misconduct argument has been forfeited (People v. Valdez (2004) 32 Cal.4th 73, 132), and we view McCauley's claim through the lens of ineffective assistance of counsel. To demonstrate that counsel was ineffective, a defendant must first show counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) Here, counsel was not deficient for failing to object because the prosecutor did not vouch for Hatch's credibility. A prosecutor's comments cannot be characterized as improper vouching if the prosecutor's assurances regarding the honesty or reliability of a prosecution witness are based on the facts of the record and inferences reasonably drawn there from, rather than from any purported personal knowledge or belief. (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.)
Here, the prosecutor did not vouch for Hatch's credibility, let alone do so on facts outside the record. Rather, the prosecutor drew the jury's attention to two pieces of evidence that demonstrated Hatch had incentives to tell the truth, i.e., Hatch's May 2006 contract with the detective and his November 2007 plea agreement, both of which had clauses requiring him to testify truthfully to gain the benefits of these deals. The prosecutor then asked about Hatch's motivation to lie. There was nothing improper about this. In fact, right after these comments, the prosecutor reminded the jury, "remember . . . you are the sole judges of the credibility of the witnesses. You saw Donald Hatch on the witness stand. You saw him testify. You heard his responses to the questions that were asked over and over again by these attorneys. [¶] What do you think of his testimony? That's for you to decide."
On this record, there was no misconduct and counsel was not deficient for failing to object.
Harden Is Entitled To An Additional 48 Days Of Conduct Credit
Harden contends he is entitled to an additional 48 days of conduct credit pursuant to a retroactive application of the January 2010 amendments to former section 4019.
The Supreme Court has granted review to resolve a split in authority over whether the January 2010 amendments to former section 4019 are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [giving retroactive effect].)
Pending a determinative resolution of the issue, we adhere to the conclusion that the January 2010 amendments apply to all appeals pending at the time of their enactment. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendments that lessened punishment for crime apply to acts committed before passage, provided judgment is not final]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both of which apply Estrada to amendments involving custody or conduct credits].)
Harden does not have any prior felony convictions for a serious or violent felony (§§ 667.5, subd. (c); 1192.7, subd. (c)), nor does his present felony conviction come within those categories. He also is not subject to registration as a sex offender. (§ 290 et seq.) As a result, he is not in the class of felons excepted from accruing additional custody credit. (Former § 4019, subds. (b) & (c); § 2933.1.) He had 49 days of actual presentence custody credit at the time of sentencing. He is now entitled to 48 days of conduct credits for this period of presentence custody. (Former § 4019, subds. (b), (c) & (f).) We modify the judgment as to Harden accordingly.
The judgment as to McCauley is affirmed.
The judgment as to Harden is affirmed as modified. We direct the trial court to prepare an amended abstract of judgment reflecting 48 days of conduct credit and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BUTZ , J. HOCH , J.