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The People v. Yuriy Penkov

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


August 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
YURIY PENKOV, DEFENDANT AND APPELLANT.

(Super. Ct. No. 092555)

The opinion of the court was delivered by: Hoch , J.

P. v. Penkov CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Yuriy Penkov was convicted by jury of possession and transportation of methamphetamine, possession of drug paraphernalia, and driving on a suspended license. Following a bifurcated hearing, the trial court found that defendant committed these crimes while out on bail for another felony offense. The trial court sentenced defendant to an aggregate term of six years in state prison (upper term of four years for transportation, plus a consecutive two-year term for the out-on-bail enhancement).

On appeal, in an attempt to bring himself within the provisions of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36), defendant asserts several challenges to his conviction for driving on a suspended license, and then argues the trial court abused its discretion by failing to consider his request to dismiss or reduce this conviction to an infraction in order to sentence him in accordance with Proposition 36.

Aside from challenging this conviction, defendant asserts the trial court violated his constitutional rights by denying his motion to dismiss the transportation charge at the close of the People's case. He also claims the trial court violated his constitutional right to a unanimous verdict by failing to give the jury a unanimity instruction. Defendant further asserts the evidence was insufficient to support the out-on-bail enhancement. Finally, he claims the trial court prejudicially erred by failing to order an updated probation report after he was deemed unsuitable for the Civil Addict Program.

We disagree with each contention. However, because the trial court erred by imposing and executing the out-on-bail enhancement without proof that defendant had been convicted of the primary offense, we modify the judgment to stay execution of the enhancement and affirm the modified judgment.

FACTS

In May 2009, defendant was trimming hedges across the street from Arturo Camacho's house in West Sacramento. Camacho was an off-duty police officer with the West Sacramento Police Department. Defendant arrived at the job site alone in a green Dodge Ram owned by his father. He wore a white shirt, beige pants, black flip-flops, and a "military style, camouflaged, extreme cold weather hat."

Around 4:30 p.m., as defendant trimmed the hedges, his cousin Lyudmila Vlasenko stopped by for a visit. Defendant told Vlasenko he would talk to her when he finished working, so she waited for him in the front of the Dodge Ram. As defendant climbed a ladder, a stereo face plate case fell out of his pocket. Vlasenko opened the case and found a "glass object and a little bag with some substances." She and defendant argued about his "drug use." Vlasenko then placed the case inside a black leather bag inside the truck and left.

Around 5:15 p.m., Officer Camacho first noticed defendant across the street trimming the hedges. Officer Camacho saw defendant leave in the Dodge Ram at around 5:30 p.m. Defendant returned about five minutes later and continued his work on the hedges. Aside from defendant, "there was no one on the entire street." About five minutes later, at around 5:40 p.m., one of Officer Camacho's neighbors knocked on his door and told him that a man was offering to trim hedges. At this point, Officer Camacho went out to his front yard to speak with defendant, recognized him from "multiple encounters in the past," and knew that defendant was wanted on an outstanding felony warrant.

Around 6:10 p.m., Officer Camacho returned to his house and called Officer David Stallions concerning defendant's location. Police responded to the scene at about 6:15 p.m. and took defendant into custody. At the time of his arrest, defendant was the only person in the area.

Through the Dodge Ram's open window, one of the officers saw the black leather bag on the seat, which was open, and in which the officer could see "a small bullet." The truck was searched. Police found two bullets in the leather bag (one .32 caliber and one .38 caliber), another 9-mm bullet on the driver's side floor mat, and two shotgun shells in a hat in the rear of the cab. Police also found a glass pipe and a clear plastic bag containing .91 grams of methamphetamine in the stereo face plate case in the leather bag. The leather bag also contained two brass pipes.

At the time defendant drove his father's truck to the work site, and then briefly away from the location and back again, his license was suspended. The Department of Motor Vehicles (DMV) previously mailed a letter notifying defendant of the suspension to his most recent address. This letter was not returned to the DMV as either undeliverable or unclaimed.

DISCUSSION

I

Proposition 36

Because the bulk of defendant's appeal can be viewed as an attempt to bring himself within the provisions of Proposition 36, we begin with an overview of this alternative sentencing scheme.

"Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance. Its provisions outline 'an alternative sentencing scheme' for persons convicted of certain drug offenses. [Citation.] 'In effect, it acts as an exception to the punishment' provided for certain offenses involving controlled substances. [Citation.]" (People v. Canty (2004) 32 Cal.4th 1266, 1275, quoting In re Varnell (2003) 30 Cal.4th 1132, 1136.)

Penal Code section 1210.1, subdivision (a),*fn1 provides in relevant part that, "except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program." Section 1210, subdivision (a), defines "nonviolent drug possession offense" to mean "the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term 'nonviolent drug possession offense' does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of Section 4573.6 or 4573.8."

Section 1210.1, subdivision (b)(2), excludes from mandatory probation and diversion into a drug treatment program "[a]ny defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony." Section 1210, subdivision (d), defines "misdemeanor not related to the use of drugs" to mean "a misdemeanor that does not involve (1) the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to register as a drug offender, or (2) any activity similar to those listed in (1)."

Defendant's convictions for possession and transportation of methamphetamine for personal use qualify as nonviolent drug possession offenses under section 1210, subdivision (a), and his conviction for possession of narcotics paraphernalia is a misdemeanor related to the use of drugs. However, his conviction for driving on a suspended license is "completely unrelated to the possession or use of drugs." (People v. Orabuena (2004) 116 Cal.App.4th 84, 91 (Orabuena).) Because of this, defendant is excluded from the alternative sentencing scheme prescribed by Proposition 36.

In order to avoid this result, defendant asserts three challenges to his conviction for driving on a suspended license: (1) sufficiency of the evidence to support the conviction; (2) instructional error; and (3) ineffective assistance of counsel. He also contends the trial court abused its discretion at sentencing by failing to consider his request to dismiss or reduce this conviction to an infraction in order to sentence him in accordance with Proposition 36. We turn to these contentions now.

II

Sufficiency of the Evidence

Defendant asserts the evidence was insufficient to support his conviction for driving on a suspended license. We disagree.

"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077 (Wallace); Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "'Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial.' [Citation.]" (Wallace, supra, 44 Cal.4th at p. 1077; People v. Burney (2009) 47 Cal.4th 203, 253.)

Vehicle Code section 14601.1, subdivision (a), provides in relevant part that "[n]o person shall drive a motor vehicle when his or her driving privilege is suspended or revoked . . . if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the [DMV] to the person pursuant to [Vehicle Code] Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof."

Vehicle Code section 13106, subdivision (a), provides: "When the privilege of a person to operate a motor vehicle is suspended or revoked, the [DMV] shall notify the person by first-class mail, of the action taken and of the effective date thereof, except for those persons personally given notice by the [DMV] or a court, by a peace officer pursuant to [Vehicle Code] Section 13388 or 13382, or otherwise pursuant to this code. It shall be a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if notice has been sent by first-class mail by the [DMV] pursuant to this section to the most recent address reported to the [DMV] pursuant to [Vehicle Code] Section 12800 or 14600, or any more recent address on file if reported by the person, a court, or a law enforcement agency, and the notice has not been returned to the [DMV] as undeliverable or unclaimed. It is the responsibility of every holder of a driver's license to report changes of address to the [DMV] pursuant to [Vehicle Code] Section 14600."

However, in People v. Roder (1983) 33 Cal.3d 491 (Roder), our Supreme Court declared unconstitutional a statutory mandatory rebuttable presumption of knowledge found in former section 496 (receiving stolen property) as that presumption lightened the People's burden of proving the defendant's knowledge beyond a reasonable doubt (id. at pp. 499-502); the court transformed the unconstitutional mandatory presumption into a permissive inference. (Id. at pp. 505-506.) In response to this, CALCRIM No. 2220 removes the mandatory presumption of knowledge contained in Vehicle Code section 14601.1, subdivision (a), and replaces it with a permissive inference, instructing the jury that they "may, but are not required to, conclude that [defendant] knew that his driving privilege was suspended" if the People proved that the DMV mailed a notice of suspension to his most recent address and the notice was not returned as undeliverable or unclaimed.

Defendant does not challenge the sufficiency of the evidence to support the jury's finding that he drove a vehicle while his driving privilege was suspended. Substantial direct evidence supports this finding. Instead, he asserts there was insufficient evidence to prove his knowledge of the suspension. We are not persuaded. While there was no direct evidence that defendant knew his license was suspended, "[k]nowledge, like intent, is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise." (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)

Here, the People established, through the testimony of DMV manager Kimberly Kemper, that the DMV mailed a letter to defendant notifying him of the license suspension. This letter was mailed to his most recent address and was not returned as undeliverable or unclaimed. While defendant correctly points out that a reasonable inference may not be based on suspicion alone, we disagree that the jury was required "to guess that the letter sent by DMV was properly mailed, surmise that it was properly delivered, speculate that [defendant] received it, imagine that he opened it, and suppose that he read it." The Legislature has concluded that the circumstantial evidence presented in this case supports a mandatory presumption of knowledge. (Veh. Code, §§ 14601.1, 13106.) And while this mandatory presumption may be unconstitutional (see Roder, supra, 33 Cal.3d at pp. 499-502), we conclude that such evidence reasonably supports an inference defendant knew of the suspension.

Nor are we persuaded that such an inference is defeated by the fact that Kemper did not state in her testimony that the notice of suspension was mailed "first-class." Defendant is correct that Vehicle Code section 13106 requires the notice of suspension to be sent by "first-class mail." However, in order for correspondence to be sent by first-class mail, all that is required is the placement of the letter, along with a stamp or metered postage, in the United States mail. (Mailing Standards of the United States Postal Service, 130, First-Class Mail http://pe.usps.com/framepdf.asp?Dest=dmmtoc.pdf [as of Aug. 8, 2011].) Here, a "Certificate of Mailing" was attached to the notice of suspension declaring under penalty of perjury that the notice was "deposited in the United States mail" and "addressed to [defendant]." This was enough to establish that the notice was sent by first-class mail.

Substantial evidence supports defendant's conviction for driving on a suspended license.

III

Instructional Error

As an alternative ground for reversing his conviction for driving on a suspended license, defendant contends the trial court violated his constitutional right to due process by instructing the jury with CALCRIM No. 2220. He did not object to this instruction at trial. "Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant's substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818. [Citation.]" (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We find no error.

As already mentioned, CALCRIM No. 2220 instructed the jury: "If the People prove that the [DMV] mailed a notice to the defendant telling him that his driving privilege has been suspended, and the notice was sent to the most recent address reported to the [DMV] or any more recent address reported by the person to a court or law enforcement agency, and the notice was not returned to the [DMV] as undeliverable or unclaimed, then you may, but are not required to, conclude that [defendant] knew that his driving privilege was suspended."

In Ulster County Court v. Allen (1979) 442 U.S. 140 [60 L.Ed.2d 777] (Ulster County), the United States Supreme Court drew a distinction between two types of evidentiary devices, permissive inferences and mandatory presumptions, and explained that the test of either device's constitutional validity is the same: "[T]he device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt." (Id. at pp. 156-157.)

With respect to the permissive inference, "which allows -- but does not require -- the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one, and which places no burden of any kind on the defendant," the court explained: "Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Ulster County, supra, 442 U.S. 140 at p. 157.)

With respect to the "far more troublesome" mandatory presumption, the court explained that such a device "may affect not only the strength of the 'no reasonable doubt' burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." (Ulster County, supra, 442 U.S. 140 at p. 157.) Because mandatory presumptions limit the factfinder's ability to independently assess all of the prosecution's evidence in order to determine whether the facts of a particular case establish guilt beyond a reasonable doubt, the court concluded that such a presumption must be judged "on its face" (id. at pp. 157-160), and that "since the prosecution bears the burden of establishing guilt, it may not rest its case [on such] a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt." (Id. at p. 167.)

"[A] determination of the nature of the presumption at issue in any case 'requires careful attention to the words actually spoken to the jury [citation], for whether a defendant has been accorded his constitutional rights depends upon the way a reasonable juror could have interpreted the instruction.'" (Roder, supra, 33 Cal.3d at p. 502, quoting Sandstrom v. Montana (1979) 442 U.S. 510, 514 [61 L.Ed.2d 39, 45]; Ulster County, supra, 442 U.S. at p. 158, fn. 16 [60 L.Ed.2d at pp. 792-793].)

A reasonable juror would understand CALCRIM No. 2220 to set forth a permissive inference. This instruction clearly stated that the jury was permitted, but not required, to infer the ultimate fact (defendant's knowledge of the license suspension) from proof by the People of certain evidentiary facts (DMV's mailing of a notice of suspension to defendant's most recent address without having the notice returned as undeliverable or unclaimed). The instruction placed no burden of any kind on the defendant. Based on the facts of this case, we cannot conclude that "there is no rational way the [jury] could make the connection permitted by the inference." (Ulster County, supra, 442 U.S. at p. 157 [60 L.Ed.2d at p. 792].) Accordingly, the instruction did not undermine the jury's responsibility to find the ultimate facts beyond a reasonable doubt. (Id. at p. 156 [60 L.Ed.2d at p. 791].)

Nevertheless, defendant relies on United States v. Rubio-Villareal (9th Cir. 1992) 967 F.2d 294 (Rubio-Villareal), a case in which the United States Court of Appeals for the Ninth Circuit used its supervisory power over the federal district courts to disapprove of a permissive inference instruction. (Id. at pp. 298-300.) That instruction informed the jury that they were permitted, but not required, to conclude the defendant knew cocaine was in his vehicle if the prosecution proved that (1) defendant was the driver of the vehicle, and (2) the cocaine was found concealed in the body of the vehicle. (Id. at p. 295.) Recognizing that the instruction merely described a permissive inference, the court stated: "[A] jury instruction need not be unconstitutional for us to find it defective." (Id. at pp. 296-297.) The court then found two faults with the instruction. First, the court explained that "[w]hen a judge tells the jury it may infer knowledge from two isolated facts, he risks conveying the message to the jury that he has weighed the evidence in his own mind and believes it is sufficient to convict." (Id. at p. 299.) "Second, by focusing the jury on two isolated facts, the instruction permitted the jury to convict without considering all the evidence presented at trial." (Id. at p. 300.)

Reliance on Rubio-Villareal is misplaced for several reasons. First, the Ninth Circuit relied on its supervisory power over the district courts in disapproving the instruction at issue in that case. Accordingly, by its own terms, the decision does not apply to California trial courts. Second, even if the court had declared such an instruction unconstitutional, we are not bound by the Ninth Circuit's interpretation of the federal Constitution. (People v. Bradley (1969) 1 Cal.3d 80, 86; People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) We are, however, bound by the decisions of the United States Supreme Court and the California Supreme Court, both of which have held that a "permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (Francis v. Franklin (1985) 471 U.S. 307, 314-315 [85 L.Ed.2d 344, 353-354]; People v. Yeoman (2003) 31 Cal.4th 93, 131.) As we have explained, CALCRIM No. 2220 satisfies that test.

Third, as the Ninth Circuit has subsequently noted, "[k]nowledge was the only disputed issue in Rubio-Villareal, and the permissive inference instruction explained, in effect, the one way that the jury could find that element of the crime." (United States v. Warren (9th Cir. 1994) 25 F.3d 890, 899.) In contrast, at trial in this case, defendant not only disputed his knowledge of the license suspension, but also disputed Officer Camacho's testimony that he drove the Dodge Ram at all. Accordingly, based on the facts of this case, CALCRIM No. 2220 cannot be viewed as "telling the jury that the judge thought there was sufficient evidence to convict." (Rubio-Villareal, supra, 967 F.2d at p. 300.)

Finally, the Ninth Circuit has also distinguished Rubio-Villareal where "other instructions condition and qualify the permissive inference instruction, so as to make clear that the judge is not implying the jury should return a guilty verdict." (United States v. Warren, supra, 25 F.3d at p. 899; United States v. Beltran-Garcia (1999) 179 F.3d 1200, 1205; United States v. Houser (1997) 130 F.3d 867, 870.) Here, the trial court clearly explained to the jury: "And don't take anything I say or do as an indication of what I think about the facts or the witnesses or what your verdict should be. Because I am not the judge of the evidence, you are the judges of the evidence." The trial court also instructed the jury on the People's burden of proof, and that the jury must consider all of the evidence in deciding whether the People have proven their case beyond a reasonable doubt.

Viewing all of the instructions together, we are confident that no reasonable juror would have understood CALCRIM No. 2220 to imply that the judge believed defendant was guilty of the crime of driving on a suspended license. There was no instructional error.

IV

Ineffective Assistance of Counsel

As another alternative ground for reversing his conviction for driving on a suspended license, defendant claims he received ineffective assistance of counsel because his trial counsel failed to adequately cross-examine DMV manager Kemper. We disagree.

A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.)

The burden of proving a claim of inadequate assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) "'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."'" (In re Harris (1993) 5 Cal.4th 813, 832-833; see also People v. Ledesma, supra,43 Cal.3d at pp. 216-217; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)

Defendant complains that his trial counsel failed to adequately cross-examine Kemper concerning her statement that defendant was notified by law enforcement that his license was suspended. During direct examination, after explaining that the DMV mailed the notice of suspension to defendant, Kemper stated that "he was also notified, a verbal notice, by law enforcement." The prosecutor did not inquire further into this verbal notice. However, the verbal notice document to which Kemper was referring reveals that law enforcement verbally notified defendant of his license suspension on the date of his arrest. Thus, this verbal notice cannot serve as prior notice of the suspension.

Defense counsel did not elicit testimony during cross-examination clarifying this point, instead focusing on the fact that the DMV did not verbally notify defendant of his license suspension. Then, during redirect examination, the prosecutor asked Kemper to explain what it meant that the DMV did not verbally notify defendant. As part of a longer explanation, she stated: "In his case, a law enforcement officer notified him that he was not valid." The prosecutor followed up with: "But a letter was sent in September of 2008 informing him that his license was suspended?" Kemper answered: "That is correct, just somebody physically at a local field office versus headquarters had not told him."

In apparent recognition that the verbal notice given by law enforcement could not serve as prior notice of the suspension, both the prosecutor and defense counsel attempted to focus Kemper on whether the DMV notified defendant of the suspension. However, as detailed above, Kemper also twice mentioned the verbal notice given by law enforcement, and defense counsel neither sought to have these non-responsive statements stricken nor sought clarification as to the date this verbal notice was provided.

We need not determine whether counsel's performance was deficient in this regard because we find no prejudice. Viewed as a whole, the examination of Kemper reasonably would have left the jury with the understanding that the prosecution was relying not on the verbal notice provided by law enforcement, but exclusively on the notice mailed by the DMV to defendant's most recent address. The prosecutor's closing argument confirmed this: "Did the defendant know his license was suspended? There's an instruction that allows you to assume that the defendant did know his license was suspended if it has been proved that the DMV mailed a notice to the defendant telling him his license was suspended[, the] notice went to the most recent address reported to the DMV, and the notice was not returned, then you may conclude that the defendant knew his license was suspended. . . . [¶] You heard the testimony from Kim Kemper who testified they mailed the notice saying your license is suspended to the defendant. They mailed it to the address that they had on record, and that that notice was not returned. It never came back to them. [¶] Now, it is true that he was never verbally told his license was suspended, but the fact that the DMV mailed a notice to him allows you to conclude that he did in fact know he had a suspended license on that day."

We do not find a reasonable probability that, but for counsel's failure to cross-examine Kemper concerning the timing of the verbal notice provided by law enforcement, the result of the proceeding would have been different. (In re Harris, supra, 5 Cal.4th at pp. 832-833) Thus, defendant's claim of ineffective assistance of counsel fails.

V

Request for Proposition 36 Probation

We also reject defendant's claim that the trial court abused its discretion at sentencing by failing to consider his request to dismiss or reduce his conviction for driving on a suspended license to an infraction in order to sentence him in accordance with Proposition 36.

Sentencing Hearings

Prior to sentencing, defendant filed a statement in mitigation requesting the trial court to dismiss his conviction for driving on a suspended license "in the furtherance of justice" pursuant to section 1385 so that he would be eligible for Proposition 36 probation. Defendant then filed an additional statement in mitigation requesting the trial court to reduce this conviction from a misdemeanor to an infraction pursuant to section 17 for the same purpose.

In response, the People filed a sentencing statement urging the trial court not to dismiss defendant's conviction for driving on a suspended license: "First, at the time of the commission of this offense, Defendant was on [three] separate grants of misdemeanor probation. In two of those cases, Defendant was ordered to attend 12-step meetings [as] a term of probation. The Defendant did not comply with the terms of probation. [¶] Second, Defendant was released on bail AND failed to appear for two felony cases in Sacramento County at the time of this offense. [¶] Third, Defendant has a lengthy prior record as laid out in the probation report. It would not be in the furtherance of justice to dismiss the [driving on a suspended license conviction] to allow a person with Defendant's past to participate in Prop[osition] 36."

At the first sentencing hearing, the trial court stated that it had "read through the sentencing statements" as well as the probation report. At this point, defense counsel asked the court to refer the matter back to the probation department because the probation report concluded that defendant was statutorily ineligible for probation because he had four prior felony convictions (§ 1203, subd. (e)(4)), even though three of these convictions were dismissed pursuant to Welfare and Institutions Code section 3200. After entertaining argument on this issue, the trial court heard testimony from defendant and his family.

The trial court then decided to send the matter back to the probation department for the probation officer's "analysis of suitability for probation, for him to assume, for purposes of that evaluation, that [defendant] is not statutorily barred from probation," stating: "I am not making a finding one way or the other on that issue. I am just framing it that way for [the probation officer], then, to do the analysis. . . . But I do not want either the People or the defense to be under the impression that such a recommendation from probation is, therefore, then going to be followed by this court. [¶] I'll read the analysis, obviously. Probation analyses can sometimes be persuasive, . . . but I am considering this as a case where once I hear the final comments from both the attorneys and read the final analysis from Probation, I'll be making a determination. [¶] It can be anything from a straight probation grant to an upper term maximum state prison sentence. All options allowed by law are available to me."

The sentencing hearing resumed several days later. In response to the trial court's request, the probation officer submitted a letter concluding that defendant "is not suitable for probation for the previously stated reasons," i.e., "defendant was on several grants of probation at the time of the current offense and has a long history of criminal conduct. He has already completed four years and four months at the California Rehabilitation Center (CRC) and continues to possess and transport drugs. [Defendant] is no stranger to the criminal justice system and continues to demonstrate a blatant disregard for Court orders. Further, he has yet to resolve his Sacramento County issues for his arrest on March 2, 2009, for charges ranging from grand theft to possession of marijuana. [¶] [Defendant] simply does not possess the traits that would lead to success on probation and past behavior is the best predictor of future compliance."

The trial court agreed with this analysis, found defendant "not suitable for probation," and sentenced him to an aggregate term of six years in state prison (upper term of four years for transportation, plus a consecutive two-year term for the out-on-bail enhancement).*fn2 The trial court also found defendant to be addicted to narcotics within the meaning of Welfare and Institutions Code section 3051, suspended the execution of sentence, and ordered defendant to be committed to the Department of Corrections for confinement in the narcotics detention, treatment, and rehabilitation facility.

About five months later, CRC Warden Gary Sandor filed a letter informing the trial court that defendant had been found to be unsuitable for the Civil Addict Program pursuant to Welfare and Institutions Code section 3053. Thereafter, the trial court terminated the commitment and confirmed and executed defendant's six-year prison term.

Analysis

Defendant asserts the trial court erroneously believed it lacked the ability to dismiss his conviction for driving on a suspended license under section 1385, or reduce this conviction to an infraction under section 17, in order to sentence him in accordance with Proposition 36. This assertion is belied by the record.

The trial court read and considered defendant's sentencing statements requesting dismissal or reduction of his conviction for driving on a suspended license. While the trial court did not explicitly state on the record that these motions were denied, it implicitly denied both motions when it imposed a state prison term and stated: "[T]he only disqualifying event is the suspended license charge, but still that makes him a person who is not eligible for Prop[osition] 36. There doesn't seem to be a reason under the law." Defendant misquotes the trial court, asserting the trial court stated that "there 'did not appear to be a way' for [him] to be eligible for Proposition 36," and makes much of the misquoted statement. But this is not what the trial court said. Because defendant laid out both ways to render himself eligible for Proposition 36 in his sentencing statements, we conclude the trial court meant precisely what it said, that there was no "reason" to dismiss or reduce the driving on a suspended license conviction to an infraction.

Nor was such a ruling an abuse of discretion. The trial court's power to dismiss an action under section 1385 "is limited by the 'amorphous concept' that the dismissal be '"in furtherance of justice."' [Citation.]" (Orabuena, supra, 116 Cal.App.4th at p. 98.) "In exercising its discretion under section 1385, the court should consider the nature and circumstances of the defendant's current crimes, the defendant's prior convictions, and the particulars of his or her background, character, and prospects." (Id. at p. 99, citing People v. Williams (1998) 17 Cal.4th 148, 162-163.) While the trial court is required to state its reasons for dismissing an action under section 1385, a statement of reasons is not required where the trial court denies the request to dismiss. (People v. McCowan (1986) 182 Cal.App.3d 1, 17.)

Here, the record fully supports the trial court's decision not to dismiss defendant's conviction for driving on a suspended license. At the time of the commission of the current offenses, defendant was on three grants of misdemeanor probation and was out on bail for another felony offense. He has a long history of criminal conduct, including non-drug-related offenses, and has already completed one commitment to the CRC. Yet defendant continues to violate the law and disregard court orders. We cannot conclude that the trial court abused its discretion by declining to dismiss defendant's driving on a suspended license conviction.

The trial court also possesses broad discretion to determine that "[a] violation of any code section listed in section 19.8 [including driving on a suspended license (Vehicle Code section 14601.1)] is an infraction . . . ." (§ 17, subd. (d)(2).) "The governing canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [describing the trial court's discretion to reduce a "wobbler" from a felony to a misdemeanor under section 17, subdivision (b)].) However, on appeal, "'[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (Id. at p. 977-978.)

For the same reasons the trial court did not abuse its discretion under section 1385, we also conclude that the trial court did not abuse its discretion by declining to reduce defendant's conviction for driving on a suspended license to an infraction under section 17.

VI

Section 1118.1 Motion

Defendant further contends the trial court violated his constitutional rights by denying his section 1118.1 motion to dismiss the transportation charge at the close of the People's case. We disagree.

Section 1118.1 provides in relevant part that the trial court, "at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."

On a motion for judgment of acquittal under this provision, "the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. [Citation.] We independently review the trial court's ruling." (People v. Harris (2008) 43 Cal.4th 1269, 1286, citing People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) Where, as here, the motion was brought at the close of the People's case, we review the trial court's denial of the motion based on the evidence as it stood at that time. (People v. Ringo (2005) 134 Cal.App.4th 870, 880; People v. Valerio (1970) 13 Cal.App.3d 912, 920.)

"Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) "The crux of the crime of transporting is movement of the contraband from one place to another." (People v. Kilborn (1970) 7 Cal.App.3d 998, 1003 (Kilborn); People v. LaCross (2001) 91 Cal.App.4th 182, 185.)

Here, defendant's cousin Vlasenko testified during the defense case. Thus, her testimony that she discovered the methamphetamine and pipe in a stereo face plate case when it fell out of defendant's pocket, argued with him over his drug use, and then placed the case in the Dodge Ram shortly before defendant was seen driving the vehicle cannot be considered for purposes of the acquittal motion. However, even without this evidence, we conclude there was substantial direct and circumstantial evidence of the existence of each element of transportation, sufficient for a reasonable jury to find defendant guilty beyond a reasonable doubt. The People offered direct evidence that a usable quantity of methamphetamine was found in the Dodge Ram roughly 40 minutes after defendant drove that vehicle. The People also offered circumstantial evidence supporting a reasonable inference that this methamphetamine was in the truck when defendant drove, and that he knew of its presence and illegal character.

Defendant's argument on appeal is limited to challenging the sufficiency of the evidence to support a finding that the methamphetamine was in the truck at the time he drove. Specifically, he asserts that "the contraband could have been placed inside the truck after the observed driving." However, viewing the evidence in a light most favorable to the People, as we must, Officer Camacho witnessed defendant driving at 5:35 p.m., went out to talk to him at 5:40 p.m., and returned to his house to call Officer Stallions just before 6:10 p.m. Police arrived at 6:15 p.m., arrested defendant, and found the methamphetamine in the truck. Thus, between the driving and the discovery of the methamphetamine, there are only two five-minute intervals (5:35-5:40 p.m. and 6:10-6:15 p.m.) in which the methamphetamine could have been delivered to the truck without being seen by either Officer Camacho or the responding officers. These facts, coupled with the fact that defendant was the only person in the neighborhood at 5:35 p.m. and 6:15 p.m., reasonably support an inference that the methamphetamine was inside the truck when defendant drove.

Defendant's reliance on Kilborn, supra, 7 Cal.App.3d 998 is misplaced. There, the defendant was convicted of transporting a controlled substance based solely on evidence that LSD was discovered in his suitcase in an unlocked motel room. (Id. at p. 1001.) Reversing this conviction, the Court of Appeal rejected the People's argument that "the pills found in [defendant's] possession must have been transported there in some manner, ergo, [defendant] transported them." (Id. at pp. 1002-1003.) The court explained: "While the evidence showed the LSD tablets were found in [his] suitcase in his room, the prosecution presented no evidence he carried or conveyed them from any place, to any place at any time. Evidence of unlawful possession is not evidence of transportation." (Ibid.) Unlike Kilborn, where there was no evidence the defendant transported the LSD anywhere because it could easily have been delivered to the motel room by someone else, here, the methamphetamine was discovered in a vehicle that was driven by defendant shortly before it was discovered. While it is theoretically possible that someone other than defendant delivered the methamphetamine to the vehicle between the driving and the discovery, the more reasonable inference is that the methamphetamine was in the vehicle at the time it was driven.

Defendant also relies on several out-of-state cases involving the transportation of prohibited liquor. In two of these cases, the vehicle containing the moonshine was seized while parked next to the house of a known bootlegger. The court held that it was "just as reasonable to assume that the whiskey had been placed in the [vehicle] at the home of the bootlegger" as it was "to assume that the whiskey was placed in the [vehicle] at some other point and then driven there." (One 1948 Blue Two-Ton Chevrolet Truck v. State (1952) 205 Okla. 601, 603; Kirk v. State (1951) 205 Okla. 219, 220.) Reliance on these cases would make sense if the Dodge Ram was parked next to the house of a known drug dealer at the time it was searched. But instead, the truck was parked next to the house of an undisclosed individual while defendant trimmed the homeowner's hedges. Accordingly, it is not just as reasonable to assume that the methamphetamine was placed in the truck while parked rather than driven to the location. And unlike the remaining cases relied upon by defendant, where the prohibited liquor was found in parked vehicles and the evidence did not reveal how long these vehicles had been parked (Patterson v. Commonwealth of Virginia (1948) 187 Va. 913, 916; State v. Wilson (1927) 256 P. 107, 108), here, there was direct evidence that defendant drove the Dodge Ram shortly before it was searched.

The trial court did not violate defendant's constitutional rights by denying his motion to dismiss the transportation charge.

VII

Unanimity Instruction

We also disagree with defendant's assertion that the trial court violated his constitutional right to a unanimous verdict by failing to give the jury a unanimity instruction.

"Generally, where evidence shows more than one act which could constitute the charged offense and the prosecutor does not elect to rely on any one such act, a unanimity instruction may be required." (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294 (Haynes); People v. Diedrich (1982) 31 Cal.3d 263, 281.) The purpose of the unanimity instruction is to protect the defendant's constitutional right to have the jury unanimously agree on the criminal conduct that supports his conviction. (People v. Sutherland (1993) 17 Cal.App.4th 602, 611.) However, "[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction." (People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).)

Defendant argues that a unanimity instruction was required with respect to the possession and transportation of methamphetamine counts because Vlasenko testified that the stereo face plate case containing the methamphetamine fell out of defendant's pocket while he trimmed the hedges. Accordingly, argues defendant, "[t]here was evidence that [he] possessed and transported when he was moving about doing yard work and climbing on a ladder from [Vlasenko's] testimony and while driving the truck later found to contain contraband, from Officer Camacho's testimony." Defendant also argues that a unanimity instruction was required with respect to the possession of narcotics paraphernalia count because "some jurors could have believed he possessed the glass pipe in the case and some jurors could have believed he possessed the brass pipes in the bag." We are not persuaded.

First, in closing argument, the prosecutor clearly elected to rely on the fact that defendant possessed and transported methamphetamine while he drove the Dodge Ram, not when he moved around the yard trimming the hedges.*fn3 The prosecutor also clearly elected to rely on the glass pipe found with the methamphetamine to support the possession of narcotics paraphernalia count, and not the two brass pipes found in the leather bag in the Dodge Ram.*fn4 Because the prosecutor's closing argument clearly and directly informed the jury of the facts relied upon to support these charged offenses, a unanimity instruction was not required. (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.)

Second, even had the prosecution not elected to rely on the possession and transportation that occurred while defendant drove the Dodge Ram, the fact that defendant possessed and transported methamphetamine while he trimmed hedges immediately prior to getting into the truck and driving away is "so closely connected as to form part of one transaction." (Stankewitz, supra, 51 Cal.3d at p. 100.)

In Haynes, supra, 61 Cal.App.4th 1282, the defendant assisted a robber who struggled with the victim in a parking lot through the victim's open car window. The robber took a portion of the victim's money before the victim was able to drive away. (Id. at p. 1286.) Defendant and the robber then followed the victim until he stopped a couple blocks away, where the robber struggled with the victim a second time, ultimately securing the remainder of the cash. (Ibid.) Convicted of one count of robbery on a theory of aiding and abetting, defendant argued that there were two separate acts which could constitute the robbery offense, giving rise to a sua sponte duty to provide the jury with a unanimity instruction. (Id. at p. 1291.)

The Court of Appeal disagreed, holding that no unanimity instruction was required because the two encounters with the victim "were 'so closely connected in time'" that the continuous course of conduct exception applied. (Haynes, supra, 61 Cal.App.4th at p. 1295.) As the court explained: "The two encounters were just minutes and blocks apart and involved the same property. The acts were successive, compounding, part of a single objective of getting all the victim's cash, charged as a single robbery, and arguably barred from multiple punishment by [] section 654." (Id. at p. 1296; see also People v. Harris (1994) 9 Cal.4th 407, 432, fn. 14 [counseling trial court for purposes of remand that continuous course of conduct exception would likely apply were the victim was held captive over the span of two days and the robbers transported him to two separate locations, his home and office, in order to take all of his property].)

Similarly, here, defendant possessed and transported methamphetamine while he worked and continued to do so while he drove away from the work site and returned a short time later. Instead of two discrete incidents of possession and transportation that are "fragmented as to time or space," there was a single continuing course of conduct that extended throughout defendant's assertion of control over the methamphetamine. (People v. Wright (1968) 268 Cal.App.2d 196, 198.) Thus, unlike the cases relied upon by defendant, this case does not involve a situation in which possession was "based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and [where] there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant." (People v. King (1991) 231 Cal.App.3d 493, 501-502; see also People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071; People v. Crawford (1982) 131 Cal.App.3d 591, 599.)

The trial court possessed no sua sponte duty to provide the jury with a unanimity instruction.

VIII

Out-On-Bail Enhancement

Nor was the evidence insufficient to support the out-on-bail enhancement. However, because the trial court should not have imposed and executed the enhancement without proof that defendant had been convicted of the primary offense, we will modify the judgment to stay execution of the enhancement.

Section 12022.1, subdivision (b), provides: "Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court."

Section 12022.1, subdivision (a)(1), defines "primary offense" to mean "a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her recognizance has been revoked. In cases where the court has granted a stay of execution of a county jail commitment or state prison commitment, 'primary offense' also means a felony offense for which a person is out of custody during the period of time between the pronouncement of judgment and the time the person actually surrenders into custody or is otherwise returned to custody." Subdivision (a)(2) of this provision defines "secondary offense" to mean "a felony offense alleged to have been committed while the person is released from custody for a primary offense."

Section 12022.1, subdivision (d), provides: "Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent."

Thus, section 12022.1 "does not make the defendant's conviction of the primary offense an element of the enhancement for the purpose of proving the enhancement. Instead, the statute only requires proof of conviction of the primary offense before the enhancement can be imposed." (People v. Smith (2006) 142 Cal.App.4th 923, 935, citing People v. Walker (2002) 29 Cal.4th 577, 586.)

In People v. Meloney (2003) 30 Cal.4th 1145 (Meloney), our Supreme Court explained that when "the secondary felony offense is adjudicated first and an out-on-bail enhancement is proved, the secondary-offense court may proceed in one of two ways: (1) The secondary-offense court may -- following the express terms of section 12022.1, subdivision (d) -- stay 'imposition of the enhancement.' If the court follows that course, the enhancement is not imposed as a part of the defendant's sentence but is preserved until after the primary-offense court has rendered judgment on a felony conviction in that court, at which time the secondary-offense court, exercising its discretion, may either impose the enhancement or strike it pursuant to section 1385. (2) Alternatively, the secondary-offense court may immediately consider whether to strike the enhancement under section 1385, or to impose the enhancement as part of the defendant's sentence. If the court concludes it is appropriate to strike the enhancement, it may do so. If the court determines to impose the enhancement, it may do so, but it also must stay execution of that aspect of the sentence, pending resolution of the prosecution of the primary offense. If the court imposes the enhancement and stays its execution, that aspect of the imposed sentence becomes effective immediately upon the primary-offense court's order lifting the stay after the defendant has been convicted of the primary felony offense." (Id. at p. 1149.)

In this case, on March 4, 2009, defendant was arraigned on various charges in Sacramento County, including felony grand theft. He posted bail, was released from custody, and then failed to appear. This is the primary offense. On May 28, 2009, while still released from custody on the primary offense, defendant committed the secondary offenses charged in this Yolo County case. These secondary offenses were tried before the primary offense.

On August 27, 2009, following a bifurcated hearing on the enhancement allegation, the trial court found the allegation to be true. Substantial evidence supports this determination. On October 27, 2009, prior to an adjudication of the primary offense, the trial court imposed the enhancement without staying its execution, and then suspended the execution of defendant's entire sentence pursuant to Welfare and Institutions Code section 3051. While this had the practical effect of staying the execution of the enhancement, the trial court should have either stayed imposition of the enhancement or imposed the enhancement and stayed its execution. (Meloney, supra, 30 Cal.4th at p. 1149.)

On May 3, 2010, the Sacramento County case alleging the primary offense was dismissed "as superseded" by charges filed in another case. This new case apparently included the same primary offense charge that was contained in the original case, and defendant apparently entered a plea of no contest to this charge. However, as defendant points out, the record contains no evidence of this. Then, on July 13, 2010, when defendant was resentenced following termination of his commitment to the Civil Addict Program, the trial court re-imposed and executed the enhancement, explaining: "The Sacramento proceedings resulted in a conviction apparently for the offense, just under a different case number, and pleading. [¶] . . . [¶] If they had dropped it entirely, it wouldn't have been a conviction, but apparently he was convicted on the offense, so the [section] 12022.1 enhancement still applies."

The Attorney General claims that this was appropriate because the original Sacramento County case was "superseded" and "all parties agreed during their discussions with the trial court, [that] the case numbers changed, but the offenses charged remained the same." We disagree. First, it is possible that the original case was dismissed "as superseded" by the subsequent filing without the superseding filing containing each and every charge originally filed. Second, while defendant's trial counsel stated on the record that defendant's plea in the new case, along with dismissal of the original case, was designed to "avoid the out-on-bail enhancement," this is not the same as agreeing that the new case contained the same primary offense that was contained in the original case. The People should have presented evidence that defendant was actually, not apparently, convicted of the primary offense.

Moreover, the Attorney General concedes that defendant was allowed to withdraw his plea in the Sacramento County case. Accordingly, even if the new case contained the same primary offense, defendant has not been convicted of this offense.

We hereby modify the judgment to stay execution of the out-on-bail enhancement. If it is determined by either the primary-offense court (Sacramento County) or the secondary-offense court (Yolo County) that defendant has been convicted of the primary offense that served as the basis of the enhancement allegation, the stay shall be lifted, and the two-year term will become effective immediately. Otherwise, the stay shall be permanent. (§ 12022.1, subd. (d); Meloney, supra, 30 Cal.4th at p. 1150.) We also note a clerical error in the abstract of judgment. The abstract incorrectly specifies section 12022, subdivision (b), as the statutory basis for the out-on-bail enhancement. The appropriate statute is section 12022.1, subdivision (b). We order this to be corrected at the time the trial court prepares an amended abstract of judgment to be forwarded to the Department of Corrections and Rehabilitation.

IX

Probation Report

We also reject defendant's assertion that the trial court prejudicially erred by failing to order an updated probation report after he was deemed unsuitable for the Civil Addict Program.

Rule 4.411(c) of the California Rules of Court provides: "The court must order a supplemental probation officer's report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared." (Undesignated rule references are to the California Rules of Court.)

The Advisory Committee Comment explains: "Subdivision (c) is based on case law that generally requires a supplemental report if the defendant is to be resentenced a significant time after the original sentencing, as, for example, after a remand by an appellate court, or after the apprehension of a defendant who failed to appear at sentencing. The rule is not intended to expand on the requirements of those cases. [¶] The rule does not require a new investigation and report if a recent report is available and can be incorporated by reference and there is no indication of changed circumstances. This is particularly true if a report is needed only for the Department of Corrections and Rehabilitation because the defendant has waived a report and agreed to a prison sentence. If a full report was prepared in another case in the same or another jurisdiction within the preceeding [sic] six months, during which time the defendant was in custody, and that report is available to the Department of Corrections and Rehabilitation, it is unlikely that a new investigation is needed." (Advisory Com. com., foll. rule 4.411.)

In People v. Dobbins (2005) 127 Cal.App.4th 176 (Dobbins), we held that the trial court erred by proceeding without an updated probation report where "the original probation report was prepared approximately eight months before the sentencing hearing," explaining: "This period was well in excess of the six months referred to by the Advisory Committee, and it included approximately two months when defendant was not under the watchful eyes of custodial authorities but was rather released on probation, when he committed the conduct for which his probation was revoked." (Id. at p. 181.) However, we were also careful to point out: "Our decision is necessarily predicated on the facts of this case, and we have no occasion to decide whether a supplemental or updated probation report might be warranted if less time had passed and/or defendant had not been released on probation." (Id. at p. 181, fn. 3.)

We then found the error to have been harmless under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, i.e., there was no reasonable probability of a result more favorable to defendant if not for the error. (Dobbins, supra, 127 Cal.App.4th at pp. 182-183.) As we explained: "The original probation report apprised the trial court of defendant's background and other relevant information. And his record was such (including as it did numerous violations and periods of incarceration) that there was little justification for a further grant of probation. Moreover, the trial court was aware from the Proposition 36 status report and from the trial that defendant's conduct while on probation had been poor. The judge who sentenced defendant was the same judge who presided over the trial and was thus intimately acquainted with the facts underlying his violation of probation, which involved use of a weapon. Considering these circumstances, there is no reason to believe that additional information would have led to reinstatement of probation." (Id. at p. 183.)

Here, the original probation report was prepared about 10 months before defendant was resentenced after being deemed unsuitable for the Civil Addict Program. This exceeds the six months referred to by the advisory committee and the eight months we found to be a significant period of time in Dobbins. However, unlike Dobbins, defendant was not released on probation, but was instead under the supervision of custodial authorities at the CRC.

We need not decide whether the 10-month period of time in this case amounted to a "significant period of time" within the meaning of rule 4.411(c) because we find any error to have been harmless.*fn5 Like Dobbins, the original probation report apprised the trial court of defendant's background and other relevant information, including his extensive criminal record. As the trial court pointed out during the original sentencing hearing: "It took a CRC commitment to get him out of his drug use. Putting him on probation, a much lower standard of supervision . . . does not seem to be appropriate . . . . He couldn't even make it through misdemeanor probation." Thus, the trial court focused on defendant's criminal record, his prior CRC commitment, and lack of success on probation in denying defendant a further grant of probation. Nothing defendant did while at CRC the second time around would have changed these facts. Moreover, the judge who sentenced defendant following the determination that he was unsuitable for the Civil Addict Program (due to two felony cases in Sacramento County and an active immigration hold), was the same judge who presided over the trial and sentenced defendant the first time. He was intimately acquainted with the facts underlying defendant's crimes and probation violations.

There is no reason to believe that additional information would have convinced the trial court to place defendant on probation.

X

Custody Credits

We conclude that the recent amendments to the statutes involving custody credits apply to defendant's appeal. (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 of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits].) The record on appeal does not reflect that defendant is among the prisoners excepted from the additional accrual of credit. (§ 4019, subds. (b)(2), (c)(2), as amended by Stats. 2009, 3d Ex. Sess. 2009-10, ch. 28, § 50;, § 2933, as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) Thus, defendant, having served a total of 412 actual days, is entitled to 412 conduct days, for a total of 824 days of presentence custody credit. We shall modify the judgment accordingly.

DISPOSITION

The judgment is modified to stay execution of the out-on-bail enhancement. If it is determined by either the primary-offense court (Sacramento County) or the secondary-offense court (Yolo County) that defendant has been convicted of the primary offense that served as the basis of the enhancement allegation, the stay shall be lifted, and the two-year term will become effective immediately. Otherwise, the stay shall be permanent. The judgment is further modified to provide defendant with a total of 824 days of presentence custody credit (412 days of actual custody plus 412 days of conduct credit). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and correcting the clerical error with respect to the appropriate statutory basis for the out-on-bail enhancement (§ 12022.1, subd. (b)). A certified copy shall be forwarded to to the Department of Corrections and Rehabilitation.

We concur: RAYE , P. J. HULL , J.


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