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The People v. Antonio Sizer

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


August 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANTONIO SIZER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F01231)

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

P. v. Sizer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Antonio Sizer pleaded no contest to possession of a firearm by a convicted felon and carrying a weapon concealed within a vehicle. The trial court sentenced him to 16 months in state prison.

Defendant contends on appeal that the trial court erred in denying his motion to suppress evidence. He argues that the initial stop of the car he was driving was without reasonable suspicion of criminal activity, that his detention was unlawful, that his arrest was without probable cause to believe that he unlawfully possessed a prohibited weapon, and that the inventory search of the car was unauthorized.

Viewing the record in the light most favorable to the trial court's ruling, we conclude that Officer Kossow had reasonable suspicion to make the initial vehicle stop, that the duration of defendant's detention was reasonable based on the totality of the circumstances, that his arrest was based on probable cause to believe defendant possessed a prohibited weapon, and that the inventory search was lawful.

We will modify the judgment to award defendant one additional day of presentence conduct credit and affirm the judgment as modified.

BACKGROUND

On February 19, 2010, at about 10:40 a.m., Sacramento County Deputy Sheriff Kimberly Kossow, a 21-year police veteran, was on patrol near the intersection of Madison Avenue and Primrose Drive when she observed a red Pontiac G6 with a rear window broken out or missing. Officer Kossow noticed that the Pontiac's male driver, defendant, was wearing latex gloves. Officer Kossow had not often seen a driver wearing latex gloves. Officer Kossow ran the Pontiac's license plate through her computer Department of Motor Vehicles (DMV) system, which indicated that the Pontiac was registered to a female. The Pontiac was not reported as stolen.

As Officer Kossow ran the Pontiac's license plate, defendant made a sudden right-hand turn onto a small residential street in what appeared to be an evasive maneuver. Officer Kossow made the next right-hand turn and began searching for the Pontiac. Officer Kossow requested a backup unit to help her locate the vehicle. Based on her experience and the circumstances she observed, including the missing rear window, the latex gloves, and the sudden right-hand turn, Officer Kossow suspected that the Pontiac was stolen.

Upon finding the Pontiac, Officer Kossow pulled behind it and effectuated a stop. Officer Kossow conducted a "felony vehicle stop" and had defendant exit the Pontiac at gunpoint. Defendant verbally identified himself as "Antonio Sizer." According to Officer Kossow, defendant was acting very "paranoid" and said that people were following him and were after him. Officer Kossow patsearched defendant for weapons.

Defendant provided Officer Kossow with his California driver's license. Defendant indicated that the Pontiac belonged to him or his mother whom he verbally identified as "Elizabeth Sizer." Officer Kossow's license plate check had revealed that the Pontiac's registered owner was, in fact, Elizabeth Sizer.

A backup unit had not arrived and Officer Kossow decided to place defendant in the back of her patrol car without handcuffs. Officer Kossow closed the door on her patrol car with defendant inside and continued her investigation. Officer Kossow still believed the Pontiac could be stolen. According to Officer Kossow, vehicles can be stolen by individuals who share the same name as the registered owner. Furthermore, even though the Pontiac was not reported as stolen, Officer Kossow understood that a vehicle could be stolen without the owner's knowledge, such as during the day when the owner is at work. In addition to possible vehicle theft, Officer Kossow wanted to further investigate defendant's statements that people were following him and were after him.

As defendant was sitting in Officer Kossow's patrol car, a backup officer, Deputy Carl Griffiths, arrived on the scene. Officer Kossow relayed to Officer Griffiths that defendant was acting paranoid. Officer Kossow asked Officer Griffiths to check the vehicle identification number (VIN) on the Pontiac while Officer Kossow ran a records check on defendant.

Officer Kossow had Officer Griffiths obtain the VIN on the Pontiac to rule out a tactic known as "cold plating." In cold plating, an individual takes a license plate from a vehicle that is not reported as stolen and places it on a similar vehicle that he/she steals. To determine if this has occurred, officers will compare the VIN on the vehicle to see if it matches the VIN associated with the license plate.

While Officer Griffiths was looking through the Pontiac's window to obtain the VIN, he noticed a black nylon bag in the front passenger seat with the handle of an aluminum youth T-ball bat sticking out. Officer Griffiths noted that the bat had masking tape on the handle, was in close proximity to the driver, and there were no other sports-related items in the vehicle. Officer Griffiths thought it was a "deadly weapon."

Meanwhile, Officer Kossow ran a records check on defendant. The records check revealed that defendant was not on probation or parole and had no warrants out for his arrest. He did, however, have a previous conviction related to the possession of a dangerous weapon. Officer Kossow asked defendant if she could search the Pontiac. Defendant declined. Defendant stated something like "for most of his life he really didn't have any rights, but now that he was off of probation and parole, he wanted to exercise them."

Officer Kossow telephoned Elizabeth Sizer to determine whether defendant had permission to use the Pontiac. Elizabeth Sizer confirmed that the Pontiac was registered in her name and that defendant was using it. Officer Kossow asked Elizabeth Sizer if they could search the Pontiac, and she responded, "I don't see why not."

During Officer Kossow's conversation with Elizabeth Sizer, Officer Griffiths was still obtaining the Pontiac's VIN. After getting off the phone with Elizabeth Sizer, Officer Kossow met back with Officer Griffiths. At some point, Officer Griffiths informed Officer Kossow of the baseball bat.

Standing at the passenger side of the Pontiac, Officer Kossow observed the youth baseball bat on the front passenger seat within reach of the driver. The bat was sticking out of the open gym bag with its handle facing up. From her vantage point, Officer Kossow could not see whether the bat had been modified. She also observed other items on the front passenger seat that looked suspicious including a box of latex gloves, a roll of duct tape, and a pair of binoculars. Officer Kossow further observed some tools in the passenger compartment, including a drill. She did not see any other sports-related equipment in the vehicle.

After speaking with Officer Griffiths, Officer Kossow learned that the VIN on the Pontiac matched the VIN associated with the license plate. Nevertheless, based upon Officer Kossow's observations and defendant's prior criminal history related to possession of a dangerous weapon, Officer Kossow decided to place defendant under arrest "for possession of a dangerous weapon" -- the bat. According to Officer Kossow, based on her experience, she believed the duct tape and latex gloves might have been some type of kit for planned assault.

Officer Kossow walked back to her patrol car and informed defendant that he was under arrest. Defendant spontaneously stated "the binoculars were for watching a house his ex-wife was staying at, and the baseball bat was for his personal protection." Officer Kossow and Officer Griffiths then searched the vehicle incident to defendant's arrest. A decision was made to tow the Pontiac, and so the officers also searched the Pontiac to take an inventory of its contents. Officer Kossow explained that if they had left the vehicle behind on the street, the lack of a rear window would have rendered the vehicle unsecured. Officer Kossow also indicated that an inventory was taken because "we get complaints after [a vehicle] goes to a tow yard" if items are missing.

The vehicle search uncovered a .44 caliber handgun wrapped in plastic under the driver's seat. The officers also found a monocular night vision scope, five rounds of ammunition, and two hypodermic needles.

On March 11, 2010, an information was filed against defendant in Sacramento County Superior Court charging defendant in count one with possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)); in count two with carrying a weapon concealed within a vehicle (Pen. Code, § 12025, subd. (a)(1)); and in count three with unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). On March 29, 2010, defendant filed a motion to suppress evidence (Pen. Code, § 1538.5), and the motion was heard on May 20, 2010. After hearing testimony from Officers Kossow and Griffiths, the trial court denied the motion.

On May 24, 2010, defendant pleaded no contest to count one, possession of a firearm by a convicted felon, and count two, carrying a weapon concealed within a vehicle. Count three was dismissed. Defendant waived preparation of a probation report and proceeded immediately to sentencing. The trial court sentenced defendant to 16 months in state prison.

DISCUSSION

In reviewing a ruling on a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) We defer to the trial court's factual findings, whether express or implied, when supported by substantial evidence and we independently determine whether the facts of the challenged search and/or seizure violated defendant's Fourth Amendment rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Ferguson (2003) 109 Cal.App.4th 367, 371.)

I

Defendant first contends that the initial stop of the Pontiac was unlawful because Officer Kossow lacked a reasonable suspicion of criminal activity.

An investigative stop or detention of an individual is permissible under the Fourth Amendment when the officer has a reasonable suspicion that criminal activity may be afoot. (Terry v. Ohio (1968) 392 U.S. 1, 30 [20 L.Ed.2d 889, 911]; People v. Conway (1994) 25 Cal.App.4th 385, 388.) Reasonable suspicion is an objective standard, not one based on the "particular officer's subjective state of mind at the time of the stop or detention." (Conway, supra, 25 Cal.App.4th at p. 388; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 147 (Letner) ["setting aside" as "irrelevant" the officer's "subjective beliefs concerning the justification for the stop"].) Reasonable suspicion requires only that "the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) Informed by commonsense judgments and inferences about human behavior, reasonable suspicion is not a particularly demanding standard. (Letner, supra, 50 Cal.4th at p. 146.) Among others, evasive behavior is one pertinent factor in determining reasonable suspicion. (Illinois v. Wardlow (2000) 528 U.S. 119, 125 [145 L.Ed.2d 570, 577] (Wardlow).)

Here, Officer Kossow had a reasonable suspicion that defendant may be involved in criminal activity. The Pontiac had a broken out or missing rear window, defendant was wearing latex gloves while driving, he made a sudden right-hand turn in an apparent attempt to avoid Officer Kossow, and, according to its license plate, the vehicle was registered to a female. Taken together, these specific, articulable facts provided some objective manifestation that defendant may be involved in criminal activity, such as vehicle theft or some other crime. Accordingly, the initial stop was legitimate under the Fourth Amendment.

Arguing to the contrary, defendant points to evidence which he believes diminishes a reasonable suspicion of criminal activity. For example, the Pontiac was not reported as stolen when Officer Kossow ran the license plate through her computer DMV system. Moreover, defendant suggests that the facts which Officer Kossow viewed with suspicion -- such as the missing rear window, the latex gloves, and the sudden right-hand turn -- are not necessarily indicative of criminal activity, as these facts could be present in situations where no vehicle theft had occurred. Defendant's arguments are unpersuasive.

The fact that the Pontiac was not reported as stolen does not eliminate the possibility of vehicle theft (or other criminal activity). As Officer Kossow acknowledged, a vehicle may not be reported as stolen because the owner may not yet realize that any theft had occurred. (See also Letner, supra, 50 Cal.4th at p. 148 [rejecting the argument that a reasonable suspicion of vehicle theft was negated by the fact that the vehicle had not been reported as stolen, as the owner might not have "discovered the theft, let alone reported it to the police"].) Moreover, as Officer Kossow explained, a cold-plated vehicle will not show up as reported stolen.

Furthermore, that some innocent explanation could conceivably account for the missing rear window, the latex gloves, and the sudden right-hand turn, does not vitiate the reasonable suspicion arising from these facts. (Letner, supra, 50 Cal.4th at p. 148 ["possible innocent explanations for an officer's observations do not preclude the conclusion that it was reasonable for the officer to suspect that criminal activity was afoot. '"Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . ." [Citation.]'"].) Reasonable suspicion can arise from facts that are "suggestive" of, but "not necessarily indicative of," wrongdoing. (Wardlow, supra, 528 U.S. at p. 124 [145 L.Ed.2d at p. 576].)

Despite defendant's arguments to the contrary, the facts presented to Officer Kossow supported a reasonable suspicion of criminal activity.

II

Defendant also argues that the duration of his detention was unlawful.

"An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.] Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly." (People v. Russell (2000) 81 Cal.App.4th 96, 101-102.) During a detention, an officer may take such steps as are reasonably necessary to protect his/her safety and to maintain the status quo during the course of the stop. (People v. Torres (2010) 188 Cal.App.4th 775, 785-786.) Reasonable steps may include temporary handcuffing and transporting or confinement in a police car. (Ibid; see also People v. Celis (2004) 33 Cal.4th 667, 675 [collecting cases on the permissible scope of police detention].)

Defendant argues that even if his initial detention was lawful, "the detention nonetheless was unlawful in its duration." Defendant focuses on two points during his detention when he contends he should have been released.

Defendant asserts that after he verbally identified himself as "Antonio Sizer," presented his California driver's license bearing the same name, and explained that the Pontiac belonged to him or his mother whom he identified as "Elizabeth Sizer," he "should have been released immediately." That might be true in the absence of all the other circumstances, but Officer Kossow was presented with a broken out or missing rear window and a driver wearing latex gloves who acted paranoid, tried to evade her, and claimed that people were after him. As Officer Kossow explained, criminals may steal vehicles from individuals who share the same surname, and they may engage in cold plating. The totality of the circumstances supported a reasonable suspicion that some criminal activity was involved.

Defendant argues that in any event, once Officer Kossow called Elizabeth Sizer and confirmed that defendant had permission to use the Pontiac, Officer Kossow "was required to release" defendant. Defendant points to Officer Kossow's suppression hearing testimony to the effect that, once Officer Kossow spoke with Elizabeth Sizer, Officer Kossow had (subjectively) determined that the Pontiac was not stolen. According to defendant, his detention beyond this point was unlawful. Again, we disagree.

The totality of the circumstances remained suspicious, and Officer Kossow had learned, through her records check, that defendant had a prior conviction related to possession of a dangerous weapon. Elizabeth Sizer said "I don't see why not" when asked if the officers could search the car. Moreover, Officer Griffiths had been checking the VIN number and it was reasonable, under these circumstances, for Officer Kossow to keep defendant detained while she conferred again with Officer Griffiths.

III

Defendant further contends that his arrest was improper because Officer Kossow lacked probable cause to believe that defendant unlawfully possessed a prohibited weapon. He argues that the T-ball bat is not a "billy," the possession of which is prohibited by Penal Code section 12020, subdivision (a)(1). The People disagree, arguing that probable cause existed to believe that the T-ball bat was a billy under Penal Code section 12020, subdivision (a)(1).

"Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037.) Probable cause is a "'"practical, non-technical conception"' that deals with '"the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."' [Citations.]" (Maryland v. Pringle (2003) 540 U.S. 366, 370 [157 L.Ed.2d 769, 775].) Probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Illinois v. Gates (1983) 462 U.S. 213, 243-244, fn. 13 [76 L.Ed.2d 527, 551-552, fn. 13].) It does not require "that the officer's belief be correct or even more likely true than false, so long as it is reasonable." (Qian v. Kautz (7th Cir. 1999) 168 F.3d 949, 953; see also U.S. v. Caicedo (6th Cir. 1996) 85 F.3d 1184, 1192.) "For information to amount to probable cause, it does not have to be conclusive of guilt, and it does not have to exclude the possibility of innocence." (Garcia v. County of Merced (9th Cir. 2011) 639 F.3d 1206, 1209.)

Both parties rely on People v. Grubb (1965) 63 Cal.2d 614 (Grubb) and People v. King (2006) 38 Cal.4th 617 (King). In Grubb, police officers found a 20-inch broken baseball bat in the defendant's car. (Grubb, supra, 63 Cal.2d at p. 616.) The defendant subsequently told the police he carried the bat for self-defense and had previously hit people with the bat. (Id. at p. 617.) A jury convicted him of possessing a "billy" in violation of Penal Code section 12020. (Id. at p. 619.) Defendant argued on appeal, among other things, that the statutory term "billy" was unconstitutionally vague. (Id. at p. 619.) The California Supreme Court rejected this argument, stating:

"The Legislature here sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose. [Citation.]

"Thus we hold that the statute embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects 'of the kind commonly known as a billy.' (Pen. Code, § 12020; italics added.) The concomitant circumstances may well proclaim the danger of even the innocent-appearing utensil. The Legislature thus decrees as criminal the possession of ordinarily harmless objects when the circumstances of possession demonstrate an immediate atmosphere of danger. Accordingly the statute would encompass the possession of a table leg, in one sense an obviously useful item, when it is detached from the table and carried at night in a 'tough' neighborhood to the scene of a riot. On the other hand the section would not penalize the Little Leaguer at bat in a baseball game.

"Applying this test to the instant case, we find the possession of the altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a 'billy,' clearly not transported for the purpose of playing baseball, violates the statute." (Grubb, supra, 63 Cal.2d at pp. 620-621, footnote and italics omitted.)

Years later, in King, the Supreme Court said: "We explained [in Grubb] that an item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a billy, but only 'when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose.' [Citation.]" (King, supra, 38 Cal.4th at p. 624.)

Since King, the Supreme Court has quoted the same language from Grubb on at least two occasions. (People v. Thorton (2007) 41 Cal.4th 391, 466; In re David V. (2010) 48 Cal.4th 23, 28.)*fn1

Here, there is no doubt that the T-ball bat in the Pontiac could be used for an innocent or nonviolent purpose. When taking into account the attendant circumstances, however, there was probable cause to believe that defendant possessed the T-ball bat for purposes of dangerous, not harmless, use.

Officer Kossow and Officer Griffiths observed the T-ball bat handle sticking out of a gym bag on the front seat of the Pontiac. Thus, the T-ball bat was within the immediate reach of defendant, the driver. The officers did not observe any other sports-related items in the Pontiac and there is no reason to believe that defendant, an adult male, would use the youth T-ball bat during a baseball game. Similarly, there is no indication in the record, or argument from defendant, that he was coming from or going to a baseball game, baseball practice, or any other sporting event. The T-ball bat was next to other articles such as duct tape and more latex gloves, which do not have any apparent connection to baseball or sports generally. Defendant was acting paranoid and claimed that people were following him and were after him, thus suggesting that the T-ball bat may be situated in the front passenger seat for defendant's use in a confrontation. Defendant was wearing latex gloves, he had made a sudden right-hand turn in what appeared to be an attempt to escape the police, and he had a prior conviction related to the possession of a dangerous weapon. Finally, although Officer Kossow, the arresting officer, indicated at the suppression hearing that she could not tell from her vantage point whether the T-ball bat had been modified, Officer Griffiths noticed that the T-ball bat had masking tape on the handle. Because Officers Kossow and Griffiths were conducting an investigation together and communicating with one another, the bat's characteristics (including the masking tape) were within their collective knowledge. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1555 ["the important question is not what each officer knew about probable cause, but how valid and reasonable the probable cause was that developed in the officers' collective knowledge"].)*fn2

Based on the totality of the circumstances, we conclude that there was probable cause to believe that the T-ball bat in the Pontiac's front seat was an instrument or weapon of the kind commonly known as a billy, which was within defendant's possession. Therefore, defendant's arrest was valid.

Nonetheless, defendant seeks to distinguish this case from Grubb. He notes that, unlike Grubb, the baseball bat here was not broken. Defendant also cites footnote nine in People v. Mayberry (2008) 160 Cal.App.4th 165 (Mayberry), where this court observed that because the bat in Grubb had the end broken off, "[i]n that form it was not a baseball bat." (Mayberry, supra, 160 Cal.App.4th at p. 171, fn. 9.)

Defendant's attempt to distinguish this case from Grubb is unpersuasive. The bat in Grubb represents one, but not the only, example of an instrument or weapon of the kind commonly known as a billy. Grubb does not stand for the proposition that no matter how much a small baseball bat resembles a billy in shape and size, and regardless of whether the circumstances surrounding its possession indicate that the possessor would use it for a dangerous purpose, it cannot qualify as an instrument or weapon commonly known as a billy unless it is partially broken.

Defendant's reliance on Mayberry is also misplaced. In that case, the defendant was convicted of battery with serious bodily injury and possession of a dangerous weapon after he battered the victim with a standard workout glove filled with sand. (Mayberry, supra, 160 Cal.App.4th at p. 167.) The People claimed the weapon was a "sandclub" or "sandbag" prohibited by Penal Code section 12020, subdivision (a)(1). (Mayberry, supra, 160 Cal.App.4th at p. 169.) This court reversed the conviction for possession of a dangerous weapon, holding that the workout glove did not share any of the "descriptive characteristics" of a weapon commonly known as a "sandclub" or "sandbag" and could not be transformed into such a weapon by its use in a violent manner. (Id. at pp. 167, 171.)

Mayberry is distinguishable from the instant case. It involved legal standards for conviction, not standards for probable cause. And here, the baseball bat shares some of the characteristics of a billy and can, depending on the circumstances, qualify as one. (See King, supra, 38 Cal.4th at p. 626; cf. People v. Fannin (2001) 91 Cal.App.4th 1399, 1406.) Defendant also notes that Officer Kossow testified that she did not observe any alterations to the T-ball bat. Defendant, however, ignores Officer Griffiths's unrebutted testimony that the T-ball bat had masking tape on the handle. Moreover, whether an item has been altered or modified is only one relevant factor in determining whether the item can be regarded as an instrument or weapon of the kind commonly known as a billy. (Grubb, supra, 63 Cal.2d at pp. 620-621; People v. Rubalcava (2000) 23 Cal.4th 322, 329.)

Despite defendant's arguments to the contrary, there was probable cause to believe that defendant was in the possession of an instrument or weapon of the kind commonly known as a billy.*fn3

IV

The interior of the Pontiac was searched incident to defendant's arrest and pursuant to an inventory of the vehicle's contents. On appeal, defendant does not challenge the search of the Pontiac's passenger compartment incident to his arrest, which uncovered the handgun. Instead, he contends the inventory search was unauthorized.

An inventory search is a well-recognized exception to the warrant (and probable cause/reasonable suspicion) requirement. (Colorado v. Bertine (1987) 479 U.S. 367, 372 [93 L.Ed.2d 739, 745-746].) When the police lawfully decide to impound a vehicle or otherwise take it into custody, the police may conduct an inventory of the vehicle's contents "aimed at securing or protecting the car and its contents." (South Dakota v. Opperman (1976) 428 U.S. 364, 373 [49 L.Ed.2d 1000, 1007]; People v. Redd (2010) 48 Cal.4th 691, 721 (Redd).)

Defendant contends the inventory search was unlawful because his arrest was unlawful, and because the prosecution presented no evidence to show that impounding the vehicle served a community caretaking function. We have already rejected defendant's contention that his arrest was unlawful. Therefore, under Vehicle Code section 22651, subdivision (h)(1), Officer Kossow was legally authorized to have the Pontiac towed and inventoried. (Redd, supra, 48 Cal.4th at p. 721.)

Regarding the argument that the prosecution lacked evidence to establish the community caretaking function, the record indicates otherwise. The Pontiac did not have a rear window and the interior of the vehicle contained possessions, including tools. Officer Kossow explained that if they left the Pontiac on the side of the road, the lack of a rear window would have rendered the vehicle unsecured. Accordingly, impounding the vehicle served a community caretaking function. (See People v. Shafrir (2010) 183 Cal.App.4th 1238, 1248 [recognizing that the protection of a "vehicle from damage or theft" is an "eminently reasonable community caretaking justification"].) The inventory search was appropriate.

V

Defendant is entitled to an additional day of presentence conduct credit under recent amendments to the Penal Code. During the pendency of this appeal, the Legislature amended Penal Code section 2933, subdivision (e), which concerns presentence credit for defendants sentenced to state prison. (See Pen. Code, § 2933, subd. (e), as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010.) For defendants sentenced to state 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, Penal Code section 2933 now governs their entitlement to presentence conduct credits. Under Penal Code section 2933, as amended, these qualifying defendants receive one day of presentence conduct credit for each day of actual presentence custody. (Pen. Code, § 2933, subd. (e)(1)-(3).) Penal Code section 2933 does not state that its amendments are to be applied only on a prospective basis. Since the issue of their retroactivity is analogous to the issue embraced in our miscellaneous order No. 2010-002, we deem it raised without additional briefing.

We conclude that the amendments to Penal Code section 2933 apply retroactively to all appeals, like defendant's, pending as of September 28, 2010. (See People v. Hunter (1977) 68 Cal.App.3d 389, 393; People v. Doganiere (1978) 86 Cal.App.3d 237.)

Defendant served 95 days of actual presentence custody and received 94 days of conduct credit. Based on the record before us, defendant does not have any past or present convictions for a "serious" or "violent" felony, and is not subject to registration as a sex offender.*fn4 Thus, he is entitled to one additional day of conduct credit under Penal Code section 2933.

DISPOSITION

The judgment is modified to award defendant one additional day of presentence conduct credit. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment to reflect the additional day of conduct credit, and shall send a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

We concur: HULL , Acting P. J. BUTZ , J.


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