Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA104907.
Gary E. Daigh, Judge. Affirmed in part, reversed in part, and remanded with directions.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadmarmel, Jr. and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
Following a jury trial at which he represented himself, Terrance Meeks was convicted of assault with a deadly weapon (ADW), assault by means of force likely to produce great bodily injury (AGBI), attempted second degree robbery, and misdemeanor possession of burglar’s tools. In a bifurcated trial phase, the trial court found that Meeks had two prior convictions for which he had served terms in prison. The court thereafter sentenced Meeks to an aggregate term of seven years and two months in state prison. We reverse Meeks’ AGBI conviction. We further find it was improper to impose a consecutive eight-month term on his conviction for attempted robbery. All remaining aspects of the jury’s verdicts and the trial court’s sentence are affirmed; the case is remanded to the trial court with directions to prepare a new abstract of judgment in accord with this opinion.
FACTS
On February 2, 2009, Jesse Gonzalez and his brother, Abraham, drove home in Jesse’s 1987 Chevrolet Astro van, and were carrying a piece of furniture into the back yard when they heard their mother yell. Jesse and Abraham ran to the front of the house, and saw Meeks in the driver’s seat of Jesse’s van, pulling the stereo out of the dashboard of the vehicle. Jesse and Abraham went to stop Meeks, while their sisters called the police. A neighbor, Vicente Regla, came to help. While trying to hold Meeks, Jesse felt he “was being poked on [his] left side.” Jesse asked Regla to see what Meeks was doing, and Regla saw Meeks holding a knife, and kicked the knife out of his hand. Sheriff’s deputies arrived, and arrested Meeks. While at the scene, a deputy recovered scissors, screwdrivers, wire cutters, and a flashlight on the street near the van. The tools did not belong to Jesse. The van’s stereo also ended up on the street.
When questioned, Meeks first said that the van belonged to a friend, “Bob, ” and that they had run out of gas. Meeks stated that Bob left to walk to a gas station, and that he (Meeks) had just been sitting in the van when he was dragged from the vehicle. After Jesse gave his car keys to an investigating detective, and the detective started the van and saw that it had more than half a tank of gas, Meeks admitted that he had tried to take the van’s stereo. Meeks also admitted that he had been in possession of a knife, but said he had only used it in self-defense after the other men began beating him for no reason.
In May 2009, the People filed an amended information charging Meeks with the following crimes: ADW (knife) on Jesse Gonzalez (count 1; Pen. Code, § 245, subd. (a)(1)); AGBI on Jesse Gonzalez (count 2; § 245, subd. (a)(1)); misdemeanor possession of burglar’s tools (count 7; § 466) and second degree robbery of Jesse Gonzalez (count 8; § 211). As to counts 1 and 2, the information further alleged that Meeks had been released on bail in another case when he committed the assaults (§ 12022.1), that he had a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) in the form of a Texas burglary conviction, and the he had two prior convictions with a prison term (§ 667.5, subd. (b)).
All further section references are to the Penal Code.
The charges against Meeks were tried to a jury in May 2009, at which time the People presented evidence proving the facts summarized above through the testimony of Jesse Gonzalez, Vicente Regla, Eric Sorensen (a Los Angeles County Deputy Sheriff), and Hugo Reynaga (a Los Angeles County Deputy Sheriff, detective). Meeks did not present any defense evidence; his attempt to introduce three photographs and two pages of medical records were met with an objection, which the trial court sustained. As to count 8, the trial court instructed the jury on the crime of robbery, and the lesser crimes of attempted robbery and attempted petty theft.
On May 15, 2009, the jury found Meeks guilty as charged in counts 1, 2 and 7. As to count 8, the jury found Meeks guilty of the lesser crimes of attempted robbery and attempted petty theft. In a bifurcated trial phase, the trial court found that Meeks had suffered two prior convictions with a prison term. The court found that the prosecution failed to prove the alleged Texas conviction constituted a prior strike.
On June 25, 2009, the trial court sentenced Meeks to an aggregate term in state prison of seven years and two months, calculated as follows: on count 1, ADW: the upper term of four years; on count 2, AGBI: stayed; on count 8, attempted robbery, one-third the midterm or eight months, consecutive. On count 7, possession of burglar’s tools, the court imposed a six-month term consecutive to the term upon count 1. Finally the court imposed an additional two years for his prior convictions with a prison term.
DISCUSSION
I. Assault with Great Bodily Injury
Meeks contends, the People agree, and we find that Meeks should not have been convicted of AGBI as charged in count 2. The record shows, as Meeks argues, that the prosecution based the assaults in counts 1 and 2 on the same act of using a knife on Jesse Gonzalez, presenting counts 1 and 2 to the jury as alternate theories of criminal liability for assault, not as separate assault offenses. For this reason, we agree with the parties’ unified position that two assault convictions are duplicative, and that Meeks’ conviction for AGBI as charged in count 2 must reversed. (Cf. People v. Delgado (2008) 43 Cal.4th 1059, 1070, fn. 4 [a conviction under section 245, subdivision (a)(1), may be based on either the use of deadly weapon, or the use of force likely to produce GBI].)
II. Attempted Robbery
Meeks contends his conviction for attempted robbery as charged in count 8 must be reversed because it is not supported by substantial evidence. We disagree.
When presented with a challenge to the sufficiency of the evidence to sustain a criminal conviction, we follow long-settled rules: we review the whole record in the light most favorable to the verdict to determine whether it discloses substantial evidence, i.e., evidence which is which is of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jones (1990) 51 Cal.3d 294, 314.) Stated from a different perspective, we may not reverse a conviction on the ground of insufficient evidence unless the record persuades that “upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Meeks’ argument on appeal is that the van was “unoccupied” when he entered it to take the stereo, and that “neither Jesse nor Abraham was immediately present at the time and there was no taking by use of force or fear.” According to Meeks, the fact that his attempted theft “was prevented by the brothers’ use of force” did not transform his act of attempted theft into an act of attempted robbery.
We are not persuaded by Meeks’ argument. Viewed in the light most favorable to the jury’s verdict, the evidence establishes, directly and/or by reasonable inference, that Meeks had the stereo in his hands when Jesse and his brother arrived at the van, and confronted him, and that Meeks fought with Jesse in an attempt to make good an escape with the stereo. The absence of evidence showing that Meeks attempted to pick up the stereo after it fell to the ground, and then run away with it, does not mean, as Meeks urges, that the evidence supports no other conclusion than that he committed an attempted theft only. A robbery begins at the time of the original taking and continues until the robber reaches a place of relative safety. (People v. Estes (1983) 147 Cal.App.3d 23, 28.) Accordingly, when the evidence shows, as it did in Meeks’ current case, that a defendant used force to resist an attempt to retake stolen property, the evidence is sufficient to sustain a robbery conviction. (Ibid.)
III. Attempted Robbery versus Attempted Petty Theft
As we have noted, the jury returned two guilty verdicts as to count 8: attempted robbery and attempted petty theft. The trial court dismissed the jury’s guilty verdict for attempted theft, and allowed the jury’s guilty verdict attempted robbery to stand. Meeks contends the trial court erred in not doing the opposite, i.e., dismissing the jury’s verdict for attempted robbery, and keeping the verdict for attempted petty theft. We disagree.
As a general rule, “[c]onviction of a lesser included offense is an implied acquittal of the offense charged when the jury returns a verdict of guilty of only the lesser included offense. [Citations.] When the jury expressly finds defendant guilty of both the greater and lesser offense, however, there is no implied acquittal of the greater offense. If the evidence supports the verdict as to [the] greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763 [sale of LSD and possession of LSD]; and see also People v. Cole (1982) 31 Cal.3d 568, 582 [conviction for grand theft reversed on ground it was a lesser included offense of the crime of robbery].)
Meeks’ argument that the trial court denied his right to a unanimous jury verdict is simply not supported by the record. In returning a guilty verdict for attempted robbery, all twelve jurors unanimously decided that Meeks was guilty of that crime. In returning a guilty verdict for attempted petty theft, all twelve jurors unanimously decided that Meeks was guilty of that crime as well. There is nothing in the record to support a conclusion that some jurors believed Meeks to be guilty of only an attempted petty theft.
IV. The Sentencing Issue on Meeks’ Attempted Robbery Conviction
Meeks contends, the People agree, and we find that the trial court’s decision to impose a consecutive 8-month term on Meeks’ attempted robbery conviction as charged in count 8 cannot stand. Instead sentence on count 8 must be stayed under section 654. Where, as in Meeks’ current case, the evidence shows that one act of force constituted an assault and also constituted the force necessary to commit a robbery, the imposition of two punishments is improper. (People v. Galvin (1957) 148 Cal.App.2d 285, 293.) Accordingly, we remand to the trial court to correct the abstract of judgment accordingly.
V. Prosecutorial Misconduct
Meeks contends all of his convictions must be reversed because a comment by the prosecutor during closing argument amounted to prejudicial misconduct. We disagree.
Prosecutorial misconduct occurs when a prosecutor employs either a reprehensible or deceptive method to persuade a jury; the defendant need not show bad faith on the part of the prosecutor to establish misconduct because a defendant is injured by an improper trial tactic, regardless of whether it was occurred inadvertently or through an intentional design. (People v. Hill (1998) 17 Cal.4th 800, 822-823.) Where a reviewing court finds that misconduct infected a trial with such unfairness as to make the defendant’s resulting conviction a denial of due process, the misconduct is an error of constitutional magnitude compelling reversal of the defendant’s conviction. (People v. Morales (2001) 25 Cal.4th 34, 44.) Where a reviewing court finds that misconduct merely exposed jurors to some form of improper evidentiary matter, the error is reviewed under the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818. (People v. Frye (1998) 18 Cal.4th 894, 976, disapproved on another ground People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Detective Reynaga testified about Meeks’ arrest and statements. During his testimony, Detective Reynaga related that Meeks had admitted he went into the victim’s van to take the stereo, and that he (the detective) had asked Meeks “if he was willing to put it on paper.” The detective then continued, without an objection, testifying: “At that time he told me, ‘No, I’ve been arrested for burglaries in the past, and I don’t want to incriminate myself by signing a paper.’”
As we noted above, Meeks represented himself at trial.
Later, during the prosecutor’s closing argument, the following exchange occurred: “[The Prosecutor]: “And then, obviously, Count 7 [alleges] possession of burglar’s tools. And the judge read to you that long list of tools that can you possess one or more of and be in violation of that. Defendant had not one, but two screwdrivers, pliers, scissors, and a flashlight. He found a van that was unlocked. Remember Jesse [testified that he] had unloaded [a] pool table. He was probably going in, you know, checking the scores, maybe he was going to come back out, maybe not, but there is no burglary charge here.
“The Defendant stood in front of you in opening and said I’m so overcharged. [But t]here is no burglary charge, even though he brought all the tools that he thought he was going to need for a burglary, he didn’t need them to get into the van. He needed scissors to cut the stereo. He needed a flashlight, because it was dark. He was ready to do a burglary. He told you in his own statement – remember, he didn’t want to sign when Reynaga got his statement from him because he’s had past burglaries. He was ready for a burglary. But there is no burglary charge.
[Meeks]: Objection, your Honor.
[The Court]: The objection is overruled. You may continue.
[The Prosecutor]: Thank you. And so the Defendant was ready. Just like if you see someone walking down the street towards the water, their fishing pole, their tackle box. That man is ready to go fishing. This man was ready to break into something.”
The prosecutor’s reference to Detective Reynaga’s testimony about Meeks’ past arrests for burglaries did not amount to prosecutorial misconduct because the detective’s testimony had been admitted during trial, without an objection. The prosecutor’s words were no more than fair comment on the evidence. (People v. Dennis (1998) 17 Cal.4th 468, 522.) Apart from this, the evidence of Meeks’ past burglary history may or may not have been inadmissible character evidence. As the prosecutor reasonably explained in her argument, Meeks’ past burglary history tended to suggest that he possessed otherwise ordinary tools with the intent of using those tools as burglar’s tools.
However, even assuming that Detective Reynaga should not have alluded to Meeks’ past criminal history and that the prosecutor therefore also should not have alluded to Meeks’ criminal history, we would not reverse on the ground of prosecutorial misconduct in any event because we see no harm caused by the prosecutor’s comment. (People v. Brown (2003) 31 Cal.4th 518, 553 [to prevail on a claim of prosecutorial misconduct, a defendant must demonstrate a reasonable likelihood that the prosecutor’s act affected jurors in an improper manner].) In Meeks’ current case, the prosecutor’s lone statement about Meeks’ past burglaries was an isolated element of trial, and not part of a pattern of conducted designed to persuade the jury to convict apart from the evidence of his current crimes. Apart from the negligible possibility of contamination of trial from the prosecutor’s isolated words, the evidence of Meeks’ guilt was overwhelming. He was caught in midst of the act of stealing the victim’s stereo. He confessed to the theft. He admitted that he had a knife with him at the time of the incident. There was no defense evidence. In his argument to the jury, Meeks acknowledged that he “was attempting to steal the car stereo;” his defense was that there was no robbery because he had not tried to take the stereo by force, and no assault because he had been basically dragged from the van, and beaten without resisting, when found trying to steal the stereo. But Meeks’ argument was not evidence, and thus, in assessing possible prejudice from the prosecutor’s comment, we have a case with solid prosecution evidence, a defendant’s express admissions, and no defense evidence to counter the prosecution witnesses’ rendition of the facts.
We see no probability that the jury would have returned different verdicts had only the prosecutor not made her one, isolated statement about Meeks’ past burglaries.
VI. Credits
In a supplemental opening brief, Meeks argues he is entitled to 73 additional days of conduct credits pursuant to section 2933. We disagree.
Meeks committed the crime in this case and was arrested on February 2, 2009. He was sentenced on June 25, 2009. The number of days counting the first date, and the last date, and all the dates in between, is 145 days. The trial court awarded Meeks 145 days of credit for actual time in custody pursuant to section 2900.5, plus 72 days of local presentence conduct credits pursuant to section 4019, for a total of 217 days. Meeks contends his credits must be increased because he is entitled to retroactive application of two changes to the Penal Code increasing the accrual rate for conduct credit to certain defendants: the amendment to Penal Code section 4019 pursuant to SB 18, effective on January 25, 2010 and the amendments to Penal Code section 2933, which took effect on September 28, 2010. While this division has maintained that that section 4019 should apply retroactively, in Meeks case, it does not affect a change in his conduct credits. The same result holds true under the amendment to Penal Code section 2933.
We turn first to the amendments to Section 4019 effective January 25, 2010 (the January 2010 amendment). The January 2010 amendment resulted in an increase in the number of presentence good conduct and work time credits to be awarded to certain classes of offenders as an offset against a prison sentence. The old version of section 4019 provided that defendants earned two days of conduct credit for every four actual days served in local custody. Pursuant to the January 2010 amendment, certain defendants earn two days of conduct credit for every two days of actual custody. There is a split of authority among our appellate districts on the retroactivity of the January 2010 amendment to section 4019 and the issue is now on review before the Supreme Court. This division has consistently held, in accord with the reasoning in the majority of published decisions on the issue, that the January 2010 amendment to section 4019 should be applied retroactively to cases not yet final as of the date of its enactment. (See, e.g., People v. Bacon, supra, 186 Cal.App.4th at pp. 335-337, review granted Oct. 13, 2010, S184782.)
The following cases hold the new statute “retroactively” applies to all cases not final as of January 25, 2010: People v. Brown (2010) 182 Cal.App.4th 1354 [3d Dist.] [review granted]; People v. House (2010) 183 Cal.App.4th 1049 [2nd Dist, Div. 1] [review granted]; People v. Landon (2010) 183 Cal.App.4th 1096 [1st Dist., Div. 1] [review granted]; People v. Norton (2010) 184 Cal.App.4th 408 [1st Dist., Div. 3] [review granted]; People v. Pelayo (2010) 184 Cal.App.4th 481 [1st Dist., Div. 5] [review granted]; People v. Keating (2010) 185 Cal.App.4th 364 [2nd Dist., Div. 2] [review granted]; People v. Bacon (2010) 186 Cal.App.4th 333 [2nd Dist., Div. 8] [review granted]; and People v. Jones (2010) 188 Cal.App.4th 165 [3rd Dist.] [review granted].
However, granting Meeks retroactive application of section 4019 does not help his case, as he does not fall within the purview of that class of offenders to which greater credit is warranted. In the 2010 version of section 4019, subdivisions (b)(2) and (c)(2) exclude from the enhanced credit scheme those defendants who are committed for a serious felony. Meeks was convicted of assault with a deadly weapon and attempted robbery, both of which are serious felonies. (§ 1192.7, subds. (c)(19), (23), (39).)
A similar exclusion provides that the traditional one-third conduct credit formula applies to Meeks under the revision to subdivision (e)(3) of section 2933, effective September 28, 2010. Thus, even if we assume there 2933 applied retroactively, in considering application of the statute to him, it would not change the credit calculation. Section 2933, subdivision (e)(1), provides: “Notwithstanding Section 4019 and subject to the limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail... from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.” Meeks argues that section 2933, subdivision (e)(1), means he must be granted day-for-day custody credits against his state prison sentence, reducing his time in state prison custody accordingly, notwithstanding section 4019. We disagree.
The presentence conduct credits formula afforded under section 2933, subdivision (e)(1), is qualified by section 2933, subdivision (e)(3), which reads: “Section 4019, and not this subdivision, shall apply if the prisoner... was committed for a serious felony, as defined in Section 1192.7... or a violent felony as defined in Section 667.5.” As we have noted, Meeks was convicted of assault with a deadly weapon and attempted robbery, both of which are serious felonies. (§ 1192.7, subds. (a)(19), (23), (39).) Accordingly, the September 28, 2010, revision offers him no relief either.
We note that in the context of his equal protection argument, Meeks admits he is excluded from day-for-day credit because he was convicted of a serious felony.
Meeks next argues there are two equal protection problems in his sentencing. He first contends that equal protection mandates retroactive application of the statute. We have assumed, however, that he is entitled to retroactive application of both statutes, and we thus need not further address this argument.
As far as we understand Meeks second argument, he contends that the following scenario presents an equal protections problem: that if a defendant was charged with ADW, but had posted bail, and had not spent time in custody prior to being convicted and sentenced to the state prison, that defendant would serve a sentence in the state prison that would be reduced by the day-for-day prison custody credits prescribed pursuant to section 2933. On the other hand, a defendant like Meeks, who does not post bail prior to conviction and sentence, will serve a longer period in the state prison because his presentence custody credits are calculated under the different, less generous formula in section 4019. Meeks essentially contends that presentence custody credits must be calculated at the same rate as are prison custody credits, or there is an equal protection problem.
In so far as Meeks contends broadly that “equal protection mandates application of the statute to appellant even though he is in one of the statutorily excluded classes, ” we also disagree. First, persons convicted of different crimes are not similarly situated for purposes of equal protection. (People v. Macias (1982) 137 Cal.App.3d 465, 473.) Further, the state has a legitimate interest in sentencing persons convicted of serious felonies more severely than those convicted of other crimes.
We are not persuaded by Meeks’ equal protection argument. The statutes at issue in Meeks’ case do not violate his right to equal protection because the State has a rational basis for providing different accrual rates for conduct credits for time in custody before sentencing (§ 4019) and time in custody after sentencing (§ 2933). The primary focus of presentence conduct credit statutes is to encourage cooperation and good behavior by persons temporarily detained in local custody before they are convicted and committed to the state prison, whereas credit schemes for persons serving terms in the state prison are based on other considerations, including the extent to which a prisoner deserves or might benefit from incentives to shorten their terms through participation in rehabilitation or educational or training programs. (People v. Buckhalter (2001) 26 Cal.4th 20, 36.)
Meeks reliance on In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), and People v. Sage (1980) 26 Cal.3d 498 (Sage), in support of his equal protection argument is misplaced.
In Kapperman, the Supreme Court reviewed the constitutionality of a then-recently enacted version of section 2900.5 which provided that a person convicted of a felony offense would, upon his sentencing, be credited with the actual time in custody in county jail prior to the commencement of their prison sentence. Under subdivision (c) of the section, the credit applied prospective only, limiting its benefit to those persons who were delivered to the Department of Corrections after the effective date of the legislation. The Supreme Court ruled that the prospective application of the credit for actual time in presentence custody violated equal protection because it withheld a substantial benefit from similarly situation persons, i.e., persons serving time in state prison, and was not reasonably related to a legitimate public purpose. (Kapperman, supra, 11 Cal.3d at pp. 545-550.) Meeks was not denied credit for his actual time in custody prior to the commencement of his prison sentence. Conduct credits must be earned by a defendant, whereas custody credits are constitutionally required and awarded automatically on the basis of time served.
Sage is also inapposite. In People v. Sage, supra, 26 Cal.3d 498, the Supreme Court considered a previous version of section 4019 which denied presentence conduct credit to a detainee eventually sentenced to prison, although credit was given to detainees sentenced to jail and to felons who served no presentence time. (Id. at p. 507.) The Supreme Court found no rational basis, nor compelling state interest, to deny presentence conduct credit to detainee/felons. (Id. at p. 508.)
In Meeks’ current case, his presentence conduct credits do not implicate a similar statutory scheme or facts as was involved in Sage. The violation in Sage was based on the defendant's ultimate status as a misdemeanant or felon, not on the basis of his custody presentence and postsentence custody time.
DISPOSITION
Meeks conviction for AGBI in count 2 is reversed. The consecutive eight-month term imposed upon Meeks’ conviction for attempted robbery as charged in count 8 is vacated, and the cause is remanded to the trial court to stay imposition of sentence on count 8 pursuant to section 654. In all other respects, the jury’s verdicts and the trial court’s orders and sentencing decisions are affirmed. The cause is remanded to the trial court with directions to issue a new abstract of judgment in accord with this opinion.
We concur: RUBIN, J. GRIMES, J.
The following cases hold the new statute operates only prospectively, at least to the extent that it does not apply to cases sentenced prior to January 25, 2010: People v. Rodriguez (2010) 183 Cal.App.4th 1 [5th Dist.] [review granted]; People v. Otubuah (2010) 184 Cal.App.4th 422 [4th Dist., Div. 2] [review granted]; People v. Hopkins (2010) 184 Cal.App.4th 615 [6th Dist.] [review granted]; and People v. Eusebio (2010) 185 Cal.App.4th 990 [2nd Dist, Div. 4] [review granted].