Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR558208
Jones, P.J.
A jury convicted appellant Nigel Ian Wilson of possession of a firearm by felon (Pen. Code, § 12021, subd. (a)(1)) and the court sentenced him to two years in state prison. On appeal, appellant contends the trial court deprived him of his constitutional right to a jury trial by instructing the jury with CALCRIM No. 2511, the instruction on possession of a firearm by a felon. Appellant also contends he is entitled to additional presentence conduct credit pursuant to section 4019, which was amended effective January 25, 2010.
Unless otherwise noted, all further statutory references are to the Penal Code. Section 12021, subdivision (a) provides in relevant part, “Any person who has been convicted of a felony under the laws of... the State of California, ... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.”
Consistent with our decision in People v. Pelayo (2010) 184 Cal.App.4th 481 (review granted July 21, 2010, S183522), we conclude the amendment to section 4019 applies retroactively. Accordingly, appellant is entitled to a recalculation of his presentence custody credits. We therefore reverse and remand to the trial court to modify its sentencing order and the abstract of judgment to correctly reflect the credits to which appellant is entitled. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Before March 18, 2009, appellant had been convicted of a felony preventing him from owning, receiving, or possessing firearms or ammunition. In late March 2009, the People filed a complaint charging appellant with, among other things, possession of a firearm by a felon (§ 12021, subd. (a)(1)).
Prosecution Evidence
On March 18, 2009, Santa Rosa Police Officer Timothy Wilhelm received a report of an “incident regarding some dogs” on Paulin Drive and a description of the vehicle associated with the dogs. Wilhelm and two other Santa Rosa police officers went to Paulin Drive to help animal control with the dogs. When Wilhelm arrived, he saw a vehicle matching the description he had received: a Ford pickup truck with a red camper shell. The truck was parked and unoccupied.
As Wilhelm stood next to the truck, he saw a man, later identified as appellant, walking toward him. A police officer asked appellant whether his name was Nigel, and appellant replied, “Yeah...” Wilhelm asked appellant whether the truck belonged to him and appellant said, “‘Yeah, that’s mine[.]’” Police officers told appellant they were investigating an incident with dogs and asked him where he lived. In response, appellant pointed toward the pickup truck and said, ““I live in there.’” Appellant did not have keys to the truck. He explained that he was waiting for his girlfriend, who was attending court that day. Later, appellant told the officers he and his girlfriend lived in El Dorado County.
The truck was not registered to appellant. Appellant told the officers he had recently purchased the truck but had yet not transferred the title.
Officers asked for, and received, appellant’s consent to search the truck. Before searching the truck, an officer asked appellant whether “there was anything illegal in the vehicle.” In response, appellant “seemed surprised, threw his arms up in the air, and said there was a shotgun in the vehicle.... He described where it was and how it was wrapped.” Appellant said the shotgun was in the bed of the pickup truck “on the right side wrapped in a T-shirt.” Appellant referred to the shotgun as “his girlfriend’s.”
Officers searched the truck and found the shotgun where appellant said it would be. It was “loosely wrapped” in a T-shirt. Appellant did not say anything as Wilhelm removed the shotgun from the truck. Wilhelm thought someone was living in the truck because “[t]here was an area which would be big enough for someone to sleep” and there were suitcases containing men’s and women’s clothing.
Defense Evidence
Eric Meeker, appellant’s long-time friend, owns a house in Santa Rosa. Appellant, his girlfriend, and his dog stayed at Meeker’s house on March 17, 2009, because they had a court date the next day, on March 18, 2009. Animal control officers came to Meeker’s house on March 18, 2009 to discuss appellant’s dog.
Meeker knows appellant’s girlfriend, Kylee Erwin. In October 2008, Meeker gave Erwin his shotgun as a present for Erwin’s birthday. Erwin posed next to the gun and Meeker took a picture. Meeker displayed the photograph at trial. Appellant never expressed any interest in owning or possessing the gun. Appellant and Meeker did not discuss the gun on March 17 or 18, 2009.
Jury Instructions, Verdict, and Sentencing
The parties submitted jury instructions; both parties proposed instructing the jury with CALCRIM No. 2511 without modification. When the court asked defense counsel whether counsel had any objection to instructing the jury with CALCRIM No. 2511, counsel responded, “No.”
The trial court delivered CALCRIM No. 2511 as follows: “The defendant is charged in count 1 with unlawfully possessing a firearm in violation of... section 12021 [subdivision] (a)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] No. 1, the defendant possessed a firearm. [¶] No. 2, the defendant knew that he possessed the firearm. [¶] And, No. 3, the defendant had previously been convicted of a felony.” The court continued, “Two or more people may possess something at the same time. [¶] A person does not have to actually hold or touch something to possess it. [¶] It is enough if the person has control over it or the right to control it, either personally or through another person.”
In November 2009, a jury convicted appellant of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Effective January 25, 2010, the Legislature amended section 4019 to change the formula for calculating presentence conduct credit. On February 9, 2009, the court sentenced appellant to two years in state prison. The court awarded appellant 77 days of credits: 47 days of credit for actual days, and 30 days of conduct credit. The court gave appellant one day of conduct credit for every two days appellant spent in custody until January 25, 2010, when the amendment to section 4019 took effect. It awarded two days of conduct credit for every two days appellant spent in custody from January 25, 2010, to February 9, 2010, pursuant to the amended formula in section 4019.
DISCUSSION
Appellant raises two claims on appeal. He does not challenge the sufficiency of the evidence to support the conviction. Instead, he contends instructing the jury with CALCRIM No. 2511 violated his constitutional right to a jury trial because the instruction “inadequately describe[d] the concept of constructive possession.” Appellant also claims he is entitled to additional conduct credit pursuant to section 4019 for time spent in custody before January 25, 2010.
Appellant’s Claim Regarding CALCRIM No. 2511 Has No Merit
“The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm....” (People v. Snyder (1982) 32 Cal.3d 590, 592.) A defendant violates section 12021 when he or she “intentionally has the weapon in [his or her] constructive or actual possession.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1147.) “With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense.” (Snyder, supra, 32 Cal.3d at p. 592.)
Appellant contends the court deprived him of his constitutional right to a jury trial by instructing the jury with CALCRIM No. 2511 because the instruction “oversimplified the notion of possession by eliminating the concept of intentional control and constructive possession....” We disagree. CALCRIM No. 2511 informed the jury that a person does not have to hold or touch something to possess it. The instruction also informed the jury that control or the right to control is sufficient. CALCRIM correctly states the law that physical possession is not required - constructive possession or control may be sufficient for the offense of being a felon in possession of a firearm. (People v. Nieto (1966) 247 Cal.App.2d 364, 368.) CALCRIM No. 2511 also properly instructed the jury on the knowledge element. The instruction advised the jury that appellant must have known that he possessed the firearm.
The People urge us to conclude the claim is forfeited because appellant invited the error by requesting the instruction and failing to seek a modification or clarification. The general rule is “‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) We address the merits of appellant’s claim to obviate an ineffective assistance of counsel claim.
Appellant’s reliance on People v. Jeffers (1996) 41 Cal.App.4th 917, 922 is misplaced. In that case, the defendant delivered a box wrapped in a paper bag to a gun shop. (Id. at p. 921.) He said he was delivering the box for a friend. (Id. at p. 919.) The package contained a gun, but the defendant claimed he did not know the package contained a gun. (Id. at p. 921.) The trial court declined to instruct the jury on the defense that defendant did not know what was in the package and the jury convicted the defendant, a felon, of violating section 12021. (Id. at pp. 919, 923.)
On appeal, the defendant argued the trial court failed to instruct the jury on his defense that he did not know what was in the package. (Jeffers, supra, 41 Cal.App.4th at p. 920.) The Jeffers court agreed and reversed the defendant’s conviction. It held “[w]rongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. [Citation.] A person who commits a prohibited act ‘through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence’ has not committed a crime. [Citation.] Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent.” (Id. at p. 922.) As a result, the court concluded the trial court’s failure to give the general intent instruction deprived the defendant of his defense that his possession of the gun was unintentional. (Id. at pp. 924-925.)
Here and in contrast to Jeffers, the court instructed the jury pursuant to CALCRIM No. 250 that there must be a union of act and general criminal intent. As a result, Jeffers does not support appellant’s position. (See People v. Padilla (2002) 98 Cal.App.4th 127, 135 [“the reversible error in Jeffers... was the trial court’s failure to give [the jury instruction] on the union of act and general criminal intent, which the appellate court held was critical to the jury’s understanding of the defendant’s defense.” (Original italics.).] Moreover, and in contrast to the defendant in Jeffers, appellant did not contend he accidentally possessed the gun. Appellant told the police officers there was a gun in his truck and that it belonged to his girlfriend.
Appellant Is Entitled to Additional Presentence Custody Credit
As noted above, the court awarded appellant 77 days of presentence custody credit, comprised of 47 actual days and 30 days of conduct credit. Appellant’s final claim is he is entitled to 94 days of presentence credit, not 77, under the recent amendments to section 4019.
Section 4019 provides that a criminal defendant may earn additional presentence conduct credit for performing assigned labor and complying with the penal institution’s rules and regulations. (People v. Dieck (2009) 46 Cal.4th 934, 939.) A prisoner’s good conduct time is deducted from his or her period of confinement. In October 2009, the Legislature passed Senate Bill No. 18, which amended section 4019 to increase the number of presentence conduct credits available to eligible defendants. The amended version of the law took effect on January 25, 2010. Under the amended version of the law, certain inmates earn credits at roughly twice the previous rate. (§ 4019, subd. (f).)
The Courts of Appeal disagree on whether the amendment to section 4019 applies retroactively. The majority of courts - including this court - hold that the amendment to section 4019 applies retroactively to all sentences not yet final on appeal. (People v. Keating (2010) 185 Cal.App.4th 364 (review granted Sept. 22, 2010, S184354); Pelayo, supra, 184 Cal.App.4th 481 (review granted July 21, 2010, S183552); People v. Norton (2010) 184 Cal.App.4th 408 (review granted Aug. 11, 2010, S183260); People v. Landon (2010) 183 Cal.App.4th 1096 (review granted June 23, 2010, S182808); People v. House (2010) 183 Cal.App.4th 1049 (review granted June 23, 2010, S182183); People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963.)
Another line of authority holds the amendment applies prospectively only. (People v. Eusebio (2010) 185 Cal.App.4th 990 (review granted Sept. 22, 2010, S184957); People v. Hopkins (2010) 184 Cal.App.4th 615 (review granted July 28, 2010, S183724); People v. Otubuah (2010) 184 Cal.App.4th 422 (review granted July 21, 2010, S184314, People v. Rodriguez (2010) 182 Cal.App.4th 535 (review granted June 9, 2010, S181808.) The question is currently on review before our Supreme Court.
For the reasons set forth in Pelayo, supra, 184 Cal.App.4th 481, we conclude that section 4019 operates retroactively, and as a result, appellant is entitled to additional custody credits. Under the current version of section 4019, “a term of four days will be deemed to have been served for every two days spent in actual custody....” (§ 4019, subd. (f).) The correct way to calculate credits under the amended version of section 4019 is to divide the actual custody credits by two, round down if necessary to the nearest whole number, and then multiply that result by two. (Cf. People v. Fry (1993) 19 Cal.App.4th 1334, 1341.) Appellant, who spent 47 actual days in custody, was entitled to 46 days of conduct credit, for a total of 93 days of presentence credit.
DISPOSITION
The judgment is reversed as to the calculation of presentence custody credits only. On remand, the trial court shall revise its sentencing order and the abstract of judgment to reflect that appellant earned 93 days of presentence credits pursuant to section 4019. The court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: Needham, J. Bruiniers, J.