P. v. Brown





















Filed 4/26/13 P. v. Brown CA2/8







>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>



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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115>.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




>

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DASHAUN BROWN, Defendant and Appellant.

B236686 (Los Angeles County Super. Ct. No. MA 052154)

APPEAL from
a judgment of the Superior Court of Los Angeles County, Gregory A. Dohi,
Judge. Affirmed with directions.



Gail
Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Chung L. Mar
and Seth P. McCutcheon, Deputy Attorneys General, for Plaintiff and
Respondent.



* * * * * *

Anthony Dashaun Brown appeals from a conviction for five
counts of resisting an executive officer.
He contends (1) this court should conduct an independent review of the
in camera Pitchesshref="#_ftn1" name="_ftnref1" title="">[1]
hearing; (2) the trial court erred in not instructing the jury with the
definition of “unlawful use of force or violence”; (3) the trial court erred
when it admitted a recorded 911 call; (4) the trial court erred in admitting
evidence that appellant was subject to a warrant at the time of his arrest; and
(5) the trial court miscalculated his presentence conduct credits under Penal
Code section 4019.href="#_ftn2" name="_ftnref2"
title="">[2] Respondent does not object to our independent
review of the Pitchess hearing but
disagrees with appellant’s other contentions.
Additionally, respondent contends that the court should amend the
abstract of judgment to correct certain fees and fines. We agree with respondent that the abstract of
judgment should be corrected, but in all other respects, we affirm.>

>PROCEDURAL HISTORY

Appellant was charged with assault upon a peace officer (§
245, subd. (c); count 1) and five counts of resisting an executive officer (§
69; counts 2-6). It was further alleged
that appellant had suffered a prior strike under the “Three Strikes” law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served a prior prison
term within the meaning of section 667.5, subdivision (b).

A jury found appellant not guilty of
assault upon a peace officer and the lesser included offense of simple assault
but guilty of the five counts of resisting an executive officer. Appellant admitted the prior conviction
allegations. The trial court sentenced
appellant to state prison for a total of seven years eight months. Appellant was arrested on March 10, 2011, and
sentenced on October 12, 2011. He was
accordingly credited with 325 days of custody, consisting of 217 days of actual
time and 108 days of conduct credit. He
filed a timely notice of appeal.

>STATEMENT OF FACTS

Early in the morning of March 10, 2011, Los Angeles sheriff’s
deputies responded to a family disturbance 911 call. The caller, Kevin Anderson, reported that his
nephew was damaging property in the house.
When deputies arrived, Anderson, appearing scared, reported that his
nephew was in the back bedroom. Deputy
Alex Smith questioned appellant and appellant admitted he was not authorized to
be in the house. The deputy suspected
appellant was under the influence of a controlled substance. When the deputies attempted to place
appellant under arrest, he ran out of the bedroom. The deputies struggled with
appellant and appellant kicked at Deputy Scott Woods’s hands and upper-body
area. Appellant also tried to bite
Deputy Smith on the left arm. Appellant
freed himself and ran out of the house.
Following another struggle at a nearby trailer with Deputies Wesley
Guthrie, R. Catalan, and J. Busch, the deputies were able to arrest
appellant after using a taser on him.

>DISCUSSION

1. The >Pitchess Hearing

Appellant filed a >Pitchess motion before trial requesting
discovery of personnel information relating to the five deputies involved in
the March 10 incident, Deputies Smith, Woods, Guthrie, Catalan, and Busch. The court found good cause to conduct an in
camera hearing of the personnel records of all five deputies on the issues of
dishonesty and use of force. The court
conducted the hearing and ordered disclosure of some discoverable materials to
defense counsel. Appellant now requests
that we conduct an independent review of the sealed Pitchess hearing to determine whether the court should have
disclosed additional discoverable material.

The personnel records of peace
officers are confidential and are subject to discovery only under limited circumstances. (§ 832.7.)
Following a defendant’s good cause showing setting forth the materiality
of these records to the pending litigation, the court must conduct an in camera
hearing to determine what information sought, if any, must be disclosed. (Evid. Code, § 1043, subd. (b)(3); >People v. Gaines (2009) 46 Cal.4th 172,
179.) A criminal defendant is entitled
to discovery of all relevant documents or information in the confidential
records of the peace officers, provided the information does not concern
officer conduct occurring more than five years before the incident, the results
of internal police investigations, or facts with no practical benefit to the
defense. (See People v. Gaines, supra,
at pp. 179, 182; see also Evid. Code, § 1045, subd. (b).) This information includes both evidence that
would be admissible at trial and evidence that may lead to admissible evidence
or evidence pertinent to the defense. (Richardson
v. Superior Court (2008) 43 Cal.4th 1040, 1048-1049; City of San Jose v.
Superior Court (1993) 5 Cal.4th 47, 53.)
A trial court is vested with broad discretion in ruling on a >Pitchess motion, and we review the trial
court’s determination regarding the discoverability of material in peace
officer personnel files for an abuse of discretion. (People
v. Mooc (2001) 26 Cal.4th 1216, 1228; People
v. Samayoa (1997) 15 Cal.4th 795, 827.)

We
are authorized to conduct an independent examination of the in camera >Pitchess proceedings to determine
whether the trial court wrongly withheld any relevant materials. (People
v. Mooc, supra, 26 Cal.4th at p. 1228.) We have reviewed the record of these
proceedings, including a sealed reporter’s transcript of the review of the
deputies’ personnel records. We conclude
the trial court properly evaluated the materials and its orders concerning the
disclosure of Pitchess materials were
correct.

2. Jury
Instructions Concerning Resisting an Executive Officer (§ 69)

Appellant contends that the
trial court erred when it did not instruct the jury with a definition for
“unlawful use of force or violence,” a necessary element of the crime of
resisting an executive officer (§ 69).
As a result, appellant contends, he was prejudiced. We disagree.

a.
Background

Section 69 “‘sets forth two
separate ways in which an offense can be committed. The first is attempting by threats or
violence to deter or prevent an officer from performing a duty imposed by law;
the second is resisting by force or violence an officer in the performance of
his or her duty.’”href="#_ftn3"
name="_ftnref3" title="">[3] (People
v. Lacefield (2007) 157 Cal.App.4th 249, 255, quoting In re Manuel G. (1997) 16 Cal.4th 805, 814.) Here, the prosecutor chose to prosecute
appellant under the second prong:
resisting an officer by force or violence in the performance of a duty. The trial court therefore instructed the jury
with CALCRIM No. 2652 that the People had to prove: “1. The defendant unlawfully used force or
violence to resist an executive officer;
[¶] 2. When the defendant acted,
the officer was performing his lawful duty;
[¶] AND [¶] 3.
When the defendant acted, he knew the executive officer was performing his
duty.”

The trial court also instructed the
jury with CALCRIM No. 2656href="#_ftn4" name="_ftnref4" title="">[4] on the lesser included
offense of resisting a peace officer (§ 148, subd. (a)). In this instruction, the court explained the
prosecution alleged that appellant resisted for purposes of this offense by
“remaining rigid” while deputies tried to handcuff him, attempting to flee, and
“bucking and turning while the deputies were trying to subdue him.” The jury also received a detailed
instruction, through CALCRIM No. 2670, on the lawful performance of a
peace officer’s duties. CALCRIM
No. 2670 included instructions on appellant’s right to use reasonable force
to defend himself in response to an officer’s use of unreasonable force.

Appellant contends that there was a
potential for juror confusion because the prosecutor urged the acts “described
in the instruction for the lesser offense of willful resistance without force
or violence (§ 148, subd. (a))” were the very acts that could support a
conviction for the greater offense of resistance by force or violence, except
the prosecutor additionally pointed to evidence that appellant had kicked
Deputy Woods to support a conviction on the greater offense. Moreover, appellant contends, the prosecutor
argued that appellant was guilty of the lesser offense only if the jury found he had not resisted and had not used force, but
had just delayed the deputies by standing, doing nothing, or not permitting
them to handcuff him. Appellant argues
that this all created the potential for juror confusion about the terms “force”
and “violence,” and the court therefore should have instructed the jury on the
specific definition of “unlawfully use[ing] force or violence” as it relates to
CALCRIM No. 2652 and section 69.

>b.
Analysis

As an initial matter,
appellant has forfeited this contention because he failed to preserve the issue
for appeal. When an instruction is a
correct statement of the law, the defendant’s failure to request a clarifying
instruction forfeits the claim of error on appeal. (People v. Marks (2003) 31 Cal.4th 197, 237.) Further, “‘[t]he trial court cannot reasonably be expected to attempt to
revise or improve accepted and correct jury instructions absent some request
from counsel.’” (People v. Kelly
(1992) 1 Cal.4th 495, 535.) The court’s
instructions were consistent with CALCRIM Nos. 2652 and 2656, standard
form jury instructions. The instructions
also closely tracked the language of the statutes. Appellant did not object at all to the
instructions as given, much less request a modification or further definition
of unlawful use of force or violence. He
contends instead that the trial court had a sua sponte duty to define unlawful
use of force or violence, thereby negating his obligation to have objected or
requested a modification. It is true
that a court has a sua sponte duty to define terms when they have a
technical meaning peculiar to the law. (People v. Howard (1988) 44 Cal.3d 375, 408.)
On the other hand, when the terms are commonly understood and not
used in a sense unique to the law, the court has no such duty. (Ibid.) Appellant has not cited any authority
demonstrating that CALCRIM No. 2652 uses “unlawfully used force or
violence” in a way that differs from their nonlegal meaning. We agree with respondent that these words
have no special meaning that required a sua sponte instruction. Appellant has forfeited his contention.

Even if appellant had not
forfeited his contention, we would hold the trial court did not err. “Questions relating to the validity
and impact of the instructions given to the jury are entitled to de novo
review. We review the instructions
independently because the underlying question is one of law and the application
of legal principles.” (People v.
Burch (2007) 148 Cal.App.4th 862, 870.)
As already
noted, the instructions were correct in law and standard. (See People v. Kelly, >supra, 1 Cal.4th at p. 535 [“[W]e find no
error. The standard instruction
correctly and adequately explained the applicable law to the jury, and the
court was not required to rewrite it sua sponte.”].) Appellant
contends there was error only because the prosecutor’s arguments created a
potential for confusion. But when the
trial court properly instructs the jury on the law, “we presume the jury
followed those instructions.” (People
v. Boyette (2002) 29 Cal.4th 381, 436.)
Indeed, the court
instructed the jurors that, to the extent they believed the attorneys’ comments
on the law conflicted with the court’s instructions, they had to follow the
court’s instructions. (Ibid.)
Appellant’s argument fails to persuade.

3.
Admissibility of the 911 Call

Appellant next challenges
the trial court’s decision to admit the recording of Anderson’s 911 call as a
spontaneous statement or utterance pursuant to Evidence Code section 1240. He argues that because Anderson was not under
the stress of excitement, the call did not qualify as a spontaneous statement
exception to the hearsay rule. He
further contends that the trial court’s decision to admit the 911 call
prejudiced him at trial. We disagree and
hold the court properly admitted the evidence.

>a.
Background

At the close of the
prosecution’s case-in-chief, the court played for the jury a recording of
Anderson’s 911 call, which was approximately four minutes in length. The call transpired as follows:

“OPERATOR: 911, what’s your emergency?

“OPERATOR
2: CHP with a transfer.

“OPERATOR: Yes.

“MR.
ANDERSON: Yeah, (inaudible).name="_GoBack">

“OPERATOR: I’m sorry?

“MR.
ANDERSON: (inaudible)

“OPERATOR: Ok, your [sic]
gonna have to speak up. I cannot hear
you at all.

“MR.
ANDERSON: I said the suspect is
(inaudible). He’s my nephew and he’s
back in my house again. (inaudible)

“OPERATOR: Ok, I, I can’t hear you at all. You said your nephew’s at your house?

“MR.
ANDERSON: Yeah, he already terrorized my
house already.

“OPERATOR: Ok, does he live there?

“MR.
ANDERSON: No.

“OPERATOR: Is he there now?

“MR.
ANDERSON: Yeah, I need someone to come
right away.

“OPERATOR: Ok, I need an address.

“MR.
ANDERSON: 2335 West Avenue J.

“OPERATOR: Is it a house or an apartment?

“MR.
ANDERSON: Apartment D.

“OPERATOR: What’s the name of the apartment complex?

“MR.
ANDERSON: The Regency.

“OPERATOR: And that’s 2335 West Avenue J?

“MR.
ANDERSON: 2335 West . . .

“OPERATOR: Ok, is that a yes or a no? 2335?

“MR.
ANDERSON: 2335 West Ave. J.

“OPERATOR: Ok, so that’s what I’m saying. 2335.

“MR.
ANDERSON: Yeah.

“OPERATOR: Correct?
West Ave. J, Apartment D as in David?

“MR.
ANDERSON: Yeah (inaudible).

“OPERATOR: How old is your nephew?

“MR.
ANDERSON: (inaudible) I cant [>sic] keep on talking (inaudible)

“OPERATOR: Ok, well, I’m not going to send deputies in
blind. I need to get all the information
first.

“MR.
ANDERSON: I say he’s like 28.

“OPERATOR: What’s your name?

“MR.
ANDERSON: Huh?

“OPERATOR: What’s your name?

“MR.
ANDERSON: My name is Kevin Anderson.

“OPERATOR: Anderson?

“MR.
ANDERSON: Ma’am, I keep on talking to
you. I already said what I got to say so
if you gonna keep elaborating on it, I’m just gonna hang up. (inaudible)

“OPERATOR: Well these are questions I have to get for
the deputies. These are necessary
questions. I’m gonna send deputies out
there but not until I have these questions answered.

“MR.
ANDERSON: Ma’am . . .

“OPERATOR: So if you hang up on me, then you’re telling
me you don’t want us out there.

“MR.
ANDERSON: Ma’am, he’s gonna get up right
now.

“OPERATOR: Do you want us to respond?

“MR.
ANDERSON: Ma’am I already told you, I
already told you and your phone should be monitored.

“OPERATOR: Yes it is.
Every word of this is being recorded.

“MR.
ANDERSON: (inaudible) If something happens to me, you heard,
everybody hear (inaudible)

“OPERATOR: Do you need us to respond?

“MR.
ANDERSON: I’ll say yes.

“OPERATOR: What is your phone number?

“MR.
ANDERSON: 310-801-8349.

“OPERATOR: Ok, what is he doing right now?

“MR.
ANDERSON: He’s knocking over s‑‑‑,
he’s talking s‑‑‑, (inaudible) . . .

“OPERATOR: He’s knocking stuff over in the house?

“MR.
ANDERSON: Yes. When the police come, tell them to knock on
the door. Don’t bust the door down. Tell them just knock on it, ok?

“OPERATOR: What’s your nephew’s name?

“MR.
ANDERSON: Anthony.

“OPERATOR: What’s he wearing?

“MR.
ANDERSON: He has some red on. He’s laying down now.

“OPERATOR: And you’re gonna answer the door when
deputies get there?

“MR.
ANDERSON: Yeah (inaudible).

“OPERATOR: What was your first name again? I can’t hear you.

“MR.
ANDERSON: Kevin. I’m (inaudible).

“OPERATOR: Your, your first name?

“MR.
ANDERSON: Ma’am, I’m tired of talking
(inaudible).

“OPERATOR: Ok, these are necessary questions Kevin, ok?

“MR.
ANDERSON: Ok, I said my name is
Kevin. Tell the deputies to knock on the
door, don’t bust . . .

“OPERATOR: Alright, I’ll get deputies over there.

“MR.
ANDERSON: (inaudible)

“OPERATOR: Ok, alright.
I’ll have deputies come over, ok?”


During the trial, the prosecutor
moved in limine to admit the 911 call as an excited utterance hearsay
exception, arguing that the transcript of the call indicated an ongoing
emergency when “a person who’s not supposed to be in the house is currently in
the house.” Moreover, the prosecutor
stated, there is “the fact that the person needs assistance because the person
who’s not supposed to be there is throwing things and breaking things
currently.” Defense counsel opposed the
motion, responding that “at the time of the call, the caller actually advised
that [appellant] was laying down asleep at the moment the caller was talking to
the operator,” implying that the caller was not still under the stress of
excitement. Defense counsel also
objected on the ground that the call’s probative value was substantially
outweighed by its prejudicial effect.href="#_ftn5" name="_ftnref5" title="">[5] The court granted the prosecutor’s motion.

>b.
Analysis

Evidence
Code section 1240 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶]
(a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and
[¶] (b) Was made spontaneously
while the declarant was under the stress of excitement caused by such
perception.” “‘The
foundation for this exception [to the hearsay rule] is that if the declarations
are made under the immediate influence of the occurrence to which they relate,
they are deemed sufficiently trustworthy to be presented to the jury. [Citation.]
[¶] The basis for this
circumstantial probability of trustworthiness is “that in the stress of nervous
excitement the reflective faculties may be stilled and the utterance may become
the unreflecting and sincere expression of one’s actual impressions and
belief.”’ [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306,
318.)

In
order for a hearsay statement to be admissible as a spontaneous declaration,
there must be evidence showing “‘(1) . . . some occurrence startling
enough to produce this nervous excitement and render the utterance spontaneous
and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent,
i.e., while the nervous excitement may be supposed still to dominate and the
reflective powers to be yet in abeyance; and (3) the utterance must relate to
the circumstance of the occurrence preceding it.’ [Citations.]”
(People v. Poggi, supra,
45 Cal.3d at p. 318.)

“The crucial element in
determining whether an out-of-court statement is admissible as a spontaneous
declaration is the mental state of the speaker.” (People
v. Gutierrez (2009) 45 Cal.4th 789, 811.)
“The nature of the utterance ‑‑ how long it was made after
the startling incident and whether the speaker blurted it out, for example ‑‑
may be important, but solely as an indicator of the mental state of the
declarant.” (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on other
grounds by People v. Waidla (2000) 22
Cal.4th 690, 724, fn. 6.) Whether
the requirements of the spontaneous statement exception are satisfied is
largely a question of fact. (People
v. Stanphill (2009) 170 Cal.App.4th 61, 73.) “We will uphold the trial court’s
determination if its resolution of factual questions is supported by
substantial evidence. [Citation.] We review for abuse of discretion the
ultimate decision whether to admit the evidence.” (Ibid.)

Here,
the trial court
found that the 911 call qualified as a spontaneous statement exception to the
hearsay rule because it was a call “involving relatively contemporaneous
events.” We agree. Anderson called 911
while his nephew, appellant, was still in Anderson’s house. The tape indicates that Anderson made the
call under the stress of excitement, and without time to reflect and
contemplate his words. Anderson noted
that as he was talking to the 911 operator, appellant was “knocking over s‑‑‑”
and “talking s‑‑‑.”
Anderson also stated that, “If something happens to me, you
heard . . . ,” indicating that he feared for his safety at
the time of the call. In sum, the circumstances
indicated that Anderson’s statements were made spontaneously, they related to
the incident as he perceived it, and they were made without time to contrive or
misrepresent appellant’s actions.href="#_ftn6" name="_ftnref6" title="">[6]

In
any event, we cannot say that the admission of the 911 call prejudiced
appellant under People v. Watson (1956)
46 Cal.2d 818, 836-837, the harmless error standard applicable to error in the
admission of hearsay. (>People v. Duarte (2000) 24 Cal.4th 603,
618-619.) Appellant contends that
Anderson’s statement that appellant was knocking over things was significant
enough to bias the jury against him and lead to a less favorable verdict. But the deputies’ detailed testimony about
appellant’s actions were far more negative and incriminating. Deputy Woods testified that appellant “was constantly
kicking at [his] hands” and upper body. Deputy
Smith said each time he attempted to put appellant’s hands behind his back,
appellant would struggle and turn such that Smith could not handcuff him. Smith repeatedly told appellant to stop
fighting. Appellant threw Smith off of
him and temporarily escaped. Once the
deputies found appellant in the trailer, Deputy Guthrie said appellant pushed
against Deputy Busch and then against Guthrie as they struggled to control
him. Appellant overpowered both Deputies
Busch and Guthrie. Deputy Catalan grabbed
appellant’s right arm but was not able to secure it due to appellant’s
struggling. Given the detailed testimony
about appellant’s actions toward the deputies, it is not reasonably probable
that the jury would have reached a more favorable verdict in the absence of the
911 call.

4.
Admissibility of Evidence That Appellant Was Subject to an Arrest
Warrant

Appellant contends that the
trial court abused its discretion in admitting evidence that appellant had a
warrant for his arrest at the time of the instant incident. Over appellant’s objection on grounds of
relevance and undue prejudice, the trial court allowed the prosecutor to
present evidence that appellant was subject to a warrant to show that he had a
motive to resist arrest. After the
ruling, defense counsel agreed to stipulate that there was a warrant for
appellant at the time of the incident in order to minimize the effect of the
evidence. The court gave a limiting
instruction to the jury as follows: “The
existence of a warrant is not evidence that anyone committed a crime or that
anyone is a particularly [sic] or
someone is inclined to commit crimes.
[¶] The only reason that you’re
allowed to consider that evidence is as it relates to a possible motive for the
crimes charged in the case.” Appellant
contends that the prejudicial effect of evidence of the arrest warrant
substantially outweighed its probative value.
We disagree.

A trial court may admit evidence
that a person committed a crime or other act “when relevant to prove some
fact . . . such as motive . . . other than his or
her disposition to commit such an act.”
(Evid. Code, § 1101, subd. (b); see also People v. Terry (1970) 2 Cal.3d 362, 396.) Evidence code section 352 allows a court to
exclude otherwise admissible evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” We review the trial court’s decision
to admit evidence of the arrest warrant for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349,
369.)

We conclude that evidence of
appellant’s arrest warrant was admissible because it was probative of his
motive for resisting arrest. (See, e.g.,
People v. Durham (1969) 70 Cal.2d
171, 189 [evidence of defendant’s parole status and criminal activities in
weeks leading up to charged murder probative of motive for killing of police
officer]; People v. Robillard (1960)
55 Cal.2d 88, 95, 100, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649
[evidence that defendant had committed prior uncharged crimes probative
of motive to kill officer who detained him on suspicion of driving a stolen
car, insofar as defendant wanted to avoid apprehension and long prison
term].) Furthermore, the prejudicial
effect of this evidence did not substantially outweigh its probative
value. “‘“Prejudice” as contemplated by
[Evidence Code] section 352 is not so sweeping as to include any evidence the
opponent finds inconvenient. . . . “‘The “prejudice” referred to in Evidence
Code section 352 applies to evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very little effect on
the issues. . . .[’”]
. . . [“‘T]he statute
uses the word in its etymological sense of “prejudging” a person or cause on
the basis of extraneous factors.
[Citation.]’ [Citation.]”’” (People v. Doolin (2009) 45 Cal.4th
390, 438-439, citations omitted.) The
evidence consisted of a one-sentence stipulation, read to the jury, that “there
was a warrant for [appellant] at the time of the charged incident.” There was no information about what sort of
charge the warrant involved. In
addition, as mentioned above, the trial court also gave the jury a limiting
instruction that the evidence should only be considered as to motive. The trial court could have reasonably
concluded that the bare evidence of an arrest warrant would not “so inflame the
emotions of the jurors that they would ‘“reward or punish one side because of
the jurors’ emotional reaction.”’
[Citation.]” (People v. Leon (2010) 181 Cal.App.4th 452, 462.)

5. Presentence
Conduct Credits

Appellant contends he is
entitled to an additional six days of conduct credits under the version of
section 4019 that went into effect while he was in presentence custody. We disagree.

Appellant was arrested on March 10,
2011, and sentenced on October 12, 2011.
On October 1, 2011, section 4019 was amended
pursuant to the Criminal Justice Realignment Act of 2011. The prior version of section 4019,
subdivision (f) provided: “It is the
intent of the Legislature that if all days are earned under this section, a
term of six days will be deemed to have been served for every four days spent
in actual custody.” The current, amended
section 4019, subdivision (f) provides:
“It is the intent of the Legislature that if all days are earned under
this section, a term of four days will be deemed to have been served for every
two days spent in actual custody.”

Although
the court sentenced appellant after section 4019 was amended, subdivision (h) of the statute
provides: “The changes to this section
enacted by the act that added this subdivision shall apply prospectively and
shall apply to prisoners who are confined to a county jail . . .
for a crime committed on or after
October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated at the rate
required by the prior law.” (Italics
added.) Appellant committed his crime
prior to October 1, 2011, and he was thus entitled to credits at the lower
rate of only two days for every four days spent in custody. Nevertheless, appellant contends that he
should accrue credits at the current enhanced rate under amended section 4019
for the time he spent in custody between October 1, 2011 (the effective
date), and his sentencing on October 12, 2011.

We agree with our colleagues
in People v. Ellis (2012) 207
Cal.App.4th 1546, 1550 (Ellis) and
adopt that court’s reasoning to reject appellant’s claim. As explained in Ellis, at page 1553, “the Legislature’s
clear intent was to have the enhanced rate apply only to those
defendants who committed their crimes on or after October 1, 2011. (See People v. Lara [(2012)] 54
Cal.4th [896,] 906, fn. 9.) The second
sentence [of section 4019, subdivision (h)] does not extend the enhanced rate
to any other group, but merely specifies the rate at which all others are to
earn conduct credits. So read, the
sentence is not meaningless, especially in light of the fact the
October 1, 2011, amendment to section 4019, although part of the so-called
realignment legislation, applies based on the date a defendant’s crime is
committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced.” (See also People v. Rajanayagam (2012) 211 Cal.App.4th 42,
52 [“As we explain above, [section 4019,] subdivision (h)’s first sentence
reflects the Legislature intended the enhanced conduct credit provision to
apply only to those defendants who committed their crimes on or after
October 1, 2011. Subdivision (h)’s
second sentence does not extend the enhanced conduct credit provision to any
other group, namely those defendants who committed offenses before
October 1, 2011, but are in local custody on or after October 1,
2011. Instead, subdivision (h)’s second
sentence attempts to clarify that those defendants who committed an offense
before October 1, 2011, are to earn credit under the prior law.”].)

Because
appellant was convicted of a crime committed before October 1, 2011, the
trial court properly sentenced him under former section 4019. Accordingly, his presentence custody award of
325 days, consisting of 217 days of actual credit and 108 days of conduct
credit, was not error.href="#_ftn7"
name="_ftnref7" title="">[7]

6. Fees and
Fines

Respondent contends that the
abstract of judgment should be amended to reflect the correct fees and
fines. Specifically, respondent asserts
that the trial court should have imposed a $200 court operations fee, rather
than the $150 amount actually imposed, as well as a $150 court facilities
fee. We agree.

Section 1465.8, subdivision
(a)(1) provides in pertinent part: “To
assist in funding court operations, an assessment of forty dollars ($40) shall
be imposed on every conviction for a criminal
offense . . . .” The
assessment should be imposed for each count on which a defendant was convicted. (People
v. Roa (2009) 171 Cal.App.4th 1175, 1181.)
As appellant was convicted of five counts, the court should have imposed
a total assessment of $200. However, the
court imposed an assessment of only $150 under section 1465.8. At any time, we may correct obvious legal
errors in sentencing that are correctable without reference to factual
findings. (People v. Smith (2001)
24 Cal.4th 849, 852-854.) Accordingly,
the abstract of judgment should be amended to reflect a court operations
assessment of $200 under section 1465.8.

Government
Code section 70373, subdivision (a)(1) provides: “To ensure and maintain adequate funding for
court facilities, an assessment shall be imposed on every conviction for a
criminal offense . . . .
The assessment shall be imposed in the amount of thirty dollars ($30)
for each misdemeanor or felony . . . .” The trial court did not impose a court
facilities fee. This fee should also be
imposed for each count on which a defendant was convicted. (People
v. Lopez (2010) 188 Cal.App.4th 474, 480.)
Accordingly, the abstract of judgment should be amended to also reflect
a court facilities assessment of $150 under Government Code section 70373.

>DISPOSITION

The trial court is directed to prepare an amended abstract of
judgment to reflect a $200 court operations fee under Penal Code section 1465.8
and a $150 court facilities fee under Government Code section 70373. The court shall forward a copy of the
amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.





FLIER,
J.

WE CONCUR:





BIGELOW, P. J.





RUBIN, J.