P. v. Goodson
Filed 8/8/13 P. v. Goodson 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY WAYNE GOODSON,
Defendant and Appellant.
C071877
(Super. Ct. No.
CRF094651)
A jury
found defendant Anthony Wayne Goodson guilty of
& Saf. Code, § 11379, subd. (a); count1), possessing methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 2), carrying a dirk or
dagger concealed on the person (former Pen. Code, § 12020, subd. (a)(4),
now § 21310; counts 3 & 4; unless otherwise stated, all statutory
references that follow are to the Penal Code), and misdemeanor
(§ 148, subd. (a)(1); count 5).
We note
that counts 3 and 4 involved carrying a dirk or dagger concealed on the
person. (Former § 12020, subd.
(a)(4).) However, the information and
verdict forms listed the count 3 offense as a violation of former section
12020, subdivision (a)(1), which does not apply to a dirk or dagger. Nevertheless, the jury was properly given a
single instruction that applied to both counts and correctly set forth the
elements of the dirk or dagger offense.
To eliminate confusion, we shall modify the judgment on counts 3 and 4
to reflect convictions of section 21310, the successor to former § 12020,
subdivision (a)(4).
The jury
found that defendant committed count 4 while released from custody. (§ 12022.1, subd. (b).) The trial court found that he had a prior
serious felony conviction (§ 667, subds. (b)-(i)) and had served two prior
prison terms (§ 667.5, subd. (b)).
Defendant’s request to strike the second-strike allegation was
granted. (People v. Superior Court
(Romero) (1996)
13 Cal.4th 497.) He was
sentenced to prison for seven years eight months and was awarded 844 days’
custody credit and 422 days’ conduct credit.
On appeal,
defendant contends (1) in both contacts with police, the officers had no valid
basis to detain him or to conduct a patdown search of his person, (2)
principles of equal protection entitle him to additional presentence conduct
credit, and (3) the evidence of his prior serious felony conviction was
insufficient. We affirm the judgment.
Discussion
I
Defendant
contends the evidence obtained in both contacts with police should have been
suppressed because neither officer had a valid basis to detain him or to
conduct a patsearch of his clothing. We
consider the incidents in turn.
A. General
Principles of Detention and Patsearches
“‘The Fourth Amendment protects against unreasonable searches and
seizures. [Citations.] “A detention is reasonable under the
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.†[Citation.]
Ordinary traffic stops are treated as investigatory detentions for which
the officer must be able to articulate specific facts justifying the suspicion
that a crime is being committed. [Citations.]
[¶] . . . [¶] Law
enforcement officers may “draw on their own experience and specialized training
to make inferences from and deductions about the cumulative information
available to them that ‘might well elude an untrained person.’ [Citations.]â€
[Citation.]’ [Citation.]†(People
v. Letner and Tobin (2010) 50 Cal.4th 99, 145-146 (
“Even in a general sense, the
reasonable suspicion standard of Terry v.
Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] is not a particularly demanding
one, but is, instead, ‘considerably less than proof of wrongdoing by a
preponderance of the evidence.’
[Citation.]†(
p. 146.) Moreover, “the
constitutional reasonableness of traffic stops [does not depend] on the actual
motivations of the individual officers involved.†(Whren
v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 98].)
A police officer may conduct a
limited, protective patsearch for weapons when he has “reason to believe that
he is dealing with an armed and dangerous individual, regardless of whether he
has probable cause to arrest the individual for a crime. The officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably prudent man in
the circumstances would be warranted in the belief that his safety or that of
others was in danger. [Citations.]†(Terry
v. Ohio, supra, 392 U.S. at
p. 27 [20 L.Ed.2d p. 909].)
“The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of
violence . . . .†(
146 [32 L.Ed.2d 612, 617].)
A patsearch is a minimal intrusion
upon an individual’s Fourth Amendment rights.
(People v. Castaneda (1995)
35 Cal.App.4th 1222, 1230.) We are
mindful that “[t]he judiciary should not lightly second-guess a police
officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh
heavily in the balance of competing Fourth Amendment considerations.†(People
v. Dickey (1994) 21 Cal.App.4th 952, 957.)
B. October
2, 2009 Incident
1
Facts from Suppression Hearing
Defendant
filed a motion to suppress evidence that was heard in conjunction with the
preliminary examination. The evidence
relevant to the motion was as follows.
On October
2, 2009, about 2:30 a.m., Davis Police Officer Michael Moore was on
patrol. He observed a black male
subject, later identified as defendant, on a bicycle that had no front lamp or
rear reflector. Defendant approached a
group of three women who were talking together on the street. He appeared to be conversing with them and
circled around them for approximately 30 seconds. He was wearing a tan leather jacket and blue
jeans. Both the defendant and the
females moved out of Officer Moore’s view.
Shortly
thereafter, Officer Moore was flagged down by the females he had seen
earlier. They reported that a black male
adult on a bicycle had harassed them.
They specified that the male had persistently asked them questions about
where they were going and whether he could “hook up†with them that
evening. When the females told the male
that they were not interested and that he should ride away and not talk to them
anymore, the male became verbally aggressive with them. He said something like “I’m a gangster, you
don’t know who you’re messing with.†The
women said they did not want to go home because they did not want the defendant
to see where they lived.
Officer
Moore advised dispatch that he would be on the lookout for a subject on a
bicycle regarding a harassment
complaint. He also contacted fellow
Davis Police Officer Justin Raymond and related his observations to him.
Officer
Raymond confirmed that he had heard Officer Moore’s radio report, which
included the subject’s description as well as his comments that he was a
“gangster†and that “you don’t know who you’re messing with.â€
Less than a
minute later, Officer Raymond saw defendant riding his bicycle. Officer Raymond noted that the bicycle did
not have a red rear reflector, a violation of the Vehicle Code. When defendant saw Officer Raymond behind
him, he stopped his bicycle. Officer
Raymond did not turn on his emergency lights.
The subject began yelling and swearing before Officer Raymond could get
out of his car. At that point, Officer
Raymond identified the subject as defendant, whom he knew from previous
contacts. In Officer Raymond’s
experience, defendant was uncooperative and aggressive, both physically and
verbally, toward the police.
As Officer
Raymond got out of his car, defendant threw his bicycle down on the
sidewalk. He paced and yelled as he put
his hands in and out of his pockets.
Officer Raymond told defendant that his bicycle did not have a rear
reflector and that Raymond wanted to talk to defendant about the women he had
been talking to. Defendant responded
with more profanity and said that he was not going to talk to Officer
Raymond.
At this
point, defendant’s hands were completely concealed inside the pockets of his
large leather jacket that were capable of concealing a weapon. In contrast, Officer Raymond was wearing a
short-sleeve shirt and was comfortable with the outside temperature. He asked defendant at least three times to
remove his hands from his jacket pockets.
Defendant replied by telling Officer Raymond “F you.â€
Officer
Raymond feared for his safety, based on his “numerous prior contacts with [defendant]. The fact that he was aggressive for no reason
towards me. His body language and
demeanor were way out of context for what was happening. I wasn’t able to reason with him, and he kept
concealing his hands and part of his clothing that were capable of concealing a
weapon.â€
Based on
his observations and concerns, Officer Raymond decided to conduct a patsearch
of defendant and told him so. Defendant,
with his hands still in his pockets, replied that Officer Raymond was not going
to pat him down for weapons and that defendant no longer was on parole. Officer Raymond approached defendant and
tried to turn him so that he was facing away from Raymond for a patsearch. Defendant “ripped†his arm out of his pocket
and away from Officer Raymond. As he did
this, defendant yelled, “I have a knife†or “I’ve got a knife.†Then he tried to put his hand back into his
jacket pocket.
Officer
Raymond struck defendant on the side of his face in an attempt to stop him from
retrieving a weapon. Officer Raymond
also advised defendant that he was under arrest. Defendant continued to flail and yell, but
Officer Raymond took him to the ground and eventually handcuffed him. A seven-inch-long knife was found in the
jacket pocket over which defendant and Officer Raymond had fought. The pocket had completely concealed the
knife.
Davis
Police Officer Alan Hatfield testified about the incident. He arrived where the arrest was made after
Officer Raymond and observed defendant yelling and pacing back and forth. Defendant was putting his hands in his
pockets, removing them, and then putting them back in the pockets.
When
Officer Raymond tried to patsearch defendant, Officer Hatfield assisted by
taking hold of defendant’s right arm.
Defendant responded by forcefully pulling his arm out of Officer
Hatfield’s grasp. As the officers
handcuffed defendant, he indicated that he had a knife in his pocket.
During a
booking search at Yolo County Jail, officers found a plastic vial containing
methamphetamine in his pants pocket.
Following
argument by the prosecution and the defense, the trial court denied defendant’s
suppression motion.
2. Analysis
Defendant
first claims Officer Raymond’s detention of him was not justified. But Officer Raymond had an objectively
reasonable basis to detain defendant: the lack of a rear reflector on his
bicycle. (Veh. Code, § 21201, subd.
(d)(2).) Officer Raymond testified that
he noticed the absence of a rear reflector and notified defendant of that fact
when he stopped him.
Defendant
counters that “the reasons for the contact were unrelated to†the lack of a
rear reflector. The point is
unavailing. Because Officer Raymond had
an objectively reasonable basis for the stop, any additional subjective motives
the officer may have had were irrelevant.
(Whren v. United States, supra, 517 U.S. at p. 813 [135 L.Ed.2d
at p. 98].) It is not necessary to
consider whether defendant’s contact with the three females provided an
independent justification for a detention.
Defendant
also contends Officer Raymond was not justified in conducting a patsearch for
weapons. In defendant’s view, there was
“no information available†to Officer Raymond that warranted his forceful
execution of a patsearch. The totality
of the circumstances refutes this claim.
Officer
Raymond contacted defendant at 2:30 a.m. after receiving reports that defendant
had “harassed†three females to such an extent they felt the need to inform the
police. During his contact with the
females, defendant had warned them that “I’m a gangster, you don’t know who
you’re messing with.†This warning was
relayed to Officer Raymond. It is common
knowledge that members of criminal street
gangs often carry guns and other weapons.
(In re H.M. (2008)
167 Cal.App.4th 136, 146.)
When
Officer Raymond first approached him, defendant violently overreacted to the
officer. Defendant threw his bicycle to
the ground and began yelling profanities at Officer Raymond before he could say
anything to defendant. A suspect’s
“hostile and aggressive†behavior toward an officer is a factor supporting a
patsearch. (People v. Lopez (2004) 119 Cal.App.4th 132, 137.)
Defendant
was wearing a bulky jacket that was inconsistent with the weather conditions and
was capable of concealing a weapon. (See
People v. Rios (2011)
193 Cal.App.4th 584, 589; In re
Frank V. (1991) 233 Cal.App.3d 1232, 1240.) Defendant repeatedly returned his hands to
his pockets and ignored Officer Raymond’s requests to keep his hands out of the
pockets. (Frank V., at p. 1241 [returning hands to pockets, after being
told to take them out, is an “additional factor†justifying a patsearch].)
Defendant
argues that his “refusal to consent to a search cannot itself form the basis
for a reasonable suspicion he is armed.â€
But the foregoing actions went far beyond a mere refusal of
consent. Defendant’s hostile, aggressive
and noncompliant conduct properly led Officer Raymond to suspect that he was
armed. (People v. Lopez, supra, 119 Cal.App.4th at p. 137.) Defendant’s hostile and aggressive conduct
distinguishes the present case from In re
H.H. (2009) 174 Cal.App.4th 653, on which he relies, in which the
minor merely said “I’m not on probation†and refused to consent to a
search. (Id. at p. 656.)
Defendant’s conduct also distinguished this case from
952, which held a patsearch could not be justified by the facts the defendant (1) had no identification, (2) refused to
allow the deputy to search the vehicle, (3) was nervous and sweating, or (4)
possessed baking powder in a film canister.
(Id. at p. 956.)
Alternatively,
defendant’s refusal to comply with Officer Raymond’s directives to keep his
hands visible and out of his pockets constituted willful resistance, delay, or
obstruction of the officer’s discharge of his duties as a peace officer. (§ 148, subd. (a)(1).) Based on his conduct that evening, defendant
was charged with and convicted of this offense.
Because the violation occurred prior to the patsearch, defendant was
subject to a search incident to arrest at the time of the patsearch. (Virginia
v. Moore (2008) 553 U.S. 164, 176-177 [170 L.Ed.2d 559, 571].) Defendant’s suppression motion was properly
denied.
C.
May 29, 2010 Incident
1
Facts from Suppression Hearing
Defendant
filed a motion to suppress evidence that was heard in conjunction with the
preliminary examination. The evidence
relevant to the motion was as follows.
On May 29,
2010, about 3:10 a.m., Davis Police Officer Ryan Bellamy was on patrol. He observed defendant riding his bicycle
without a required bicycle light.
Defendant was wearing baggy pants and a baggy jacket or sweatshirt. Officer Bellamy initiated a traffic
stop.
Officer
Bellamy had prior contacts with defendant and had advised him on several
occasions to get a bicycle light.
Officer Bellamy also knew defendant to be a heavy drug user. In addition, Officer Bellamy was aware of
defendant’s previous altercation, a few months earlier, with Officer Raymond in
which defendant was arrested and found in possession of a knife. Moreover, Officer Bellamy had received an
e-mail from his sergeant stating that a confidential source had reported that
defendant had been carrying a semi-automatic pistol.
Based on the
circumstances, and his knowledge of defendant, Officer Bellamy feared for his
safety and wanted to conduct a patsearch of defendant for weapons. When Officer Bellamy indicated that he would
patsearch defendant before writing the traffic citation, defendant said, “you
can’t search me.†When Officer Bellamy
explained that he was not going to do a full search and was just going to
patdown defendant for weapons, defendant again said “no.â€
Officer
Bellamy grabbed defendant’s arm and asked him if he possessed anything he
should not have. Defendant replied that
he had a pocket knife in his back pocket.
Officer Bellamy located a fixed blade knife completely concealed in
defendant’s right rear pant pocket.
Following
argument by the parties, the trial court denied the suppression motion. The court explained: “At 3 o’clock in the morning, somebody you’ve
stopped half a dozen times that you know as a drug user and has been combative
with the police in the past, I think he has a right to at least pat him down.†The court concluded, “given the totality of
the circumstances even leaving out the [tip regarding a firearm], a good
officer would conduct a patdown search.â€
2. Analysis
As with the
October 9, 2009 incident, Officer Bellamy had an objectively reasonable basis
to stop defendant--the lack of a light on his bicycle. This violation of the Vehicle Code gave the
officer a lawful basis to stop defendant.
(Whren v. United States, supra, 517 U.S. at p. 813.)
In
addition, Officer Bellamy had sufficient cause to suspect that defendant may be
armed. Most importantly, Officer Bellamy
had knowledge that a few months previous, under very similar circumstances,
defendant had been found carrying a concealed, fixed-blade knife. Officer Bellamy also knew that the previous
incident had involved a physical altercation between defendant and the
police. Awareness that defendant had
been armed and combative in an almost identical situation is a strong factor
supporting a reasonable suspicion that defendant was again armed and may be
combative. “ ‘[A]wareness that the suspect was armed on a
previous occasion’ †is a legitimate factor supporting a patsearch. (People
v. Osborne (2009) 175 Cal.App.4th 1052, 1061.)
Officer
Bellamy’s decision to conduct a patsearch was further supported by his
awareness that defendant was a heavy user of narcotics. (Cf. People
v. Huerta (1990) 218 Cal.App.3d 744, 750 [it was reasonable to believe
a person entering a residence of illicit drug activity might be armed].) The decision was also supported by
defendant’s wearing of baggy clothing that could permit easy concealment of a
weapon. (People v. Collier (2008) 166 Cal.App.4th 1374, 1377, fn.
1 [“the wearing of baggy clothing, coupled with other suspicious circumstances
. . . furnishes the requisite facts to support a patdown for
weaponsâ€].)
In denying the suppression motion,
the trial court does not appear to have relied on the anonymous tip regarding
the firearm. Rather, the court appears
to have relied on the totality of circumstances other than the tip. Because those circumstances amply support
denial of suppression, we have no occasion to analyze the tip for the first
time on appeal.
II
Defendant
contends principles of equal protection entitle him to additional conduct
credit for his incarceration from October 1, 2011, until his sentencing on
August 21, 2012.
In October 2009, when it enacted the former
version of section 4019 (Sen. Bill No. 18) that was at issue in People
v. Brown (2012) 54 Cal.4th 314 (Brown), “the Legislature
did not expressly declare whether former section 4019 was to operate
prospectively or retroactively.†(Brown,
at p. 320; see Stats. 2009, 3d Ex. Sess., 2009-2010, ch. 28,
§ 50.) Particularly relevant for
present purposes, the Legislature never purported to bar the Senate Bill No. 18
version of section 4019 from applying to crimes that occurred prior to
its operative date. Thus, persons who
committed crimes prior to the operative date of Senate Bill No. 18 but served
presentence custody both prior to and following that effective date earned
“bifurcated†credit at two different rates.
In concluding the statute applied prospectively only, the Brown
court noted: “To apply former section 4019 prospectively necessarily means that
prisoners whose custody overlapped the statute’s operative date (Jan. 25, 2010)
earned credit at two different rates.†(Brown,
at p. 322.)
In contrast, when it enacted the
present version of section 4019 as part of realignment, the Legislature
expressly barred the statute from applying to crimes committed prior to its
operative date, October 1, 2011.
(§ 4019, subd. (h).) Because
the present credit scheme, by its terms, does not give enhanced credit for
crimes committed prior to October 1, 2011, the scheme does not allow prisoners
whose custody overlapped the statute’s operative date to earn credit at two
different rates.
Rather, defendant’s entitlement to
credit is governed by section 4019, subdivision (h), which states in relevant
part: “Any days earned by a prisoner
prior to October 1, 2011, shall be calculated at the rate required by the prior
law.†Because both of defendant’s crimes
predated the September 28, 2010, enactment of Senate Bill No. 76 (Stats. 2010,
ch. 426, § 2), the relevant “prior law†is the Senate Bill No. 18 version that
was considered in Brown. (See § 4019, subd. (g) [applying the
Sen. Bill No. 76 formula to crimes “committed on or after†Sept. 28, 2010].)
Because defendant has a prior
serious felony conviction (see part III, post),
Senate Bill No. 18 did not entitle him to additional conduct credit. (Brown,
supra, 54 Cal.4th at p. 318, fn. 5.) The trial court struck the allegation that
the prior conviction constitutes a “strike,†but this does not affect
defendant’s entitlement to presentence conduct credit under section 4019.
Defendant’s claim that he is
entitled to credit at two different rates, because a different bifurcated
credit scheme had been approved in Brown, ignores the significant
differences in the two versions of section 4019.
Defendant nevertheless contends he
is entitled to bifurcated credit based on People v. Olague (2012)
205 Cal.App.4th 1126, which considered the language of section 4019,
subdivision (h). However, the Supreme
Court granted review in Olague and then dismissed review and remanded
the matter to the Sixth Appellate District in light of Brown. (Olague, supra,
205 Cal.App.4th 1126, review dism. Mar. 20, 2013, S203298.) As defendant acknowledges, the court in People
v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis) examined the same
language considered in Olague and concluded: “In our view, 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. [Citation.]
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.†(Ellis, at p. 1553.) We agree with Ellis.
We thus conclude, as a matter of
statutory construction, that defendant is not entitled to additional
“bifurcated†conduct credit under the present version of section 4019.
After determining that principles of
statutory construction and legislative intent required the Senate Bill No. 18
version of section 4019 to be applied prospectively only, the court in Brown
concluded such application did not violate principles of equal protection. (Brown, supra, 54 Cal.4th
at pp. 322-323, 328-330.) In People
v. Lara (2012) 54 Cal.4th 896, the court more recently concluded the
Legislature did not violate equal protection by making its 2011 amendment of
section 4019 expressly prospective. (Lara, at p. 906, fn. 9;
§ 4019, subd. (h).)
Defendant acknowledges that, under
where a prisoner whose entire presentence custody occurred prior to
October 1, 2011, earns a lesser rate of conduct credit than a prisoner whose entire
presentence custody occurred after that date.
But he claims equal protection is violated where, as here,
prisoners in presentence custody after October 1, 2011, earn different
rates of conduct credit depending on whether their offense occurred
prior to that date. We disagree.
“ ‘The obvious purpose of the new
section [4019] . . . is to affect the behavior of inmates by
providing them with incentives to engage in productive work and maintain good
conduct while they are in prison.’
[Citation.] ‘[T]his incentive
purpose has no meaning if an inmate is unaware of it.’ †(Brown, supra, 54 Cal.4th
at p. 329, quoting In re Strick (1983) 148 Cal.App.3d
906, 913.)
As we have seen, the present version
of section 4019 does not, by its terms, give enhanced credit for crimes
committed prior to October 1, 2011. Nor
did decisional authority extend the statute’s reach beyond its textual bounds
before defendant was sentenced on August 21, 2012. Thus, having committed his crime prior to
October 1, 2011, defendant could not have been aware, or even reasonably suspected, based on anything more than
speculation, he would be entitled to enhanced credit during any portion of his presentence
incarceration, even the part occurring after October 1, 2011. Section 4019 could not have encouraged
defendant, who was unaware of any such incentive, to engage in productive work
or maintain good conduct. (Brown,
supra, 54 Cal.4th at p. 329.)
This is so even though the statute gave such an incentive to other
simultaneously incarcerated inmates who committed their crimes after
October 1, 2011.
Following Brown, we conclude
the “important correctional purposes of a statute authorizing incentives for
good behavior [citation] are not served by rewarding prisoners who
. . . could not have modified their behavior in response.†(Brown, supra, 54 Cal.4th
at pp. 328-329.) “That prisoners
who [commit crimes] before and after [present] section 4019 took effect
are not similarly situated necessarily follows.†(Brown, at p. 329; see Ellis,
supra, 207 Cal.App.4th at pp. 1551-1552.) Because the groups are not similarly
situated, it is not necessary to consider defendant’s arguments that the proper
standard of review is strict scrutiny and that there is no compelling state
interest, or rational basis, for the disparity in treatment. Defendant’s equal protection claim has no
merit.
III
Conviction
Defendant
contends the evidence was insufficient to support the true finding on the
allegation of a prior serious felony conviction. The People respond that the contention is
moot because the trial court struck the allegation at sentencing. We consider the issue because it remains
relevant to defendant’s entitlement to presentence conduct credit. (See part II, ante.)
Defendant
admitted during trial that he had been convicted of robbery in 1982. The admission is sufficient evidence, by
itself, to sustain the trial court’s finding.
(See People v. Watts (2005)
131 Cal.App.4th 589, 594-595 [“generally an admission of a prior
conviction allegation admits all elements of the prior conviction and all
elements of offenses necessarily included in the prior conviction offense, just
as a plea of guilty admits every element of a charged offenseâ€) In California, all robberies are both serious
and violent felonies. (§§ 667.5,
subd. (c)(9), 1192.7, subd. (c)(19).) Defendant’s
admission to a prior robbery conviction provided sufficient evidence that he
had the prior conviction.
It is not
necessary to consider defendant’s contention that evidence in addition to his
admission, specifically People’s exhibit 7 containing information from the
Division of Juvenile Justice, is insufficient because it was not a part of the
“record of conviction†within the meaning of People v. Guerrero (1988) 44 Cal.3d 343. Defendant was ineligible for presentence
conduct credit at the increased rate formerly provided by Senate Bill No.
18. (Brown,
supra, 54 Cal.4th at p. 318, fn. 5.)
Disposition
The
judgment is modified to reflect convictions on counts 3 and 4 of violation of
section 21310. As so modified, the
judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment and to forward a certified
copy to the Department of Corrections and Rehabilitation.
HULL ,
J.
We concur:
BLEASE , Acting P. J.
BUTZ ,
J.
