P. v. >Guinea>





















Filed 4/26/13 P. v. Guinea CA2/7









NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN




>

THE PEOPLE, Plaintiff and Respondent, v. ALEXY GUINEA, Defendant and Appellant.

B231518 (Los Angeles County Super. Ct. No. PA065143) ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT

THE COURT:

It is
ordered that the opinion filed herein on March 27, 2013, be modified as follows:

The
paragraph commencing at the bottom of page 8 with “Defendant additionally
contends” and ending on page 9 with footnote five is deleted and the following
is inserted in its place:

Defendant additionally
contends the two convictions cannot serve as predicate offenses because they
occurred after the commission of the instant offense. We disagree.

Nothing in section
186.22, subdivision (b), requires that the so-called “predicate” offenses
actually predate the charged offense.
Subdivision (e) defines a “‘pattern of criminal street gang activity’”
as “the commission of . . . two or more of the following offenses, provided
at least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years after a
prior offense; and the offenses were committed on separate occasions, or by two
or more persons.” The only temporal
requirement is that the first and last of these offenses have been committed no
more than three years apart.

In People v. Loeun, supra,
17 Cal.4th 1, the court discussed the requirement that the offenses have been
“committed on separate occasions, or by two or more persons.” It noted that “[t]he Legislature’s use of the
disjunctive ‘or’ in the language just quoted indicates an intent to designate
alternative ways of satisfying the statutory requirements. [Citations.]
. . . Therefore, when the prosecution chooses to
establish the requisite ‘pattern’ by evidence of ‘two or more’ predicate
offenses committed on a single occasion by ‘two or more persons,’ it can, as
here, rely on evidence of the defendant’s commission of the charged offense and
the contemporaneous commission of a second predicate offense by a fellow gang
member.” (Id. at pp. 9-10.)

In other words, there is
no requirement that the offenses have been committed prior to the charged
offenses. The court in >Loeun rejected the defendant’s claim
that there have been “at least one prior
offense committed on a separate occasion” so that “a defendant could
. . . ‘know’ that commission of the current offense would provide the
second of the ‘two or more’ predicate offenses necessary to establish a
‘pattern of criminal gang activity.’” (>People v. Loeun, supra, 17 Cal.4th at p. 10.)
It also rejected his claim that the “constitutional principles of
freedom of association and due process” required “that the prosecution must
prove one predicate offense predating the crime charged.” (Id.
at p. 11.)

Additionally, the court
addressed subdivision (f)’s definition of a “criminal street gang,” as a group
“whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” “The
Legislature’s use of the present tense ‘engage in’ indicates its intent that
instances of current criminal conduct can satisfy the statutory requirement for
a ‘pattern of criminal gang activity.’
‘[The legislative] use of a verb tense is significant in construing
statutes.’ [Citations.] Therefore, the prosecution can establish the
requisite ‘pattern’ exclusively through evidence of crimes committed
contemporaneously with the charged incident.”
(People v. Loeun, >supra, 17 Cal.4th at pp. 10-11.)

Since
there was no requirement that the predicate offenses have predated the instant
offense, Officer Bocanegra’s testimony was sufficient to establish the two
predicate offenses necessary to prove a pattern of criminal gang activity.

Defendant’s
petition for rehearing is denied. There
is no change in the judgment.











___________________
___________________ ___________________

PERLUSS, P. J.
WOODS, J. JACKSON, J.

Filed
3/27/13 P. v. Guinea
CA2/7 (unmodified version)

>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
SEVEN




>

THE PEOPLE, Plaintiff and Respondent, v. ALEXY GUINEA, Defendant and Appellant.

B231518 (Los Angeles County Super. Ct. No. PA065143)

APPEAL from
a judgment of the Superior Court
of Los Angeles County,
Cynthia L. Ulfig, Judge. Affirmed with
directions.

Tamara
Zivot, 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, Senior Assistant Attorney General, Victoria B. Wilson and Kim
Aarons, Deputy Attorneys General, for Plaintiff and Respondent.



____________________



>INTRODUCTION



Defendant
Alexy Guinea
appeals from a judgment of conviction entered after a jury found him guilty of
assault by means likely to produce great bodily injury (Pen. Code, § 245,
subd. (a)(1))href="#_ftn1" name="_ftnref1"
title="">^[1] and found true the allegations he personally
inflicted great bodily injury on the victim (id., § 12022.7, subd. (a)), and the crime was committed for
the benefit of a criminal street gang (id.,
§ 186.22, subd. (b)(1)(C)). The
trial court found true the allegations defendant suffered a prior serious
felony conviction (id., §§ 667,
subds. (a), (b)-(i), 1170.12), for which he served a prior prison term (>id., § 667.5, subd. (b)). The court imposed a second strike sentence of
eight years, plus an additional 10 years for the gang and serious felony
enhancements, for a total of 18 years in state prison.

On appeal,
defendant raises numerous challenges to the gang finding and enhancement. He also claims other trial and sentencing
errors. We agree that the trial court
imposed an incorrect sentence for the gang enhancement and the matter must be
remanded for resentencing on that enhancement.
In all other respects we affirm the judgment.



FACTS



A. The
Attack

On July 28, 2009, Quincy Lucus (Lucus)
and William Stenhouse (Stenhouse), young Black men, went to Lowe’s in
Pacoima. As they walked through the
parking lot to the store, they noticed a group of about seven Hispanic men in
the parking lot, looking at them in a menacing way. When they were in the store, two Hispanic
men, defendant and another man, approached them. The other man began sizing them up and making
comments such as “what’s up,” “what you looking at” and “you out of bounds.”

A fight
ensued. Although the witnesses’ memories
had dimmed since the incident and preliminary hearing, resulting in
discrepancies in their testimony between the hearing and trial, Lucus and
Stenhouse testified that defendant threw a punch at Lucus. Then he and defendant started fighting. There were some punches thrown, but mostly
they were wrestling with one another.
Stenhouse and the other man were pushing one another. After about a minute, defendant and the other
man ran outside.

At some
point, someone said that the police were coming. Lucus and Stenhouse headed for the door. As they got there, they heard someone say
something about a gun. They saw a group
of five or six Hispanic men approaching them.
Stenhouse saw one of the men lift his shirt to reveal a shiny object that
appeared to be a gun. Lucus and
Stenhouse ran back into the store. Part
of the group surrounded Lucus, while two of the men chased Stenhouse who ran in
another direction.

Defendant
and Nathan Lawrence (Lawrence)href="#_ftn2" name="_ftnref2" title="">^[2] were two of the men who surrounded Lucus. Lawrence
rushed toward Lucus and punched him in the face. Lucus stumbled backwards. He lunged forward, trying to get to Lawrence,
when another man hit him on the side of his head, causing him to fall to the
ground. He hit his knee, dislocating his
kneecap. The group, including defendant,
began hitting and kicking Lucus on his side and back and a couple of times in
his face. Due to the injury to his knee,
Lucus was unable to get up.

Stenhouse
grabbed a pole and ran to help Lucus, who he saw on the ground being hit and
kicked. Although at the preliminary
hearing he testified that he saw defendant hitting Lucus, at trial he did not
remember that but testified that he saw defendant going through Lucus’
pockets. Stenhouse tried to hit Lucus’
attackers with the pole, and they ran toward the exit.

As the men
ran, one of them asked Stenhouse whether he was from Inglewood,
and Stenhouse said no. Stenhouse asked
another where they were from, and the man said “quote, crazy, something crazy,
something I had never heard of.” As the
men left the store, one said to Stenhouse, “[O]ne of you mayates broke my
homeboy’s jaw.”href="#_ftn3" name="_ftnref3"
title="">^[3]

Lucus
discovered that his wallet and cell phone were missing. After the police arrived, they had Stenhouse
call Lucus’ phone. When a man answered,
Stenhouse asked if it was Lucus’ phone.
The man said that they beat up Lucus and took his phone, and if he
wanted the phone he could come get it.
The man on the phone “said should we go meet these guys, Sharkey?”

Lucus was
taken to the hospital, where he had emergency surgery on his knee. He was unable to walk for six months. After physical therapy, he was able to walk
with a cane but could not run or sit for long periods of time. In addition, his jaw was sore for more than a
month after the attack.

Both Lucus
and Stenhouse were former gang members.
Lucus had been a member of the Crips until 1996 or 1997, and Stenhouse
had been a member of the Piru gang, part of the Bloods gang. Lucus testified that he had never previously
encountered defendant or Lawrence, and he did not know why the two attacked
him.

Julia Manzano
(Manzano), the Lowe’s loss prevention manager, saw defendant and the other men
chasing after Lucus and Stenhouse over the store’s video surveillance
system. She went to where the men were
attacking Lucus and saw about three of the men, including defendant, hitting
and kicking Lucus.href="#_ftn4" name="_ftnref4"
title="">^[4] The attackers were yelling obscenities and,
“Where are you from?” Manzano called
911.

Lowe’s
employee Jonathan Madrigal saw the group of Hispanic men running out of the
store after the attack. He identified
defendant as one of the group.



B. Expert
Testimony

Los Angeles
Police Officer Oscar Bocanegra worked for the gang unit for the west valley
area. He testified that the West Valley
Crazies started as a “tagging crew.” By
2009, it had developed into a criminal street gang with about 45 members
documented by law enforcement records.
The gang was affiliated with the Mexican Mafia prison gang, which
increased its status among local gangs.

Officer
Bocanegra noted that the Lowe’s in Pacoima was not in West Valley Crazies
territory. However, he was aware of at
least one other incident in which West Valley Crazies had gone after Black men.

Officer
Bocanegra testified that the primary activities of the West Valley Crazies were
attempted murders, robberies, narcotics sales, automobile theft and assault
related offenses. He documented two
cases in which members of the West Valley Crazies were convicted of possession
of a loaded firearm and possession of a firearm by a felon. Gang members use firearms in the commission of
crimes and carry the weapons to increase their reputation within the gang. Possession of firearms benefits the gang
because the firearms are used in gang crimes, as well as for protection against
rival gangs. The officer also noted that
the significance of a gang member asking where someone was from was that it was
a direct challenge to that person.

Officer
Bocanegra opined that defendant was a member of the West Valley Crazies based
on his prior contact with defendant, defendant’s tattoos indicating gang
membership, and information from other police officers and police records. Defendant had been stopped by the police and
identified himself as a Crazies gang member.
He had “West Valley Crazies” tattooed on his right forearm and “187”—the
Penal Code section for murder—tattooed on his right hand. Defendant’s gang moniker was “Shark” or
“Sharkey.” The officer believed that
defendant, one of the older members of the West Valley Crazies, was a
shot-caller, someone who gave orders to younger gang members. Officer Bocanegra also identified Lawrence
as a member of the West Valley Crazies.

The officer
explained that if one gang member is disrespected or challenged or gets into a
physical fight, his fellow gang members have the obligation to assist him. Given a hypothetical situation in which a
gang member went into a store and started picking on someone, did not like the
way the altercation went and went back outside to his fellow gang members and
told them what happened, it would be expected that his fellow gang members
would join in the fight. To refuse would
be to lose respect of one’s fellow gang members and risk violent repercussions.

Officer
Bocanegra opined that the instant crime “does benefit the West Valley Crazies
gang due to the fact that it wasn’t just done by one single individual; it was
a collective group, . . . conducted in a very public place
amongst two individuals. There was a
beat-down or an assault that was conducted, property was taken.” The assailants identified their gang. “By that happening, these individuals who
were assaulted, people talk. They are
going to tell his friends what happened.
They are going to tell them that they got jumped by some gang members
from the Crazies, and that’s going to rouse an atmosphere of fear because
people are going to speak about it amongst themselves, and it’s going to
spread . . . .”



>DISCUSSION



A. Sufficiency of the Evidence to Support the >Criminal
Street> Gang Enhancement

In
assessing the sufficiency of the evidence to support a criminal street gang
enhancement, “we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] ‘A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.’
[Citation.]” (>People v. Albillar (2010) 51 Cal.4th 47,
60.)



>1.
Pattern of Criminal Gang Activity

Under Penal
Code section 186.22 (section 186.22), subdivision (b)(1), a criminal street
gang enhancement applies to a “person who is convicted of a felony committed
for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” A
“criminal street gang” is an organization which has as one of its primary
activities the commission of specified criminal acts, and whose members have
engaged in a pattern of criminal gang activity.
(Id.,
subd. (f).) The commission of two or
more of the predicate criminal acts by gang members constitutes a pattern of
criminal gang activity. (>Id.,
subd. (e); People v. Loeun
(1997) 17 Cal.4th 1, 9.)

Defendant
first contends the evidence is insufficient to prove a pattern of gang
activity, in that Officer Bocanegra had no personal knowledge of the two
incidents about which he testified, and his testimony failed to establish the
two incidents were part of a pattern of criminal gang activity rather than
isolated incidents. We disagree.

Defendant
first cites cases dealing with proof of conspiracy or criminal enterprise. These cases are inapplicable, as section
186.22 sets forth the elements to be proved in order to establish the existence
of a criminal street gang and a pattern of criminal gang activity. It specifies that a “‘pattern of criminal
gang activity’ means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more of the following offenses, . . . and the offenses
were committed on separate occasions, or by two or more persons.” The specified offenses include prohibited
possession of a firearm and carrying a loaded weapon. (Id., subd. (e)(31) & (33).) Officer Bocanegra testified that two members
of the West Valley Crazies were convicted of these offenses. This evidence was sufficient to support a
finding of a pattern of criminal gang activity under subdivision (e) of section
186.22. (People v. Loeun, supra,
17 Cal.4th at p. 9.)

>In re Nathaniel C. (1991) 228 Cal.App.3d
990, on which defendant relies, does not hold to the contrary. Nathaniel
C. did not hold that proof of two predicate offenses alone was insufficient
to prove a pattern of criminal gang activity.
It simply involved insufficient proof of one of the two predicate
offenses. (Id. at p. 1003.)

Defendant
also challenges Officer Bocanegra’s testimony as to the two predicate offenses
as incompetent hearsay. Defendant failed
to object to the testimony on this ground below, forfeiting his challenge on
appeal. (Evid. Code, § 353; >People v. Seaton (2001) 26 Cal.4th 598,
642-643; People v. >Pinholster (1992) 1 Cal.4th 865, 935,
disapproved on another ground in People
v. Williams (2010) 49 Cal.4th 405, 459.)

In any
event, a gang expert “may give opinion testimony that is based upon
hearsay . . . .
[Citations.] Such opinions may
also be based upon the expert’s personal investigation of past crimes by gang
members and information about gangs learned from the expert’s colleagues or
from other law enforcement agencies.
[Citations.]” (>People v. Vy (2004) 122 Cal.App.4th
1209, 1223, fn. 9.) The expert may rely
on inadmissible hearsay so long as it is of a type reasonably relied upon by
experts. (People v. Gardeley (1996) 14 Cal.4th 605, 618-619.)

This case
is distinguishable from Nathaniel C.,
in that here the officer relied on conviction records. In Nathaniel
C., the officer “offered only nonspecific hearsay of a suspected shooting” by a gang member, based on what he learned from
another law enforcement agency regarding what “they believed about the shooting.”
(In re Nathaniel C., >supra, 228 Cal.App.3d at p. 1003,
italics added.) This case does not
involve “[s]uch vague, secondhand testimony.”
(Ibid.)

Defendant
additionally contends the two convictions cannot serve as predicate offenses
because they occurred after the commission of the instant offense. However, Officer Bocanegra testified as to
convictions occurring after the date of the instant offense. He did not testify as to the dates of the
predicate offenses, but the conviction records were introduced into
evidence. Inasmuch as one conviction
occurred just a month after the instant offense, it is reasonably inferable
that the predicate offense did predate the instant offense. “[T]he statutory requirement is met
. . . if there has been at least one prior offense committed on a separate occasion.” (People
v. Loeun, supra, 17 Cal.4th at p.
10.)href="#_ftn5" name="_ftnref5" title="">^[5]



>2.
Primary Activities

Defendant
asserts that Officer Bocanegra’s testimony as to the primary activities of the
West Valley Crazies, without any details as to the specifics of these
activities or how the officer knew about them, was insufficient to support a
finding that the West Valley Crazies were a criminal street gang. Again, we disagree.

Officer
Bocanegra testified that he had numerous contacts with members of the West
Valley Crazies and was familiar with the gang.
He also had spoken to other police officers who were familiar with the
gang. He testified as to the gang’s territory,
the number of members, its history, identifying symbols, and association with a
prison gang. When asked what the gang’s
primary activities are, he testified without objection: “The primary activity’s going to be criminal,
okay. They range from attempt murder,
robberies, attempt robberies, narcotics sales, [grand theft auto].”

Defendant
relies on In re Alexander L. (2007)
149 Cal.App.4th 605 in support of his claim that Officer Bocanegra’s testimony
was insufficient to establish that the West Valley Crazies has as one of its
primary activities the commission of specified criminal acts. (§ 186.22, subd. (f).) In Alexander
L., the gang expert, when asked about the gang’s primary activities,
testified, “‘I know they’ve committed quite a few assaults with a deadly
weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto
thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (In re
Alexander L., supra, at p.
611.) The court noted that “[n]o
specifics were elicited as to the circumstances of these crimes, or where, when
or how [the expert] had obtained the information. He did not directly testify that criminal
activities constituted [the gang’s] primary activities.” (Id.
at pp. 611-612.)

On appeal
the court held that even if it was reasonably inferable from the expert’s
testimony that the specified crimes constituted the gang’s primary activities,
the testimony lacked an adequate foundation.
(In re Alexander L., >supra, 149 Cal.App.4th at
p. 612.) The court noted that
“information establishing reliability was never elicited from [the gang expert]
at trial,” so there was no way to determine whether it was from reliable
sources or incompetent hearsay, as was the case in In re Nathaniel C., supra,
228 Cal.App.3d 990. (>Alexander L., supra, at p. 612.) Therefore,
the expert’s “conclusory testimony cannot be considered substantial evidence as
to the nature of the gang’s primary activities.” (Ibid.,
fn. omitted.)

Here,
unlike Alexander L., Officer
Bocanegra testified as to the basis of his knowledge of the West Valley
Crazies, and he testified directly as to the gang’s primary activities. Defendant did not object that his testimony
lacked foundation, forfeiting that objection on appeal. (People
v. Seaton, supra, 26 Cal.4th at
pp. 642-643.) The officer’s testimony
therefore provided substantial evidence of the gang’s primary activities.href="#_ftn6" name="_ftnref6" title="">^[6]

Defendant
further claims that there is insufficient evidence that he knew the West Valley
Crazies’ primary activities included the commission of the specified offenses,
and the Constitution requires both “‘guilty knowledge and intent’ with respect
to an organization that forms the basis for imposing criminal punishment upon
the individual” member. Section 186.22
contains no such knowledge requirement.
(Cf. People v. Loeun, supra,
17 Cal.4th at p. 10 [defendant’s knowledge of predicate crimes not required to
prove pattern of criminal gang activity].)
However, the section “satisfies the requirements of due process by
‘impos[ing] increased criminal penalties only when the criminal conduct is
felonious and committed not only “for the benefit of, at the direction of, or
in association with” a group that meets the specific statutory conditions of a
“criminal street gang,” but also with the “specific intent to promote, further,
or assist in any criminal conduct by gang members.” [Citation.]’
[Citation.]” (>Id. at p. 11.) Nothing more is required. (Ibid.)

Defendant’s
reliance on our opinion in People v. Carr
(2010) 190 Cal.App.4th 475 for the proposition “that the Constitution requires
an awareness element to be read into section 186.22[, subdivision ](b)” is
sorely misplaced. Contrary to
defendant’s argument, in Carr we held
that “the People need not separately prove a defendant’s subjective knowledge
of the criminal activities of his or her fellow gang members to establish the
[Penal Code] section 190.2, subdivision (a)(22), special circumstance.” (Carr,
supra, at p. 487, fn.
omitted.) Penal Code section 190.2,
subdivision (a)(22), parallels section 186.22, subdivision (b), applying to an
intentional killing “while the defendant was an active participant in a
criminal street gang, as defined in subdivision (f) of Section 186.22, and the
murder was carried out to further the activities of the criminal street gang.” The knowledge requirement is contained in
subdivision (a) of section 186.22, which criminalizes “active[] participat[ion]
in any criminal street gang with knowledge that its members engage in or have
engaged in a pattern of criminal gang activity.” While “there is a constitutional requirement
that, before a defendant can be penalized for being an active participant in a
criminal organization . . . the defendant must be shown to have had
knowledge of the gang’s criminal purposes” (Carr,
supra, at p. 487), no such knowledge
requirement exists where, as in subdivision (b) of section 186.22, the
defendant is punished not for his participation in the gang but for his
commission of gang-related crimes (People
v. Loeun, supra, 17 Cal.4th at
pp. 10-11).



3. For the Benefit of, and with
the Specific Intent to Assist Criminal Conduct by Gang Members

Defendant
first asserts that there is insufficient evidence that he knew the other
participants in the crime were gang members, a prerequisite to finding he had
“the specific intent to promote, further, or assist in any criminal conduct by
gang members” (§ 186.22, subd. (b)(1)).
He points to the lack of direct evidence that this was a gang
crime: “No one here was yelling out gang
slogans, or wearing colors or flashing signs.
None of the other witnesses [besides Officer Bocanegra] testified to any
awareness or evidence at the time of the incident that these were gang members
or this was a gang-related altercation.
The prosecution provided no evidence [defendant] made any admissions
this fight was gang-related and no evidence of a revenge or retaliation motive
against a rival gang. Lowe’s was not in
gang territory.”

Defendant
relies on People v. Albillar, >supra, 51 Cal.4th 47, which states that
“if substantial evidence establishes that the defendant intended to and did
commit the charged felony with known
members of a gang, the jury may fairly infer that the defendant had the
specific intent to promote, further, or assist criminal conduct by those gang
members.” (Id. at p. 68, italics added.)
We conclude that substantial circumstantial evidence supports the jury’s
finding that defendant acted with the intent to promote, further or assist
criminal conduct by gang members.

The
evidence here reasonably shows that when Lucus and Stenhouse, young Black men,
went to Lowe’s in Pacoima, a group of about seven Hispanic men in the parking
lot was looking at them in a menacing way.
When they were in the store, two of the men, defendant and another man,
approached them and challenged them with such comments as “what’s up,” “what
you looking at” and “you out of bounds.”
A brief fight ensued, then defendant and the other man left the
store. They returned, however, with
other members of the group and proceeded to attack Lucus and chase after
Stenhouse. During the attack, Manzano
heard the attackers yelling, “Where are you from?”

After the
attack, one of the Hispanic men asked Stenhouse whether he was from Inglewood,
and Stenhouse said no. Stenhouse asked
another where they were from, and the man said “quote, crazy, something
crazy.” Then one man said to Stenhouse,
“[O]ne of you mayates broke my homeboy’s jaw.”
Afterwards, when Stenhouse called Lucus’ phone, he spoke to a man who
said that they beat up Lucus and took his phone, and if he wanted the phone he
could come get it. The man on the phone
“said should we go meet these guys, Sharkey?”

Officer
Bocanegra identified defendant as a member of the West Valley Crazies and
testified that defendant’s gang moniker was “Shark” or “Sharkey.” The officer acknowledged that the Lowe’s in
Pacoima was not in West Valley Crazies territory, but he knew of at least one
other incident in which West Valley Crazies had gone after Black men. He noted that the significance of a gang
member asking where someone was from was a direct challenge to that
person. He also testified as to how the
attack would benefit the West Valley Crazies by creating fear of the gang.

It is
reasonably inferable from the foregoing that members of the West Valley Crazies
attacked Lucus and Stenhouse because they were Black. Members of the group challenged them by
asking where they were from and whether they were from Inglewood. At least one member of the group identified
them as the Crazies, and one identified the purpose of the attack as revenge
for breaking his “homeboy’s jaw.”

Officer
Bocanegra was able to identify Lawrence
as another member of the West Valley Crazies.
Since the gang had only about 45 members, it is reasonably inferable
that defendant knew Lawrence was a
gang member. Additionally, after the
attack, the person who answered the phone taken in the attack referred to the
person with him as “Sharkey,” which is defendant’s gang moniker. This evidence supports a finding defendant
knew he was assisting criminal conduct by other gang members.

Defendant
also asserts there is insufficient evidence that the attack was committed for
the benefit of a criminal street gang.
He argues that there was no evidence “that the West Valley Crazies
encouraged such crimes or relied on them to frighten or intimidate anyone, that
it was somehow a ‘signature’ crime,” or “that the gang to which [defendant]
allegedly belonged committed these crimes in a manner distinctive from the
commission by non-gang members, or that only gang members commit the crimes
charged.”

None of the
foregoing is required to prove that the crime was “committed for the benefit
of, at the direction of, or in association with any criminal street gang”
(§ 186.22, subd. (b)(1)). “We
. . . find substantial evidence that defendant[ and other members of
the group] came together as gang members
to attack [Lucus and Stenhouse] and, thus, that [he] committed [the] crime[] in
association with the gang.
[Citations.]” (>People v. Albillar, supra, 51 Cal.4th at p. 62.)

In >People v. Morales (2003) 112 Cal.App.4th
1176, the question was whether “evidence that one gang member committed a crime
in association with other gang members” was sufficient to satisfy this
element. (Id. at p. 1198.) The court
responded that “[a]rguably, such evidence alone would be insufficient, even
when supported by expert opinion, to show that a crime was committed for the >benefit of a gang. The crucial element, however, requires that
the crime be committed (1) for the benefit of, (2) at the direction of, >or (3) in association with a gang.
Thus, the typical close case is one in which one gang member, acting
alone, commits a crime. Admittedly, it
is conceivable that several gang members could commit a crime together, yet be
on a frolic and detour unrelated to the gang.”
(Id. at p. 1198.)

Here, as
discussed above, there is evidence defendant committed the crime with other
gang members. “Thus, the jury could
reasonably infer the requisite association from the very fact that defendant
committed the . . . crime[] in association with fellow gang
members.” (People v. Morales, supra,
112 Cal.App.4th at p. 1198.)



B. Due
Process

Defendant
contends the true finding on the gang enhancement violates due process, in that
there is insufficient evidence to support the finding. He relies on Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 and >Briceno v. Scribner (9th Cir. 2009) 555
F.3d 1069, 1079, which held that section 186.22 requires a showing that the
murder was intended to facilitate criminal conduct by gang members, that is
other criminal conduct beyond the charged crime. This holding was rejected by the California
Supreme Court in People v. Albillar, >supra, 51 Cal.4th 47. The Supreme Court concluded “the scienter
requirement in section 186.22[, subdivision ](b)(1)—i.e., ‘the specific intent
to promote, further, or assist in any criminal conduct by gang members’—is
unambiguous and applies to any
criminal conduct, without a further requirement that the conduct be ‘apart
from’ the criminal conduct underlying the offense of conviction sought to be
enhanced.” (Albillar, supra, at p.
66.) We are bound by this
pronouncement. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450,
455.)



C. Confrontation
Clause

Defendant
contends that Officer Bocanegra’s testimony based on hearsay information
contained in field identification cards violated the Confrontation Clause. He also contends that his Evidence Code
section 352 objection to the admission of gang evidence was sufficient to
preserve the issue for appeal. We reject
both contentions.

Defendant’s
reliance on People v. Partida (2005)
37 Cal.4th 428 for the proposition that an Evidence Code section 352 objection
to the admission of gang evidence preserves constitutional challenges to the admission
of the evidence is misplaced. >Partida held that “[a] defendant may not
argue on appeal that the court should have excluded the evidence for a reason >not asserted at trial. A defendant may, however, argue that the
asserted error in overruling the trial objection had the legal consequence of
violating due process.” (>Partida, supra, at p. 431.) Since
defendant did not object to Officer Bocanegra’s testimony on hearsay grounds,
he has forfeited his claim that admission of the hearsay violated the Confrontation
Clause. (Ibid.; see also People v.
Gutierrez (2009) 45 Cal.4th 789, 809, 812-813 [Confrontation Clause claim
might not be forfeited if objection below made on a hearsay basis].)

In any
event, Officer Bocanegra’s testimony did not violate the Confrontation
Clause. In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158
L.Ed.2d 177], the United States Supreme Court held that the Confrontation
Clause applies where testimonial hearsay is involved; where nontestimonial
hearsay is at issue, state hearsay laws apply.
(Id. at p. 68; >People v. Cooper (2007) 148 Cal.App.4th
731, 740-741.) As explained in >People v. Sisneros (2009) 174
Cal.App.4th 142, “‘Hearsay in support of expert opinion is simply not the sort
of testimonial hearsay the use of which Crawford
condemned.’ [Citations.] ‘The rule is long established in California
that experts may testify as to their opinions on relevant matters and, if
questioned, may relate the information and sources on which they relied in
forming those opinions. Such sources may
include hearsay. [Citations.]” (Id.
at p. 153.)

As
previously stated, a gang expert “may give opinion testimony that is based upon
hearsay . . . .
[Citations.] Such opinions may
also be based upon the expert’s personal investigation of past crimes by gang
members and information about gangs learned from the expert’s colleagues or
from other law enforcement agencies.
[Citations.]” (>People v. Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9.) The expert may rely on inadmissible hearsay
so long as it is of a type reasonably relied upon by experts. (People
v. Gardeley, supra, 14 Cal.4th at
pp. 618-619.) Officer Bocanegra’s
testimony fell within these guidelines.
There was no Confrontation Clause violation. (Crawford
v. Washington, supra, 541 U.S. at
p. 68; People v. Sisneros, >supra, 174 Cal.App.4th at p. 153.)



D. Motion to Dismiss

Defendant
further contends that the trial court erred in denying his motion to dismiss
pursuant to Penal Code section 1118.1.
His contention rests on the assumption that the gang findings are not
supported by the evidence. Inasmuch as
we have concluded the findings are supported by substantial evidence, the
contention fails.



E. Gang
Expert Testimony Usurping the Jury’s Function

Defendant
contends the gang experts’ testimony usurped the jury’s function, thereby
depriving him of his constitutional rights to trial by jury, a fair trial and
due process of law. He complains that
through the use of improper hypothetical questions, the experts were permitted
to give opinions as to defendant’s guilt.
We disagree.

The
California Supreme Court addressed the permissible scope of gang expert
testimony in People v. Vang (2011) 52
Cal.4th 1038 (Vang). The court addressed “the propriety of
permitting the gang expert to respond to the hypothetical questions the
prosecution asked regarding whether the” crime was gang related. (Id.
at p. 1044.) The appellate court had
held that the trial court erred in allowing the gang expert “‘to testify in
response to a hypothetical question that the [crime], thinly disguised in the
hypothetical[,] . . . was for the benefit of [the gang] and was gang
motivated.’” (Ibid.)

The Supreme
Court held that “[t]he Court of Appeal erred in condemning the hypothetical
questions because they tracked the evidence in a manner that was only ‘thinly
disguised.’” (Vang, supra, 52 Cal.4th
at p. 1045.) Experts are permitted to
give opinions on the basis of hypothetical questions which ask the experts to
assume the truth of their facts. (>Ibid.)
However, the “[u]se of hypothetical questions is subject to an important
requirement. ‘Such a hypothetical
question must be rooted in facts shown by the evidence . . . .’ [Citations.]”
(Id. at pp. 1045-1046.) It “‘“may assume facts within the limits of
the evidence, not unfairly assembled, upon which the opinion of the expert is
required, and considerable latitude must be allowed in the choice of facts as
to the basis upon which to frame a hypothetical question.” [Citation.]’”
(Id. at p. 1046.) “The reason for this rule should be
apparent. A hypothetical question not
based on the evidence is irrelevant and of no help to the jury.” (Ibid.)

As applied
to the case before it, the court explained, “this rule means that the
prosecutor’s hypothetical questions had to be based on what the evidence showed
these defendants did,” in order to “help[] the jury determine whether these
defendants . . . committed a crime for a gang purpose. Disguising this fact would only have confused
the jury.” (Vang, supra, 52 Cal.4th
at p. 1046, italics omitted.)

The court
rejected the claim that such expert opinion is “‘objectionable because it
embraces the ultimate issue to be decided by the trier of fact.’ [Citations.]”
(Vang, supra, 52 Cal.4th at p. 1048.)
While an expert may not express an opinion on the defendant’s guilt, which is “the ultimate issue of fact for the
jury,” the expert may express an opinion on that ultimate issue based on
hypothetical questions rooted in the facts of the case. (Ibid.) That the expert’s “opinion, if found
credible, might, together with the rest of the evidence, cause the jury to find
the [crime] was gang related,” “‘makes the testimony probative, not
inadmissible.’ [Citation.]” (Id.
at pp. 1048-1049.)

The court
also rejected the claim “that permitting these hypothetical questions invades
the province of the jury. However, as
noted, expert testimony is permitted even if it embraces the ultimate issue to
be decided. [Citation.] The jury still plays a critical role in two
respects. First, it must decide whether
to credit the expert’s opinion at all.
Second, it must determine whether the facts stated in the hypothetical
questions are the actual facts, and the significance of any difference between
the actual facts and the facts stated in the questions.” (Vang,
supra, 52 Cal.4th at pp. 1049-1050.)

Here, the
prosecutor started out by asking Officer Bocanegra hypothetical questions
concerning whether other gang members would be expected to join in a fight
started by one gang member: “So what if,
hypothetically, I’m a gang member, I go into a store and I start picking on
someone and get in a little scuffle with them, and I don’t like the way it
went; so I leave the store. . . .” The questioning then got more specific: “In your experience with Hispanic gangs and
particularly with West Valley Crazies, what would . . . probably
happen to someone who just said under that circumstance, just said nah, I just
don’t feel like getting in a fight today. . . .”

The
questioning then lost the guise of a hypothetical:

“Q [The prosecutor] Do you have any opinion as to whether—Have
you reviewed the facts in this case?

“A Yes, I have.

“Q And have you read—reviewed the police
reports in this case, as well?

“A I have.

“Q Do you have any opinion as to whether or
not the robbery and the assault committed on Quincy Lucus by the members of the
West Valley Crazies—

“[Defendant’s
counsel] Your honor, I’m going to object
at this point.

“[Lawrence’s
counsel] I join.

“The
court: Overruled.

“By [the prosecutor]:

“Q Do you have any opinion as to whether or
not this robbery and assault was committed for the benefit of the West Valley
Crazies criminal street gang?

“A Yes.

“Q And what is your opinion?

“A My opinion is that the crime was
committed does benefit the West Valley Crazies gang due to the fact that it
wasn’t just done by one individual; it was a collective group, okay, conducted
in a very public place amongst two individuals.” Officer Bocanegra continued to explain the
basis of his opinion, touching on the later phone call as well.

Clearly,
the question was improperly phrased and should have been phrased in the form of
a hypothetical. We reject defendant’s
claim that this deprived him of his constitutional rights to trial by jury, a
fair trial and due process of law. As >Vang points out, “expert testimony is
permitted even if it embraces the ultimate issue to be decided.” (Vang,
supra, 52 Cal.4th at p. 1049.) The caveat is that the expert may not express
an opinion on the defendant’s guilt, which is “‘the ultimate issue of fact for
the jury.’” (Id. at p. 1048.) “The reason
for this rule is not because guilt is the ultimate issue of fact for the jury,
as opinion testimony often goes to the ultimate issue. [Citations.]
‘Rather, opinions on guilt or innocence are inadmissible because they
are of no assistance to the trier of fact.
To put it another way, the trier of fact is as competent as the witness
to weigh the evidence and draw a conclusion on the issue of guilt.’ [Citation.]”
(People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 77.)

The
erroneous admission of the evidence does not require reversal of the judgment
unless it is reasonably probable defendant would have obtained a more favorable
result had there been no error. (People
v. Earp (1999) 20 Cal.4th 826, 878.)
The opinion itself was admissible.
It is not reasonably probable the jury would have found the gang
enhancement allegations untrue had the opinion been obtained through a “‘thinly
disguised’” (Vang, >supra, 52 Cal.4th at p. 1044)
hypothetical. Therefore, reversal is not
required.



F. Instruction with CALCRIM No. 370

Defendant
contends the trial court erred in instructing the jury on motive pursuant to
CALCRIM No. 370 without informing the jury that it did not apply to the gang
enhancement, because motive is an element of the enhancement. We disagree.

CALCRIM No.
370 provides: “The People are not
required to prove that the defendant had a motive to commit any of the crimes
charged. In reaching your verdict you
may, however, consider whether the defendant had a motive. [¶]
Having a motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a
factor tending to show the defendant is not guilty.”

CALCRIM No.
370 specifically refers to the “crimes charged.” The jury was instructed that defendant was
“charged in Count 4 with assault with force likely to produce great bodily
injury in violation of Penal Code section 245” (CALCRIM No. 875), and
“charged in Count 2 with Robbery in violation of Penal Code section 211”
(CALCRIM No. 1600).

The
instruction on the criminal street gang enhancement, CALCRIM No. 1401,
begins: “If you find the defendant
guilty of the crimes charged in
Counts 3 or 4, you must the decide whether, for each crime, the People have
proved the additional allegation that the defendant committed that crime for
the benefit of, at the direction of, or in association with a criminal street
gang. . . .”

When
reviewing the effect of challenged instructions, we look at the instructions
given as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Garrison (1989)
47 Cal.3d 746, 780.) We determine
whether a reasonable jury would have interpreted the instruction in the manner
proposed by defendant. (>Cain, supra, at p. 36; People v.
Warren (1988) 45 Cal.3d 471, 487.)

The jury
instructions here make it clear that CALCRIM No. 370 applies to crimes charged,
they specify the crimes charged, and they direct the jury to consider the
criminal street gang allegation only after determining defendant’s guilt or
innocence of the crimes charged. No
reasonable jury would interpret CALCRIM No. 370 to negate the intent
requirements of the gang enhancement.

Moreover,
as noted in People v. Fuentes (2009)
171 Cal.App.4th 1133, 1139, “[a]n intent to further criminal gang activity is
no more a ‘motive’ in legal terms than is any other specific intent.” Hence, “[t]here was no error.” (Id.
at p. 1140.)href="#_ftn7" name="_ftnref7"
title="">^[7]



G. Instruction
and Argument on Uncharged Conspiracy

The
prosecutor requested that the jury be instructed pursuant to CALCRIM
No. 416 on evidence of an uncharged conspiracy. Defendant’s counsel objected to this
instruction. She explained that the
instruction as drafted “says to commit robbery and or assault, which is very
unspecific. [¶] . . . [M]y understanding of
conspiracy has to be a conspiracy to commit a certain act. And here it looks as if the person who
drafted this instruction was not sure which act it was they were going to
commit.

“I agree
with [the prosecutor] about the evidence that we have seen as the court does, I
just do not believe that it showed . . . that there was evidence of a
conspiracy. The fact that some people
ran out, some people ran in does not show there was a conspiracy to commit
robbery. I mean, I understand later on
Mr. Lucus didn’t have his cell phone.
That doesn’t show ahead of time there was any kind of agreement to take
Mr. Lucus’ cell phone.”

The
prosecutor agreed to delete the references to a robbery, and the instruction as
given referred only to the assault. The
court also gave CALCRIM No. 417 on liability for coconspirators’ acts.

The
prosecutor argued to the jury: “There
are three different ways in which you can be guilty of a crime in this case,
these are called theories of liability.
First is that the defendant is a direct perpetrator. The second is that the defendant is an aider
and abettor. And, third, the defendant
is a co-conspirator. They are,
basically, different avenues to guilt in this case.” The prosecutor went on to discuss the three
theories of liability.

Defendant
now contends there was insufficient evidence of a conspiracy adduced at trial
to justify instruction on that theory of liability. He further claims that his contention is not
forfeited by his failure to make this objection below (People v. Hinton (2006) 37 Cal.4th 839, 896-897), in that his
substantial rights were affected by the instruction (Pen. Code, § 1259; >People v. Rivera (1984) 162
Cal.App.3d 141, 146.) We find no error.

“It is
firmly established that evidence of conspiracy may be admitted even if the
defendant is not charged with the crime of conspiracy. [Citations.]
Once there is proof of the existence of the conspiracy there is no error
in instructing the jury on the law of conspiracy. [Citation.]” (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1134.)
Proof of the existence of a conspiracy in this context requires only
“‘prima facie evidence of the conspiracy.
[Citation.] The prima facie
showing may be circumstantial [citation], and may be by means of any competent
evidence which tends to show that a conspiracy existed. [Citation.]’
[Citation.]” (>Ibid.)

The
“[e]vidence is sufficient to prove a conspiracy to commit a crime ‘if it
supports an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime.
[Citation.] The existence of a
conspiracy may be inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the alleged
conspiracy. [Citations.]’ [Citation.]”
(People v. Rodrigues, >supra, 8 Cal.4th at p. 1135.)

Defendant
suggests that it is impossible that a conspiracy could have been formed “in
those split seconds where unidentified persons charged across the parking lot
into the store.” He cites no authority
to support the proposition that formation of a conspiracy requires any set
amount of time and may not occur with great rapidity.

Formation
of a conspiracy does not require any great length of time: “There is no need to show that the parties
met and expressly agreed to commit a crime in order to prove a conspiracy. The evidence is sufficient if it supports an
inference that the parties positively or tacitly came to a mutual understanding
to commit a crime. [Citation.] . . . As one court has noted,
the maxim that ‘“One’s actions speak louder than words” is peculiarly
applicable to proof in conspiracy cases.’
[Citation.]” (>In re Nathaniel C., supra, 228 Cal.App.3d at p. 999.)

The
evidence here is clearly sufficient to make a prima facie showing of
conspiracy. After defendant and one man
had an altercation with Lucus and Stenhouse, they went outside to where their
companions waited. Then the group of
them returned to the store, attacked Lucus and went after Stenhouse. Members of the group belonged to the same
gang. It is reasonably inferable that
the members of the group came to a positive or tacit understanding that they
were going to attack Lucus and Stenhouse.
Thus, there was no error in instructing the jury pursuant to CALCRIM No.
417 or arguing uncharged conspiracy as a theory of liability. (People
v. Rodrigues, supra, 8 Cal.4th at
pp. 1134-1135.)



H. Sentencing on Gang Enhancement

Defendant
contends, and the People agree, that the trial court imposed an incorrect
sentence on the gang enhancement and the case must be remanded for resentencing
on the enhancement. We agree as well.

Section
186.22, subdivision (b)(1)(A), provides that:
“Except as provided in subparagraphs (B) and (C), the person shall be
punished by an additional term of two, three, or four years at the court’s
discretion.” Subparagraphs (B) and (C)
apply to serious felonies (Pen. Code, § 1192.7, subd. (c)) and violent
felonies (id., § 667.5, subd.
(c)), and they authorize imposition of five- and 10-year enhancements, respectively. Here, the trial court imposed a five year
enhancement under subparagraph (B).

An assault
in which great bodily injury is inflicted, as defendant was convicted of here,
is both a violent and a serious felony.
(Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).) However, the trial court granted defendant’s
motion to strike the great bodily injury allegation. In the absence of the great bodily injury
finding, defendant’s assault conviction was no longer a serious felony, and a
five-year enhancement was unauthorized.
Therefore, the five-year enhancement must be stricken and the case
remanded to allow the trial court to exercise its discretion to impose a two,
three or four year enhancement under subparagraph (A) of section 186.22,
subdivision (b)(1).

Additionally,
because the assault is no longer a serious felony, the five-year enhancement
imposed pursuant to Penal Code section 667, subdivision (a), must be
stricken. Subdivision (a) applies to
“any person convicted of a serious felony who previously has been convicted of
a serious felony.”



I. Cumulative
Error

Defendant
contends cumulative error deprived him of due process and a fair trial. (People
v. Hill (1998) 17 Cal.4th 800, 847; People
v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
Inasmuch as we have rejected the majority of defendant’s claims of
error, we reject his contention. (>People v. Kipp (1998) 18 Cal.4th 349,
383.)



J. Presentence
Custody Credit

The trial
court awarded defendant 876 days of presentence custody credit, consisting of
584 days of actual credit and 292 days of conduct credit. The court awarded him two days of conduct
credits for each four days served.
Defendant contends he should have been awarded two days of conduct
credit for each two days served under Penal Code section 4019 (section 4019) as
amended effective October 1, 2011.

Defendant
committed his offense on July 28, 2009. At that
time, section 4019 provided that if all conduct credits were earned, “a term of
six days will be deemed to have been served for every four days spent in actual
custody” (id., subd. (f)), i.e., two
days of conduct credit for each four days served.

Section
4019 was amended effective January 25,
2010 to provide that if all conduct credits were earned, “a term of
four days will be deemed to have been served for every two days spent in actual
custody” (id., subd. (f)), i.e., two
days of conduct credit for each two days served. (Stats. 2009-2010, 3d Ex. Sess., ch. 28,
§ 50.)

Section
4019 was amended again, effective September
28, 2010, to restore the previous provisions, i.e., credit for six
days served for each four in custody, or two days’ credit for each four days of
actual custody. (Stats. 2010, ch. 426,
§ 2.) Defendant was sentenced on March 10, 2011, when these provisions
were in effect.

Thereafter,
section 4019 was amended again to restore the previous provisions giving two
days of credit for each two served, or four days’ credit for each two in actual
custody. (Stats. 2011-2012, 1st Ex.
Sess., ch.12, § 35.) These amendments
to section 4019 became operative October
1, 2011. Subdivision (h) of
that section specifically 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, city jail, industrial farm, or road camp for a crime committed on or
after October 1, 2011. Any days earned prior to October 1, 2011, shall be calculated at the rate
required by the prior law.”

Defendant
contends that equal protection demands that he be given the conduct credits
afforded under this latest version of section 4019. We disagree.

Although
the question of the retroactivity of this version is before the Supreme court,
the Courts of Appeal have generally held that prospective application of the
2011 version of the statute does not violate equal protection. (See, e.g., People v. Rajanayagam (2012) 211 Cal.App.4th 42, 56, review den. Feb. 13, 2013 [Fourth District]; >People v. Garcia (2012) 209 Cal.App.4th
530, 541, review den. Dec. 19, 2012
[Second District, Division 5]; People v.
Kennedy (2012) 209 Cal.App.4th 385, 399-400 [Sixth District]; >People v. Ellis (2012) 207 Cal.App.4th
1546, 1553, review den. Oct. 31, 2012
[Fifth District]; and People v. Olague
(2012) 205 Cal.App.4th 1126, review granted Aug. 8, 2012, S203298 [Sixth District].) We agree with these holdings.

As
explained in People v. Ellis, >supra, 207 Cal.App.4th 1546, the Supreme
Court recently addressed the question of the retroactivity of the January 25,
2010 amendment to section 4019 in People
v. Brown (2012) 54 Cal.4th 314.
“Despite the fact the Legislature included no statement of intent in
that regard in the amendment [citation],” unlike the amendment at issue here,
“the state high court held the amendment applied prospectively only, meaning
qualified prisoners in local custody first became eligible to earn conduct
credit at the increased rate beginning on the amendment’s operative date. [Citation.]”
(Ellis, supra, at p. 1550.) The
amendment was not subject to the assumption that, absent evidence to the
contrary, the Legislature intends statutory amendments to statutes reducing
punishment for crimes to apply to all defendants whose judgments are not yet
final on the statute’s operative date. (>Id. at p. 1551.) Section 4019 does not reduce the penalty for
a crime; “[r]ather than addressing punishment for past criminal conduct,
section 4019 ‘addresses future conduct
in a custodial setting by providing increased incentives for good
behavior.’ (Brown, supra, at p.
325.)” (Ellis, supra, at p.
1551.)

>Brown also held that the prospective
application of the amendment did not violate equal protection for essentially
the same reason. It explained that
“‘. . . [t]he important correctional purposes of a statute authorizing
incentives for good behavior [citation] are not served by rewarding prisoners
who served time before the incentives took effect and thus could not have
modified