P. v. Magdaleno
Filed 8/6/13 P. v. Magdaleno CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT GERARD
MAGDALENO,
Defendant and Appellant.
E055248
(Super.Ct.No. RIF10005976)
OPINION
APPEAL
from the Superior Court of
County. Jean P.
Leonard, Judge. Affirmed.
William
W. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and
Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A
jury convicted defendant Robert Gerard Magdaleno of count 1, unlawfully taking
a vehicle in violation of Vehicle Code section 10851, subdivision (a), and
count 3, receiving stolen property, in violation of section 496, subdivision
(a). The jury found defendant not guilty
of count 2, receiving the stolen vehicle, in violation of section 496d, an
alternative to count 1. Defendant
admitted four prison priors and a strike prior.
The trial court sentenced
defendant to a total term of 10 years in state
prison. The court imposed a term of
six years on count 1, imposed and stayed one year four months on count 3, and
imposed one year on each of the four prison priors, consecutive to the six-year
term. The court also determined
defendant had 405 days credit for time served before sentencing, plus an
additional 202 days pursuant to section 4019, for a total of 607 days.
On appeal, defendant argues
the trial court abused its discretion in admitting evidence of other suspected
stolen property. Defendant also seeks
additional custody credits under section 4019.
We reject defendant’s contentions and affirm the judgment.
II
STATEMENT OF FACTS
Richard Zackerdonski and
Mith Zackerdonski were getting ready for work about 4:00 a.m. on November 5, 2010. They parked
their white 1995 Honda Odyssey van in the driveway. Richard started the van, turned on the
heater, and moved the van to the end of the driveway, closer to the gate. He left the van in park with the keys in the
ignition and opened the gate before returning to the house to collect items for
the car. The couple went back and forth
between the house and the van, placing packed meals and extra jackets in the
van. Mith also put her brown purse in
the van. The purse contained her
driver’s license, social security card, a Wescom bank card, AAA card, and some
cash. While in the house getting coffee,
Mith spotted the van being driven down the street. She yelled to Richard who ran out to the
street as the van was speeding away.
Richard reported the theft to the police.
On November 6, 2010, at
11:30 p.m., Daniel Suarez, a Riverside police officer, responded to a call
regarding a suspicious person—a male Hispanic, wearing a dark-colored beanie
and possibly driving a white van. As
Suarez entered a parking lot, he spotted a white van driving toward his police
car. The van did not have a front
license place and the headlights were off.
Suarez and his partner stopped the van and approached the driver, whom
Suarez identified at trial as defendant.
Defendant handed Suarez a gray backpack and said his identification was
inside. Suarez retrieved several school
identification cards in the name of Brian Sanchez with pictures that did not
match defendant’s appearance. Instead of
the vehicle registration, defendant offered a piece of paper bearing the handwritten
name, “Zackerdonski.†Because Suarez
recalled Zackerdonski had reported a stolen car a couple of days earlier, he
began a vehicle theft investigation.
Defendant identified himself as Robert Magdaleno.
Suarez asked
defendant to step out of the vehicle for a patdown search. In a wallet in defendant’s left front pocket
were two California driver’s licenses, a social
security card, a AAA card, and a Wescom bank card, all in the name of Mith
Zackerdonski. Inside the van, Suarez
found a dark blue or black beanie, a mask, a checkbook in the name of Javier
Conejo, and two wallets. A check of the
vehicle’s identification number confirmed the van was stolen. The Zackerdonskis identified the van as their
missing vehicle.
The
Zackerdonskis testified at trial they did not know defendant and did not give
him permission to take the van, the purse, or its contents. They also testified they could not identify
the other items taken from the van.
Brian Sanchez was never
contacted about his identification cards.
III
EVIDENCE OF OTHER STOLEN
PROPERTY
During motions
in limine, defense counsel objected to introducing photographs of items found
in the van that did not belong to the victims, including the mask and beanie,
Brian Sanchez’s identification, two wallets, the checkbook in the name of
Javier Conejo, and a knife. Although the
dark beanie was relevant because it was part of the description given of the
suspicious person, defense counsel argued the photograph of the mask was too
prejudicial. The trial court excluded
the photograph of the mask, finding its probative value was outweighed by
prejudice. The court, however, allowed a
photograph of the beanie and mask together, reasoning, “I think that the fact
that the beanie and the mask are there somewhat dilutes the mask issue.†The court noted the relevance of the beanie
and found its probative value was not outweighed by undue prejudice or undue
consumption of time.
Defense counsel also argued
Brian Sanchez’s identification cards were more prejudicial than probative
because law enforcement had been unable to contact Sanchez to confirm they were
stolen. Citing Evidence Code section
1101, subdivision (b), the prosecutor argued the evidence was “absolutely
probative†of defendant’s knowledge and intent because he was found in a stolen
car with two wallets and identification cards bearing another person’s
name. Furthermore, defendant had offered
Brian Sanchez’s identification to the officer.
The trial court allowed one photograph of Brian Sanchez’s identification
to show that defendant presented false identification. The court expressly found the probative value
was not outweighed by any undue prejudice.
Defense counsel also
objected to the photographs of the two wallets and Javier Conejo’s checkbook as
irrelevant and more prejudicial than probative because Conejo was not an
alleged victim in the case. The People
again responded that the evidence indicated defendant’s intent and knowledge
regarding the stolen property because he possessed another person’s identifying
information. The trial court allowed the
photograph, finding “the probative value is not outweighed by undue
prejudice. I do think it is relevant
because it appears that it’s property belonging to another person. Also there’s no undue consumption of
time.†The trial court ruled that the
photograph of the knife would be excluded.
Defendant argues the trial
court abused its discretion by admitting the subject photographs under Evidence
Code section 1101, subdivision (b), and in finding the probative value of the
items was not substantially outweighed by the risk of undue prejudice under
Evidence Code section 352. Defendant
contends he likely would have obtained a more favorable outcome had they been
excluded.
Defendant’s argument lacks
merit. The evidence was admissible under
Evidence Code section 1101, subdivision (b), to show defendant’s knowledge of
the stolen property and his intent in possessing and attempting to use another
person’s identifying information as his own.
Under Evidence Code section 352, the high probative value of the
evidence was not substantially outweighed by the likelihood of undue
prejudice. In light of the strong
evidence of defendant’s guilt, it is not reasonably probable defendant would
have obtained a more favorable outcome had the evidence been excluded. Thus, any error was harmless.
A trial court’s decision to
admit or exclude evidence under Evidence Code section 352 is reviewed for an
abuse of discretion. (
274, 282.) A reviewing court will
reverse only if the trial court’s ruling was “‘arbitrary, whimsical, or
capricious as a matter of law.’†(
Evidence Code section 1101,
subdivision (b), provides that evidence may be admitted to prove “some fact
(such as motive, opportunity, intent, preparation, plan, knowledge, identity, .
. . ) other than his or her disposition to commit such an act.†For evidence to be admissible to prove
intent, the least degree of similarity between the uncharged act and the
charged offense is necessary; that is, the uncharged misconduct is sufficiently
similar to support the inference a defendant likely harbored the same intent in
the charged offense. (
23; People v. Ewoldt (1994) 7 Cal.4th
380, 402.)
Here, defendant was charged
with the theft of the van, receiving the stolen van, and receiving Mith’s purse
and its contents. As the trial court
found, defendant’s possession of other property not his own was sufficiently
similar to support the inference he likely had the same intent in possessing
the stolen property in the charged offenses.
Additionally, because defendant offered Brian Sanchez’s identification
cards in response to the officer’s request for identification, defendant was
aware the cards belonged to another person but he attempted to use them as his
own. The identification cards were
relevant to the prosecution’s case and admissible under Evidence Code section
1101, subdivision (b), because they were probative of defendant’s intent and
knowledge in possessing the stolen property.
The identification cards
were also properly admitted under Evidence Code section 352, providing a trial
court with the discretion to “exclude 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.†The probative value of evidence is balanced
against four factors: (1) the
inflammatory nature of the uncharged conduct; (2) the possibility of confusion
of issues; (3) the remoteness in time of the uncharged offenses; and (4) the
amount of time needed to introduce and rebut the evidence. (People
v. Harris (1998) 60 Cal.App.4th 727, 737-738, 741.)
Not only was the evidence of
defendant possessing other stolen property highly probative of his intent and
knowledge in the charged offenses, defendant’s possession of the items was
similar to his possession of the stolen van.
Both required the intent to possess property not belonging to
defendant. The items were not “highly
inflammatory.†Instead, the photographs
of the items were similar to the types of items from the stolen purse. The items were no more inflammatory in nature
than the property defendant was alleged to have unlawfully possessed. The probative value of the evidence was not
substantially outweighed by the risk of undue prejudice. The items bearing names of third parties were
directly relevant to defendant’s knowledge and intent regarding the charged
theft and stolen property counts and those items carried minimal risk of undue
prejudice. The photograph of the beanie
and mask was relevant to the description of defendant when he was stopped by
police. Defendant has not shown an abuse
of discretion.
Finally, any error was
harmless due to the strong evidence of defendant’s guilt. Defendant contends the alleged error was
prejudicial because no direct evidence showed defendant took the van from the
Zackerdonskis’ driveway or that he knew the van was stolen and there was no
connection between theft of the van and the other items. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant protests he was portrayed as a “suspicious character possibly
involved in other thefts and stolen property.â€
There was ample evidence, however, both direct and circumstantial, of
defendant’s guilt. The Zackerdonskis’
van was stolen when it was left running in their driveway with the purse in the
van. Defendant was driving the van alone
the next day and items from the purse, including identification, bank cards,
and a social security card were in defendant’s pocket. The Zackerdonskis did not know defendant or
give him permission to use the van or the contents of the purse. After being stopped, defendant offered false
identification. It is wholly unlikely
defendant would have obtained a more favorable verdict if the trial court had
excluded the photographs of the other stolen items retrieved from the stolen
van. These and the other circumstances fully
support the inference defendant knew the van and its contents were stolen and
the jury’s conclusion that defendant had stolen the van and the purse.
IV
CONDUCT CREDITS
Defendant was arrested on November 7, 2010. He was
sentenced on
December
16, 2011, after serving 405 days. He
maintains he is entitled to receive conduct credit at the higher rate of two
days for every two days actually served—instead of the former rate of four days
for every two days served —for the time he spent in custody after October 1,
2011.
Before October
2011, defendants in local custody were eligible to earn good conduct credit at
a rate of two days for every four days of actual custody. (Former § 4019, subd. (f).) Pursuant to an amendment to section 4019,
which was operative on October 1, 2011, the accrual rate for good conduct
credit changed to two days for every two days of actual custody. (§ 4019, subd. (f).) The unambiguous language of the statute makes
it clear that the Legislature did not intend it to apply retrospectively: “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 by a prisoner prior to
October 1, 2011, shall be calculated at the rate required by the prior
law.†(§ 4019, subd. (h).)
Defendant argues the meaning
of the two sentences of section 4019, subdivision (h), is ambiguous because the
first sentence states that the increased accrual rate applies prospectively
only and the second sentence provides that credits earned before October 1,
2011, shall be calculated at the prior rate.
We disagree because the two sentences can be read together without
creating an ambiguity.
As the court explained in
Cal.App.4th 42, 51, “to read the second sentence†of section 4019, subdivision
(h) as stating that a defendant earns day-for-day credit after October 1, 2011,
no matter when the crime was committed, “renders meaningless the first
sentence. This we cannot do.†Rather, “[S]ubdivision (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. However
inartful the language of subdivision (h), we read the second sentence as
reaffirming that defendants who committed their crimes before October 1, 2011,
still have the opportunity to earn conduct credits, just under prior law. [Citation.]
To imply the enhanced conduct credit provision applies to defendants who
committed their crimes before the effective date but served time in local
custody after the effective date reads too much into the statute and ignores
the Legislature’s clear intent in subdivision (h)’s first sentence. [¶] We
recognize the Legislature in drafting subdivision (h)’s second sentence used
the word ‘earned.’ And it is impossible
to earn presentence credits for an offense that has not yet been
committed. But reading the first and
second sentences together, the implication is the enhanced conduct credit
provision applies to defendants who committed crimes before October 1, 2011,
but who served time in local custody after that date. To isolate the verbiage of the second
sentence would defy the Legislature’s clear intent in subdivision (h)’s first
sentence and contradict well-settled principles of statutory construction. In conclusion, we find the enhanced conduct
credit provision applies only to
those defendants who committed their crimes on or after October 1, 2011.†(People
v. Rajanayagam, at p. 52, fn. omitted.)
Similarly, the court in
1546, 1553, held: “In our view, the
Legislature’s clear intent was to have the enhanced rate apply
their crimes on or after October 1, 2011.
[Citation.] The second sentence
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 [Penal Code]
section 4019, although part of the so-called realignment legislation, applies
based on the date a defendant’s crime is committed, whereas [Penal Code]
section 1170, subdivision (h), which sets out the basic sentencing scheme under
realignment, applies based on the date a defendant is sentenced.â€
We agree with
reiterates that a defendant who committed his crime before October 1, 2011,
will accrue good conduct credit at the rate specified under the earlier version
of the statute. The second sentence of
subdivision (h) does not create an ambiguity when read in conjunction with the
first sentence of that subdivision.
Finally, defendant argues a
prospective-only application of section 4019, subdivision (f), would violate
equal protection. To prevail on an equal
protection claim, defendant must show the state has adopted a classification
affecting two similarly situated groups in an unequal manner, and no rational
basis exists for doing so. (
1185, 1199-1200.) Defendant has made the
requisite showing as to the first prong of the equal protection analysis. “Defendants who committed offenses and earned
conduct credit before the operative date of the statute are treated more
harshly than those who committed the same crimes and earned conduct credit on
or after October 1, 2011. The two groups
are similarly situated in the sense that they committed the same offenses but
are treated differently in terms of earning conduct credit based solely on the
dates their crimes were committed. For
purposes of receiving conduct credit, nothing distinguishes the status of a
prisoner whose crime was committed after October 1, 2011, from one whose crime
was committed before that date.†(
991, 995-996; see also People v.
Rajanayagam, supra, 211 Cal.App.4th at pp. 53-54.)
However, a rational basis
exists for making the increased accrual rate for good conduct credit apply only
to those crimes committed after a date certain.
The classification created by the October 1, 2011, amendment to section
4019 bears a rational relationship to cost savings, balanced against public
safety, by increasing the accrual rate for good conduct credit, and thereby
decreasing the time certain defendants will spend in custody, while ensuring
that defendants are punished according to the sanction in effect as of the date
their crime was committed. (See
at p. 55; People v. Verba, supra, 210
Cal.App.4th at pp. 996-997.)
Because defendant committed
his crime on November 5, 2010, before October 1, 2011, his credits must be
calculated pursuant to the law in effect at the time he committed the offense. Accordingly, defendant was entitled to two
days of conduct credit for every four actual days in custody under section
4019. Defendant spent 405 days in
custody, and thus, was correctly awarded 202 conduct credits. As set forth above, this does not violate
either the federal or state guarantee to equal protection.
V
DISPOSITION
There
is no error in admitting evidence of other stolen property and defendant is not
entitled to additional conduct credits.
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All
statutory references are to the Penal Code unless stated otherwise.
