Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. BA355160, John S. Fisher, Judge.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant Martin Osuna.
Dennis L. Cava, under appointment by the Court of Apeal, for Defendant and Appellant Rafael Perez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
We affirm appellant Martin Osuna’s conviction for selling a controlled substance and offering to sell a controlled substance. Osuna filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), and after review of the entire record, we find no arguable issue.
We also affirm appellant Rafael Perez’s conviction for offering to sell a controlled substance. We find no merit to Perez’s challenges to the sufficiency of the evidence or the trial court’s instruction regarding flight from the scene. We agree with Perez that his conduct credits should be amended and modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
Osuna and Jose Mejia (not a party) were charged with and convicted of one count of selling a controlled substance and one count of offering to sell a controlled substance. Perez was charged with one count of offering to sell a controlled substance and three counts of assault with a deadly weapon, and convicted of offering to sell a controlled substance. Perez admitted the allegation that he suffered a prior conviction for possession for sale of a controlled substance.
Osuna and Mejia were initially charged with the three assaults, but the prosecutor’s motion to dismiss the charges with respect to them was granted.
The principal issue at trial was the credibility of John Rosales, a confidential informant for the Drug Enforcement Agency (DEA), who had an extensive criminal history. Rosales suffered convictions for the sale of narcotics and for being a felon in possession of a firearm. While working as a confidential informant, Rosales and a former police officer stole approximately 340 pounds of marijuana, a portion of which Rosales sold for profit. Rosales lied under oath about his involvement in this theft.
Two in camera hearings were held, in which the court reviewed DEA files on Rosales to determine the information discloseable to the defense.
1. Sale of a Controlled Substance
Rosales testified that on March 18, 2009, he purchased 13.29 grams of methamphetamine from Mejia and Osuna. Rosales was wearing a video recording device, and the jury watched the video of the transaction.
2. Offer to Sell a Controlled Substance
After the first sale, Rosales made arrangements with Osuna to purchase more methamphetamine. They agreed to meet in a Sears parking lot. On April 8, 2009, Perez drove a black Infiniti to the prearranged meeting spot and parked next to Rosales’s vehicle. Osuna sat in the front passenger seat, and Mejia sat in the back. After Rosales entered Perez’s vehicle, someone inside gave Rosales a black beanie containing two bags of methamphetamine. Rosales could not remember who gave him the beanie with the drugs.
After seeing the methamphetamine, Rosales said that he would “get the money.” Rosales opened the trunk of his car, which was a signal to DEA special agents to arrest the defendants. DEA agents exited a van, wearing vests with the word “police” on both the front and back. They announced “police.” As the special agents tried to arrest him, Perez sped away. As he drove out of the parking lot, he hit a jeep, inside of which three DEA special agents were seated.
Police and DEA special agents pursued Perez. DEA agents activated lights and a siren as they pursued Perez. When the pursuit ended, Perez was ordered to the ground. When he did not initially comply, an officer took him down.
A black beanie containing methamphetamine was found on the route Perez traveled as he sped away from the Sears parking lot.
Rosales wrote a statement describing the incident, which provided in pertinent part: “I call on 4-6-09... to see if he was going to sell me a quarter pound of crystal meth.... [¶]... He said, ‘All I could give you is two... [¶]... [¶]... ounces for the price of $1,800.’ He said, ‘I will meet you at 7:00 p.m. at the Sears parking lot.’” Rosales asked to “weigh the bags because I was short the last time.... Then driver scale. I got the scale out” and weighed the bags.
3. Sentence and Appeal
The trial court sentenced Osuna to prison for two years for the sale of a controlled substance. On the offer to sell, the court sentenced him to time served. After sentencing, the court amended Osuna’s presentence conduct credits to conform to a January 2010 amendment to Penal Code section 4019 (section 4019).
The court sentenced Perez to the high term of four years for the sale of a controlled substance and three years for his prior conviction. The court awarded him 133 days of conduct credit.
Perez and Osuna timely appealed.
DISCUSSION
Perez argues on appeal that: (1) there is insufficient evidence to support his conviction of an offer to sell a controlled substance; (2) the trial court erred in giving an instruction on his flight; and (3) he is entitled to additional credits under an amendment to section 4019. Respondent disputes each of Perez’s contentions. Osuna filed a brief pursuant to Wende, requesting this court to review the record to determine whether any arguable issue exists on appeal.
1. Perez
A. Sufficiency of the Evidence
Perez’s challenge to the sufficiency of the evidence lacks merit. “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) Here, when the evidence is interpreted in the appropriate light, it overwhelmingly supports the finding that Perez aided and abetted the offer to sell methamphetamine.
An accomplice is one who “by act or advice aids, promotes, encourages or instigates, the commission of the crime, ” “with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense....” (People v. Beeman (1984) 35 Cal.3d 547, 561.) Presence at the scene of a crime is insufficient to establish aiding and abetting liability. (People v. Laster (1971) 18 Cal.App.3d 381, 388.) However, “‘companionship, and conduct before and after the offense’” are relevant to determining whether a defendant aided and abetted a crime. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
The following evidence supports the verdict: Perez drove Osuna and Mejia to the prearranged meeting place. He parked his vehicle alongside Rosales’s vehicle, supporting the inference that he knew they were meeting Rosales. (See In re Jose D. (1990) 219 Cal.App.3d 582, 585 [sufficient evidence supported accomplice liability when defendant maneuvered car within three feet of victims to allow passenger to shoot at victims].) Perez was inside the vehicle when the methamphetamine, which had been placed in a black beanie, was shown to Rosales, supporting the inference that he knew of the offer to sell the methamphetamine. (See People v. Laster, supra, 18 Cal.App.3d at p. 388 [finding a defendant’s denial of knowledge of a crime did not bar a jury finding that the defendant intended to aid and abet the crime].) Then when Perez fled the scene, he discarded the black beanie, which held the methamphetamine, supporting the inference that Perez knew that the beanie contained contraband and that he was concerned with the presence of the contraband in his vehicle. (See People v. Poehner (1971) 16 Cal.App.3d 481, 490 [sufficient evidence supported conviction for transporting restricted drugs when defendant did not stop for police until after he discarded contraband].) When interpreted in the light most favorable to the verdict, the evidence overwhelmingly supports the verdict.
Perez’s argument that he was unaware of Osuna’s and Mejia’s intention to sell methamphetamine is not based on a view of the evidence in the light most favorable to the verdict.
B. Flight Instruction
Perez challenges the following instruction given over his objection: “If the defendant Perez fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled or tried to flee it is up to you to decide the meaning and importance of that conduct. [¶] However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
A flight instruction is proper when, as in this case, “‘“the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.) “Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’” (Ibid.)
The jury could have found Perez fled and inferred consciousness of guilt from the evidence. Perez sped away after officers wearing vests with the writing “police, ” yelled “police” and attempted to effect an arrest. Perez immediately left the scene, driving at a high rate of speed. A reasonable inference from this evidence is that Perez sped away to avoid being arrested. “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla, supra, 41 Cal.4th at p. 328.) The evidence was sufficient to warrant the instruction.
C. Section 4019 Credits
Perez contends he is entitled to additional presentence conduct credits under a January 2010 amendment to section 4019. We agree.
Whether the January amendment should be applied retroactively to cases not final as of January 25, 2010, is currently pending in the Supreme Court. (See, e.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813.) The Legislature again amended section 4109, subdivision (f) effective September 28, 2010.
Section 4019 was amended effective January 25, 2010, in a manner that resulted in an increase in the number of presentence good conduct and work time credits to be awarded to certain classes of offenders. Prior to this amendment, a defendant was entitled to “a total of two days of conduct credit for every four-day period of incarceration....” (People v. Dieck (2009) 46 Cal.4th 934, 939.) Under the amended statute, a defendant (who does not fall within specified categories not relevant here) accrues two days of conduct credit for every two days of presentence custody.
We conclude that section 4019 should be given retroactive effect to cases not yet final when the amendment became effective. A criminal defendant, absent a savings clause, “is entitled to the benefit of a more recent statute which mitigates the punishment for the offense....” (People v. Babylon (1985) 39 Cal.3d 719, 725.) In People v. Hunter (1977) 68 Cal.App.3d 389, 392-393, the court applied retroactively a statute allowing a credit for a period of incarceration while awaiting trial against a sentence imposed as a condition of probation. Similarly here, the amendment should apply to sentences not yet final at the time the amendment took effect. Under section 4019 effective January 25, 2010, Perez is entitled to 266 days of conduct credit (2 days of conduct credit for every 2 days of presentence custody) and his presentence credits total 533 days.
2. Osuna
We appointed counsel to represent Osuna. After review of the record, Osuna’s court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to Wende, supra, 25 Cal.3d at page 441.
On August 4, 2010, we advised Osuna that he had 30 days within which to submit any contentions or issues that he wished us to consider. We received no response.
We have examined the entire record and conclude that no arguable issue exists and that Osuna’s attorney has fully complied with the responsibilities of counsel. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-119; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment as to Perez is modified to reflect 533 days of presentence credits. As modified, Perez’s judgment is affirmed. The case is remanded to the trial court to correct the abstract of judgment and send the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed as to Osuna.
We concur: BIGELOW, P. J., GRIMES, J.