Opinion
C057993.
4-23-2009
THE PEOPLE, Plaintiff and Respondent, v. JUAN VALADEZ, JR., Defendant and Appellant.
Not to be Published
Defendant Juan Valadez, Jr., pleaded no contest to active gang participation, and on April 15, 2005, he was given probation. (Pen. Code, § 186.22, subd. (a).) While on probation, defendant was charged with possession of live ammunition by a felon. (Pen. Code, § 12316, subd. (b)(1).) A jury convicted defendant of that charge, and found he had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) namely, the gang offense for which he was on probation. The trial court sentenced defendant to the midterm of two years, doubled to four for the strike, and imposed a consecutive one-third midterm sentence of eight months on the gang participation charge.
On appeal, defendant contends the conviction used as an element of the ammunition offense should have been redacted so the jury would not learn it was gang-related. He also contends his presentence custody credits should not have been allocated to each separate case, but merged into one award to be credited against his total aggregate sentence. We affirm the judgment.
FACTS AND PROCEEDINGS
The facts of the gang case for which defendant was on probation are not relevant to this appeal. The facts of the ammunition possession case are as follows:
On August 18, 2007, two Roseville police officers saw defendant wearing a blue shirt in the company of known gang members. They knew defendant was a probationer who was not allowed to associate with gang members or wear blue shirts. An officer searched defendant and found a gang music CD, marked with the gang moniker of one of the men defendant had been with. Defendant was taken to jail, where officers found a live .25 caliber pistol cartridge in defendants wallet. Documents showing he was a convicted felon were admitted into evidence.
Defendant presented no evidence. In closing argument, his counsel stressed the presumption of innocence, the defendants right not to testify, and the Peoples burden of proof beyond a reasonable doubt, and argued a person might not know everything that is in his or her wallet.
DISCUSSION
I
Exclusion of Gang Evidence
Defendant contends the trial court abused its discretion by not sanitizing the reason he was on probation. We disagree.
Defendant declined to stipulate to his status as a convicted felon, but his counsel suggested the issue of the strike be bifurcated. The prosecutor did not think bifurcation was appropriate, since the same felony would have to be proven twice, once as an element of the ammunition possession charge and then again as a strike; he also pointed out the term "strike" could be avoided. The trial court pressed defense counsel to explain how, in the absence of a stipulation that defendant was a convicted felon, the jury could decide that issue without learning of the nature of the felony. The parties agreed to redact the verdict form for the strike to eliminate reference to serious or violent felonies, and this was later done.
Defense counsel argued that the nature of the felony was irrelevant to the ammunition charge, and because it was a gang-related offense, it would unduly prejudice the jury. He also argued the officers should not testify about the specific probation conditions defendant violated, leading to the booking search, because that, too, would reveal the gang-related nature of his prior offense. His suggestion was as follows:
"My suggestion is to allow the officers to testify that they knew [defendant] had a felony conviction, knew he was on probation, knew that it was a condition of his probation not to associate with certain people, including two people he was observed with on that occasion. With regard to the C.D. that was taken out of [defendants] pocket. That had a nickname written on it. The nickname was that of one of the other people [defendant] was with that day. And that would explain to the jury—that would give the jury an explanation of why [defendant] was approached, why he was stopped, why he was taken into custody, which I think gives the jury a sufficient context to make the officers actions understandable, but does not get us into the gang area where many people in the community have such strong feelings."
The prosecutor objected that the jury might speculate that the police overstepped their authority in taking defendant to jail and searching him, unless the officers explained the reason for the arrest.
The trial court denied the defense request, concluding there was no practical way to conceal the basis for the arrest from the jury, and pointing out "I think if there was truly an interest in preventing some undue prejudice to the defendant . . . there would have been an offer to bifurcate or stipulate as we talked about in chambers. I dont know how you wrap it up the way youre suggesting, Counsel. I really dont."
Defendant contends the trial courts ruling improperly allowed the introduction of inflammatory gang evidence.
We disagree. Defendant refused to stipulate that he was a felon. His status as a felon was an element of the offense charged, possession by a felon of live ammunition. (Pen. Code, § 12316, subd. (b)(1).) As the prosecutor pointed out, unless the jury heard the reason the police stopped defendant, leading to the discovery of the ammunition, there was a risk the jury would speculate about why defendant was arrested. Further, the jury was going to see the documents evidencing defendants conviction, which described the charge as gang participation. The trial court pressed defense counsel for a workable suggestion, but none was forthcoming. Defense counsel proposed an elaborate, redacted, version of the facts. Had that version been presented, the jury would have known that it was getting a selective presentation, and that would likely have led the jury to speculate why it was not being told the truth.
In the context of propensity evidence, we have cautioned that wholesale revision of facts to avoid prejudice may itself be inappropriate: "The facts of the prior conduct were redacted to a point that the jury must have come away with a misleading impression of what happened, and this process of rewriting the facts, although it is at times necessary to further justice, is itself troubling. A trial is a search for truth. [Citations.] To the extent possible, jurors must be told the truth if they are to find the truth." (People v. Harris (1998) 60 Cal.App.4th 727, 733; see People v. Zack (1986) 184 Cal.App.3d 409, 415 ["Appellant was not entitled to have the jury determine his guilt or innocence on a false presentation"].)
We do not believe defense counsels proposed redaction was feasible, because it would likely lead to inappropriate speculation by the jury, and appellate counsel does not suggest what other method of redaction would have sufficed. In such circumstances, where no feasible alternative is shown, we cannot say the trial court abused its discretion.
Moreover, assuming for purposes of argument that the trial court erred, the error was harmless. Not all gang evidence is equally inflammatory. Evidence that defendant was on gang probation does not raise the same concerns as, for example, extensive expert testimony about the violent workings of a gang. (See, e.g., People v. Bojorquez (2002) 104 Cal.App.4th 335, 342-345.) Further, there was no effort to argue defendant was guilty because he was a gang member. (Cf. People v. Perez (1981) 114 Cal.App.3d 470, 477.) Here, the jury learned defendant was on gang probation and he was found in the presence of other gang members, wearing a blue shirt and possessing a gang CD. Because no violent or shocking gang details were presented to the jury, we find no reasonable likelihood the "jurys passions were inflamed by the evidence[.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
Further, the evidence overwhelmingly shows that defendant was found with a live pistol cartridge in his wallet, and no contrary evidence was presented. It is not "reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (People v. Avitia (2005) 127 Cal.App.4th 185, 194.) Nor did the trial courts ruling render the trial fundamentally unfair, so as to violate due process. (Cf. People v. Albarran (2007) 149 Cal.App.4th 214, 229-232 [over dissent, holding the erroneous introduction of extensive gang evidence rendered trial fundamentally unfair].)
II
Presentence Custody Credits
The trial court eventually awarded defendant presentence custody credits attributable to each case, 230 days (154 actual days from date of arrest to date of sentencing, plus 76 conduct days) for the ammunition case and 320 days (214 actual plus 106 conduct, all served before the ammunition offense was committed) for the gang case. The trial court chose to make the sentence on the ammunition offense the principal term, and imposed a consecutive 1/3 midterm of eight months (that is, 240 days) on the gang case.
Defendant contends that this improperly created what is sometimes called "dead time," that is, credits that exceed the sentence attributable to the case in which those credits were awarded. (People v. Gonzalez (2006) 138 Cal.App.4th 246, 251.) Defendant contends he should be given a single credit award, so that his excess time served on the gang case will not be "dead" time. We disagree.
Penal Code section 2900.5, subdivision (b) provides: "For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed." Because the credits awarded towards the gang offense case were based on various periods of incarceration that took place before defendant unlawfully possessed ammunition, those credits were not attributable in any way to the ammunition case.
A venerable line of cases has interpreted Penal Code section 2900.5 to preclude defendants view that he is entitled to a unitary award or reallocation to avoid "dead" time. (People v. Lacebal (1991) 233 Cal.App.3d 1061, 1064-1066 (Lacebal); People v. Adrian (1987) 191 Cal.App.3d 868, 876-877 ["credits are not reallocated: they remain assigned only to the proceedings in which they were earned"]; People v. Brown (1984) 156 Cal.App.3d 1131, 1134-1136 (Brown).)
Defendant contends that Brown has been superseded by an amendment to the California Rules of Court that speaks of a "single aggregate term" that results from the imposition of consecutive determinate terms. The rule in question provides in part: "If a determinate sentence is imposed under [Penal Code] section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences." (Cal. Rules of Court, rule 4.452, formerly rule 452.) Defendants contention is that because the trial court imposed a "single aggregate term," the trial court should have made a single credit award. However, this rule of court does not address custody credits. Further, this rule of court, under a different number, existed when Lacebal was decided, and was quoted in that decision. (Lacebal, supra, 233 Cal.App.3d at p. 1064.) Nothing in the analysis in Lacebal suggests this rule of court has the effect of eliminating "dead time" credits, or changes the statutory command that a trial court award credits based on each case in which they were earned. (Pen. Code, § 2900.5, subd. (b).) We conclude the Brown-Adrian-Lacebal line of cases remains good law.
DISPOSITION
The judgment is affirmed.
We concur:
RAYE, Acting P. J.
BUTZ, J.