Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 02380293.
Margulies, Acting P.J.
Defendant was convicted of sale of narcotics after he sold cocaine base to an undercover officer. He contends the trial court abused its discretion in denying his motion for appointment of a new attorney and in admitting evidence of a prior drug arrest and conviction. In addition, defendant contends he is entitled to additional conduct credits for time spent in jail under an amendment to Penal Code section 4019. While we affirm defendant’s conviction, we remand for modification of defendant’s conduct credits pursuant to amended section 4019.
I. BACKGROUND
Defendant was charged in an information, filed November 26, 2008, with sale of cocaine base. (Health & Saf. Code, § 11352, sub. (a).) The information contained allegations demonstrating defendant’s ineligibility for probation because he had sold cocaine base (Pen. Code, § 1203.073, subd. (b)(7)) and had sold cocaine base after a prior narcotics conviction (Pen. Code, § 1203.07, subd. (a)(11)). In addition, it alleged a sentence enhancement based on defendant’s prior conviction for possession for sale of cocaine base. (Health & Saf. Code, §§ 11370, subds. (a) & (c), 11370.2.)
At a hearing on December 1, 2008, defendant asked to replace his court-appointed counsel. During the subsequent hearing, conducted pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), defendant explained that a previous lawyer had arranged a one-year plea bargain, but he had declined the deal. Defendant was disappointed his present lawyer had not been able to get a better deal, even though when he first assumed the representation, counsel said he would try to get defendant into treatment programs or a shorter sentence. Then defendant said, “He stated before going into the courtroom that he wasn’t getting paid for my case, so I obviously, at that point, felt that he was not putting his full effort into getting me out of jail or getting me a good deal so that I could be home with my children and my wife for the holidays. That’s all I wanted.... [¶] What really upset me, Your Honor, is that I was in court for a sales case, and they went ahead and did a preliminary hearing after I told [counsel] that I wanted to waive time and I did not choose to go through with that preliminary hearing that day. And the judge said that she chose to do it anyway.” In addition, defendant contended counsel told him not to speak in court and had shushed him on occasion. Defendant suspected counsel was not dedicated to his case, and he was upset counsel had not called him to testify at the preliminary hearing.
Counsel responded, “I’m not sure what to say, really, because it’s very articulate, but it’s not true.” As counsel explained, defendant had a previous attorney who obtained for him a plea bargain offer of six months in jail and six months in treatment. Although defendant initially accepted the bargain, which counsel thought was a “pretty good deal, ” he later withdrew his plea. Because defendant was on probation at the time the present offense occurred, the court set the preliminary hearing concurrently with a motion to revoke probation. On that day, counsel arranged for the plea bargain to be offered again, and the court agreed to postpone the preliminary hearing while counsel investigated treatment programs. Defendant initially seemed inclined to go along, but he eventually insisted on no more than six months in jail or a treatment program, despite counsel’s warning that neither was feasible. At that point, the court lost patience, held the hearing, revoked defendant’s probation, and sentenced him to a year in jail. Counsel had spent “quite a bit of time” explaining the options to defendant, but he went against counsel’s advice in refusing the plea bargain. Counsel also explained he did not call defendant at the preliminary hearing because the judge gave him a signal “[s]he wasn’t going to send him to prison.”
With respect to defendant’s claim the attorney had said he was not getting paid, counsel stated that when defendant had charged him with self-interest at the time of the preliminary hearing, he had explained “that I don’t always get paid when I’m handling three or four cases in the same day. You get paid for one of them. It’s not like I’m making a lot of money on his case. I tried to explain to him if he took this deal that I was offering him, I wouldn’t be making any more money.” Counsel acknowledged telling defendant to shut up one time when “he was pretty loud” at the preliminary hearing. Counsel was concerned defendant was disrupting the hearing.
The court denied the motion, explaining it did not believe counsel’s work had been deficient. In the court’s view, when counsel detailed various possible options to defendant, defendant understood them to be promises rather than possibilities and had become disillusioned as a result.
The case proceeded to trial on February 3, 2009. An undercover officer testified he purchased drugs from defendant and signaled to other officers, who made the arrest. Defendant testified in his own defense, claiming mistaken identity.
Prior to trial, the prosecution sought an in limine order permitting the introduction of evidence of “several prior, documented incidents involving narcotics offenses” by defendant, including two prior arrests for drug sales and a prior drug conviction, under Evidence Code section 1101, subdivision (b). The prosecution argued the prior conduct and conviction were admissible to prove defendant’s knowledge of the “narcotic character of the substance” and his “intent for the purpose of sale.” The court denied the motion, viewing the evidence as “more prejudicial than probative, ” but it noted it would consider permitting introduction of the prior conviction as impeachment evidence if defendant testified.
During cross-examination at trial, defendant claimed to have been confused by the undercover officer’s conduct. When the prosecutor asked why, defendant responded, “Because I don’t sell drugs.” Somewhat later, the prosecutor questioned defendant about the circumstances surrounding the prior arrests and the conviction. In response, the court instructed the jury to consider the evidence only in evaluating defendant’s credibility; the instruction was given twice, at the time of admission and in the formal jury instructions. The court later explained it had allowed the evidence because “the door was open[ed]” by defendant’s testimony that he did not sell drugs. On redirect, defense counsel also asked defendant a series of questions about the earlier arrests.
Defendant was convicted of selling cocaine base, and the jury found true the allegation he had previously been convicted of possession of cocaine base for sale. Defendant was sentenced to a four-year prison term on the charge, but the court exercised its discretion to strike the sentence enhancement allegation.
II. DISCUSSION
Defendant contends the court abused its discretion in denying his Marsden motion and allowing the evidence of his prior conduct and conviction for possession of cocaine base for sale. He also argues he should be allowed additional presentence conduct credits under Penal Code section 4019.
A. Marsden Error
Defendant contends the trial court abused its discretion in denying his Marsden motion because (1) counsel was not being paid, creating a conflict of interest; and (2) counsel’s failure to get a better plea offer constituted inadequate representation.
“ ‘A defendant “may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.” ’ ” (People v. Jackson (2009) 45 Cal.4th 662, 682.) “ ‘ “ ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 487–488.) “We review the denial of a Marsden motion for abuse of discretion. [Citation.] Denial is not an abuse of discretion ‘unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599.)
The record does not support the premise for defendant’s first contention-that his attorney should have been replaced because he was not getting paid for his work on defendant’s case. As counsel explained to the court: “[Defendant] was telling me that I’m just in this for the money, to get paid, and I explained to him that I don’t always get paid when I’m handling three or four cases in the same day. You get paid for one of them. It’s not like I’m making a lot of money on his case. I tried to explain to him if he took this deal that I was offering him, I wouldn’t be making any more money, because this case would be over for me and for him.... [¶] I was explaining to him I wasn’t doing this, really, to-I wasn’t interested in just milking this case on the proof that it is, that I wouldn’t even be on the clock here right now with him if he had just taken the six months’ deal that I got for him.”
In other words, defendant misunderstood counsel’s explanation that he did not necessarily receive a payment for every appearance he made in defendant’s case. The fact that counsel might not have been paid for every appearance provides no grounds for concluding counsel’s overall compensation for representing defendant was inadequate, thereby arguably creating a conflict of interest. “[T]he trial court was entitled to credit counsel’s explanations and to conclude that defendant’s complaints were unfounded.” (People v. Taylor, supra, 48 Cal.4th at p. 600.)
Nor was there evidence to support defendant’s claim the prosecution failed to make a more generous plea offer because counsel’s efforts were inadequate. Defendant argues “[t]his case involved a very minor transaction and appellant wanted to spend Christmas with his family. Under the circumstances, the prosecution’s offer was not particularly generous.” Rather than a “very minor transaction, ” this was defendant’s third drug sales arrest, committed while he was on probation for the an earlier offense. Regardless of whether the prosecution’s offer was not “particularly generous, ” it was not so unreasonable as to raise concerns counsel’s representation had been inadequate. Counsel told the court he had spoken repeatedly to the prosecutor, who was unwilling to accede to defendant’s wishes. This demonstrated adequate efforts on defendant’s behalf.
Defendants’ requests to change counsel as a result of dissatisfaction with a plea offer are commonly denied. (E.g., People v. Roldan (2005) 35 Cal.4th 646, 682, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; People v. Fierro (1991) 1 Cal.4th 173, 205.) Further, disagreements about tactics are normally not grounds for a change of counsel. (E.g., People v. Roldan, at p. 682.) In the absence of evidence that counsel’s efforts on behalf of defendant to obtain a better bargain were inadequate, we find no abuse of discretion in the trial court’s denial of defendant’s motion.
B. Admission of Prior Conduct and Conviction Evidence
Defendant contends the trial court should have excluded evidence of the conduct leading to defendant’s prior arrests and his conviction as more prejudicial than probative.
As discussed above, the trial court declined to admit evidence of defendant’s prior conduct under Evidence Code section 1101 to prove intent or knowledge, reasoning the evidence was more prejudicial than probative if admitted for those purposes. The court cautioned, however, that it might be possible to use the conviction to impeach defendant, and this is the purpose for which the evidence was ultimately admitted after defendant denied selling drugs.
Initially, we note this claim has not been preserved for appellate review. Although defendant objected to the admission of this evidence under Evidence Code section 1101 at a pretrial hearing, he made no objection when the evidence was introduced as impeachment evidence at trial. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 199.)
In any event, we find no error in the admission of the evidence. Under Evidence Code section 780, subdivision (i), evidence that a defendant has testified falsely about the existence or nonexistence of any fact is admissible for purposes of impeachment. Once defendant said, “I don’t sell drugs, ” the conduct leading to his arrests and his subsequent conviction became relevant as impeachment evidence because they disproved his statement regarding his drug sales. Even if his prior conduct was not admissible under section 1101, it could be admissible if relevant as impeachment evidence. (See, e.g., People v. Rios (1998) 63 Cal.App.4th 1501, 1527 [“the other crimes evidence was not admitted to prove Rios had a disposition to commit crimes and therefore committed the charged offenses, but to impeach his credibility and was very relevant to impeach his statement that he had never been in trouble before”]; People v. Hill (1995) 34 Cal.App.4th 727, 737; People v. Cooks (1983) 141 Cal.App.3d 224, 324.)
Defendant contends that, nonetheless, the evidence should have been excluded under Evidence Code section 352. The section 352 analysis depends upon the purpose for which the evidence is admitted. If the evidence had been admitted under section 1101, the possible prejudice from its admission would be weighed against its tendency to prove defendant’s knowledge or intent. The probative value of prior conduct evidence for this purpose was limited, since, if the jury believed the testimony of the police, there was little need for additional evidence on the issues for which the prosecution had offered it-knowledge of the nature of the drugs and intent to sell. On the contrary, if the jury did not believe the police testimony, there was little additional evidentiary value in the prior conduct evidence. Under these circumstances, it was not surprising the trial court concluded the probative value of the evidence was not sufficient to overcome its potential for prejudice.
Once defendant claimed not to have sold drugs, however, the probative value of the evidence changed. In that circumstance, the tendency of the evidence to disprove defendant’s statement would be weighed against the possible prejudice. In contrast with the issues of intent and knowledge, there was no other evidence in the record bearing on the issue of defendant’s prior drug sales. Further, the prior conduct and conviction directly and strongly disproved defendant’s statement, whereas it was only indirect evidence of defendant’s intent and knowledge. As a result, the prior conduct and conviction evidence was more powerfully probative when introduced as impeachment evidence than when introduced for the purpose of proving intent and knowledge. Although the evidence continued to carry the possible prejudice associated with prior similar conduct evidence, the trial court was able to mitigate that prejudice by giving a limiting instruction. Particularly because there was no other evidence available on the issue of defendant’s credibility on this point, we would find no abuse of discretion in the trial court’s admission of the evidence, had the issue been timely raised at trial.
Defendant argues the cautionary instruction was not sufficient to cure the prejudice. We have no reason, however, to believe the jury would not have understood and followed the court’s instruction. The court gave the instruction twice, the first time immediately upon the first appearance of the other conduct evidence. While the concept of impeachment evidence is subtle, it would not have been difficult for the jury to grasp in these circumstances. Defendant claimed he did not sell drugs; the prosecution introduced evidence of past sales to demonstrate defendant was not telling the truth. Contrary to defendant’s claim, the addition of this instruction did not make the jury instructions confusing overall.
Further, any error in the admission of this evidence was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant’s guilt was very strong. The undercover officer testified he purchased drugs from defendant, identified defendant to his fellow officers, and kept defendant in sight until he was arrested. The marked purchase money was found in defendant’s possession. A second officer, who watched the transaction, confirmed the account. In contrast, defendant’s story of mistaken identity was not particularly plausible. As a result, and contrary to defendant’s claim, the introduction of prior conduct evidence did not convert the proceeding into a trial over defendant’s proclivities. The evidence of his guilt on this occasion was strong enough to overcome any possible prejudice from admission of the prior conduct evidence.
Defendant testified at the time of the sale he had been walking with another man who looked like him and was dressed similarly to him. According to defendant, the other man sold the drugs to the undercover officer and then handed defendant the marked money as payment for an earlier debt. Although the officers removed a large piece of what looked like cocaine base from the other man’s pocket at the time they arrested defendant, they threw the substance to the ground, “stomped” on it, and allowed the other man to leave.
C. Penal Code Amended Section 4019
Penal Code section 4019 provides the method for calculating the credit to which a criminal defendant is entitled against his or her term of imprisonment for good behavior and work performance while in local custody prior to imposition of sentence. In 2009, the Legislature doubled these credits in an effort to reduce the state’s expenses of incarceration. (Stats. 2009–2010, 3d Ex. Sess., ch. 28, § 50, pp. 5270–5271.) The court sentenced defendant on April 2, 2009. Penal Code amended section 4019 took effect January 25, 2010. (Pen. Code, § 4019.) Because the legislation had not taken effect at the time of his sentencing, defendant was not afforded the benefit of the amended provision when judgment was entered.
There is no dispute, however, defendant is entitled to a doubling of his work and conduct credits if the amendments to Penal Code section 4019 are retroactive, as he contends they are, because his conviction was not final at the time the amendments became effective. Whether the amendments apply retroactively has been the subject of a number of conflicting published decisions from the Courts of Appeal, and the issue is now before our Supreme Court. At least two divisions of our own district have recently held the amendments should be applied retroactively, reasoning section 4019, as amended, is an amendatory statute that mitigates punishment and therefore must be given retroactive effect under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature has clearly indicated otherwise. While we cannot cite those decisions because they have been accepted for review, we find their reasoning persuasive. Accordingly, we hold that Penal Code amended section 4019 applies to the calculation of defendant’s presentence custody credits, entitling him to two days of work and conduct credits for every two days he spent in local custody.
III. DISPOSITION
We remand the matter to the trial court to (1) amend the abstract of judgment to reflect presentence custody credits calculated pursuant to Penal Code section 4019, as amended effective January 25, 2010; and (2) forward a certified copy of the abstract of judgment as so amended to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
We concur: Dondero, J., Banke, J.