P. v. Alston CA4/2

Filed 4/22/13 P. v. Alston 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E055052

v. (Super.Ct.No. FWV1100368)

DENNIS JOHN ALSTON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,

Judge. Affirmed with directions.

Rex Williams, 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, Barry Carlton, and Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

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 I

INTRODUCTION

This case arises from defendant Dennis John Alston ordering items over the

Internet and paying for them with forged money orders. Defendant appeals from

judgment entered following jury convictions for forgery (Pen. Code, § 470, subd. (d);1

counts 1-4) and possession or display of a driver‟s license or identification card with

intent to commit forgery (§ 470b; counts 6-8). The jury also found true one prison prior

(§ 667.5, subd. (b)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The

jury found defendant not guilty of count 5 for forgery. The trial court sentenced

defendant to six years on count 1, and to consecutive terms of one year four months for

each of the other counts, for a total prison term of 15 years.

Defendant contends his convictions for counts 6 through 8 must be reversed

because there was insufficient evidence that he intended to commit forgery. As to counts

6 and 7, defendant argues sentencing should be stayed because the crimes were not

incidental to the offenses alleged in counts 1 through 4, and were not committed with a

single intent and objective. Defendant also argues there was insufficient evidence to

support the prior strike allegation and his presentence good conduct credits must be

recalculated under the recently amended version of section 4019. Defendant also

requests this court to order the trial court to correct the abstract of judgment to reflect

accurately only one prison prior.

1 Unless otherwise noted, all statutory references are to the Penal Code.

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 We conclude there was no error, other than that the sentencing minute order and

abstract of judgment incorrectly state defendant had more than one prison prior. We

therefore affirm the judgment, but instruct the trial court to correct the November 8,

2011, minute order and abstract of judgment to reflect that defendant had only one prison

prior.

II

FACTS

Counts 1 and 6

On February 27, 2010, defendant rented a mailbox at Postal Annex, located at

7426 Cherry Avenue in Fontana. In order to rent the mailbox, defendant filled out two

applications using the fictitious name of Daryl Wilson, and presented a California

identification (ID) card and a Department of Veteran Affairs Medical Center employee

ID card (VA ID card) (count 6). Both forms of identification were in the name of Daryl

Wilson, with defendant‟s photograph on the ID cards.

In March 2010, Brandywine Jewelry Supply (Brandywine) received an $841.50

mail order from Daryl Wilson, for silver wire, silver beads, and silver charms. A

Western Union money order (No. 14-037480295) accompanied the order (count 1). The

$900 money order was signed in the name of Daryl Wilson. Wilson requested overnight

delivery of the silver to 7426 Cherry Avenue, in Fontana, California. Because the money

order was counterfeit, the money order was returned to the bank unpaid. A $9 Western

Union money order, bearing the same number (No. 14-037480295) as the $900 money

order, was issued in February 2010. Lisa Allen, the owner of Brandywine, reported the

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incident to the Fontana Police Department. A detective retrieved the package from Postal

Annex before defendant picked it up, and returned the package to Brandywine.

In September 2010, Brandywine received a mail order for sterling wire from

Finest Degree Jewelry in Ontario California. The order included a $500 Chase Bank

(Chase) money order (No. 1983491332), signed by Dwayne Wilson. Because the

handwriting on the money order was similar to the writing on defendant‟s money order

rejected in March 2010, Allen did not deposit the money order or ship the requested

product. Chase informed her that the money order had already been cashed. Allen

notified the police of the incident.

Counts 2, 3, 4, and 7

On June 4, 2010, defendant again used the fictitious name of Daryl Wilson, doing

business as Finest Design, to rent a mailbox at Mail Plus and More, located at 1000 West

Fourth Street in Ontario. Defendant filled out an application and mailbox rental

agreement in the name of Daryl Wilson, and presented the same two forms of

identification used for the Postal Annex mailbox rental (count 7).

In September 2010, Unique Wire Weaving received a mail order from Dwayne

Wilson of Design Finest Jewelers, for silver mesh wire. A $850 Chase money order (No.

1983491332), signed by Dwayne Wilson, accompanied the order (count 2). Wilson

requested overnight delivery to 1000 West Fourth Street, Ontario, California. A week or

two after Unique Wire Weaving shipped the order, Unique Wire Weaving learned the

money order was counterfeit. The company manager, Howard Gabriel, notified

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defendant by email that the money order had been rejected by the bank, but received no

response from defendant.

In October 2010, Streakwave Wireless received a mail order from Dwayne Wilson

for telephone equipment, along with a $700 Chase money order (No. 1983491334) (count

3). Wilson requested overnight delivery to 1000 West Fourth Street, Ontario, California.

About a week after the order was shipped to defendant, Streakwave Wireless learned that

the money order was counterfeit.

Also in October 2010, Paul H. Gesswein and Company (Gesswein) received a

mail order from Dwayne Wilson of Finest Degree Jewelers for fourteen 18-carat gold

lobster claw clasps, along with a $700 Chase money order (No. 1983491334) from

Dwayne Wilson (count 4). Wilson requested overnight delivery to 1000 West Fourth

Street, Ontario, California. Within a few days of shipping the order to defendant,

Gesswein discovered the money order was counterfeit. On April 26, 2010, and October

26, 2010, defendant sold gold scrap to Grand Jewelers. The owners of Grand Jewelers

recalled that the items purchased from defendant in October probably included 18-carat

gold lobster claw clasps. Defendant provided a California driver‟s license (CDL) bearing

his actual name and an address on Adams Street in San Bernardino, but also provided his

current address in Ontario at the Motel 6.

Counts 5 and 8

On December 27, 2010, defendant rented a mailbox at Fast Mailbox Plus, located

at 10330 Central Avenue in Montclair. Defendant filled out a mailbox rental application

and signed a mailbox service agreement using the fictitious name of Jerry Green, doing

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business as Calvin Johnson. Defendant verified his identity as Jerry Green, with two

forms of identification, a CDL and a VA ID card (count 8). The CDL and VA ID card

were in the name of Jerry Green but showed defendant‟s photo.

In December 2010, Pookies Antique Treasures (Pookies) received a mail order for

a silver pitcher, along with a $800 Chase money order (No. 1983491333) from Cal

Johnson (count 5). Johnson requested the pitcher be shipped by overnight delivery to

defendant‟s mailbox at his Fast Mailbox Plus address. After shipping the order, Pookies

learned the money order was counterfeit.

Investigation

On June 9, 2010, Ontario Police Department Corporal Michael Nevin contacted

defendant at Motel 6 in Ontario, regarding an unrelated fraud investigation. Defendant

had been living at the Motel 6 under his own name since April 8, 2010. During a search

of defendant‟s room, Nevin found the following items:

1. A California ID card and VA ID card in the name of Daryl Wilson, with

defendant‟s photograph on the cards;

2. Pieces of paper with Veterans Affairs Medical Center information used to create

the VA ID card;

3. A Chase money order, dated April 9, 2010, for $100;

4. Versions of the same money order with different dollar amounts, money order

numbers, and dates;

5. Money orders that were cut and pasted together or had Wite-Out on them;

6. Versacheck paper used for checks;

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7. A list of products used to wash checks;

8. Pieces of paper indicating defendant had practiced making counterfeit Chase

money orders;

9. Pieces of paper regarding a Design Finest Yahoo email account;

10. Printouts and orders from website companies selling crafts, jewelry and precious

metals.

Defendant told Nevin that he was unemployed and had made the money orders

found in his motel room. Nevin later learned that the identification number on the

California ID card found in defendant‟s room, belonged to Elena Medovaya, not to

defendant or his alias, Daryl Wilson. Defendant‟s actual driver‟s license also showed a

different name, number and address than the name and address on the California ID card

found in his room with defendant‟s photograph on it.

On December 28, 2010, Ontario Police Department Officer Alicia Cabrera

contacted defendant in the lobby of the same Motel 6 where defendant had previously

been residing. Defendant had returned to the motel after moving out in June 2010, and

had been living there under his own name since September 7, 2010. Cabrera encountered

defendant sitting at a computer in the motel lobby, looking at an antique metals website.

Cabrera found, on a desk next to defendant, a piece of paper listing his address at Fast

Mailbox Plus as “your new address.” Cabrera also found on the desk printouts

confirming the Pookies order and orders he had placed with other vendors. Cabrera

found in defendant‟s motel room the following items:

1. Tools used to make counterfeit money orders and ID cards;

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2. Papers and notes for making ID cards for Calvin Johnson and Jerry Green;

3. Printouts for mail-orders;

4. A printout on lobster claw clasps;

5. Keys for defendant‟s Fast Mailbox Plus mail box and for entering the Fast

Mailbox Plus store;

6. A piece of paper with eight social security numbers on it.

III

SUFFICIENCY OF EVIDENCE OF INTENT TO COMMIT FORGERY

Defendant contends there was insufficient evidence that defendant possessed false

VA ID cards and California ID cards, with intent to commit forgery in violation of

section 470b.

We apply the substantial evidence standard of review when considering whether

there was sufficient evidence to support defendant‟s convictions. In doing so, this court

must “review the whole record in the light most favorable to the judgment to determine

whether it discloses substantial evidence—that is, evidence that is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People

v. Johnson (1980) 26 Cal.3d 557, 578.) “Resolution of conflicts and inconsistencies in

the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless

the testimony is physically impossible or inherently improbable, testimony of a single

witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149,

1181; see also People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363.)

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 A conviction for violating section 470b requires evidence of intent to commit

forgery. Section 470b provides: “Every person who displays or causes or permits to be

displayed or has in his or her possession any driver‟s license or identification card of the

type enumerated in Section 470a with the intent that the driver‟s license or identification

card be used to facilitate the commission of any forgery, is punishable by imprisonment

in a county jail for not more than one year, or by imprisonment pursuant to subdivision

(h) of Section 1170.” Section 470a includes “any driver‟s license or identification card

issued by a governmental agency,” such as a California ID card or VA ID card.

The offense of forgery (§ 470, subd. (a)) has three elements, namely, “a writing or

other subject of forgery, the false making of the writing, and [an] intent to defraud.”

(People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 741.) “An intent to defraud is an

intent to deceive another person for the purpose of gaining a material advantage over that

person or to induce that person to part with property or alter that person‟s position by

some false statement or false representation of fact, wrongful concealment or suppression

of the truth or by any artifice or act designed to deceive.” (People v. Pugh (2002) 104

Cal.App.4th 66, 72.)

In the instant case, defendant was convicted of counts 6 through 8 for possessing

false ID cards with intent to commit forgery in violation of section 470b. Defendant was

charged with committing count 6 on February 27, 2010, by presenting a California ID

card and VA ID card for the purpose of renting a mailbox at Postal Annex, using the

alias, Daryl Wilson. Defendant allegedly committed count 7 on June 4, 2010, by using a

California ID card and VA ID card to facilitate renting a mailbox at Mail Plus and More,

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using the alias, Daryl Wilson. Defendant was charged with committing count 8 on

December 27, 2010, by presenting a California ID card and VA ID card for the purpose

of renting a mailbox at Fast Mailbox Plus, using the alias, Jerry Green, doing business as

Calvin Johnson. In each instance, defendant rented mailboxes using ID cards with his

photograph but with aliases. Defendant used the mailboxes to facilitate theft from

various companies by placing orders of merchandise, with the merchandise delivered to

defendant‟s rented mailboxes. The trier of fact could reasonably find that defendant

rented the mailboxes with fake ID cards so as to avoid being identified as the perpetrator

of defendant‟s acts of mail order fraud.

Defendant argues there is insufficient evidence that defendant intended to use the

false ID cards to facilitate paying for the mail orders with counterfeit money orders.

Defendant notes that the fake ID cards were allegedly presented on the dates he filled out

and signed the three mailbox rental applications and agreements. Defendant argues that

there is no evidence that at that time, he intended to use the fake ID cards to facilitate

creating counterfeit money orders sent to the mail order businesses. He acknowledges

that the fake ID cards were used to rent mailboxes intended to be used to facilitate the

theft of merchandise from Internet mail order businesses but asserts this was not

sufficient for a finding of violating section 470b. He claims there was no evidence that

renting the mailboxes under the false names facilitated the mail order thefts. In addition,

defendant argues section 470b is not violated by possessing or displaying a fake ID card

with intent to facilitate theft. There must be intent to use the fake ID card to facilitate

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forgery, rather than merely theft. The ID cards were not used to cash forged checks or

for use during a purchase with a stolen credit card.

We conclude there was more than sufficient evidence defendant had the intent to

use fake ID cards to facilitate the commission of a forgery. The prosecutor argued with

regard to intent to commit a forgery, that defendant‟s “plan is open these PO Boxes under

a fake name so that he can later commit forgery, counterfeiting money orders, and having

the merchandise sent to that PO Box and making it difficult to track him down as a

perpetrator because he‟s opening it up under a fake name.” It is undisputed defendant

used falsified ID cards to rent mailboxes. There was also substantial evidence defendant

presented the fake ID cards with intent to defraud the mail order company owners, whom

defendant paid with counterfeit money orders and told to deliver merchandise to the

rented mailboxes. Defendant intended to deceive the mail order business owners and

mailbox companies as to his actual identity in the event the business owners attempted to

locate him and hold him accountable for the thefts.

Defendant argues there nevertheless was insufficient evidence of violating section

470b (counts 6, 7, and 8) because there was no evidence that, when defendant presented

the fake ID cards to the mailbox rental companies, he intended to commit a forgery.

Defendant claims the evidence only shows that he intended to rent mailboxes under

fictitious names. But the jury could reasonably find that, when he rented the mailboxes,

he intended to do this as part of his scheme to use forged money orders to purchase mail

order merchandise, which would be delivered to defendant‟s rented mailboxes. Using the

fictitious mailbox names, verified by the fake ID cards, further facilitated the forgery

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scheme because the mail order vendors were more likely to view defendant‟s mail orders

as legitimate if the name on the counterfeit money orders matched the name used for the

mailbox rentals. There was thus substantial evidence showing that defendant‟s use of the

fake ID cards was intended to facilitate a scheme of committing forgery and theft of mail

order merchandise, without defendant being detected as the perpetrator of the forgery

offenses.

IV

STAYING SENTENCES ON COUNTS 6 AND 7

Defendant contends that, if this court concludes there was sufficient evidence

establishing that he possessed false ID cards with intent to use them to facilitate the

forgeries alleged in counts 1 through 4, then defendant‟s sentences on counts 6 and 7

should be stayed under section 654.

Whether multiple convictions should be stayed pursuant to section 654 is

primarily a factual question which will not be disturbed on appeal if supported by

substantial evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) “[W]e

consider the evidence in the light most favorable to respondent and presume the existence

of every fact the trier could reasonably deduce from the evidence.” (Ibid.) Section 654,

subdivision (a), states as follows: “An act or omission that is punishable in different

ways by different provisions of law shall be punished under the provision that provides

for the longest potential term of imprisonment, but in no case shall the act or omission be

punished under more than one provision.” The purpose of section 654 is to ensure

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punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203,

1211.)

Section 654 “applies not only where there was but one act in the ordinary sense,

but also where there was a course of conduct which violated more than one statute but

nevertheless constituted an indivisible transaction. [Citation.] Whether a course of

conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If

all the offenses were incident to one objective, the defendant may be punished for any

one of such offenses but not for more than one.” (People v. Perez (1979) 23 Cal.3d 545,

551.) “On the other hand, if the evidence discloses that a defendant entertained multiple

criminal objectives which were independent of and not merely incidental to each other,

he may be punished for the independent violations committed in pursuit of each objective

even though the violations were parts of an otherwise indivisible course of conduct.”

(Ibid.) Thus, when a course of conduct is at issue, the focus of inquiry is whether the

defendant entertained single or multiple criminal objectives. (People v. Macias (1982)

137 Cal.App.3d 465, 470.)

In considering whether to apply section 654, the court in People v. Curtin (1994)

22 Cal.App.4th 528, 532, found it was appropriate to stay under section 654 the

defendant‟s conviction for forgery of a check, because forgery and burglary were “part of

the same indivisible transaction” and were “committed for a single criminal objective, to

cash the check.” (Ibid.) The facts of this case, however, are distinguishable from those

in Curtin. Here, defendant planned and carried out a relatively sophisticated scheme in

which he rented mailboxes using fabricated falsified ID cards with aliases in February

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2010 (count 6) and June 2010 (count 7). Later, in March 2010, September 2010, and

October 2010, defendant used forged money orders to purchase merchandise from

various online vendors, with the merchandise delivered to defendant‟s rented mailboxes.

Defendant‟s use of the false ID‟s (counts 6 and 7) occurred separate from the later acts of

forgery (counts 1 through 4), in which defendant purchased mail order merchandise using

forged money orders. The trial court could have reasonably found that defendant‟s use of

the false ID‟s to rent mailboxes was not “part of the same indivisible transaction” as the

subsequent mail order thefts, or necessarily “committed for a single criminal objective.”

Even though it is apparent defendant‟s overall objective was to obtain mail-order

merchandise paid for with forged money orders, he had separate objectives when he used

false ID cards to rent mailboxes on different dates and at different locations. “It seems

clear that a course of conduct divisible in time, although directed to one objective, may

give rise to multiple violations and punishment.” (People v. Beamon (1973) 8 Cal.3d

625, 639, fn. 11.) Accordingly, we conclude it was appropriate for the trial court to

impose separate sentences for each of the forgery convictions (counts 1-4), as well as

separate sentences for counts 6 and 7 for using false ID cards for the purpose of renting

mailboxes, rather than staying execution of the sentences on counts 6 and 7 under section

654.

V

STAYING SENTENCING ONLY ON COUNT 7

Citing People v. Spirlin (2000) 81 Cal.App.4th 119 (Spirlin), defendant contends

his sentence on count 7 must be stayed under section 654 because counts 6 and 7 (using

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false ID cards to rent mailboxes) involved indivisible acts or transactions with the same

objectives of renting a mailbox for the purpose of purchasing merchandise using

counterfeit money orders.

In count 6, defendant was convicted of presenting to the mailbox rental company,

Postal Annex, a false California ID card and VA ID card on February 27, 2010. The ID

cards were in the name of Daryl Wilson. In count 7, defendant was convicted of

presenting to the mailbox rental company, Mail Plus and More, on June 4, 2010, the same

false California ID card and VA ID card used on February 27, 2010. Defendant argues

there was no evidence that he did not remain in constructive possession of the ID cards

throughout the entire time he entered into both mailbox rental transactions (from June

through June 2010), and therefore he could be sentenced only once for possessing the

false ID cards.

We conclude the evidence was sufficient to support findings that counts 6 and 7

involved divisible acts or transactions with separate objectives, and therefore the trial

court appropriately sentenced defendant separately for each count. Counts 6 and 7

involve two completely separate incidents, occurring over four months apart, at different

mailbox companies. Therefore, even though defendant used the same ID cards to rent

both mailboxes in furtherance of his scheme of purchasing mail-order merchandise with

counterfeit money orders, defendant committed separate acts of renting two different

mailboxes from different companies on separate occasions. Therefore counts 6 and 7

could reasonably be found to involve independent violations subject to imposition of

separate sentencing.

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 Defendant‟s reliance on Spirlin, supra, 81 Cal.App.4th 119 is misplaced. The

defendant in Spirlin was convicted of two robberies while personally armed, and three

counts of being a felon in possession of a handgun. The three handgun possession counts

were derived from defendant‟s possession of the same gun during two robberies and

when he was arrested. Defendant was sentenced separately for each of the three gun

possession counts. The court in Spirlin held that sentencing on two of the counts must be

stayed under section 654, because defendant‟s possession of the handgun was a single act

with a single objective, and defendant had continuous, constructive possession of the gun

from a couple of months before the robberies until the defendant‟s arrest, when the gun

was found in his apartment.

Spirlin is distinguishable because, unlike counts 6 and 7, the gun possession

offense (§ 12021) in Spirlin did not require any specific criminal intent. Also a section

12021 gun possession crime may be committed by either actual or constructive

possession as long as possession is intentional. (Spirlin, supra, 81 Cal.App.4th at p. 130.)

In Spirlin the court concluded there was sufficient evidence of constructive possession to

establish defendant was in continuous possession of the gun. Therefore the defendant‟s

intent to possess the gun did not change each time he committed a robbery or when he

was arrested. (Id. at p. 131.) The court thus held defendant‟s possession of the gun was a

single act with a single objective and the trial court to stay imposition of sentence on two

of the gun possession counts.

Here, possession of the false ID cards was not all that was required for defendant‟s

count 6 and 7 convictions. Unlike in Spirlin, counts 6 and 7 are specific intent crimes,

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which require specific intent to facilitate a forgery and defraud another person. Although

there was evidence defendant used the same false ID cards in counts 6 and 7, there was

also evidence that he rented different mailboxes in counts 6 and 7, at different locations,

from different companies, on different dates, and each mailbox was used for different,

separate transactions, involving different clients. This evidence established that counts 6

and 7 involved divisible acts and transactions with separate objectives, and therefore the

trial court was not required to stay sentencing on count 7 under section 654.

VI

PRIOR STRIKE ALLEGATION

Defendant contends there was insufficient evidence to support the jury‟s true

finding that he had a prior strike conviction for robbery. Defendant argues that the

prosecution did not submit any copies of Los Angeles Superior Court records of the prior

conviction.

Normally, proving the fact and nature of a prior conviction is done by introducing

“certified documents from the record of the prior court proceeding and commitment to

prison, including the abstract of judgment describing the prior offense.” (People v.

Delgado (2008) 43 Cal.4th 1059, 1066.) “„[The] trier of fact is entitled to draw

reasonable inferences from certified records offered to prove a defendant suffered a prior

conviction. . . .‟ [Citations.] „[O]fficial government records clearly describing a prior

conviction presumptively establish that the conviction in fact occurred, assuming those

records meet the threshold standards of admissibility. (See Evid. Code, § 664 [“It is

presumed that official duty has been regularly performed”].) Some evidence must rebut

17
this presumption before the authenticity, accuracy, or sufficiency of the prior conviction

records can be called into question.‟ [Citation.]” (Ibid.) “[I]f the prosecutor presents, by

such records, prima facie evidence of a prior conviction that satisfies the elements of the

recidivist enhancement at issue, and if there is no contrary evidence, the fact finder,

utilizing the official duty presumption, may determine that a qualifying conviction

occurred. [Citations.]” (Ibid.)

“On review, we examine the record in the light most favorable to the judgment to

ascertain whether it is supported by substantial evidence. In other words, we determine

whether a rational trier of fact could have found that the prosecution sustained its burden

of proving the elements of the sentence enhancement beyond a reasonable doubt.”

(People v. Delgado, supra, 43 Cal.4th at p. 1067.)

The jury in the instant case found true the allegation that defendant was convicted

of robbery on August 6, 1987, in case No. A098955, in Los Angeles County. The People

introduced exhibit 79 to prove the prior strike allegation. Exhibit 79 included the

preliminary hearing transcript and documents prepared by a probation officer, including a

probation officer report stating defendant was convicted of robbery, for which he was

granted probation on February 2, 1990. Included with the report was an order dated

December 22, 1994, revoking probation. Defendant complains that the probation report

order is not file stamped and does not constitute part of the record of the prior conviction.

But the report includes an order signed by the judge, revoking probation. Therefore the

documents were properly considered by the court in support of the prior conviction

allegation.

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 The prosecution also submitted a supplemental probation report filed on October

30, 1995. Defendant argues the report does not mention a conviction for robbery

occurring in 1987. Defendant complains a third document, which is another probation

officer‟s report, is dated “read and approved” on December 11, 1990 by the probation

officer and counsel, and states defendant was convicted of a robbery, but the document is

not file stamped. The document is stamped, “COURT COPY,” is signed by the judge,

and is dated December 15, 1989. Another probation report stamped “court copy” and

dated October 22, 1990, states that defendant was convicted of robbery, he was granted

probation in February 1990, and the probation officer recommended revoking probation

because defendant was arrested and charged with burglary in September 1990. Another

probation report stamped “COURT COPY,” stated defendant pled guilty and was

convicted of robbery on August 6, 1987. Federal charges were dismissed. Defendant

asserts the report should not be considered because it is not file stamped, is not dated, and

a judge did not sign the report, confirming the judge read and considered it.

Defendant argues none of the probation reports could be considered part of the

record of defendant‟s prior robbery conviction because they are not file stamped, with the

exception of one report, which was filed eight years after the prior conviction and the

report makes no mention of the robbery conviction. Nevertheless, we conclude the

documents the prosecution relied upon in proving defendant‟s prior robbery conviction

contain reliable certified probation reports and court documents from which the jury

could reasonably find that defendant suffered the alleged prior robbery conviction. The

documents were certified as official records of the Los Angeles County Superior Court

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and therefore provided sufficient evidence to support the trial court‟s finding the prior

strike allegation was true. (Evid. Code, §§ 664, 1280.)

VII

GOOD CONDUCT CREDITS UNDER SECTION 4019

Defendant contends the trial court miscalculated his presentence good conduct

credits under the amended version of section 4019, effective October 1, 2011. He argues

that his constitutional equal protection rights were violated by the trial court not applying

the amended version retrospectively. We disagree.

Defendant committed the charged crimes in February, March, June, September,

and October 2010. He was sentenced on November 8, 2011. Defendant was in custody

because of a parole violation from June 9, 2010, through September 7, 2010 (91 days).

He returned to custody on December 28, 2010, and remained in custody through the date

of sentencing on November 8, 2011 (316 days). At the sentencing hearing, the trial court

awarded defendant 407 days of actual custody credit. Because defendant had a strike, he

received only 202 days of good conduct credit under the 1982 version of section 4019,

for a total of 609 days of credit.

Operative October 1, 2011, the Legislature amended section 4019 to allow all

defendants serving presentence time in county jail to be eligible for day for day credit.

(Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, Stats. 2011, ch. 39, § 53, and Stats. 2011,

1st Ex. Sess. 2011-2012, ch. 12, § 35.) Section 4019 now provides that “a term of four

days will be deemed to have been served for every two days spent in actual custody.”

(§ 4019, subd. (f).) The only defendants who are excluded from section 4019‟s current

20
day for day credit provisions are those who have a current violent felony or murder

conviction. (See §§ 2933.1, subd. (c), 2933.2, subd. (c).) By its express terms, the

amendment to section 4019 applies only to defendants whose crimes were committed on

or after October 1, 2011. (§ 4019, subd. (h).) Additionally, subdivision (h) expressly

provides that this change “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 that, despite the express terms of section 4019, he is entitled to

additional presentence conduct credit on the ground that the equal protection clause

required that the recently amended section 4019 be applied to him retroactively. Based

on our Supreme Court‟s recent decisions in People v. Brown (2012) 54 Cal.4th 314

(Brown) and People v. Lara (2012) 54 Cal.4th 896 (Lara), we conclude that equal

protection principles do not require retroactive application of the October 1, 2011,

amendment to section 4019.

In Lara, the Supreme Court explained it rejected the defendant‟s equal protection

argument because, as stated in Brown, supra, 54 Cal.4th at pages 328-330, “„“[t]he

obvious purpose”‟ of a law increasing conduct credits „“is to affect the behavior of

inmates by providing them with incentives to engage in productive work and maintain

good conduct while they are in prison.” [Citation.] “[T]his incentive purpose has no

meaning if an inmate is unaware of it. The very concept demands prospective

application.”‟ (Brown, at p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.)

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Accordingly, prisoners who serve their pretrial detention before such a law‟s effective

date, and those who serve their detention thereafter, are not similarly situated with respect

to the law‟s purpose. (Brown, at pp. 328-329.)” (Lara, supra, 54 Cal.4th at p. 906, fn. 9;

see also People v. Ellis (2012) 207 Cal.App.4th 1546, 1551 [appellate court held that the

Brown court‟s reasoning and conclusion applied equally to the Oct. 1, 2011, amendment

to § 4019, and that amendment did not apply retroactively].)

Defendant‟s reliance on In re Kapperman (1974) 11 Cal.3d 542 for the proposition

section 4019 must be applied retroactively to defendant, is also misplaced and resolved

by well settled law. As explained in People v. Ellis (2012) 207 Cal.App.4th 1546, 1552:

“Brown rejected the notion the case before it was controlled by In re Kapperman (1974)

11 Cal.3d 542 . . . , in which the court held equal protection required retroactive

application of a statute granting credit to felons for time served in local custody before

sentencing and commitment to state prison, despite the fact the statute was expressly

prospective. (Brown, supra, 54 Cal.4th at p. 330.) Brown found Kapperman

distinguishable: „Credit for time served is given without regard to behavior, and thus

does not entail the paradoxical consequences of applying retroactively a statute intended

to create incentives for good behavior. Kapperman does not hold or suggest that

prisoners serving time before and after the effective date of a statute authorizing conduct

credits are similarly situated.‟ (Brown, supra, at p. 330.)”

We agree with the reasoning and conclusions of Brown, Lara, and Ellis and,

therefore, we reject defendant‟s argument that he was entitled to additional good conduct

credits.

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 VIII

CORRECTION OF ABSTRACT OF JUDGMENT

Defendant requests this court to order the abstract of judgment and sentencing

minute order dated November 8, 2011, corrected to show that the jury only found one

prison prior allegation true. The People agree with the request.

The jury found that defendant had four prior convictions. The jury also found one

prior prison term. The sentencing minute order dated November 8, 2011, incorrectly

states that there were four prison priors, for which the trial court imposed a one-year

prison term for each of the prison priors, totaling four years, with three years stayed. The

abstract of judgment incorporates the incorrect information stated in the November 10,

2011 minute order; that defendant suffered four prison priors, rather than only one. As

the parties acknowledge, the November 8, 2011, minute order and the abstract of

judgment filed on November 10, 2011, must be amended to show that defendant

sustained only one prison prior. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral

pronouncement of sentence controls over conflicting minute order].)

IX

DISPOSITION

The matter is remanded to the trial court with directions to amend the November

8, 2011, minute order to show that the jury found only one prison prior allegation true

and the trial court imposed sentencing on only one prison prior. The trial court is

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further instructed to forward a corrected abstract of judgment to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

KING
Acting P. J.

MILLER
J.

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