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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E055248

v.                                                                       (Super.Ct.No. RIF10005976)

ROBERT GERARD MAGDALENO,                                                 OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside 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.




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                                                I

                                      INTRODUCTION1

        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


        1   All statutory references are to the Penal Code unless stated otherwise.

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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

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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

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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

                                             5
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. (People v. Branch (2001) 91 Cal.App.4th

274, 282.) A reviewing court will reverse only if the trial court‟s ruling was “„arbitrary,

whimsical, or capricious as a matter of law.‟” (Ibid.)

       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. (People v. Lindberg (2008) 45 Cal.4th 1, 23; People v. Ewoldt

(1994) 7 Cal.4th 380, 402.)

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       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

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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.” 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

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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

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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 People v. Rajanayagam (2012) 211 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

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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 People v. Ellis (2012) 207 Cal.App.4th 1546, 1553, held:

“In our view, the Legislature‟s clear intent was to have the enhanced rate apply only to

those defendants who committed 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.”

       We agree with Rajanayagam and Ellis that the second sentence of section 4019,

                                              11
subdivision (h), 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. (People v.

Hofsheier (2006) 37 Cal.4th 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.” (People

v. Verba (2012) 210 Cal.App.4th 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

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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 People v. Rajanayagam, supra, 211

Cal.App.4th 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.

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