Filed 6/21/13 P. v. Vand CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                           C070055

                   Plaintiff and Respondent,                             (Super. Ct. No. 62-103042)

         v.

MATTHEW VAND,

                   Defendant and Appellant.




         Pursuant to the Sex Offender Registration Act, defendant, a transient, must register
within five working days of coming into or residing in a new jurisdiction (Pen. Code,
§ 290, subd. (b))1 and update his registration within five working days if he establishes a
residence and is no longer a transient (§ 290.011, subd. (b)). A jury found defendant
guilty of failing to register as a sex offender and failing to update sex offender
registration and the court sentenced defendant to 32 months in state prison.



1 Undesignated statutory references are to the Penal Code.


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       Defendant appeals, contending that (1) law enforcement failed to advise him of his
Miranda2 rights, and therefore his statements to the arresting officer should have been
suppressed; (2) there was insufficient evidence to support a guilty verdict on either count;
and (3) application to his case of a prior version of section 4019, subdivision (f),
concerning presentence custody conduct credits, rather than the recently amended
provision (in the Criminal Justice Realignment Act of 2011), violates equal protection.
We find that the trial court appropriately denied the motion to suppress, the verdict was
supported by sufficient evidence, and applying prior section 4019, subdivision (f) is
constitutional. Additionally, we reviewed the sealed record of defendant‘s Pitchess3
motion, at defendant‘s request, and find the trial court did not err in refusing to disclose
any information. Therefore, we shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant had most recently registered in San Jose on November 3, 2010. On
Sunday, November 14, 2010, at approximately 10:15 p.m., a police officer saw
defendant‘s car parked outside of a home in Roseville. Defendant was not in the car at
the time, and the lights in the home were not on.

       On November 27, nearly two weeks later, the officer returned to the home in
Roseville, but did not see defendant or his car. The officer spoke briefly with L.F., who
lived there with her fiancé Sergio and their minor children—not about defendant, but to
warn her about recent burglaries in the area. When the officer returned to L.F.‘s home
later that day, defendant‘s car was parked at the house. Approximately 15 minutes after
the officer arrived, defendant left the house in his car. In his marked police car the
officer followed defendant approximately one-half mile into a Dollar Tree parking lot.



2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531.


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       After defendant parked his car and was walking towards the buildings, the officer
called out to defendant, ―Can I speak to you?‖ Defendant stopped, and the officer stated,
―I need to talk to you about a couple of things.‖ Defendant agreed but requested that they
talk in private, so they went to the alcove of an empty business. After doing a pat-down
search, the officer advised defendant that he was not under arrest and twice began to read
him his Miranda rights. Defendant stopped the officer, and never heard his full Miranda
rights ―because he knew he wasn‘t under arrest.‖

       The officer asked defendant what he was doing in Roseville; defendant said that
he was a transient in San Jose and that he had been staying at his friend Sergio‘s house in
Roseville about four nights each week since March 2010 and had accepted a job in
Roseville. Defendant initially said that while he refreshes at Sergio‘s house, he mostly
stays in his car; however, when the officer told defendant that he had ―checked on his
vehicle a couple of times in the middle of the night, and [defendant] wasn‘t there,‖
defendant then said he never went to sleep at night. Defendant also stated that he was last
in San Jose approximately two weeks before; since then, he had been in Roseville. The
officer then arrested defendant for failure to register under section 290. Incident to arrest,
the officer searched defendant‘s cell phone and found text messages indicating that
defendant ―was staying . . . with Sergio and [L.F.], and also he was watching the two
children [who] were there.‖ Two other officers, one with a K-9 officer, arrived at the
Dollar Tree parking lot to provide assistance if needed.

       Defendant was charged with failure to register as a sex offender and failure to
update registration. Defendant made a Pitchess motion and a motion to suppress
evidence based on Miranda, supra, 384 U.S. 436 [16 L.Ed.2d 694]. The trial court found
no admissible evidence during its in camera document review for the Pitchess motion and
denied the motion to suppress.




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       During a jury trial, the prosecution offered testimony of the arresting officer and
L.F., and several text messages found on defendant‘s cell phone. L.F. testified that
defendant had been staying at her house three or four days each week since April or May,
and that she had cleared part of a bedroom so that he could have a private place to stay.

       The jury found defendant guilty of both counts. The court denied defendant‘s
motion to strike a prior serious felony (a 1993 robbery). (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.) The court then sentenced defendant to the low term of
16 months for each count, doubled the term based on the prior strike, and stayed the
sentence as to count two under section 654.

                                      DISCUSSION

              I. Defendant Was Not Subject to Custodial Interrogation

       Defendant argues that law enforcement failed to advise him of his Miranda rights
while he was subject to custodial interrogation, thereby violating his constitutional right
to remain silent. We disagree.

       ―On review of a trial court‘s decision on a Miranda issue, we accept the trial
court‘s determination of disputed facts if supported by substantial evidence, but we
independently decide whether the challenged statements were obtained in violation of
Miranda.‖ (People v. Davis (2009) 46 Cal.4th 539, 586.) A defendant subject to
custodial interrogation ―must be warned prior to any questioning that he has the right to
remain silent [and] that anything he says can be used against him in a court of law.‖
(Miranda, supra, 384 U.S. at p. 479 [16 L.Ed.2d at p. 726].) Custodial interrogation is
―questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.‖ (Id. at
p. 444 [16 L.Ed.2d at p. 706].) Absent a formal arrest, a defendant is subject to custodial
interrogation if he ― ‗ ―is physically deprived of his freedom of action in any way or is led



                                              4
to believe, as a reasonable person, that he is so deprived.‖ ‘ ‖ (People v. Forster (1994)
29 Cal.App.4th 1746, 1753.)

       Determining whether custody occurred is a fact-specific inquiry based on the
totality of the circumstances. (Forster, supra, 29 Cal.App.4th at p. 1754.) Several
factors are useful in this inquiry: ―(1) whether the suspect has been formally arrested; (2)
absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers
to suspects; and (5) the demeanor of the officer, including the nature of the questioning.‖
(Id. at p. 1753.) Other factors ―are [(6)] whether the suspect agreed to the interview and
was informed he or she could terminate the questioning, [(7)] whether police informed
the person he or she was considered a witness or suspect, [(8)] whether there were
restrictions on the suspect‘s freedom of movement during the interview, and [(9)]
whether police officers dominated and controlled the interrogation or were ‗aggressive,
confrontational, and/or accusatory,‘ whether they pressured the suspect, and [(10)]
whether the suspect was arrested at the conclusion of the interview.‖ (People v. Pilster
(2006) 138 Cal.App.4th 1395, 1403-1404 (Pilster).)

       Here, defendant concedes there was no formal arrest during the questioning, but
argues ―a reasonable person would not have felt free to leave,‖ and he ―was arrested at
the conclusion of the interview.‖ (Pilster, supra, 138 Cal.App.4th at p. 1404.)
Furthermore, the ratio of officers to suspect was three to one. However, ―it is the totality
of circumstances that is relevant; ‗no one factor is dispositive.‘ ‖ (Forster, supra,
29 Cal.App.4th at p. 1754.) The other factors do not support a custody determination.
For example, the length of detention was brief, it occurred in a public place, defendant
agreed to speak with the officer, and defendant‘s movement was not restrained.
Defendant contends that ―[t]he officer had [him] both literally and figuratively backed
into a corner.‖ While defendant‘s back was to the corner of the alcove in which the two
were standing, this is because defendant requested they go to a private place to talk;


                                               5
indeed, this request from defendant, a request the officer granted, shows a certain control
over the situation by defendant that is indicative of a noncustodial interaction. While the
officer never told defendant that he was ―free to go,‖ the officer advised defendant that he
was not under arrest, defendant knew he was not under arrest, and there was nothing to
stop defendant from walking to his car in the parking lot and driving away.

       While there were three uniformed officers on scene, this three-to-one ratio is
insufficient, in and of itself, to support a finding of custodial interrogation. (See, e.g.,
People v. Breault (1990) 223 Cal.App.3d 125, 135 [finding no Miranda violation when
two officers questioned the defendant]; People v. Bejasa (2012) 205 Cal.App.4th 26, 36,
38-39 [two officers questioning the defendant supported a finding of no Miranda
violation; however, seven officers at the scene supported the ultimate finding of custodial
interrogation].) In terms of proximity, only the arresting officer was close to defendant
(approximately three to five feet from defendant); the second was standing 10 to 12 feet
away, and the third was 30 to 40 yards away with his K-9 officer. Furthermore, it is
unclear whether this third officer even got out of his vehicle or whether defendant saw
him. The officers never drew weapons, nor did they have their emergency lights on.

       Defendant emphasizes that the arresting officer began to ―Mirandize‖ him twice
because he ― ‗was in the corner and [the officer was] in uniform.‘ ‖ Both times, however,
defendant stopped him and never heard his full Miranda rights ―because he knew he
wasn‘t under arrest.‖ The officer‘s subjective belief that he should inform defendant of
his Miranda rights has no bearing on the objective inquiry of whether ―a reasonable
person [would] interpret the restraints used by the police as tantamount to a formal
arrest.‖ (Pilster, supra, 138 Cal.App.4th at p. 1403; see Stansbury v. California (1994)
511 U.S. 318, 323 [128 L.Ed.2d 293, 298] [―the initial determination of custody depends
on the objective circumstances of the interrogation, not on the subjective views harbored
by either the interrogating officers or the person being questioned‖].)


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       Under this totality of the circumstances inquiry, we find that defendant was not
subject to custodial interrogation; therefore, no Miranda violation occurred and the trial
court correctly admitted defendant‘s statements.

      II. There Was Sufficient Evidence to Support the Jury’s Guilty Verdict

       Defendant argues there was insufficient evidence (1) that he ―had established a
residence in Roseville at any time‖ and (2) that ―five business days during which
[defendant] failed to register had passed.‖ We disagree.

       As to the two charges against defendant, the prosecutor was required to prove
beyond a reasonable doubt that defendant failed to register within five working days of
―coming into, or changing his . . . residence‖ to Roseville (§ 290, subd. (b)) and that
defendant had been a transient but moved to a residence in Roseville and failed to update
his registration within five working days (§ 290.011, subd. (b)). ― ‗[T]ransient‘ means a
person who has no residence. ‗Residence‘ means one or more addresses at which a
person regularly resides, regardless of the number of days or nights spent there.‖
(§ 290.011, subd. (g).)

       In reviewing this evidentiary sufficiency issue, we must determine whether, after
viewing all of the evidence in the light most favorable to the judgment, there is
substantial evidence to support the trier of fact‘s findings. (People v. Johnson (1980)
26 Cal.3d 557, 562.) Substantial evidence is that ―which is reasonable, credible, and of
solid value.‖ (Id. at p. 578.) Furthermore, if ―the circumstances reasonably justify the
jury‘s findings, the reviewing court may not reverse the judgment merely because it
believes that the circumstances might also support a contrary finding.‖ (People v. Ceja
(1993) 4 Cal.4th 1134, 1139.)

       Neither party disputes that defendant is a registrant under the Sex Offender
Registration Act, nor that his most recent registration before the offenses was as a



                                             7
transient in a different jurisdiction (San Jose). Therefore, the only disputed elements for
both offenses in this evidentiary sufficiency issue are (1) residence and (2) the passage of
five working days.

       As to residence, defendant contends that residence was not established because
―[h]e had no ties to Roseville other than through a friend with whom he, and others,
would occasionally stay. He never made any attempt to register there, did not have a
parole agent there, had not grown up there, and had no family there.‖ However, these
facts miss the mark of ―residence‖ as defined in the Sex Offender Registration Act:
Residence is ―one or more addresses at which a person regularly resides, regardless of the
number of days or nights spent there.‖ (§ 290.011, subd. (g).) Defendant had been
staying at the home in Roseville four nights each week since March 2010; L.F. had
cleared part of a bedroom so that defendant and visitors could have a private place to
stay; his unoccupied car was parked at the home on November 14, 2010, at 10:15 p.m.
when the lights in the home were off; defendant and his car were again at the home on
November 27; he had accepted a job in Roseville; and he had last been in San Jose two
weeks before. Additionally, text messages were introduced into evidence indicating that
defendant ―was staying at the address with Sergio and [L.F.], and also [defendant] was
watching the two children [who] were there.‖ This constitutes substantial evidence that
defendant ―regularly resides‖ at the home in Roseville.

       As to the passage of five working days, defendant emphasizes the arresting officer
had ―absolutely no idea how often [defendant] was present in Roseville between
[November] 14th and the 27th.‖ While this is true, defendant‘s focus is misplaced. The
inquiry is not whether defendant was present in Roseville for five working days, but
whether five working days had passed since defendant established a residence in
Roseville. (§§ 290, subd. (b), 290.011, subd. (b).) The Roseville home is an ―address[]
at which [defendant] regularly reside[d]‖ (§ 290.011, subd. (g)) since March. An


                                             8
abundance of working days had passed between March 2010 (when defendant began
regularly residing at the Roseville home) and November 2010 (when defendant was
charged with the offenses). Therefore, there is substantial evidence that five working
days had passed since defendant established a residence in Roseville.

       Based on a review of the entire record in the light most favorable to the judgment,
there is sufficient evidence for the jury to have found defendant guilty of failure to
register and failure to update his registration.

                                     III. Pitchess Motion

       Defendant requests that we review the sealed record of his Pitchess motion
concerning any discoverable information regarding duty improprieties in the
investigating officer‘s personnel file. We have reviewed the sealed record and find the
trial court followed the appropriate procedures and did not abuse its discretion in
concluding there was nothing discoverable therein. (See People v. Mooc (2001)
26 Cal.4th 1216, 1220, 1228–1229 [describing the required procedures for the trial court
to follow for a Pitchess motion].)

                       IV. Presentence Custody Conduct Credits

       Finally, defendant contends that, based on equal protection, a recent amendment to
section 4019, subdivision (f), governing the accrual of presentence custody conduct
credits, must be applied to him, even though he committed his offense before the
effective date—October 1, 2011—of this explicitly prospective amendment. We
disagree.

       As part of the Criminal Justice Realignment Act of 2011, the Legislature increased
the rate at which inmates accrue presentence custody conduct credits. (Stats. 2011,
ch. 15, § 482, pp. 442-443.) The Legislature specified that this more generous rate
applies only to inmates who committed offenses on or after October 1, 2011. (Stats.


                                               9
2011, ch. 39, § 53, pp. 239-240.) Inmates who committed offenses before October 1,
2011, accrue credits at the previous, less-generous rate. (§ 4019, subd. (h).) Defendant
correctly points out that ―[d]efendants [like him] whose offenses are prior to October 1,
2011, [are eligible to] receive fewer presentence conduct credits than those defendants
whose offenses were committed on or after October 1, 2011, notwithstanding that the
length of presentence custody from October 1, 2011, may be identical.‖ However, it does
not follow that this distinction violates his right to equal protection.

       An equal protection violation occurs when (1) ―the state has adopted a
classification [in law] that affects two or more similarly situated groups in an unequal
manner‖ (In re Eric J. (1979) 25 Cal.3d 522, 530, italics omitted) and (2) the
classification fails to satisfy the requisite level of scrutiny (see FCC v. Beach
Communications (1993) 508 U.S. 307, 313 [124 L.Ed.2d 211, 221]; People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 53 (Rajanayagam)). As section 4019
regarding presentence custody credits is ―a statutory classification that neither proceeds
along suspect lines nor infringes fundamental constitutional rights,‖ rational basis is the
appropriate standard of review. (FCC v. Beach Communications, supra, 508 U.S. at
p. 313 [124 L.Ed.2d at p. 221]; People v. Wilkinson (2004) 33 Cal.4th 821, 837-838;
People v. Kennedy (2012) 209 Cal.App.4th 385, 397; People v. Ward (2008)
167 Cal.App.4th 252, 258 [rational basis review applies to equal protection challenges
based on sentencing disparities (such as the one in the present case); if strict scrutiny
were applied in these contexts, the judiciary would impermissibly intrude into the
legislative domain of setting criminal law policy].) As such, ―a legislative classification
must be upheld ‗if there is any reasonably conceivable state of facts that could provide a
rational basis for the classification.‘ ‖ (FCC v. Beach Communications, at p. 323, fn. 3
[124 L.Ed.2d at p. 227, fn. 3].)




                                              10
       Here, the two groups affected by the current version of section 4019 are (1)
defendants in custody on or after October 1, 2011, who committed an offense before
October 1, 2011, and (2) defendants in custody on or after October 1, 2011, who
committed an offense on or after October 1, 2011. In dicta, our Supreme Court has
stated that these groups are not similarly situated (People v. Brown (2012) 54 Cal.4th
314, 328-330), and the Fifth and Sixth Appellate Districts have agreed (People v. Ellis
(2012) 207 Cal.App.4th 1546, 1552; People v. Kennedy, supra, 209 Cal.App.4th at
p. 397). However, the Second Appellate District, Division One, and the Fourth Appellate
District, Division Three, have not been persuaded by the Supreme Court‘s dicta, and have
found these two groups similarly situated. (People v. Verba (2012) 210 Cal.App.4th 991,
995-996 (Verba); Rajanayagam, supra, 211 Cal.App.4th at pp. 53-54.)

       Assuming arguendo that the groups are similarly situated, there is still no equal
protection violation because the statute is supported by a rational basis. ―[T]he
Fourteenth Amendment does not forbid statutes and statutory changes to have a
beginning and thus to discriminate between the rights of an earlier and later time.‖
(Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [55 L.Ed. 561, 563].)
―[T]he practical necessity that a statutory change have a beginning provides a rational
basis for classifications that fall on either side of the statute‘s effective date.‖ (Verba,
supra, 210 Cal.App.4th at p. 996.) The effective date of October 1, 2011, is a practical
necessity, and therefore constitutes a rational basis. Similarly, ― ‗[r]equiring the
Legislature to apply retroactively any change in the law benefitting criminal defendants
imposes unnecessary additional burdens on the already difficult task of fashioning a
criminal justice system that protects the public and rehabilitates criminals.‘ ‖ (Id. at
p. 997.) Moreover, holding defendants accountable to the laws in force at the time they
committed their offenses is an important state interest; failure to do so ―weakens the
deterrent effect of the law as it stood when the inmate committed the crime.‖ (Ibid.)



                                              11
       For these reasons, applying prior section 4019 to those defendants who committed
their offenses before October 1, 2011, is supported by a rational basis. Application of the
less-generous accrual rate of presentencing custody conduct credits, in effect when
defendant committed his offenses in November 2010, does not violate his right to equal
protection.

                                      DISPOSITION

       The judgment is affirmed.


                                                             BUTZ                     , J.



We concur:



              RAYE                 , P. J.



              DUARTE               , J.




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