Filed 7/10/15 P. v. Grayson 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                                           NOT TO BE PUBLISHED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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C073803

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F06863)

         v.

WILLIAM GRAYSON,

                   Defendant and Appellant.




         Appointed counsel for defendant William Grayson has filed an opening brief that
sets forth the facts of the case and requests that this court review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d
436.) Defendant has filed a supplemental brief, claiming (1) that his speedy trial rights
were violated due to continuances of his trial requested by his counsel and granted over
his objection, (2) counsel wrongly filed a motion to suppress evidence, and (3)
insufficient evidence was offered at trial to prove his identity. Subsequently, we
permitted counsel to file a supplemental brief, contending defendant’s prior prison term

                                                             1
sentencing enhancements must be stricken. As we explain, we find these claims
unpersuasive and fail to find any arguable error that would result in a disposition more
favorable to defendant. Accordingly, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
        A jury found defendant guilty of evading a pursuing peace officer while operating
a motor vehicle. (Veh. Code, § 2800.2, subd. (a).) The trial court found that he had a
prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)1 and had
served six prior prison terms (§ 667.5, subd. (b)). The court denied his motion to dismiss
the prior serious felony allegation (§ 1385; People v. Superior Court (Romero) (1996)
13 Cal.4th 497) and sentenced him to prison for 12 years, consisting of twice the upper
term of three years plus six years for the prior convictions. He was awarded 212 days of
actual custody credit and 212 days of conduct credit (§ 4019) and was ordered to pay
various fines and fees. Pursuant to a request from appellate counsel, the trial court struck
previously imposed booking and classification fees.
        The evidence presented to the jury included the following:
        On October 11, 2012, around 9:11 p.m., Sacramento Police Officer Christopher
Shippen was on duty, driving and looking for a specific person other than defendant. The
person and defendant had the same “basic characteristics” in that they were white males
with short hair and the same average build.
        Shippen saw a male driving a motorcycle, wearing dark clothes, a long-sleeved
heavy sweatshirt or jacket, dark blue jeans, black and white shoes with a distinctive
camouflage pattern, and a black helmet. The motorcyclist was a white male with short
hair that did not extend below the helmet. Above the collar line of the motorcyclist’s
shirt was a distinctive black ink tattoo that emerged from the shoulder blades toward the




1   Further undesignated statutory references are to the Penal Code.

                                              2
center of the neck and extended three to four inches above the collar. Shippen got “a
decent look” at the motorcyclist when the patrol car was parallel to the motorcyclist and
its headlights illuminated the motorcyclist’s body.
       Shippen followed the motorcycle, ultimately with lights and sirens after the driver
violated numerous traffic laws with Shippen in pursuit. Finally, the street the two were
driving on came to a dead end at railroad tracks. The motorcyclist followed the tracks
across the railroad bridge over Highway 160 and proceeded to the north side of the
American River. Because Shippen could not follow the motorcyclist over the railroad
bridge in his patrol car, a helicopter followed the motorcyclist. Shippen drove to the
location where the helicopter was hovering near the now-abandoned motorcycle. Other
officers were also gathering at this location, including Officer Steven Thompson and his
police dog Crash. It was about 9:15 p.m. Shippen described the motorcyclist for
Thompson.
       Crash started barking, an indication that he was “smelling a bad guy,” and
Thompson announced the dog’s imminent deployment. Crash “took off” toward the
river, tracking ground and air scents associated with stress and perspiration. Crash
jumped into the river, swam approximately 10 yards, returned to shore, located a shirt at
the waterline, and tore at it violently to indicate that it was the suspect’s shirt.
       After Thompson retrieved the shirt from Crash’s mouth, the duo continued to
follow the scent. Crash led Thompson along a small bike trail through a wooded area
about 100 yards from the shoreline. Then Officer Thompson heard Crash growling and a
male voice screaming or yelling. Crash had located defendant, who was in a sleeping bag
that covered most of his lower body. The canine pursuit lasted 40 minutes. Shippen
identified defendant as the motorcyclist he had been pursuing, testifying that he
recognized defendant’s build, short hair, neck tattoo, and distinctive camouflage shoes by
brand, pattern, and color. Defendant was wet; his shirt and pants were “saturated.” The
sleeping bag defendant was found in was also “completely wet.”

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        After being advised of his constitutional rights, defendant admitted to Shippen that
the motorcycle was his. He said that he had bought it, and it had not been stolen. The
jury saw the videotape (recorded by the patrol car’s camera) of defendant’s conversation
with Shippen.
        Defendant testified that on the day of the incident he was on a bicycle, not a
motorcycle. He had partied with friends at the river for about two hours. Then he had
bathed in the river before going to sleep in his sleeping bag. He awoke to a dog biting
him repeatedly. He was drunk and shaken from the canine attack when he talked to
Shippen about the motorcycle, and he had thought they were talking about a bicycle.
        Defendant called a witness that corroborated his testimony, saying he had been
with defendant at the river that entire evening. The witness had never seen defendant on
a motorcycle. The witness acknowledged that, sometime after defendant’s arrest, he too
was arrested and had discussed the incident at issue with defendant while they were in
jail together.
                                        DISCUSSION
                                               I
                                     Right to Speedy Trial
        A. Background
        At the preliminary examination on December 27, 2012, defendant was represented
by Assistant Public Defender Alina Mendez. After the complaint was deemed an
information and defendant pleaded not guilty, the court clerk noted that the 60th day
(§ 1362, subd. (a)) was February 25, 2013.2 Trial was set for February 19, and later reset
to February 21.




2   All unspecified dates in this part of the Discussion are to 2013.

                                               4
        On February 21, defendant was represented by Assistant Public Defender John
Buchholz who asserted defendant’s desire for a speedy trial and refusal to waive time.
Counsel indicated that he would be in trial on other matters and asked that this case trail
to February 25 (the 60th day) to allow for the possibility of reassigning the case to
another attorney who could try it that day. The trial court denied the request, explaining
that any new attorney would need time to get prepared, and found good cause to continue
the case to March 4. Defendant made a Marsden3 motion in which he raised the issue of
a speedy trial. The motion was denied.
        Court proceedings resumed on March 4. Counsel for both parties noted that the
defense had filed a motion to suppress evidence and requested a continuance to March 15
for the suppression hearing and to March 20 for trial. Defendant personally objected and
emphasized that he was demanding a speedy trial and was not agreeing to waive time.
Defendant’s counsel responded that there was good cause for continuance in that the
suppression motion had resulted from recently obtained discovery and the prosecution
requested time to respond in writing. The trial court acknowledged defendant’s “very
strong objection” but found good cause for continuance until March 19.
        On March 19, an attorney from the public defender’s office appeared and
represented that Buchholz was in a jury trial, requesting good cause be found to continue
defendant’s trial to March 26--Buchholz’s first available date. The trial court again noted
defendant’s strong objection, found good cause, and continued the trial.
        On March 26, Buchholz represented that he had just been assigned another trial
and that his first available date would be April 4, announcing that date as “[z]ero of ten.”
(§ 1382, subd. (a)(3)(B).)




3   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

                                             5
       On April 4, another attorney from the public defender’s office appeared for
Buchholz, and requested to trail defendant’s trial to April 11--day seven of 10. The trial
court granted that request. The trial actually started on April 15. Defendant personally
objected to the case going forward and specifically objected to the findings of good cause
and to the resetting of the 10-day clock due to unavailable counsel. The trial court
examined the record of continuances and the good cause that had been found for each.
The court explained that it did not have authority to review those earlier decisions but
was placing the matter on the record for appellate review in the event of a conviction.
Defendant was found guilty on April 18, 2013.
       On May 7, 2013, defendant personally filed a handwritten motion to dismiss the
charge against him on the ground that his right to a speedy trial had been violated. The
trial court declined to rule on the pro per motion.
       B. The Law
       As relevant here, section 1382, subdivision (a) provides: “The court, unless good
cause to the contrary is shown, shall order the action to be dismissed in the following
cases: . . . [¶] (2) In a felony case, when a defendant is not brought to trial within 60
days of the defendant’s arraignment on an . . . information. . . .” “Whether there is good
cause for a delay beyond the 60-day limit depends on the circumstances of the particular
case and is a determination within the discretion of the trial court. An appellate court will
not disturb that determination absent a showing of abuse of discretion. [Citation.]”
(Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.)
       “Defense counsel . . . ordinarily has authority to waive the statutory speedy trial
rights of his or her client, even over the client’s objection, as long as counsel is acting
competently in the client’s best interest. [Citations.] This is because statutory speedy
trial rights are not among those rights that are considered so fundamental that they are
‘beyond counsel’s primary control.’ [Citations.] On the other hand, our concern for the
client’s right to the assistance of unconflicted counsel has led us to conclude that

                                               6
appointed defense counsel lacks authority to waive his or her client’s statutory speedy
trial rights when the client personally objects to a continuance and the sole reason for the
continuance is defense counsel’s obligation to another client. [Citations.]”
(Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 969.) A
“defendant raising the issue after conviction must prove not only unjustified delay in
bringing his case to trial but also prejudice flowing from that delay.” (People v. Johnson
(1980) 26 Cal.3d 557, 574.)
       C. Contentions
       Defendant first asserts that Buchholz replaced Mendez because Mendez had
desired to waive time for trial, which defendant adamantly opposed. The assertion is
based upon defendant’s oral conversation with Mendez that is not in the appellate record.
Nothing in the record suggests that Mendez lacked good cause to seek to waive time or
that her replacement with Buchholz somehow prejudiced defendant. In a Marsden
hearing following the substitution of counsel, Buchholz explained that Mendez would be
in trial in another case for the ensuing month and that the matter was reassigned to
Buchholz in an attempt to honor defendant’s wish for a speedy trial.
       Defendant next notes that he disagreed with counsel Buchholz’s February 21
request to trail the case and its continuance to March 4. Defendant claims that, evidently
at the Marsden hearing, he made it clear that he “did not want the Public Defender’s
office to represent” him. The transcript of the hearing does not support this claim.
Rather, at the hearing, defendant stated that he did not “have a problem with” Buchholz
and simply wanted to indicate that he was “not agreeing with” counsel “waiving [his]
time for this trial.” Moreover, the trial court noted defendant’s objection but found good
cause for the continuance based on counsel’s unavailability and the time it would take for
new counsel to prepare.
       Defendant argues that he asked Buchholz not to continue trial for purposes of
filing a suppression motion. But defendant does not claim that this (16 day) delay was

                                             7
unlawful or prejudicial. He does, however, claim the series of short continuances was
prejudicial because he lost the testimony of a “key witness,” Thomas Hope Jr. (identified
in the reporter’s transcript as Thomas Hogue), whom Officer Shippen had arrested at the
same intersection where he had first encountered defendant. The arrest of Hope occurred
shortly after the arrest of defendant. Defendant argues that Hope had appeared in court at
the beginning of trial but ceased attending due to the delay in the trial date, but there is no
evidence supporting this contention in the record. Defendant bears the burden of
supporting his arguments on appeal, and he has made no effort to do so here. He has not
shown that he was prejudiced by Hope’s absence, or even that Hope’s absence was the
result of the continuances.
       Defendant has not asserted any other claim of prejudice that resulted from the
delay in bringing the case to trial. Therefore, even if defendant has shown unjustified
delay, he has not shown resulting prejudice. (People v. Johnson, supra, 26 Cal.3d at
p. 574.) Accordingly, this claim fails.
       To the extent defendant claims that counsel rendered ineffective assistance by
failing to move for dismissal of the action based on the trial delay caused by the
continuances, we are not persuaded. “ ‘ “[If] the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged [,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In
this case, trial counsel was not asked for any explanation as to why he had failed to file a
motion to dismiss and there is none provided to us. There could easily be a satisfactory
explanation, such as counsel’s determination that the continuances were justified by good
cause and a motion to dismiss would be unwarranted, and would only result in further



                                              8
delaying defendant’s trial after he had made clear he wanted a trial as soon as possible.
Therefore, defendant has failed to show ineffective assistance of counsel.
                                             II
                                    Suppression Motion
       On February 28, 2013, Buchholz filed a motion to suppress all evidence, including
defendant’s statement, which was obtained as a result of the warrantless search and
seizure of defendant. In his supplemental brief, defendant argues that he did not want
Buchholz to file the motion because the conversation Buchholz sought to suppress helped
to prove defendant’s innocence. Defendant reasons that Buchholz’s filing of the motion
against his wishes was prejudicial in that “the end result was a redacted statement taken
out of context that reads out like [defendant] confessed to a crime that [he] did not
commit.”
       The trial court denied Buchholz’s motion to suppress, which alleged that the
officers did not have reasonable suspicion to detain defendant. Nothing indicates any
redaction occurred as a result of this suppression motion. Rather, it appears the redaction
of defendant’s statement was the result of a stipulation by counsel to remove a portion “in
which the defendant is talking about his gang affiliation within prison and his
probationary, parole status, things of that nature.” Neither the record nor defendant
indicates how this redacted portion would be exculpatory or how its exclusion would be
inculpatory. Therefore, we cannot conclude any error or prejudice resulted from counsel
Buchholz’s pursuit of the motion to suppress evidence, or as a result of the redaction.
                                             III
                             Sufficiency of Evidence of Tattoo
       Defendant next claims “the evidence used by the state to convict [him] does not
support the conviction.” He challenges Shippen’s identification of him based only on his
tattoo. Specifically, defendant questions Shippen’s ability to see the motorcyclist’s neck
tattoo during the high-speed chase at night time while the motorcyclist was wearing a

                                             9
helmet. We hold this observation when added to the other evidence presented at trial was
sufficient to permit the jury to arrive at the conclusion it reached.
       “On appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting
this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is reasonable,
inherently credible, and of solid value, the court must review the evidence in the light
most favorable to the [judgment], and must presume every fact the jury could reasonably
have deduced from the evidence. [Citations.] Issues of witness credibility are for the
jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.) “ ‘ “ ‘To warrant
the rejection of the statements given by a witness who has been believed by the [trier of
fact], there must exist either a physical impossibility that they are true, or their falsity
must be apparent without resorting to inferences or deductions.’ ” ’ [Citation.]”
(People v. Friend (2009) 47 Cal.4th 1, 41, quoting People v. Barnes (1986) 42 Cal.3d
284, 306.)
       Here, Shippen testified that although it was dark, the night was clear, and there
was ambient lighting from the streetlights. The headlights on his patrol car were on.
Shippen recalled the motorcyclist was wearing dark clothes, black and white shoes of a
specific brand with a distinctive camouflage pattern, and a black helmet. He could also
tell that the motorcyclist was a white male because Shippen could see the skin on the
back of the motorcyclist’s neck below the motorcyclist’s helmet and short hair. Shippen
also saw, above the collar of the motorcyclist’s shirt, a distinctive black ink tattoo that
came up from the motorcyclist’s shoulder blades toward the center of the neck. After
defendant was detained by Crash and his handler, Shippen identified defendant as the
motorcyclist. He testified defendant had the same build, was the same white male with
short hair, had the same distinctive tattoo visible above the collar of his shirt, and was

                                               10
wearing the same distinctive shoes as the motorcyclist. No physical impossibility or
falsity is apparent in this testimony; therefore, we will not reject it.
       Moreover, we conclude this evidence, when added to Crash’s tracking and
identification of defendant based on stress and perspiration scents, the fact that defendant
and the sleeping bag he was in were soaking wet when found, and defendant’s statements
to the police, is sufficient to support defendant’s conviction.
                                               IV
                                  Sentencing Enhancements
       In the supplemental brief, counsel contends the passage of Proposition 47 by the
electorate in November 2014 operates to retroactively invalidate the sentencing
enhancements imposed by the trial court pursuant to section 667.5, subdivision (b) for
defendant’s prior prison terms. We disagree.
       Defendant was sentenced in the instant matter to six consecutive one-year
enhancements based on his six prior prison terms. Defendant’s most recent prison term
resulted from his 2009 conviction for two counts of possession of a controlled substance.
(Health & Saf. Code, §§ 11350, subd. (a) & 11377, subd. (a).) His next most recent
prison term was imposed pursuant to his 2002 conviction for felony evasion. (Veh.
Code, § 2800.2, subd. (a).) He was released on parole from that prison term on
August 31, 2004. Defendant had one intervening felony conviction in 2006, for
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), but he was not
sentenced to prison for that conviction. All other prison terms (1985, 1989, 1993, and
1998) preceded the 2002 term noted above.
       Pursuant to section 667.5, subdivision (b), a convicted felon is subject to a one-
year sentencing enhancement “for each prior separate prison term” served before
committing the current offense. However, the enhancement does not apply for prison
terms served “prior to a period of five years in which the defendant remained free of both
the commission of an offense which results in a felony conviction, and prison custody.”

                                               11
(§ 667.5, subd. (b).) Here, the only prison sentence within five years of the commission
of the current offense is the sentence arising from defendant’s 2009 conviction. Thus, if,
as defendant claims, the enhancement for defendant’s 2009 conviction and prison
sentence is invalid, the other enhancements imposed pursuant to section 667.5,
subdivision (b) would be “wash[ed] out” as well. (See In re Preston (2009) 176
Cal.App.4th 1109, 1115-1116 [“ ‘ “washing out” ’ ” connotes “ ‘a crime-free cleansing
period of rehabilitation after a defendant has had the opportunity to reflect upon the error
of his or her ways’ ”].)
       Possession of a controlled substance in violation of Health and Safety Code
sections 11350 and 11377 was punishable as a felony at the time defendant committed
and was convicted of those offenses and sentenced to prison for those offenses (in 2009),
when he committed the current offense (in 2012), and when judgment was imposed (in
2013). (Stats. 2000, ch. 8, § 3; Stats. 2008, ch. 292, § 3; Stats. 2011, ch. 15, §§ 151, 171.)
However, in November 2014, voters passed Proposition 47, also called the “Safe
Neighborhoods and Schools Act.” (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4,
2014).) Among its provisions, Proposition 47 reclassified most violations of Health and
Safety Code sections 11350 and 11377 as misdemeanors rather than felonies, subject to
certain exceptions not applicable here. (Prop. 47, §§ 11, 13.)
       The passage of Proposition 47 also created Penal Code section 1170.18, which
provides for any defendant “currently serving a sentence for a conviction . . . of a felony
or felonies who would have been guilty of a misdemeanor under [Proposition 47] . . . had
[it] been in effect at the time of the offense [to] petition for a recall of sentence before the
trial court that entered the judgment of conviction in his or her case to request
resentencing” under the statutory framework as amended by the passage of Proposition
47. (§ 1170.18, subd. (a).) If a defendant properly seeks recall and resentencing pursuant
to section 1170.18, subdivision (a), the trial court must grant resentencing unless, in its
discretion, it determines resentencing “would pose an unreasonable risk of danger to

                                               12
public safety.” (§ 1170.18, subd. (b).) If, however, the person has already completed his
or her sentence for a felony conviction that would have been a misdemeanor if
Proposition 47 had been enacted at the time of the offense, the trial court must designate
the felony conviction a misdemeanor upon the application of a person seeking such relief.
(§ 1170.18, subds. (f), (g).) However, the trial court’s mandate to reduce such felonies to
misdemeanors upon application does not, contrary to defendant’s contention, entitle him
to relief from this court on direct appeal from a judgment imposed for a subsequent
offense.
       As a general rule, when a statute is amended “to reduce the punishment for a
particular criminal offense, we will assume, absent evidence to the contrary, that the
[enacting body] intended the amended statute to apply to all defendants whose judgments
are not yet final on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314,
323, fn. omitted.) However, this rule “is not implicated where the [enacting body] clearly
signals its intent to make the amendment prospective, by the inclusion of either an
express saving clause or its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793,
fn. omitted.)
       We have previously concluded that a defendant was not entitled to retroactive
application of Proposition 47 while the judgment from which he sought relief was on
direct appeal. (People v. Noyan (2014) 232 Cal.App.4th 657, 672.) We concluded
instead that such defendants were entitled to petition the trial court for a recall of
sentence and resentencing pursuant to section 1170.18 once the judgment was final.
(Noyan, at p. 672.) Similarly, section 1170.18, subdivision (f) provides an express
remedy for defendants who, as in this case, have already completed serving a sentence for
a felony conviction that would have been a misdemeanor under Proposition 47.
Defendant has not indicated that he has availed himself of that statutory remedy. In light
of the existence of that relief, we conclude, as we did in Noyan, that it was the
electorate’s intent that Proposition 47 be applied prospectively only. Therefore,

                                              13
defendant is not entitled on this direct appeal to have his 2009 felony conviction
redesignated as a misdemeanor.
        In light of our conclusion that defendant is not entitled to redesignation of his 2009
felony conviction on this appeal, we do not reach his claim that such redesignation
operates to retroactively invalidate his prior prison term enhancements in the current
case.
        Lastly, we are not persuaded by defendant’s contention that failing to apply
Proposition 47 retroactively violates equal protection principles. Numerous courts have
rejected similar equal protection challenges premised on “the timing of the effective date
of a statute lessening the punishment for a particular offense.” (People v. Floyd (2003)
31 Cal.4th 179, 188.) Indeed, legislative bodies “ ‘may specify that such statutes are
prospective only, to assure that penal laws will maintain their desired deterrent effect by
carrying out the original prescribed punishment as written’ ” (ibid.) and may even deny
retroactive application simply to avoid “ ‘remandments for additional sentencing
hearings’ ” (id at p. 190) for persons sentenced prior to the effective date of the measure.
Accordingly, we conclude the prospective-only application of Proposition 47 does not
violate equal protection principles.




                                              14
                                 DISPOSITION
     The judgment is affirmed.




                                               DUARTE   , J.



We concur:



     BLEASE             , Acting P. J.



     BUTZ               , J.




                                         15
