Filed 1/18/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Pounders, Judge. Affirmed as modified.

Michael J. Egan, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Royal Porter McHenry, appeals after a jury trial from a petty theft with a prior conviction. (Pen. Code, § 666.) The jury found defendant had served a prior separate prison term within the meaning of section 667.5, subdivision (b). Defendant was sentenced to four years in state prison. The court imposed: a $5,000 restitution fine pursuant to section 1202.4; a $5,000 suspended restitution fine under section 1202.45; and a penalty assessment in the amount of $5,000 pursuant to section 1464. Defendant received presentence custody credit for 202 days of actual custody, and 101 days of conduct credit, for a total of 303 days. In the published portion of the opinion, we address the propriety of the $5,000 penalty assessment that was imposed.

[The following paragraph is deleted from publication.]

We appointed counsel to represent defendant on appeal. After examination of the record, counsel filed an "Opening Brief" in which no issues were raised. (People v. Wende (1979) 25 Cal.3d 436, 442.) On August 19, 1999, we advised defendant he had 30 days within which to personally submit any issues he wished us to consider. We then requested briefing on the penalty assessment issue. With this court’s permission, defendant filed a supplemental brief on November 8, 1999.

[The following discussion of the penalty assessment question is to be published.]

Defendant argues that it was improper for the trial court to have imposed a $5,000 penalty assessment on the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. We agree. This is an issue of statutory interpretation. We apply the following standard of statutory review described by the California Supreme Court: "When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826; People v. Jones (1993) 5 Cal.4th 1142, 1146.) The Supreme Court has emphasized that the words in a statute selected by the Legislature must be given a "common sense" meaning when it noted: "‘Our first step [in determining the Legislature’s intent] is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763 []; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [].)’ (People v. Valladoli (1996) 13 Cal.4th 590, 597 [].)" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) Further, our Supreme Court has noted: "‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . .’ [Citation.]" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) However, the literal meaning of a statute must be in accord with its purpose as the Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659, as follows: "We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute]. . . .’ [Citation.]" In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, our Supreme Court added: "The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation] . . . ." The Supreme Court has held: "‘The courts must give statutes a reasonable construction which conforms to the apparent purpose and intention of the lawmakers.’ (Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 813 [].)" (Webster v. Superior Court (1988) 46 Cal.3d 338, 344.) Further, the Supreme Court has held: "We have recognized that a wide variety of factors may illuminate the legislative design, ‘"such as context, the object in view, the evils to be remedied, the history of the time and of legislation upon the same subject, public policy and contemporaneous construction."’ (In re Marriage of Bouquet [(1976)] 16 Cal.3d 583, 587, quoting Alford v. Pierno (1972) 27 Cal.App.3d 682, 688 [].)" (Walters v. Weed (1988) 45 Cal.3d 1, 10.)

There are two relevant types of penalty assessments--those collected pursuant to section 1464, subdivision (a) and those assessed in compliance with Government Code section 76000, subdivision (a). (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1521.) We conclude based on the explicit language of section 1202.4, subdivision (e) that restitution fines are not subject to penalty assessments pursuant to section 1464, subdivision (a) and Government Code section 76000, subdivision (a). Section 1202.4, subdivision (e) explicitly provides: "The restitution fine shall not be subject to penalty assessments as provided in Section 1464, and shall be deposited in the Restitution Fund in the State Treasury." (See People v. Terrell (1999) 69 Cal.App.4th 1246, 1256.) There can be no question that section 1202.4, subdivision (e) explicitly bars the collection of penalty assessments pursuant to section 1464, subdivision (a). As to Government Code section 76000, subdivision (a), the issue is closer but the result is the same. Government Code section 76000, subdivision (a) states in pertinent part, "In each county there shall be levied an additional penalty of seven dollars ($7) for every ten dollars ($10) or fraction thereof which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses. . . ." (Italics added.) The specific words selected by the Legislature are that the Government Code section 76000, subdivision (a) assessment shall be collected "together with and in the same manner" as the section 1464, subdivision (a) amounts. As noted previously, no penalty assessment pursuant to section 1464, subdivision (a) may be collected on a restitution fine. Imposition of a Government Code section 76000, subdivision (a) assessment is dependent on whether one may be imposed in compliance with section 1464, subdivision (a). Since no penalty assessment can lawfully be imposed pursuant to section 1464, subdivision (a), neither is it permissible to assess one pursuant to Government Code section 76000, subdivision (a). The express language selected by the Legislature is indicative of an unmistakable legislative intent that no penalty assessments be imposed on restitution fines. Further, there appear to be no committee reports or the like that indicate a different intention on the part of the Legislature. Hence, the order imposing a $5000 penalty assessment is reversed.

[The following discussion is deleted from publication.]

We also asked the parties to brief the question whether defendant received excessive presentence custody credits. An excessive grant of presentence custody credits is a jurisdictional error which can be raised at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Welch (1993) 5 Cal.4th 228, 235-236; People v. Autry (1995) 37 Cal.App.4th 351, 364; People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1411.) We find there was error. Defendant was arrested on July 25, 1998, and sentenced on February 10, 1999. Therefore, he was entitled to only 301 days of precommitment credit, consisting of 201 days of actual custody credit, and 100 days of conduct credit. (§§ 2900.5, 4019; People v. Terrell, supra, 69 Cal.App.4th at pp. 1254-1255; People v. Autry, supra, 37 Cal.App.4th at p. 364; People v. Guillen, supra, 25 Cal.App.4th at p. 764; People v. King (1992) 3 Cal.App.4th 882, 885; People v. Smith (1989) 211 Cal.App.3d 523, 527.) We modify the judgment accordingly.

Defendant has personally raised several additional issues in a supplemental brief filed with the court’s permission on November 8, 1999. First, defendant makes a number of legal arguments all premised on the assertions: he had intended to pay for the items he was accused of stealing; he never left the department store; and the security agent’s testimony that he detained defendant outside the store was contradicted by other evidence and was not credible. Those factual issues were resolved adversely to defendant. Earl Horne, a senior security agent for Macy’s West, testified defendant took store merchandise, passed several open cash registers, and eventually exited the premises without paying for the items. Defendant was arrested outside the store with the merchandise in his possession. This was substantial evidence of theft. (§ 484; People v. Shannon (1998) 66 Cal.App.4th 649, 651-656; People v. Buonauro (1980) 113 Cal.App.3d 688, 692.) This court cannot reweigh the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Culver (1973) 10 Cal.3d 542, 548; People v. Buonauro, supra, 113 Cal.App.3d at p. 692.)

Second, defendant contends that under section 654, his 1996 theft with a prior conviction could not be used both to elevate the present offense to a felony under section 666, and to impose a prior prison term enhancement pursuant to section 667.5, subdivision (b). That contention is without merit. The Supreme Court has held that section 654 does not preclude the use of a single prior felony conviction and resulting prison term both to elevate a new offense from a misdemeanor to a felony under Vehicle Code section 23175 and to impose a prior prison term enhancement pursuant to section 667.5, subdivision (b). (People v. Coronado (1995) 12 Cal.4th 145, 157.) The Courts of Appeal have held a trial judge is not prohibited from, as here, using the same prior conviction both to elevate the new offense to a felony under section 666 and to impose a section 667.5, subdivision (b) enhancement. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1519; People v. Darwin (1993) 12 Cal.App.4th 1101, 1103-1104; People v. Price (1992) 4 Cal.App.4th 1272, 1277 [§ 667, subd. (a) enhancement]; People v. Vega (1990) 224 Cal.App.3d 506, 513, disapproved on another point in People v. McClanahan (1992) 3 Cal.4th 860, 872, fn. 6; People v. Rodriguez (1988) 206 Cal.App.3d 517, 519; People v. Levell (1988) 201 Cal.App.3d 749, 751-754; People v. Bruno (1987) 191 Cal.App.3d 1102, 1104-1007.) Defendant also contends, albeit without citing the pertinent authority, that the trial court could not rely on his 1996 conviction to impose both the upper term and the section 667.5, subdivision (b), enhancement. (§ 1170, subd. (b).) No objection was interposed and thus this contention has been waived. (People v. Davis (1995) 10 Cal.4th 463, 551; People v. Scott, supra, 9 Cal.4th at p. 353.) Even if there was error, it was not prejudicial. The trial court cited other aggravating factors in choosing to impose the upper term—defendant’s extensive record of prior convictions, and his use of multiple names, dates of birth, and social security numbers. Therefore, there is no reasonable probability of a different result. (People v. Foster (1992) 6 Cal.App.4th 1, 13-14; People v. Blessing (1979) 94 Cal.App.3d 835, 839.)

Third, defendant contends there was related juror, prosecutorial, and judicial misconduct. Defendant asserts one juror failed to reveal during voir dire that she had friends in the Los Angeles County District Attorney’s office. During trial, the prosecutor advised the court he had learned that the juror "is friends with a couple of people in the District Attorney’s office and . . . I think she was going to have lunch with one of them yesterday." The record confirms the trial court’s observation that the juror had stated during voir dire that she had friends who were criminal law attorneys, both prosecutors and defense lawyers. No misconduct of any kind occurred, there was no concealment of any bias. (People v. Majors (1998) 18 Cal.4th 385, 417; In re Carpenter (1995) 9 Cal.4th 634, 657.) Even assuming misconduct, the presumption of prejudice has been overcome. (In re Hamilton (1999) 20 Cal.4th 273, 296; People v. Majors, supra, 18 Cal.4th at p. 417.) The juror in question was excused because of illness after deliberations on the theft charge had begun. An alternate juror replaced her and the jury was instructed to begin deliberations anew. Therefore, even if there was misconduct, there was no prejudice.

Defendant asserts further juror misconduct in that the jury foreperson was purportedly acquainted with a deputy district attorney named Roger Ito who prosecuted the bifurcated trial on the prior conviction allegation. The jury foreperson, who worked at Loyola Law School, stated she did not know Mr. Ito personally, but he had spoken "on a couple of panels" at the law school "a couple of years" prior to the trial. She recognized his name. The jury foreperson had not attended the panel sessions and had not heard Mr. Ito’s presentations. She did not feel her familiarity with Mr. Ito’s name had affected her decision on the truth of the prior conviction allegation. Defendant contends this was juror misconduct. We disagree. There was no: direct violation of the oaths, duties, or admonitions imposed on the jury; concealment of bias on voir dire; outside information received; discussion of the case with nonjurors; nor involuntary exposure to events outside the trial evidence. (In re Hamilton, supra, 20 Cal.4th at p. 295; In re Hitchings (1993) 6 Cal.4th 97, 118.) Moreover, nothing in the record suggests a likelihood the jury foreperson’s familiarity with Mr. Ito’s name improperly influenced the jury. (In re Hamilton, supra, 20 Cal.4th at p. 296; In re Carpenter, supra, 9 Cal.4th at p. 657.) Further, the juror could not have improperly concealed her familiarity with Mr. Ito’s name at the time of voir dire as defendant contends. Mr. Ito did not appear for the prosecution until the bifurcated trial on the prior prison term allegation, after the jury had reached a verdict on the theft charge, long past the time voir dire was completed.

Defendants’ assertions of prosecutorial and judicial misconduct in relation to the asserted juror misconduct are also without merit. There has been no showing the prosecutor or the superior court judge failed to promptly disclose information regarding any juror. (People v. Bradford (1997) 15 Cal.4th 1229, 1334.)

Finally, defendant argues, without citation to any legal authority, that it was error to allow Mr. Ito to represent the prosecution in the second of the two bifurcated phases of the trial. No objection was interposed when Mr. Ito appeared for the prosecution in the trial court. Therefore, any objection has been waived. (People v. Williams (1997) 16 Cal.4th 153, 250; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173; People v. Saunders (1993) 5 Cal.4th 580, 589-590.)

[The balance of the opinion is to be published.]

The judgment is modified to award presentence custody credit of 301 days consisting of 201 days of actual custody credit and 100 days of conduct credit and to omit the $5,000 penalty assessment imposed under Penal Code section 1464. On remand, the clerk of the superior court shall prepare and deliver to the Department of Corrections an amended abstract of judgment consistent with this opinion. In all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P.J.

We concur:

ARMSTRONG, J.

GODOY PEREZ, J.