MILLER, J.
A jury convicted defendant Ron Timothy Neely of theft with a prior theft conviction (count 1—Pen. Code, §§ 484, 666).
On November 12, 2008, at approximately 9:30 p.m., Wal-Mart asset protection officer Daniel Lampi observed defendant walk through menswear toward the electronics department. Defendant picked up two different boxed computer accessories. He then walked over to the DVD section where he picked up a DVD and walked back through menswear. While in menswear defendant placed the two boxed items in the waistline of his pants. Defendant proceeded to the checkout register where he paid for the DVD; he did not pay for the computer accessories.
Defendant walked past the bar code triggered security alarm system on his way to the exit doors. Lampi contacted defendant in the space between the alarm system and the exit doors; defendant was approximately one foot from the exit doors. Lampi asked defendant if he could have the merchandise defendant had tucked into his waistband. Defendant removed the merchandise from his pants; Lampi told him to place the merchandise on the floor and defendant complied.
Defendant then "charged" Lampi, attempting to get through the exit doors. Lampi grabbed a hold of defendant and subdued him with the help of other store employees. Lampi handcuffed defendant and took him to the security office.
The police were called and defendant was arrested. Defendant was read and waived his Miranda rights; defendant informed the investigator that he went to the store to purchase a DVD. Defendant admitted having a few drinks before going to the store and that "he wasn't thinking straight." He admitted going through the register line with the electronic items, but paying only for the DVD. The parties stipulated that defendant had a prior theft offense for which he served a prison term.
Defendant contends that the trial court abused its discretion in discharging juror No. 2, the individual he characterizes as the hold-out juror against conviction. Defendant specifically avers that the trial court's failure to interview juror No. 2 resulted in a legally inadequate inquiry into the charges of juror misconduct. This is particularly so, he maintains, since the foreman, the juror making the charges of misconduct, was the only juror interviewed by the court. We hold that the trial court acted within its discretion.
After the close of evidence, the trial court instructed the jury. As specifically pertains to the underlying charge, the court gave the jury CALCRIM No. 1800, which reads as follows: "The defendant is charged in Count 1 with petty theft, in violation of . . . section 484. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant took possession of property owned by someone else; [¶] Two, the defendant took the property without the owner's consent; [¶] Three, when the defendant took the property, he intended to deprive the owner of it permanently; [¶] And four, the defendant moved the property, even a small distance, and kept it for any period of time, however brief. [¶] For petty theft, the property taken can be of any value, no matter how slight." The jury retired to deliberate following closing arguments on June 17, 2009.
On June 18, 2009, at 11:00 a.m., the jury sent the court a question requesting "law section 484 (actual law verb[i]age) [¶] describe in writing (elements of the crime)." The jury also requested a read back of the arresting officer's testimony. The trial court responded, "please review CALCRIM [No.] 1800 & 1850." At 11:30 a.m. the same day, the jury sent the court another request asking if "[No.] 4 moving the property even a small distance . . . does this mean the property h[as] to leave the store or is it being moved in the store?" Both counsel provided arguments to the court concerning the proposed response.
The People argued that the court should inform the jury that the item does not need to leave the store: "I think it's appropriate and sometimes necessary for the Court to clear up any misconceptions of the law. It's not a requirement . . . of this instruction or the CALCRIMs that it be removed from the store. So I think that's appropriate to say, no, it does not have to be moved from the store." Defense counsel asserted that the court should merely refer the jury again to CALCRIM No. 1800. The court concluded, "I think some jurors sometimes have a hard time with the conception, well, if the person didn't actually leave the store with it, . . . are they still really guilty of a theft. And I can see where they're thinking, well, until the person walks out. [¶] But the issue isn't where the property goes. The issue is the movement of the property with the intent to take it." The court responded to the jury that "The property does not need to leave the store if you find an intent to take the property under element #2 in CALCRIM #1800."
On June 19, 2009, the jury submitted another question to the court: "`Please instruct. A juror is going above the scope of instructions. What do we do? The problem is the defendant placed the items in question on the floor and never went outside the doors of the store with the items, as a possible return, by placing the items on the floor after being stopped by the loss prevention officers. . . . [¶] . . . The jury is unable to make a determination without some direct evidence.' The court indicated its inclination would be to bring the foreperson into court to "see whether or not the dispute is a refusal to follow the law, as opposed to a legitimate dispute about the facts. If it's a dispute about the facts, so be it. If it's a dispute about the law, then we have to take further action . . . ."
The court invited the jury foreman into the courtroom and inquired: "[T]here's a difference between not following the law and just having a different view of what the law is or a different view of what the facts are. So that's what we need to find out." The foreman replied "No, there isn't a dispute as to what happened. It's the law. They have a problem because it's not—not going outside the boundaries of the store." The foreman indicated that the problem persisted despite the fact that the court had instructed them that the item need not leave the store in order to support a conviction. When asked if it was one or more jurors that were having the problem, the foreman replied that it was only one juror. When asked if she was sure that none of the facts were in dispute she replied "No [¶] . . . [¶] . . . None of the facts are in dispute."
The People requested that the juror who was unable to follow the law be removed and replaced by an alternate. The court commented that "the dispute is, . . . apparently, one juror is contending that because the person didn't leave the store, therefore, they're not guilty of theft. And that's just not the law. That's not what the instructions say. The instructions say asportation of the property for any movement, however slight. And, of course, there has to be the intent to take the property. [¶] Now, if that person believes that they didn't intend to take it because they never left the store, fine. But I don't know as that's exactly what they're telling us. I think what they're telling us is, . . . that the person had the property, but just because they didn't somehow, for whatever reasons, get out of the store, they're therefore not liable for theft." Defense counsel responded that the foreperson's answers settled that the jury had agreed on the facts, but not necessarily on the issue of intent. Defense counsel specifically advised against bringing in the juror and being "heavy handed." Thus, defense counsel determined "[i]t's time to put in the alternate, and . . . allow them to deliberate with . . . someone who is willing to follow the law." The court noted that both sides were in agreement and dismissed juror No. 2, replacing him with an alternate.
"Section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is `found to be unable to perform his or her duty.' A trial court `has broad discretion to investigate and remove a juror . . . where it finds that, for any reason, the juror is no longer able or qualified to serve.' [Citation.] A juror's inability to perform `"must appear in the record as a `demonstrable reality' and bias may not be presumed." [Citations.]' [Citation.] We review the trial court's determination for abuse of discretion and uphold its decision if it is supported by substantial evidence. [Citation.]" (People v. Bennett (2009) 45 Cal.4th 577, 621.) "A juror who refuses to follow the court's instructions is `unable to perform his duty' within the meaning of . . . section 1089. As soon as a jury is selected, each juror must agree to render a true verdict `"according only to the evidence presented . . . and to the instructions of the court."' [Citation.]" (People v. Williams (2001) 25 Cal.4th 441, 448.)
"`"The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial."' [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute `good cause' to doubt a juror's ability to perform his or her duties and would justify his or her removal from the case. [Citation.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1348.) Nevertheless, "`[A] trial court's inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible . . . .' [Citation.] The purpose of this rule is to protect `the sanctity of the jury's deliberations.' [Citation.] `"To avoid a chilling effect on the jury's deliberations, a trial court may decline to require jurors to testify when the testimony will relate primarily to the content of the jury deliberations."' [Citation.]" (People v. Barber (2002) 102 Cal.App.4th 145, 150 (Barber).)
Here, the court acted within its discretion both in the scope of its investigation and in its ultimate dismissal of juror No. 2.
Within one-half hour, the jury came back with another request specifically asking if the property needed to be removed from the store to support a conviction. This reasonably suggests that the jury was seeking precisely the same information as in its first request. The court appropriately responded to the second request that the property need not leave the store so long as the perpetrator intended to permanently deprive the owner of the property. (People v. Shannon (1998) 66 Cal.App.4th 649, 654 and cases cited therein ["[O]ne need not remove property from the store to be convicted of theft of the property from the store."].) Nevertheless, the jury required additional clarification.
The third jury request on the issue specifically indicated that "a juror is going above the scope of the instructions" and that it related particularly to the issue of whether the property had been removed from the store. When questioned, the foreperson indicated that the jury had no dispute regarding the facts. Rather, one juror, despite having read the court's response that the property need not have left the building to support a conviction, apparently refused to convict simply because the property had not left the building. Both counsel and the court concurred in this interpretation of the juror's actions. Thus, by ignoring the law and the court's instructions, the juror committed misconduct. The court acted well within its discretion in dismissing the juror and substituting him with an alternate.
Contrary to defendant's assertion, we do not believe that the court's response confused the jury into conflating the asportation and intent elements of the offense. The court responded to the jury's second question that so long as it determined that defendant had the intent to permanently deprive the owner of the property, he could be found guilty of the offense regardless of whether he removed the property from the store. Here, it was clear the jury agreed on all the facts, including the intent element. The only subject of disagreement was with the law, i.e., whether defendant had to have removed the property from the store in order to be convicted. As the court clearly informed the jury, this was not an element of the offense. Thus, juror No. 2's refusal to abide by the court's instruction amounted to misconduct for which he was properly removed.
Likewise, we disagree with defendant's contention that the court investigation into the matter was legally inadequate. Defendant maintains that the court should have interviewed juror No. 2. However, at least one court cited by defendant has found that a trial court errs "by asking questions of the jurors that reveal[] the identity of the lone holdout juror . . . ." (Barber, supra, 102 Cal.App.4th at p. 147.) Here, by interviewing juror No. 2, the court would have done precisely what Barber concluded was error.
Defendant cites Barber for the proposition that the questioning of the only juror(s) making the allegations of misconduct constitutes error. We find Barber distinguishable. In Barber, the foreperson informed the court that it was "`hopelessly deadlocked'" at 11 to 1 after having deliberated in good faith. (Barber, supra, 102 Cal.App.4th at p. 148.) The defense objected to the court questioning the jury. Nevertheless, the court asked the jurors whether everyone had deliberated in good faith. Seven jurors said that they had; five jurors "answered no." The court then questioned the five jurors who "answered no"; they alleged that a single other juror was refusing to deliberate; they identified the juror. The court then permitted both counsel to question the jurors about the alleged misconduct. (Ibid.) The prosecutor then "extensively examine[d]" the purportedly offending juror. (Id. at p. 151) The appellate court held that "the trial court erred by asking questions of the jurors that revealed the identity of the lone holdout juror, by allowing the prosecution to examine the holdout juror, and by allowing testimony from only those jurors who claimed the holdout juror was not deliberating in good faith." (Id. at p. 147.)
In the present case, at no time did any of the jurors indicate that they were "hopelessly deadlocked." Moreover, at no time did the foreperson indicate how the jury was split. Indeed, the trial court specifically directed the foreperson not to reveal such information. Thus, the trial court began its analysis of the jury's latest question in a much different context than the court in Barber. Furthermore, the trial court never permitted questioning of the foreperson that would identify the allegedly offending juror until after it had already decided to have him removed. The court did not selectively question the jurors based on their allegations, but queried only their appointed leader. Finally, even if "`individual questioning may have been preferable,' . . . the court's failure to privately question each juror was not constitutionally required." (Barber, supra, 102 Cal.App.4th at p. 152, citing People v. Pinholster (1992) 1 Cal.4th 865, 928.) The court's inquiry was adequate. It acted within its broad discretion in dismissing juror No. 2.
The trial court sentenced defendant on July 17, 2009, under the version of section 4019 then in effect, which allowed a prisoner in local custody to obtain one day of conduct credits and one day of work credits for every four days served, if the prisoner served a minimum of six days in local custody. (Former § 4019, subds. (b), (c), (e).) Accordingly, the court gave defendant credit for 31 actual days and 14 days conduct for a total of 45 days.
On March 2, 2010, while this appeal was pending, defendant filed a motion in the trial court asking the court to apply the amended version of section 4019, which became effective on January 25, 2010. Under the amended statute, a defendant may earn up to two days of conduct credits for every two days served in local custody before sentencing. (§ 4019, subds. (b)(1), (c)(1), (f).) The trial court denied defendant's request. Defendant asserts that he is entitled to 30 additional days of conduct credits, for a total credit of 61 days.
The appellate courts are divided on the question of the retroactivity of the amendment to section 4019. The issue is currently under review before the California Supreme Court in a number of cases, including one case emanating from this court.
Section 3 provides that the Penal Code shall not have retroactive effect unless expressly so declared. "Thus, `"[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]"' [Citation.]" (People v. Landon, supra, 183 Cal.App.4th at p. 1106, quoting People v. Alford (2007) 42 Cal.4th 749, 753.)
In reaching its holding, the Estrada court explained: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Estrada, supra, 63 Cal.2d at p. 745.) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
Relying on Estrada, supra, in People v. Doganiere (1978) 86 Cal.App.3d 237, 240 (Fourth Dist., Div. Two), we held that amendments to section 2900.5, which provided that section 4019 conduct credits are to be applied to the sentence ultimately imposed, were retroactive. (See also People v. Hunter (1977) 68 Cal.App.3d 389, 393 [amendment to § 2900.5 to credit probation jail time to sentence, when probation is revoked, is retroactive].) This holding was based on the premise that there is no legal distinction between decreasing the maximum sentence for a crime and increasing presentence credits because both mitigate punishment. (See People v. House, supra, 183 Cal.App.4th at p. 1057; Hunter, at p. 393.) But despite numerous cases applying Estrada, the California Supreme Court has not held that increases to the custody credit scheme constitute mitigation of punishment. Rather, our Supreme Court has consistently characterized the custody credit scheme as a means of encouraging and rewarding good behavior. (People v. Brown (2004) 33 Cal.4th 382, 405; People v. Sage (1980) 26 Cal.3d 498, 510 (conc. & dis. opn. of Clark, J.); People v. Saffell (1979) 25 Cal.3d 223, 233.)
Furthermore, because conduct credits are intended to motivate good behavior, the section 4019 amendment, which increases the credit accrual rate, does not represent a determination that a prior punishment is too severe. (See Rodriguez, supra, 183 Cal.App.4th at p. 9 ["it cannot be said that the punishment-reducing amendment at issue here `obviously' evinces a legislative determination that sentences for some felons are too severe, or that the Legislature intended a reduction in sentence for some felons should be extended to all to whom it lawfully can be extended"].) We thus conclude that the Estrada exception to prospective application of a new or amended statute does not apply, and there is no presumptive retroactivity. (See In re Kapperman (1974) 11 Cal.3d 542, 546; see also Otubuah, supra, 184 Cal.App.4th at p. 436.)
We conclude, as we did in Otubuah, supra, 184 Cal.App.4th at page 436, that, "[h]aving searched for a legislative intent regarding prospective or retroactive application, we agree with the Fifth District that `there is no "`clear and compelling implication'" [citation] that the Legislature intended the amendatory statute at issue to apply retroactively. Accordingly, the section 3 presumption is not rebutted.' (Rodriguez, supra, [183 Cal.App.4th 1, 13]; see also In re E.J.[ (2010)] 47 Cal.4th [1258,] 1272 [`"[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application."'].)"
As the court in Hopkins, supra, 184 Cal.App.4th 615, recently explained in support of its holding that the section 4019 amendment applies prospectively only: "Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 18), the legislation which amended section 4019, was enacted in order to address the state's fiscal emergency, as proclaimed by Governor Schwarzenegger in December 2008. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 62.) By increasing the amount of credits available to certain inmates, qualifying inmates' terms will be shortened and prison populations reduced, resulting in reduced costs to the state. Obviously, if the amendment to section 4019 operated retroactively it would result in greater savings to the state, since more inmates would be eligible to have their prison terms reduced. It does not follow, however, that applying the amendment prospectively is inconsistent with the Legislature's goal. Prospective application of the amendment also results in savings; it simply results in less savings than would retroactive application. Therefore, we do not think that the Legislature's intent to reduce prison expenditures is particularly instructive on the issue of retroactivity. It certainly cannot be conflated into a determination, as in Estrada, that the original punishment for a particular crime was too severe and that a lesser punishment was more appropriate. `Rather, because the express purpose of Senate Bill [No.] 18 was to address the state's fiscal emergency, it is also plausible the Legislature determined the following: The persons whose sentences will be reduced under the section 4019 amendment are just as culpable and deserving of punishment as they were before the amendment; after all, there has been no legislative determination that the offenses for which those persons were sentenced should be punished less severely.' [Citation.]" (Hopkins, at p. 625, quoting in part Rodriguez, supra, 183 Cal.App.4th at p. 9.) The court in Hopkins thus concluded the rule laid out in Estrada was not applicable "because the amendment to section 4019 does not necessarily lessen a defendant's punishment. Instead, it allows only for additional conduct credit, which must be earned, as opposed to additional custody credit which is awarded to a defendant simply because he or she is in presentence custody. Applying the amendment to section 4019 retroactively would not advance the statute's purpose of rewarding good behavior while in presentence custody, since it is impossible to influence behavior after it has occurred. [Citation.]" (Hopkins, at p. 625, fn. omitted; Rodriguez, at p. 1.)
Accordingly, we conclude that the amendment to section 4019 applies prospectively and that defendant is not entitled to an increase in his custody credits.
The judgment is affirmed.
We concur:
RAMIREZ, P. J.
KING, J.
