NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
WISEMAN, Acting P.J.
A sheriff's deputy impounded defendant Raul Rodriguez Arellano's vehicle because Arellano was driving without a valid driver's license. Incident to impoundment, the officer searched the vehicle and found methamphetamine and marijuana. Arellano pleaded guilty to possession of a controlled substance. The court deferred entry of judgment and ordered him to attend drug abuse counseling.
In a subsequent criminal case against Arellano, the court denied Arellano's motion to suppress evidence of the drugs found in the impounded vehicle. A jury found him guilty of transportation of a controlled substance, possession of a controlled substance for sale, and misdemeanor possession of marijuana. The deferred-judgment status of the first case was terminated, and the court entered judgment in both cases.
On appeal, Arellano contends that the court erred in denying his motion to suppress. We reject this contention because Arellano has forfeited his challenge to the vehicle search by failing to assert it in the trial court.
Arellano also requests that we examine the sealed transcript of the in camera hearing conducted pursuant to his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) to determine whether the court properly concluded that no discoverable documents existed. We have done so and conclude that the court's ruling was proper.
The judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
On June 5, 2007, while on patrol, Tulare County Sheriff's Deputy Burciaga observed Arellano driving. Burciaga recognized Arellano from a traffic stop he had conducted a few weeks earlier. At that time, Arellano did not have a valid driver's license. Burciaga observed Arellano pull into a market parking lot, approached him as he got out of his vehicle, and asked him about the status of his driver's license. Arellano responded that he still did not have a valid license, and Burciaga confirmed this with dispatch.
Burciaga impounded Arellano's vehicle and conducted an inventory search. While doing so, he found a bag containing four individually packaged baggies of methamphetamine in the passenger's side rearview mirror and a bag of marijuana in the driver's side rearview mirror. The People and Arellano reached an agreement, and Arellano pleaded guilty to a single count of possession of methamphetamine (Health & Saf. Code, § 11377). The trial court granted Arellano's application for deferred entry of judgment and ordered him to attend drug counseling for 18 months.
On February 11, 2008, Tulare County Sheriff's officers executed a search warrant at Arellano's residence. Arellano's girlfriend and her three children were home, but Arellano was not. Arellano had been under surveillance the previous six months. An officer testified that, during that time, he observed Arellano in what appeared to be hand-to-hand narcotics transactions approximately 10 to 15 times.
The officers found marijuana, a marijuana pipe, and a small plastic container of MSM (used in veterinary medicine, but also used as a cutting agent for methamphetamine). During the search, officers observed Arellano driving toward the residence in a green pick-up truck. About a half block from the residence, Arellano stopped and reversed course. Officers apprehended him and took him and his truck back to his residence. An officer found hidden in the engine compartment of Arellano's truck a black velvet bag, inside of which was a white plastic bag containing five bindles of methamphetamine.
On November 14, 2008, an information was filed charging Arellano with transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)); possession for sale of a controlled substance (Health & Saf. Code, § 11378); use of a false compartment (Health & Saf. Code, § 11366.8, subd. (a)); and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). The People dismissed the false compartment charge before trial.
Arellano moved to suppress evidence of the drugs found during the 2007 vehicle impoundment and inventory search. The prosecution sought to present the evidence as relevant to Arellano's knowledge of the drugs and intent to sell.
Arellano argued that the evidence found in his vehicle was obtained as the result of an unlawful detention. The prosecution responded that Burciaga's inquiry to Arellano about his driver's license in the market parking lot was a consensual encounter and the search of the vehicle was a routine inventory search incident to impoundment.
At the hearing on the motion to suppress, Arellano's counsel continued to argue that the encounter between the officer and Arellano was not consensual. Counsel did not, however, assert that impounding the vehicle was illegal, nor did she dispute the prosecution's characterization of the search as an inventory search. Defense counsel asked Burciaga if it was standard to tow vehicles when a driver has a suspended license. He responded that it was a common occurrence. She did not ask if it was standard to search towed vehicles or if Burciaga was following a standard procedure. The trial court denied the motion.
Arellano also filed a Pitchess motion seeking relevant personnel and internal affairs files of two of the detectives who participated in the search of his residence. The court reviewed in camera the detectives' files and found no discoverable documents.
On October 14, 2009, after a three-day trial, a jury found Arellano guilty of transportation of a controlled substance, possession for sale of a controlled substance, and misdemeanor possession of marijuana.
DISCUSSION
I. Motion to suppress
Arellano argues that the drugs found in the 2007 inventory search should have been suppressed because there was no showing that the search was conducted according to standardized procedures. As we will explain, Arellano forfeited this claim by failing to raise it in the trial court.
"[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.] Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal." (People v. Williams (1999) 20 Cal.4th 119, 136.)
Arellano moved to suppress evidence of the vehicle search, stating that "[t]he detention, questioning, search, and arrest were all conducted without a search warrant." The prosecution contended the initial contact between the officer and Arellano was consensual (not a detention), and the search of the vehicle was proper. The prosecution pointed out that an officer may impound a vehicle and conduct an inventory search without a warrant, citing People v. Burch (1986) 188 Cal.App.3d 172, 176-180. Arellano did not file a reply.
At the suppression hearing, Arellano's counsel focused her questioning on the officer's initial contact with Arellano—whether the officer was in uniform, whether his vehicle blocked Arellano in the parking lot, and whether the officer relied on three-week-old information. The only inadequacy asserted was that the initial interaction between the officer and Arellano was a detention unsupported by reasonable suspicion.
Now Arellano contends for the first time that the impoundment and search of Arellano's vehicle were improper because they were not conducted pursuant to standardized procedures. This argument is based on People v. Steeley (1989) 210 Cal.App.3d 887, 891, which recognized that "[a]n inventory search is reasonable ... only if conducted in good faith according to standardized procedures," and People v. Manning (1973) 33 Cal.App.3d 586, 600, which noted that, after a defendant has established that a search was made without a warrant, the burden rests on the prosecution to show justification. We reject the argument.
"The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.] But, if defendants detect a critical gap in the prosecution's proof or a flaw in its legal analysis, they must object on that basis ... or risk forfeiting the issue on appeal." (People v. Williams, supra, 20 Cal.4th at p. 130.) Since Arellano did not object on the basis that the officer did not act pursuant to standardized procedures, he has forfeited this issue on appeal.
Arellano argues that he has not forfeited the issue because impoundment and inventory were the justifications offered by the prosecution and therefore it cannot be a surprise to the People or the court that the inventory search is the subject of his appeal. We are not persuaded. A defendant's objection must be "specific enough to give the prosecution and the court reasonable notice." (People v. Williams, supra, 20 Cal.4th at p. 131.)
Had Arellano raised the specific issue he raises now, the prosecution could have presented evidence on whether the sheriff's department has standard procedures for vehicle impoundment and inventory searches. In addition, the officer could have testified about his reasons for having the vehicle towed in this particular case. Since Arellano did not give the prosecution a sufficient opportunity to make this record, we decline to address the merits of Arellano's argument.
II. Pitchess motion
On April 6, 2009, the trial court granted Arellano's motion to examine the personnel and internal affairs files related to Tulare County Sheriff's Department officers Richard Ramirez and David De La Cruz. It conducted an in camera hearing, concluding that there was no discoverable evidence. Arellano asks us independently to review the transcript of the in camera Pitchess proceeding and the personnel records for these officers that were made available to the trial court to determine whether the trial court properly exercised its discretion.
The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and Penal Code1 sections 832.5, 832.7, and 832.8. When a defendant seeks discovery from a peace officer's personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are "`potentially relevant' to the defendant's motion." (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant "`such information [that] is relevant to the subject matter involved in the pending litigation.' [Citation.]" (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
We have independently reviewed the transcript of the Pitchess proceeding and the records examined by the trial court and submitted under seal. The trial court did not abuse its discretion in determining that none of the records were relevant to the issues presented in this case. Consequently, we uphold the ruling on the Pitchess motion. (People v. Prince (2007) 40 Cal.4th 1179, 1286; People v. Hughes, supra, 27 Cal.4th at p. 330.)
III. Section 4019
Arellano was sentenced on December 8, 2009. Based on our standing order filed February 11, 2010, we deem raised the following two issues: (1) whether, under section 4019, as amended January 25, 2010,2 Arellano is entitled to recalculation of presentence work and custody credits, and (2) whether applying the amendment to section 4019 prospectively only violates equal protection principles. We conclude that Arellano is not entitled to additional credit under the amendment to section 4019 and that this result does not violate equal protection principles.3
Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional "conduct credit" for willingness to work and good behavior. (§ 4019, subds. (b) & (c); see People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The Legislature amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7, or a violent felony as defined in section 667.5, subdivision (c), may accrue in-custody credit of four days for every two days spent in actual custody.4
Under section 3, it is presumed that a statute operates prospectively "`absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared nor does it appear by clear and compelling implication from any other factors that it intended the amendment to operate retroactively.
The rule in In re Estrada (1965) 63 Cal.2d 740 does not apply here for the reasons stated at greater length in our opinion in People v. Rodriguez, review granted June 9, 2010, S181808. The Estrada court held that a statute intended by the Legislature to mitigate punishment applies retroactively. The amendment to section 4019, however, was not intended to mitigate punishment. Instead, its purpose was to reduce incarceration costs by providing criminal defendants an opportunity to increase the rate at which they accrue conduct credit. Therefore, the amendment to section 4019 applies prospectively only.
Further, prospective-only application of the amendment to section 4019 does not violate Arellano's equal protection rights. Prospective-only application of the amendment results in defendants sentenced prior to the effective date of the amendment being treated differently from defendants sentenced after the effective date. To withstand an equal protection challenge, this distinction need only bear "a rational relationship to a legitimate state purpose." (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.)
We conclude that prospective-only application passes this rational-basis test. A principal purpose of section 4019 is to encourage good conduct. (People v. Brown (2004) 33 Cal.4th 382, 405 ["`The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges'"].) Defendants such as Arellano who were sentenced prior to the effective date of the amendment cannot be further motivated to behave themselves during their presentence custody. The fact that a defendant's conduct cannot be influenced retroactively provides a rational basis for applying the amendment prospectively only.
For these reasons, we conclude the amendment to section 4019 applies prospectively only, and Arellano is not entitled to receive additional conduct credits.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Levy, J.
Cornell, J.
