Opinion
B226717
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. LUIS ANTONIO CRUZ, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA105452)
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary E. Daigh, Judge. Affirmed in part, reversed in part, modified in part and remanded with directions.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Luis Antonio Cruz, was convicted by a jury of four counts of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).) The jury found there were multiple victims. (§ 667.61, subds. (b), (c)(9), (e)(4).) Defendant was sentenced to 60 years to life in state prison.
All future statutory references are to the Penal Code unless otherwise noted.
Defendant argues he was questioned by Los Angeles County Sheriff's detectives while incarcerated in North Carolina in violation of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436, 444-445 (Miranda).) Defendant asserts he was in custody for Miranda purposes when he was interrogated. Therefore the trial court erred in denying his pretrial motion to suppress his statements. We conclude defendant was not in custody for Miranda purposes when he spoke with the detectives. Therefore, Miranda warnings were not required. We have noted several jurisdictional sentencing issues. We modify the judgment as it relates to fines and presentence custody credit. Upon remittitur issuance, the trial court is to make an ability to pay determination in connection with the section 290.3, subdivision (a) sex offender fine.
II. FACTS
The circumstances surrounding defendant's statements were elicited at a pretrial suppression hearing. The two detectives who questioned defendant in prison testified to the following facts. In October 2008, the Los Angeles County Sheriff's Department assigned Detective Michael Silva to investigate allegations defendant had sexually molested several nieces in California. (The victims called defendant their uncle, and the parties refer to the victims as defendant's nieces. In reality, they are cousins.) On December 5, 2008, Detectives Silva and Sean Van Leeuwen interviewed defendant at the Lumberton Correctional Institution in North Carolina. Defendant had been convicted in North Carolina in October 2008 of molesting two nieces there. Both detectives were experienced law enforcement officers who had been assigned to the special victims' bureau for several years.
The two detectives were met at the North Carolina prison by an individual identified only as Captain McCray. Captain McCray escorted the detectives to a break room in defendant's housing unit. The room was approximately 10 by 15 or 12 by 8 feet in size. One or two doors led into the room, which was equipped with a refrigerator, a counter and a sink. The room was located along a passageway. It was 10 to 15 feet from a door that led to the inmate housing area. The inmate cells were 50 to 100 feet away. A window faced the passageway outside. Inmates and others could be seen walking past the room during the entire duration of defendant's interview. Other inmates could be seen cleaning up and preparing food.
There was no specific evidence as to what transpired prior to defendant's arrival at the break room. Detective Van Leeuwen testified: "[Captain McCray] caused [defendant] to be there. I don't think he went and escorted him. I think he requested somebody else to bring [defendant]." Somebody else brought defendant to the break room. Defendant was dropped off at the break room. The unidentified person left. Captain McCray actually walked defendant into the room where the detectives were waiting. Defendant was not handcuffed or restrained in any way. The door was closed but unlocked. Captain McCray, who was in uniform, continually walked in and out of the room. Defendant and the two detectives sat at a long table. Detective Van Leeuwen sat three to four feet from defendant. The detectives were casually dressed and did not display anything identifying them as peace officers. When present, Captain McCray leaned against the counter at the other end of the room, 8 to 10 feet from defendant. The interview occurred during the day and lasted between one and two hours. Defendant was served a meal at some point.
Detective Van Leeuwen conducted the interview in Spanish, defendant's native tongue. Detectives Van Leeuwen and Silva were introduced as sheriff's detectives from Los Angeles County. Detective Van Leeuwen told defendant that Detective Silva was investigating a case. Detective Van Leeuwen indicated Detective Silva thought defendant might know something about it. Detective Van Leeuwen explained that defendant did not have to speak with them. Defendant was told that he was free to leave at any time he wished. The conversation was as follows: "[Detective Van Leeuwen:] You don't have to talk with us, uh . . . [¶] [Defendant]: Uh, huh. [¶] [Detective Van Leeuwen:] You can leave when you want. Ok[a]y? [¶] [Defendant]: Uh, huh." Defendant at no time said or otherwise indicated that he did not want to talk to the detectives. On the contrary, defendant indicated he understood that he did not have to speak to the detectives. He did not appear confused. Detective Van Leeuwen testified, "At the time it was clear he was fine talking with us." Defendant never stood up or made any gesture or motion indicating that he wanted to end the interview. The detectives never attempted to prevent defendant from terminating the interview or leaving the break room. The overall tone of the interview was cordial. Detective Silva testified the tone of voice Detective Van Leeuwen used was "very" calm.
Defendant was told defendant's nieces in California had accused him of sexually abusing them. Detective Van Leeuwen said it was important for the sake of the nieces and the family that defendant tell the truth. Defendant was asked what had happened with his nieces. Detective Van Leeuwen explained that the detectives knew what had happened and they did not have any doubt about it. But defendant was told this was his opportunity to help the girls by telling the truth. Detective Van Leeuwen said: "[R]ight now is your opportunity . . . to fix it . . . [¶] . . . [¶] [M]end your relationships . . . [¶] . . . [¶] with your family . . . ." Detective Van Leeuwen confronted defendant with the nieces' accusations. Defendant was told there were only two options, either he was a bad man or had made a mistake. Defendant admitted the abuse had occurred. At the end of the interview, defendant wrote a letter of apology to his family, which he read to the detectives.
III. DISCUSSION
A. Defendant's Confession
Defendant contends he was in custody for Miranda purposes when he was questioned and the trial court erred by admitting his statements into evidence. Our review is de novo. (People v. Thomas (2011) 51 Cal.4th 449, 476; People v. Gamache (2010) 48 Cal.4th 347, 385.) Our Supreme Court has held: "'In reviewing constitutional claims of this nature, it is well established that we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' (People v. Cunningham (2001) 25 Cal.4th 926, 992.)" (People v. Thomas, supra, 51 Cal.4th at p. 476; accord, People v. Gamache, supra, 48 Cal.4th at p. 385.) Defendant has not raised any factual issues. Therefore, our review is de novo.
The privilege against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution applies to criminal suspects subject to custodial interrogation. (Miranda, supra, 384 U.S. at pp. 444-445; People v. Thomas, supra, 51 Cal.4th at pp. 476-477.) In Miranda, the United States Supreme Court defined custodial interrogation as, "[Q]uestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." (Miranda, supra, at p. 444; accord, Yarborough v. Alvarado (2004) 541 U.S. 652, 661; People v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Mayfield (1997) 14 Cal.4th 668, 732.) More recently, the United States Supreme Court has held, "[T]he 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." (Stansbury v. California (1994) 511 U.S. 318, 323; accord, People v. Leonard, supra, 40 Cal.4th at p. 1401.) The United States Supreme Court noted: "In determining whether an individual was in custody, a court must examine all the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' [Citation.]" (Stansbury v. California, supra, 511 U.S. at p. 322; accord, People v. Ochoa (1998) 19 Cal.4th 353, 401.)
Defendant contends he was in custody for Miranda purposes when he was questioned at the North Carolina prison by California detectives about conduct unrelated to his incarceration. The mere fact that defendant was incarcerated at the time he was questioned did not automatically make the interrogation custodial for Miranda purposes. (People v. Ray (1996) 13 Cal.4th 313, 338 ["not all questioning of a person in custody constitutes interrogation under Miranda"]; People v. Anthony (1986) 185 Cal.App.3d 1114, 1120 ["Nothing in Miranda suggests that an inmate is automatically 'in custody' and therefore entitled to Miranda warnings merely by virtue of his prisoner status"]; Leviston v. Black (8th Cir. 1988) 843 F.2d 302, 304; United States v. Conley (4th Cir. 1985) 779 F.2d 970, 972; United States v. Scalf (10th Cir. 1984) 725 F.2d 1272, 1275-1276; Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424, 426-429; see Maryland v. Shatzer (2010) 559 U.S. ___, _____ [130 S.Ct. 1213, 1224] ["lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda"].)Further, that defendant was questioned in custody about matters unrelated to his incarceration or to the conduct underlying his North Carolina conviction does not render Miranda inapplicable. (Mathis v. United States (1968) 391 U.S. 1, 4-5; see Oregon v. Mathiason (1977) 429 U.S. 492, 494-495.) In Mathis, the United States Supreme Court held, "We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody." (Mathis v. United States, supra, 391 U.S. at pp. 4-5, italics added; see Wilson v. Cain (5th Cir. 2011) 641 F.3d 96, 104.)
However, as the Court of Appeals for the Ninth Circuit has observed, "When prison questioning is at issue, however, [the] 'free to leave' standard ceases to be a useful tool in determining the necessity of Miranda warnings." (Cervantes v. Walker, supra, 589 F.2d at p. 428; accord, People v. Fradiue (2000) 80 Cal.App.4th 15, 20.) In Cervantes v. Walker, supra, 589 F.2d at page 428, the Court of Appeals for the Ninth Circuit set forth the following four-part test: "[T]he language used to summon the individual, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and the additional pressure exerted to detain him must be considered to determine whether a reasonable person would believe there had been a restriction of his freedom over and above that in his normal prisoner setting." (Accord, United States v. Turner (9th Cir. 1994) 28 F.3d 981, 983.) In Cervantes, a routine search uncovered what appeared to be marijuana. A prison staff member asked Mr. Cervantes, "'What's this?'" to which Mr. Cervantes replied, "'That's grass, man.'" (Id. at p. 427.) The Court of Appeals held there was no custodial interrogation; the marijuana was discovered during a routine search and the questioning was a spontaneous reaction to the discovery. (Id. at p. 428.) The Cervantes test has been applied in whole or in part in other federal appellate courts. (Garcia v. Singletary (11th Cir. 1994) 13 F.3d 1487, 1491; see Wilson v. Cain, supra, 641 F.3d at pp. 102-104; Leviston v. Black, supra, 843 F.2d at p. 304; United States v. Conley, supra, 779 F.2d at pp. 973-974; United States v. Scalf, supra, 725 F.2d at pp. 1275-1276.) Likewise, the Cervantes decision has been adopted by other jurisdictions, which we have identified in the footnote. Moreover, the Cervantes test has been adopted by California courts. (People v. Macklem (2007) 149 Cal.App.4th 674, 687, 695-696, cert. denied, 552 U.S. 1189; People v. Fradiue, supra, 80 Cal.App.4th at pp. 20-21; People v. Anthony, supra, 185 Cal.App.3d at p. 1122.)
Cervantes has been adopted in: Broadnax v. State (Ala.Crim.App. 2000) 825 So.2d 134, 166-167; People v. Denison (Colo. 1996) 918 P.2d 1114, 1116; State v. Deases (Iowa 1994) 518 N.W.2d 784, 789; People v. Cortez (Mich.App. 2011) __ N.W.2d __, __ [2011 Mich. App. LEXIS 1923, 17-18]; State v. Brown (Mo.App. 2000) 18 S.W.3d 482, 485; State v. Lopez (N.M.App. 2000) 8 P.3d 154, 156; State v. Conley (N.D. 1998) 574 N.W.2d 569, 573; State v. Goss (Tenn.Crim.App. 1998) 995 S.W.2d 617, 629; Herrera v. State (Tex.Crim.App. 2007) 241 S.W.3d 520, 532; State v. Swink (Utah App. 2000) 11 P.3d 299, 302-303; and Blain v. Com. (Va.App. 1988) 371 S.E.2d 838, 840-841.
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The facts in People v. Macklem, supra, 149 Cal.App.4th at page 688, are similar to the present case. Detective Danielle Birmingham was assigned to investigate an assault on a prisoner. The detective went to a detention facility to which the defendant had been moved after the assault. At Detective Birmingham's request, a deputy called into the defendant's cell. The deputy was instructed to ask if the defendant wanted to talk to a detective. Detective Birmingham waited in a professional interview room normally used for attorney or medical consultations. Two deputies brought the defendant in handcuffs to the interview room. The deputies removed the handcuffs and left the room, leaving the unlocked door ajar. Detective Birmingham identified herself and explained that she wanted to talk to the defendant about the assault. Detective Birmingham advised the defendant: he was not required to talk to her; he could leave at any time; and she would take specific steps to return him to his housing unit should he so desire. The defendant was not given Miranda warnings. The defendant did not show any hesitation in talking to Detective Birmingham. He smiled at Detective Birmingham and "seemed quite happy" to talk to her. (Ibid.)The Court of Appeal for the Fourth Appellate District, Division One, held that under the totality of the circumstances, the defendant was not in custody for Miranda purposes. (Id. at pp. 695-696; see 5 Witkin & Epstein, Cal. Criminal Law (2011 Supp.) § 107, p. 181.)
Lindsey v. United States (D.C. Cir. 2006) 911 A.2d 824, 828, certiorari denied, 552 U.S. 1077, also involved facts similar to those before us: "In August 1997, [Bureau of Alcohol, Tobacco and Firearms Special] Agent [Frank] Haera and [D.C. Metropolitan Police] Detective [Anthony] Brigidini visited Lindsey at the Federal Correctional Institute located in Cumberland, Maryland, where he was serving his sentence on the cocaine distribution charge. Cumberland is a minimum security facility and Lindsey was in a work-release program. Lindsey was summoned by an intercom while taking a [General Educational Development] test to meet with the officers. He was directed to a conference room with a window, a long table and several chairs. After some initial pleasantries, the officers told Lindsey that they had new evidence relating to the Johnson murder and that they believed he was involved. They provided 'a detailed synopsis' of the events before, during and after the murder, . . . . The agents did not read Lindsey his Miranda rights, but they notified him that he was not under arrest and did not have to talk to them about the murder. They did indicate, however, that they wanted him to cooperate with them on a new drug investigation and that it could be easier on him if he assisted in the investigation. [¶] Lindsey confessed to killing Johnson . . . ."
In Lindsey, the District of Columbia Circuit Court of Appeals applied the Cervantes four-factor test. (Lindsey v. United States, supra, 911 A.2d at pp. 831-832.) The court found the defendant was not in custody at the time of his confession because: he was summoned to the meeting in the same way any inmate would be called to meet with visitors; the interview took place in a minimum security prison in a conference room with a window facing out and an unlocked door; the law enforcement agents told the defendant he was not under arrest and he did not have to speak to them; the agents described the events surrounding the murder in detail and told the defendant they suspected he was involved; the defendant was not handcuffed or restrained in any way; no physical force was used to get him to speak; and he was not prevented from terminating the interview or leaving the room. (Id. at pp. 832-833.) The Court of Appeals concluded: "Based on these factors, we are satisfied that there was no greater restriction placed on Lindsey's freedom of movement as a result of his interview than was normal under the circumstances of his incarceration and therefore, for purposes of Miranda, he was not in custody. Thus, the officers were not required to give him Miranda warnings, and the trial court did not err in finding that his statement was admissible on these grounds." (Id. at p. 833; see Herrera v. State, supra, 241 S.W.3d at pp. 531-532.)
We apply the Cervantes four-factor test to the present case. Under the totality of the circumstances, defendant was not in custody for Miranda purposes when he talked to the detectives. Defendant walked into the break room where the detectives waited with Captain McCray. There is no evidence he was ordered or otherwise compelled to proceed to the break room. There was no evidence he had been summoned to the meeting in any coercive manner. He was not handcuffed or otherwise restrained at any time. The door to the break room was unlocked. Captain McCray walked in and out. Inmates and others passed by the room throughout the interview. Other inmates could be seen cleaning and preparing food. The two detectives were casually dressed in mufti and did not display any indicia they were law enforcement officers. There was no evidence defendant was subjected to any restraint above and beyond that typically associated with the fact of his incarceration. Detective Van Leeuwen explained that the detectives wanted to talk to defendant about events in California. Defendant was told he did not have to speak to the detectives and he was free to leave at any time. Defendant acknowledged those statements. There was no evidence defendant was threatened or otherwise coerced to participate in the interview. Defendant never said he wanted to leave or to stop talking to the detectives. Defendant never attempted to get up from his seat or made any physical move suggesting he desired to leave the room. Defendant at some point was served a meal. The detectives did confront defendant with statements his nieces had made about the sexual abuse he had inflicted on them. They did tell defendant they believed the victims. Detective Van Leeuwen noted more than once that the victims—young girls—had no cause to lie. Detective Van Leeuwen did encourage defendant to tell the truth in order to help the victims and to make amends to the family. But Detective Van Leeuwen spoke calmly during the one to two hour interview. And defendant responded voluntarily. It was apparent defendant wanted to explain what occurred and why it had happened. He sought to paint himself in the best possible light.
That the questioning may have been coercive does not compel a conclusion defendant's interview was custodial. As the United States Supreme Court explained in Oregon v Mathiason, supra, 429 U.S. at page 495: "[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.' Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in a station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. [¶] The officer's false statement about having discovered Mathiason's fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule." (See People v. Moore (2011) 51 Cal.4th 386, 402 ["While the nature of the police questioning is relevant to the custody question, police expressions of suspicion, with no other evidence of a restraint on the person's freedom of movement, are not necessarily sufficient to convert voluntary presence at an interview into custody"]; People v. Anthony, supra, 185 Cal.App.4th at p. 1121 ["notwithstanding a 'coercive environment,' there is no custody for Miranda purposes unless the questioning takes place 'in a context where [the questioned person's] freedom to depart [is] restricted"]; Green v. Superior Court (1985) 40 Cal.3d 126, 135 [citing Mathiason for the proposition that a coercive environment is not itself sufficient to require Miranda warnings].)
Under the totality of the circumstances, defendant was not in custody for Miranda purposes when he spoke to the detectives. Therefore, the trial court did not err in admitting evidence of defendant's statements at trial.
B. Section 290.3
The trial court could properly impose a $300 sex offense fine under section 290.3, subdivision (a). However, the trial court failed to impose applicable penalties and the surcharge in connection with the sex offense fine, specifically: a $300 state penalty (§ 1464, subd. (a)(1)); a $210 county penalty (Gov. Code, § 76000, subd. (a)(1)); a $60 state surcharge (§ 1465.7, subd. (a)); a $90 state court construction penalty (Gov. Code, § 70372, subd. (a)(1)); a $30 deoxyribonucleic acid penalty (Gov. Code, § 76104.6, subd. (a)(1)); a $30 state-only deoxyribonucleic acid penalty (Gov. Code, § 76104.7, subd. (a)); and a $60 emergency medical services penalty (Gov. Code, § 76000.5, subd. (a)(1).) (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530; People v. McCoy (2007) 156 Cal.App.4th 1246, 1254.) The total fine is $1,080. The section 290.3, subdivision (a) sex offense fine has an ability to pay provision. Therefore, the fine must be reversed with directions for the trial court to determine whether defendant has the ability to pay a fine totaling $1,080. (See People v. Castellanos, supra, 175 Cal.App.4th at pp. 1531-1532; People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249-1250; People v. Walz (2008) 160 Cal.App.4th 1364, 1371-1372.) Upon making the ability to pay determination, the trial court is free to reimpose the fine.
The trial court could have but did not impose a $500 sex offense fine on each of counts 2 through 4. (§ 290.3, subd. (a); People v. Walz, supra, 160 Cal.App.4th at p. 1371; People v. O'Neal (2004) 122 Cal.App.4th 817, 822.) However, on a silent record, as here, we presume the trial court found defendant did not have the ability to pay the three additional $500 fines. (People v. Walz, supra, 160 Cal.App.4th at p. 1371; People v. Burnett (2004) 116 Cal.App.4th 257, 261.)
C. Presentence Custody Credit
The trial court gave defendant credit for 327 days in presentence custody plus 48 days of conduct credit for a total of 375 days. However, defendant was arrested on September 22, 2009, and sentenced on August 13, 2010. Therefore he should have received credit for 326 days in presentence custody. (People v. Smith (1989) 211 Cal.App.3d 523, 526-527.) The judgment will be modified to reflect credit for 326 days presentence custody plus 48 days of conduct credit for a total of 374 days.
D. Abstract of Judgment
The abstract of judgment states defendant is to pay "$20.00 pursuant to 76104.7 G.C." and "a registration fee of $300.00 pursuant to 290 P.C." Our Supreme Court has held: "[T]he abstract of judgment is not itself the judgment of conviction, and cannot prevail over the court's oral pronouncement of judgment to the extent the two conflict. [§§ 1213, 1213.5; People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 14.)" (People v. Delgado (2008) 43 Cal.4th 1059, 1070.) We may correct the abstract of judgment on our own motion. (Cal. Rules of Court, rule 8.155(c)(1); see also People v. Mitchell, supra, 26 Cal.4th at pp. 185-188; People v. Boyde (1988) 46 Cal.3d 212, 256.) Here, the trial court orally imposed a "DNA collection fee," which the abstract of judgment apparently records as a $20 penalty pursuant to Government Code section 76104.7. As discussed in section II B above, the potentially applicable penalty is a $30 (not $20) state-only deoxyribonucleic acid penalty under Government Code section 76104.7, subdivision (a)). Further, the trial court imposed a $300 sex offense fine pursuant to section 290.3, not "a registration fee of $300 pursuant to 290 P.C." The references to "20.00 pursuant to 76104.7 G.C." and "a registration fee of $300.00 pursuant to 290 P.C." must be deleted from the abstract of judgment. Upon remittitur issuance, the trial court shall personally insure the clerk prepares an accurate abstract of judgment. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Valenzuela, supra, 172 Cal.App.4th at p. 1250.)
IV. DISPOSITION
The judgment is reversed insofar as it imposed a $300 Penal Code section 290.3 sex offense fine. Upon remittitur issuance, the trial court is to consider whether defendant has the ability to pay the $300 sex offense fine together with applicable penalties. The judgment is modified to reflect credit for 326 days in presentence custody rather than 327, plus 48 days of conduct credit for a total presentence custody credit of 374 days. Following the trial court's decision as to the $300 sex offense fine, the superior court clerk is to prepare a corrected abstract of judgment and deliver a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J. We concur:
ARMSTRONG, J.
MOSK, J.