Opinion
A128103
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ELIJA CURRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 050908210)
Elijah Curry (appellant) was convicted, following a jury trial, of three counts of misdemeanor assault, one count of forcible sexual penetration, one count of assault with force likely to produce great bodily injury, one count of false imprisonment, and one count of making criminal threats. On appeal, appellant alleges several sentencing errors, including the trial court's (1) unauthorized imposition of a full-term consecutive sentence; (2) failure to state separate reasons for imposing consecutive sentences; (3) unauthorized imposition of sentence on all three assault counts; and (4) miscalculation of his presentence credits. As to the first two alleged errors, appellant contends, in the alternative, that he received ineffective assistance of counsel. We conclude that appellant is entitled to two additional days of presentence credits. We shall otherwise affirm the judgments.
PROCEDURAL BACKGROUND
Appellant was charged by information with three counts of assault with intent to commit rape (Pen. Code, § 220, subd. (a)—counts one to three); forcible sexual penetration (§ 289, subd. (a)(1)—count four); assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)—count five); false imprisonment by violence (§§ 236, 237, subd. (a)—count six); and criminal threats (§ 422—count seven). As to counts one through four, it was alleged that appellant inflicted great bodily injury (§ 12022.8) and, as to count five, it was alleged that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). It was further alleged that appellant had a prior juvenile adjudication, within the meaning of section 667, subdivisions (b) to (i), and section 1170.12, and that he was ineligible for probation due to two prior felony convictions, pursuant to section 1203, subdivision (e)(4).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant not guilty of the three counts of assault with intent to commit rape, but found him guilty of the lesser crime of misdemeanor assault (§ 240) on each of the three counts. The jury found him guilty of forcible sexual penetration and assault by force likely to produce great bodily injury, but found that he did not inflict great bodily injury. The jury also found him guilty of false imprisonment by violence and making criminal threats.
Appellant waived a jury trial on the prior juvenile adjudication and the trial court found that it was not a strike.
On March 5, 2010, the trial court sentenced appellant to a total of nine years in state prison, as follows: the midterm of six years on count four; one third the midterm of one year on count five, to run consecutively to count four; the midterm of two years on count seven, to run fully consecutive to count five; one third the midterm of eight months on count six, stayed pursuant to section 654; and six months concurrent on counts one, two, and three. Appellant received 239 days of presentence custody credits and 35 days of conduct credits, for a total of 274 days of presentence credits.
On March 23, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Included here are those facts relevant to the sentencing issues raised on appeal.
On June 27, 2009, Jane Doe was 17 years old and living in Pittsburg with her baby. Shortly after midnight, she was helping a girl at a park when the girl threw up on Jane's sweatpants and shoes. Jane called the police and, after the police and an ambulance arrived, Jane left and started walking toward her daughter's grandmother's house. At one point, she stopped to take off her shoes, which had vomit on them, and saw appellant, whom she knew through her daughter's family.
Appellant approached Jane and said, "Bitch, you gonna give me some pussy." She said, "No. Leave me alone. Let me go change my clothes. I'm dirty. I have throw-up all on me." Appellant responded, "You ain't goin' nowhere." As he said this, he swung his fist and hit her very hard on the side of her face. After appellant hit her she felt dazed. He said again, "You not goin' nowhere." Jane tried to run away, but as she was running across the street, appellant grabbed her by her sweatpants, pulling them down to her hip area.
Jane fell on her stomach and hands. She was scared. She got up off the ground and ran across the street. Appellant ran after her and she heard him say, "You gonna give me some. You not goin' nowhere." She had run over to a low brick wall when appellant caught up with her and again said, "Bitch, you gonna give me some." He also took swings at her with both his fists, hitting her on the side of her face and her upper chest, which hurt. She was saying, "No. Just let me go home. . . . I just want my daughter. I want my baby." She also asked him to stop and to leave her alone. After being hit, she "went into a daze," and fell on the ground. She then opened her eyes and felt like she was just waking up; she felt confused and dizzy.
Jane got up off the ground and appellant grabbed her by her "vagina area." His thumb was on her pubic area and she felt his fingers yanking her vagina area, "down by my hole area," between the outer lips of her vagina. As she tried to pull away, appellant continued to say, "Bitch, you gonna give me some." Jane could not get away because he had a hold on her vagina area, which caused her clothes to rub against her vagina and made it burn.
Appellant finally let go of Jane after she heard someone say his name, "Elijah." She ran to the house where she was staying, banged on the door, and someone let her in. Jane was scared and shaking. She was crying because she was hurt and scared. She tried calling the police, but was unable to get through. She then called a man named Aaron, who was like an uncle to her, and asked him to come over. She also went into the bathroom and looked at her vagina "around the hole area" because it was "really burning." It was very red and there was a drop of blood. She also had pain on her face.
After Aaron came over, Jane told him to feel her face, which hurt and was swollen. They were standing outside talking when she saw appellant coming across the street. She ran back inside the house and closed the front door. She then heard appellant say, "Bitch, I'm gonna kill you. Where that bitch [Jane] at." He repeated that he was going to kill her. He sounded mad. He was also kicking at the door, which caused the door and the windows beside it to shake. This made her more afraid.
There was something Jane knew about appellant, which made her even more afraid of him as he made these threats. His grandmother, another person, and his cousin had previously told her that appellant had "a problem with putting his hands on people and likes hitting people," that he had a history of "hitting on women," and that she should stay away from him.
The trial court allowed this hearsay testimony into evidence solely for its effect on Jane's state of mind.
Jane called the police and waited in the back room of the house with her daughter until they came. In addition to the pain and redness in her vagina area, her face hurt and her arm was red and swollen. Her lower back also ached. She went to the hospital the next day because her face was swollen and had started to get "hard and bruised." She was given a bandage for her face, which she wore for a week; she had pain in her face for about two weeks. The pain in her vagina area lasted for a couple of days and it burned when she urinated.
Jane testified at trial that, at the preliminary hearing, she was not truthful when she said appellant had not touched her vagina. She said this because she was receiving threats from appellant's family members on the streets where she lived. These threats, which were against her and her baby, frightened her. Two of the people connected to these threats were in the courtroom when she first came in for the preliminary hearing. Appellant also was shaking his head and looking irritated as she testified. Ultimately, she stopped testifying at the preliminary hearing because she felt too scared to keep going.
DISCUSSION
At the sentencing hearing, the trial court imposed sentence, as follows:
"It's the judgment and sentence of the court that the defendant is sentenced to state prison for a total term of 9 years. The principal crime that the court selects is the violation of Penal Code Section 289(a), the sexual penetration as alleged in Count 4. The court selects the midterm for that count of 6 years.
"I selected the 6 years for a variety of reasons. First of all, the crime has to be looked at, which is the crime of sexual penetration, and I take into account that there's some mitigation there in the sense that it was really sort of a grabbing in the crouch [sic] area as opposed to pulling off clothing and so forth as I think that crime is often seen.
"On the other hand, there was violence involved in it, and the defendant has a history of violence that is very concerning to the court. So the combination of those two things I balance, and that is what leads me to conclude the court should select the midterm.
"[M]y interpretation under the cases . . . is that the court under 667.6(c), it's not a (d), we all, I think, agree to that, on subsection (c) has the discretion of a full term, and the court can select the crime for which it uses the full term.
"I think the most appropriate—oh, let me make this finding. I find that the only count within the counts that are charged that involves a single intent objective [sic] is Count 6, the false imprisonment, and that's the only one to which I'm applying section 654.
"I'm convinced that the evidence that we heard provides separateness for the other counts. There was, in fact, after the completion of the sexual penetration a continuing assault, a chance for reflection. And of course, as counsel pretty much acknowledges, Count 7 was quite separate in time when he went and threatened to kill her in the residential situation.
"So the—but the court is going to choose Count 7, the very separate count, for the full consecutive sentencing and is going to sentence to the midterm on that of 2 years, which gets that.
"The mid for Count 5 the court is going to sentence consecutively one-third the midterm. That's the midterm being 3 years, that as a year.
"The court will sentence the misdemeanors on the lesser assault that was found as 6 months concurrent. That's time served at this point on those so we don't have to add any time for the misdemeanors.
"And that's what brings the court to the total term of 9 years, 6, 2, and 1."
I. Imposition of a Full-Term Consecutive Sentence
Appellant contends the trial court's imposition of a full-term consecutive sentence was improper and amounted to an unauthorized sentence.
B. Legal Analysis
Section 667.6 provides an alternative, harsher sentencing scheme for certain sex offenses than the generally applicable sentencing provisions of section 1170.1. (People v. Belmontes (1983) 34 Cal.3d 335, 344, 346.) Under section 1170.1, the court imposes an aggregate sentence composed of a principal term and subordinate terms for additional felony offenses consisting of one-third of the middle term for each. (§ 1170.1, subd. (a); People v. Pelayo (1999) 69 Cal.App.4th 115, 123 (Pelayo).) Under section 667.6, subdivision (c), however, "[i]n lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." Subdivision (e) of section 667.6 lists a number of offenses "commonly referred to as 'violent sex crimes.' " (Pelayo, at p. 123.)
Section 667.6 provides in relevant part: "(c) In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison.
. . . .
"(e) This section shall apply to the following offenses:
. . . .
"(8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289."
In the present case, the trial court plainly was confused about how to apply the provisions of section 667.6 to this case. The court erred when it chose count four, the forcible sexual penetration offense (§ 289, subd. (a)), as the principal offense pursuant to section 1170.1 and then chose count seven, the criminal threats offense (§ 422), as the full-term consecutive offense pursuant to section 667.6, subdivision (c). The forcible sexual penetration count is the only one of appellant's crimes listed in subdivision (e) of section 667.6 as eligible for full-term consecutive sentencing. Hence, the court improperly imposed a full-term consecutive sentence on the criminal threats count pursuant to subdivision (c) of section 667.6.
Before pronouncing sentence, during arguments of counsel, the trial court asked for clarification about how section 667.6 interacts with section 1170.1. The prosecutor responded, "My understanding of the law is that . . . if the court is electing to sentence under 667.6(c), 1170 still would apply to the way that we calculate the non-enumerated sex offense principal and subordinate term." After a bit more discussion, the court said, "All right, I think I understand."
Appellant acknowledges that defense counsel raised no objection at the sentencing hearing to the sentence imposed, but argues that his claim is not forfeited because the sentence was unauthorized, and an unauthorized sentence is a "narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Ibid.) By contrast, "claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.)
Here, the trial court could have imposed the same aggregate term of nine years had it reversed its sentencing choices on counts four and seven. That is, had it selected the criminal threats count as the principal term under section 1170.1, and then imposed a full-term consecutive sentence under section 667.6, subdivision (c), for the forcible sexual penetration count, the court would have imposed the same nine-year term that was imposed. Thus, the sentence was not unauthorized because imposition of the same total sentence of nine years was within the court's authority. (See Scott, supra, 9 Cal.4th at p. 354.)
Appellant claims that, even if the sentence was not unauthorized, the issue is not forfeited because he did not have the opportunity to object. (See Scott, supra, 9 Cal.4th at p. 356 ["there must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived"].) At the sentencing hearing, the trial court expressed its confusion about the proper way to impose a full-term consecutive sentence under section 667.6, subdivision (c), and, although the prosecutor attempted to explain the law, the court ultimately used an offense not listed in section 667.6 as the term to run fully consecutive to the other terms. Defense counsel had the opportunity to correct the court's misunderstanding of section 667.6, subdivision (c), during his argument, which he made immediately after the court's colloquy with the prosecutor. He also could have objected just after the court pronounced sentence, when the court asked, "[D]oes either side have anything further?" Because appellant had the opportunity to object at the sentencing hearing, but did not do so, the issue is forfeited on appeal.
Appellant also asserts that any objection would have been futile because the trial court was already aware of counsel's position that the sentences on counts one through six should run concurrent to the sentence on count seven. That counsel had asked for a particular sentence does not excuse him from calling the court's attention to an easily remediable error the court made at sentencing.
In the alternative, appellant contends that even if he forfeited the issue by failing to raise it in the trial court, he received ineffective assistance of counsel due to defense counsel's failure to object to the court's sentencing error.
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness[] [¶] . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
In the present case, the court made clear that it wished to impose a full-term consecutive sentence under section 667.6, subdivision (c), but it misunderstood how to properly structure that sentence. Had it understood that section 667.6 required that the forcible sexual penetration offense, rather than the criminal threats offense, be imposed as a full-term consecutive sentence, there is virtually no doubt that the court would have simply reversed its two sentencing choices by selecting the criminal threats count as the principal term under section 1170.1 and the forcible sexual penetration count as the full-term consecutive sentence under subdivision (c) of section 667.6, to arrive at the identical total sentence of nine years. Thus, because appellant cannot show a reasonable probability that the trial court would have imposed a lesser sentence in the absence of counsel's alleged error, his ineffective assistance of counsel claim cannot succeed. (See Strickland, supra, 466 U.S. at p. 694.)
II. Court's Failure to State Separate Reasons for Consecutive Sentences
Appellant contends the trial improperly failed to state separate reasons for imposing consecutive sentences under two different sentencing schemes. (See §§ 667.6, subd. (c), 1170.1, subd. (c).)
" ' "It is well settled that in making sentencing choices pursuant to section 667.6, subdivision (c), sexual assault offenses, the trial court must state a reason for imposing a consecutive sentence and a separate reason for imposing a full consecutive sentence as opposed to one-third the middle term as provided in section 1170.1" [Citation.] . . . [H]owever, the court may "repeat the same reasons." (Cal. Rules of Court, rule [4.426(b)].)'[] [Citation.] 'What is required is an identification of the criteria which justify use of the drastically harsher provisions of section 667.6, subdivision (c). The crucial factor, in our view, is that the record reflect recognition on the part of the trial court that it is making a separate and additional choice in sentencing under section 667.6, subdivision (c).' [Citation.] In making this determination, '[t]he sentencing judge is to be guided by the criteria listed in rule 4.425, which incorporates rules 4.421 [(aggravating circumstances)] and 4.423 [(mitigating circumstances)], as well as any other reasonably related criteria as provided in rule 4.408 [(enumerated criteria not exclusive)].' ([Rule] 4.426(b).)" (People v. Quintanilla (2009) 170 Cal.App.4th 406, 411 (Quintanilla).)
All further rule references are to the California Rules of Court.
Respondent concedes that the court failed to state separate reasons on the record for its imposition of a sentence on count five consecutive to that on count four and a full-term consecutive sentence on count seven, but argues that appellant has forfeited this issue due to counsel's failure to object at sentencing. We agree. As our Supreme Court explained in Scott, supra, 9 Cal.4th 331, 353, the waiver doctrine applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices," including cases in which the court "failed to state any reasons or give a sufficient number of valid reasons." Having already concluded that defense counsel had the opportunity to object to the court's sentencing choices at the sentencing hearing (see part I, ante), we find that appellant forfeited this issue by failing to raise it in the trial court. (See Scott, at p. 353.)
We also reject appellant's assertion that the consecutive sentences were unauthorized, given that the court plainly could lawfully impose the sentence it did, but merely failed to state separate reasons for its choices. (See Scott, supra, 9 Cal.4th at p. 355.)
Appellant claims, in the alternative, that he received ineffective assistance of counsel due to defense counsel's failure to object to the court's sentencing error. (See Strickland, supra, 466 U.S. at pp. 688, 694.)
We need not address counsel's alleged inadequacy because we conclude that appellant cannot show prejudice. (See Strickland, supra, 466 U.S. at pp. 694, 697.) At the sentencing hearing, the court listened to the arguments of counsel regarding what they believed would be an appropriate sentence and why. The court stated that it had also "read the probation report, all the briefs, all the letters, [and] heard the victim's statements." The prosecution's sentencing brief listed 17 factors in aggravation, including appellant's "long and increasing history of violence, the violence used before, during and after the instant offenses, his persistent repudiation of a multitude of prior rehabilitative efforts and his high-risk score on the Static 99." The probation report listed seven circumstances in aggravation and none in mitigation.
Although the court did not offer separate reasons for consecutive and full-term consecutive sentencing, when explaining its reasons for imposing a full-term consecutive sentence on the criminal threats count, it said that the criminal threats count was "very separate" from the forcible sexual penetration count. (See rule 4.425(a)(1) [consecutive sentence is appropriate when "crimes and their objectives were predominantly independent of each other"].) In addition, when it imposed the midterm on count four, the court noted, in mitigation, that the crime involved appellant grabbing the victim's crotch through her clothes, but also noted, in aggravation, that "there was violence involved in it, and the defendant has a history of violence that is very concerning to the court." Thus, the court articulated two circumstances in aggravation and only one factor in mitigation related to count four. At another point in the hearing, the court also referred to appellant's "prior unsuccessful probations." (See rule 4.421(a)(1), (b)(1), & (b)(4); rule 4.425; cf. Quintanilla, supra, 170 Cal.App.4th at p. 411.) Finally, the court expressed its recognition that it was " ' "making a separate and additional choice in sentencing under section 667.6, subdivision (c)." ' " (Quintanilla, at p. 411.) All of these findings by the court supported its decision to impose both consecutive and full-term consecutive sentences. (See rule 4.426(b) [court may repeat same reasons for imposing consecutive and full-term consecutive sentences].)
Although the court found that the forcible sexual penetration was not as serious here as in some other cases, that does not negate the court's finding that the act involved violence, as well as that appellant has a troubling history of violence, and that his prior performance on probation was unsatisfactory.
In conclusion, although the trial court was remiss in failing to state separate reasons for its sentencing choices, because appellant cannot show a reasonable probability that the trial court would have imposed a lesser sentence in the absence of counsel's alleged errors, his ineffective assistance of counsel claim cannot succeed. (See Strickland, supra, 466 U.S. at p. 694.)
III. Section 654
Appellant contends the trial court's imposition of sentence on all three of the assault counts constituted multiple punishment in violation of section 654.
Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
At the sentencing hearing, defense counsel argued that counts one through six were covered by section 654 because appellant "was acting with but a single intent and objective throughout this incident."
The trial court sentenced appellant to six months for each of the misdemeanor assault convictions in counts one, two, and three, to run concurrent to the felony sentences.
The court explained at sentencing its conclusions related to section 654, as follows: "I find that the only count within the counts that are charged that involves a single intent objective [sic] is Count 6, the false imprisonment, and that's the only one to which I'm applying section 654.
"I'm convinced that the evidence that we heard provides separateness for the other counts. There was, in fact, after the completion of the sexual penetration a continuing assault, a chance for reflection. And of course, as counsel pretty much acknowledges, Count 7 was quite separate in time when he went and threatened to kill her in the residential situation."
" '[S]ection 654 prohibits multiple punishment for an indivisible course of conduct. . . .' [Citation.] But multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. [Citations.] 'Separate sentencing is permitted for offenses that are divisible in time. . . .' [Citation.]" (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
In People v. Trotter (1992) 7 Cal.App.4th 363, 366 (Trotter), the appellate court rejected the defendant's contention that he should not have been separately punished for two assaults based on two gunshots he fired at police officers approximately one minute apart, because both shots were part of a single course of conduct and incidental to one objective. The court found that the assaults were "volitional and calculated, and were separated by periods of time during which reflection was possible. None was spontaneous or uncontrollable. '[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.' [Citation.]" (Id. at p. 368, quoting People v. Harrison (1989) 48 Cal.3d 321, 338.)
There was a third gunshot, fired seconds after the second shot, for which the defendant was also convicted of assault. However, the court stayed punishment on this count. (Trotter, supra, 7 Cal.App.4th at p. 365.)
In the present case, appellant committed three distinct assaults, separated by time and location. The first assault occurred early in the encounter when appellant punched Jane in the side of her face as she stood by a gate. The second assault occurred when appellant grabbed Jane by her sweat pants as she was running across the street to get away from him, and she fell in the middle of the street. The third assault occurred after Jane got back up and had finished running across the street. She was near a low brick wall when appellant caught up with her and hit her with both fists on the side of the face and upper chest, until she fell to the ground.
The evidence shows that each assault was separated in time and space, and each of the second two assaults involved appellant chasing his fleeing victim to a new location. As in Trotter, the assaults were "volitional and calculated," and "separated by periods of time during which reflection was possible." (Trotter, supra, 7 Cal.App.4th at p. 368; accord, People v. Felix, supra, 92 Cal.App.4th at p. 915.) Like the defendant in Trotter, appellant should " 'not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.' [Citation.]" (Ibid., quoting People v. Harrison, supra, 48 Cal.3d at p. 338.)
In light of the evidence presented at trial, the trial court did not err when it imposed concurrent sentences for the three assaults.
IV. Presentence Credits
Appellant contends the trial court miscalculated his presentence credits.
At the sentencing hearing, the trial court stated: "The court, as previously indicated, concludes that the defendant has 239 days of actual credit, under the statutory provisions he's entitled to 15 percent, or 35 days of credit, for total credits of 274 days."
"Anyone convicted of a felony is entitled to credit against his term of imprisonment for time spent in custody prior to sentencing. (§ 2900.5, subd. (a).) . . . . [A] defendant is not in custody within the meaning of section 2900.5 prior to being processed into a jail or similar custodial situation as described in section 2900.5, subdivision (a)." (People v. Ravaux (2006) 142 Cal.App.4th 914, 919.)
Under section 2933.1, subdivision (c), a defendant convicted of a felony offense listed in section 667.5 may accrue no more than 15 percent of section 4019 conduct credits. (See People v. Palacios (1997) 56 Cal.App.4th 252, 258.)
In the present case, appellant claims that the court should have credited him a total of 277 days: 241 days of presentence custody credits, from the date of his arrest on July 8, 2009 through the date of sentencing on March 5, 2010, and, 36 days of conduct credits (15 percent of 241).
Although appellant is correct that the probation report states that he was arrested on July 8, 2009, it also states that he was in custody beginning on July 9, 2009. Since appellant has failed to show that he was booked into jail on the same day he was arrested, we shall accept the July 9, 2009 date set forth in the probation report as the date when his time in custody began. (See People v. Ravaux, supra, 142 Cal.App.4th at p. 919.)
Appellant cites to an exchange in the record between the trial court and the prosecutor, in which the prosecutor confirmed that appellant was arrested on July 8, 2009 and had been in custody ever since. This statement does not answer the question whether appellant was actually booked into jail on the day of his arrest or the following day. Again, since the only evidence in the record reflects that appellant's custody began on July 9, 2009, we find that he is entitled to actual credit from that date through the date of sentencing. (See People v. Ravaux, supra, 142 Cal.App.4th at p. 919.)
Nonetheless, it also appears that the trial court failed to include one day in which appellant was in custody (most likely either the first day he was in custody or the date of sentencing) in its calculation. (See People v. Frausto (2009) 180 Cal.App.4th 890, 903.) Thus, appellant was entitled to 240 days of custody credits, rather than 239. Applying the 15 percent formula to his accrual of conduct credits based on this total (see § 2933.1, subd. (c)), appellant was entitled to 36 days of conduct credits, not 35.
At the sentencing hearing, defense counsel told the court that he had calculated that appellant was entitled to 240 days of custody credit.
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Thus, appellant is entitled to two additional days of credits, for a total of 276 days.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment that reflects the award of 276 days of presentence credits. In all other respects, the judgment is affirmed.
Kline, P.J. We concur: Lambden, J. Richman, J.