Opinion
H035181
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. JASON CANDALARIO LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super.Ct No. CC802225)
A jury convicted defendant Jason Candalario Lopez of crimes related to the abuse of his wife. He claims that the trial court erred in not adequately answering a question about the timing of the crimes that the jury asked during deliberations. He also claims that the court did not instruct the jury properly on how to decide whether he was guilty of assault with a deadly weapon. In addition, he claims that the prosecution gave the jury inaccurate information about that charge. He claims that his counsel was ineffective for failing to complain to the court about its explanation to the jury about the assault charge and the prosecutor's statements about it. Finally, he claims that certain custody credits must be calculated and were not.
Except for the custody credits question, we disagree with defendant. We will affirm the judgment with directions to the trial court to calculate his custody credits.
PROCEDURAL BACKGROUND
A jury convicted defendant of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), specifically a box-cutter, and criminal threats (§ 422). It found true an enhancement regarding the aggravated assault charge that he used a deadly or dangerous weapon within the meaning of sections 667, subdivision (d)(1), and 1192.7, subdivision (c)(23). The trial court suspended imposition of a prison sentence and placed defendant on formal probation, one condition of probation being confinement in the county jail for six months.
All statutory references are to the Penal Code except as otherwise indicated.
FACTS
Defendant and the victim, Soledad Perez, had been married for several years, but had been separated for about 18 months prior to the two incidents giving rise to defendant's prosecution. Although separated, they were living in separate quarters in the same residential structure, i.e., in a duplex configuration.
On April 3, 2008, Perez called police from her parked car, in which she had locked herself, and reported that defendant had just threatened her with a box-cutter he was still holding and was now using it to slash one of the tires. She told a responding police officer that defendant had run toward her while brandishing the box-cutter. She also told the officer that defendant had warned her, "call the cops[,] you know what's going to happen to you."
Perez told the police dispatcher that defendant had retreated "inside his room" immediately after the incident. The parties stipulated that police found a box-cutter in searching defendant's portion of the duplex.
Defendant had contacted Perez to pay his share of rent, for which they shared responsibility notwithstanding that they lived separately. He was also supposed to help their five-year-old son with his homework. The two wrangled over the rent and the homework.
When the responding officer arrived, he found Perez shaken and teary-eyed. She was just emerging from her vehicle.
In addition to her current complaint, Perez told the authorities that defendant had battered her on March 23, 2008. "[A] couple days ago, he hit me too," she told the dispatcher, and she explained to the officer that on March 23 defendant threw her to the ground and onto a couch and twisted her arm. In that incident defendant told Perez, "if you call the cops on me before they get here you'll be on the floor and won't be able to get up." Perez showed the officer cellular telephone photographs she had taken of her arm; they showed possible bruising.
At trial, Perez was a reluctant witness, and she changed her account of the two incidents, testifying that she could not see clearly whether defendant was wielding a knife on April 3, 2008, that she was not afraid of him that day, and that on March 23, 2008, he had not battered and injured her. Nor did he utter threatening statements at any point.
DISCUSSION
I. Claim of Failure to Notify Defendant of Need to Defend Against Criminal Threats Charge
Defendant argues that the state failed to give adequate notice by evidence presented at the preliminary hearing that he committed criminal threats on a date other than March 23, 2008. He claims that his conviction must be reversed because a jury question during deliberations showed that the panel doubted that he threatened the victim on March 23, and therefore its conviction of him could only be based on threats made on a different date—a date about which he had constitutionally inadequate notice. (We note that this different date would almost certainly be April 3, 2008, as the evidence before the jury showed he threatened her on that date with further violence if she reported his violent acts to the police.)
We disagree.
A. Background
Defendant was charged in count 3 with having made a criminal threat "[o]n or about and between March 23, 2008, and April 3, 2008." The information was amended in this regard; the original version alleged only the April 3 date.
The amendment came about when the trial court granted the prosecution's motion to amend the information. On November 2, 2009, minutes before jury selection began, the following proceedings occurred:
"[The prosecutor]: A couple issues, um, one of more housekeeping matters. Count three is, uh, I'm requesting it be amended to state the same date as count one, that is, from March 23rd to on or about and between March 23rd and April 3rd. That was a mistake on my part.
"[Defense counsel]: I'm sorry, you wanted to change the March 23rd to March 23rd through April 3rd?
Counsel for both parties misdescribed the information's content. The information already alleged April 3, 2008, as the date on which count 3 occurred. The prosecutor was seeking an amendment to add March 23. As amended, count 3 alleged a violation of section 422 "[o]n or about and between March 23, 2008 and April 3, 2008 . . . ," with the text italicized here the handwritten amendatory text in the information.
"[The prosecutor]: Just like count one.
"THE COURT: And count two will remain 'April 3rd'?
"[The prosecutor]: Yes.
"THE COURT: That does comply with the police reports that I, of course, have not read?
"[The prosecutor]: I think so, yes.
"[Defense counsel]: That was a mistake. However, there was certainly information by which Mr. Waite could have sought or tried to elicit that would have a 422 happen on April 3rd. I did expect this change would be made, so I will submit on the motion, but, um, it's not, wasn't entirely clear.
"THE COURT: It doesn't appear to affect the right of the defendant. It doesn't change the elements or preclude a defense or change the classification of crime because I accept counsel's representation that it is supported by the police report.
"I will allow the amendment to count three which will now read: 'On or about and between March 23rd, 2008, and April 3, 2008,' and I'll initial that revision on the complaint, and I'll go back and change the jury instructions. It's a very rough draft."
During jury deliberations, the jury expressed doubt that defendant violated section 422 on March 23, 2008. It issued the following note: "Is the 'threat charge' solely centered on the 3/23/08 threat only? [¶] If we find there's reasonable doubt regarding the threat made by the defendant on 3/23 (and only on 3/23) must we then find the defendant 'not guilty' on that particular charge even if we find it to be credible at a time other than 3/23/08[?]"
The trial court refused defendant's request to instruct the jury that "[i]f you find him not guilty of the 422 on March 23rd, then you must find him not guilty." The court proceeded to tell the jury to reconsider instructions already given to it, namely instructions based on CALCRIM Nos. 207, 1300, and 3501, which explained how to consider evidence of particular acts and arrive at a unanimous decision about their criminal import.
The versions of those instructions given to the jury instructed:
"The defendant is charged in Counts One, Two and Three with committing these crimes sometime during the period of March 23, 2008 to April 3,2008.
"The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless:
"1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense;
"OR
"2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period." (Compare CALCRIM No. 3501.)
"It is alleged that the crime occurred on or about and between March 23, 2008 and April 3, 2008. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." (Compare CALCRIM No. 207.)
"The defendant is charged in Count Three with having made a criminal threat in violation of Penal Code section 422.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Soledad Perez[;]
"2. The defendant made the threat orally[;]
"3. The defendant intended that his statement be understood as a threat and intended that it be communicated to Soledad Perez[;]
"4. The threat was so clear, immediate, unconditional, and specific that it communicated to Soledad Perez a serious intention and the immediate prospect that the threat would be carried out;
"5. The threat actually caused Soledad Perez to be in sustained fear for her own safety or for the safety of her immediate family;
"AND
"6. Soledad Perez's fear was reasonable under the circumstances." (Compare CALCRIM No. 1300.) We have omitted parts of this instruction not relevant to defendant's claim.
B. Applicable Law
"The 'preeminent' due process principle is that one accused of a crime must be 'informed of the nature and cause of the accusation.' (U.S. Const., Amend. VI.) Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial." (People v. Jones (1990) 51 Cal.3d 294, 317.) As alluded to by citation in Jones, this right also extends to the Sixth Amendment to the United States Constitution (People v. Seaton (2001) 26 Cal.4th 598, 640), and it is guaranteed by the California Constitution (ibid.).
"Under modern pleading procedures, notice of the particular circumstances of an alleged crime is provided by the evidence presented to the committing magistrate at the preliminary examination, not by a factually detailed information." (People v. Jennings (1991) 53 Cal.3d 334, 358.) The information has only "a 'limited role' of informing defendant of the kinds and number of offenses; 'the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript,' which represents 'the touchstone of due process notice to a defendant.' " (People v. Jones, supra, 51 Cal.3d at p. 312.)
"In addition to the advance notice provided by the information and preliminary examination," however, a "defendant may learn further critical details of the People's case through demurrer to the complaint or pretrial discovery procedures." (People v. Jones, supra, 51 Cal.3d at p. 317.)
In terms of the sufficiency of the notice, " ' " '[d]ue process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]" [Citation.]' " (People v. Thomas (1987) 43 Cal.3d 818, 823.)
C. Analysis
Section 422 is tailored to ensure that only constitutionally unprotected speech-based acts, i.e., specific threats to injure badly or kill, are criminalized. The tailoring of section 422 is designed to insulate the statute from successful constitutional challenges on grounds of vagueness, overbreadth, and other grounds based on the First Amendment to the United States Constitution and its equivalent in article 1, section 2, subdivision (a), of the California Constitution. "It is important to remember that the crime of criminal threat, or attempted criminal threat, punishes speech and, consequently, risks offending the First Amendment. But . . . penalizing speech does not offend First Amendment principles as long as[ ] ' "the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection." ' [Citations.] ' "When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection." ' [Citation.] In drafting the current version of section 422, the Legislature limited the punishment for criminal threats to this type of unprotected speech." (People v. Jackson (2009) 178 Cal.App.4th 590, 598, italics omitted.)
Section 422 provides in relevant part:
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Thus, the actor must threaten death or great bodily injury in a precise manner that puts the victim in reasonable fear that the actor means what he or she says and can execute the threat.
At the preliminary examination, the prosecution presented evidence that on March 23, 2008, defendant made a qualifying threat. However, the evidence at the preliminary examination regarding defendant's utterances on April 3, 2008, was that the victim could not hear what he was saying. Plainly he was angry, given that he was having a dispute with the victim, wielding a box-cutter, running toward the victim with it, and making slashing motions at the victim's car tire with it. There was no evidence, however, that he was threatening her in the manner proscribed by section 422.
At the trial, conversely, there was evidence of punishable criminal threats on both March 23 and April 3 of 2008. The jury, however, expressed doubt that it was prepared to convict defendant of making a threat on March 23, which led to the court's answer to the jury to reread instructions the court had already supplied that explained both unanimity requirements and the method by which to consider the alleged dates of charged offenses.
The record offers no reason to believe that the jury changed its mind about the events of March 23; conversely, it offers much reason to believe that the jury convicted defendant based on the events of April 3. Nevertheless, defendant's claim fails, because although no evidence of criminal threats on April 3 was adduced at the preliminary examination, defense counsel was aware of the factual details of the April 3 incident. At the hearing on November 2, 2009, defense counsel, as quoted above, stated that the failure to allege a crime on March 23, 2008, in the information "was a mistake. However, there was certainly information by which Mr. Waite [the prosecutor] could have sought or tried to elicit that would have a 422 happen on April 3rd. I did expect this change would be made, so I will submit on the motion . . . ." Defense counsel acknowledged that she was aware of facts under which defendant could be found guilty of a section 422 violation because of his conduct on April 3. It suffices that defendant "learn[ed] further critical details of the People's case" (People v. Jones, supra, 51 Cal.3d at p. 317), even if it did not necessarily occur "through demurrer to the complaint or pretrial discovery procedures" (ibid.)The record shows that defendant, by whatever mechanism, "receive[d] notice of the charges adequate to give a meaningful opportunity to defend against them." (People v. Seaton, supra, 26 Cal.4th at p. 640.) Defendant was on notice before trial began to defend against the charges and defense counsel acknowledged as much at the November 2, 2009, hearing just before trial began. We reject the claim.
We note that on November 5, 2009, three days later, defense counsel argued to a different effect in discussing the jury's query about the possible dates for finding defendant guilty of the section 422 charge. She said to the trial court as the parties and court discussed how to respond to the query, "All the evidence is March 22nd." (Sic.)She then argued that the preliminary examination had not adduced evidence of a section 422 violation on April 3, 2008. She further asserted that she had no knowledge of the evidence that defendant had threatened Lopez on April 3 and was taken by surprise. She stated that her comments on November 2 extended only to agreeing to change the allegation date for the section 422 violation from April 3 to March 23, and not to agree that there was evidence of such violations on both dates.
We do not understand the basis for the discrepancy in the record, but we cannot ignore counsel's November 2, 2009, comment on the record that "there was certainly information by which Mr. Waite could have sought or tried to elicit that would have a 422 happen on April 3rd." The state of the record is not ideal, but ultimately we conclude that counsel must have been aware of the evidence defendant's criminal threats on both dates, even if she had forgotten about that aspect of the April 3, 2008, incident in her November 5, 2009, comment to the trial court.
II. Claims Regarding Aggravated Assault Conviction
Defendant claims that instructions given by the court and a statement by the prosecutor during closing argument combined to erroneously permit the jury to find him guilty of assault with a deadly weapon (the box-cutter he was brandishing at Perez) "even if his conduct was merely reckless or if he intended only to frighten Perez with the boxcutter." He discerns violations of state law and the due process guaranties of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Under the law established by our Supreme Court in this area, we cannot agree.
Specifically, defendant argues that there was evidence that he meant only to frighten Perez in the parking lot and that the pattern instruction of CALCRIM No. 875, which is designed to restate the law of assault, failed to do so in that it did not signal the jury that it must acquit him of the aggravated assault charge if it found that he intended only to frighten Perez (or was reckless in his conduct), and that the law became even more unclear when the court gave the CALCRIM No. 3145 pattern instruction on an enhancement allegation. He claims that the trial court was required to instruct on this point on its own motion, that the court's failure to do so was prejudicial, and that he received ineffective assistance of counsel because counsel did not seek to have the instruction modified in this respect.
During a hearing on the proposed jury instructions, the following colloquy occurred:
"THE COURT: Ms. Feder [defense counsel]? I understand there's an issue?
"[Defense counsel]: Let me pull it out so I can get exactly the right language.
"It is in the instruction here [CALCRIM No. 3145]. Here it is, the fifth paragraph which is one sentence. The language is: 'Someone personally uses a dangerous and deadly weapon if he or she intentionally displays the weapon in a menacing manner.'
"The objection to that is I think it's misleading and confusing to the jury and changes the elements of the offense of a [section] 245 assault with, um, using a deadly weapon in an unacceptable manner and it basically changes the crime so it looks like a misdemeanor [section] 417 [i.e., brandishing a weapon] . . . and I think that that's improper.
"Um, I concede there is no exact case on point. . . . [T]here can't just be an intent to menace. There has to be more to commit battery, and menace is not enough. . . .
"THE COURT: Thank you. I had indicated in chambers that I believe that I had a duty to give the language 'displays a weapon in a menacing manner' for three reasons. The first is it's a sua sponte instruction. It's not bracketed. It's not optional. I have to pick 'displays or fires the weapon' and the language 'displays or fires the weapon' is ordered by the California Supreme Court in People versus Bland . . . [(1995)] 10 Cal.4th 991 at [page] 997, as it appears in the [CALCRIM No. 3145] use notes in California."
Thereafter the trial court instructed the jury in the pattern language of CALCRIM Nos. 875, which defines the elements of assault, and 3145, which sets forth the elements for finding true the use-of-a-deadly-weapon enhancement allegation.
On appeal, defendant notes that a conviction of assault with a deadly weapon requires more than " '[a]n intent to frighten or mere reckless conduct.' " (See People v. Ervine (2009) 47 Cal.4th 745, 805 [discussing a claim of instructional error].) Evidence of an intent to scare, standing alone, " 'is insufficient.' " (See ibid. [discussing the claim of instructional error].)
Defendant's claim encounters several problems, however, and we perceive no error in the relevant proceedings.
In People v. Golde (2008) 163 Cal.App.4th 101, 120-122, CALCRIM No. 875 was approved as a general matter and defendant does not offer any persuasive argument that the instruction's language deviates in any impermissible way from the law on which it is based. There is no doubt that it correctly restates the law of assault. (See generally People v. Williams (2001) 26 Cal.4th 779; People v. Colantuono (1994) 7 Cal.4th 206; see also People v. Ervine, supra, 47 Cal.4th at p. 805; compare generally People v. Rocha (1971) 3 Cal.3d 893.)
As for CALCRIM No. 3145, the trial court was correct that it correctly restates the law regarding the enhancement here at issue. The enhancement was for "any felony in which the defendant personally used a dangerous or deadly weapon." (§ 1192.7, subd. (c)(23).) In People v. Bland, supra, 10 Cal.4th 991, our Supreme Court said of a similar weapon-use enhancement, one penalizing use of a firearm (§ 12022.5): "Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies." (Bland, at p. 997.)
Nothing in the record, considered as a whole, suggests that the jury may have engrafted the language of CALCRIM No. 3145 onto its consideration of the aggravated assault charge on which the trial court instructed the jury using CALCRIM No. 875.
Moreover, even if the instructions were ambiguous and counsel should have acted to bring the ambiguity to the court's attention, defendant was not prejudiced, i.e., if the jury had been instructed that mere inducement of alarm does not suffice for a conviction, it could have acquitted defendant under the two standards we outline in the two paragraphs following this one.
With regard to criminal trials, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ' "whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process." ' [Citations.] ' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." ' [Citations.] If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (Middleton v. McNeil (2004) 541 U.S. 433, 437.)
There is, of course, a two-part test that determines the outcome of an ineffective assistance of counsel claim. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant's claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Defendant is correct that " '[a]n intent to frighten or mere reckless conduct is insufficient' " (People v. Ervine, supra, 47 Cal.4th at p. 805) to establish the minimum elements of assault with a deadly weapon (ibid.). Perez's testimony at trial contained evidence from which the jury could find that defendant intended only to argue with or scold her and may not even have been holding a box-cutter. She may not even have been particularly frightened.
However, "assault requires"—and therefore permits a conviction based on— "actual knowledge of those facts sufficient to establish that the offending act by its nature would probably and directly result in physical force being applied to another"—except, of course, that some further fact intervened before physical contact resulted, else the crime would be battery (People v. Williams, supra, 26 Cal.4th at p. 784).
The best evidence was that this was an attack, with physical contact between defendant and Perez blocked because Perez took shelter in her car and locked the doors. Perez was frightened, of course, but not merely frightened because of words alone or some amorphous reason—she was frightened because she perceived an incipient "offending act by its nature would probably and directly result in physical force being applied" (People v. Williams, supra, 26 Cal.4th at p. 784) to her.
Perez's contemporaneous accounts to the police office and dispatcher, which the jury also received as evidence, were quite different from her testimony: defendant ran at her brandishing a box-cutter while she was standing defenseless and unsheltered in the apartment complex's parking lot, before she was able to retreat to the place of safety her car offered. The responding police officer testified, "She stated that he got angry, and she started walking towards the car because she was scared, and she noticed he was carrying a box cutter." The prosecutor asked, "Did she describe that he was actually running towards her with the knife?" "That is correct," the officer answered. The transcript of the officer's interview with Perez confirms the officer's testimony: she said, "when I seen [sic] the knife I got scared, [']cause I thought he was gonna probably cut me . . . ." "[H]e got out this knife . . . and he just kind of like followed me, he didn't follow me but he was like running towards me, he was running towards me with the knife." "He . . . started running towards me then I quickly went inside my car and I locked my doors . . . ." Perez's statement to the dispatcher was to the same effect. The dispatcher asked, "so he came at you with a knife?" and Perez said "Yeah." Defendant later stipulated that the police recovered a box-cutter from his room in the nearby house.
At the core of the law of assault there is no dispute, nor can there be, that the elements of the crime are established when an actor commits "an unlawful attempt . . . to commit a violent injury on the person of another" (§ 240) and has "a present ability" to inflict the injury (ibid.). Perez's testimony at trial was evasive, exculpatory of defendant, and generally dismissive of the incident, which she characterized essentially as an argument and no more. Her contemporaneous accounts to the dispatcher and the police officer were, by contrast, replete with factual details and, as far as we can discern on the written record, an attempt to describe the attack that had just occurred.
In addition to the plausibility of Perez's contemporaneous accounts, other evidence discounts the possibility of a mere argument followed by a phone call to the police for vengeful or retaliatory purposes by Perez. She emerged from her car teary-eyed and shaken. She was relying on defendant to pay a share of the rent. Her and defendant's five-year-old son was present. It is unlikely that Perez would jeopardize her financial situation and her son's psychological state and even, should their son incur severe anxiety as a result of events, his continued presence with the family (see Welf. & Inst. Code, § 300, subd. (c)) by calling police with a dramatic account of physical threats if only an argument had taken place.
We thus discern no reasonable likelihood (for purposes of defendant's claim of instructional error) or reasonable probability (for purposes of defendant's ineffective assistance of counsel claim) that if the jury had been instructed in other terms, including a direct instruction that a mere attempt to frighten or reckless conduct was insufficient to establish the elements of assault, the jury would have acquitted defendant of aggravated assault.
That leaves defendant's claim that the prosecutor committed misconduct by arguing that an intent to frighten sufficed to permit the jury to find him guilty of aggravated assault and that his counsel provided ineffective assistance of counsel by failing to react.
The prosecutor argued: "I think he just wanted to terrorize her . . . I doubt he was going to kill her. We don't have to prove that. . . . You don't have to worry about that.
All I have to prove . . . is he did chase her with that knife and he knew what he was doing, not that he intended to cut her up."
Defendant argues that the argument was improper in itself because, as noted, an intent to frighten is insufficient to justify an aggravated assault conviction. (People v. Ervine, supra, 47 Cal.4th at p. 805.) He is correct. However, for the reasons we have given above, there is no reasonable probability of a different outcome had defense counsel objected to the improper remarks. There was strong evidence that this was an attack, not merely the inducement of fright for lesser reasons.
Finally, defendant claims that the foregoing aspects of the case, taken together, made his trial fundamentally unfair under the due process clause of the Fourteenth Amendment to the United States Constitution. (See People v. Rogers (2006) 39 Cal.4th 826, 911.)
Because we have found no prejudicial errors, we must reject the claim. "Defendant was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant's trial was fair.
III. Presentence Conduct Credit
Defendant claims that the trial court erred in not calculating his conduct credit for his uneventful presentence confinement (§ 4019). The People agree with him.
The trial court did not award defendant any presentence conduct credit. It did not deny him the credit either, but left the issue unresolved, ruling that it would leave the matter "up to the jail" authorities to calculate. It was, however, the court's duty to calculate these credits." It is "not the proper function of the Court of Appeal to engage in this business of correction of clerical errors in the computation of credits. . . . [W]hen the miscalculation of custody credits is clearly in error . . . the remedy . . . in the trial court will be more timely, effective, and much less costly to the system." (People v. Fares (1993) 16 Cal.App.4th 954, 959.) Defendant is entitled to have the trial court undertake this housekeeping matter. We will order further proceedings accordingly.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court, however, with instructions that the court reconsider the information before it and any additional information it may deem proper and thereafter issue a revised order determining the number of days of Penal Code section 4019 credit to which defendant is entitled.
Duffy, J. WE CONCUR: Rushing, P. J. Grover, J.
Judge of the Monterey County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.