Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino,No. E044487 Raymond L. Haight, Judge.
McDONALD, J.
Manuel Rudy Sevilla appeals a judgment following his jury conviction of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)). On appeal, he contends: (1) the trial court erred by admitting certain expert testimony; (2) he was denied effective assistance of counsel when his trial counsel did not object to admission of that expert testimony; (3) the trial court erred by instructing with CALCRIM No. 332 on consideration of expert testimony; and (4) the trial court erred in calculating the number of days of presentence custody credit to which he is entitled.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On July 4, 2005, Ramon Quezada and Christina Chacon, husband and wife, were away from their Fontana home. While they were away, they received a call from someone at their home urging them to hurry back. On their arrival home, police were present. Chacon's brother and his friends had an altercation with Felix Nunez, a neighbor who lived across the street. Nunez was stabbed and later died.
Nunez was a member of the Cherryville street gang based in Pomona. His gang moniker was Cat. Sevilla was also a member of the Cherryville gang and had the gang moniker Little (or "Lil") Block. Other Cherryville gang members included Luis Huerta (Lucky), Armondo Vidana (Sinner), Brandon Aragon (Little Indio), and Carlos Gonzalez (Popeye). Sevilla and Nunez were close friends, had grown up together, and were in the same clique. They were respected, higher-level members of the Cherryville gang.
The Cherryville gang was originally part of the 12th Street Sharkies gang, but had broken off and formed its own gang years before.
During the evening of January 21, 2006, Quezada and Chacon were at home with other family members. Quezada and Chacon walked to a market near their home. It was very dark when they returned. There were no street lights in the immediate area of their home. Passing a street light about 100 feet from their home, Chacon saw a parked car with a square back end, facing away from them. As Chacon passed through their front gate, Quezada told her to keep walking and not stop. She heard Quezada close the gate behind him and begin walking up their driveway. As she approached the front door, she heard a gunshot and looked back to see Quezada fall into a bush adjacent to their front walkway. Quezada pulled her down and covered her with his body. Chacon heard three additional gunshots. The bullets passed by her head and struck a tree and a wall near the door.
After the shooting, Quezada was bleeding and Chacon called 911. Police soon arrived and Chacon stayed by Quezada's side. She believed she heard him tell a police officer that the shooter was from "Pomona Cherryville." Quezada stated the shooting was in retaliation for the July 4, 2005, incident during which Nunez was killed. He stated the person who shot him was in a car that looked like a burgundy Impala.
Officer David Janusz, the responding officer, arrived at about 10:30 p.m. and asked Quezada who was responsible for the shooting. Quezada was initially hesitant and vague in his response, but ultimately stated the shooter got into a car and drove eastbound on Athol Street. He described the car as a mid-1990's dark-colored, burgundy Chevy Impala. He stated the shooter looked like a gangster and was wearing a black jacket or hooded sweatshirt. He thought the shooter was a Pomona gangster and a member of the 12th Street Sharkies gang. Quezada thought the shooter had a "beef" with him and believed he had killed his cousin (i.e., Nunez) the previous July 4th. Quezada saw the shooter standing in the street while he and Chacon approached their home. He saw the shooter go to his car and obtain what appeared to be a gun. Quezada tried to get inside the house, but was shot.
Quezada was taken to a hospital and died the following day. A bullet wound on the right side of his abdomen caused blood loss, which in turn caused his death. One.45 caliber bullet was removed from his body.
Police found three.45 caliber shell casings near the scene of the shooting. Those three bullets and the bullet that struck Quezada were all fired from the same.45 caliber Glock handgun.
On January 26, Pomona Police Detective Michael Lange arrested Huerta for illegal possession of a firearm. While at the police station, Huerta told Lange he knew something about the January 21, 2006, Fontana shooting, but he was nervous and afraid to name the person involved. However, on further questioning by Lange, Huerta stated: " 'Little Block was involved in a shooting out in Fontana.' " Lange then contacted the Fontana Police Department, which sent Detectives Burton and Robbins to Pomona to interview Huerta. During the videotaped interview with the detectives, Huerta stated he knew Sevilla because they were both members of the Cherryville gang. Huerta stated that on the night of January 21, he was at a party when Sevilla arrived with Little Indio (Aragon) in Sevilla's car, a dark green Cadillac. Sevilla seemed happy and announced to everyone that he had shot "that fool" with a "45" and saw him "drop." Sevilla did not reveal any more details about the incident. However, Sevilla displayed the gun he used, along with two partially full clips. To Huerta, both the gun and bullets appeared to be.45 caliber. Huerta thought the gun was a Glock, but he was not certain.
Huerta did not know at the time that the interview was being recorded.
Huerta knew Sevilla's reference at the party was to a Fontana man whom Sevilla believed had killed Nunez. Huerta believed Sevilla's motive was vengeance for the death of his best friend (Nunez). Huerta knew Sevilla had been parking his car at the Fontana man's home every weekend for three or four months, waiting for an opportunity to "get" him. Sevilla took various guns along with him on those occasions. One week before the shooting, Sevilla had seen the Fontana man through a window and was going to shoot him, but he could not get a clear shot.
Huerta denied he was involved in the shooting. He stated his belief he would be released if he gave police information. He expressed concern that information from his interview would be released to others. After the interview, Huerta was released with a citation to appear at proceedings regarding his gun possession. The District Attorney ultimately filed misdemeanor gun possession charges against Huerta.
On February 8, Detectives Moritz and Burton conducted a follow-up interview with Huerta that also was videotaped. He appeared scared and did not want anyone to know he was talking to police. Huerta's description of events was consistent with his previous statements to police. However, he added that Sevilla stated he had shot at the Fontana man five times as he ran away. Huerta told the detectives that since his first interview Sevilla had changed the appearance of his Cadillac, removing its rims and tint from its windows. Since that first interview, Huerta also had attended a Superbowl party at Sevilla's house in Ontario. At that party, Sevilla showed everyone a.357 caliber revolver that he said he bought after selling "the 45." During the follow-up interview, Huerta signed a document stating his statements to police were true. During that interview, the detectives played the videotape recording of his first interview. Huerta was shocked because he did not know the first interview had been recorded and he appeared to become physically ill. Huerta cried while watching the recording and cried when expressing concern others would find out he cooperated with police. After the follow-up interview, the detectives drove Huerta to Ontario where he showed them the location of Sevilla's current residence.
On February 14, police arrested Sevilla and searched his Ontario residence. In his bedroom, they found a photograph and a paper sign, both of which bore the phrase, "In loving memory of Felix [Nunez]." There was also a photograph of Nunez displayed in the living room. Sevilla's Cadillac was parked in the driveway. Most of its paint (dark green) had been sanded off and some of its chrome molding and ornamentation removed. They found a.357 caliber handgun hidden behind the car's stereo. On the center of the dashboard, a photograph of Nunez was displayed.
After Sevilla's arrest, Huerta voluntarily was placed in a witness protection program. However, about one week later, he asked to be removed from the program, stating he no longer wanted to testify. Huerta was served with a subpoena to testify on March 1 in Sevilla's case. Huerta was concerned about his family's safety. During a telephone conversation with Carlos Flores, a gang unit investigator, Huerta confirmed his prior statements to police were true, but he did not want to testify because of concern for himself and his family. On March 1, Huerta did not appear to testify, was arrested, and remained in custody through Sevilla's trial.
On March 2, Officer James Gibson arrested Vidana for a probation violation. Vidana told Gibson he could give him some good information about a Fontana shooting if he would release him. Detectives Moritz and Hare interviewed Vidana, noting he was a possible suspect in the shooting. The interview was surreptitiously recorded. Vidana stated that about one month earlier, Sevilla told him he had shot some "fool" in Fontana a couple of days before, near where Nunez had been killed. Sevilla said Popeye (Gonzalez) was with him at the time of the shooting. Sevilla stated he jumped out of his car and walked toward the man, who was walking with "his lady." The man tried to run toward his home, but Sevilla shot him with a.45 caliber Glock and the man fell down into a bush. Sevilla and Gonzalez then drove away.
Vidana described the location of and the area surrounding the victim's home. Vidana stated he had been with Sevilla on an occasion one or two months before the shooting during which Sevilla drove by the victim's home looking for him. On that occasion, Sevilla had a.45 caliber Glock hidden in his car's dashboard behind the stereo. Sevilla had been looking for that man every weekend since Nunez was killed. Sevilla told Vidana he was going to kill that man and needed to do it for Nunez. Sevilla told Vidana that the man was not the person who actually killed Nunez, but he was responsible for starting the confrontation that led to Nunez's death.
Vidana stated that about two weeks before the interview, Sevilla told him he was trying to get rid of the gun he used in the shooting by selling it. Sevilla also planned to sand off his car's paint and have it repainted. During the interview, Vidana denied any involvement in the shooting. He did not want to be a witness in Sevilla's case.
On March 15, Sevilla's preliminary hearing was held. Both Huerta and Vidana testified, but recanted their statements to police. While being transported to the hearing, Vidana asked Moritz for a deal in his case. After the hearing, Huerta asked Flores what Vidana's testimony was, appearing surprised that Vidana had testified in Sevilla's case because he was one of Sevilla's best friends. Flores told Huerta he did not know.
That evening, Huerta called his mother from jail and told his mother he had denied knowing anything and Sevilla did not know he had been a witness. Huerta stated he acted like a drug addict so he would be released. He told his mother: "That is how I am going to be playing it...."
Apparently on March 16, Huerta called a person named "Dopey" from jail. He told Dopey both he and Vidana had testified against Sevilla. Dopey stated "they know" and Huerta said he was going to get his family away.
On January 27, 2007, and February 26, 2007, the jail also recorded telephone conversations between Vidana and his father. Apparently referring to Sevilla's case, his father advised Vidana: "You don't know nothing.... [¶] You were on PCP, Crystal, you don't know what the heck you were doing[.]" He told Vidana to say he was on dope and does not know what they are talking about. Vidana said he would "plead the [F]ifth."
An information charged Sevilla with one count of murder (§ 187, subd. (a)) and one count of possession of a firearm by a felon (§ 12021, subd. (a)). It further alleged that during commission of the murder Sevilla intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(d)). It also alleged he committed both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
At trial, the prosecution presented witnesses who testified substantially as described above. Lange testified as an expert witness on gang behavior. He testified it is infrequent for gang members to provide information to police about and testify against either fellow or rival gang members. Those gang members who do provide information to police risk physical harm to themselves and their families and usually attempt to recant their statements if called to testify. However, it is not unusual for gang members who provide information to police to give them false information. Gang members who implicate fellow gang members typically are either attempting to leave the gang or obtain a personal benefit. Lange believed Huerta and Vidana provided information to police in an attempt to obtain a personal benefit (e.g., leniency in their own criminal matters).
Huerta and Vidana both testified at trial, but denied, or stated they could not recall, their statements to police. Huerta testified that in January 2006 he was a new member of the Cherryville gang. He denied knowing Vidana and Nunez and stated he barely knew Sevilla. Huerta denied making the March 2006 telephone calls from jail to his mother and Dopey. He claimed he could not recall his statements to police because he was probably under the influence of methamphetamine or cocaine, which he used daily, and had not been sleeping. Huerta admitted he was worried the Cherryville gang was going to "green light" (i.e., kill) his family because he talked to police. He said the rule is that you do not "snitch" to police.
Vidana testified he was a "hardcore" member of the Cherryville gang. He was good friends with Sevilla until Sevilla "abandoned" the gang in or about 2001. He knew Huerta and they had spoken at some point between the January 21, 2006, shooting and the day he (Vidana) was arrested (i.e., March 2, 2006). They talked about the shooting.
Vidana testified to the effect that he asked police for leniency in his criminal matter in exchange for information, but he did not receive it. He could not recall making most of his statements to police, explaining he was "all doped up" on drugs at the time. Of those statements he recalled making, he testified he made them because he did not like Sevilla for leaving the gang or were statements based on what he had heard on the streets. Vidana stated gangs members were angry with Sevilla because he was not "jumped out" (i.e., beaten up) or otherwise given permission to leave the gang. Vidana recanted his statements to police because he made a mistake by falsely accusing Sevilla.
In his defense, Sevilla presented the testimony of Jessica Negrete, his girlfriend with whom he lived at the time of his arrest. She testified Sevilla had been a Cherryville gang member, but he left the gang in 2003 when he was diagnosed with cancer. Sevilla had not associated with Cherryville gang members since then. On the night of the shooting, Sevilla was at home with her because she was ill with the flu. She did not recall telling police she did not remember where she was that day. She had never seen Sevilla with a gun. She stated Sevilla began repainting and repairing his car in November 2005.
Sevilla testified in his own defense. He stated he left the Cherryville gang in 2003 when he was diagnosed with cancer. He had grown up with Nunez and they were good friends. However, he denied killing Quezada in retaliation for Nunez's death, and stated Huerta's and Vidana's statements to the contrary were false. He stated they held a grudge against him. Cherryville gang members were upset with him for leaving the gang. He had not been "jumped out" of the gang or received permission to leave the gang.
Sevilla admitted the.357 caliber gun found in his car belonged to him. He had been repainting and repairing his car since November or December 2005. He stated he began removing the tint from his car's windows in late 2005 or early January 2006. However, he admitted telling Moritz he had begun removing the window tint only two or three weeks before the date of his arrest and began sanding his car about one week before that date.
Sevilla testified that on the night of the shooting he was at home because Negrete had the flu. He denied attending a party that night, telling anyone he had shot Quezada, or having driven by Quezada's home looking for him. He denied having a gun on Superbowl Sunday. He admitted he had a prior conviction for possession of an assault rifle in March 2002.
The jury found Sevilla guilty of first degree murder (§ 187, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)). It found true the allegation that in committing the murder Sevilla intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(d)). It found not true the allegations he committed the murder and possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Sevilla to an aggregate indeterminate term of 50 years to life in prison.
The trial court imposed an indeterminate term of 25 years to life for first degree murder and a consecutive term of 25 years to life for the firearm enhancement. It imposed a two-year term for the firearm possession offense, but stayed its execution pursuant to section 654.
Sevilla timely filed a notice of appeal.
DISCUSSION
I
Admission of Certain Expert Testimony
Sevilla contends the trial court erred by admitting certain expert testimony by Lange.
A
Lange testified for the prosecution as an expert witness regarding gang behavior and that it is infrequent for gang members to provide information to police about and testify against either fellow or rival gang members. He testified it is not unusual for gang members who provide information to police to give them false information. Lange testified on direct examination:
"Q. Based on your training, education, and experience in this, let's say a person, hypothetically, gives up information to the police about a crime. Do they normally give up somebody falsely, give up somebody -- because they do sometimes give information -- they lie to the police, correct?
"A. Yes.
"Q. Give false information?
"A. Yes.
"Q. Have you ever been in situations where they give false information against a fellow member within their own gang?
"A. Not unusual. You have to understand, in a gang member's life, they can name anybody else out there and the police are basically going to have some information. They are probably going to investigate it, but what doesn't make sense is why somebody from a gang, at least two individuals, come forward with specific particular information to [sic] a guy that is technically like a supervisor and say his name at different points in time. To me, that is powerful because they are not making that up." (Italics added.)
Sevilla's counsel did not object to that testimony.
B
Sevilla argues the trial court erred by admitting Lange's expert testimony italicized above because it vouched for the credibility of Huerta's and Vidana's statements to police and had the effect of stating Lange's opinion that Sevilla was guilty of the charged offenses. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77, 81-82; People v. Anderson (1990) 52 Cal.3d 453, 478.) Generally, an expert may not state an opinion whether a witness is telling the truth because the determination of credibility is within the common experience of jurors and expert testimony would not assist the jury. (Coffman, at p. 81.) Furthermore, an expert's opinion on a defendant's guilt is inadmissible because that is the ultimate issue of fact for the jury's determination. (Id. at p. 77.)
Regardless of whether Lange's challenged testimony was inadmissible, the People assert Sevilla forfeited or waived that contention on appeal by not objecting to its admission at trial. Evidence Code section 353 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion...." Accordingly, absent a timely and specific objection to the admission of evidence, a defendant forfeits, and therefore may not raise on appeal, the contention that such evidence was erroneously admitted. (People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 81-82; People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4 ["It is the general rule... that questions relating to the admissibility of evidence will not be reviewed on appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal."]; cf. People v. Holt (1997) 15 Cal.4th 619, 666-667.) In this case, because Sevilla did not object at trial to the admission of Lange's testimony he now challenges, he forfeited or waived the contention that the trial court erred by admitting the testimony, and may not raise that contention on appeal.
II
Ineffective Assistance of Counsel
Sevilla contends he was denied his constitutional right to effective assistance of counsel because his counsel did not object to the admission of Lange's testimony.
A
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of the right to counsel, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Pope, at p. 425.) To show prejudice, a defendant must show there is a reasonable probability he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, at p. 218.)
However, a court need not address the issue of whether a defendant's counsel performed deficiently before it addresses the issue of whether the defendant was prejudiced by that purported deficient performance. "If it is easier to dispose of an ineffectiveness claim on the ground of a lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) Alternatively stated, "[i]f a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (1998) 18 Cal.4th 349, 366, italics added (Kipp); see also Hill v. Lockhart (1985) 474 U.S. 52, 60 (Hill); In re Resendiz (2001) 25 Cal.4th 230, 239, 248-254 (Resendiz); People v. Davis (1995) 10 Cal.4th 463, 516 (Davis); People v. Wash (1993) 6 Cal.4th 215, 271 (Wash); In re Alvernaz (1992) 2 Cal.4th 924, 934 (Alvernaz).)
B
We need not address whether Sevilla's counsel performed deficiently by not objecting to Lange's expert testimony because we conclude Sevilla has not carried his burden on appeal to show he was prejudiced by that purported deficient performance. (Strickland, supra, 466 U.S. at p. 697; Kipp, supra, 18 Cal.4th at p. 366; Hill, supra, 474 U.S. at p. 60; Resendiz, supra, 25 Cal.4th at pp. 239, 248-254; Davis, supra, 10 Cal.4th at p. 516; Wash, supra, 6 Cal.4th at p. 271; Alvernaz, supra, 2 Cal.4th at p. 934.) Assuming arguendo Sevilla's counsel performed deficiently by not objecting to the admission of Lange's challenged testimony, Sevilla has not persuaded us it is reasonably probable he would have obtained a more favorable result had his counsel so objected. (Strickland, at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Assuming Sevilla's counsel had objected and the trial court sustained that objection to Lange's challenged expert testimony, it is reasonably probable the jury nevertheless would have found Huerta's and Vidana's statements to police truthful and their trial recantations and other testimonies incredible. Based on our review of the entire record, there is overwhelming evidence of Sevilla's guilt even had Lange's challenged testimony been excluded.
We note the jury was instructed that it, and not an expert witness, was to decide the believability of witnesses and other evidence. The jury was instructed with CALCRIM No. 302: "If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe.... What is important is whether the testimony or any other evidence convinces you...." Regarding expert testimony, the jury was instructed with CALCRIM No. 332: "You must consider the [expert] opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide.... You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence...." Regarding the extrajudicial statements made to police by Huerta and Vidana, the jury was instructed with CALCRIM No. 318: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] 1. To evaluate whether the witness's testimony in court is believable; AND [¶] 2. As evidence that the information in those earlier statements is true." Accordingly, the jury knew, and in effect was instructed, that it, and not Lange or any other expert witness, was to decide the believability of Huerta's and Vidana's statements to police. To the extent Lange's challenged testimony expressed his opinion that Huerta's and Vidana's statements to police were truthful, it is very unlikely, and even speculative, that the jury deferred to his opinion. Rather, it is very likely the jury, as instructed, decided the truthfulness of those statements itself.
The prosecution's case relied heavily on Huerta's and Vidana's statements to police to prove Sevilla killed Quezada. Accordingly, the jury's determination of the truthfulness of those statements, weighed against the credibility of their trial recantations of and/or claimed inability to recall those statements, was crucial to the outcome of this case. Absent Lange's challenged testimony, we conclude it is highly likely the jury would have concluded, as it presumably did in finding Sevilla guilty of murder, that Huerta's and Vidana's statements to police were true and their contrary trial testimonies were not credible. The jury viewed the videotapes of Huerta's statements to police and was therefore able to judge his demeanor in the context of the detailed statements he gave police. Likewise, the jury heard Huerta's trial testimony and was therefore able to judge his demeanor in the context of his recantations and claimed inability to recall those statements. At trial, Huerta claimed he could not recall making those statements because he was probably under the influence of methamphetamine or cocaine, which he used daily, and had not been sleeping. However, Burton testified at trial that Huerta did not appear at the time to be under the influence of methamphetamine, cocaine, or other controlled substance or to have been up for four or five days straight. Burton also testified Huerta appeared coherent to him. At trial, Huerta also claimed he did not have the March 2006 telephone conversations with his mother and Dopey, but the jury heard recordings of those conversations, which occurred while Huerta was in jail. The jury presumably and reasonably concluded Huerta's denial of those conversations was inherently implausible, which certainly undermined whatever credibility he may have had in recanting, or not recalling, his statements to police. Finally, Huerta admitted, both to police and at trial, that he was afraid of retaliation against him and his family if he testified against Sevilla. The jury presumably and reasonably inferred, and nevertheless likely would have done so absent Lange's challenged testimony, Huerta's recantation of and inability to recall his statements to police were the result of his fear of retaliation and not because he actually believed those statements were false or because he could not actually recall them. Absent Lange's challenged testimony, we conclude it is highly likely the jury would have nevertheless found Huerta's trial testimony incredible and his statements to police truthful.
Similarly, the jury was able to hear a recording of Vidana's statements to police. The jury also heard a recording of his telephone conversation with his father during which his father advised him to testify that he (Vidana) did not know anything because he was on drugs. At trial, Vidana claimed he could not recall most of his statements to police because he was on drugs. However, Moritz testified that Vidana did not appear to be under the influence at the time of his taped interview. Vidana also gave apparently inconsistent explanations for his recantations of his statements to police--sometimes stating he was on drugs, sometimes stating they were based on "street" stories, and sometimes stating he made up a false story implicating Sevilla to in effect punish him for leaving the gang. However, given the detailed nature of the information Vidana gave to police regarding Sevilla and the incident, consistent with Huerta's independent version, the jury presumably and reasonably inferred, and nevertheless likely would have done so absent Lange's challenged testimony, that Vidana's trial recantation of and inability to recall his statements to police were incredible and his statements to police were truthful.
Based on the above factors and our review of the record as a whole, we conclude it is not reasonably probable Sevilla would have obtained a more favorable result had his counsel objected to, and the trial court excluded, Lange's challenged expert testimony (i.e., "To me, that is powerful because they are not making that up."). Sevilla's arguments to the contrary are not persuasive. The jury clearly found incredible Sevilla's alibi that he was at home the night of the incident, and the jury likely would have found that alibi incredible even absent Lange's challenged testimony. The jury presumably believed Sevilla's statement to police that he began repainting of his car about one week before his arrest (i.e., after the shooting) rather than his contrary trial testimony that he began such repainting in late 2005 (i.e., before the shooting). The jury also presumably believed Sevilla's possession of a.357 caliber gun on his arrest was consistent with the statements he made to Huerta and Vidana that he planned to sell his.45 caliber gun (i.e., the type used in the shooting). Also, although Sevilla argues the jury's "not true" findings on the allegations he committed the offenses for the benefit of the gang undermines the jury's verdict, those findings are consistent with a finding that Sevilla committed the offense for a personal reason (e.g., to avenge his friend's death) rather than for the benefit of the Cherryville gang.
Because Sevilla has not carried his burden on appeal to persuade us he was prejudiced by his counsel's purported deficient performance in failing to object to Lange's challenged expert testimony, we conclude he was not denied his constitutional right to effective assistance of counsel. (Strickland, supra, 466 U.S. at p. 697; Kipp, supra, 18 Cal.4th at p. 366; Hill, supra, 474 U.S. at p. 60; Resendiz, supra, 25 Cal.4th at pp. 239, 248-254; Davis, supra, 10 Cal.4th at p. 516; Wash, supra, 6 Cal.4th at p. 271; Alvernaz, supra, 2 Cal.4th at p. 934.)
III
CALCRIM No. 332
Sevilla contends the trial court erred by instructing with CALCRIM No. 332 on the jury's consideration of expert witness opinion testimony.
A
The trial court instructed with CALCRIM No. 332:
"Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
"An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
Sevilla's counsel did not object to CALCRIM No. 332 or request any clarification or modification of that instruction.
B
Sevilla argues the trial court erred by instructing with CALCRIM No. 332 because it included the sentence: "You must consider the opinions, but you are not required to accept them as true or correct." (Italics added.) He argues the italicized part of the instruction is erroneous because it told the jury it must consider Lange's challenged opinion that Huerta's and Vidana's statements to police were true, and in effect his opinion that Sevilla was guilty.
Assuming arguendo Sevilla's substantial rights were affected by CALCRIM No. 332 and he can therefore raise his contention on appeal despite the absence of an objection at trial (§ 1259), we nevertheless conclude CALCRIM No. 332 is an accurate statement of applicable law and therefore the trial court did not err by so instructing. Sevilla does not show otherwise. To the extent Sevilla argues that instruction should have been clarified or modified to omit or change the challenged language, he forfeited or waived that argument by not requesting any clarification or modification at trial. (People v. Guerra (2006) 37 Cal.4th 1067, 1138; People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) Furthermore, although Sevilla complains CALCRIM No. 332 had the effect of instructing the jury it must consider Lange's challenged opinion regarding the veracity of Huerta's and Vidana's statements to police, his complaint should not be focused on the instruction, but rather on the admission of that purportedly inadmissible opinion. However, as we concluded above, Sevilla forfeited or waived any contention on appeal that Lange's opinion testimony was erroneously admitted, and has not carried his burden on appeal to show he was prejudiced by his counsel's failure to object to Lange's testimony.
IV
Credit for Days in Presentence Custody
Sevilla contends the trial court erred in calculating the number of days of presentence custody credit to which he is entitled. The trial court awarded him 584 days of presentence custody credit for the period of his arrest on February 14, 2006, through his sentencing on November 2, 2007. However, he argues, and the People agree, that the correct number of days of presentence custody credit for that period should be 627 days. We agree the trial court erred in calculating the number of days of presentence custody credit to which Sevilla is entitled. He is entitled to 627 days of presentence custody credit.
DISPOSITION
The judgment is reversed to the extent it awarded Sevilla only 584 days of presentence custody credit. In all other respects, the judgment is affirmed. The matter is remanded with directions that the trial court award Sevilla 627 days of presentence custody credit, amend the abstract of judgment to reflect that change, and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.