Opinion
A165672
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL BACOM, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05001918291)
STREETER, ACTING P. J.
In 1980, 14-year-old Suzanne Bombardier disappeared from her older sister Stephanie Mullen's apartment, where she was babysitting Mullen's small children while Mullen worked and attended a late-night birthday party. Bombardier's body was found in an area delta five days later with a six-inch stab wound in her chest.
The People did not charge anyone with Bombardier's murder until 37 years later, in 2017, shortly after they obtained and employed an improved DNA testing kit to identify defendant Mitchell Bacom as the contributor of male DNA found on Bombardier's body. The People further alleged as special circumstances that Bacom, in murdering Bombardier, also committed burglary, rape, and kidnapping.
Prior to trial, the court denied Bacom's pretrial motion to dismiss the case for the decades-long delay in charging him. Specifically, he argued that negligent delay between Bombardier's killing and the filing of charges prejudiced his ability to defend himself and thereby violated his due process rights. The jury subsequently found Bacom guilty of the first degree murder and the special circumstances to be true. The trial court sentenced him to life without the possibility of parole.
Bacom argues that the trial court erred in denying his motion to dismiss, that there was insufficient evidence to find him to have committed burglary, and that the court should have awarded him three more days of presentence custody credits.
We reject Bacom's delay arguments because he does not show he was actually prejudiced by the delay, the evidence indicates the People were justified in not charging him until they developed the DNA evidence in 2017, and the balancing of prejudice and justification supports denial of his dismissal motion.
As to Bacom's sufficiency of the evidence arguments, we conclude the jury could reasonably infer from the circumstantial evidence that Bacom committed burglary. As to his presentence custody credits argument, the Attorney General concedes error, we accept the concession, and we will order the abstract of judgment corrected to rectify the error. Except on that one minor point, we affirm.
I. BACKGROUND
The Contra Costa County District Attorney's office first charged Bacom with the 1980 murder of Bombardier in a complaint it filed against him in December 2017. After a preliminary hearing, the office filed an information charging him with Bombardier's murder and alleging that Bacom, in murdering her, personally used a deadly weapon, a knife (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1) ), and committed burglary, kidnapping, and rape (§§ 190.2, subd. (a)(17), 207, 209, 209.5, 261, 460). The office also alleged that Bacom was previously convicted of three felony strike offenses (§ 667, subd. (a)(1)).
Undesignated statutory references are to the Penal Code.
Bacom pleaded not guilty. As we will further discuss, prior to trial, he moved for dismissal of the case based on the delay between Bombardier's death in 1980 and the filing of the complaint charging him with her murder in 2017, contending this precharging delay violated his state and federal constitutional due process rights. The trial court denied his motion. A jury trial followed, at which the following evidence was presented.
A. Background to Bombardier's Disappearance
In June 1980, Bombardier had just graduated eighth grade. According to Mullen, her older sister, Bombardier was "a straight A Honor Roll student," a "very smart" girl, not "the type to party" or run away from home, and "just a real good kid." Bombardier would sometimes babysit Mullen's three- and five-year-old daughters at Mullen's two-story apartment in Antioch, California, near where Bombardier lived with her mother, stepfather, and another sister.
Mullen worked at a restaurant in a mall across the street from her apartment. She had recently dated two men, Frank Beltram and Bacom.
Mullen dated Beltram-who, as we will discuss, Bacom contended could have killed Bombardier-for a little less than a year. Beltram had a van, had visited Mullen's apartment, and had met Bombardier. When Mullen decided to stop seeing Beltram, she "just became extremely unavailable." Occasionally, Beltram would come to her work or knock on her door. She told him she did not want to see him anymore, which he could not accept.
Mullen testified that she had two or three dates with Bacom, and that he once stayed the night at her apartment and had consensual sex with her while her children stayed with her mother. The next day, Bacom called and said he had found a house for all of them to live in together. Mullen, concerned because she had not agreed to live with Bacom, stopped seeing him. She saw him a few times sitting at the bar in the restaurant where she worked until her shift ended and she avoided him, hoping he would "get the message."
Mullen initially told police she dated him for about six weeks and had consensual sex with him several times in her bedroom.
B. Bombardier's Disappearance
According to Mullen, between 8:00 a.m. and 10:00 a.m. on June 21, 1980, Beltram came uninvited to her apartment wanting to continue seeing her. He was carrying a six-pack of Budweiser beer, had one can in his hand, and appeared to have been drinking. Mullen insisted that their relationship was over. Beltram left 10 or 15 minutes later, appearing hurt and irritated.
Later that day, Mullen brought Bombardier to her apartment to babysit her children. Mullen testified that Bombardier brought a duffle bag containing "pajamas and stuff" and a hand-cranked small sewing machine to make doll clothes. When Bombardier stayed over, she slept on the living room sofa, where she sometimes fell asleep watching television, in the children's bed, or in Mullen's bed.
According to Mullen, she went to work a night shift at the restaurant. There, she agreed to attend a late-night birthday party and had Bombardier bring her a change of clothes for the party. Bombardier dropped off the clothes at the restaurant around 7:00 p.m. wearing blue jeans and a shortsleeved, V-neck royal blue top. Mullen waved to her as she left. Mullen thought Bombardier would have brought the children with her and locked the apartment door, probably using Mullen's extra set of keys.
A friend of Bombardier's testified that she talked by phone with Bombardier that night after 11:00 p.m. for about an hour and a half while the Saturday Night Live television program was on and Bombardier seemed fine. Another friend testified that she talked by phone to Bombardier after 1:00 a.m. The only unusual thing she noticed was Bombardier giggling at one point, although neither of them had said anything funny.
Mullen testified she returned to her apartment from the party in her car between 4:00 a.m. and 4:30 a.m. She parked by her apartment rather than in her assigned space across the way because it was "cold and windy." She did not notice whether the apartment's front door, which did not have a deadbolt, was locked when she turned her key in it and entered; the living room lights were off, she might have glanced in on the children, and she did not notice anything unusual. She prepared for and went to bed.
After Mullen awoke at 9:30 a.m. or 10:00 a.m., she went downstairs to prepare breakfast for everyone and asked her children to wake up Bombardier. They could not find her. Mullen, seeing Bombardier's overnight bag and her sewing machine on top of it, called their mother to see if Bombardier had walked home. Her mother said no, then with her husband searched for Bombardier at the mall without success and went to Mullen's apartment.
Mullen did not notice anything missing from her apartment or any signs of a break-in. She saw four or five Budweiser beer cans on the floor of the living room and dining room, assumed Beltram might have thrown them there the previous morning (she did not drink beer and had not invited him in to drink with her), and put them away in the course of tidying up for her mother's arrival.
Mullen's mother called the police, who came to Mullen's apartment that day at around noon. A police officer testified that he searched Bombardier's duffle bag and it contained a makeup bag, halter top, bra, underwear, personal items, jeans, shorts, and shoes. Mullen told him the only things missing from the bag were Bombardier's nightgown and panties. She also told him that Bombardier previously had opened the front door for her when she had forgotten her key without first looking to see who was at the door. The officer was also told that Bombardier could be wearing a gold-colored necklace with a heart and blue birthstone earrings.
Photographs of the apartment's downstairs bathroom that day showed the toilet seat up. Mullen testified that no one would have used the toilet that way, and she assumed one of the police officers had used it. A criminalist who searched the apartment that day testified that she might have lifted the seat to swab parts of the toilet but that a photograph of the toilet should have been taken before she arrived.
Also, at some point, a fingerprint found on the exterior of a window of the apartment was identified as belonging to Frank Beltram's son. There is no explanation in the record for this fingerprint.
Police also spoke that day to a woman who lived in an apartment directly across the way from Mullen. She told police and testified at trial that she heard someone knocking on her downstairs rear sliding glass door in the middle of the night of Bombardier's disappearance.
C. The Discovery of Bombardier's Body
Five days later, on June 27, 1980, Bombardier's body was found in the Antioch part of the Sacramento-San Joaquin Delta, nude, bloated, and with mud and algae on the skin, which was discolored from decomposition. Mud and algae could be found in an Antioch-area waterway accessible to people known as "Big Break" that was 12 to 14 minutes away by car from Mullen's apartment. The cause of death was a downward six-inch knife stab into the chest, which punctured the heart, part of the left lung, and the back's chest wall. A few days of postmortem change enlarged the wound on the skin, but it was consistent with a single-edged knife. The body's left ring finger was cut, the right shin was bruised, and a kneecap was abraded. There was neither a necklace nor earrings on the body, but there were two rings on each hand. It could not be determined with any scientific certainty how long the body was in the water.
Swabs from the body's vagina, vulva, and mouth were collected during an autopsy. Testing of these swabs with the technology available in 1980 was inconclusive for the presence of semen; a presumptive test for it yielded a positive result but no semen cells were found. The body's genitalia showed no signs of trauma or injury; a forensic pathologist testified that he would not expect to see any particular injury from contact between a penis and a vagina or anus. Alcohol was found in the blood, which could have been from decomposition or the ingestion of alcohol.
D. Further Investigation
The case was not solved in 1980. In 1998, a man told someone he had murdered Bombardier. Police investigated and concluded he did not murder Bombardier, and also investigated numerous other suspects and persons of interest. The technology then available did not enable the authorities to conduct a review of DNA evidence.
In 2015, Annie Hoang, a criminalist with the Forensic Biology and DNA Unit of the San Mateo County Sheriff's Office, received for testing from the Antioch Police Department the swabs of Bombardier's body. She testified that in 2015, her presumptive tests of the vulvar and vaginal swabs were positive for seminal fluid, a component of male ejaculate. A presumptive test of the mouth swab was positive for sperm. Hoang said the vaginal area is a more hostile environment than the mouth for sperm's survival, and that the lack of sperm cells in seminal fluid could be due to a man's inability to produce sperm or because a hostile environment had caused sperm cells to break down. Semen in a live person's mouth can be eliminated by swallowing and producing saliva. The recovery period for semen in the mouth of a dead person, therefore, is longer than in a live person, up to a week depending on temperature conditions around the body.
Hoang further testified that in 2015, after conducting the presumptive tests, she quantified the DNA contained in her samples. She found a high amount of female DNA and a low amount of male DNA on the mouth swab, so she stopped her review of it and planned to do a different type of testing called Y-STR testing, which focuses on short tandem repeats on the Y-chromosome, which can only be found in males. She found more female than male DNA on the vulvar swab, but concluded it was productive to proceed to a DNA analysis of it to obtain a profile she could use for comparison purposes. She did not indicate in her testimony that her testing in 2015 led to the identification of anyone as the sperm and seminal fluid contributor.
According to Hoang, in 2017 her lab switched from using the Identifiler DNA testing kit to using the GlobalFiler DNA testing kit, which allowed testers to obtain more information from DNA samples. According to an investigator who worked on the case, that year, after "some lab work was done," police received a "CODIS hit" identifying Bacom as a contributor of the DNA found on the swabs taken from Bombardier's body. As a result, he obtained a search warrant and an arrest warrant regarding Bacom, and Bacom was arrested in December 2017.
A police criminalist explained that "CODIS" refers to the "Combined DNA Index System," which "is a network of databases operated at the local[,] state and national level" containing profiles of known individuals that can be compared to those developed from crime samples.
The court overruled a defense objection to the investigator's testimony about the CODIS hit as hearsay because it was elicited only to explain the investigator's subsequent conduct.
Hoang testified that at some point after the switch to the GlobalFiler DNA testing kit, she conducted Y-STR testing of the Bombardier samples and samples taken directly from Bacom. The Y-STR profiles developed from the Bombardier vaginal and mouth swabs and Bacom's samples were the same. She was able to match the Y-STR profile to only one profile in a national database containing the Y-STR profiles of 26,009 individuals. Using a 95 percent confidence interval, she estimated that one randomly selected person out of 5,556 would have the same Y-STR profile.
Hoang also conducted standard DNA testing of the vulvar swab, which showed a mixture of DNA from Bombardier and an unknown male profile consistent with Bacom's. She determined the probability that an unrelated, randomly selected person would have the same DNA profile was less than one in 350 billion. She also identified this same male profile in the vaginal swab of Bombardier's body.
Further DNA testing eliminated numerous other suspects, including the deceased Beltram (from testing his son's DNA after the elimination of Beltram's widow's DNA, as DNA is inherited from both parents), as the source of the semen identified in Bombardier's vulvar swab.
Also, another police criminalist testified that she searched a van in 1980, presumably Beltram's. Two Budweiser cans were found in it but they were not analyzed for DNA because that was not done at the time. The criminalist collected 16 hairs from the van and found none matched Bombardier's hair.
E. Other Evidence Regarding Bacom
Evidence that Bacom had committed two other crimes was also presented. First, 1974 preliminary hearing testimony by Jacqueline Hunt was read to the jury. She testified that on December 24, 1973, she awoke in her apartment to a man, whom she identified as Bacom, clamping his hand over her mouth and putting a knife to her throat. He handcuffed her hands behind her back, tied a scarf over her mouth, and took her money. He then ripped off her underwear, took off his clothes, and" 'raped [her] from behind.'" He rummaged through her apartment, repeatedly cut her throat, and strangled her with a phone cord; she bled" 'everywhere.'" Based on this attack, Bacom was convicted of assault with intent to commit murder with the use of a knife, sodomy with the use of a knife, and burglary. In 1980, Mullen was unaware that Bacom had recently been released from custody for these crimes.
Second, Patricia Reed testified that in February 1981, she was eight months pregnant and lived in a house in Isleton, California with her young son. One night, she awoke to the sound of her back door shutting. She laid back down but then felt a stranger tapping her whom she had seen walking around the area. He grabbed her wallet and took her to the kitchen area, where he hit her a couple times and laid her down on the floor. Holding a knife and telling her to be quiet, he pulled down her underwear, removed his pants, and attempted unsuccessfully to penetrate her vagina with his penis. He then made her wash her vaginal area, wanting to touch her. He hit her in the head, went back to the kitchen, and left the house. Reed later identified him to police as he was walking around the area wearing a brown corduroy coat, which was a type of coat Mullen testified she had seen Bacom wearing. In closing argument, the People contended without objection that Bacom committed this sexual assault as well, and also that Bacom ended up spending 24 years in prison.
Reed used a different last name at the time of trial but was referred to as Reed at trial. We mean no disrespect by also doing so.
Also, following Bacom's arrest in 2017, the police examined his cell phone. Bacom had searched for "snuff" (a slang term for videos and images depicting violent rape and murder) and "snuff films." His phone contained in excess of 300 pornographic images, most of which depicted violence.
F. The Verdict, Sentencing, and Appeal
The jury found Bacom guilty of the first degree murder of Bombardier, and found true the allegations that in the commission of that murder he used a knife and committed a kidnapping, rape, and burglary. After a court trial, the court found true that Bacom had previously been convicted of the 1973 crimes against Jacqueline Hunt that we have discussed.
The trial court struck Bacom's prior strike conviction and sentenced him to life without the possibility of parole for Bombardier's murder and the rape special circumstance allegation. It imposed concurrent terms for the kidnapping and burglary special circumstances allegations, as well as a one-year concurrent term for Bacom's use of a knife.
Bacom filed a timely notice of appeal.
II. DISCUSSION
A. The Trial Court Did Not Err by Denying Bacom's Motion To Dismiss
Bacom first claims his state and federal constitutional due process rights were violated by the trial court's erroneous denial of his motion to dismiss his case on the ground that the People negligently delayed charging him with Bombardier's murder.
1. Legal Standards
"The statute of limitations is usually considered the primary guarantee against overly stale criminal charges [citation], but the right of due process provides additional protection, safeguarding a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence." (People v. Abel (2012) 53 Cal.4th 891, 908.) In People v. Mataele (2022) 13 Cal.5th 372 (Mataele), our Supreme Court summarized the legal standards we are to consider in determining whether a delay in charging a defendant has violated that defendant's state and federal Constitutional due process rights:
" 'The due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution protect a defendant from the prejudicial effects of lengthy, unjustified delay between the commission of a crime and the defendant's arrest and charging.' [Citation.] A defendant seeking to dismiss a charge on this ground must first demonstrate prejudice arising from the delay, 'such as by showing the loss of a material witness or other missing evidence, or fading memory caused by the lapse of time.' [Citation.]' "The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." ' [Citations.] However, '[i]f the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified.' [Citation.]
"The state and federal constitutional standards regarding what justifies 'delay' differ. [Citation.] However, because the law under the California Constitution is at least as favorable to [a] defendant as federal law in this regard, we apply California law to [a] defendant's claim. [Citation.]
" 'Under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process.' [Citation.] '[W]hether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.' [Citation.] 'The justification for the delay is strong when there is "investigative delay, [and] nothing else."' [Citation.] 'A court should not second-guess the prosecution's decision regarding whether sufficient evidence exists to warrant bringing charges. "The due process clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment. . . . Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt."' [Citation.]
" '[Appellate courts] review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation].'" (Mataele, supra, 13 Cal.5th at pp. 406-407.) We conduct our review based on the facts that were before the trial court at the time it ruled on the motion to dismiss. (See People v. Jones (2013) 57 Cal.4th 899, 922 ["In evaluating the correctness of a trial court's denial of a defendant's speedy trial motion [for precharging delay], we consider all evidence that was before the court at the time the trial court ruled on the motion."] (Jones).)
2. Relevant Proceedings Below
Before trial, Bacom moved to dismiss the information because the precharging delay violated his state and federal constitutional due process rights. In his supporting brief, Bacom summarized the facts consistent with the evidence later presented at trial, with some minor differences. Also, he acknowledged that in a December 2017 interview, "he admitted to having consensual sex with Ms. Bombardier in the apartment," but at the same time denied murdering or sexually assaulting her. In addition, he recounted that the fingerprint on the outside window of Mullen's apartment was not identified as belonging to Frank Beltram's son until 2015, after the son had died.
Bacom indicated he would contend at trial that he had consensual sex with Bombardier the night she disappeared but did not harm her. He argued, "It is impossible to say that any individual who had sex with her is necessarily the same individual who killed her or had nonconsensual sex. Therefore, the defense is prejudiced by the loss of evidence about Mr. Bacom's activities that night and about other individuals who were suspects in the homicide." Relying on a declaration from his defense investigator detailing efforts to find witnesses, he contended that important alibi evidence, third party culpability evidence, and impeachment evidence had been lost as a result of the 37-year delay in charging him.
Bacom also argued the precharging delay was unjustified. According to him, "police did not proceed when the forensic technology became available, but instead waited until 2015 to reopen the case, then another 2 more years before the CODIS hit." Relying on case law in 1999 and 2001 that discussed the use of DNA testing methods, he argued it was "unclear" why police waited until 2015 to reexamine the evidence even though "the process used to ultimately link Mr. Bacom to the DNA swabs was available to the police in the early 2000s." Further, he contended, "Mr. Bacom's DNA profile was obtained by the government in the early 2000s in an unrelated 290 case, for inclusion in the statewide database ...."
Specifically, Bacom cited People v. Hill (2001) 89 Cal.App.4th 48 and People v. Allen (1999) 72 Cal.App.4th 1093, 1097 (both discussing the polymerase chain reaction (PCR) and short tandem repeat (STR) DNA testing methods).
In their written opposition to the dismissal motion, the People argued Bacom did not show he was prejudiced by the precharging delay because DNA analysis eliminated other potential suspects as DNA contributors to the Bombardier swabs and because he, Bacom, could have no alibi given his admission that he had sex with Bombardier the night she disappeared. Further, they contended, based on Hoang's preliminary hearing testimony, the DNA technology used to identify Bacom as the contributor of the seminal material on the Bombardier swabs "did not exist" until 2017, when the lab began using the GlobalFiler testing kit. Also, while conceding a charge may be dismissed before trial for precharging delay, they argued dismissal is only required "if it is proven at trial" that the delay violated a defendant's due process rights.
At the hearing on Bacom's dismissal motion, defense counsel first responded to the People's suggestion that the dismissal motion should be determined after trial. She distinguished Bacom's circumstances from the case law the People cited, and further argued that, should the trial court deny the motion, it should allow Bacom to renew the motion after trial. The trial court agreed that it could "look at the proffer that's made by the defense right now, determine if it reache[d] the baseline," and, if it chose to deny it, do so without prejudice to the defense bringing a post-trial motion. It then invited argument.
Defense counsel argued Bacom had shown prejudice in many ways due to a number of potential witnesses passing or their loss of memory. The court observed, "Well, there's two prongs on that point .... One is the issue of when the pre-complaint delay or-when it originates. And, obviously, this case dates from a very long time ago; however, the court is of the view that the speedy trial rights do not attach until the defendant has been arrested or a charging document has been filed." The court continued, "And so therefore certain conditions that you are alleging have caused prejudice are not as a result of the charging document having been filed [in 2017] and a delay occurring thereafter. [¶] This is because the DNA capabilities were limited until 2017, after which it was discovered that Mr. Bacom's DNA was found in and on the victim."
In response, defense counsel argued, based on her "extensive interactions" with unidentified "experts in this field" and a scientific journal article-which Bacom does not identify and which is not in the appellate record-that the DNA process used "in 2015 and 2017 . . . existed in the early 2000s." Counsel contended it was negligent for law enforcement not to have obtained the appropriate testing kit before 2015.
The prosecutor disagreed, contending the journal article "acknowledges that the kits used to develop the DNA to then be identified were not readily available." She repeated the People's arguments about prejudice and justified delay, and also asserted that "just because a witness is dead does not mean that they would have brought any relevant or exculpatory information to this trial." She added that any testimony that Bacom was elsewhere on the night of Bombardier's disappearance would be false because he had admitted he was with Bombardier.
After hearing further argument, the court ruled as follows: "So it strikes me, [defense counsel], that you're making arguments that relate back to 37 years ago when the inquiry is not that. The inquiry is, has there been delay since the time of filing the charging document? And there has not been." After referring to delays caused by the pandemic, the court continued, "[B]ut the delays to which you're referring are not based on the time of the filing. They are based on the fact that back 37 years ago there was not a vehicle by which the DNA could identify Mr. Bacom. And when it became available, this being the global filer according to the testimony that the court has heard, in 2017 once he was identified, the charges were filed, and we have proceeded at pace.
"So I understand that there is an overall concern about witnesses being unavailable and certain avenues that can't be explored. I don't think those are relevant to the court's inquiry in this particular regard because of the fact that those issues regarding the witnesses, for example, occurred well before this case was filed and are not a direct result of delay due to the filing of the complaint.
"Now I understand your argument regarding there could have been DNA testing sooner, there could have been people interviewed at the scene, people at the apartment complex, for example, however, those are not considerations in terms of this particular motion.
"That may be a consideration post trial where you may be able to formulate a different type of argument, but for purposes of this argument, I don't find they're relevant. So this court is going to deny the motion to dismiss for pre-complaint delay."
After trial, Bacom renewed his motion to dismiss for precharging delay, arguing a limited ground as a basis for it, which motion the court denied. He does not raise this ground on appeal, so we do not discuss it further.
3. Forfeiture of Federal Constitutional Claim
The People argue we need not address the merits of Bacom's federal constitutional due process claim because he had to show the People intentionally delayed charging him in order to gain a tactical advantage but did not argue intentional delay below and does not argue it on appeal. Bacom contends we should reject this forfeiture argument because he was not necessarily required to show intentional delay, but instead could have just showed delay occurred in reckless disregard of circumstances that could impair the ability to mount an effective defense under his interpretation of Supreme Court case law.
Our Supreme Court explained in the case relied on by the People, People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), "we have stated that '[a] claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant.' [Citations.] Defendant argues that the showing that the United States Constitution requires is not quite this onerous. As we explain, the exact standard under that Constitution is not entirely settled. It is clear, however, that the law under the California Constitution is at least as favorable for defendant in this regard as the law under the United States Constitution." (Id. at p. 1251.)
We need not further address this debate over forfeiture because, as we will discuss, California law allows a defendant to win a state constitutional due process claim for precharging delay by merely showing the prosecution was negligent in delaying charging a defendant, a claim Bacom did make below and does make on appeal, and which we reject. Therefore, assuming for the sake of argument that Bacom is correct in his opposition to the People's forfeiture claim, we would reject this claim too.
4. The Trial Court's Exercise of Discretion
Bacom first argues that the trial court mistakenly construed his dismissal motion as arguing his post-arrest right to a speedy trial was violated and, accordingly, disregarded his evidence of prejudice caused by the precharging delay. Based on that, he contends, without citation to legal authority, we should review the court's denial of his motion independently rather than for abuse of discretion.
We do not agree that the trial court treated Bacom's motion as arguing his post-arrest rights only. True, there are some indications the court may have conflated the precharging delay and speedy trial issues. Specifically, the court stated that the focus of its inquiry was on the "delay since the time of filing the charging document" and that Bacom's concerns about the unavailability of potential witnesses were neither "relevant" nor "considerations in terms of this particular motion." The court also considered whether the pandemic had caused post-arrest delays although Bacom did not raise any such issue. But while this indicates the court went beyond the contours of the motion as made in considering whether Bacom's case was delayed for any reason, it does not establish that the court failed to address the motion at all or thought it unnecessary to consider Bacom's prejudice arguments.
The hearing began with defense counsel addressing whether the court should consider the dismissal motion before or after trial. The court's subsequent statements, inartfully stated as they clearly were, appear to reflect its view that Bacom's prejudice arguments were unpersuasive at that pretrial stage. This is because the court based its ruling on its view that the prejudice complained of by Bacom was "not a direct result of delay due to the filing of the complaint," since there was not a way to test DNA 37 years before and, when one became available in 2017, the People quickly used it to identify Bacom as a DNA contributor and charge him. The court's heavy reliance on this 2017 testing for its ruling makes clear that it considered Bacom's precharging delay arguments because that testing occurred before Bacom was arrested and charged. The focus on 2017 testing can only be relevant to whether the People's precharging delay was justified. In other words, the court appears to have been addressing precharging delay, if only partially expressing its view that the People's justification for its delay outweighed any prejudice that Bacom argued at that pretrial stage. The court also stated that it was denying "the motion to dismiss for pre-complaint delay," further indicating its understanding of the nature of the motion before it.
We normally presume a trial court correctly understood the applicable law. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) An exception to this rule is where the record affirmatively shows that is not the case. (People v. Giordano (2007) 42 Cal.4th 644, 666.) But before invoking the exception, we will rely on a judge's on-the-record statement of the law" 'when, taken as a whole, the judge's statement discloses an incorrect rather than a correct concept of the relevant law, "embodied not merely in 'secondary remarks' but in [the judge's] basic ruling." [Citations.]' This limitation on the general rule applies only where 'the court's comments unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law.' [Citation.]" (People v. Dawson (2021) 69 Cal.App.5th 583, 592.)
Applying these principles here, we are not persuaded that the record unambiguously shows the trial court misapprehended the law. Whatever stray thoughts the court had in ruling on Bacom's motion to dismiss, we conclude it understood and properly reviewed Bacom's motion as arguing improper precharging delay. The court was within its discretion to deny the motion. And in any event, even if there were some genuine question about the legal framework of the court's analysis, we would rule that the motion should have been denied, exercising our independent review.
5. The Merits of Bacom's Precharging Delay Claim
Bacom's claim that the People's 37-year delay in charging him with Bombardier's murder violated his due process rights fails because the prejudice he complains of is speculative. Also, the People were justified in the delay because the lab tasked with testing the DNA on the Bombardier swabs did not have the technology needed to trace it to Bacom until 2017, when he was charged.
a. Prejudice
Bacom does not challenge the trial court's denial regarding most of his claims of prejudice but instead focuses on certain evidence lost between 2014, when he contends on appeal the GlobalFiler DNA testing kit became available, and Hoang's 2017 DNA tests. Therefore, we will address just that evidence.
A defendant does not show prejudice from precharging delay simply because certain potential witnesses cannot testify, since "[i]t is inevitable that over the years potential witnesses will die or otherwise become unavailable." (People v. Cordova (2015) 62 Cal.4th 104, 120 (Cordova).) Evidence that is speculative is insufficient to establish prejudice. (See ibid. [claimed prejudice was "speculative" because there was no reason to think the unavailable witnesses would have supplied exonerating evidence]; see also Jones, supra, 57 Cal.4th at p. 923 [rejecting prejudice contention as based on "speculative" evidence].)
Bacom emphasizes lost evidence he claims could have supported his theory that Frank Beltram may have killed Bombardier. Specifically, he points to his claim below that a police officer named Green died in May 2016. According to Bacom, Green knew Beltram, and at some point reported to the police that he saw Beltram on the night of Bombardier's disappearance "sitting in a restaurant bar 'acting unusual and high at around 4:00 or 5:00 a.m.' "
Bacom also points to his inability to locate Betty Johnson, who purportedly could have demonstrated Beltram was lying about his whereabouts on the night of Bombardier's disappearance. He contended below that "Betty Johnson provided an alibi for Mr. Beltram's whereabouts the night Ms. Bombardier disappeared. Ms. Johnson's timeline did not match Mr. Beltram's timeline. Forever lost is the ability to question her as to why Mr. Beltram asked her to lie for him. Defense has been unable to locate her given the limited identifying information."
Bacom also contends the delay between 2014 and 2017 resulted in the loss of testimony from Rick Willis regarding another possible killer of Bombardier, Walter Rawlyk, who lived with Bombardier's family. Bacom contended below that Rawlyk had stated he was with another person at the time of Bombardier's disappearance. Nonetheless, Bacom contended, Rawlyk "was noted to stare at Ms. Bombardier and her sister, and unexpectedly left town when Ms. Bombardier's body was recovered. When he was investigated as a suspect back in 1980, Rawlyk refused to take a polygraph about his whereabouts ...." Bacom further contended that Willis, who had died in January 2017, had been Rawlyk's "roommate and verified that Mr. Rawlyk was acting strange right after the homicide and left town without paying his rent."
Bacom also contends, based on trial testimony, that a police officer's supposed memory loss and inadequate record keeping about the contents of Bombardier's duffle bag "exacerbated the problematic lapse of time, most notably with regard to what Bombardier was likely wearing when she left the apartment." Bacom theorizes Bombardier was likely wearing the clothes Mullen saw on her earlier that evening at the restaurant, suggesting she left voluntarily, rather than in a nightgown. We disregard his contention about the police officer because he does not show he raised it in his motion below. (Jones, supra, 57 Cal.App.4th at p. 922; Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [reviewing court not required to search the record for supporting evidence].)
We fail to see how this purportedly lost evidence regarding Beltram and Rawlyk would have helped to exonerate Bacom. Bacom contended he had consensual sex with Bombardier on the night of her disappearance but did not assault or kill her. That is, he asserted a jury could find reasonable doubt because Bombardier, a 14-year-old girl heading into ninth grade who was babysitting her two small nieces, agreed to have vaginal and oral sex with him, an adult male, in the middle of that night, whether at Mullen's apartment or elsewhere. Bacom failed to support this contention with any evidence suggesting Bombardier knew him or could and would have "consensually" engaged in sex with him under the circumstances. His contentions also necessarily mean that on this same night, another man coincidentally went to Mullen's apartment, kidnapped Bombardier, stabbed her to death, stripped her body naked, and threw her body into the delta.
This is a very weak theory, to say the least. To create reasonable doubt, the defense very likely had to do far more than pursue the typical strategy of pointing at an empty chair as the actual killer to overcome the import of Bacom's DNA being definitively found on the Bombardier swabs, including the discovery of semen in the mouth of Bombardier's body five days after her disappearance, which, based on Hoang's testimony that a live person can eliminate semen in the mouth by swallowing and producing saliva, suggests Bombardier was killed before or shortly after Bacom deposited the semen there. And this defense strategy was badly undermined by the fact that, as the People pointed out in their opposition, all of the potential other suspects, including Beltram and Rawlyk, were eliminated as contributors of the DNA found on the swabs.
Even putting this context aside, Bacom's lost evidence-if indeed it was lost because of the precharging delay he complains of-was nothing more than speculation. That a police officer might have seen Frank Beltram acting" 'unusual and high'" in the middle of the night that Bombardier disappeared, or that Beltram's timeline of his whereabouts that evening might have been inconsistent with another witness's account, do not provide particular facts supporting the theory that he killed Bombardier. The same is true of any evidence that Rawlyk was acting strangely right after the homicide and left town without paying his rent.
Bacom did not indicate when Johnson became unavailable and, therefore, does not establish it occurred due to the precharging delay between 2014 and 2017.
Bacom relies on two cases to support his claim of prejudice, People v. Booth (2016) 3 Cal.App.5th 1284 (Booth), and People v. Boysen (2007) 165 Cal.App.4th 761 (Boysen).
In Booth, an eyewitness to a deadly shooting, shown a photographic lineup, said the defendant, Booth," 'most closely resemble[d]'" one of the shooters. (Booth, supra, 3 Cal.App.5th at pp. 1292, 1288-1289, 1296.) However, another eyewitness, Bradford, upon being shown the photographic lineup, told police Booth, whom he knew, was not one of the shooters. (Id. at pp. 1289-1291, 1293.) Booth was not charged until 19 years later when, upon additional funding being provided to the police department's gang unit, additional evidence was gathered; by that time Bradford could not be located. (Id. at pp. 1293, 1297-1300.) Booth was acquitted of first degree murder but convicted of second degree murder after two witnesses gave testimony indicating he was one of the shooters. (Id. at pp 1295-1296.)
Booth petitioned the appellate court for a writ of habeas corpus, arguing his trial counsel was ineffective for failing to move to dismiss for precharging delay, including because of the loss of Bradford's testimony. (Booth, supra, 3 Cal.App.5th at pp. 1288, 1297-1298.) The appellate court granted the petition. (Id. at p. 1288.) It rejected questions raised about Bradford's credibility, considered him to be "essentially a neutral witness," and concluded that Booth lost "a potentially powerful," "blockbuster" witness because of the lengthy precharging delay, resulting in "substantial" prejudice. (Id. at pp. 1305-1308.) It held that, while the delay was justified, the prosecution's case against Booth was "not very strong," relying on two witnesses with "considerable limitations" and resulting in an acquittal on the first degree murder charge. (Id. at pp. 1309-1312.) Therefore, given Bradford's unavailability, it was at least reasonably probable the trial court would have found the delay violated Booth's right to a fair trial, and trial counsel was ineffective for failing to move for dismissal. (Id. at p. 1312.)
In Boysen, the defendant, Boysen, was charged with murdering his parents in 2004, 24 years after they were killed in 1980; this charging was delayed even though he became the focus of the police investigation at the end of 1981 and his estranged wife gave police incriminating information about him shortly thereafter. (Boysen, supra, 165 Cal.App.4th at pp. 765, 767.) He was charged after a recently formed cold case unit reexamined fingerprints from the crime scene using techniques that were available in 1980 and conducted further interviews. (Id. at pp. 768-770.) The trial court granted Boysen's motion to dismiss for precharging delay and the People appealed. (Id. at p. 765.)
The appellate court agreed with the trial court that Boysen had presented" 'extensive evidence'" of prejudice caused by precharging delay and affirmed. (Boysen, supra, 165 Cal.App.4th at pp. 778, 782.) This prejudice resulted from, among other things, the loss of testimony from two deceased neighbors of the victims, one who heard gunshots and the other who heard an engine of a small car, both after Boysen was said to have returned to his own home. (Id. at pp. 778-780.) The court also concluded the prosecution failed to justify the delay in Boysen's prosecution. (Id. at pp. 780-781.)
Both cases are easily distinguishable from the present circumstances because they involved potential lost evidence that could have been exculpatory of the defendants. Bradford had seen the shooting, knew Booth, and told police Booth was not one of the shooters. A neighbor reportedly heard gunshots after Boysen returned to his own home and the passage of time had eliminated other potentially fruitful paths the defense might have pursued. Neither case involved DNA evidence that definitively placed the defendant with a victim at the time the crime occurred. These cases provide no meaningful support for Bacom's claim of prejudice.
In short, we conclude, under both the abuse of discretion and independent standards of review that Bacom's claims of prejudice fail because they are based on nothing more than speculation. His failure to show actual prejudice is reason enough to affirm the trial court's denial of Bacom's motion to dismiss. (Mataele, supra, 13 Cal.5th at p. 406 ["A defendant seeking to dismiss a charge [for precharging delay] must first demonstrate prejudice arising from the delay"]; Cordova, supra, 62 Cal.4th at p. 119 [" 'To avoid murder charges due to delay, the defendant must affirmatively show prejudice.' "].)
b. Justification for the Delay and the Balancing of Prejudice and Justification
Given our conclusion that Bacom has not shown actual prejudice, we need not address whether the People were justified in their delay. Nonetheless, we will briefly address this issue.
As the People point out, our Supreme Court has also held that "[t]he justification for the delay is strong when there is 'investigative delay, nothing else.'" (People v. Cowan (2010) 50 Cal.4th 401, 431.) Further, our high court has consistently indicated that the discovery of new evidence can provide justification for a lengthy precharging delay. (See Cordova, supra, 62 Cal.4th at pp. 119-120 [cold hit revealed a DNA match between a defendant previously unknown to investigators and evidence samples after 23 years]; Nelson, supra, 43 Cal.4th at p. 1256 [new DNA evidence linking defendant to the crime developed after 26-year delay].)
Hoang, in her preliminary hearing testimony, said that in 2015, using the Identifiler DNA testing kit, she was able to develop an unknown male profile from the sperm found in the swabs taken of Bombardier's body, but that the profile did not contain enough information to enable her to compare it to profiles contained in CODIS. In 2017, she said, her lab "switched over to a new kit, a more sensitive kit, called GlobalFiler," which "looks at more locations" and "more information." She said, "So, in knowing that, I held onto this case and thought that this case would be a great case to use with the newer kit to try to get a little bit more information to see if I can get that male profile to enter into CODIS." She was able to get the profile and entered it into CODIS.
Bacom argues the People were negligent in pursuing their investigation because the GlobalFiler kit Hoang used in 2017 purportedly was available by 2014. Relying on People v. Mirenda (2009) 174 Cal.App.4th 1313, 1329 and People v. Pellegrino (1978) 86 Cal.App.3d 776, 781, he contends law enforcement put his case on the" 'back burner'" rather than diligently pursue it. But his only evidentiary support for this contention is an online news article from Business Wire, for which he does not request judicial notice and, more importantly, which he never cited to the trial court in support of his dismissal motion. Because this article was not before the court considering his motion below, we disregard it. (Jones, supra, 57 Cal.4th at p. 922.) Bacom otherwise offers nothing to suggest that the People acted negligently. On the other hand, Hoang's preliminary hearing testimony provides sufficient justification for the delay: that the lab did not switch to the use of the GlobalFiler kit until 2017, which she promptly used to develop new evidence that was previously unavailable and which led to the identification of Bacom as a contributor of DNA on the Bombardier swabs. Hoang also indicates that, contrary to putting this case on the back burner, she worked it up as best she could in 2015 and prepared to pursue it when the more improved kit became available in 2017.
Further, Bacom's argument, which essentially is that law enforcement should have obtained the GlobalFiler kit before it did, is the same argument rejected by our Supreme Court in Nelson, supra, 43 Cal.4th 1242. There, the defendant was charged with a 1976 murder 26 years later, in 2002, after a "cold hit" identified his DNA as at the crime scene. This cold hit resulted from the use of DNA technology that law enforcement did not have funds for until 2000. (Id. at pp. 1248-1249.)
Our high court concluded there was a "strong" justification for this delay, which was investigative delay and "nothing else." The court wrote, "Defendant argues that the DNA technology used here existed years before law enforcement agencies made the comparison in this case and that, therefore, the comparison could have, and should have, been made sooner than it actually was. Thus, he argues, the state's failure to make the comparison until 2002 was negligent. We disagree. A court may not find negligence by second-guessing how the state allocates its resources or how law enforcement agencies could have investigated a given case.... 'Thus, the difficulty in allocating scarce prosecutorial resources (as opposed to clearly intentional or negligent conduct) [is] a valid justification for delay....' [Citation.] It is not enough for a defendant to argue that if the prosecutorial agencies had made his or her case a higher priority or had done things a bit differently they would have solved the case sooner." (Nelson, supra, 43 Cal.4th at p. 1256-1257; followed in People v. Smothers (2021) 66 Cal.App.5th 829, 857-859 [Division Three of this court finding substantial evidence of justification for the delay].)
Even if Bacom could show that the GlobalFiler kit was generally available to law enforcement by 2014, we would reach the same conclusion as the Nelson court: the evidence indicates that the People were justified in their delay because they showed the lab tasked with testing the DNA taken from the Bombardier swabs were unable to use that kit until 2017.
In short, Bacom's lack of justification argument is unpersuasive. And given the paucity of prejudice to Bacom caused by the precharging delay, a balancing of prejudice caused by and justification for the precharging delay leads to only one conclusion: Bacom's motion lacked merit.
B. Evidence of Burglary
Next, Bacom contends there was insufficient evidence to support one of the three special circumstance allegations the jury found to be true, that he committed a burglary in the course of murdering Bombardier, because there was a total lack of proof that he entered Mullen's apartment.
As we have discussed, Bacom, having been convicted of Bombardier's first degree murder, was sentenced to life without the possibility of parole under section 190.2 based on the special circumstance allegation that he also raped her. He received concurrent sentences for the burglary and kidnapping special circumstance allegations.
Section 190.2, subdivision (a)(17)(G) provides that a person who commits first degree murder shall be sentenced to life without the possibility of parole if "[t]he murder was committed while the defendant was engaged in . . .: [¶] . . . [¶] Burglary in the first or second degree in violation of Section 460." Any person who enters a house or building "with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459, italics added.) "Evidence supporting a conviction for burglary may be based entirely upon circumstantial evidence." (In re D.M.G. (1981) 120 Cal.App.3d 218, 227; see also see People v. Johnson (1993) 6 Cal.4th 1, 36 [conviction for burglary sustained based solely on circumstantial evidence].)
As our Supreme Court has instructed, "[t]o assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.... A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
This same standard governs "in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt [Citation].' [Citation] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.) "To determine the sufficiency of the evidence to support a special circumstance finding, we apply the same test used to determine the sufficiency of the evidence to support a conviction of a criminal offense." (People v. Mayfield (1997) 14 Cal.4th 668, 790, disapproved in part on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
Bacom, noting the lack of any direct evidence that he entered Mullen's apartment, such as eyewitness testimony or fingerprints, argues there is no logical basis to conclude that he entered the apartment because Bombardier "need only have stepped outside the apartment for [him] to make contact with her." This argument is not persuasive. The jury could have reasonably inferred from the circumstantial evidence that Bacom entered Mullen's apartment with the intent to kidnap, rape, and kill her. Bombardier was 14 years old, smart, responsible, and tasked with the care of her three- and five-year-old nieces. Given her late-night phone calls with friends that night, the jury could reasonably infer that Bacom made contact with her after 1:00 a.m., when the young children were in bed. A pillow and blanket were found on the living room couch, from which the jury could reasonably infer that Bombardier had gone to, or was preparing, to sleep there herself. Bombardier's shoes, jeans, and shorts were found in her duffel bag the next day and Mullen reported to police that Bombardier's nightgown was missing, from which the jury could reasonably infer that Bombardier did not dress to leave the apartment that night, regardless of whether, as Bacom contends, she was wearing the V-neck royal blue top Mullen saw her wearing at the restaurant earlier that evening.
Given Mullen's testimony that Bombardier disappeared on a night that was cold and windy, it is not unreasonable to theorize that Bombardier could have been wearing both the top and her nightgown when she prepared to go to sleep that night.
Under these circumstances, the suggestion that Bombardier dressed and left the apartment voluntarily, or even that she just went outside, in the middle of the night is difficult to believe, especially so in the absence of any evidence that she had reason to trust, or even knew, Bacom. In addition, Mullen reported to police that when she previously had forgotten her keys, Bombardier had opened the apartment's front door for Mullen without first looking to see who was at the door. The jury could have reasonably inferred from this that Bombardier mistakenly gave Bacom entry to the apartment by opening the front door upon his knocking on it without checking who was there, perhaps thinking it was Mullen returning home, and explaining the lack of any evidence of a break-in.
And there was other evidence that a jury could also reasonably rely on to conclude that Bacom entered the apartment that night. The next day, the toilet seat of the downstairs bathroom in Mullen's apartment was photographed in the up position, suggesting a male's presence in the apartment the previous night, notwithstanding Mullen's assumption that one of the police officers had raised the seat. Also, a neighbor who lived directly across from Mullen's apartment testified that she heard someone knocking on her sliding door the night Bombardier disappeared, which contributes to the theory that Bacom, perhaps at first mistaking the neighbor's apartment for Mullen's that night, intended to enter Mullen's apartment.
The jury also could reasonably infer from the evidence of Bacom's other two crimes, in which he entered women's homes in order to attack them with a knife (and tried to murder one of them) and steal things, and the evidence that Bombardier was killed with a knife and that her necklace and earrings were missing, that Bacom entered Mullen's apartment with the intent to similarly harm Bombardier and steal things from her.
As Bacom points out, this other crimes evidence was admitted to prove intent and motive, including regarding burglary, and lack of mistake or accident.
The jury could have reasonably concluded from all of this circumstantial evidence that Bacom entered Mullen's apartment, if only by reaching across its threshold after Bombardier opened the front door to grab her and force her away from the apartment, with the intent to commit a felony. Even such a momentary and slight entry into the apartment would be sufficient to support the jury's finding that Bacom committed a burglary, as "[i]t is settled that a sufficient entry is made to warrant a conviction of burglary when any part of the body of the intruder is inside the premises." (People v. Failla (1966) 64 Cal.2d 560, 569.) Therefore, we reject Bacom's claim that the evidence was insufficient to show he committed a burglary.
C. The Abstract of Judgment Should Be Corrected
Finally, Bacom argues his abstract of judgment should be corrected and he is entitled to three additional days of presentence custody credit. The People agree, and we do also.
" 'A defendant is entitled to actual custody credit for "all days in custody" in county jail and residential treatment facilities, including partial days.' [Citation.] 'Calculation of custody credit begins on the day of arrest and continues through the day of sentencing.' [Citation.]' "The law takes no notice of fractions of a day. Any fraction of a day is deemed a day ...."' [Citation.] The day the defendant is arrested counts as a custody credit day no matter how many hours or minutes the defendant was in jail on that day." (People v. Valdes (2020) 53 Cal.App.5th 953, 955, citing People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48, People v. Smith (1989) 211 Cal.App.3d 523, 526.)
The parties agree that Bacom was arrested on December 11, 2017, and in presentence custody thereafter until his sentencing hearing on June 27, 2022. The trial court awarded him 1,657 days of presentence custody credits. This was three days short, perhaps because the trial court did not include the day of arrest, the day of sentencing, and the extra day contained in the 2020 leap year. Therefore, we shall order that the abstract of judgment be corrected to reflect 1,660 days of presentence custody credits.
III. DISPOSITION
The judgment is affirmed, except that we vacate the part of the judgment awarding Bacom 1,657 days of presentence custody credits and remand this matter to the trial court with the instruction that it award Bacom 1,660 days instead, issue a modified abstract of judgment, and deliver a copy of this modified abstract of judgment to the California Department of Corrections and Rehabilitation.
WE CONCUR: GOLDMAN, J., DOUGLAS, J. [*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.