Opinion
B159883.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO BARAJAS, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Jose Alfredo Barajas appeals from a judgment sentencing him to 50 years to life in prison after a jury found him guilty of first degree murder and found true a special allegation that defendant personally discharged a firearm causing great bodily injury or death. Defendant contends on appeal that (1) there was insufficient evidence to support the verdict; (2) the trial court erred by refusing to instruct on voluntary manslaughter and refusing to instruct with CALJIC No. 8.73 (evidence of provocation); (3) the trial court erred by instructing the jury with CALJIC No. 2.50.02 (prior incidents of domestic violence); (4) defendants trial attorney provided ineffective assistance of counsel; (5) the imposition of a 25 years to life prison term under Penal Code section 12022.53, subdivision (d), in addition to the sentence for the first degree murder conviction, violated principles of merger and section 654; and (6) the trial court erred by failing to award defendant credit for the actual time he spent in custody. We hold that defendant is entitled to credit for the actual time he spent in custody, and we affirm the judgment in all other respects.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
At approximately 8:10 p.m. on January 9, 2000, a 911 operator received a call from a house in Los Angeles. The caller, who identified himself as Jose, told the operator that he shot his girlfriend, and that she was dead. He asked the operator to send the police and to tell the police to shoot him. The police arrived at the house while Jose was still speaking to the 911 operator. He told the operator that he was still holding the gun he used to shoot his girlfriend. When the operator told him to put the gun down so the police could enter the house, he refused. Eventually, the 911 operator disconnected the call to allow a police officer at the scene to call Jose and speak with him. Jose spoke with that police officer for approximately an hour, but he continued to refuse to put the gun down. Finally, a team of police officers stormed the house and subdued the suspect, while another team of officers rushed in and carried the victim, identified as Lisa Lopez (Lopez), from the house.
Lopez had been shot four times: in her head, below her left shoulder, through her right arm and into her chest, and in her abdomen. At least one of the bullets used to shoot Lopez was a hollow point bullet. Paramedics pronounced her dead at the scene. The suspect, identified as defendant, asked the police officers to kill him, and told them that he had ingested a liquid cleaner (Ajax or Mr. Clean), methamphetamine, and prescription drugs in order to kill himself. Defendant was arrested and transported to a hospital, where he was put on a "suicide watch." He was charged by information with murder, a violation of section 187, subdivision (a). The information also alleged, among other things, that defendant personally and intentionally discharged a firearm, which caused great bodily injury and death to Lopez, within the meaning of section 12022.53, subdivision (d).
Hollow point bullets create more damage than other bullets when they hit a target.
At trial, the People presented evidence that Lopez had been defendants girlfriend for four years (from the time she was 16 years old) and was living with defendant. Until October or November 1999, Lopez had been an outgoing and happy person. In October or November 1999, defendant and Lopez began to fight frequently. Defendant accused Lopez of being a "whore" and tried to prevent her from going to work. When she went to work, defendant called her constantly. When she was not at work, defendant would not let Lopez out of his sight. One day, Lopez came to work with a black eye. When a co-worker asked her how she was, Lopez told her, "Well, were just having problems right now." When the co-worker advised her that if she was in an abusive situation she needed to get out of it, Lopez replied, "Well, were not fighting as much anymore as we were."
For a time, Lopezs mother, Marcia Smith (Smith), lived in the house with Lopez, defendant, and Smiths son. Smith tried to stop the fights between defendant and Lopez, and tried to convince Lopez to leave defendant. Although Lopez did move out of the house in late November 1999, she moved back in a few days later. One night during the time Lopez was away, defendant, who knew that Lopez was staying with her grandmother but did not know where Lopezs grandmother lived, came into Smiths room and asked Smith to take him to see Lopez. Smith refused. When defendant turned to leave the room, a gun fell out of the blanket or jacket he was holding. Smith and her son moved out a few weeks after Lopez returned from her grandmothers house. Although Smith tried to convince Lopez to go with her, Lopez refused. Two weeks later, defendant shot and killed Lopez.
Detectives Lindy Gligorijevic (Gligorijevic) and Rick Gonzales from the Los Angeles Police Department interviewed defendant the day after the shooting. Defendant was advised of and waived his Miranda rights, and told the detectives that on the evening of the shooting he and Lopez had an argument. Gligorijevic asked defendant why he killed Lopez, and defendant replied, "She said, `You faggot ass, youre not going to do it." When asked what happened next, defendant said that he shot her. Defendant told the detectives that Lopez was lying on a couch and that he shot her two or three times. After shooting her, defendant called his son and grandmother, then called 911. Defendant also admitted to the detectives that he had on previous occasions hit Lopez.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Defendant did not present any evidence at trial. Defense counsel conceded that defendant shot Lopez, but argued that defendant did not commit first degree murder. Instead, counsel relied upon the tape of defendants 911 call, which the prosecution played for the jury, and prosecution witnesses observations of defendant at the scene of the shooting to show that defendant acted in the heat of passion when he shot Lopez. The jury found defendant guilty of first degree murder and found true the allegation that defendant personally discharged a firearm causing Lopezs death.
Defendant, represented by new counsel, filed an extensive motion for a new trial in which he argued, among other things, that his trial counsel had provided ineffective assistance. Defendant also requested that the trial court, if it did not order a new trial, reduce the verdict to second degree murder. The trial court denied the motion and defendants request to reduce the verdict. The court stated there was overwhelming evidence against defendant, and there was no evidence to justify reducing the verdict to second degree murder. The court sentenced defendant to 25 years to life in prison on the murder count, plus a consecutive term of 25 years to life on the special allegation, and awarded defendant no credit for the time he had spent in custody. Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
A. Sufficiency of the Evidence of First Degree Murder
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder is of the first degree when the killing is willful, deliberate, and premeditated. (& sect; 189.) Defendant challenges his conviction for first degree murder because he contends there is insufficient evidence to establish that he killed Lopez with premeditation and deliberation.
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We apply this standard in determining the sufficiency of the evidence to establish premeditation and deliberation as elements of first degree murder. [Citation.] Evidence concerning motive, planning, and the manner of killing are pertinent to the determination of premeditation and deliberation, but these factors are not exclusive nor are they invariably determinative. [Citation.]" (People v. Silva (2001) 25 Cal.4th 345, 368; see also People v. Koontz (2002) 27 Cal.4th 1041, 1081 [three factors identified in People v. Anderson (1968) 70 Cal.2d 15, 26-27, i.e., planning, motive, and manner, are not exclusive nor are they necessarily determinative].)
There is substantial evidence in the present case that defendant killed Lopez with deliberation and premeditation. For months, defendant suspected Lopez of infidelity and sought to control her movements. He previously had been carrying a concealed gun when he tried to convince Smith to take him to see Lopez while Lopez was staying with her grandmother. On the night he killed Lopez, defendant armed himself with a gun with a laser sight; there is no explanation for why he would carry a firearm. Although Lopez and defendant were arguing, the evidence was that the argument was only verbal and that Lopez was lying on a couch at the time she was shot—there was no evidence that Lopez presented any physical threat to defendant. In response to name-calling by Lopez, defendant shot her four times, in places likely to result in death: her head, just above her heart, through her chest, and in her abdomen. He then kept the police at bay for more than an hour, preventing Lopez from receiving any medical treatment. This evidence shows planning (defendant armed himself on the night of the shooting and previously had armed himself when he asked Smith to take him to see Lopez), motive (jealousy), and manner of killing (four shots to vital areas of the body and preventing medical treatment). Thus, there was sufficient evidence from which a jury could find defendant guilty of first degree murder beyond a reasonable doubt.
B. Voluntary Manslaughter Instructions and CALJIC No. 8.73
Defendant contends the trial court erred by refusing his request to instruct the jury on voluntary manslaughter based upon sudden quarrel or heat of passion. In a related argument, defendant contends the trial court erred by denying his request to instruct the jury with CALJIC No. 8.73, which instruction defendant contends was necessary to inform the jury that it could consider provocation based upon sudden quarrel or heat of passion as negating the elements of premeditation and deliberation necessary to convict defendant of first degree murder rather than second degree murder. Neither contention prevails.
A trial court in a criminal case must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Koontz, supra, 27 Cal.4th at p. 1085.) "This obligation includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged." (Ibid.)
Manslaughter is the "unlawful killing of a human being without malice." (§ 192.) Although an intent to unlawfully kill generally reflects malice, and therefore makes such a killing murder, an unlawful killing that might otherwise be murder under section 187 may be reduced to voluntary manslaughter when the defendant acted upon a sudden quarrel or heat of passion on sufficient provocation. (People v. Lee (1999) 20 Cal.4th 47, 59.) Therefore, voluntary manslaughter based upon sudden quarrel or heat of passion is a lesser included offense of murder. (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411.) To qualify as voluntary manslaughter rather than murder, however, the provocation that causes the defendant to kill "must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." (People v. Lee, supra, 20 Cal.4th at p. 59.) Moreover, the test of whether the provocation is sufficient to reduce a murder to manslaughter is an objective one. (Id. at p. 60.) The provocation at issue "must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment." (Ibid.)
In the present case, the evidence showed that defendant suspected Lopez of infidelity and killed her while she was lying on a couch during an argument, after Lopez called him names and dared him to shoot. Even if defendant reasonably believed that Lopez had been unfaithful to him on some previous occasion or occasions, Lopezs conduct (or suspected conduct) was not such that would cause an average, sober person to lose reason and judgment and kill her by shooting her four times. (See, e.g., People v. Lujan, supra, 92 Cal.App.4th at p. 1415 [killing of estranged wife by defendant after he saw her with another man was not conduct by a reasonable person of average disposition].) Therefore, the trial court did not err by refusing to instruct the jury on voluntary manslaughter.
Defendant argues, however, that even if he was not entitled to voluntary manslaughter instructions, the trial court erred by refusing to instruct the jury with CALJIC No. 8.73. That instruction provides: "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation." This instruction not only was unnecessary in light of other instructions given to the jury, it was potentially confusing to the jury.
The jury was instructed with CALJIC No. 8.20, which provides in relevant part ". . . If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] . . . [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree." (Emphasis added.) This instruction was followed by CALJIC No. 8.30, which instructs the jury to convict defendant of second degree murder if it finds defendant unlawfully killed with malice aforethought but there is insufficient evidence of deliberation and premeditation. Finally, the jury was instructed with CALJIC No. 8.71, which instructs that, if the jury unanimously agrees that defendant committed murder but it has a reasonable doubt whether the murder was of the first or second degree, the jury must return a verdict of second degree murder.
These instructions make clear to the jury that in order to convict defendant of first degree murder, the jury must unanimously find that the killing was not the result of a sudden heat of passion. In addition, defense counsel in his closing argument to the jury quoted from the portion of CALJIC No. 8.20 that instructs that the jury must find that defendants intent was "formed upon pre-existing reflection and not under a sudden heat of passion or other condition" precluding the idea of deliberation before the jury could convict defendant of first degree murder. Thus, there was no need for the trial court to instruct the jury with CALJIC No. 8.73 to convey to the jury that a sudden heat of passion could have a bearing on whether defendant acted with deliberation and premeditation. Moreover, instructing with CALJIC No. 8.73 would be improper under the circumstances of this case because the instruction refers to manslaughter. Given that the trial court did not instruct on voluntary manslaughter, this reference to manslaughter would cause unnecessary confusion among the jurors.
C. CALJIC No. 2.50.02
The jury was instructed with a modified CALJIC No. 2.50.02. As given, the instruction provided in relevant part: "Evidence has been introduced for the purpose of showing that the defendant engaged in an act or acts involving domestic violence other than that charged in this case. [¶] . . . [¶] . . . [¶] If you find that the defendant committed a prior act involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of offense. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused. [& para;] However, if you find by a preponderance of the evidence that the defendant committed a prior act involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses. The weight and significance, if any, are for you to decide. [& para;] You must not consider this evidence for any other purpose."
Defendant contends that CALJIC No. 2.50.02 improperly allows the jury to find defendant guilty of the charged crime without the prosecution having to prove the elements of the crime beyond a reasonable doubt. He argues that this instruction authorizes the jury to find defendant guilty of the current charge solely on propensity evidence if the prior acts of domestic violence are proved beyond a reasonable doubt, and that the instruction implies that the defendant can be convicted under a lowered standard of proof.
The California Supreme Court recently rejected these arguments in a case involving CALJIC No. 2.50.01, an instruction related to evidence of prior sex offenses that contains language that is virtually identical to the language at issue in CALJIC No. 2.50.02. (People v. Reliford (2003) 29 Cal.4th 1007.) As the Supreme Court explained, "no juror could reasonably interpret the instructions to authorize conviction of a charged offense based solely on proof of an uncharged [prior] offense." (Id. at p. 1015.) The Supreme Court also stated that it "d[id] not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior . . . offense. . . ." (Id. at p. 1016.)
Moreover, even if a jury could interpret CALJIC No. 2.50.02 to allow it to convict defendant under a preponderance of the evidence standard, the jury in this case was expressly instructed that it could not. Immediately after the trial court read CALJIC No. 2.50.02 to the jury, the court interrupted its reading of the instructions to point out to the jury that the preponderance of the evidence standard applies only to the allegation or proof of prior acts of domestic violence, and that it did not apply to the charge in this case.
In accordance with People v. Reliford, supra, 29 Cal.4th 1007, and in light of the trial courts additional instruction, we hold that the trial court in this case did not err by instructing the jury with CALJIC No. 2.50.02.
D. Ineffective Assistance of Counsel
Defendant contends that his constitutional rights were violated and his conviction must be reversed because his trial counsel provided ineffective assistance by failing to present evidence to undermine the mental state element of first degree murder. Although his trial counsel argued to the jury that the prosecutions evidence—particularly the tape of defendants 911 call and the police officers observations of defendant at the scene of the crime—demonstrated that defendant could not have deliberated or premeditated before shooting Lopez, counsel did not present mental health expert testimony (despite having reports from two mental health professionals who examined defendant before trial), evidence of defendants drug use, or testimony of defendants family regarding his mental state and his relationship with Lopez. Represented by new counsel following the jurys verdict, defendant filed a motion for a new trial that presented such evidence, and argues on appeal that "there can be no reasonable trial strategy or tactic for not presenting such evidence to support [trial] counsels asserted defense."
"Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, original italics; see also People v. Cunningham (2001) 25 Cal.4th 926, 1003 [explaining that first component is established by demonstrating "that counsels performance did not meet the standard to be expected of a reasonably competent attorney"]; In re Avena (1996) 12 Cal.4th 694, 721 [reasonable probability "`is a probability sufficient to undermine confidence in the outcome"].)
In People v. Weaver (2001) 26 Cal. 4th 876, the California Supreme Court discussed the standard applicable to review of ineffective assistance of counsel claims: "`Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance." [Citations.] `[W]e accord great deference to counsels tactical decisions [citation], and we have explained that `courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. `Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] [¶] In the usual case, where counsels trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsels acts or omissions. [Citations.]" (Id. at pp. 925-926.)
We find no ineffective assistance of counsel in this case. Although the record on appeal does not contain any statement from trial counsel regarding his reasons for not presenting the evidence at issue, there are readily apparent reasons for counsels decision not to present that evidence.
In a petition for writ of habeas corpus, which we have considered concurrently with this appeal, defendant includes a letter from trial counsel setting forth his strategic reasons for not presenting this evidence. We have denied the petition in a separate order. Defendant also has requested that we take judicial notice of his writ petition for the purposes of this appeal. We deny that request.
The reports of the two mental health professionals who examined defendant before trial—Dr. Markman and Dr. Cherkas—contain information and opinions that could be damaging to defendant. For example, Dr. Markman, who was retained by defense counsel and who examined defendant six months after the shooting, concluded that defendant was able to harbor malice aforethought at the time of the shooting and "likely could premeditate in a primitive manner." Although Dr. Markman opined that defendant lacked the ability to deliberate, he attributed that inability to defendants methamphetamine intoxication. Dr. Markman also noted that defendant acknowledged that he regularly used and sold drugs. Dr. Cherkas, who was appointed by the trial court 15 months after the shooting to perform a psychiatric evaluation of defendant to assess his mental state, noted that defendant changed his story regarding what had happened the night of the shooting, to try to excuse his actions. Dr. Cherkas also noted that defendant admitted to using methamphetamine and marijuana regularly and using crack cocaine occasionally. Finally, Dr. Cherkas stated in his report that he had "little doubt" that defendant knew he was shooting at Lopez and might have known that his actions were legally and morally wrong.
Although these two reports contained information that might be helpful to defendant because they could raise doubts about defendants capacity to deliberate, they also contained information that might be damaging to defendant because they portray defendant as a significant drug user and a drug dealer who was trying to excuse his killing of Lopez. Given that there was little evidence presented at trial regarding defendants drug use, and no evidence that he sold drugs, it is not unreasonable for defense counsel to decide that the potential benefit of presenting the mental health evidence was outweighed by the detriment of presenting defendant as a drug user and drug dealer.
Similarly, there is a legitimate tactical reason for defense counsel not to present evidence of defendants history of drug use and his methamphetamine intoxication on the night of the shooting. Counsel could have been concerned that portraying defendant as a drug abuser who was incapable of deliberation because of his use of drugs might have prejudiced the jury against defendant and caused jurors to find defendant more culpable for the murder.
Finally, there are legitimate reasons that could explain defense counsels decision not to present testimony from defendants family. Those witnesses apparently would have testified that Lopez was the aggressor in the relationship and that defendant believed Lopez was trying to poison him, wanted to control him, and would not let him leave her sight. Defense counsel could have concluded that this testimony would suggest a motive for defendant to kill Lopez. Counsel also could have been concerned that the testimony would be viewed negatively by the jurors as an attack on the character of the murder victim—a 20-year-old woman who was lying on a couch when she was shot by defendant.
Because defense counsels decision to rely upon the 911 tape and the police officers observations regarding defendants mental state was not irrational and there are conceivable reasons for defense counsels decision not to present the evidence at issue in defendants motion for a new trial, defendant failed to show ineffective assistance of counsel. Moreover, because these reasons were readily apparent, and there were no disputed issues of material fact regarding what defense counsel did or did not do, the trial court did not abuse its discretion by denying defendants request for an evidentiary hearing. (See People v. Williams (1997) 16 Cal.4th 635, 686 [trial court has discretion to conduct evidentiary hearing; hearing is required only when necessary to resolve disputed issues of material fact].)
E. Sentence Enhancement Under Section 12022.53
Defendant argues that the imposition of the sentence enhancement for his personal and intentional discharge of a firearm causing great bodily injury and death (§ 12022.53, subd. (d)) violates section 654, subdivision (a) and the merger doctrine set forth in People v. Ireland (1969) 70 Cal.2d 522 (Ireland) because his sentence for murder already punishes him for the same act that provided the basis for the enhancement.
The merger doctrine provides that assault may not be the predicate felony for a felony-murder conviction, both because assault is an integral part of the homicide and because allowing assault to serve as the predicate offense would relieve the prosecution in most homicide cases of the need to prove malice. (Ireland, supra, 70 Cal.2d at p. 539; People v. Sanders (Sept. 15, 2003, B150684) ____ Cal.App.4th ____ [2003 WL 22119886, *8-*9].) The doctrine does not apply to sentence enhancements and does not bar the imposition of an enhancement under section 12022.53, subdivision (d) when a defendant is convicted of first degree murder. (Sanders, ___ Cal.App.4th ___ [2003 WL 22119886, *8-*9].)
Defendants argument that imposing a firearm enhancement on a murder conviction violates section 654, subdivision (a) has been rejected in four published decisions of the Court of Appeal. (People v. Sanders, supra, ___ Cal.App.4th ___ ; People v. Hutchins (2001) 90 Cal.App.4th 1308; People v. Myers (1997) 59 Cal.App.4th 1523; People v. Ross (1994) 28 Cal.App.4th 1151.) Assuming that section 654, subdivision (a) applies to sentence enhancements—a matter unresolved by the California Supreme Court (Ross, at p. 1155)—the statute does not bar the imposition of a single firearms use enhancement to an offense committed by the use of firearms unless firearms use is an element of the offense when considered in the abstract. (Hutchins, at p. 1314; Ross, at p. 1156.) Because firearms use is not an element of murder—although this specific case did involve the use of a firearm—the trial court did not violate section 654, subdivision (a) by imposing the enhancement under section 12022.53, subdivision (d).
F. Custody Credits
At the sentencing hearing, the trial court stated that it did not believe that defendant was entitled to any custody credits "on a first degree murder under the relatively new law" (presumably the court was referring to section 2933.2), and asked counsel whether the court was correct. The prosecutor agreed that the court was correct, and defense counsel stated that she was "not informed otherwise" but she reserved her right to challenge the courts determination at a later date. The court then awarded defendant zero custody credits, even thought defendant had been in custody for 880 days at that time. On appeal, defendant contends that he is entitled to credit for the 880 days he spent in presentence custody. Citing People v. Herrera (2001) 88 Cal.App.4th 1353, 1365-1367, the People concede that defendant is correct. We agree, and order that the judgment be modified and the abstract of judgment be corrected to reflect credit to defendant for 880 days of presentence custody.
DISPOSITION
The judgment is modified to reflect credit for 880 days of presentence custody. The clerk of the superior court is ordered upon issuance of the remittitur to prepare a corrected abstract of judgment reflecting 880 days of credit for time actually served and to forward the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: TURNER, P.J. and GRIGNON, J.