Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge. Super. Ct. No. 29386B
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On February 3, 2005, the Merced County District Attorney filed an information in superior court charging appellant and codefendant Samuel Rojas as follows: count I--conspiracy to commit murder with five overt acts (Pen. Code, §§ 182, 187) and count II—attempted murder (§§ 664, 187). As to both counts, the district attorney specially alleged appellant proximately caused great bodily injury or death (§§ 12022.7, 12022.53, subd. (d)); personally used a firearm (§ 12022.5, subd. (a)(1)); and personally inflicted great bodily injury (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
On February 28, 2005, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.
On October 19, 2005, the court denied appellant’s request for appointment of a defense criminalist and forensic expert.
On November 2, 2005, jury trial commenced.
On November 17, 2005, the jury returned verdicts finding appellant guilty of both substantive counts and finding all special allegations to be true.
On November 26, 2005, appellant filed a nonstatutory motion for new trial alleging ineffectiveness of trial counsel.
On May 31, 2006, the prosecution filed a written response to appellant’s motion for new trial.
On June 9, 2006, appellant filed a supplemental memorandum of points and authorities in support of his motion for new trial. On the same date, the court conducted a contested hearing and denied appellant’s motion for new trial.
On August 3, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a term of 84 years to life in state prison. The court imposed the term of 25 years to life on count I (conspiracy) with a consecutive term of 25 years to life on the section 12022.53, subdivision (d) enhancement, a consecutive term of nine years on count II (attempted murder) with a consecutive term of 25 years to life on the section 12022.53, subdivision (d) enhancement. The court also imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and ordered appellant to pay victim restitution of $100 (§ 1202.4, subd. (f)). The court awarded 701 days of custody credits and ordered appellant to submit DNA samples (§ 296).
On the same date, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
In August 2004, Sergio “Bomba” Torres was shot multiple times with a large caliber gun in retaliation for his testimony against three Sureno gang members in a murder trial. The three gang member/defendants were from Torres’s hometown of Michoacan, Mexico. During the murder trial, Torres testified that one defendant had confessed to the commission of the murder. After testifying at the trial, Torres was concerned that he would be seen as a “snitch.”
In the instant trial, Torres testified he was also known by the nicknames “Arnulfo” and “El Tupo.”
On August 10, 2004, Torres was at the El Rancho Market in Winton and a man named “Eddie” asked to borrow his cellular telephone. Eddie used the phone and then told Torres he was not going to return it because Torres was a “rata” (snitch). Torres saw one Samuel Rojas drive up and Eddie got into Rojas’s car. Appellant Raul “Green Eyes” Barriga was also in the car. Torres had heard that appellant was a Sureno gang member. Sometime later, Torres attempted to retrieve his cell phone from Eddie. Eddie refused to return the phone but indicated that Torres would get it back later. Rojas and appellant then threatened Torres that he would get it “next time.”
At 3:30 p.m. on August 10, Torres was driving on Winton Way when he saw his friend, Ivan Rodas. Torres stopped his car to talk with Rodas. As the two men conversed, Torres saw a white Nissan automobile pull up. Rojas was driving, a man nicknamed “El Chaparro” was sitting in the front passenger seat, and appellant and a girl were sitting in the backseat. Appellant rolled down the back passenger window and signaled for Torres to approach the Nissan. Torres walked toward the vehicle, thinking the occupants were going to return his cell phone. When Torres was about eight feet from the Nissan, appellant pulled out a gun and pointed it at Torres. Torres saw a muzzle flash and felt a bullet hit him in the left shoulder. Torres tried to turn and run but he was unable to do so and ultimately sustained five gunshots. The white Nissan drove off as Torres fell to the ground.
Torres acknowledged that he had a disassembled BB gun in his waistband at the time of the shooting. However, he claimed he never pulled the gun out and the gun was covered in his pants at the time he approached the white Nissan. As a result of the multiple gunshots he sustained, Torres could not walk well or work as of the time of trial. Following the shooting, Torres moved to another county as part of the State Witness Protection Program.
Sophia Hurtado said she was in her beauty shop on North Winton Way when she heard several gunshots on August 10. Hurtado hit the ground and then looked out her shop window after a short time. Hurtado saw Torres in the street and Ivan Rodas’s vehicle driving away after making a U-turn. Hurtado could tell Torres had been shot several times because he was bleeding badly and turning pale. Hurtado approached Torres and asked who had shot him. He replied, “Green Eyes.” Torres also told Hurtado that “Blue’s” brother had been in the car. Adriana Lopez worked with Hurtado at the beauty shop. According to Lopez, Torres said the shooter lived in front of the school.
At 6:15 p.m., Merced County Sheriff’s Detective Jeffrey Coburn went to Doctor’s Hospital in Modesto to attempt to interview Torres. Medical personnel were attending to Torres at the time and Torres was in extreme pain. Through a hospital translator, Torres told Detective Coburn that he was standing with his friend Ivan when a car pulled up. The car was either a Toyota or a Maxima. Torres said “Green Eyes” was in the right rear passenger seat. According to Torres, he approached the car and “Green Eyes” shot him. Torres recognized the driver of the car as a guy named Sammy. Torres later indicated that Sammy’s brother was one Jose Rojas. In a tape-recorded interview played for the jury, Torres told Coburn that there were three other people in the car aside from Sammy. After interviewing Torres, Coburn researched the moniker “Green Eyes” and matched it to appellant’s name.
Merced County Sheriff’s Detective Gerald Scott Dover assisted in collecting evidence at the crime scene. He found two expended .45-caliber Remington Peters cartridges. Two days after the shooting, Detective Dover showed Torres a photographic lineup containing appellant’s picture. Torres examined the lineup, immediately pointed to appellant’s photograph, and said, “This mother fucker.” Torres identified the front seat passenger as “El Chaparro” and also indicated there had been a female in the backseat next to “Green Eyes.” Torres told Dover that the driver, Sammy Rojas, was a member of a family that owned a ranch on Cressy Road.
On that same date, August 12, Detective Dover interviewed Sammy Rojas at the latter’s home. Rojas denied any involvement in the shooting and claimed the only car he was allowed to drive was a gray Hyundai. Later that same day, Dover received a call from dispatch. The 911 dispatcher indicated that Rojas had confessed to the shooting. Dover listened to a recording of the call that Rojas made to dispatch. In the call, Rojas was sobbing and it sounded as though someone was talking to him in the background. Rojas claimed he shot Torres in self-defense. However, Rojas had a difficult time describing the gun he had used.
After listening to the dispatch recording, Detective Dover contacted Rojas and asked him to call Dover back on a recorded line at the sheriff’s office. Rojas did so and sounded very scared and upset during the follow-up call. He told Dover he had been beaten up and he asked Dover to help him. Rojas said he had his “ass beat” and asked Dover to pick him up behind a supermarket. Detectives Dover and Coburn later picked up Rojas from behind the supermarket in Winton. Rojas had a wound over his left eye, a mark on his neck, and it appeared to Dover that Rojas had been assaulted.
The detectives transported Rojas back to the sheriff’s office. At the station Rojas waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 and agreed to a videotaped interview with the detectives. In the interview, Rojas claimed he shot Sergio Torres. Rojas cried throughout the interview and appeared to be hysterical. Rojas claimed he was driving a Nissan Maxima at the time of the shooting and that he had shot Torres several times because Torres had approached him in a threatening manner. Rojas also claimed there were no other occupants in the car. Upon being booked at the jail, Rojas said he was a Sureno gang member and Nortenos were his enemies. After he had been in custody for a week, Rojas granted Detective Dover another interview, learned that Torres did not die, and at that point identified appellant as the shooter.
Detective Dover later obtained a warrant for appellant’s arrest. After the warrant was issued, officers saw appellant driving a car near Santa Fe and Belleview Road in the Winton area. Appellant had several passengers in the car. During the pursuit of appellant’s vehicle, appellant stopped, got out of the car, and eluded law enforcement officers. Francisco Orozco was a passenger in the car from which appellant fled. Detective Dover was aware that Orozco had ties to one of the defendants in the murder case in which Torres had testified. Torres confirmed that Orozco was also from Michoacan, Mexico.
The day after appellant fled, he called Detective Dover at the sheriff’s office. Dover informed appellant there was an outstanding warrant for his arrest. Appellant denied any involvement in Torres’s shooting and told Dover he had read that someone else had confessed. At that point in time, Dover had not released any information about Rojas’s confession to anyone. When Dover asked appellant his whereabouts at the time of the shooting, appellant initially claimed a lack of recollection. Appellant then admitted he was sitting in the backseat of Rojas’s car. Dover urged appellant to turn himself in so that no one would get hurt. Appellant responded, “I’m just going to fucking go all the way out.” After a further discussion, appellant told Dover that Rojas drove the car and shot Torres. When Dover asked why Torres had been shot, appellant said it was because Torres was a snitch. Appellant offered to testify against Rojas at trial in exchange for a deal with the prosecutor. Appellant also offered to give Detective Dover some “big time players” and volunteered to “set some people up for you guys.”
The authorities arrested appellant the day after Detective Dover spoke with him on the telephone. Dover interviewed appellant after his arrest and appellant continued to deny shooting Torres. He also refused to name the other two occupants of the suspect vehicle. Appellant said if he were going to kill someone, he would make sure the man was finished and would hit him in the head and not in the chest. Dover seized the Nissan Maxima that had been involved in the shooting. The car belonged to one Maria Carlton, who owned the property where Samuel Rojas had been residing. Dover also learned that Chaparro lived at the same residence. Upon being booked into custody at county jail, both Chaparro and appellant admitted being Sureno gang members. Carlton had a telephone conversation with Rojas after he was arrested. Rojas told Carlton he did not commit the crime and that “they” beat him up real bad. In a second telephone conversation, Rojas told Carlton he did do something and “help somebody out because they had threatened to hurt his family.” In a recorded interview, Carlton told Detective Dover that she spoke with Samuel Rojas. Rojas told her that Green Eyes ordered him to help him hurt this guy and, if he did not comply, Green Eyes would hurt Rojas’s parents. Because of the threat, Rojas had to be the driver of the suspect vehicle.
According to Dover, El Chaparro also used the aliases “Ricardo Macias” and “Luis Vasquez.”
Maria Carlton’s niece, Violet Bello, testified she was currently in prison on drug charges. Bello admitted being a Sureno gang member. Bellow explained that she introduced one Luis “Chaparro” Vasquez to her aunt because her aunt needed help around the house. During this time, both Chaparro and Samuel Rojas lived in a trailer at her aunt’s residence. Bellow became aware of the shooting of Sergio Torres after a police officer came out to her aunt’s residence. Bellow cleaned her aunt’s Nissan Maxima the day after Rojas’s arrest and found a bullet casing in the vehicle. She found a second casing in the car when she was in Oregon. Bello said she threw both casings in the garbage. Bello said she met appellant through Chaparro.
James Hamiel, a senior criminalist with the California Department of Justice Central Valley Crime Laboratory in Ripon, analyzed evidence from the crime scene. Hamiel indicated that the casings collected at the scene were fired from the same handgun. His analysis of a bullet recovered at the scene indicated that both the bullet and the cases were fired from a Colt 1911 semi-automatic single action pistol. Duane Lovaas, another senior criminalist at the Ripon crime laboratory, said he found lead residue on the inner door handle of the right rear part of the Nissan Maxima. This residue was consistent with someone firing a .45 semiautomatic handgun several times and then touching the door handle.
Kathleen Eve, M.D., a board certified general surgeon, treated Sergio Torres (known to her as Arnulfo Delgado) in the emergency room of Doctor’s Medical Center in Modesto on August 10, 2004. Torres suffered multiple gunshot wounds, including a small gunshot wound on the right side of his wrist and bullet wounds to both his right and left arms. Dr. Eve indicated that Torres also suffered a bullet wound through his left chest near the armpit. She said the bullet that caused that wound exited out the back and injured everything in between. In addition, Torres suffered bullet wounds to his left hip area, including one wound to the buttock and one to the right of his spine. Dr. Eve explained these bullets wee embedded in Torres’s body and were left inside because surgery could cause paralysis to the victim.
Dr. Eve said Torres was in critical condition and had extremely low blood pressure when he arrived in the emergency room. He had at least one liter of blood in his chest and required immediate transfusions of blood and fluids to stabilize his blood pressure. Torres’s bullet wounds resulted in a permanent injury to his nervous system and required him to wear a brace on his right foot and to walk with a cane.
Miguel Rodas, the brother of Ivan Rodas, testified that after the shooting of Torres, someone wrote on their apartment wall. One of the writings stated: “No seas chavala, Ivan,” meaning, “Don’t be a little girl Ivan.” Miguel Rodas said he was concerned that his testimony and that of Ivan might put their family at risk.
Merced Police Sergeant Thomas Trindad testified as an expert on Hispanic criminal street gangs. Sergeant Trindad explained that the Sureno gang is a Hispanic street gang that has adopted the color blue. Members of the Sureno gang are enemies of the Norteno gang, which has adopted the color red. According to Trindad, the Atwater/Winton area of California has been a Sureno area for quite some time. Trindad said that gang culture is centered around violence and illegal activities that generate money for the gang, such as narcotics dealing and theft. Trindad said the gang members often attempt to intimidate witnesses to prevent them from testifying against fellow gang members. Sergeant Trindad also said that anyone who testifies for the government is viewed as a “snitch” by the gang and that gang members despise “snitches.”
Trindad examined the writings on the wall of the Rodas’s apartment and said they constituted gang graffiti. He explained that the blue-lettered words, “No se chava,” accused Ivan of being a woman. Ivan’s name was written in black and then crossed out. Trindad said this reflected the gang’s disrespect for Ivan. The letters “Sur” stood for the Sureno gang and the drawing of a firecracker suggested a gang threat, i.e., that the gang intended to blow someone up. A mask drawn on the wall signified “Smile Now, Cry Later.” Trindad said the gang message was “enjoy life now because tomorrow you may be sad.” According to Trindad, gang members commonly seek power by using fear and intimidation against others.
Trindad testified that appellant had claimed a Sureno gang affiliation when he had been booked into jail on prior occasions and had listed “Green Eyes” as one of his nicknames. Trindad further noted that one of the individuals that Torres had testified against, Francisco Garcia, was connected to the Sureno gang. Trindad believed there was a connection between Torres’s testimony against Garcia and the fact that appellant was in the company of Garcia’s cousin, Francisco Orozco, when deputies chased appellant.
Defense
Ivan Rodas testified the driver of the Nissan shot Torres. Rodas said there were five people in the car, four men and one woman. Rodas claimed Torres was high on drugs at the time of the shooting. Rodas also acknowledged that graffiti had been drawn on his house and that the graffiti directed him to keep quiet in this case.
On cross-examination by the prosecutor, Rodas admitted he was once a Sureno but claimed he recently got out of the gang. Rodas also admitted that the victim Torres would have had a better view of the shooting than Rodas did. Rodas also admitted that he did not identify Sammy Rojas as the shooter immediately after the shooting occurred. Rodas claimed he did not know appellant and did not see appellant in the car at the time of the shooting. On cross-examination, however, Rodas admitted lying on the stand about appellant’s alleged absence from the vehicle. Rodas confirmed appellant’s presence in the vehicle at the time of the shooting. Rodas further admitted he had planned to flee to Mexico after the shooting to avoid testifying against another Sureno. Deputy Sheriff James Dayton testified that Rodas’s Ford Taurus had bullet holes from the shooting, as well as bloodstains.
Jeff Gunn, a private defense investigator, took a tape-recorded statement from Ivan Rodas on March 9, 2005. On cross-examination, Gunn described his first interview with Rodas and said Rodas did not know whether the shooter was the front passenger or the driver of the suspect automobile. Rodas told Gunn that appellant was a passenger in the backseat of the vehicle.
Private investigator John Souza, a crime reconstruction expert, testified he previously worked for the Fresno County Sheriff’s Department for 25 years. Investigator Souza was unable to locate the actual Nissan Maxima used in the shooting. However, he located a 1990 Nissan Maxima that was the same model and make. In examining the Maxima, Souza noted that the rear windows did not roll down to the door frame. Souza said he measured the rear windows, which slanted downward when rolled all the way down. He said in that position, the windows measure six and one-half inches up in the front and five and one-half inches up in the back portion. He also said the rear window was 22-inches wide. Souza spoke with the owner of the Nissan used in the shooting and confirmed the car had child protective rear windows that did not roll all the way down. Souza also reviewed photographs of the crime scene and determined there was no shattered glass on the ground. On cross-examination, Souza acknowledged that a gun could be fired out of one of the rear passenger windows without shattering the glass because there was still a 12-inch opening in the windows.
Appellant took the stand and testified on his own behalf. He said he started hanging around with Sureno gang members in 1992 and became affiliated with the gang in 1997. Appellant denied “gang banging” or committing any criminal activity on behalf of the gang. Appellant said he was at Winton Park on the day of the shooting. A Nissan Maxima pulled up to him at the park and he asked the occupants if they could give him some “weed.” He then got into their car. He emphasized he got into the car only to buy some marijuana.
Sammy Rojas was the driver of the car. According to appellant, less than five minutes after he got into the car, Rojas started shooting at a man nicknamed “Bomba.” Appellant claimed he was shocked. He said Rojas had not given him any forewarning that he was going to shoot. When Rojas drove away, appellant asked why he had shot Torres. Rojas said something about a threat to his father. About three days later, a friend told appellant that Rojas had confessed to the shooting. Appellant identified the front passenger in the vehicle as one Jesus “Pio” Galvan. Appellant denied that Chaparro was in the car. Appellant said he sat on the left side of the car behind the driver and a female named Diana also sat in the back of the car.
Appellant claimed he did not know Rojas well but had only met him six months earlier. After the shooting, Rojas sped away in the Nissan. Appellant told Rojas to let him out of the car and appellant then got a ride home. Appellant explained that law enforcement officers pulled him over on August 31, 2005. He ran away from the officers because he knew there were two outstanding warrants for his arrest. Appellant said he was driving the car at the time he was pulled over. His friend Donato was in the front passenger seat and a male named Orozco was sitting in the backseat. Appellant acknowledged that Donato was a Sureno gang member but he was unsure about Orozco.
Appellant said he later contacted Detective Dover to explain he was not guilty of attempted murder. Appellant also said he turned himself in so that his family would not be bothered by police. Appellant claimed he was a low-level Sureno member. However, on cross-examination, he admitted his willingness to become a police informant. He said he offered to give police certain information on some “big fish” in the Sureno gang. Appellant acknowledged that a tattoo on his body matched one of the drawings on the outside of Ivan Rodas’s apartment. However, he claimed this is a very common tattoo. Appellant admitted lying to Detective Dover when he told Dover that he just met Sammy Rojas on the afternoon of the shooting.
DISCUSSION
I.
EXCLUSION OF DEFENSE EXPERT EVIDENCE
Appellant contends the trial court violated his constitutional rights by excluding significant defense expert evidence from the trial.
He specifically asserts:
“The defense proffered testimony from expert witnesses about the physical crime scene, with the aim of raising a doubt among jurors as to whether the shots were fired from the back seat of the Nissan automobile, the location where all agreed that appellant was seated. The trial court’s exclusion of this crucial evidence – the heart of the defense case – was prejudicial constitutional error.”
At trial, the defense sought to call criminalist Allen J. Boudreau and investigator John Souza as expert witnesses. The court conducted Evidence Code section 402 hearings to evaluate the prospective testimony of each witness. At the Evidence Code section 402 hearing, Boudreau said he read sheriff’s reports, examined hospital and crime scene photos, measured and photographed the crime scene, and examined a 1991 Ford Taurus that was struck by two bullets during the course of the incident. Boudreau said he also found a 1990 Nissan Maxima in Fresno and photographed and prepared simulations using that vehicle. The Maxima he examined was not the vehicle actually involved in the incident. Boudreau said he used Detective Dover’s diagram for purposes of measurements but found that some of Dover’s figures were as much as 10 feet off. Working with investigator Souza, Boudreau concluded that “shooting from the driver’s seat out the back window is pretty awkward and ... does not lend itself to shooting downhill.... [T]he front seat is much more readily ... workable for the ... shots that were fired.” Boudreau concluded the shots could not have come out of the rear window given the information in his possession.
Boudreau also described the perceived trajectory of the bullets as they entered the Ford Taurus and said the bullet holes went through the outside door and the inside door. He also said the assumption was the bullets that eventually ended up in the Taurus went through the victim’s body and then into the Taurus itself. With respect to the bullets remaining in Torres’s body, Boudreau concluded, “Well, that must have been from a previous occurrence.” Boudreau said the evidence only showed the firing of four shots and claimed “[t]here are two wounds” to account for the two slugs remaining in Torres’s body. Boudreau acknowledged that his conclusions were predicated on the position of the Taurus and that everything would change if the position of the Taurus changed.
The trial court excluded the proffered expert evidence, stating:
“My ruling is that I believe that these diagrams and the expert’s testimony are likely to be far more prejudicial and misleading than probative. And I’m not going to allow ... the testimony or the exhibits to be admitted. And I might say this, that Mr. Boudreau in my view did the best he could with the information he had. My criticism of the testimony and the diagram is based upon shakey assumptions. Let’s put it that way and that’s no one’s fault because as we said before, the cars were not there. The relative positions of the cars is based upon … i[m]precise testimony. I guess that’s the best way to put it and that Mr. Boudreau did the best he could with what he had. But what he had in my view is not terribly reliable and the fact that those assumptions that he based his testimony and diagrams on could be off if you change those assumptions three or four feet one way or the other, it changes the testimony of – it changes the opinion and I think that rather – I just don’t feel that the basis of the information is reliable. I think that the expert testimony jury instructions simply says that, you know, you have to take a close look at the assumptions upon which the expert opinion is based. I find those assumptions in this circumstance to be unreliable and that’s the basis for my ruling that the testimony and the exhibits will not be allowed.”
The court also conducted a Evidence Code section 402 hearing with investigator Souza. Souza said he initially reviewed the sheriff’s department reports, identification reports, and evidence photographs. He and Boudreau went to the crime scene and photographed it using photographs and measurements depicted in Detective Dover’s report. They also used that report to recreate the location of the shell casings. According to Souza, they were not initially successful in this effort because one set of measurements appeared to be exactly 10 feet off. Souza believed a total of five bullets were shot. Souza located the Taurus involved in the incident and processed it, photographed it, and put probes into the bullet holes to obtain angles and direction of flight. Souza said had he been the original crime investigator, he would have placed the Taurus in its position in a parking stall and then taken photographs to help reconstruct the crime scene.
Souza said he did not see the Nissan Maxima actually involved in the incident because it was unavailable and he did not know where to find it. He did speak with Maria Carlton, asked for the whereabouts of the vehicle, and inquired about the rear window and its child safety features. Souza and Boudreau eventually located another 1990 Nissan Maxima and photographed and measured that particular vehicle. According to Souza, it would have been much easier for the driver to do the shooting than a passenger in the backseat. Souza said, “the passenger in the back would have to virtually crawl over the other passenger to achieve the angle to get over this child safety window where the driver would not have to have that problem.” Souza also said that, according to the victim, the Maxima was blocking the Taurus at least in part and “that would pretty much exclude the back passenger as being the shooter because the angles – there’s no way he could get shots into that car ... the Taurus that is, at the angles that were depicted in our probes.”
Souza believed five shots were fired. Two were in the vehicle, one entered a nearby business door, one was in pieces on the ground, and “[w]e have one missing through and through bullet.” With respect to the two bullet slugs that remained in Torres’s body, Souza said, “That was a question I had. … [T]he only thing I could think of is maybe he’s been shot before.”
The court ultimately ruled:
“Again, I appreciate Mr. Souza’s efforts here and Mr. Boudreau’s. I think that they are qualified to do the things that they did. My only problem with it is that if you’re given inadequate assumptions which are subject to speculation, the testimony could only lead to more speculation and I think is more likely to confuse or allow the finder of fact to get off on a tangent and so forth that are not probative. And that’s the basis of Mr. Souza’s testimony in the end seems to be the same basis of Mr. Boudreau’s testimony, after all they did work together and I think the work that they did given what they were handed, I find no fault with. But if the assumptions on both of those opinions is shakey, then I don’t see that Mr. Souza’s testimony is any more reliable and still gives the same problems that Mr. Boudreau’s testimony does. [¶] ... [¶]
“Well, again, if you [defense counsel] want to, you know, you could call a witness to say that the rear window of the Nissan Maxima of that year only rolls down so far and there’s a wind wing, period.... [¶] ... [¶] But as to downward angle or backward or anything like that, that’s again subject to the relative positions of the vehicles. I’m not going to allow that.”
Evidence Code section 354 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:
“(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;
“(b) The rulings of the court made compliance with subdivision (a) futile; or
“(c) The evidence was sought by questions asked during cross-examination or recross-examination.”
The rule of Evidence Code section 354 is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580.) Under California law, it is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise. An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. To accomplish these purposes, an offer of proof must be specific and must set forth the actual evidence to be produced rather than merely the facts or issues to be addressed and argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.)
No judgment shall be reversed on account of the erroneous exclusion of evidence unless it appears, upon examining the entire cause including the evidence, a miscarriage of justice has occurred. A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751.) Expressed another way, where a trial court’s ruling does not constitute a refusal to allow a defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process. In that situation, the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to the defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
Here, the court found there was no evidence in the record regarding the exact location of the Nissan Maxima or Ivan Rodas’s Ford Taurus at the time of the shooting. The court observed:
“... I’m concerned about the reliance of the expert upon testimony of the positions of the cars to each other and ... their positioning on the street because I believe it’s been testified to that the – the angle at which the Taurus was parked in the parking stall is crucial to the accuracy of this diagram [defense Exh. No. A]. Also, the relative position of the Nissan to the Taurus is also crucial. And as I understand it, probably the relative positions of those two vehicles to each other is the most crucial element because the expert’s opinion as to where those shots may have come from, the front or the rear passenger side window of the Nissan ... seems to heavily depend upon his assumption ... that the Nissan was slightly blocking the Taurus as the Taurus is shown in the diagram. And my recollection of the testimony was that ... true, some witnesses have testified that’s the position of the vehicles to each other, but I don’t recall that there was any testimony ... that was any more specific than a rough mark on the photograph that that’s where the Taurus was and that’s where the Nissan was. And to me if the relative positions of those vehicles are different by three or four feet, it changes the opinion 180 percent. Namely, you could easily opine that the bullets, that the shots could have come from the back window if you just move the Nissan forward or to the left in the diagram three or four feet. That’s what really concerns me because I don’t know that we have any reliable testimony that those vehicles were in the relative positions that are shown on the diagram.”
For example, victim Sergio Torres said Winton Way was busy with cars in the middle of the day when the shooting occurred. When defense counsel inquired about the locations of the two vehicles during the shooting, Torres said, “I don’t know exactly in what place, but more or less in that location.” Torres marked a photograph of the scene to show the approximate locations of the two vehicles at the time of the shooting. However, he qualified his marks by saying “more or less in that location.” On direct examination in the defense case, Ivan Rodas, the driver of the Ford Taurus, said his car was parked in front of Torres’s car and his car was located in a parking stall. Rodas also said the shooter’s car was “a little bit further ahead of us.” However, he did not specify the precise location of the shooter’s car. On cross-examination, Rodas initially said he was about five feet from the Nissan when the driver, Sammy Rojas, fired a gun. Upon further questioning, he clarified and said he was five feet from Sergio Torres when the shooting occurred. Rodas admitted that Torres “had more view,” although he—Rodas—could see that Sammy Rojas was driving the Nissan. Rodas could not say when the shooter’s vehicle first pulled up before the shooting but he did see it drive up to the position where the shooting took place. However, he did not elaborate on the physical position of the shooter’s vehicle at the time of the shooting.
Defense witnesses Boudreau and Souza agreed that their assumptions were based on the full or partial blocking of the Ford Taurus by the Nissan Maxima. However, the court found these assumptions unreliable because no one knew the exact location of either vehicle. Moreover, Boudreau and Souza disagreed as to the total number of bullets fired and failed to adequately account for the two bullet slugs still present in Sergio Torres’s body.
In view of these facts and circumstances, the trial court acted within its discretion by concluding the unreliability of the proffered testimony and exhibits outweighed its marginal probative value. (People v. Cornwell (2005) 37 Cal.4th 50, 81.) In any event, the court’s exclusionary ruling did not deprive appellant of a defense as he vigorously testified that Sammy Rojas was the shooter.
II.
CALJIC NO. 2.62
Appellant contends the trial court committed prejudicial error by giving CALJIC No. 2.62 (defendant testifying—when adverse inference may be drawn).
CALJIC No. 2.62, as read to the jury, stated:
“… In this case the defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
“The failure of a defendant to deny or explain evidence against him does not by itself warrant an inference of guilt nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.
“If a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”
Appellant argues:
“In the instant case the prosecutor and the court were both silent as to what omission or gap in appellant’s testimony justified the giving of CALJIC No. 2.62. No answer to this question comes readily to mind. Appellant gave an explanation that was not bizarre or implausible: he testified that he happened to be in the Nissan when the driver, Sammy Rojas, suddenly and without warning started shooting at Sergio Torres. This was generally consistent with Rojas’s own account, and with Ivan Rodas’s account, and was not at all ‘bizarre’ or ‘implausible,’ by its own terms.
“Therefore it is obviously error to give CALJIC No. 2.62. And this error should be deemed prejudicial and reversible.” (Fn. omitted.)
CALJIC No. 2.62, if justified by the evidence, does not violate a defendant’s privilege against self-incrimination, deny him or her the presumption of innocence, or violate due process. (People v. Saddler (1979) 24 Cal.3d 671, 678-679.) The instruction is proper when a defendant testifies but fails to deny or explain inculpatory evidence within his or her knowledge. (People v. Belmontes (1988) 45 Cal.3d 744, 783; People v. Saddler, supra, at p. 682.) The instruction is also appropriate when “‘the defendant tenders an explanation which, while superficially accounting for his [or her] activities, nevertheless seems bizarre or implausible …’” so that it could be deemed a failure to explain or deny. (People v. Belmontes, supra, at p. 784.)
The test for the instruction is not whether the defendant’s testimony is believable, but whether the defendant has failed to explain or deny matters within his or her knowledge. The instruction should not “‘be requested by either side unless there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate.’” (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469-1470.)
The giving of the instruction violates no constitutional rights. For this reason, any error in giving CALJIC No. 2.62 is prejudicial only if it is reasonably probable a more favorable verdict would have resulted if the instruction had not been given. (People v. Saddler, supra, 24 Cal.3d at pp. 683-684.) Although CALJIC No. 2.62 focuses solely on the testimony of the defendant, not all of what it says is unfavorable. CALJIC No. 2.62 does not direct the jury to draw an adverse inference. Rather, it applies only if the jury finds that the defendant failed to explain or deny evidence. The instruction contains other portions favorable to the defense. For example, the instruction suggests when it would be unreasonable to draw the inference and cautions that the failure to deny or explain evidence does not create a presumption of guilt or by itself warrant an inference of guilt. The instruction explicitly advises the jury that it does not relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt. (People v. Ballard (1991) 1 Cal.App.4th 752, 756.)
In the instant case, appellant did not explain why he lied to Sheriff’s Detective Dover about not knowing Samuel Rojas. Appellant also failed to explain why he lied when he told Dover that he had seen Rojas’s gun before the shooting occurred. Even assuming arguendo error in giving the instruction, it is not reasonably probably a more favorable verdict would have resulted if the instruction had not been given. Sheriff’s Detective Coburn interviewed the victim, Sergio Torres, at the hospital and Torres told Coburn “the suspect vehicle had pulled up and that Green Eyes was in the back right rear passenger [seat] and when he went up to the vehicle that Green Eyes had shot him.” Detective Dover subsequently asked Coburn and Detective Jew to research the moniker “Green Eyes” and they located a possible suspect named Raul Barriga, the appellant. As noted in the statement of facts above, appellant subsequently evaded law enforcement officers and attempted to blame the shooting on Sammy Rojas. At one point, appellant told Detective Dover that he read the newspaper and learned that someone else had already confessed to the shooting of Torres. However, Dover had not released any information about Rojas’s purported confession to anyone at that point in time.
In view of these facts and circumstances, it is not reasonably probable a more favorable verdict would have resulted in the absence of CALJIC No. 2.62. Reversal for alleged instructional error is not required.
III.
PENAL CODE SECTION 654Appellant contends and respondent concedes the consecutive upper term of nine years imposed on count II (attempted murder) must be stayed under section 654.
Respondent explains:
“People v. Ramirez (1987) 189 Cal.App.3d 603, 615-616 (Ramirez), summarized the rule as it pertains to cases involving a conspiracy:
“‘Because of the prohibition against multiple punishment in section 654, a defendant may not be sentenced ‘for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes....’ [¶] ... [¶]
“Since here the objective of the conspiracy—to kill Sergio Torres—was identical to the attempted murder, appellant’s sentence for attempted murder should have been stayed under section 654.”
The matter must be remanded with instructions to the trial court to stay the punishment imposed on count II pursuant to section 654.
IV.
THE TWO PENAL CODE SECTION 12022.53 ENHANCEMENTS
Appellant contends the trial court unlawfully imposed two separate section 12022.53 enhancements for the single act of firing the gun at the victim, Sergio Torres.
Section 12022.53, as alleged in counts I and II, states in relevant part:
“(a) This section applies to the following felonies:
“(1) Section 187 (murder). [¶] ... [¶]
“(17) Any felony punishable by death or imprisonment in the state prison for life.
Count I of the information charged appellant with conspiracy to commit murder. Section 182, subdivision (a)(6) states:
“(18) Any attempt to commit a crime listed in this subdivision other than an assault. [¶] ... [¶]
“(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a) ... personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
The trial court stated at the August 3, 2006 sentencing hearing:
“On enhancement number one to Count One [section 12022.53, subdivision (d)], the statute calls in cases where there’s a finding that the Defendant personally discharged a firearm causing great bodily injury, which was found in this case, that the sentence must be a consecutive sentence of twenty-five years to life and the Court imposes that sentence. [¶] ... [¶]
“As far as enhancement number one to Count Two, that’s the same sentence or calls for the same statutory sentence as in enhancement one to Count One and that is twenty-five to life consecutive sentence, I’ll impose that.”
On appeal, appellant submits the shooter fired the gun at one target with only a single intent and objective, and therefore only one section 12022.53 enhancement could be imposed. The core of appellant’s contention must be rejected in light of the Supreme Court’s recent opinion in People v. Palacios (2007) 41 Cal.4th 720. The court held in Palacios:
“[T]he sentence enhancement provisions of Penal Code section 12022.53 are not limited by the multiple punishment prohibition of Penal Code section 654. Section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain felonies. Here, three enhancements were imposed under subdivision (d) of that statute based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. The Court of Appeal held that punishment on all but one of these enhancements must be stayed pursuant to the multiple punishment prohibition of section 654, even though section 654 did not preclude separate punishment for each of the underlying offenses. We conclude that imposition of punishment for each of the multiple section 12022.53 enhancements in these circumstances is required. To hold otherwise would contravene the plain language of section 12022.53.” (People v. Palacios, supra, 41 Cal.4th at p. 723, fn. omitted.)
Thus, the trial court properly imposed multiple section 12022.53 enhancements in the instant case. However, respondent concedes the section 12022.53 enhancement on count II must nevertheless be stayed. An enhancement must be stayed where the sentence on the count to which it is added is required to be stayed under section 654. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711.) In issue III above, respondent conceded that the sentence imposed on count II must be stayed because the object of the conspiracy and the underlying crime were the same. Therefore, the section 12022.53 enhancement attached to count II must also be stayed.
V.
THE UPPER TERM IMPOSED ON COUNT II
Appellant contends his nine-year upper term sentence on count II (attempted murder) must be stricken under the authority of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) and the sentence should be reduced to the seven-year middle term of imprisonment.
On August 3, 2006, the trial court sentenced appellant in the following manner:
“On Count Two, that’s the attempted murder, the Court does not believe that this is a matter that’s covered under 654 ....
“In this case, the Court will impose a high term of nine years for this offense and that’ll be consecutive.
“I just believe that the facts and circumstances of this case make it ... the more aggregious amongst other cases of this nature, the fact there were multiple shots fired and the other facts and circumstances constituting what happened before and after suggest to me that the aggravated term is appropriate here. [¶] ... [¶]
“There was – obviously this was a crime of great violence, great bodily harm, and other acts disclosing a high degree of cruelty.
“Defendant was armed with a weapon, obviously, at the time of the commission of the offense.
“I believe that the record indicates that the Defendant has engaged in violent conduct which indicates a serious danger to society and Defendant’s prior convictions as an adult are sustained petitions and juvenile delinquency proceedings are numerous and of increasing seriousness.
“I did not see any circumstances in mitigation which would apply here.
“Therefore I’ll go ahead and find that the aggravating term is appropriate based upon those particular findings.”
Appellant now contends:
“… The judge here found, inter alia, that the crime involved great violence and cruelty, that the defendant[] presents a serious danger to society, and that the defendant’s prior convictions and juvenile adjudications were numerous and of increasing seriousness. All of these are subjective findings, not admitted facts or undisputed facts. [¶] Therefore the error is prejudicial and reversible.”
In Blakely v. Washington (2004)542 U.S. 296 (Blakely), the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” (United States v. Booker (2005) 543 U.S. 220, 244.)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court considered the effect of Apprendi and Blakely on this state’s determinate sentencing law and held that the imposition of upper terms does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, supra, 35 Cal.4th at p. 1244.)
In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court held California’s Determinate Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts—other than the fact of a prior conviction—found by the court rather than by a jury beyond a reasonable doubt.
“As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466 … (2000); Ring v. Arizona, 536 U.S. 584 … (2002); Blakely v. Washington, 542 U.S. 296 … (2004); United States v. Booker, 543 U.S. 220 … (2005). ‘[T]he relevant “statutory maximum,”’ this Court has clarified, ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’ Blakely, 542 U.S., at 303-304 … (emphasis in original).... [¶] ... [¶]
“… Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL [Determinate Sentencing Law] authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 549 U.S. at pp. ___, ___ [127 S.Ct. at pp. 860, 871], fn. omitted.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the Supreme Court held in response to Cunningham:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] ... [¶]
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury....
“... Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ [¶] ... [¶]
“... The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).) ‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ (Almendarez-Torres, supra, 523 U.S. at p. 243.)” (Black II, supra, 41 Cal.4th at pp. 812-813, 818, fn. omitted.)
Here, the trial court expressly found: “... Defendant’s prior convictions as an adult [and] sustained petitions [in] juvenile delinquency proceedings are numerous and of increasing seriousness.” The trial court’s conclusions as to appellant’s adult convictions were predicated on findings made upon proof beyond a reasonable doubt. To paraphrase Apprendi,the facts increasing the penalty for appellant’s crime beyond a prescribed statutory maximum had been submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.)
The trial court imposed an upper term based on judicially-found facts deemed constitutionally permissible under Apprendi, Blakely, Cunningham, and Black II. Therefore, resentencing is not required on count II.
VI.
CUSTODY CREDITS
Appellant contends the trial court erroneously failed to award him conduct credits for the 701 days of prejudgment time he served in county jail.
He specifically argues:
“Penal Code section 4019 provides that persons in custody before the date on which the serving of the sentence commences are entitled to credit for six days of time served for every four days of time actually served. Penal Code section 2933.1 limits section 4019 credits to 15 percent in some cases, and Penal Code section 2933.2 nullifies section 4019 credits for persons convicted of murder. But appellant was not convicted of murder. Therefore the limitation to zero credits was surely wrong.”
The following exchange occurred at the conclusion of the August 3, 2006 sentencing hearing:
“[THE COURT:] Now, we have credit calculation that was done months ago. I don’t know if we have –
“P.O. PARKER: Your Honor, I looked at these credits this morning, I believe they are now at seven hundred and one.
“THE COURT: Seven 0 one?
“P.O. PARKER: Seven 0 one.
“MR. FROMSON: I haven’t seen them. Do you have them? What were they last time.
“P.O. PARKER: Five 0 five in January 19th of this year. [¶]…[¶]
“THE COURT: Any disagreement with the figures seven 0 one is actual?
“P.O. PARKER: I don’t believe so, your Honor.
“MR. FROMSON: I’m not sure. But that will be reviewed.
“THE COURT: Okay. All right. I’ll fix the actual credits at seven 0 one, and zero conduct credits.”
On appeal, appellant acknowledges “[t]he 701-day figure itself appears to be correct ... and is not disputed on appeal.”
Section 4019, subdivision (b) states in relevant part:
“... for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.”
Section 2933, subdivision (a) states in relevant part:
“It is the intent of the Legislature that persons convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Director of Corrections for performance in work, training or education programs established by the Director of Corrections....”
Section 2933.1, subdivision (a) states in relevant part:
“Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
Section 2933.2 states in relevant part:
“(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933.
“(b) The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law.
“(c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail . . ..
“(d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative.”
Section 182 states in relevant part:
“(a) If two or more persons conspire:
“(1) To commit any crime. [¶] ... [¶]
“They are punishable as follows:
“When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment in the state prison for five, seven, or nine years.
“When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony....”
While conspiracy is separate and distinct from the substantive crime that is its object, the punishment for conspiracy to commit a felony is the same as that for the underlying felony. The general plain meaning expressed in section 182, subdivision (a), that a conspirator will be punished in the same manner and to the same extent as one convicted of the underlying felony, does not require additional legislative clarity. (People v. Athar (2005) 36 Cal.4th 396, 401, 405.) Appellant argues in his reply brief:
“… Section 4019 is a statute that affects the prison time, based on the defendant’s conduct. In this case, appellant was convicted of conspiracy to commit murder, and in full application of section 182, the punishment the court imposed was a term of 25 years to life – the same punishment as that for murder.
“Section 2933.2, on the other hand, affects the prejudgment time credits in cases where the defendant is convicted of murder, not conspiracy to murder. By its express terms, this section does not apply here....”
Section 2933 addresses only worktime credit accrued in prison after conviction. Section 4019 addresses only worktime and conduct credit accrued between arrest and conviction, not custody credit. (§ 4019, subds. (b), (c); People v. Taylor (2004) 119 Cal.App.4th 628, 646-647.) Section 4019 is the general statute governing credit for presentence custody. Absent contrary authority, a defendant receives what are commonly known as conduct credits toward his or her term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. Presentence custody credit is calculated under section 4019 by dividing the number of days spent in custody by four and rounding down to the nearest whole number of days spent in custody. This number is then multiplied by two and the total is added to the original number of days spent in custody. (People v. Philpot (2004) 122 Cal.App.4th 893, 907-908.)
A conspirator shall be punished in the same manner and to the same extent as is provided for the punishment of the felony underlying the conspiracy. (§ 182, subd. (a).) Section 2933.2 applies to the offender and not to the offense. Thus, the statute limits a murderer’s credits irrespective of whether all of his or her offenses were murder. (People v. Wheeler (2003) 105 Cal.App.4th 1423, 1432.) In the instant case, the jury found appellant guilty of conspiracy (count I) and attempted murder (count II) and found several special allegations to be true. Conspiracy is an inchoate crime that does not require the commission of the substantive offense that is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 599.) In other words, conspiracy is a separate and distinct crime that never merges with the resulting substantive offense. (People v. Luparello (1986) 187 Cal.App.3d 410, 438.)
Section 2933.2 places limitations on conduct credits for “any person who is convicted of murder.” No murder conviction occurred in the instant case. Respondent nevertheless submits that a defendant convicted of conspiracy “shall be punishable ‘in the same manner and to the same extent as is provided for the punishment of that felony.’” However, the Penal Code does not enumerate the denial of conduct credits as one of the statutory “punishments” (§ 15; see also People v. Superior Court (Kirby) (2003) 114 Cal.App.4th 102, 105-106.) In fact, the purpose of a statute that allows prisoners to earn worktime credit is to instill in prisoners a work ethic that will improve their changes for reintegration into society. (People v. Goodloe (1995) 37 Cal.App.4th 485, 488.) Finally, the rule of lenity prohibits appellate courts from choosing an interpretation of a statute that disfavors a criminal defendant where the statute is at least equally amenable to another reasonable interpretation that is more favorable to the defendant. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute. (People v. Superior Court (Kirby), supra, 114 Cal.App.4th at pp. 106-107.) Here, section 2933.2 is amenable to a reasonable interpretation that favors appellant since he was not “convicted of murder.”
A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered. (People v. Taylor, supra, 119 Cal.App.4th at p. 647.) The matter will be remanded with instructions to the trial court to calculate the appropriate number of conduct credits.
DISPOSITION
The matter is remanded to the trial court which is directed to (a) stay the punishment imposed on count II pursuant to section 654; (b) stay the section 12022.53 enhancement attached to count II pursuant to section 654; and (c) calculate the appropriate number of presentence conduct credits. In all other respects the judgment is affirmed. The trial court is further directed to prepare an amended abstract and transmit certified copies of the amended abstract to all appropriate parties and entities.
WE CONCUR:
CORNELL, J., HILL, J.
“[¶]…[¶] When [conspirators conspire to commit any felony other than a crime against statutorily specified officials], they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”