Opinion
B202387
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. FREDDIE LEE COLE, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Freddie Lee Cole appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, § 187, subd. (a), count 1) and arson of an inhabited structure (§ 451, subd. (b), count 2). The trial court found that he had suffered two prior felony convictions within the meaning of sections 667, subdivision (a)(1) and subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d). The trial court sentenced appellant to a state prison term of 25 years to life on count 1, tripled to 75 years to life as a third strike, plus two 5-year terms for the prior serious felony enhancements. No sentence was imposed on count 2. Appellant contends that (1) the trial court committed prejudicial error by admitting prior crimes evidence pursuant to Evidence Code section 1101, subdivision (b), (2) the abstract of judgment should be corrected to strike the concurrent, eight-year term on count 2, and (3) the judgment should be modified to credit appellant with 1,169 days of presentence custody credit.
All further statutory references are to the Penal Code unless otherwise indicate.
We modify the custody credits, affirm and remand with directions.
FACTUAL BACKGROUND
Appellants apartment
In July 2004, appellant resided in a downstairs unit, in an apartment building managed by Wendy Gutierrez (Gutierrez), at 323 West 9th Street, in the City of Long Beach. Fred Holland (Holland) and Georgia Goodman (Goodman) were his roommates. Appellant and Goodman were always arguing. Holland had health problems that limited his ability to move about and care for himself. For two or three months before July 2004, appellant had failed to pay his share of the rent, and Gutierrez had warned him that he would have to move if he did not do so.
Because each apartment in the building had its own address, we refer to that building simply as "the building."
Appellants threats
Before the fire, appellant made numerous threats to burn down the building. In one conversation with Gutierrez, he said, `"If I leave, everybodys leaving. Ill burn this shit down." Two to three weeks before the fire, after having been drinking, he made a similar comment to Kim Galloway (Galloway), who lived down the street and was Hollands caregiver. In that same time period, appellant made a couple of threats to burn down the building to Ricky Green (Green), who lived upstairs in the building, saying that he was angry at his roommates for asking him to move. Barbara Cox (Cox), lived in the apartment above appellant with her boyfriend, Edward Young (Young) and two children. A week before the fire, appellant was upset and told Young he was moving. The day before the fire, Cox heard appellant arguing with Goodman, and say, `"I dont give a fuck whats going on. Ill burn this mother fucker down and everybody thats in it. I dont give a fuck about nobody else." Betty Deaton (Deaton) lived in an apartment in the back of the building with her family. A few days before the fire, appellant had been drinking and was angry because he believed Goodman, who it was rumored was his girlfriend, had been having sex with Holland. Appellant told Deaton a few times that he was going to burn the `"f-ing" house down."
The fire
On the morning of July 1, 2004, appellant, Young and Darryl Harrison (Harrison) were drinking alcoholic beverages, working on a car in the rear of the building. They started the car by pouring gasoline into the carburetor from a red, plastic gasoline container.
At approximately 7:30 or 8:00 p.m., Young came home with beer, saw appellant on the porch and said he would come down and drink beer with him. Young went upstairs, and, approximately 10 minutes later, the building was on fire.
Scott Holsey (Holsey), who lived across the street from appellant, was friends with Sterling Young (Sterling), who lived in the building. That evening, Sterling went upstairs to change clothes, and Holsey waited for him outside, sitting on a couch appellant had discarded in preparation for moving. Holsey heard appellant arguing with a woman sitting on the front porch. Seconds later, Holsey heard splashing, and turned to see appellant inside the porch with a red gas can, splashing a liquid from the can onto the walls by the front door. Holsey turned away, and right afterwards there was a fire. He ran into the building to warn Sterling and his family, who, in turn, warned neighbors. They all fled the building.
After the fire, several people saw appellant in the area of the building. Galloway saw him on the edge of her porch, looking at the fire before firefighters arrived. He left a "little abrupt[ly]." Darryl Harris and Patricia Needom (Needom) were standing at the corner of 9th and Cedar when Needom became aware of the fire. Appellant came down the street, walking rapidly, breathing heavily and wet or sweating, and Harris told him his house was on fire. Appellant said it was not his home, and he "didnt give a fuck," and kept walking away from the building. Deaton also saw appellant after the fire sitting on the ground watching it.
It is unclear if the person referred to as "Darryl Harris" is the same person previously referred to as "Darryl Harrison."
The investigation
Long Beach Fire Captain Ray Toohey and his crew responded to the fire. It was very large and well advanced when they arrived. Captain Toohey saw a red, plastic gasoline can on the walkway between the sidewalk and the front porch. There was also a lighter and a pack of cigarettes on the sidewalk in front of a chair in front of the property. Holsey and Gutierrez identified the gasoline can as the same type they had seen appellant holding before the fire.
After the fire was extinguished, Firefighter Charly Baker entered the building and found Holland lying face down on the bathroom floor, showing no signs of life. Firefighters removed him from the building and immediately administered CPR, as Holland was not breathing and had no pulse. He had burns on his head, neck and arms. He was intubated, and a pulse returned. He subsequently died from smoke inhalation, lack of oxygen and thermal burns to the interior of his chest.
Forensic tests of burnt debris taken from the front door area of appellants apartment revealed the presence of gasoline, as did a liquid sample taken from the red gasoline can. A pair of boots taken from appellant at the mens jail, was also shown to have gasoline present. No fingerprints were found on the can or the lighter found at the fire scene.
Fire Captain Patrick Wills, a fire investigator, opined that the fire started in front of the building near the porch. Gasoline was used as an accelerant, and the fire was caused by splashing it into the porch area and setting it on fire with a match or open flame. He ruled out an electrical or accidental source of the fire.
Prior crimes evidence
1989 fire
On March 13, 1989, Long Beach Police Detective Wayne Watson contacted appellant who was a suspect in an "unwelcome subject" investigation in apartment No. 7, at 1377 Warren Street, City of Long Beach. When the detective arrived, appellant was sitting in front of that apartment. Detective Watson returned four hours later and found the door to that apartment and surrounding wall and porch area had been set on fire, and was charred and smoking. There was a partially melted, plastic Clorox bottle in front of the door that smelled like gasoline. Police found appellant four blocks away.
Douglas McClure (McClure), a senior arson investigator at the time of the fire, thought it was gasoline driven and consistent with someone throwing gasoline on the apartment door and setting it on fire. He spoke with appellant in a recorded interview. Appellant said that he had had a fight with his girlfriend in the park, and she had knocked out one of his teeth. Later, he returned to his apartment and was not allowed in. When he asked for his clothes, his girlfriend said that she had thrown them away. Appellant went to a gas station, found a Clorox bottle in a trash bin, purchased 50 cents worth of gasoline, poured it on the front door and lit it with a match, causing the fire. He said he was not trying to hurt anyone and had been drinking.
1996 fire
On February 14, 1996, there was a fire at the bottom of the door to room No. 38 at the Rocky Inn Motel, located at 1045 East Pacific Coast Highway, in Long Beach. Judy Hill (Hill) lived in that room and was there when the fire began. She smelled something like fingernail polish. Based upon witness statements, Captain Clifford Munson, commanding officer of the Long Beach arson unit at that time, opined that the fire was caused by piling clothing by the door, pouring fingernail polish or polish remover on them and igniting them with an open flame device. The clothing included a pair of white coveralls belonging to appellant.
Appellant spoke with Captain Munson while in custody. After waiving his rights, appellant stated that he was allowed to live in room No. 12 at the motel in exchange for doing work around the motel, but was moving out that morning. He was putting furniture and other things in the dumpster. After initially denying that he was arguing with Hill, he admitted that they argued all of the time and that the coveralls in the fire were his. Appellant said he had been drinking the morning of the fire. When asked if he set the fire, he said, `"Not that I remember." When asked if he had a habit of doing things when he was drinking, he said that he did not remember.
DISCUSSION
I. The trial court did not err in admitting evidence of two prior arsons.
Before trial, the prosecutor sought to admit evidence of the 1989 and 1996 arsons under Evidence Code section 1101, subdivision (b), to prove identity, motive, common plan and scheme and lack of mistake or accident. Appellant was convicted of the 1989 fire, which was alleged as one of his prior convictions. The trial court later bifurcated trial of the prior conviction allegations. He was also charged with the 1996 arson, but the jury was unable to reach a verdict, and the case was dismissed because there was `"no possibility" that a jury would convict him.
An Evidence Code section 402 pretrial hearing was conducted, wherein the prosecution presented the testimony of McClure and Captain Munson. They testified substantially as they later did at trial, as set forth in the facts above.
Following the hearing, the trial court ruled the prior crimes evidence was admissible. It discussed the use of arson as a tool for revenge and that "arson is an extremely unusual crime to begin with." In the 20 or 30 years in the criminal justice system, the trial court had been involved in less than a handful of arson cases. It found the crime "especially as alleged here of being used as a way of solving problems or reacting to all the every day stresses of life, whether that be girlfriends or getting evicted or whatever, is unusual."
Appellant contends that the trial court erred in admitting evidence of the prior arsons under Evidence Code section 1101, subdivision (b), to support the inference of identity, motive, common plan and scheme and lack of mistake or accident. He argues that the trial court did not find that the prior conduct was sufficiently similar to constitute appellants signature, and hence his identity, and was too remote to be more probative than prejudicial. This contention is without merit.
Admission of evidence of other misconduct produces an "overstrong tendency to believe the accused guilty of the charge merely because he is a likely person to do such acts." (1A Wigmore, Evidence (Tillers rev. 1983) § 58.2, p. 1215.) "Any evidence of a defendants criminal conduct, on other occasions, no matter how relevant to issues legitimately before the court, will have an inevitable tendency to suggest that the defendant has a general criminal propensity or disposition, and thus an inevitable tendency to persuade a trier that the defendant is somewhat more likely to have committed the crime currently charged." (People v. Scott (1980) 113 Cal.App.3d 190, 198.) Consequently, other crimes evidence, as a general proposition, is inadmissible to prove a defendants disposition. (Evid. Code, § 1101, subd. (a).)
Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 1101, subdivision (b), expressly carves out an exception to this rule. It provides that such evidence is admissible if it is relevant to an issue other than disposition to commit the act. Admissibility of other crimes evidence depends upon (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crime to prove those facts, and (3) any policy requiring exclusion, such as Evidence Code section 352. (People v. Scott, supra, 113 Cal.App.3d at p. 198; People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt) ["[T]o be admissible such evidence `must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]"].)
Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
We review the trial courts Evidence Code sections 352 and 1101, subdivision (b), rulings under the abuse of discretion standard. (People v. Lewis (2001) 25 Cal.4th 610, 637; People v. Carter (2005) 36 Cal.4th 1114, 1147.) This discretion is broad.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Abuse occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "`[I]n most instances the appellate courts will uphold [the trial courts] exercise [of discretion] whether the [evidence] is admitted or excluded." (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
A. Materiality.
A "plea of not guilty puts in issue every material allegation of the accusatory pleading, except those allegations regarding previous convictions of the defendant to which an answer is required by Section 1025." (§ 1019; see People v. Steele (2002) 27 Cal.4th 1230, 1243.) Arson is a general intent crime (People v. Morse (2004) 116 Cal.App.4th 1160, 1163), and the jury was instructed that to convict appellant of arson and arson felony murder, appellant had to have acted willfully and intended to commit arson. (CALCRIM Nos. 540A & 1502.) Appellants not guilty plea therefore put his general intent and identity as the perpetrator in issue. (People v. Williams (1988) 44 Cal.3d 883, 907, fn. 7.)
B. Probative tendency.
"In ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves `"logically, naturally, and by reasonable inference" to establish that fact. [Citations.] The court `must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense . . . ." (People v. Thompson (1980) 27 Cal.3d 303, 316, fn. omitted, disapproved on other grounds in People v. Williams, supra, 44 Cal.3d at p. 907, fn. 7.)
Evidence Code section 1101, subdivision (b), permits prior misconduct evidence on the issue of identity. Evidence of a common plan or scheme serves to identify appellant as the perpetrator. "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] `The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. [Citation.]" (Ewoldt, supra, 7 Cal.4th at p. 403.)
Evidence Code section 1101, subdivision (b), also permits prior misconduct evidence on the issue of intent. "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant `"probably harbor[ed] the same intent in each instance." [Citations.]" (Ewoldt, supra, 7 Cal.4th at p. 402.) "The least degree of similarity between the crimes is needed to prove intent. [Citation.]" (People v. Steele, supra, 27 Cal.4th at p. 1244.)
Here, we find the circumstances of the two prior arsons and the charged arson so uncannily similar as to reflect appellants "signature" on the charged offense, justifying admission of the prior misconduct on the issues of both identity and intent. In all three incidents (1) a flammable liquid was used as an accelerant (in the 1989 and charged incidents, gasoline, and in 1996, nail polish or remover), (2) an open fire source was used to initiate the fire, (3) the fire was started at or near the door to the residence of a woman appellant knew (in the 1989 incident, the fire was started at the door to his girlfriends apartment, in the 1996 incident, it was started outside of the hotel room of a woman he apparently had asked on a date and, in the charged incident, at Goodmans front porch and door), (4) appellant was angry at the female victim (in the 1989 incident he had just had a fight with his girlfriend who knocked out his tooth, in the 1996 incident, he was arguing with a woman whom he was trying to date, and, in the charged incident, he was angry because Goodman, reputed to be his girlfriend, was forcing him to move and was having sex with Holland), (5) appellant had been drinking, and (6) in the 1996 and charged incidents, the building set on fire was one from which appellant was moving.
Appellant claims that the prior arsons are too remote to be probative. We disagree. There is no bright line test of remoteness. (See People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Thus, even remote offenses are admissible where the defendant has not led a blameless life. (Ibid.) As the probative value of the uncharged offenses increases, the permissible length of time between the charged and uncharged offenses similarly increases. (See People v. Soto (1998) 64 Cal.App.4th 966, 991.) In any event, remoteness goes to the weight of the evidence. (People v. Morani (1925) 196 Cal. 154, 159.)
The two prior arsons occurred eight and 15 years before the charged incident. Uncharged conduct occurring five years (see People v. Regalado (2000) 78 Cal.App.4th 1056, 1059) and 23 years (see People v. Pierce (2002) 104 Cal.App.4th 893, 900) before the charged offense have been found not to be too remote to permit their admission in evidence. Furthermore, appellant was sentenced to eight years in prison for his conviction of the 1989 incident. As a result, the second incident in 1996 occurred shortly after his release from prison, likely while he was on probation. Two and one-half years later, he committed an assault with a deadly weapon for which he received a nine-year prison term. Thus, the greater part of the 15 years between the first arson and the current arson, appellant was in prison. Under those circumstances, one cannot say he led a blameless life since the earlier incidents. The strong probative value of the prior arsons, further supports their admission, despite the length of time that had passed.
C. Evidence Code section 352.
Although the evidence of appellants other crimes is probative on the issues of identity and intent, such evidence "`must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." (People v. Balcom (1994) 7 Cal.4th 414, 426.) Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"`The weighing process under [Evidence Code] section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. . . . [Citation.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) In considering whether the probative value of uncharged crimes is outweighed by the prejudice, we must evaluate the inflammatory nature of that evidence, the probability of confusion, consumption of time, remoteness as well as other unique factors presented. (People v. Harris (1998) 60 Cal.App.4th 727, 738-740; see also People v. Falsetta (1999) 21 Cal.4th 903, 917.)
We conclude that any prejudice from the evidence of the prior arsons did not outweigh its probative value. As previously discussed, the other crimes evidence was sufficiently similar to the charged offense to make that evidence extremely probative and not too remote. The evidence of the prior arsons was far less inflammatory than the evidence regarding the charged crime. Here, the building set ablaze was inhabited by families with children and was substantially damaged by the fire. There was a fatality of an older, handicapped man who was trapped by the fire, unable to move quickly and imprisoned by security windows that could not be opened. But for the actions of Holsey in entering the burning building to warn residents, it is likely that there would have been additional fatalities. In neither of the prior incidents was the fire as extensive nor was anyone hurt or killed. The 1996 fire was so minor that the building manager put it out himself. Further, evidence of the prior misconduct did not necessitate the undue consumption of time, consuming only 16 pages of an approximately 300-page reporters transcript. It also posed no particular risk that the jury would be confused or misled.
D. Harmless error.
Even if the trial court erroneously permitted evidence of the two prior offenses, the error was harmless as it is not reasonably probable that a different verdict would have occurred but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) The evidence against appellant was overwhelming. At least four different witnesses testified that before the fire, he often threatened to burn down the building. Appellant also had a motive to start the fire. He was angry that Goodman and Holland wanted him to move and believed Holland was having an affair with Goodman. Multiple witnesses had seen appellant earlier in the day with the red, plastic gasoline can that contained the accelerant used in the fire. The gasoline can, along with a lighter and cigarettes were found on the sidewalk in front of the property. Holsey saw appellant splashing a liquid on the walls by the front door to his apartment from the red gasoline can moments before the fire began. Numerous other people saw appellant in the area of the building shortly before the fire. After the fire was started, several witnesses saw appellant watching it. When Harris told him that his apartment was on fire, appellant said he "didnt give a fuck." Appellants reaction further supports an inference that he started the fire.
Forensic evidence confirmed that the fire was started by using gasoline as the accelerant. Analysis of the remaining contents of the red gasoline can indicated that the liquid inside was gasoline. Analysis also established that the burnt debris from the front of appellants door contained gasoline, as did the boots he was wearing when taken into custody.
Finally, the trial court gave CALCRIM No. 375, which instructed the jury that it could only consider the evidence of other crimes on the issues of whether appellant was the person who committed the arson, his intent and motive to commit the crime and whether the crime was the result of accident or mistake. We presume that the jury followed the instruction. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
II. The abstract of judgment should be modified to strike the concurrent term.
The trial court orally sentenced appellant to 85 years to life on the murder count and prior conviction enhancements. No sentence was imposed on the arson count. The trial court said it was adopting the prosecutions sentencing memorandum, which proposed a sentence identical to that orally pronounced. But the minute order entered on September 13, 2007, states that the court sentenced appellant on the murder count and stayed sentence on the arson count. Five days later, a nunc pro tunc minute order was entered, deleting the stay on the arson count and adding a concurrent term of eight years on that count. The abstract of judgment also reflects this concurrent sentence.
Appellant contends that the abstract of judgment should be modified to strike the concurrent eight-year, determinate term on the arson count. He argues that the trial courts oral pronouncement contained no such order and prevails over the minute orders and abstract of judgment.
Respondent agrees that the concurrent sentence on the arson count in the abstract of judgment cannot stand because it was never actually imposed. But respondent contends that the trial courts failure to impose any sentence on that count is an unauthorized sentence that requires remand. We agree with respondent.
Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Entry of judgment in the minutes is a clerical function. (Ibid.; § 1207.) An abstract of judgment is not the judgment of conviction and cannot add to or modify the judgment it purports to summarize. (See People v. Mesa, supra, at p. 471.) The oral pronouncement of judgment controls over the abstract of judgment. (See People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1416.) If a minute order or abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa, supra, at p. 471; see also People v. Williams (1992) 10 Cal.App.4th 827, 830, fn. 3.)
Consequently, the abstract of judgment should be corrected to vacate the concurrent sentence of eight years on the arson count, as that sentence was not orally pronounced by the trial court. The failure to impose sentence on the arson count amounts to an unauthorized sentence. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.) Here, because the arson and murder were committed by the single act of igniting the fire, and the basis of the murder charge was arson felony murder, section 654 mandates that the arson count be stayed. (People v. Clark (1990) 50 Cal.3d 583, 637; People v. Boyd (1990) 222 Cal.App.3d 541, 575-576.) As the accepted and appropriate procedure under section 654 is to impose sentence on the arson count and stay execution (People v. Jenkins (1965) 231 Cal.App.2d 928, 935; People v. Hawkins (1968) 268 Cal.App.2d 99, 105-106; People v. Pena (1992) 7 Cal.App.4th 1294, 1312; People v. Pearson (1986) 42 Cal.3d 351, 359-361), we remand this matter to the trial court to exercise its discretion to impose an appropriate sentence on the arson count, staying execution of that sentence.
III. The judgment should be modified to credit appellant with 1,169 days of presentence custody credit.
Appellant was arrested on July 2, 2004. He was sentenced on September 13, 2007. The trial court did not grant any credit for time actually served, presumably based upon the prosecutions sentencing memorandum, which states that defendant was not eligible for any time credits against his sentence, citing section 2933.2.
Appellant contends that the trial court erred in failing to award him custody credits for time served presentence. He argues that all defendants, regardless of the offense of which they are convicted, are entitled to custody credits for time actually served before sentence is imposed. Respondent agrees with appellant, as do we.
A person convicted of murder is entitled to credit for actual time spent in custody prior to sentencing. (§ 2900.5, subd. (a); People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) Section 2933.2 precludes individuals convicted of murder from obtaining conduct credits for presentence custody (§ 2933.2; People v. Wheeler (2003) 105 Cal.App.4th 1423, 1431-1432), not actual time in custody credits. (People v. Herrera, supra, at p. 1366.) Thus, the failure to award presentence custody credits for actual time served was an unauthorized sentence that is subject to correction on appeal. (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Defendants are entitled to credit for all days in custody, including partial days. (People v. Fugate (1990) 219 Cal.App.3d 1408, 1414; People v. Browning (1991) 233 Cal.App.3d 1410, 1412.) We agree with appellants calculations that from the date of his arrest on July 2, 2004, and sentencing on September 13, 2007, he is entitled to 1,169 days of presentence custody credit for time actually spent.
DISPOSITION
The judgment is modified to provide for 1,169 days of custody credit and is otherwise affirmed. The matter is remanded and the trial court directed to sentence appellant on count 2 and to correct the abstract of judgment to replace the eight-year, concurrent sentence on count 2 with the sentence it imposes on remand. It is further directed to correct the minute orders of September 15 and 18, 2007, to reflect that sentence on count 2 had not been pronounced at that time.
We concur:
DOI TODD
ASHMANN-GERST