Opinion
D070972
03-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL G. DIKES, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN333404) APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed as modified with directions. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Michael G. Dikes sexually abused his two stepdaughters numerous times over the course of approximately five years. As a result, a jury convicted Dikes on 22 counts of various forms of sexual misconduct with a minor, including 3 counts (counts 16, 18, and 19) of a lewd act upon a child in violation of Penal Code section 288, subdivision (a) based on Dike's conduct on June 14, 2014, the day the abuse was discovered.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, Dikes asserts: (1) the evidence is insufficient to support his conviction on counts 16, 18, and 19; (2) the trial court committed prejudicial error by restricting the scope of his expert witness's testimony on suggestibility and contamination, and by instructing the jury it could consider prior sexual conduct with a minor as propensity evidence even if lawful in the jurisdiction in which it occurred; (3) his counsel was ineffective to the extent he forfeited any of these arguments; and (4) the cumulative effect of the foregoing errors deprived him of his due process rights. He also contends the trial court erred at sentencing by failing to give him 15 percent custody credits and the abstract of judgment does not accurately reflect the oral pronouncement of the judgment, assertions to which the People concede.
We conclude substantial evidence supports counts 16, 18, and 19; the court did not err in restricting the expert witness's testimony; any error in the jury instructions was harmless; appellant's counsel was not ineffective; and the cumulative effect of any errors was harmless. We modify the judgment to give Dikes 15 percent custody credits and to conform with the oral pronouncement of sentencing, and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Dikes molested his two stepdaughters numerous times, beginning in the fall of 2009 and continuing until approximately June 14, 2014, when the victims' mother (Mother) caught Dikes in bed with one of the girls and called the police. Although the jury convicted Dikes on multiple counts related to the abuse, we restrict our discussion herein to the facts relevant to the issues presented on appeal.
June 14 Incident
On or about June 14, 2014, Mother left the children home with Dikes while she went to the store. While Mother was out, Dikes touched the breasts of the older victim both over and under her clothes. Dikes went into the girl's room at least two different times and touched her breasts each time. Later that evening, after Mother had gone to bed, Dikes entered the victims' room, laid down in the older girl's bed, touched her breasts again and bit at them with his mouth. He also touched her vagina over her clothes. Dikes attempted to move his hand under the girl's clothes but she moved it away. While doing so, she bumped a tablet that was sitting nearby, causing the screen to light up. Dikes left the room when the tablet lit up, but came back about 10 minutes later and continued to touch and bite at the child's breasts.
Mother woke up around midnight and realized that Dikes was not in their bed. She sent Dikes a text message asking where he was but he did not answer, so she went to look for him. She noticed that her daughters' bedroom door was open and, as she looked inside, she saw Dikes laying in her older daughter's bed, partially under the covers. She opened the door, turned on a light, and shouted "what in the hell are you doing?". Dikes stated that he was "just giving the kids a hug goodnight " and got up.
Mother asked her older daughter if Dikes had ever touched her inappropriately. The daughter started crying and nodded her head, indicating that he had. Mother told Dikes to leave and called the police. The victim told the responding officer that Dikes had put his mouth on her breasts. Later that day, she told a forensic interviewer that Dikes tried to pull her shirt down to feel her breasts and put his mouth on her breasts three or four times that day, and that he came into her room several more times at night. Mother's younger daughter also disclosed that Dikes had touched her inappropriately.
Dikes was arrested and charged with 23 counts of various forms of sexual misconduct with minors.
Trial
Both victims testified at trial. The older girl stated that Dikes touched her breast at least twice during the day and touched and bit her breasts twice during the night on June 14, 2014. When asked if Dikes touched her anywhere else that evening, she stated "I think like around my vagina area" and that "I think he tried to go under [my clothes] a little bit, but I, like, moved his hand." Later in her testimony, she had difficulty remembering the specifics of the abuse that day, but recalled that she had testified at the preliminary hearing that Dikes had touched her vagina.
Dikes testified that he never touched either child inappropriately. He said that Mother would frequently refer to accusations that he molested another child when they were fighting and had threatened to accuse him of touching her older daughter. He alleged that this happened regularly and stated he was sure both children had overheard Mother make such statements. The prosecution confronted Dikes with a photograph of his hand, including his tattoos, on one of the victim's breasts and evidence that he conducted internet searches related to sexual acts with minors. Dikes denied that the hand or the searches were his.
Dikes' friend also testified that he overheard Mother accusing Dikes of molesting one of the children during a fight.
Prior Uncharged Offenses
In addition to the testimony of the two victims in this case, the prosecution also presented several other witnesses who alleged Dikes had previously committed uncharged sexual offenses against them. Of relevance to the present appeal, A.P. testified that she met Dikes in Alabama when he began dating her mother, and that Dikes sexually abused her on a regular basis from the ages of 13 to 16 years old, including acts of oral copulation and intercourse. Dikes admitted that he had a sexual relationship with A.P. but testified that it was consensual and started after A.P. turned 16-the legal age of consent in Alabama.
Expert Testimony
Expert witnesses for both the prosecution and the defense testified regarding the typical nature of disclosures of sexual abuse by children.
Dr. Anthony Urquiza, a licensed psychologist and professor of pediatrics specializing in child abuse, discussed child sexual abuse accommodation syndrome (CSAAS), which he described as a tool to educate therapists about the common contexts in which sexual abuse occurs and the associated misperceptions about how a child might react. Dr. Urquiza explained that children who are abused often have trouble revealing the abuse and, in accordance with CSAAS, they will instead find ways to accommodate the abuse. In many cases, they do so by disassociating themselves from the abuse and, thus, they may appear distant and unemotional when they do finally disclose. He did not discuss the facts of the present case, and did not offer any opinion as whether the conduct or disclosures of either of the victims was typical. The court instructed the jury that Dr. Urquiza's testimony about CSAAS was not evidence of abuse, but could be considered in evaluating the credibility of the victims, and whether their conduct in disclosing the abuse was consistent with that of a typical abused child.
Dr. Ellen Stein, a forensic and clinical psychologist, testified for the defense. She conceded CSAAS has been adopted by licensed clinical social workers as a way of understanding why a victim might disclose in a delayed manner, but asserted that it is widely criticized by forensic experts with a greater appreciation of the conventions of scientific research. Dr. Stein further explained that CSAAS has not been validated by a peer-reviewed scientific study or endorsed by the American Psychological Association or the American Psychiatric Association, and that the doctor who originally developed it has since cautioned against using it in a forensic, or courtroom, setting.
Dr. Stein also testified regarding the theory of contamination, whereby a witness may be influenced by exposure to extraneous information, such as a story read on the internet or a family member discussing the facts of the case. She explained that a child may be motivated to give or maintain a false story if the child believes he or she may have something to gain from doing so, such as the approval of a parent. However, when counsel tried to ask her if she thought the alleged victims in this case may have had something to gain by making false claims, the court sustained prosecutor's speculation objection. At a sidebar, out of the presence of the jury, the court explained that it would not allow Dr. Stein to testify regarding the credibility of the witnesses, as that was a question for the jury and not an appropriate basis for expert testimony.
Defense counsel then asked Dr. Stein if overhearing mother accuse Dikes of improper sexual acts with another child may have influenced the victims in this case. The court again sustained the prosecutor's objection, and explained defense counsel could ask about suggestibility or contamination in general but that it was not appropriate for the witness to give a specific opinion based on the facts of the case at hand or an opinion as to whether a given witness was telling the truth. The court allowed defense counsel to proceed with general questions and hypotheticals about disclosure and contamination.
Jury Instructions
Prior to deliberations, the court instructed the jury on evidence of uncharged sex offenses using the standard instructions in CALCRIM No. 1191. It stated the jury could consider the testimony regarding such prior uncharged offenses "only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses," and that they were to disregard the evidence if the People had not done so. Further, the court explained that this evidence could be considered as evidence that the defendant was predisposed or inclined to commit additional sexual offenses, but that it was not sufficient on its own to prove that the defendant was guilty of any of the charged offenses. In that regard, the court specifically instructed the jury that "[t]he People must still prove each charge and allegation beyond a reasonable doubt."
The court then instructed the jury as to the elements of the various uncharged offenses under California law, including statutory rape in violation of section 261.5, subdivision (a). The court stated the prosecution had presented evidence that Dikes had unlawful sexual intercourse with A.P. when she was a minor and more than three years younger than him. To prove Dikes committed the uncharged offense of statutory rape, the People would need to prove that he had sexual intercourse with A.P., and that Dikes and A.P. were not married and A.P. was under the age of 18 and more than three years younger than him at the time. Defense counsel continuously objected to this instruction and argued the court should instruct on Alabama law, and not California law, in relation to A.P. because the alleged acts occurred in Alabama.
At defense counsel's request, the court also instructed the jury that the legal age of consent in Alabama was 16. However, the court also instructed, "[i]f the jury finds lawful sex occurred between [A.P.] and [ ] Dikes in the state of Alabama when [A.P.] was 16 or 17 years old, you may still consider that evidence within the meaning of instruction 1191 (Evidence of Uncharged Sex Offense) and instruction 1071 (Unlawful Intercourse: Minor More than Three Years Younger PC 261.5(a))."
Verdict and Sentencing
The jury found Dikes guilty of 2 counts of sexual intercourse with a child under the age of 10 (§ 288.7, subd. (a); counts 1, 2); 4 counts of oral copulation with a child under the age of 10 (§ 288.7, subd. (b); counts 3-6); 1 count of aggravated sexual assault of a child (§ 269, subd. (a); count 7); 13 counts of a lewd act upon a child (§ 288, subd. (a); counts 8-16, 18, 19, 21, 22); 1 count of sexual penetration of a child under the age of 10 (§ 288.7, subd. (b); count 20); and 1 count of simple battery (§ 288.7, subd. (a); count 23). The court sentenced Dikes to a total prison term of 305 years to life.
Dikes appeals.
DISCUSSION
I. Substantial Evidence Supports Counts 16, 18, and 19
We turn first to Dikes' assertion the evidence is insufficient to support counts 16, 18, and 19, each of which alleges that Dikes committed a lewd act on a child under the age of 14 on or about June 14, 2014. Specifically, count 16 alleges Dikes touched the older victim's vagina and counts 18 and 19 each allege Dikes put his mouth to her breasts. Dikes contends that the testimony does not support count 16 because the victim testified that he only attempted to touch her vagina, not that he actually did, and that the evidence supports only one of counts 18 or 19, but not both, because the victim only testified that he put his mouth to her breasts once on June 14, 2014.
We review such contentions for substantial evidence. (People v. Manibusan (2013) 58 Cal.4th 40, 87 (Manibusan).) Evidence is sufficient to support a conviction if it is reasonable in nature, of legal significance, credible and of solid value. (Ibid.; People v. Samuel (1981) 29 Cal.3d 489, 505.) We review the entire record in a light most favorable to the judgment and presume " 'the existence of every fact the jury could reasonably have deduced from the evidence' ". (Manibusan, at p. 87.) We do not resolve credibility or evidentiary conflicts, and conflicts of testimony do not justify a reversal of the jury's verdict. (Ibid.) Instead, if the evidence permits a reasonable trier of fact to conclude the charged crime was committed, we must affirm. (Ibid.; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The testimony of a single witness can be sufficient to support a conviction. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Of relevance here, a conviction pursuant to section 288, subdivision (a) requires the jury to find that the defendant willfully committed a lewd or lascivious act on a child under the age of 14 with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child. (§ 288, subd. (a).) The general testimony of the victim is sufficient to support a conviction under this statute, so long as it identifies the kind of acts committed, sufficient to ensure an unlawful act occurred and to establish the type of unlawful conduct involved-such as lewd conduct, intercourse, or sodomy. (People v. Jones (1990) 51 Cal.3d 294, 316 (Jones).) Where there are multiple counts, the victim must also identify the number of acts committed with sufficient certainty to support each count, as well as the general period during which the acts occurred. (Ibid.)
In this case, the victim's testimony is sufficient on its own to support the convictions. Regarding count 16, the victim testified that Dikes touched her vagina over her clothes. Dikes contends the victim testified that she pushed his hand away, suggesting that he only attempted to touch her vagina, but the victim stated that she did so when he tried to put his hand under her clothes, after he had already touched her over her clothes. In addition, she also recalled testifying at the preliminary hearing that Dikes had touched her vagina on June 14, 2014, and agreed at trial that this prior testimony was accurate. As the prosecution only needed to prove that Dikes touched the victim's private area, and not that he did so under clothes, the victim's testimony was sufficient to support the jury's verdict. (See § 288, subd. (a); Jones, supra, 51 Cal.3d at p. 316.)
Regarding counts 18 and 19, the victim testified that Dikes touched her breasts several times during the day. The victim could not remember whether Dikes put his mouth to her breasts during the daytime, but she did testify that Dikes came into her room as she was going to bed and touched and bit her breasts, and also that Dikes came back into her room "and he was rubbing my breasts again . . . and kind of like biting at them, and then my mom came in." Thus, her testimony alone was sufficient to support a conviction on two counts. (See Jones, supra, 51 Cal.3d at p. 316.)
In addition to the victim's own testimony, a police officer testified the victim said Dikes had put his mouth on her breasts and a forensic interviewer testified the victim reported that same day that Dikes put his mouth on her breasts three or four times on June 14, 2014. Although there are some discrepancies as to when Dikes put his mouth to the victim's breasts, there was ample evidence that he did so more than once on June 14, either during the day, the night, or a combination of both. The court properly instructed the jury that they had to agree Dikes had committed the same act or at least the same number of acts and we presume they understood and followed the court's instruction. (People v. Martinez (2010) 47 Cal.4th 911, 957)
Based on the foregoing, we conclude substantial evidence supports the jury's verdict on counts 16, 18 and 19.
II. The Court Did Not Err by Restricting the Defense Expert's Testimony
Dikes contends the court committed prejudicial error when it sustained prosecutor's speculation objections and precluded Dr. Stein from opining on whether the victims could have been influenced by Mother. Dikes asserts Dr. Stein was qualified to give an opinion regarding contamination, and that the court's refusal to allow her to do so deprived Dikes of his constitutional rights to present a complete defense, to confront and cross-examine witnesses, to due process of law, and to a fundamentally fair trial.
We review evidentiary rulings of the trial court, including the exclusion of expert testimony allegedly relevant to a proffered defense, for an abuse of discretion. (People v. Mickel (2016) 2 Cal.5th 181, 218 (Mickel); see People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110 [appellate court reviews trial court's decision as to whether a subject is proper for expert opinion for an abuse of discretion].) An expert may give testimony in the form of an opinion only if it is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," but within the expert's own personal knowledge. (Evid. Code, § 801, subd. (a); People v. Sandoval (2015) 62 Cal.4th 394, 414-415.) Expert testimony is properly excluded, on the other hand, when it relates to an inquiry of common knowledge, such that the jury is equally able to adequately weigh the evidence before it and draw any necessary conclusions. (Burton v. Sanner (2012) 207 Cal.App.4th 12, 19.) Accordingly, an expert may not give an opinion regarding the truthfulness of a witness's testimony, as credibility determinations are well within the common knowledge and experience of the jury. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)
Here, the court permitted Dr. Stein to testify generally about the concepts of contamination and suggestibility, but appropriately precluded her from relating those theories to the victim's testimony, or otherwise commenting on their credibility. Contrary to Dikes' assertions, the court did allow him to present expert testimony relevant to his defense of contamination and suggestibility, and also allowed his attorney to refer to the expert's testimony in arguing that the victims were in fact influenced by Mother. Although we agree Dr. Stein was sufficiently qualified to testify regarding the theories of contamination and speculation generally, the trial court did not abuse its discretion by precluding her from giving speculative opinion testimony regarding whether the victims were motivated to lie, leaving the ultimate determination as to their credibility to the jury. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 82; People v. Page (1991) 2 Cal.App.4th 161, 186-187 [court did not abuse its discretion by permitting expert evidence regarding reliability of confessions but precluding expert from opining as to truthfulness of defendant's confession].) Dikes asserts the defense only sought to elicit testimony on whether the statements made by Mother would likely subject the victims to suggestibility or contamination, and not whether they actually were affected, but we see no material distinction between the two.
Dikes also contends the testimony should not have been excluded simply because it embraced an ultimate issue, but the credibility of the victims is not an ultimate issue and, in any event, the trial court did not exclude the testimony on that ground.
Moreover, even if we were to conclude the court did err by excluding the evidence, the exclusion was not prejudicial. The jury was certainly able to apply Dr. Stein's more general testimony regarding contamination and suggestibility to the testimony of the victims, particularly given defense counsel's overt arguments during his closing statement that the victim's statements and testimony were the direct result of contamination and suggestibility. Dikes offers no explanation as to why the jury could not evaluate the evidence and apply it to Dikes' proffered defense without an express statement from Dr. Stein correlating her testimony to that of the victims and, instead, concedes that he only needed to establish a reasonable doubt that the victims were not telling the truth. On this record, we would conclude any error was harmless beyond a reasonable doubt and, therefore, was not prejudicial even under the more stringent federal standard. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [setting forth the prejudice standard for violations of the federal constitution].)
Finally, because Dikes' constitutional claims are premised on the trial court's allegedly prejudicial exclusion of expert testimony and we have concluded the court's evidentiary rulings were neither error nor prejudicial, the constitutional claims must fail as well. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; see also Mickel, supra, 2 Cal.5th at p. 218 ["the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense"].)
III. Any Error in the Jury Instructions Was Not Prejudicial
Regarding the evidence concerning A.P., the court instructed the jury as follows: "[i]f the jury finds lawful sex occurred between [A.P.] and [ ] Dikes in the state of Alabama when [A.P.] was 16 or 17 years old, you may still consider that evidence within the meaning of instruction 1191 (Evidence of Uncharged Sex Offense) and instruction 1071 (Unlawful Intercourse, Minor More than Three Years Younger PC 261.5(a))."
Dikes argues the instruction was legally incorrect because lawful conduct is not a prior sexual offense within the meaning of Evidence Code section 1108, and that the error was prejudicial. The People concede the instruction was legally incorrect, but assert that the error was not prejudicial. Because we agree with the People that any error was not prejudicial, we need not address whether the instruction was erroneous.
We note that the court in People v. Miramontes (2010) 189 Cal.App.4th 1085, 1099 (Miramontes) concluded the scope of Evidence Code section 1108 is broad enough to encompass prior conduct that would be unlawful under California state law had the conduct occurred in California, even if the conduct actually occurred outside of the state, at least suggesting the instruction the trial court gave here was correct. (Ibid.) However, because we agree with the People that any error was not prejudicial, we need not decide if the reasoning in Miramontes extends to the present case.
In determining whether an instructional error is prejudicial, we apply the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and consider whether there is a reasonable probability that the jury would have reached a verdict more favorable to the defendant absent the error. (People v. Falsetta (1999) 21 Cal.4th 903, 925; see People v. Jandres (2014) 226 Cal.App.4th 340, 359 [Watson standard applies to erroneous propensity instruction as propensity is not an element of the charged offense and conviction cannot be based on propensity evidence alone].) We consider a disputed instruction in light of the entire charge to the jury and determine whether there is a reasonable likelihood the jury misunderstood and misapplied the instruction with the understanding that the jurors are intelligent and capable of understanding all of the given instructions. (People v. Moore (2011) 51 Cal.4th 1104, 1140; People v. Lopez (2011) 198 Cal.App.4th 698, 708; Estelle v. McGuire (1991) 502 U.S. 62, 72.)
Dikes argues we should apply the more stringent federal standard set forth in Chapman, supra, 386 U.S. at p. 24, because the instruction related to a jury finding (whether a prior offense had occurred, thereby making the propensity evidence admissible), and thus affected his federal right to due process. We are aware of no authority supporting his position, but, regardless, even under the Chapman standard, we would find the error harmless beyond a reasonable doubt for the same reasons set forth herein.
We begin our analysis of whether the instruction here was prejudicial with the understanding that the instruction was only relevant if the jury concluded the sexual conduct between Dikes and A.P. was lawful, which would in turn require the jury to have concluded both that A.P. was over the age of 16 during every encounter with Dikes and that A.P. consented to every encounter. To the contrary, A.P. testified the conduct, which Dikes did not deny, began before she turned 16 and was never consensual. She testified she was certain the abuse went on for at least two years because it occurred at multiple houses, the sexual contact was not consensual, she was scared of Dikes and did not think she could make him stop, and further stated that he drugged her during certain encounters. Thus, it is unlikely that the jury concluded Dikes' conduct with respect to A.P. was lawful. Moreover, there were two other propensity witnesses who also testified that Dikes committed uncharged and unwanted sexual offenses against them when they were minors, and it is unlikely the jury was any more influenced by A.P. than these other propensity witnesses.
In addition, the evidence against Dikes with respect to the convictions at issue here was overwhelming, even without A.P.'s testimony. Both victims testified regarding multiple instances of abuse by Dikes, Mother testified that she caught Dikes in bed with one of the victims in the middle of the night, a forensic interviewer who spoke with both victims shortly after they disclosed the abuse corroborated the victims' testimony at trial, and, as noted, two other propensity witnesses also testified regarding similar prior conduct. In addition, the prosecution presented a photograph of Dikes' hand on the victim's breasts, as well as evidence that Dikes conducted internet searches related to sexual acts with minors. Finally, although Dikes denied having committed any of the charged offenses, there was ample basis for the jury to question his credibility.
Based on the overwhelming evidence of guilt and the relative insignificance of the disputed instruction, we conclude there is no reasonable probability the verdict would have been more favorable to Dikes absent the disputed instruction and, thus, any instructional error was not prejudicial.
IV. Cumulative Effect of any Errors and Effectiveness of Counsel
Dikes asserts the cumulative effect of the foregoing errors was prejudicial, and that his counsel was ineffective to the extent he failed to preserve any of the foregoing issues. As we conclude none of the asserted errors were prejudicial on their own, it follows that the cumulative effect of any errors also was not prejudicial. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Further, as we have not concluded that Dikes' counsel forfeited any of the arguments Dikes asserts on appeal, we need not consider Dikes' conditional assertion that his counsel was ineffective.
V. Custody Credits and Abstract of Judgment
Finally, Dikes contends he was entitled to additional presentence conduct credits pursuant to section 2933.1 and the abstract of judgments should be corrected to conform with the oral pronouncement of the judgment. The People concede as to both assertions.
Regarding the presentence credits, section 2933.1, subdivision (a) permits the accrual of conduct credits at a rate of no more than 15 percent of actual time in custody from the time of arrest until sentencing for persons convicted of serious or violent felonies, including convictions for lewd and lascivious acts with a child. (§ 2933.1, subd. (a); § 667.5, subd. (c); People v. Henson (1997) 57 Cal.App.4th 1380, 1384-1385.) Dikes requested these credits and the probation officer recommended that he receive them, but the court denied the request. We agree that the trial court should have awarded Dikes 15 percent credit for the 805 actual days he served in custody prior to sentencing, for a total of 120 additional credits, and amend the judgment accordingly.
The court sentenced Dikes to a total prison term of 305 years to life, and stated on the record that the sentence consisted of two consecutive terms of 25 years to life imposed for counts 1 and 2, a consecutive term of 15 years to life imposed for each of 17 of the remaining counts, and 2 concurrent terms of 15 years to life imposed for counts 10 and 16. The court did not issue a sentence for count 17, as it had previously dismissed that count. However, the abstract of judgment indicates on the front page that the court imposed a sentence of 15 years to life on counts 3 through 22. The sentences for each individual count are listed correctly thereafter.
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Accordingly, we amend the judgment to accurately and unambiguously reflect consecutive terms of 15 years to life on counts 3-15, 18, and 20-22, and concurrent terms of 15 years to life on counts 16 and 19.
DISPOSITION
The judgment is modified to reflect the imposition of consecutive terms of 25 years to life on counts 1 and 2; consecutive terms of 15 years to life on counts 3-15, 18, and 20-22; and concurrent terms of 15 years to life on counts 16 and 19; and to award Dikes an additional 120 credits, as set forth herein. The trial court is instructed to amend the abstract of judgment to include these corrections and forward the same to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. NARES, J.