Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291704, Patricia M. Schnegg, Judge.
Randy S. Kravis, 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, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Anthony Maurice Durden appeals from the judgment entered following a jury trial that resulted in his conviction for furnishing or giving away cocaine base. Durden was sentenced to a prison term of 14 years.
Durden contends the trial court: (1) erred by admitting prejudicial evidence; (2) erroneously failed to give CALCRIM No. 224, regarding circumstantial evidence; (3) abused its discretion by denying his posttrial motion for disclosure of confidential juror information; and (4) miscalculated his custody credits. We correct Durden’s custody credits as requested. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
On the afternoon of October 12, 2005, Los Angeles Police Officers Fabiola Ledesma and Eliana Tapia participated in a narcotics investigation near the corner of Fifth and Crocker Streets in downtown Los Angeles, an area where rock cocaine was typically sold. While stationed at an observation post inside a building and using binoculars, both officers saw Durden riding North on Crocker Street on a bicycle. Ledesma recognized Durden from a prior investigation. Durden stopped his bicycle and “hung out” in the area until an individual subsequently identified as Mr. Lester approached on foot. Durden and Lester approached one another and spoke. Durden then reached into his front left pants pocket, removed a plastic-wrapped “rock” weighing 3.40 grams and containing cocaine base, and gave it to Lester. Lester looked at the “rock” and walked away with it in his hand. The transaction took 20 to 30 seconds. Durden walked northbound to the corner of Crocker and Fifth and remained there.
Ledesma and Tapia opined that the rock of cocaine was larger than that usually seen in the area.
No money was exchanged in the transaction. Ledesma testified that “currency is not always exchanged for narcotics.” For example, contacts sometimes deliver additional drugs to street dealers who have run out of narcotics to sell, and sometimes persons sell narcotics for another person in exchange for money or narcotics to be received later on.
Ledesma broadcast the descriptions and locations of Durden and Lester to Officers Sing and Mejia, uniformed “chase” officers who were in a marked patrol car on the street. As Sing and Mejia approached, Lester casually dropped the cocaine on the ground. Sing and Mejia took him into custody. Plainclothes officer Thomas Brown, who was assigned to the chase team, also responded to the scene in an unmarked police car. He saw Lester drop the cocaine as he arrived.
Officer Christopher Hoffman, another chase team member, arrived in his marked patrol car. He detained and searched Durden, discovering $522 in cash stuffed in Durden’s pocket. There were nineteen $20 bills, three $10 bills, eight $5 bills, one $2 bill, and seventy $1 bills, typical of the small denominations used by street narcotics dealers.
b. Defense evidence.
Rory Cornwell, a supervisor at the Volunteers of America Detox Center, testified for the defense. The Volunteers of America center was located a block away from the corner where the drug transaction transpired. Durden was a participant in a 60-day drug program at the center. On October 12, 2005, Durden visited the center to obtain his “EBT” card, a card issued by the Department of Social Services to cover the board and care expenses of individuals enrolled in drug rehabilitation programs.
2. Procedure.
Trial was by jury. Durden was convicted of furnishing or giving away a controlled substance, cocaine base (Health & Saf. Code, § 11352, subd. (a)). Durden waived his right to a jury trial on prior conviction allegations. Following a bench trial, the court found Durden had suffered four prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a) and had served seven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Durden to a term of 14 years in prison. It also imposed a restitution fine, a suspended parole restitution fine, a laboratory analysis fee, and a court security assessment. Durden appeals.
DISCUSSION
1. The trial court did not prejudicially err by admitting evidence that the officers recognized Durden.
a. Additional facts.
Prior to trial, Durden moved to exclude any testimony that surveillance officers Ledesma and Tapia recognized him because he had been arrested a few months earlier in the same area. Durden contended the evidence was irrelevant and unduly prejudicial under Evidence Code section 352. The prosecutor urged that the evidence was relevant to prove the officers correctly identified Durden and to show why they focused their attention on his actions rather than his physical description. The prosecutor stated he would advise the witnesses not to mention Durden’s arrest, but to state that they recognized Durden “from the area on a previous occasion.”
During direct examination, Officer Ledesma stated that she saw “Mr. Durden . . . riding north on a bicycle. And I immediately recognized him from a prior investigation.” Durden’s counsel did not object, but informed the trial court the following court day that she was “upset” Officer Ledesma had referred to the prior contact as an “investigation.” Counsel requested a curative instruction. The trial court stated it would consider such an instruction.
During her direct examination, Officer Tapia testified that she saw Durden while observing the drug-buy area. The prosecutor queried, “had you seen the defendant on a prior occasion before?” Tapia answered, “Yes.” The prosecutor continued, “And was that just from the neighborhood?” Defense counsel objected. At a sidebar discussion, the court pointed out that the prosecutor’s questions were designed to forestall an objectionable response. Defense counsel stated she “just wanted to make sure.” Tapia then affirmed that she recognized Durden “from before in the neighborhood.”
During the reading of jury instructions, defense counsel requested a sidebar to address the question of whether a curative instruction should be given. The trial court indicated it would give such an instruction if requested. Defense counsel opted to think the matter over until the following day. Defense counsel did not thereafter request a curative instruction.
During argument to the jury, the prosecutor stated, “Officer Ledesma sees the defendant, Mr. Durden, riding a bicycle. He’s coming from . . . Crocker Street kind of riding up here toward Fifth Street. And she says to her partner, hey, isn’t that Durden? Take a look. And that’s just someone they recognize from before.” The prosecutor made no reference to a prior “investigation” involving Durden.
During defense closing argument, counsel urged, “[L]et’s talk about the inconsistencies. The first thing is the officers say they recognized Mr. Durden right from the get-go. Okay. So already they have a prejudged, preconceived idea of Mr. Durden and what he’s doing or what he’s about to do. So their observations are already tempered with [the] prejudgment.”
After the jury rendered its verdict, Durden moved for a new trial on the ground, inter alia, that the court had erred by denying his request to exclude evidence that the officers recognized him from a prior occasion. The motion was denied.
b. Discussion.
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Heard (2003) 31 Cal.4th 946, 973; People v. Cain (1995) 10 Cal.4th 1, 32.) Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it “poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.)
We apply the abuse of discretion standard to a trial court’s rulings on the admissibility of evidence, including those turning on the relevance or probative value of the evidence in question. (People v. Waidla, supra, 22 Cal.4th at pp. 723-724; People v. Harris (2005) 37 Cal.4th 310, 337; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) “Generally, a trial court has wide discretion in determining the admissibility of evidence [citation], i.e., in deciding whether the evidence is relevant [citations] and whether Evidence Code section 352 precludes its admission [citation].” (People v. Mobley (1999) 72 Cal.App.4th 761, 792-793, disapproved on other grounds in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.) A trial court’s exercise of its discretion “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues, supra, at pp. 1124-1125.)
We discern no abuse of discretion here. Despite Durden’s argument that identity was not an issue in the case, the two observing officers, Ledesma and Tapia, watched the drug transaction from an observation post, with binoculars, from a distance of over 70 feet away. They then had to transmit the descriptions of the individuals to the uniformed chase officers, who were responsible for detaining them. Both Ledesma and Tapia testified that other persons were present on the street corner where Durden stood after making the transaction. Defense counsel elicited that at the preliminary hearing Tapia had testified there was heavy pedestrian traffic in the area. Defense counsel questioned both officers extensively regarding the details of Durden’s attire, bicycle, and bicycle lock. Defense counsel never agreed to stipulate that Durden was the individual the officers saw speaking to Lester. Under these circumstances, evidence the officers recognized Durden from a prior occasion was probative on the question of the accuracy of the officers’ identifications. Evidence tending to show the correct suspect was apprehended was relevant to foreclose any defense theory that the wrong man had been apprehended, as well as to put to rest any jury questions on the subject. The trial court’s conclusion that the evidence was relevant and not unduly prejudicial was not arbitrary or capricious.
Even assuming the evidence was admitted in error, it was not prejudicial. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Avitia (2005) 127 Cal.App.4th 185, 194.) The trial court did not allow evidence that Durden had previously been arrested, charged, or convicted of a crime. Officer Ledesma volunteered that she recognized Durden from a prior investigation, but she did not testify to Durden’s role in that investigation, nor did she imply he was a suspect or arrestee. For all the jury knew, Durden could have been a witness, victim, or bystander in the prior investigation. Unlike in the cases cited by Durden (People v. Cardenas (1982) 31 Cal.3d 897, 904; People v. Ozuna (1963) 213 Cal.App.2d 338, 342; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506, People v. Stinson (1963) 214 Cal.App.2d 476, 480; People v. Roof (1963) 216 Cal.App.2d 222, 225-226), the jury was not expressly or impliedly told Durden had been previously charged with a crime, was a gang member, was an ex-convict, or had served time in prison. We do not agree that Ledesma’s reference to an investigation suggested Durden was “a career criminal so notorious among the police that two of them immediately recognized him on sight.” To the contrary, we do not believe Ledesma’s testimony necessarily suggested Durden had a criminal disposition.
At worst, the evidence suggested Durden had been in the area before and had some connection to drugs. But these facts were introduced by the defense during the defense case. Defense witness Cornwell testified that Durden attended a nearby drug rehabilitation program. As Cornwell explained, participants in the program were “addicts . . . . They’re addicted to crack and heroin, what they sell around there. Yeah, they’re addicts and addicts even go and sell to support their habits.” Thus, the officers’ testimony added nothing to the information provided in the defense case. In fact, defense counsel used the challenged testimony to Durden’s advantage by arguing the officers prejudged him and were mistaken in their observation that he handed Lester the cocaine. Under these circumstances, there is no reasonable probability the jury would have rendered a more favorable verdict had the challenged evidence been excluded. Admission of the evidence did not violate Durden’s due process rights, and Durden’s motion for a new trial was properly denied.
2. The trial court did not err by failing to sua sponte give CALCRIM No. 224.
The trial court instructed the jury with CALCRIM No. 223, the standard instruction defining direct and circumstantial evidence. Durden contends that the trial court should also have instructed, sua sponte, with CALCRIM No. 224, a standard instruction that explains how the jury should consider circumstantial evidence. CALCRIM No. 224 explains, among other things, that a finding of guilt may not be based on circumstantial evidence unless jurors are convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. The purpose of the instruction is to clarify the proper use of circumstantial evidence. (People v. Yeoman (2003) 31 Cal.4th 93, 142.)
CALCRIM No. 223 provided: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
CALCRIM No. 224 provides, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The trial court correctly omitted CALCRIM No. 224 in the instant case. The California Supreme Court has held that CALJIC No. 2.01 (the predecessor to CALCRIM No. 224) must be given sua sponte when proof of guilt “rests substantially on circumstantial evidence,” but should not be given when circumstantial evidence merely corroborates other evidence. (People v. Yeoman, supra, 31 Cal.4th at p. 142; People v. Brown (2003) 31 Cal.4th 518, 562; People v. Anderson (2001) 25 Cal.4th 543, 582; People v. Wright (1990) 52 Cal.3d 367, 405-406; People v. Shea (1995) 39 Cal.App.4th 1257, 1270-1271.) Where circumstantial evidence is not the primary means by which the prosecution seeks to establish the defendant’s guilt, the instruction should not be given as it may confuse and mislead the jury. (People v. Yeoman, supra, at p. 142; People v. Anderson, supra, at p. 582.)
Here, the People primarily relied on the direct observations of the officers, not circumstantial evidence, to prove Durden’s guilt. The only significant circumstantial evidence presented was the cash found in Durden’s pocket. Because the case was primarily based on direct evidence, and circumstantial evidence was introduced only to corroborate the eyewitness testimony, CALCRIM No. 224 was properly omitted. (See People v. Yeoman, supra, 31 Cal.4th at pp. 142-143 [instruction properly omitted where the People introduced much circumstantial evidence but the People’s proof rested largely on direct evidence]; People v. Brown, supra, 31 Cal.4th at p. 562; People v. Anderson, supra, 25 Cal.4th at p. 582; People v. Wright, supra, 52 Cal.3d at p. 406.)
3. The motion for disclosure of confidential juror information was properly denied.
Durden next contends the trial court abused its discretion by denying his posttrial motion for disclosure of confidential juror information. We disagree.
a. Additional facts.
After trial, Durden petitioned for access to juror identification information. In support of the motion, Durden’s trial counsel filed a declaration. As relevant here, the declaration stated that, approximately five weeks after the jury rendered its verdict, counsel encountered a juror while shopping at a Tujunga supermarket. The juror approached counsel and asked to speak to her about the case. The juror stated that “he and the other jurors were looking to [counsel] for an alternate explanation as to why the defendant and the other individual were meeting up in that split second;” that “jurors were wanting to hear that the defendant and the other man were just ‘high fiving each other’ and not transferring drugs”; and “the jurors wanted to hear from the defendant to explain what happened.” The juror reiterated that the jury was “waiting for [counsel] to give them some reason for them to acquit the defendant and nothing was presented to ‘contradict’ the officers.” The jury’s “main concern was that there was no alternate accounting to explain the defendant’s alleged observed encounter with the other man.” The juror also asked why the defendant had not testified. Trial counsel did not ask for the juror’s name or identifying information.
Counsel’s declaration referenced other statements that Durden cited, in his motion below, as evidence of misconduct. On appeal, Durden does not contend these other statements established good cause for disclosure of juror identifying information.
The trial court denied the motion in a written order. The court reasoned that trial counsel’s declaration was based on hearsay, but even if the declaration had been authored by the former juror, the motion failed to establish good cause for disclosure. The declaration did not include any evidence of events occurring either inside or outside the jury room that could have improperly influenced the verdict; and the declaration conveyed one juror’s impressions and mental processes in evaluating the evidence, which were inadmissible to support the petition.
Durden subsequently filed a motion for reconsideration of his petition. He urged, inter alia, that the juror’s comments showed the jury improperly deliberated about why he did not testify. The trial court denied the motion for reconsideration, observing that nothing in counsel’s declaration suggested jurors discussed Durden’s failure to testify during their deliberations.
b. Discussion.
“The disclosure of jurors’ addresses and telephone numbers involves a sensitive issue” and impacts public policy concerns. (People v. Wilson (1996) 43 Cal.App.4th 839, 852; People v. Rhodes (1989) 212 Cal.App.3d 541, 548.) Code of Civil Procedure sections 237 and 206, subdivision (g), govern release of juror information following a verdict in a criminal proceeding. Section 206, subdivision (g), provides that a defendant may petition the court for access to juror names, addresses, and telephone numbers to develop a motion for a new trial or for other lawful purposes. Section 237, subdivision (b) requires the court to set the matter for hearing if the defendant’s petition and supporting declaration establish a prima facie showing of good cause for the disclosure of such information, but prohibits the court from doing so if a compelling countervailing interest exists. The legislative intent behind Code of Civil Procedure section 206 is “to require the defendant show good cause for disclosure and not engage in merely a fishing expedition.” (People v. Wilson, supra, 43 Cal.App.4th at p. 852.) The defendant bears the burden of establishing good cause. (People v. Granish (1996) 41 Cal.App.4th 1117, 1131.)
Code of Civil Procedure section 237, subdivision (b), reads in pertinent part: “Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm. If the court does not set the matter for hearing, the court shall by minute order set forth the reasons and make express findings either of a lack of a prima facie showing of good cause or the presence of a compelling interest against disclosure.”
Code of Civil Procedure section 206, subdivision (g) provides, “a defendant or defendant’s counsel may, following the recording of a jury’s verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court’s records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of jurors’ names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.”
In order to demonstrate good cause, a defendant must make a sufficient showing “to support a reasonable belief that jury misconduct occurred.” (People v. Rhodes, supra, 212 Cal.App.3d at p. 552; People v. Jones (1998) 17 Cal.4th 279, 317.) The misconduct alleged must be “ ‘of such a character as is likely to have influenced the verdict improperly.’ ” (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported. (People v. Wilson, supra, 43 Cal.App.4th at p. 852; People v. Jefflo, supra, at p. 1322; People v. Rhodes, supra, at pp. 553-554.) The party seeking disclosure must also show that he or she has made diligent efforts to contact the jurors through other means, and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial. (People v. Rhodes, supra, at pp. 551-552; People v. Jones, supra, at p. 317.) A trial court’s denial of a petition to disclose juror identification information is reviewed for abuse of discretion. (People v. Jones, supra, at p. 317; People v. Santos (2007) 147 Cal.App.4th 965, 978.)
Here, the trial court properly denied the motion. First, Durden made no showing that he had “made ‘diligent efforts . . . to contact the jurors through other means’ [citation].” (People v. Jones, supra, 17 Cal.4th at p. 317.)
Further, Durden failed to establish a prima facie showing of good cause for disclosure of juror information. Apart from the hearsay issue discussed by the parties, it is clear that counsel’s declaration failed to establish any juror misconduct. The only potential misconduct Durden raises on appeal is his assertion that jurors discussed his failure to testify. The jury was instructed with CALCRIM No. 355, which stated that a defendant has an absolute right not to testify. The instruction further provided that the defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.” A jury’s discussion of an accused’s failure to testify constitutes an overt act of misconduct. (People v. Perez (1992) 4 Cal.App.4th 893, 908.)
During the supermarket conversation, the former juror stated that (1) jurors were “looking to [defense counsel] for an alternate explanation as to why the defendant and the other individual were meeting up in that split second”; (2) jurors were waiting to hear that Durden and Lester were “ just ‘high fiving each other’ and not transferring drugs”; jurors were waiting for defense counsel to “give them some reason . . . to acquit the defendant;” and (4) nothing was presented to contradict the officers’ testimony.
These statements did not establish good cause for two reasons. First, evidence of jurors’ mental processes is inadmissible. Evidence Code section 1150 precludes consideration of evidence demonstrating the effect of statements or events on the mental processes of a juror. (People v. Danks (2004) 32 Cal.4th 269, 301-302.) Evidence Code section 1150 “ ‘distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .” ’ [Citation.]” (Danks, supra, at p. 302.) Accordingly, “with narrow exceptions, evidence that the internal thought processes of one or more jurors were biased is not admissible to impeach a verdict,” and “ ‘[n]o evidence is admissible to show the [actual] effect of such statement, conduct, condition, or event upon a juror . . . or concerning the mental processes by which [the verdict] was determined.’ [Citations.]” (In re Hamilton (1999) 20 Cal.4th 273, 294, italics omitted.) This limitation prevents “ ‘ “one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.” ’ [Citation.]” (People v. Danks, supra, at p. 302.) The aforementioned statements all reflected the jurors’ mental processes, not overt acts that might have sufficed to establish a prima facie case of juror misconduct. Further investigation into such statements would have been improper and unlikely to yield admissible evidence to demonstrate juror misconduct.
Second, even if these statements did not run afoul of Evidence Code section 1150, they did not establish that jurors discussed or relied on Durden’s failure to testify. The juror’s statements suggested only that the jury took the presumption of innocence seriously, believed the People’s evidence established guilt beyond a reasonable doubt, and felt no evidence meaningfully rebutted the People’s case. While a defendant is entitled to rely on the state of the People’s evidence and argue that the People have failed to prove the charges beyond a reasonable doubt, it is axiomatic that the jury may reject such an argument and conclude that, in the absence of evidence rebutting the People’s case, the defendant is guilty beyond a reasonable doubt. The former juror’s statements indicated this view. They did not suggest the jury expressly discussed Durden’s failure to testify.
Likewise, the juror’s posttrial statement that “the jurors wanted to hear from the defendant to explain what happened,” was simply a variation on this same theme. Viewing the former juror’s discussion with counsel as a whole, it is readily apparent that the juror restated, several times and in different ways, his view that the jury believed the People’s case and felt no evidence was presented to meaningfully rebut the People’s case. In this context, the statement that the jury wanted to hear the defendant’s explanation did not indicate jurors improperly discussed Durden’s failure to testify, or improperly considered his choice not to testify in the sense contemplated by CALCRIM No. 355. Notably, the former juror did not tell counsel that the jury expressly discussed Durden’s failure to testify or considered it as evidence of guilt. Instead, the comment suggested only that jurors were convinced by the People’s evidence and did not consider the defense case sufficiently persuasive to rebut it. Under these circumstances, the contention that jurors expressly discussed or relied upon Durden’s failure to testify as evidence of guilt is speculative. (See People v. Granish, supra, 41 Cal.App.4th at p. 1131; People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.)
Finally, the juror’s query during the grocery store conversation as to why Durden did not testify did not establish a prima facie case of juror misconduct. The question was asked weeks after deliberations, during a casual, chance encounter with counsel, and appears to have been motivated by nothing more than curiosity. (See People v. Jefflo, supra, 63 Cal.App.4th at p. 1322.) It is not reasonable to infer misconduct occurred during deliberations from the juror’s posttrial question to counsel.
In sum, the trial court did not abuse its discretion by denying the motion for disclosure of juror identifying information.
4. Custody credits.
Durden contends he is entitled to an additional day of custody credit. The People concede the point, and we agree. The record reflects that Durden was arrested on October 12, 2005, and remained in custody until sentencing on December 18, 2006. Thus, he was in actual custody for a total of 433 days. A defendant is entitled to credit for all days in custody up to and including the date of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526-527; Pen. Code, § 2900.5, subd. (a).) The trial court, however, awarded Durden only 432 days of actual custody credit. We order the judgment modified to correct this error in calculation. (People v. Guillen (1994) 25 Cal.App.4th 756, 764; People v. Smith, supra, at pp. 526-527.)
DISPOSITION
The judgment is modified to award Durden 433 days of actual presentence custody credit. (Pen. Code, § 2900.5, subd. (a).) The Clerk of the Superior Court is directed to prepare an amended abstract of judgment and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.