Opinion
B200912
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO ESPINOZA, Defendant and Appellant.
Randy S. Kravis for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
I. INTRODUCTION
Defendant, Alejandro Espinoza, was jointly charged along with the codefendants, Raul Chavez and Gustavo Molina, in an information arising from an April 5, 2006 home invasion robbery. Defendant appeals from his convictions for: one count of first degree residential burglary (Pen. Code, § 459); six counts of attempted first degree residential robbery (§§ 211, 664); and one count of firearm assault. (§ 245, subd. (a)(2).) The jury also returned findings concerning aggravating factors for sentencing purposes. Defendant argues: there was insufficient evidence to support his burglary and attempted robbery convictions; the trial court failed to sua sponte instruct the jury on the use of a dog; trial counsel was ineffective for failing to object to the admission of Mr. Chavezs out-of-court statement; and no further fines or penalties need be imposed. The Attorney General argues the trial court: should have imposed seven additional court security fees; should have imposed sentences as to counts 2 and 3 before staying them pursuant to section 654, subdivision (a); and gave defendant excessive presentence credits. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On April 5, 2006, Alfredo Vargas lived with: his parents, Josefina Mercado and Jose Vargas; his brothers, Jesus Vargas, Carlos Vargas, and Pedro Mendoza. Pedros wife, Mary, and young son, Pedro Mendoza, Jr., also resided in the home. After Alfredo was asleep, he heard knocking at the door and people saying in Spanish, "`Police, police." Alfredo saw Carlos run toward the hallway. Carlos said, "`Dont open the door." Alfredo got up and "peeked opened" the interior door. By that time four individuals had opened the screen door and entered the house. Defendant and Mr. Chavez were among the four intruders. The four men were dressed in windbreaker jackets and black caps. The word "`Police" was written on both the jackets and hats. They also wore badges hanging from their neck on chains. All four men pointed guns at the residents.
For purposes of clarity and out of no disrespect, we will refer to those residing in the home by their first name hereafter.
Alfredo demanded: "`Let me see the warrant. Let me see the paperwork. If youre the police, let me see the warrant if youre going to come in like this." The men attempted to put plastic restraints or "zip ties" on Alfredo. Alfredo resisted the effort to handcuff him. Mr. Chavez then struck Alfredo in the head with the handle of the flashlight. Defendant hit Alfredo in the head with a gold-handled gun. Carlos had gone into his mothers bedroom and telephoned the police. Carlos then came out of the room. Defendant pulled on and restrained Carlos with "zip ties" along with Pedro and Jose. The men were placed on their knees on the floor. Defendant told them: "`Just get on the floor, get on your knees, get on the floor . . . Put your hands behind your back . . . Its the police, everything is going to be all right." Josefina and Jesus were also placed on their knees, but were not restrained. Neither Mary nor Pedro Jr. came out of the bedroom during the incident.
Josefina told the intruders: "`Police. We already called the police. They are coming. They should be on their way. They are already coming." Three of the intruders, including defendant, went outside to the driveway toward the back yard. Mr. Chavez remained inside the home. However, Mr. Chavez then stepped outside. The police arrived within seconds after the three men left. One of the officers ordered Mr. Chavez, "`Go back inside the house." Pedro and Carlos pointed out Mr. Chavez to the police, saying: "`Thats him. Thats him, get him right there." Alfredo had swelling and pain in his wrists after the restraints were removed. Alfredo also had swelling and headaches from being hit on the head.
Los Angeles Police Department Detective Ricardo Rivera and Officer Ramon Martinez responded to a burglary in progress call at 147 East 109th Place on April 5, 2006. Officer Martinez saw some people in the driveway. Detective Rivera saw the shadow of individuals running toward the rear of the house. Officer Martinez ran up the driveway. Officer Martinez saw an individual wearing a dark hat, jacket, and pants walking toward the back of the house. Officer Martinez called out, "`Stop, [] come here." However, the individual did not stop.
Detective Rivera saw that the front door of the residence was partially open. When Detective Rivera attempted to push the door open, it was met with resistance. Upon entering the living room of the home, Detective Rivera saw Mr. Chavez. Mr. Chavez was wearing a dark baseball cap that said "police" on it as well as a badge hanging from his neck on a chain. Mr. Chavez was dressed in a blue windbreaker jacket. The residents were in a line facing the wall on their knees. Four of the residents had their hands tied behind their back with plastic restraints. Some of the residents yelled to Detective Rivera: "`Hes one of them. Thats him. Get him." Detective Rivera testified: "I told him to keep his hands where I could see them. I went and drew my weapon on Mr. Chavez, and grabbed him by the collar and pulled him out of the house." Officer Martinez heard Detective Rivera yelling. Officer Martinez returned to the front of the house. Detective Rivera and Officer Martinez handcuffed Mr. Chavez. Officer Martinez recovered a loaded .357 magnum revolver from Mr. Chavezs waistband. Mr. Chavez turned toward the porch and said, "`Im sorry, Im sorry." Some of the residents were standing at the doorway.
Detective Rivera requested assistance from other officers, indicating there was a possible home invasion robbery and three suspects had run northbound. Detective Rivera requested a perimeter be established based upon the severity of the crime. A police helicopter was also involved in the search for the suspects.
Officer Mike Peters arrived with a police dog. The dog was trained to search for outstanding suspects by human scent. The dog was specially trained to locate individuals who are nervous or scared and who emit an enhanced scent. When Officer Peters went to 144 East 109th Street, the dog was directed to move down the side of the residence. The dog became animated and located a jacket on a walkway between a block wall and the house. The jacket was later found to have plastic handcuffs in the pocket.
Thereafter, the dog was sent into the backyard of the home. The dog again became extremely animated. Officer Peters believed the dog had found a suspect and notified the search teams. Officer Peters heard a gate open and close. The dog began jumping frantically at the fence and barked. Officer Peters saw movement on the other side of the fence. When Officer Peters opened the gate, defendant was standing close to the house. Defendant was not wearing a jacket. A pair of black leather gloves was found on the rear porch at 144 East 109th Street that night. Sandra Cortez lived at 144 East 109th Street. Ms. Cortez did not know defendant. Ms. Cortez did not put the jacket found by police on her walkway on April 5, 2006, nor did it belong to anyone in her household. The gloves found on Ms. Cortezs porch were not hers.
The parties stipulated that: Detective Bret Richards obtained a deoxyribonucleic acid sample from both defendant and Mr. Chavez; a qualified criminalist obtained a deoxyribonucleic acid sample from the gloves found on Ms. Cortezs porch; a qualified criminalist compared defendants deoxyribonucleic acid sample with those taken from the gloves; the criminalist determined the deoxyribonucleic acid profile from the gloves revealed a mixture; the major profile originated from defendant; and the minor profile came from an unknown individual. The estimated frequency of occurrence of the major profile is: Black, one in 2.91 quintillion unrelated individuals; Caucasian, one in 3.045 quadrillion unrelated individuals; southwest Hispanic, one in 191.4 trillion unrelated individuals; and southeast Hispanic, one in 1.105 quadrillion unrelated individuals. The parties further stipulated that: a deoxyribonucleic acid sample was obtained from the jacket found on Ms. Cortezs property, which was determined to have a mixture of at least four individuals; when that sample was compared to defendants deoxyribonucleic acid, he could not be excluded as a possible contributor; and, Mr. Chavez was excluded as a possible contributor.
Detective Mark Campbell arrived at the Vargas residence after midnight on April 6, 2006. Detective Campbell found a blue steel Colt semi-automatic handgun in the shrubbery area of 143 East 109th Place. Also, Detective Campbell saw a Norinco blue steel semi-automatic handgun near the adjacent block wall of 139 East 109th Place. Both weapons contained loaded magazines.
Detective Marcy Fathauer went to the Vargas home in the early morning hours of April 6, 2006. Detective Fathauer recovered two crowbars on the front porch of the home at 147 East 109th Place. Detective Fathauer also found a green ball cap from the top of a car parked in the driveway of the residence and two plastic "flex cuffs" from under the automobile. Detective Fathauer discovered one mag flashlight in the rear yard at 143 East 109th place and another in the backyard of the adjacent house at 139 East 109th Place. Police badges attached to chains were found in the rear yard of 138 East 109th Place.
At trial, Alfredo identified both defendant and Mr. Chavez as two of the four assailants. Alfredo also identified defendant on the evening of the incident during a field showup. Pedro also identified defendant and Mr. Chavez at trial. Approximately 45 minutes after the attempted robbery, Pedro identified defendant who had been detained on 109th Street. Pedro told the authorities defendant "looked very familiar" and appeared to be wearing the same clothing. Pedro also positively identified defendant from a photograph shown to him by police.
The parties stipulated that defendant failed to appear at a court appearance after he was released on bail in this case. Defendant was rearrested on June 13, 2006.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support his convictions for six counts of attempted robbery and one count of burglary. More specifically, defendant argues there is no evidence supporting his or his "confederates" intent to enter the residence to take property. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557, 576.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Bean (1988) 46 Cal.3d 919, 932.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
Section 211 states, "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." The California Supreme Court has held: "An attempt to commit a crime is comprised of `two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. (§ 21a; see § 664 [prescribing punishment].) Other than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense. [Citations.]" (People v. Medina (2007) 41 Cal.4th 685, 694; see People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; People v. Memro (1985) 38 Cal.3d 658, 698; People v. Dillon (1983) 34 Cal.3d 441, 453-454 [required act for an attempt must be directed towards immediate consummation of the crime]; People v. Jones (1999) 75 Cal.App.4th 616, 627; People v. Cook (1998) 61 Cal.App.4th 1364, 1371.) Our Supreme Court held "Under general attempt principles, commission of an element of the crime is not necessary. [Citation.] As such, neither a completed theft [citation] nor a completed assault [citation] is required for attempted robbery. [Citation.]" (People v. Medina, supra, 41 Cal.4th at p. 694; see People v. Bonner (2000) 80 Cal.App.4th 759, 764 [the defendant whose plan to rob hotel manager was thwarted when a maid and housekeeper entered the laundry room where he hid was properly found guilty of attempted robbery]; People v. Mullins (1992) 6 Cal.App.4th 1216, 1221.)
In this case, defendant and three other men dressed as police officers forced their way into a private residence. Once inside, defendant and his companions held the residents at gunpoint and ordered them on their knees against the wall. Mr. Chavez hit Alfredo over the head with a mag flashlight. Thereafter, defendant hit Alfredo in the head with a handgun. Many of the residents were "handcuffed" with plastic restraints. When the police arrived, defendant and two others were unable to complete the robbery and fled the scene. Defendant was found hiding in an adjacent back yard. A jacket and pair of gloves tied defendant to the crime through deoxyribonucleic acid profiling. Police badges were also found in adjacent yards. This constitutes substantial evidence that defendant and his codefendants planned to rob the residents of the Vargas home and took steps to further that plan. It was only because of the arrival of the police that the planned robberies were not completed.
Substantial evidence also supports the burglary conviction. Section 459 states, "Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." As set forth above, defendant and his companions entered the Vargas house with the intent to commit robbery. The requisite intent for the robbery may be inferred from the evidence. (People v. Carter, supra, 36 Cal.4th at pp. 1260-1261; see People v. Matson (1974) 13 Cal.3d 35, 41 ["Although the People must show that a defendant charged with burglary entered the premises with felonious intent, such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable. [Citations.] When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal."]; People v. Moody (1976) 59 Cal.App.3d 357, 363.) Our Supreme Court has held, "`There is rarely direct evidence of a defendants intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendants actions. [Citation.] . . . [Citation.]" (People v. Smith (2005) 37 Cal.4th 733, 736, quoting, People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1225; People v. Lashley (1991) 1 Cal.App.4th 938, 946.) The aforementioned evidence discussed in connection with the attempted robbery counts also supports the burglary verdict.
B. The Trial Court Did Not Have A Sua Sponte Duty to Instruct With CALCRIM
No. 374
Defendant argues that the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 374 on dog tracking evidence because he was discovered by Officer Peters dog near the Vargas home. A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684; People v. Mayberry (1975) 15 Cal.3d 143, 151.)
CALCRIM No. 374 states: "You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant [or a location]. Before you may rely on dog tracking evidence, there must be: [¶] 1. Evidence of the dogs general reliability as a tracker; [¶] AND [¶] 2. Other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [¶] In deciding the meaning and importance of the dog tracking evidence, consider the training, skill, and experience, if any, of the dog, its trainer, and its handler, together with everything else that you learned about the dogs work in this case."
Three California appellate court cases discuss the admissibility of canine "tracking" evidence. In People v. Craig (1978) 86 Cal.App.3d 905, 910-911, a "trained police dog" followed a scent from the car of a robbery suspect to the location where the defendant had been detained. Our colleagues in the Court of Appeal for the Third Appellate District found the testimony of a dog trainer regarding the specific dogs training, ability, and record of reliability was determinative of the evidences admissibility. (Id. at pp. 915-917.) In People v. Malgren (1983) 139 Cal.App.3d 234, 237, an officer and his tracking dog responded to a burglary call, where the victims had returned home to find someone running down a hall and into the backyard. The dog was brought into the house. Thereafter, the dog ran into a bedroom and out the same door the suspect used. The dog located the defendant about 35 minutes later some .7 of a mile from the home. Our colleagues in the Court of Appeal for the First Appellate District held: "[T]he following must be shown before dog trailing evidence is admissible: (1) the dogs handler was qualified by training and experience to use the dog; (2) the dog was adequately trained in tracking humans; (3) the dog has been found to be reliable in tracking humans; (4) the dog was placed on the track where circumstances indicated the guilty party to have been; and (5) the trail had not become stale or contaminated. [Citations.]" (People v. Malgren, supra, 139 Cal.App.3d at p. 238.)
Finally, in People v. Gonzales (1990) 218 Cal.App.3d 403, 406, a qualified handler and tracking dog followed the trail of a suspect who was found hiding in a vineyard less than a mile from the burglarized home. Our colleagues in the Court of Appeal for the Fifth Appellate District held that although dog tracking evidence must be corroborated, "[T]he corroborating evidence need not, standing alone, link a defendant to the crime, but rather, when considered with all of the other evidence, including the dog-tracking evidence, allows assurance that the inferences we draw from any of the various pieces of circumstantial evidence, including the dog-tracking evidence, are correct." (People v. Gonzales, supra, 218 Cal.App.3d at p. 414; see also People v. Mitchell (2003) 110 Cal.App.4th 772, 787.)
As defendant concedes, the facts in this case differ slightly from those of these three cases because rather than using an existing scent from the crime scene, Officer Peters dog was trained to search for outstanding suspects by human scent and more specifically for individuals who are nervous or scared and emit an enhanced scent. Officer Peters dog found defendant hiding in the neighboring backyard. Defendant concludes that without CALCRIM No. 374 to guide them, "[I]t is reasonably probable that the jury, in `awe of the animals apparent powers, concluded that [he] was involved in the burglary based on Adjos discovery of [him]." The Attorney General argues the dogs response only demonstrates defendant was hiding in the nearby backyard. The dogs response did not directly prove that defendant was a perpetrator according to the Attorney General.
We need not decide whether there was a sua sponte duty to instruct pursuant to CALCRIM. No. 374. Any purported error in failing to give the dog tracking instruction was harmless. As set forth above, there was other evidence than defendant was involved in the burglary and attempted robberies. Both Alfredo and Pedro identified defendant as one of the perpetrators. Defendant pistol whipped Alfredo. A dark windbreaker jacket similar to those worn by the assailants and containing plastic restraints and a pair of gloves were found in the general area where defendant was discovered. Defendant could not be eliminated as a source of the deoxyribonucleic acid profile samples taken from the jacket. And defendant was a major contributor of the deoxyribonucleic acid sample found in the gloves. It is not reasonably probable that a more favorable verdict would have resulted absent the instruction. (People v. Carter (2003) 30 Cal.4th 1166, 1219; People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Mitchell (1994) 30 Cal.App.4th 783, 807-808; People v. Malgren, supra, 139 Cal.App.3d at p. 242.)
C. Defendant Was Not Denied Effective Assistance of Counsel
1. Factual and procedural background
Defendant argues that he was denied effective assistance of counsel. Defendant argues no objection was made to testimony concerning Mr. Chavezs out-of-court statements to the police. Defendant argues there could be no tactical reason for failing to object to this Sixth Amendment violation of his right to confront witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Crawford v. Washington (2004) 541 U.S. 36, 68; Lilly v. Virginia (1999) 527 U.S. 116; Richardson v. Marsh (1987) 481 U.S. 200, 211; Bruton v. United States (1968) 391 U.S. 123, 126-127; People v. Aranda (1965) 63 Cal.2d 518, 528-530.) Mr. Chavezs statements in question related to his expression of remorse and indication that he received $3,000 "for his efforts" in this offense. Defendant opines that the statement implicated him in the offense.
Officer Harlan Taylor testified at trial. Officer Taylor took custody of Mr. Chavez at the scene of the crime. Mr. Chavez was placed in Officer Taylors patrol car. Officer Taylor testified that on the way to the police station, Mr. Chavez was sobbing and crying. Mr. Chavez spontaneously said, "`Sorry, sorry, Ive only done this twice." Mr. Chavez also said, "`It was for my family in El Salvador[ . . . .]" and that he was paid $3,000. The jury was later instructed: "I instructed you during the trial that certain evidence was admitted only against a certain defendant. [¶] Specifically, the evidence that Defendant Espinoza bailed out, failed to appear for a court date, and was rearrested, is admissible only as to defendant Espinoza. You must not consider that evidence against Defendant Chavez. [¶] You have heard evidence that Defendant Raul Chavez made a statement before the trial. You may consider that evidence only against him, and not against any other defendant."
2. Trial Counsel Was Not Ineffective
Our standard of review in determining whether defendant was denied effective assistance of counsel was specified by the Supreme Court as follows: `"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.) (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶] . . . ` . . . "In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.) (People v. Williams, supra, 16 Cal.4th at p. 215.)" (People v. Majors (1998) 18 Cal.4th 385, 403.) The Supreme Court has also held: "Moreover, `[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) Counsel need not pursue futile or meritless objections or argument. (People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Ochoa (1998) 19 Cal.4th 353, 432; People v. Lewis (1990) 50 Cal.3d 262, 289.) Our Supreme Court has determined that in ruling on the effectiveness of counsel, the reviewing court must also consider the record of what counsel did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)
Our Supreme Court has explained the scope of constitutional confrontation rights, "[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant." (Richardson v. Marsh, supra, 481 U.S. at p. 207, citing Bruton v. United States, supra, 391 U.S. at pp. 135-136; see also People v. Aranda, supra, 63 Cal.2d at pp. 530-531 [to avoid prejudicing confrontation rights, trial court should delete portions of an extrajudicial statement implicating a codefendant, exclude statement altogether, or order separate trials].) The statements at issue here do not implicate defendant. Rather, the statements incriminated only Mr. Chavez and made no reference to defendant. As a result, counsel had no duty to interpose a meritless objection to the introduction of Mr. Chavezs statements. (People v. Prieto, supra, 30 Cal.4th at p. 261; People v. Ochoa, supra, 19 Cal.4th at p. 432; People v. Adanandus (2007) 157 Cal.App.4th 496, 515.) Also, defendant has failed to establish the failure to object was prejudicial. (People v. Majors, supra, 18 Cal.4th at p. 403; People v. Williams, supra, 16 Cal.4th at p. 215.) As noted, there was compelling eyewitness, scientific, and circumstantial evidence of defendants guilt. Further, the jury was instructed not to consider them against defendant. The California Supreme Court has consistently stated that on appeal: "`"Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case." [Citation.]" (People v. Carey (2007) 41 Cal.4th 109, 130, quoting People v. Lewis (2001) 26 Cal.4th 334, 390; People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622, 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Thus, defendant is not entitled to reversal premised on ineffective assistance of counsel grounds.
D. Sentencing
1. Court Security Fees
The Attorney General argues the trial court should have imposed a $20 section 1465.8, subdivision (a)(1) court security fee as to each of the three counts for which defendant was convicted. We agree. (See People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one court security fee. However, seven additional section 1465.8, subdivision (a)(1) fees shall be imposed upon remittitur issuance.
2. Imposition of sentence as to counts 2 and 3
The parties are in agreement that the trial court improperly stayed the sentence in counts 2 and 3 pursuant to section 654, subdivision (a) before imposing a specific sentence. We agree. The trial court had a duty to select specific terms as to counts 2 and 3 prior to staying the sentence. The California Supreme Court has held where two counts are subject to the provisions of section 654, subdivision (a), the proper procedure is to impose sentence for both of the counts and then stay sentence for one of them. (People v. Pearson (1986) 42 Cal.3d 351, 359-361; People v. Watkins (1994) 26 Cal.App.4th 19, 25, fn 1; People v. Jenkins (1965) 231 Cal.App.2d 928, 934-935.) The trial court clearly intended to impose a consecutive term of 1 year plus a 3-year, 4-month sentence for firearm use on counts 2 and 3. Upon remittitur issuance, the judgment is to be modified as to counts 2 and 3 to impose a one year term plus a three year, four month term for the firearm use enhancement on each count. Those sentences are to remain stayed.
3. Presentence custody credits
Following our request for further briefing, the parties agree that the trial court awarded excessive presentence conduct credits. We agree. The failure to award the proper amount of credits is a jurisdictional error which may be raised at any time. (People v. Reeves (2005) 35 Cal. 4th 765, 774; People v. Karaman (1992) 4 Cal.4th 335-345, fn. 11, 349, fn. 15; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Duran (1998) 67 Cal.App.4th 267, 270; People v. Acosta (1996) 48 Cal.App.4th 411, 415-428.) Defendant was convicted of assault with a deadly weapon (§245, subd. (a)(2)), and first degree burglary (§§ 459, 460, subd. (a)) as defined in section 667.5, subdivisions (c)(8) and (c)(21). Section 2933.1, subdivision (c), limits the amount of presentence conduct credits for those convicted of violent felonies to 15 percent. Defendant received an incorrect award of presentence credits. He should have received 464 days of actual credit plus 69 days of conduct credit. (§2933.1, subd. (c).) Accordingly, his total credits are 533 days. The abstract of judgment must be corrected in this regard. The trial court is to personally insure the abstract of judgment is corrected to full comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of seven additional Penal Code section 1465.8, subdivision (a)(1) court security fees and to correct the presentence custody credits as set forth above. Upon remittitur issuance, the trial court is to impose sentences as to counts 2 and 3 as described in the body of this opinion and then stay them pursuant to Penal Code section 654, subdivision (a). Upon resentencing and remittitur issuance, the clerk of the superior court is directed to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur:
ARMSTRONG, J.
MOSK, J.