Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD216124, Desiree Bruce-Lyle, Judge.
McCONNELL, P. J.
INTRODUCTION
A jury convicted Todd Laroune Gay of 11 counts of commercial burglary (Pen. Code, § 459; counts 1, 5, 8, 12, 16, 20, 24, 28, 32, 36, 40), 11 counts of grand theft from a person (§ 487, subd. (c); counts 2, 6, 9, 13, 17, 21, 25, 29, 33, 37, 41), three counts of grand theft of over $400 (§ 487, subd. (a); counts 7, 11, 15), two counts of theft of over $400 from an elder (§ 368, former subd. (d); counts 10, 14), eight counts of theft of $400 or less from an elder (§ 368, former subd. (d); counts 3, 18, 22, 26, 30, 34, 38, 42), and eight counts of petty theft (§ 484; counts 4, 19, 23, 27, 31, 35, 39, 43). In addition, Gay admitted having five prior felony convictions, elevating his petty theft convictions to felony convictions. (§ 666.) He also admitted having five prior prison convictions. (§ 667.5, subd. (b).) The trial court sentenced Gay to an aggregate term of 12 years in prison.
Further statutory references are also to the Penal Code unless otherwise stated.
At the time of Gay's crimes, section 368 provided for thefts of more than $400 from an elder to be punished as felonies and thefts of $400 or less to be punished as misdemeanors. (§ 368, former subd. (d); Stats. 2004, ch. 893, § 1.) The statute has since been amended to provide for thefts of more than $950 to be punished as felonies and thefts of $950 or less to be punished as misdemeanors. (§ 368, subd. (d); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 9, eff. Jan. 25, 2010.)
Gay appeals, contending there is insufficient evidence to support his convictions for six counts of grand theft from a person, two counts of grand theft of over $400, and one count of theft of over $400 from an elder. In addition, he contends the trial court erred in denying his posttrial motion to discharge his defense counsel and appoint another attorney to investigate his ineffective assistance of counsel claims. He also contends he is entitled to additional days of presentence behavior credit under recent amendments to section 4019, which he contends applies retroactively to this case.
The People concede and we agree there is insufficient evidence to support Gay's convictions for one count of grand theft of over $400, as the evidence related to that count shows the amount stolen was under $400. We, therefore, reverse the conviction for this count. At the People's request and without objection from Gay, we reduce the conviction to petty theft with a prior.
In addition, we conclude the recent amendments to section 4019 apply retroactively to this case. We, therefore, remand the matter to the trial court to determine any additional days of presentence credit to which Gay may be entitled and to modify the abstract of judgment accordingly. At the People's request and with Gay's concurrence, we further direct the trial court to modify the abstract of judgment to show the trial court imposed, rather than stayed, a consecutive eight-month sentence for Gay's conviction for count 28 (commercial burglary). We affirm the judgment in all other respects.
BACKGROUND
Prosecution Evidence
Victim Betty Sisk (Counts 32-35)
Sometime between noon and 1:50 p.m. on May 7, 2008, 81-year-old Sisk was shopping at a grocery store on Fletcher Parkway in El Cajon. She had placed her purse in the child seat of her shopping cart. As she shopped at the deli counter, she noticed Gay, who was nicely dressed. When she walked over to the fresh meat counter, Gay followed her and came up alongside her cart. While holding onto her cart, Sisk bent over to pick up a package of meat. When she stood back up, Gay was gone. A few minutes later at the checkout stand, Sisk realized her wallet was missing. It contained $60, her driver's license, credit cards, and other personal items. Sisk identified Gay at trial and in a photographic lineup.
Victim Joann Vunduk (Counts 24-27)
Mid-afternoon on May 10, 2008, 67-year-old Vunduk was shopping at a grocery store on Mission Gorge Road. She had placed her purse in the child seat of her shopping cart. She pushed her shopping cart up to one of the produce stands. With the child seat of her shopping cart close to her left side, Vunduk reached down for something. At the same time, Gay, who also appeared to be shopping in the produce department, pushed his shopping cart up to the same produce stand close to Vunduk. As he did so, he reached inside her purse with his left hand and took out her wallet. It contained approximately $40, her driver's license, credit cards, and other personal items.
Victim Olive Hamreus (Counts 28-31)
Late afternoon on July 3, 2008, 79-year-old Hamreus was shopping at a grocery store on Bernardo Plaza Drive. She had placed her purse in the child seat of her shopping cart. With her right hand and arm, she maintained contact with the left front of her shopping cart and reached into a freezer case for an item. As she did so, Gay came up next to her and took her wallet from her purse. After hearing someone tell her to watch her purse, Hamreus turned around and realized her wallet was gone. It contained $70, her driver's license, and other personal items.
Victim Doris Cook (Counts 36-39)
Mid-afternoon on July 14, 2008, 76-year-old Cook was shopping at a discount department store inside Grossmont Center. She had placed her open purse in the child seat of her shopping cart. While in the shoe department, Cook noticed Gay, who was very nicely dressed, walking back and forth down the aisle. As she reached for a pair of white sandals, Gay reached over and across her chest with his arm and picked up a bright yellow high-heel sandal. Cook turned around and looked at him. Gay said, "Oh, that's for my wife. I saw you looked at me kind of funny." He then put the yellow sandal back and left. Cook put the white sandals in her shopping cart and headed to the checkout stand. When she got there, she realized her wallet was gone. It contained $100, her identification, ATM cards, numerous credit cards and other personal items. Cook identified Gay at trial and in a photographic lineup.
Victim Joy Sturdivant (Counts 5-7)
On August 6, 2008, 74-year-old Sturdivant was shopping at a grocery store on Bernardo Center Drive. She had placed her open purse in the child seat of her shopping cart. As she looked at cards in the greeting card aisle, she kept her shopping cart directly by her left side, maintaining contact with it using her left arm and left hand. Gay walked down the same aisle and also started looking at greeting cards. He reached with his right hand for a greeting card and pushed his body between her and her shopping cart, requiring her to let go of it. While his body blocked her view, he used his left hand to take her wallet out of her purse and then he walked away. As Sturdivant continued to look at greeting cards, a woman came by and warned her not to leave her purse in her shopping cart because her wallet could be stolen. Sturdivant looked inside her purse and realized her wallet was missing. It contained approximately $20. Sturdivant identified Gay at trial.
Victim Barbara Lehar (Counts 40-43)
Around noon on August 12, 2008, 69-year-old Lehar was shopping at a grocery store on Clairemont Mesa Blvd. She had placed her purse in the child seat of her shopping cart. As she shopped in the electrical department, Gay bumped her, pushed her aside, and reached over her for some electrical cords, causing her to move her cart and shift where she was standing to get out of his way. When she later reached the checkout stand, she realized her wallet was missing. It contained over $200, her driver license, credit cards, and other personal items. Lehar identified Gay in a photographic lineup, but did not identify him at trial.
Victim Rita Tarango (Counts 8-11)
On August 24, 2008, 70-year-old Tarango was shopping at a grocery store. She had placed her purse in the child seat of her shopping cart. She went to the frozen food section, where Gay appeared to be shopping. After chatting briefly with Gay, Tarango picked up an item from a freezer case and looked at it while resting her left arm on the handle of her shopping cart. Gay reached between her and her shopping cart with his right hand, requiring her to back away and let go of the cart As his body blocked her view of the cart, he used his left hand to take her wallet from her purse. When she reached the checkout stand, Tarango realized her wallet was missing. Her wallet contained over $700 she had won at a casino the day before, over $100 for grocery shopping, her driver's license, and credit cards. Tarango identified Gay at trial, at the preliminary hearing, and in a photographic lineup.
Victim Adriann Brtek (Counts 16-19)
Around midday on September 2, 2008, 74-year-old Brtek was shopping at a grocery store on Sports Arena Boulevard. She had placed her purse in the child seat of her shopping cart. Brtek went to the produce department and looked at packaged lettuce. She kept her shopping cart directly in front of her and held on to it with her left hand. Gay came up beside her and reached between her and her shopping cart with his right hand, forcing her to release the cart. Gay then used his left hand to take her wallet from her purse and quickly walked away. Brtek immediately realized her wallet had been stolen. She chased Gay, but did not catch him. Her wallet contained approximately $150, military identification, a check from her checking account, credit cards, and other personal items. Brtek identified Gay in court.
Victim Doris Burney (Counts 12-15)
Around midday on September 4, 2008, 67-year-old Burney was shopping at a grocery store on Mission Gorge Road. She had placed her purse in the child seat of her shopping cart. She went to the cookie counter. Gay was also there. She reached up for some cookies and he reached up, too. He stood so close to her she thought she had bumped him, and she apologized to him. After she selected some cookies, she continued her shopping. Before she went to the checkout stand, she looked inside her purse and realized her billfold was missing. It contained $900, her German driver's license, and her personal items. Burney identified Gay at trial and in a photographic lineup.
Victim Marilyn Stout (Counts 20-23)
Late morning on September 9, 2008, 76-year-old Stout was shopping at a grocery store on Mission Center Road. She had placed her purse in the child seat of her shopping cart. She went to the strawberry display and parked her cart sideways to her right, with the child seat containing her purse closest to her. Gay came up between her and her cart, pushed her to the side, and reached for a basket of strawberries with one hand. While blocking her view of her purse, Gay used his other hand to remove her wallet from her purse. Gay left the store without buying any groceries.
When Stout reached the checkout stand, she realized her wallet was missing. It contained $70, identification cards, credit cards, and phone cards. Stout could not identify Gay at trial, but she was able to identify him in a photographic lineup.
Victim Virginia McAdams (Counts 1-4)
Ernest Becerra managed a bank branch located inside a grocery store on Fletcher Parkway in El Cajon. Early in the afternoon on September 16, 2008, Becerra was outside the store on a break when he saw Gay go inside. On a prior occasion, Becerra had seen Gay pretend to shop in the store while watching and following an elderly woman. Becerra notified store employees a suspected purse thief was inside. Becerra then waited outside for Gay.
Meanwhile, 76-year-old McAdams was shopping inside the store. She had placed her open purse in the child seat of her shopping cart. As she was shopping in the pet food aisle, Gay walked by her with a shopping cart and stopped 10 or 15 feet away. He appeared to be looking at dog food on the top shelf and started walking toward her. Before she knew it, he was right next to her. He reached over her to get some dog food on the shelf, causing her to lean over to the side. The two briefly engaged in small talk, then Gay walked away.
McAdams continued to shop, but Gay abandoned his shopping cart and quickly left the store without buying anything. Becerra followed Gay as he drove away. After getting the vehicle description and a partial license plate number, Becerra returned to the store and gave the information to the store manager, who contacted the police.
By then, McAdams had reached the checkout stand and noticed her wallet was missing. It contained nearly $200 in addition to identification, gift cards, and some other personal items.
A police officer determined the car Becerra followed was registered to Gay. Becerra identified Gay at trial and in a photographic lineup. McAdams identified Gay at trial and at the preliminary hearing.
Police detectives subsequently arrested Gay and searched his home. They found several items of clothing that matched the clothes Gay could be seen wearing in surveillance videos of the thefts.
Defense Evidence
On the day Gay stole her wallet, McAdams was not able to identify Gay in a photographic lineup.
DISCUSSION
I
Gay contends we must reverse his convictions for grand theft from a person as to victims Sturdivant (count 6), Burney (count 13), Vunduk (count 25), Hamreus (count 29), Cook (count 37), and Lehar (count 41) because there is insufficient evidence he took their wallets from their persons. We conclude there is no merit to this contention.
"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]' [Citation.] ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise." ' " (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)
The crime of theft has two degrees: petty theft and grand theft. (§ 486; In re Jesus O. (2007) 40 Cal.4th 859, 862 (Jesus O.).) A person commits grand theft by, among other means, taking property "from the person of another." (§ 487, subd. (c); Jesus O., supra, at p. 861.) Generally, to satisfy the "from the person" requirement, the property taken must have been " 'actually upon or attached to the person, or carried or held in [the person's] actual physical possession.' " (Jesus O. at p. 863, quoting People v. McElroy (1897) 116 Cal. 583, 586 (McElroy).) Property is "attached to the person" if the person keeps in continual physical contact with the property to maintain dominion and control over it. (Jesus O. at p. 864; People v. Huggins (1997) 51 Cal.App.4th 1654, 1657-1658 (Huggins).) Property is also "attached to the person" if the person is transporting the property in a shopping cart the person is physically grasping. (Jesus O. at p. 864; In re George B. (1991) 228 Cal.App.3d 1088, 1092.)
Property is not "attached to the person" if the person voluntarily lays the property aside and ceases physical contact with the property, even if the property remains in the person's immediate presence and under the person's actual control. (Jesus O., supra, 40 Cal.4th at p. 865; People v. Williams (1992) 9 Cal.App.4th 1465, 1471-1472 (Williams).) However, property initially "attached to the person, " remains so for purposes of the "from the person" requirement if the defendant, with the intent to steal, causes the property to become detached from the person, and then takes the property. (Jesus O., supra, 40 Cal.4th at p. 861; see also, e.g., People v. Smith (1968) 268 Cal.App.2d 117, 120; People v. Carroll (1912) 20 Cal.App. 41, 46.)
1
In this case, surveillance video evidence shows that the wallets of victims Sturdivant and Hamreus were initially attached to their persons by virtue of their physical contact with the shopping cart containing their purses in which their wallets lay. (Jesus O., supra, 40 Cal.4th at p. 864; In re George B., supra, 228 Cal.App.3d at p. 1092.) The evidence further shows the wallets only became detached from these victims' persons because Gay, inferably with the intent to steal, caused the victims to let go of their shopping carts by reaching between the victims and their carts. Gay then took the wallets while his body blocked the victims' views. Consequently, we conclude there is sufficient evidence to support Gay's convictions for grand theft from a person as to these victims. (Jesus O., supra, 40 Cal.4th at p. 861; see also, e.g., People v. Smith, supra, 268 Cal.App.2d at p. 120; People v. Carroll, supra, 20 Cal.App. at p. 46.)
2
There is no surveillance video evidence showing the thefts of the wallets belonging to victims Burney, Cook, and Lehar, and the prosecutor did not specifically ask them whether they were touching their shopping carts when they encountered Gay. Nonetheless, Gay's encounters with victims Sturdivant, Hamreus, Tarango, Brtek, and Stout show he consistently used a reach, bump, and block technique when he needed to physically separate a victim from her shopping cart in order to take her wallet from her purse. Since Gay used a similar technique with Burney, Cook, and Lehar, the jury could reasonably infer these victims were touching their shopping carts when they encountered Gay. Therefore, we conclude there is sufficient evidence to support Gay's convictions for grand theft from a person as to these victims.
3
Gay did not use a reach, bump, and block technique with Vunduk, and surveillance video evidence shows she was not holding onto her shopping cart when Gay took her wallet. Instead, the surveillance video evidence shows Gay took her wallet during an approximately six-second period in which she was reaching down for something with both of her hands. Nonetheless, we conclude the "from the person" requirement was met.
Immediately before Vunduk reached down, she was holding onto her shopping cart. While she was reaching down, she kept her shopping cart close by her left side, with the child seat containing her purse positioned directly next to her left hip. Immediately after she stood back up, she resumed holding her shopping cart. These facts are analogous to the facts in Huggins, supra, 51 Cal.App.4th 1654.
Vunduk briefly left her cart unattended at an earlier point in time not relevant to this appeal.
We could not determine from the surveillance video evidence whether any part of Vunduk's body was touching her shopping cart while she was reaching down. We could determine, however, that the cart was close enough to her body for this to be possible, if not probable.
In Huggins, the victim sat down in a chair at a nail salon and placed her purse on the floor next to and touching her foot so she knew where it was. The defendant ran toward her, grabbed her purse, and ran out the door. A jury subsequently convicted the defendant of grand theft from a person. (Huggins, supra, 51 Cal.App.4th at p. 1656.) As here, the defendant argued on appeal there was insufficient evidence to support the "from a person" requirement. (Id. at pp. 1656-1657.) The appellate court, however, concluded there was sufficient evidence to support this requirement because the victim's foot remained in continual contact with her purse and she placed her purse next to her foot to maintain dominion and control over it. (Id. at p. 1657).
While it is not clear in this case whether Vunduk's body remained in continual contact with her shopping cart for the six seconds she was reaching down (see footnote 3, ante), it is clear she kept the cart as close to her body as reasonably possible during this time and was maintaining dominion and control over it when Gay took her wallet. Accordingly, we conclude, as the appellate court did in Huggins, there is sufficient evidence to support the "from the person" requirement as to Vunduk.
McElroy, supra, 116 Cal. 583, upon which Gay relies, is distinguishable. In McElroy, the victim used his trousers as a pillow. His wallet containing $17 was in one of the pockets of his trousers. The defendant took the trousers and money as the victim slept. The defendant was subsequently convicted of grand larceny. (Id. at p. 584.) The California Supreme Court reversed the conviction, concluding there was insufficient evidence to show defendant had taken the money from the victim's person as required for grand larceny. (Id. at pp. 586-587.)
The Supreme Court explained that the purpose of the "from the person" requirement "was to protect persons and property against the approach of the pickpocket, the purse snatcher, the jewel abstracter, and other thieves of like character who obtain property by similar means." (McElroy, supra, 116 Cal. at p. 586.) Consequently, to meet the "from the person" requirement, the property taken must have been on or attached to the person, or carried, held, or physically possessed by the person. (Ibid.) The requirement is not met if the property was removed from the person and laid aside, even if the property remained in the presence, constructive control or possession of the owner. (Ibid.) As the evidence showed the victim in McElroy had effectively laid his trousers aside to use them as part of his bed while he slept, the Supreme Court concluded the "from the person" requirement was not met in that case. (Id. at p. 587.)
In this case, we cannot conclude from Vunduk's six-second release of her shopping cart to reach down for something that she effectively laid her cart aside. Instead, the evidence shows she maintained actual physical possession of the cart during the six-second period by keeping the cart close to her left side and the child seat adjacent to her left hip while she was reaching down, and by immediately grasping the cart once she stood back up.
Williams, supra, 9 Cal.App.4th 1465, is similarly distinguishable. In Williams, one of the victims threw her purse onto the passenger seat of her car before getting into the driver's seat. The defendant approached the victim, pushed her back into her seat, and grabbed her purse from the passenger seat. (Id. at pp. 1468-1469.) A jury subsequently convicted the defendant of grand theft from a person. (Id. at pp. 1468, 1471.) The appellate court reversed the conviction, concluding the "from a person" requirement had not been met because the victim had laid aside her purse before the defendant took it. (Id. at pp. 1471-1472.) For the reasons previously stated, the evidence in this case does not show Vunduk pushed aside her shopping cart before Gay stole her wallet from it. Therefore, Williams is inapposite and does not compel reversal of Gay's conviction for grand theft from Vunduk's person.
II
Gay next contends there is insufficient evidence to support his convictions for grand theft of more than $400 as to victims Sturdivant (count 7) and Tarango (count 11), and theft of more than $400 from an elder as to victim Tarango (count 10). We apply the same standard of review detailed in part I, ante.
A
When the prosecutor asked Tarango what had been taken from her wallet, she testified that the day before the theft, "I had gone to the casino, and I had won over $700. And I had over a hundred to do my grocery shopping." (Italics added.) A jury could reasonably infer from this testimony Tarango had over $800 in her wallet when Gay took it. Although a jury could have possibly inferred from this testimony that Tarango only had $100 remaining from her $800 casino winnings in her wallet, the existence of competing inferences is not sufficient to warrant reversal of a conviction. " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Burney (2009) 47 Cal.4th 203, 253.) Accordingly, we conclude there is sufficient evidence to support Gay's convictions for counts 10 and 11.
While we did not base our analysis on this fact, we note the trial court awarded Tarango $825 in victim restitution at the sentencing hearing.
B
The People concede and we agree there is insufficient evidence to support Gay's conviction for grand theft of more than $400 as to victim Sturdivant because she testified she only had $20 in her wallet when Gay took it. Rather than reverse the conviction and remand the matter to the trial court for further proceedings on this count, the People request we reduce the conviction to petty theft with a prior because petty theft is a necessarily included offense of grand theft (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1116) and Gay admitted to having prior felonies, which would elevate petty theft to petty with a prior (§ 666). Gay has not opposed this request and we conclude it is a proper course under the circumstances. (People v. Stuedemann (2007) 156 Cal.App.4th 1, 9, fn. 6 [an appellate court may reduce a conviction to a lesser included offense if the evidence supports the lesser offense, but not the greater].)
III
A
After his conviction, Gay wrote the trial court two letters complaining about his trial counsel's representation. Of specific relevance to this appeal, Gay complained his trial counsel did not investigate and present evidence he was incarcerated at the time of some thefts the police initially believed were part of the same spree, did not investigate and present evidence he was at work during some of the thefts, and did not adequately cross-examine and impeach witnesses regarding their identifications of him as the thief. He also complained "jury personnel" saw him in shackles during a lunch break and his counsel would not address the matter with the trial court.
The trial court treated Gay's letters as a motion to replace counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and conducted an in camera hearing. During the hearing, the trial court allowed Gay to detail his concerns and Gay reiterated most of the complaints contained in his letter. Trial counsel then explained he did not present evidence that Gay was incarcerated at the time of the earlier thefts thought to be part of the same spree because Gay was not charged with those thefts. In addition, the trial court had previously excluded evidence of Gay's prior convictions, including prior similar theft convictions, and trial counsel did not want to open the door for admission of this evidence. Trial counsel also explained Gay told him about the possible work alibi for the first time during trial, and he did not cross-examine witnesses about their identifications in the manner Gay wanted because he believed such cross-examination would amount to arguing with the witnesses. Trial counsel further explained he believed it was better to have a witness locked into an inconsistent statement than to provide an opportunity for the prosecutor to rehabilitate the witness during redirect examination.
After considering Gay's concerns and trial counsel's responses, the trial court denied the motion. The trial court found that, although trial counsel had made tactical decisions with which Gay disagreed, trial counsel had not done anything warranting his replacement. Gay contends the trial court's failure to appoint new counsel requires reversal of his conviction.
B
" 'The law governing a Marsden motion "is well-settled. 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " ' " (People v. Jackson (2009) 45 Cal.4th 662, 682.) We review a trial court's decision declining to replace appointed counsel for abuse of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 803; People v. Cole (2004) 33 Cal.4th 1158, 1190.)
C
On appeal, Gay restates many of the inadequate representation claims he made below. He also raises many new inadequate representation claims. We address each claim below. None of them persuades us that the trial court abused its discretion in this case.
1
Regarding the claims raised below, the record does not clearly show trial counsel provided inadequate representation by deciding not to present evidence Gay was incarcerated at the time of earlier, uncharged thefts initially thought to be part of the same spree. A tactical decision not to present alibi evidence does not constitute ineffective assistance where counsel reasonably fears opening the door to other incriminating evidence. (See, e.g., In re Alcox (2006) 137 Cal.App.4th 657, 665-667.) While Gay did not agree with the wisdom of trial counsel's decision, tactical disagreements are not sufficient grounds for replacing appointed counsel. (People v. Jackson, supra, 45 Cal.4th at p. 688; People v. Cole, supra, 33 Cal.4th at p. 1192.)
In addition, the record does not clearly show trial counsel provided inadequate representation by failing to investigate and present evidence of a work alibi, or by failing to seek a continuance to investigate and present such evidence. Defense counsel generally has a duty to make reasonable investigations, or to make reasonable decisions that particular investigations are unnecessary. (In re Thomas (2006) 37 Cal.4th 1249, 1258.) We assess defense counsel's decisions not to investigate for reasonableness under all the circumstances, giving great deference to defense counsel's judgment. (Ibid.)
Here, Gay did not supply the trial court with any details of his purported employment or the counts to which the work alibi applied. Moreover, trial counsel explained to the court that Gay mentioned the possibility of a work alibi for the first time during trial, which casts doubt on its veracity and viability. Defense counsel is not obligated to present a defense lacking credible evidentiary support. (See, e.g., People v. D'Arcy (2010) 48 Cal.4th 257, 286.) Although Gay disputed trial counsel's explanation and claims on appeal the explanation was not credible, "[t]o the extent there was a credibility question between defendant and counsel at the hearing, the court was 'entitled to accept counsel's explanation.' " (People v. Smith (1993) 6 Cal.4th 684, 696.) Furthermore, besides the two letters complaining of trial counsel's performance, Gay wrote the trial court two letters asking for lenient sentencing. In the latter letters, Gay informed the court he had difficulty obtaining and maintaining employment because of his criminal history. The trial court had reviewed these letters before the Marsden hearing. Thus, the court was aware of the inconsistencies in Gay's statements about his employment when it was deciding whether to accept trial counsel's explanation.
The record also does not clearly show trial counsel provided inadequate representation by failing to address Gay's concerns that "jury personnel" saw him in shackles during the trial. While Gay included this concern in his letters to the trial court, he did not describe when and under what circumstances the incident occurred and he did not reiterate it at the Marsden hearing. Presumably because Gay did not reiterate the concern at the hearing, neither trial counsel nor the trial court specifically addressed it for the record. However, had trial counsel brought the incident to the court at the time it occurred, the court would have undoubtedly offered to address the matter by giving a curative instruction. It is not unusual for competent defense counsel to decide as a tactical matter not to seek such an instruction if counsel believes the instruction would further and unduly highlight the incident. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206 [defense counsel may reasonably choose not object to a matter to avoid drawing the jurors' attention to it].)
2
Regarding the inadequate representation claims raised for the first time on appeal, we need not decide whether Gay forfeited these claims because, for the reasons explained below, we conclude none of them has merit.
a
In the context of explaining why he arrested Gay for the thefts and why he impounded certain clothing items from Gay's home, a police detective testified he had reviewed the store surveillance video evidence several times, had seen pictures of Gay, had heard descriptions of Gay, and had seen the way Gay walks, carries himself, and moves his head. Based on these observations and information, the detective stated he believed Gay was the person depicted in the store surveillance videos. Gay's trial counsel did not object to the detective's testimony; however, he thoroughly cross-examined the detective about his observations and conclusion.
Gay contends trial counsel's failure to object to the detective's testimony amounted to inadequate representation warranting his replacement. However, failure to object to evidence rarely demonstrates inadequate representation. (People v. Abilez (2007) 41 Cal.4th 472, 493, fn. 3; People v. Dickey (2005) 35 Cal.4th 884, 914.) In addition, it does not appear the detective's testimony was objectionable in that the prosecution offered the testimony, not as an improper opinion, but to explain why the detective focused his investigation on Gay, rather than some other tall, thin, well-dressed African-American man. Trial counsel's cross-examination questions show he understood the detective's testimony in this manner. Moreover, the prosecutor ensured the jury understood the detective's testimony in this manner by specifically explaining that he did not offer the detective's testimony as evidence the person in the video was Gay. Instead, he explained that the perpetrator's identity was for the jury to decide, and that it did not matter what any of the detectives or counsel thought on the issue. Therefore, trial counsel's failure to object to the detective's testimony did not warrant trial counsel's replacement.
b
Gay similarly contends his attorney provided inadequate representation warranting his replacement because trial counsel failed to challenge the admission of the photographic lineup evidence. To successfully challenge lineup evidence, a defendant must first establish that the lineup procedure was unduly suggestive, and then establish the resulting identification was unreliable under the totality of the circumstances. (People v. Avila (2009) 46 Cal.4th 680, 698; People v. Gonzalez (2006) 38 Cal.4th 932, 942.) To meet the first requirement, the defendant must establish the lineup procedure made him stand out in way that suggested the witnesses should pick him. (Avila, supra, at p. 698; Gonzalez, supra, at p. 943.)
Here, Gay has not identified what aspects of the photographic lineups he believes rendered them unduly suggestive, and we noted nothing unduly suggestive in our review of them. The lineups contain photos with similar backgrounds, showing men of similar age and build with similar complexions and facial features. Although there are minor differences in the men's hairstyles and facial hair, these differences did not render the lineups unduly suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; see also e.g., People v. Cunningham (2001) 25 Cal.4th 926, 990.)
Moreover, although defense counsel did not seek to exclude the photographic lineups as unduly suggestive, he cross-examined the detective who prepared the lineup from which six victims were able to identify Gay, highlighting for the jury the potentially suggestive aspects of lineup. He also cross-examined the detectives and victims about the victims' identifications, including the lineup identifications, highlighting for the jury some inconsistencies and uncertainty in the identifications. A defense attorney does not provide inadequate representation by failing to seek pretrial exclusion of evidence where success is unlikely and challenging the evidence through cross-examination at trial is a legitimate defense strategy. (See, e.g., People v. Montoya (2007) 149 Cal.App.4th 1139, 1150-1151 [defense counsel's failure to make a pretrial challenge to a child's competency to testify not deficient performance where child's disqualification was unlikely and attacking the child's credibility through cross-examination was a legitimate defense strategy].) Accordingly, trial counsel's failure to challenge admission of the photographic lineup evidence did not warrant his replacement.
c
The morning of the first day of trial, the court noted Gay was wearing jail sandals and a jail wristband. Gay contends trial counsel provided inadequate representation warranting his replacement because he failed to ensure Gay was properly dressed out for trial. As the issue was addressed before jury selection commenced and nothing in the record suggests it recurred, the issue did not warrant trial counsel's replacement.
d
At the very end of his closing arguments, the prosecutor stated, "The defendant started out with the presumption of innocence. That is gone now. This case has been proven beyond a reasonable doubt on all counts. I would ask you to find the defendant guilty of all 43 counts. Thank you for your patience during this trial." Gay contends these remarks constitute misconduct and his trial counsel provided inadequate representation warranting his replacement by failing to object to them. However, a defense counsel's failure to object to a prosecutor's remarks will rarely constitutes inadequate representation. (People v. Huggins, supra, 38 Cal.4th at p. 206.) Moreover, the prosecutor's remarks were not objectionable. It is not misconduct for a prosecutor "to ask the jury to believe the prosecution's version of events as drawn from the evidence." (Id. at p. 207.) That is precisely what the prosecutor did here. Accordingly, trial counsel's failure to object to the remarks did not warrant his replacement.
e
Gay contends trial counsel provided inadequate representation warranting his replacement by failing to object to Becerra's testimony about his prior observations of Gay at the grocery store. Again, failure to object to evidence rarely demonstrates inadequate representation. (People v. Abilez, supra, 41 Cal.4th at p. 493, fn. 3; People v. Dickey, supra, 35 Cal.4th at p. 914.) In addition, Becerra's testimony about his prior observations was not objectionable as the testimony was carefully limited and offered simply to show how Becerra recognized Gay on the date of the McAdams theft.
Although Gay characterizes Becerra's testimony as about "a similar theft, " Becerra did not specifically testify a theft occurred on the prior occasion. He testified he saw Gay "tailing an older lady." A few minutes later, the store manager and the lady, whom Becerra referred to as "the victim, " went to Becerra and asked him if he had seen anything suspicious. Becerra told them he "had seen something suspicious, " but he "didn't actually see anything occur."
f
Finally, Gay contends trial counsel provided inadequate representation warranting his replacement by failing to cross-examine the victims about whether they were grasping their shopping carts. Our review of the record leaves us with no doubt this was a tactical decision on trial counsel's part. First, Gay's defense at trial was mistaken identification, not guilt of a lesser form of theft. Consistent with Gay's defense, trial counsel focused his cross-examination on the witnesses' identifications of Gay. Had trial counsel focused his cross-examination in whole or part on establishing Gay's guilt of a lesser form of theft, trial counsel would have undermined Gay's mistaken identification defense.
Second, at the end of the prosecution's case, trial counsel moved for a judgment of acquittal on the grand theft from a person charges, specifically arguing the prosecutor failed to establish the victims were touching their shopping carts at the time their wallets were taken. Had trial counsel cross-examined the witnesses on this point, he would have alerted the prosecutor to the potential proof problem at the expense of Gay's primary mistaken identification defense. As trial counsel's decision not to cross-examine the victims on this point constitutes a reasonable tactical choice, it does not provide grounds for his replacement. (See People v. Jackson, supra, 45 Cal.4th at p. 688.)
IV
At the time of Gay's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, p. 595, amended by Stats. 1978, ch. 1218, § 1, p. 3941; Stats. 1982, ch. 1234, § 7, p. 4553.) If a defendant earned all of the available presentence credit, the defendant would be deemed under former subdivision (f) of section 4019 to have served six days for every four days spent in custody.
Recent amendments to section 4019 (amended § 4019) now allow a defendant to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010.) If a defendant earns all of the available presentence credit, the defendant will be deemed to have served four days for every two days spent in custody. (Amended § 4019, subd. (f).)
Gay contends amended section 4019 applies retroactively to his case and, therefore, he is entitled to additional presentence behavior credits. Appellate courts have had differing views about this issue. Some appellate courts have held amended section 4019 applies retroactively because the amendments mitigate punishment. Others have held amended section 4019 does not apply retroactively because the Legislature inferably did not intend it to apply retroactively. The issue is currently being reviewed by the California Supreme Court. (See, e.g., People v. Brown, review granted June 9, 2010, S181963.) Absent further guidance from the Supreme Court, we conclude the former view is more persuasive than the latter view. Accordingly, we conclude amended section 4019 applies retroactively to this case and we remand the matter to the trial court for a determination of any additional presentence credits to which Gay may be entitled.
V
The trial court imposed a consecutive eight-month sentence for count 28 (commercial burglary). The abstract of judgment, however, erroneously indicates the trial court stayed the sentence for this count. The People request, Gay concedes, and we agree we should order the abstract of judgment corrected to reflect the trial court's intended judgment. (See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement of judgment controls over the minute order]; People v. Mitchell (2001) 26 Cal.4th 181, 185-188 [an appellate court may order correction of abstract of judgment that does not accurately reflect the sentencing court's oral pronouncement of judgment].)
DISPOSITION
The conviction for count 7 (grand theft of more than $400 from victim Sturdivant) is reduced to petty theft with a prior. The matter is remanded to the trial court with directions to modify the abstract of judgment to reflect the reduction as well as the imposition of consecutive eight-month prison term for count 28 (commercial burglary). In addition, the trial court is directed to determine any additional presentence credits to which Gay may be entitled under amended section 4019, and to modify the abstract of judgment accordingly. The trial court is further directed to forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
The abstract of judgment also erroneously indicates the trial court imposed consecutive full-term sentences for counts 16, 20, and 24, instead of consecutive one third sentences. Although the parties did not raise this issue and the errors appear harmless, the trial court should correct these errors as well.
WE CONCUR: NARES, J., McINTYRE, J.