Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07742
NICHOLSON, J.
Defendant appeals his conviction for receipt of stolen property, arguing insufficient evidence and instructional error. Defendant also claims the trial court miscalculated his presentence credits and erroneously imposed a court security fee on a stayed conviction. We direct the trial court to amend the abstract of judgment with respect to defendant’s presentence credits to add one day and otherwise affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2006, Javier Hernandez awoke in the early morning hours to hear “banging” outside his home. When he looked out the window, Hernandez saw a man, whom he later identified as defendant, “breaking into” the front door of his neighbor, Jasmine Booker’s, home. Hernandez called the police. He then saw defendant go inside Booker’s home and come out with a large television, and go back into the house and re-emerge with what appeared to be a VCR or CD player.
A short time later, the police arrived and concluded that someone had forced their way into Booker’s home. The officers determined there was no longer anyone inside the home. They were soon “flagged down” by another neighbor. When the officers returned with that neighbor to her home they saw defendant in her driveway. Defendant ran from the officers.
After jumping over fences and hiding in bushes, defendant was finally detained near his home. The officers searched defendant’s person and discovered a watch and two rings in the front right pocket of the shorts he was wearing. Defendant was arrested and charged with first degree burglary [count one] (Pen. Code, § 459); resisting a police officer in the course of his duties [count two] (§ 148, subd. (a)(1)); and receiving stolen property [count three] (§ 496, subd. (a)).
All further undesignated statutory references are to the Penal Code.
Booker, who was on vacation at the time of the burglary, testified at trial that when she returned home she discovered that she was missing a large television, some DVD players, and some jewelry. She further testified at trial that the rings found in defendant’s pocket on the night of the burglary looked like the “big ugly rings” her live-in boyfriend, Jermaine Mitchell, used to wear. When asked whether the watch found in defendant’s pocket the night of the burglary was Mitchell’s watch, Booker testified that it resembled Mitchell’s watch in that it was big and had a multicolored wrist band.
Ultimately, the jury found defendant guilty as charged. Defendant admitted to a prior strike, prior prison terms, and that his prior performance on parole was unsatisfactory. Defendant was sentenced to an aggregate term of 16 years on count one, 229 days on count two, to run concurrent, and stayed sentence on count three under section 654.
Defendant appeals his conviction on count three, receipt of stolen property, and challenges the court’s failure to give a unanimity instruction on the same count. Defendant further claims the trial court erred in its calculation of presentence credits and in failing to strike the court security fee imposed on count three.
DISCUSSION
A. Substantial evidence supports the jury’s verdict on count three, receipt of stolen property
Defendant claims there was insufficient evidence that the jewelry found in his pocket was stolen. We disagree.
In reviewing claims of insufficient evidence, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Lewis (1990) 50 Cal.3d 262, 277.)
Reviewing the evidence in the light most favorable to the judgment below, we find there was ample evidence and inferences drawable therefrom, for the jury to conclude that the jewelry found in defendant’s pocket was stolen.
Defendant was seen taking a television and equipment resembling a DVD player out of Booker’s home. A short time later and within walking distance of Booker’s home, defendant was apprehended by the police and was found to have two rings and a watch in his pocket. Booker testified that jewelry was missing from her home. She also testified that the two rings and the watch found on defendant resembled those worn by Mitchell. Thus, despite defendant’s claims to the contrary, a jury could reasonably infer that the jewelry found in defendant’s pocket was stolen.
B. No unanimity instruction was required
Defendant next contends the trial court committed reversible error by failing to give a unanimity instruction (CALJIC No. 17.01; now Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM 3500) sua sponte. We disagree.
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132; see also People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Beardslee (1991) 53 Cal.3d 68, 92; People v. Napoles (2002) 104 Cal.App.4th 108, 114.) However, the instruction is not necessary “where the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place . . . .” (People v. Crawford (1982) 131 Cal.App.3d 591, 599; see also People v. Riel, supra, 22 Cal.4th at p. 1199.)
Defendant was charged in count three with receiving stolen property, identified at trial as two rings and a watch that belonged to Mitchell. Defendant argues the jurors could have disagreed as to whether the rings or the watch were stolen, thus requiring a unanimity instruction. Defendant is mistaken.
Given the circumstances of this case, all of the jewelry was found in defendant’s pocket when he was arrested shortly after Booker’s home was burgled, there was no possibility the jurors would disagree as to which of the jewelry was stolen. It was either stolen or it was not. At trial, that is precisely what defendant argued: the jewelry was not stolen. (See People v. Davis (2005) 36 Cal.4th 510, 562, citing People v. Carrera (1989) 49 Cal.3d 291, 311-312 [no unanimity instruction required if defendant offered the same defense to both acts constituting the charged crime, or if “‘there was no evidence . . . from which the jury could have found defendant was guilty of’” the crime based on one act but not the other].)
Accordingly we find no error.
C. Defendant is entitled to 344 days presentence credit
Defendant also claims the court miscalculated his presentence custody credit, awarding him 343 days instead of the 344 to which he is entitled. The People concede the issue. The record reveals that defendant was in jail from August 31, 2006, to April 17, 2007, for a total of 230 days. Defendant is, therefore, entitled to 230 days actual custody credit and 114 days of conduct credit, totaling 344 days. We accept the People’s concession and order the trial court to amend the abstract of judgment accordingly.
D. The trial court properly imposed the court security fee on count three
Defendant argues the fee imposed on count three, which was stayed under section 654, should be stricken. The People concede; the concession is improvident. Section 654 bars double punishment for a single act or omission or an indivisible course of conduct. (§ 654; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) A court security fee, however, is not a fine but rather a “nonpunitive fee,” and as such, is not punishment and more akin to a jail booking or classification fee. (§ 15, subd. 3 [“fine” is “punishment”]; People v. Wallace (2004) 120 Cal.App.4th 867, 877-879; compare Ralph’s Grocery Co. v. Department of Food & Agriculture (2003) 110 Cal.App.4th 694, 700-701 [fine is punishment subject to section 654].) Section 654 is inapplicable to a court security fee. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment to reflect that defendant is entitled to 344 days, instead of 343 days, of presentence credits. The trial court judgment is otherwise affirmed. The trial court is further directed to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P.J., ROBIE, J.