Opinion
F072572
04-19-2018
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LIZARRAGA, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MF010780A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Alberto Lizarraga was convicted of attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1) and assault with a deadly weapon (Pen. Code, § 245, subd, (a)(1); count 2) for the stabbing of his cousin Armando Carrera. The jury also found true enhancements for great bodily injury (Pen. Code, § 12022.7, subd. (a)) and use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). At a subsequent bench trial, the court found appellant's prior conviction allegation to be true. Appellant was sentenced to an aggregate term of 27 years in state prison as to count 1, with the sentence of 11 years as to count 2 stayed pending service of the sentence on count 1.
Appellant presents two claims on appeal. He claims that the trial court erred in denying his motion for a new jury panel based on comments from prospective jurors and appellant's own disruptive outbursts made during voir dire, and that the prosecution presented insufficient evidence that appellant committed the stabbing that formed the basis of both the conviction for attempted murder and for assault with a deadly weapon. Upon review, we affirm.
FACTUAL BACKGROUND
The Stabbing and Initial Investigation
On the evening of September 8, 2013, Officer Joseph Lona, of the California City Police Department, was the first to respond to a reported stabbing. Upon arriving, he observed that the victim, Armando Carrera, was bleeding from the neck and Lona called for medical aid. Carrera informed Lona that he had just been stabbed and that the person who stabbed him was no longer there. At the scene, law enforcement officers encountered Carrera's wife and cousins Jose and Mario Garcia. Officers discovered large amounts of blood in the garage, a black knife handle and blade, broken in two, and a second knife with an orange handle on the washer or dryer.
Paramedics arrived at Carrera's residence shortly after he was stabbed. Prior to their arrival, paramedics estimated Carrera had lost 20 to 30 percent of one liter of blood. Because the paramedics were having difficulty controlling Carrera's bleeding due to his rapid loss of blood, the responders decided to airlift Carrera to a hospital. While being transported by ambulance to the helicopter landing zone, Carrera lost approximately one additional liter of blood, or one-seventh of his total blood.
Surgery was performed on Carrera at the hospital. He received stitches and staples on his wounds and spent multiple days recovering in the hospital.
Appellant's Arrest
At around 11:55 p.m. on the night of the stabbing, a police officer was dispatched near Little Lake in Inyo County in response to a reported male subject jumping in the roadway. As the officer traveled toward the location of this reported incident, he was updated that the subject had begun lying down in one of the traffic lanes. When the officer arrived at the reported location, he observed appellant walking in the center divider of the road. As he approached appellant, the officer observed dried bloodstains on appellant's T-shirt, despite no apparent injuries.
Appellant told the officer he did not know why he was covered in blood. He also stated that he thought he was dead and believed he was a ghost. As he was being questioned, appellant ran away from the officer before tripping and falling into a barbed wire fence. Appellant was arrested for public intoxication. Later, the officer also noticed bloodstains on the soles of appellant's shoes.
Follow-up Interviews with Carrera
Around 2:00 a.m. on September 9, 2013, police officers interviewed Carrera after he received medical treatment. While in the process of interviewing Carrera, the officers received information that appellant was a possible suspect, identified at the time as "Tito" Lizarraga. One officer asked Carrera, "[w]hy did Tito stab you?" Carrera replied, "I'm not sure, man." When asked if appellant was stable, Carrera answered, "[n]ot stable at all." Police asked Carrera what Tito stabbed him with and Carrera responded, "[a] knife." Carrera subsequently identified Tito as his cousin Alberto. Carrera told the officers that his cousins arrived in time to subdue appellant, after which appellant was able to get away.
On September 11, 2013, an officer interviewed Carrera. Carrera identified a photograph of appellant as his cousin Tito. He also identified a photograph of the broken knife found in his garage as the knife that was used to stab him.
On November 5, 2013, Carrera again met with police officers. When shown a six-pack photographic lineup containing a picture of appellant, Carrera stated that the suspect who stabbed him was not in the photographic lineup. Carrera stated that he did not want anyone prosecuted for the stabbing.
Months later, on July 14, 2014, an investigator with the Kern County District Attorney's Office, along with an assistant deputy district attorney, interviewed Carrera regarding the stabbing. Carrera admitted appellant was in the garage with him at the time of the stabbing, but that he did not want to come to court because his life would be in danger. During this interview, Carrera told them that he could no longer recall what happened on the night of the incident.
DNA Evidence
A sample of appellant's DNA was taken and compared with DNA found on several items of evidence. Appellant could not be excluded as a potential minor contributor to the DNA profile lifted from the blade of the broken knife. Carrera's DNA was also compared to DNA found on certain pieces of evidence. Carrera could not be excluded as a major contributor to the DNA profile obtained from the knife blade. Carrera also could not be excluded as a contributor to the DNA profile of the DNA lifted from appellant's bloodstained shoes. A match was also determined between Carrera's DNA and the DNA lifted from appellants shoes.
Carrera's Testimony at Trial
At trial, Carrera testified that he was in his garage in California City, smoking marijuana with his cousin, appellant, on the night of the incident. Carrera testified that he was stabbed three times with a knife—once on the top of his head, once behind his left ear, and once on his shoulder. Carrera testified that although appellant was at his house that night, Carrera did not know who stabbed him or where appellant was at the moment he was stabbed. Carrera was not aware of any reason why appellant would have been upset with him that night. Carrera testified at trial that he did not remember what he told law enforcement officers when he was questioned after the stabbing, but admitted that he did not want to prosecute the case. Carrera admitted that he had a good relationship with his cousin and always got along with him.
Defense case
At trial, appellant began to testify on his own behalf. However, after refusing to submit to cross-examination, his testimony on direct was stricken from the record. No additional evidence was presented by the defense.
DISCUSSION
I. Comments During Jury Voir Dire
Appellant contends that the trial court's denial of his motion to dismiss the entire jury panel during voir dire denied appellant his Sixth Amendment right to an impartial jury and his state and federal due process right to a fair trial. Although the heading in appellant's briefing states that the claim is based on the effect of appellant's own verbal outbursts during voir dire, the entirety of the argument is based on claims that three prospective jurors "all stated conclusions about appellant's guilt in front of the entire panel based upon their special knowledge and expertise." Appellant argues that his convictions should be reversed because the remarks by these three prospective jurors poisoned the jury panel, as "[a] majority of the jurors who heard appellant's case heard the remarks by these three biased prospective jurors." As such, "[t]he trial court's failure to dismiss the panel was structural error."
Regardless of the lack of argument in support of the due process violation based on appellant's comments that were overheard by the jury, we will address each claim in turn. --------
A. Background
Jury voir dire began on September 10, 2015, and concluded the next day, September 11. Prior to bringing in the jury, the court noted reports that, in the past, appellant had "displayed an interest in not following the court procedures and court rules." The court warned appellant to be on his "best behavior" and not to speak out while in court with the jury present. Appellant agreed to try to act professionally during the trial.
During voir dire, and before any outburst by appellant, appellant's counsel questioned several jurors regarding the concepts of presumption of innocence and the prosecution's burden of proof without incident.
Counsel then questioned prospective juror Robles, a corrections officer, on his ability to be fair and impartial, which Robles did not believe he could be. Counsel asked Robles, "[a]nd why is that?" Robles replied, "[g]iven the ... amount of time that I've worked and the places I've worked, and I did counseling time so where I was able to have access to files and demeanor. And just what I've seen, I just feel—I feel like I've already—you'd be starting in a hole." Counsel continued to question prospective juror Robles, confirming that, if selected as a juror, Robles did not believe he could be fair and impartial.
Shortly thereafter, counsel questioned prospective juror Wolaridge on the same concepts of presumption of innocence and burden of proof. Wolaridge indicated that he understood those concepts, but also, "as a school board trustee, sometimes [he] ha[d] to expel students." Prospective juror Wolaridge further remarked:
"And a lot of times, even in sales, what I do professionally. I've been observing your client; I'm not impressed. [¶] ... [¶] So I may not—to be honest, I get paid to observe people. And sometimes I got to do an expulsion hearing, I'm looking at the student along with the parents. [¶] ... [¶] That goes a long way in my decision whether I keep them in my schools or not. And from what I've seen today, I don't think I could be impartial to your client."
Appellant's counsel continued to question prospective juror Wolaridge:
"[Defense Counsel]: Would you agree that someone who acts a certain way that did not impress you, that it's possible the evidence could show that that person—
"Prospective Juror Wolaridge: It's possible.
"[Defense Counsel]: Did not commit a crime?
"Prospective Juror Wolaridge: I'm even thinking it could be nervousness. It could be a whole lot of things going on. I have taken all that into consideration."
Wolaridge acknowledged that a case must be judged on the merits, but that if the trial was to start that day, he did not think he could be fair and impartial. After questioning Wolaridge, counsel concluded his voir dire.
The prosecutor then began his voir dire questioning. He asked Robles if there was anything Robles had not mentioned about his experience as a CDCR correctional officer. Robles responded:
"No. Only that ... just the experiences that I've been through and, again, different institut[ion]s. I've worked at maximum level institutions and I ... hate to say it, but I've already formed a conclusion in my mind based on my experience and based on things that I've observed, and so ... like it was stated before, I think that just because of that doesn't mean that ... they're guilty. But in my experience, I'm leaning to guilty. [¶] ... [¶] I mean ... it's too bad that it's that way, but it's just that way."
The prosecutor asked the panel if anyone else had a reason that he or she could not focus on the facts and evidence in making his or her decision, prospective juror Paredez indicated that, based on his experiences with a brother "[t]hat acts like [appellant] does," and even though his brother was "never arrested or anything like that" he did not think he could be a fair juror.
The court then interjected and admonished the panel:
"[Y]ou haven't heard any evidence. You haven't seen any evidence. There's been no exhibits admitted into evidence. Whatever [appellant]
does or doesn't do in the courtroom is not evidence. If he testifies, that's evidence. If he moves around in his chair, he stands up and does jumping jacks, whatever, that's not evidence.... And whatever observations any of you may or may not make of [appellant] as he sits at counsel table, it's not evidence. And you can't consider that if you're a juror in the case."
The prosecutor asked if the admonition made sense to everyone on the panel and indicated that everybody had nodded their heads.
As the court began to excuse prospective jurors, appellant began speaking out, stating, "[w]hat the fuck—fucking—you," "I take responsibility for this thing," "[y]ou gonna take my life," "[m]y ... was ... gonna kill you for ...." After a brief sidebar, the court excused prospective jurors Paredez, Robles, and Wolaridge before excusing the rest of the panel for the day.
The next day, outside the presence of the prospective jurors, appellant's counsel asked that the jury panel be dismissed:
"Your Honor, I want to make a record about some of the things that happened yesterday afternoon as the jury was being excused and while [the prosecutor] was conducting his voir dire.
"[Appellant's] behavior, some of the things that he was saying, I could hear and certainly some of them—I'm not sure if everyone heard them—but he made threatening comments to various people and made comments about, 'just send me to prison already,' which I believe were heard by at least some of the jury.
"At least two of the jurors commented on [appellant's] demeanor and actions in this case.
"And I believe that given the nature of the charges as being attempted murder and with [appellant] saying the threatening comments in the court, that he cannot receive a fair trial with this panel. And I would ask the Court to excuse this panel and draw a new panel and start over with the—with an admonishment to [appellant] that no further outbursts will be tolerated and will not result in any future panels being pulled.
"However, I think at this point, given the comments by some of the jurors and some of the outbursts that he made yesterday, it would be almost impossible for him to receive a fair trial with the current panel.
"We'll submit it and make a motion for a new panel."
The court denied this motion by appellant's counsel, stating:
"Okay. I didn't ... I heard him talking and saw [appellant] moving around, but I didn't hear what he had to say.
"I already talked to [appellant] that he needed to behave himself, and if he chooses and continues to choose to have outbursts in the court, a couple things can happen.
"One, if it's disruptive to the point we can't conduct the trial, then he can be brought to another room and be able to listen to the proceedings and won't be present. But he's not going to create a mistrial by his own actions. That's his choice.
"I've admonished the prospective jurors. It's true there were at least two jurors that were observing [appellant], and for whatever reason, maybe it's his extremely short haircut or how he moves around in his seat, or whatever, they had an issue with that. I haven't heard that from any of the other prospective jurors. It's possible that there may be others that have that view today. I don't know.
"But I'll do what I said I would do yesterday. I'll do that when we bring them in. I'll admonish them, once again, that it's not evidence. [Appellant] even being present in the courtroom. And that any statements he may or may not make or how he sits in his chair or anything to do with that is not evidence, is not to be considered.
"Record is preserved for the defense. Motion is denied."
After the prospective jurors entered, the court stated to the panel:
"Yesterday there was some discussion by some of the prospective jurors that they were observing [appellant] and they had kind of made up their mind about some things, and that was their truthful answer. And as you heard me say, that's not evidence. So let me just remind you, if there's anything that [appellant] has said or done from his seat at counsel table or will do during this trial, that is not evidence. You must disregard it. You must not consider that for any purpose."
When sworn in, the jury swore to render a true verdict "according only to the evidence presented to [them] and to the instructions of the court."
B. The Trial Court Did Not Err by Failing to Discharge the Venire
1. Appellant's Outbursts
To the extent appellant contends the court erred in denying his motion for a new juror panel based on his outburst in open court, his claim must fail. "[A] defendant may not be heard to complain when, as here, such prejudice as he may have suffered resulted from his own voluntary act." (People v. Hendricks (1988) 44 Cal.3d 635, 643; accord, People v. Harris (1981) 28 Cal.3d 935, 951-953.)
2. Comments by Prospective Jurors
A criminal defendant has the constitutional rights to confront witnesses and to a determination of guilt or innocence by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15, 16.) "Due process means a jury capable and willing to decide the case solely on the evidence before it ...." (Smith v. Phillips (1982) 455 U.S. 209, 217.) "In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process." (Irvin v. Dowd (1961) 366 U.S. 717, 722.)
The California Supreme Court discussed the standards for dismissing a jury panel in People v. Medina (1990) 51 Cal.3d 870 (Medina). As the court explained, "discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant." (Id. at p. 889.) That "drastic remedy" is not "appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks." (Ibid.)
The refusal to dismiss a jury panel is reviewed for an abuse of discretion. (Medina, supra, 51 Cal.3d at p. 889; People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42.) As explained in Medina, "the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required." (Medina, supra, at p. 889.) For that reason, the trial court's determination "on the question of individual juror bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.)
Here, the trial court did not abuse its discretion by failing to discharge the entire venire. Here, two prospective jurors admitted based on their professional experiences that they did not feel they could be impartial, and a third explained that he could not be partial based on his brother's actions.
Prospective juror Robles noted that as a correctional officer and based on his experiences, he would lean toward finding appellant guilty, even though he acknowledged that it did not mean that appellant was truly guilty. He even acknowledged that it was unfortunate that he had such a bias, but that it was not something he could change. Prospective juror Wolaridge also noted that he did not feel that he could be impartial even though it was possible that appellant did not commit the crime, and his reason for bias was just based on appellant appearing nervous. Finally, prospective juror Paredez noted that he was biased due to his brother's behavior, despite not describing his brother's behavior and noting the fact that his brother had never been arrested.
The jurors' comments were not inflammatory, nor would the comments create bias on behalf of the other jurors. Significantly, the comments at issue "did not give the other prospective jurors information specific to the case" (People v. Cleveland (2004) 32 Cal.4th 704, 736 (Cleveland)), but just exposed them to three individuals' biases towards appellant. Courts have routinely held that comments of bias on the part of prospective jurors do not serve to prejudice other jurors on the panel. "It would no more prejudice a jury panel to hear that a retired (or active) peace officer believes the system is tilted in favor of defendants than to hear a criminal defense attorney express the opposite view." (Ibid.)
Furthermore, the judge admonished the jury during vior dire that the prospective jurors' comments were not evidence and must be disregarded. At the end of voir dire, the jury panel swore to render a true verdict "according only to the evidence presented to [them] and to the instructions of the court."
Under these circumstances, we find no abuse of discretion. Case law confirms that conclusion based on the failure to show bias in light of much more inflammatory comments than presented to the jury here. (See Cleveland, supra, 32 Cal.4th at pp. 735-736 [entire venire not tainted by prospective juror and retired law enforcement officer's comments during voir dire that the death penalty was "'too seldom [used] due to legal obstructions'" and that he could not be fair to the defendant "'based on my knowledge of how these trials are conducted'"]; Medina, supra, 51 Cal.3d at p. 888 [trial court did not err in failing to discharge the entire jury venire where prospective jurors made statements such as "'even his own lawyers think he's guilty,'" and "'bring the guilty S.O.B. in, we'll give him a trial, and then hang him'"]; accord, People v. Nguyen, supra, 23 Cal.App.4th at pp. 41-42 [denial of motion to dismiss entire jury panel not an abuse of discretion where prospective juror expressed fear of retaliation because he and the defendant belonged to the Vietnamese community].)
Further, we are not persuaded by appellant's attempts to distinguish those authorities wherein the trial court's denial of a defendant's motion to quash the venire was upheld. We find appellant's reliance on Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach) to be unpersuasive. In Mach, a prospective juror in a child sexual abuse prosecution was a social worker with the State of Arizona Child Protective Services. The juror indicated before the entire jury panel that she would have a difficult time being impartial in that "sexual assault had been confirmed in every case in which one of her clients reported such an assault." (Id. at p. 632.) Further questioning established the juror "had never, in three years in her position, become aware of a case in which a child had lied about being sexually assaulted." (Ibid.) The Ninth Circuit Court of Appeals "presume[d]" the juror's comments "tainted" at least one juror, violating the defendant's right to an impartial jury. (Id. at p. 633.)
We note that "[d]ecisions of the lower federal courts interpreting federal law, though persuasive, are not binding on state courts." (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352.) In addition, California law does not indulge in a presumption of jury taint or prejudice arising from a prospective juror's remarks as the Ninth Circuit did in Mach. (Medina, supra, 51 Cal.3d at p. 889 [trial court possesses broad discretion to determine whether possible bias or prejudice against a defendant has contaminated entire venire to such an extreme its discharge is required. Such a drastic remedy is not appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks].) We are bound to follow the principles enunciated by our state's highest court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, Mach is factually distinguishable. Here, while the prospective jurors worked as a corrections officer and school official, respectively, their references to that employment do not compare to the unequivocal assertion that children do not lie about being sexually assaulted as was the case in Mach. In sum, the prospective jurors' comments regarding their own lack of ability to be impartial, despite acknowledging that appellant was not necessarily guilty of the charged offenses, did not call for the "drastic remedy" of dismissing the entire venire. (Medina, supra, 51 Cal.3d at p. 889.) We find no abuse of discretion in the trial court's denial of defendant's motion to quash the jury panel.
II. Insufficient Evidence
Appellant, in his second claim, asserts that his convictions for attempted murder and assault with a deadly weapon were not supported by sufficient evidence. He acknowledges that the evidence supported a finding that he was present at the crime scene, but not that he was the perpetrator of the crime.
A. Standard of Review
A state court conviction that is not supported by sufficient evidence violates the due process guarantees of the federal and California Constitutions and is therefore invalid. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In determining whether a criminal conviction is supported by sufficient evidence for purposes of federal due process, a reviewing court must "determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson).) In Jackson, the Supreme Court explained that "this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." (Id. at pp. 318-319, fn. omitted.)
The standard under our state Constitution is "identical." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87.) As the California Supreme Court has explained, 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 (Johnson).) Substantial evidence is evidence that "maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149.) The "'whole record'" includes "'the entire picture of the defendant put before the jury'" and is not limited "'to isolated bits of evidence selected by the respondent.'" (Johnson, supra, at p. 577; accord, People v. Medina (2009) 46 Cal.4th 913, 919.) Further, "'[t]he standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence.'" (People v. Casares (2016) 62 Cal.4th 808, 823; accord, People v. Bean (1988) 46 Cal.3d 919, 932.)
B. Analysis
As noted above, appellant does not present any arguments that certain elements of the attempted murder or assault with a deadly weapon charges were not met. Instead, his only contention is that there was insufficient evidence to support the jury's finding that he was the one that committed the stabbing that formed the basis of the charges. As appellant concedes any claim that the stabbing that occurred was sufficient to support a conviction of each of the specified charges, we will focus on evidence that supports the jury's finding that he was the one who stabbed Carrera.
The prosecution presented significant evidence at trial to support the jury's finding that appellant was not just present at the scene, but indeed committed the stabbing. The physical evidence supported such a conclusion, appellant was found soon after the stabbing in bloodstained clothing, and blood found on appellant's shoes matched Carrera's DNA. DNA testing of the knife handle found at the scene revealed appellant as a minor contributor, creating a strong inference that he had been in possession of the knife, and used it for the stabbing.
Further, even though Carrera was reluctant to testify against appellant, Carrera's statements to law enforcement following the stabbing strongly implied that appellant committed the stabbing. Carrera stated that appellant had stabbed him and that his other two cousins had arrived and attempted to subdue appellant. In light of the totality of the evidence presented, Carrera's reticence to testify against or identify appellant at trial does not undermine the significant evidence presented that supports a finding that appellant was the perpetrator. We find that there was substantial evidence based on reasonable inferences from the testimony provided that support the jury's finding that appellant was the perpetrator of the attempted murder and assault with a deadly weapon. (Johnson, supra, 26 Cal.3d at p. 578.) For the reasons we have discussed, we conclude the evidence in this case was sufficient to support the jury's finding of guilt.
III. Correction of the Abstract of Judgment
Appellant contends that in item No. 16 on the abstract of judgment, regarding credit for time served, the number of total credits, actual credits, and local conduct credits were not listed in the proper boxes. Whereas the abstract presently lists appellant as having 768 days of total credit, 115 days of actual credit and 883 days of local credit, appellant contends that it should state 883 days of total credits, 768 days of actual credits, and 115 days of local credits. Respondent acknowledges the error and concedes that the judgment should be corrected to properly reflect the credit for time served. The request to correct the error is hereby granted.
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect appellant served 768 days of actual credits and 115 days of local credits, for a total credit of 883 days. The trial court shall forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.