Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB052571. Brian S. McCarville, Judge.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury convicted defendant of robbery (count 1; Pen. Code, § 211), assault by means likely to produce great bodily injury (count 2; § 245, subd. (a)(1)), and misdemeanor escape from custody (count 3; § 836.6, subd. (a)). The jury found true certain enhancement allegations. (§§ 1192.7, subd. (c), 667, subds. (a)-(i), 667.5, subds. (b), (c), 1170.12, subds. (a)-(d).) Defendant was sentenced to 25 years to life on counts 1 and 2, plus seven years on the enhancement allegations to be served first and consecutive to the term on count 2. The sentence on count 1 was stayed pursuant to section 654. The parties have different interpretations of the court’s pronouncement of sentence, if any, on count 3, and dispute the amount and application of presentence custody credits.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) the prosecutor’s use of peremptory challenges violated his constitutional rights under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the use of Judicial Council of California Criminal Jury Instructions, CALCRIM No. 223 violated his constitutional rights to due process; and (3) the court failed to award him the proper amount of presentence custody credits. We reject the first two contentions and affirm the convictions. Regarding the third contention, we will direct the trial court to hold a new sentencing hearing to resolve issues concerning the sentence on count 3 and the determination and application of custody credits.
II. BACKGROUND
On October 13, 2005, a man approached Louise Bessler in a laundromat and asked her for change. Bessler said she did not have any change. Later, when Bessler was leaving the laundromat restroom, the man grabbed her by the throat and pushed her back into the restroom. Bessler screamed, and the man told her to shut up. He told her to bend over, then pushed her head down, striking it against the washbasin. The man then said, “never mind,” took Bessler’s purse, and left. Bessler screamed for help and began to chase after the man.
Heather Schoonover was about to enter the laundromat when she heard Bessler’s screams. Bessler ran outside, pointed to the man, and told Schoonover that he had taken her purse. Schoonover ran after the man while Bessler went to call the police. Schoonover caught up with the man and recovered the purse. The man walked away and Schoonover returned the purse to Bessler.
Defendant was detained by police a short time later within two blocks of the laundromat. Following an in-field identification procedure, Bessler identified defendant as the man who attacked her, and Schoonover identified him as the man from whom she recovered the purse. Defendant was arrested.
III. ANALYSIS
A. Wheeler/Batson
During jury selection, defense counsel made “a Wheeler motion”; that is, he asserted that the prosecutor had used peremptory challenges to exclude prospective jurors based on group bias. (See Wheeler, supra, 22 Cal.3d at pp. 276-277.) Defense counsel told the court that of seven peremptory challenges made by the prosecutor, four were made against “minorities”: two against Hispanic men, one against a Black woman, and one against a Hispanic woman. He also noted that “[t]he challenges seem not proportional. There aren’t many Hispanic men or [B]lack men on the jury.”
The trial court found “that a prima facie showing has been made,” and asked the prosecutor to address each of the challenges. After hearing the prosecutor’s explanations, the court asked each of the attorneys whether they had anything to add. Both said they did not. The court then stated: “As to each of the stated articulated reasons, I find they were specifically discernible from the Court’s own observations. I find each of them legitimate and nonrace based and nonethnically based and nonminority based.” The court then denied defendant’s motion.
On appeal, defendant contends the trial court erred in denying the motion because, he asserts, the prosecutor’s reasons were not supported by the record. For the reasons that follow, we reject the contention.
B. Applicable Principles and Standards of Review
A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the state constitutional right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community. (Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Stevens (2007) 41 Cal.4th 182, 192; Cal. Const., art. I, § 16.) In Batson, the United States Supreme Court held that such practices also violate the defendant’s right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. at p. 88; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.) “The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
Although defendant referred only to Wheeler below, on appeal he also asserts error under the federal Batson standard. As our state Supreme Court has held, an “objection under Wheeler suffices to preserve a Batson claim on appeal.” (People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 5.)
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1008-1009, citing Johnson v. California (2005) 545 U.S. 162, 168; see Snyder v. Louisiana (2008) ___ U.S. ___ [128 S.Ct. 1203, 1207].)
The question for the trial court at this last step is whether “the reason given for the peremptory challenge [was] a ‘legitimate reason,’ legitimate in the sense that it would not deny defendants equal protection of law..., or was it a disingenuous reason for a peremptory challenge that was in actuality exercised solely on grounds of group bias?” (People v. Reynoso (2003) 31 Cal.4th 903, 925 (Reynoso).) “[T]he trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....” [Citation.]’ [Citation.] But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (Id. at p. 919.) Ordinarily, we will presume “that the trial court has properly made a sincere and reasoned evaluation of the prosecutor’s reasons....” (Id. at p. 929.) That is, “‘[w]hen the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.’ [Citation.]” (People v. Stevens, supra, 41 Cal.4th at p. 193, quoting Silva, supra, 25 Cal.4th at p. 386.)
The “ultimate burden of persuasion regarding racial motivation [or group bias] rests with, and never shifts from, the opponent of the strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768.)
In reviewing a Wheeler/Batson issue on appeal, the “fundamental inquiry” is whether “there [is] substantial evidence to support the trial court’s ruling that the prosecutor’s reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors’ membership in a protected group[.]” (People v. Huggins (2006) 38 Cal.4th 175, 233.) “‘We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]...’ [Citation.]” (People v. Watson (2008) 43 Cal.4th 652, 670-671.)
With these principles and standards in mind, we turn to the record and defendant’s arguments.
C. Linda M.
Linda M. is a Black female. Upon inquiry from the court, she said that her brother had been arrested or charged with a crime in San Bernardino County and investigated by the sheriff’s department. When asked whether she thought her brother was treated fairly, she answered, “Yes.” She was informed that sheriff’s deputies would be testifying as investigators in this case. When asked, she told the court that her brother’s experience with the sheriff’s department and the district attorney’s office would not affect her perception of the prosecutor or her ability to judge the witnesses fairly.
The prosecutor explained his peremptory challenge of Linda M. by stating that the prospective juror’s “brother was arrested in San Bernardino and she did not think he was treated fairly.” The proffered explanation is, on its face, race neutral. The fact that Linda M.’s brother was arrested is a legitimate basis for excluding her. (See People v. Farnam (2002) 28 Cal.4th 107, 138 [“a prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution”]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690 [“the use of peremptory challenges to exclude prospective jurors whose relatives and/or family members have had negative experiences with the criminal justice system is not unconstitutional”].)
Defendant argues that the prosecutor’s explanation consists of a single reason: “the arrest combined with a perception that he was treated unfairly resulted in her excusal.” The Attorney General asserts that the explanation consists of two reasons: (1) the “brother was arrested in San Bernardino”; and (2) “she did not think he was treated fairly.” The court did not expressly state whether the prosecutor stated one or two reasons.
With respect to the second part of the explanation—that Linda M. thought her brother was not treated fairly—the record indicates that Linda M. actually answered “yes” when asked if she thought her brother was treated fairly. Defendant argues that when, as here, the proffered reason is unsupported or contradicted by the record, the court could not have made the required sincere and reasoned attempt to evaluate the prosecutor’s reasons. In such a situation, the court is required to question the prosecutor and make detailed findings. (See Silva, supra, 25 Cal.4th at p. 386.) In the absence of such an attempt, defendant contends, the court’s finding is not entitled to deference on appeal.
Initially, we observe that not only did the prosecutor conclude that Linda M. believed her brother was treated unfairly, but the court agreed with this assessment, finding the reason (along with the other reasons) “specifically discernible from the Court’s own observations.” And, despite this agreement between the prosecutor and the court on a point that appears to contradict Linda M.’s statement, defense counsel remained conspicuously silent and failed to point out this inconsistency even though he was invited to comment on the prosecutor’s explanations. The apparent consensus among trial counsel and court strongly suggests that, despite the transcription of Linda M.’s response as “yes,” the attorneys and the court all heard something different or, at a minimum, detected something in Linda M.’s demeanor or manner of speaking that belied her positive spoken response. (See People v. Jordan (2006) 146 Cal.App.4th 232, 257 [prosecutor not required to believe juror’s assertion that she could set aside her feelings about the police department].) Because we have only our “cold record,” we cannot confirm this possibility.
Nevertheless, it seems to us that if the prosecutor’s reason was factually inaccurate, defendant—who had the burden of proving to the trial court the prosecutor’s group bias, and has the burdens on appeal of providing an adequate record for review and of affirmatively showing error—would be well served by pointing out this inaccuracy to the trial court for the record. By doing so, the court would have had the opportunity to examine the transcript to ascertain and state on the record whether the prosecutor was inaccurate or the juror’s statement was mistranscribed. If the prosecutor was inaccurate, the court could inquire of counsel in an effort to determine whether the inaccuracy was merely a mistake or a pretext for discrimination; if the juror’s response was mistranscribed, the record could be corrected.
In the cases relied upon by defendant, the accused attempted to or did bring to the trial court’s attention the lack of record support for the prosecutor’s reasons. (See Silva, supra, 25 Cal.4th at pp. 384-385 [the defendant raised in the trial court the lack of support in the record for the prosecutor’s explanation]; Miller-El v. Dretke (2005) 545 U.S. 231, 245 [“Miller-El’s lawyer pointed out that the prosecutor had misrepresented [the prospective juror’s] responses”]; Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 828 [after the court agreed with a reason given by the prosecution, “defense counsel tried to interject, describing weaknesses in the record with respect to the reason the court had cited”].)
However, although a more developed record would be beneficial, we must decide the issue based on the record before us. The fact that Linda M.’s brother had been arrested and investigated by San Bernardino County Sheriff’s deputies, regardless of whether the brother was treated fairly, was itself a legitimate reason (i.e., not based solely upon group bias) for excusing the juror. (See People v. Farnam, supra, 28 Cal.4th at p. 138.) The trial court agreed with this reason based upon its own observations. In light of the great deference we accord the trial court in distinguishing bona fide reasons from sham excuses, we find no error.
D. Andy R.
Andy R. is a Black male. He described himself as a student, and said that he intended to become a firefighter. Defense counsel told Andy R. about an experience he had in another case in which the jury “was eleven to one for guilty and the one changes his vote.” He later learned that the juror who changed his vote did so because he “wanted to get to Las Vegas on time.” Defense counsel then asked Andy R. whether he thought that was fair. Andy R. said, “No.” The following exchange then took place:
“[DEFENSE COUNSEL]: Could you tell me why you don’t think he got a fair trial? Let me put it this way. I don’t want to put you on the spot. You’re a little bit quiet, younger than some of the people here. My take is because you may be a little younger, someone is older may push you around to get you to vote a certain way. If you think [defendant]—if you think that [defendant] is guilty and everybody else says not guilty, are you going to change your vote just because you’re in the minority?
“[ANDY R.]: No.
“[DEFENSE COUNSEL]: If you think he’s not guilty and everybody thinks guilty, are you going to change your vote?
“[ANDY R.]: No.
“[DEFENSE COUNSEL]: If you believe it, would you stick to your conviction?
“[ANDY R.]: Yes.”
The prosecutor explained her peremptory challenge of Andy R. by stating: “Very young, inexperienced, seemed very hesitant to answer a question. I did not think he would stand up to the jury.” Defense counsel did not express any disagreement with this characterization of the juror. The court found the prosecutor’s reasons, were “specifically discernible from the Court’s own observations.”
On appeal, defendant contends that the “record does not substantiate the prosecutor’s allegations that Andy R. would not stand up to the jury.” We disagree. The prosecutor could reasonably conclude from the prospective juror’s youth, inexperience, and hesitancy—as well as the juror’s demeanor not evident in our cold record—that he might not stand up for himself if the deliberations became contentious. The stated reasons for the peremptory challenge are facially legitimate and neither inherently implausible nor contradicted by the record. Defendant has thus failed to show error. (See Reynoso, supra, 31 Cal.4th at p. 929.)
E. Mario S.
Mario S. is a Hispanic male. During defense counsel’s voir dire, Mario S. was asked whether police officers “should be held to a higher standard,” and Mario S. answered, “yes.” Upon further questioning, he further disclosed that he had served three years as a reserve police officer with the City of South Pasadena. He “went to the academy” and received training on arrest procedures and the treatment of people charged with crimes. Defense counsel expressed his concern that jurors “need to take the facts on what people say here and not what you were trained.” Mario S. confirmed that he could “separate those two things.”
During the prosecutor’s voir dire, she questioned one prospective juror about concerns the prosecutor had about the prospective juror’s negative reaction to the police. She then turned to Mario S. and engaged in the following colloquy.
“[PROSECUTOR]: [Mario S.], I’ll go back to you on that issue as well. I think you had mentioned in your opinion officers should be held to a higher standard. Is that correct?
“[MARIO S.]: That’s right.
“[PROSECUTOR]: And if the law told you that all witnesses are to be treated equally, would you be able to follow the law? Is that a yes?
“[MARIO S.]: Yes.
“[PROSECUTOR]: Which means you would have to treat them equally, which is contrary to what you earlier said; is that correct?
“[MARIO S.]: That’s correct.
“[PROSECUTOR]: Keeping that in mind, would that be difficult for you not to look at a police officer and expect more from a police officer than any other witness, lay witness?
“[MARIO S.]: I would expect, knowing that he has that background that he knows what he’s talking about when you compare him to just any other witness as far as, you know, his job.
“[PROSECUTOR]: Okay.
“[MARIO S.]: Not any other job, you know. If you go to the doctor, you’re not going to expect any other to do the same kind of service.
“[PROSECUTOR]: So they’re kind of starting behind other witnesses, so to speak, do you think?
“[MARIO S.]: I don’t know what you’re saying, behind.
“[PROSECUTOR]: They have to show more to you or professionalism, more believability than any other witnesses because they’re police officers.
“[MARIO S.]: Sure. I look at, for example, if I’m stranded and a person drives up behind you to help you, you get an officer driving up behind you, of course there’s going to be a difference. Who am I going to trust?”
The prosecutor then asked the jurors generally if anyone else felt “similarly with regard to police officers? Do you think they should be held to a higher standard?” The prosecutor called for a show of hands; no one raised their hand.
The prosecutor explained his peremptory challenge of Mario S. by stating that he “seemed to be disinterested when we talked to him. I noted kind of in response a little attitude. Specifically with regard to police officers, he indicated on several occasions when I asked him he thought that police officers should be held to a higher standard. [¶]... [¶]... Even after I said would he follow the law, he said yes, and then I again asked him, do you still hold them to a higher standard, and I believe his answer was yes.”
Defendant contends that the prosecutor misinterpreted Mario S.’s statement that police officers should be held to a higher standard. According to defendant, “Mario S. did not mean he would hold police officers to a higher standard. Rather, Mario S. thought police officers were more credible, more trustworthy, and more knowledgeable in certain areas because of their training and experience.” We do not need to determine whether defendant’s interpretation of the juror’s statement is more or less plausible than the prosecutor’s interpretation. Regardless of whether the prosecutor understood the juror’s statement correctly, the proffered reason is “legitimate in the sense of being nondiscriminatory.” (Reynoso, supra, 31 Cal.4th at p. 924, quoting Purkett v. Elem, supra, 514 U.S. at p. 769.)
Defendant also argues that Mario S.’s purported disinterest and “attitude” are not evidenced in the record. Peremptory challenges may properly be based upon a juror’s “bare looks and gestures,” or his “body language or manner of answering questions.” (Reynoso, supra, 31 Cal.4th at p. 917.) We, of course, have only a cold record of the oral statements and cannot determine whether Mario S. appeared disinterested or displayed an attitude unfavorable to the People. This is why we give great deference to the trial court, which saw and heard the proceedings. (Id. at pp. 917-918.) If the prosecutor’s reliance on such matters is belied by the court’s own observations, the court can note this fact for the record. Here, the court expressly found that the prosecutor’s reasons were “specifically discernible from the Court’s own observations.” Defendant has failed to show error.
F. Suzanne G.
Prospective juror Suzanne G. is a Hispanic female.
“[PROSECUTOR]: Guess what. You’re going to be with 11 other people if you get selected for the jury and you’re going to talk about the facts of the case. And you might find that you disagree with those 11 other people. And it might be difficult for you to tell the other people you disagree for some of you.
“As difficult as that may be, [Suzanne G.], could you speak up and tell the rest of the other 11, I think you’re wrong because A, B, and C?
“[SUZANNE G.]: Yes.
“[PROSECUTOR]: Can you do that?
“[SUZANNE G.]: Yes.
“[PROSECUTOR]: What if there’s some chatterbox in the jury room and that person is talking, talking, talking, and talking over you. Are you going to say, I give up, I’ll just go with the rest of you?
“[SUZANNE G.]: No.”
The prosecutor explained his peremptory challenge of Suzanne G. by stating: “She had been arrested for forgery. At one point, she also seemed to be the kind of juror who wouldn’t stand up to the jury.” Again, defense counsel said nothing in response.
On appeal, defendant contends that the prosecutor’s explanation was insufficient because the prosecutor never asked Suzanne G. about the prior arrest or inquired whether the experience would cause her to be biased against the prosecution. According to defendant, “there is no reason why Suzanne G.’s prior arrest for misdemeanor forgery ‘when [she] was younger’ would necessarily give rise to a bias against the prosecution.” The argument is meritless. A prospective juror’s prior arrest is a legitimate reason for exercising a peremptory challenge and defendant does not point to any fact or offer any argument indicating that the reason is a pretext for discrimination. (See People v. Turner (1994) 8 Cal.4th 137, 171 [peremptory challenges may be based upon “a prospective juror’s negative experience with law enforcement”], overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; Wheeler, supra, 22 Cal.3d at pp. 275, 277, fn.18.)
Defendant further argues that there is nothing in the record that supports the prosecutor’s additional reason that Suzanne G. would not stand up to the jurors. The perception that a juror will not stand up to others is likely based on the juror’s appearance and demeanor, for which the court need not make detailed findings. (Reynoso, supra, 31 Cal.4th at p. 929.) Because the reason is facially legitimate and neither inherently implausible nor contradicted by the record, we will presume that the challenge was exercised in a constitutional manner and that the trial court made the requisite evaluation of the prosecutor’s reason. (See ibid.)
The People contend that defendant forfeited his argument concerning the constitutionality of CALCRIM No. 223 by failing to object to the instruction below. Pursuant to sections 1259 and 1469, we will exercise our discretion to address the merits of the argument. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party.”].)
The jury was instructed with CALCRIM No. 223, which provides: “Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.”
Defendant contends that the reference in the instruction to “‘disprov[ing] the elements of a charge’ circumvents the fundamental rule of due process that the prosecution, not the defense, carries the burden of proof and the accused is presumed innocent.” He further argues that “by limiting the use of evidence to ‘prove or disprove’ the charges, [the instruction] implies the respective roles of the prosecution and defense are to prove or disprove the charges.”
We independently review the legal correctness of jury instructions. (People v. Griffin, supra, 33 Cal.4th at p. 593.) “[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘“whether the ailing instruction... so infected the entire trial that the resulting conviction violates due process.”’ [Citations.] ‘“[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.”’ [Citations.]” (Middleton v. McNeil (2004) 541 U.S. 433, 437.) “‘In conducting this inquiry, we are mindful that “‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” [Citations.]’ [Citation.] ‘Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Viewing the instructions in the context of the overall charge, we do not believe that it is reasonably likely that the jury applied the instruction in the way that defendant suggests. CALCRIM No. 223 instructs on the types of evidence—direct or circumstantial—that can prove or disprove an element of a charge. A defendant can (but is not required to) offer evidence to negate or “disprove” an element of a charge. This instruction merely provides that if a defendant does so, such evidence may be either direct or circumstantial, and that neither type of evidence is necessarily more reliable than the other. The instruction does not state or imply, as defendant contends, that a defendant has a burden to disprove a charge. Regarding the burden of proof, the jury was instructed with CALCRIM No. 220, which made it clear that the jurors must find that the People proved defendant’s guilt beyond a reasonable doubt. In assessing the jury instructions as a whole, we do not believe the jury interpreted CALCRIM No. 223 as defendant claims or that it somehow lessened the People’s burden of proof.
CALCRIM No. 220, as given to the jury in this case, provides: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
H. Sentence on Count 3 and Presentence Credits
By the time of the sentencing hearing, defendant had been in custody for 548 days. At the hearing, the court pronounced sentence of 25-year-to-life terms on each of count 1 (robbery) and count 2 (assault by means likely to produce great bodily injury), plus seven years for certain enhancement findings to be served consecutive to the life terms. The court awarded custody credits of 183 actual days plus 27 days of conduct credits pursuant to section 2933.1 (for a total of 210 days). The court did not mention count 3 (misdemeanor escape) or expressly sentence defendant for that crime. Nor does the abstract of judgment refer to count 3.
Subdivision (a) of section 2933.1, subdivision (a) provides: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of work time credit, as defined in Section 2933.”
Defendant contends the court erred by crediting defendant with only 210 days of custody and conduct credits when he should have received credit for 548 actual days in custody plus 82 days for conduct credits (for a total of 630 days).
The People contend the court erred in awarding only 27 days of custody credits when it should have awarded 82 days. However, the People assert that the court’s determination of 183 days for custody credits is correct. This argument assumes that the court impliedly sentenced defendant to 365 days in jail on count 3 (548 actual days minus 365 days for count 3 equals 183 days of remaining custody credits). This argument supplies an explanation for the court’s failure to explicitly mention a sentence for count 3: There would be no point in sentencing defendant when he had, in effect, already served the full sentence for that crime. In support of this argument, the People point to the probation report, which states: “The recommendation will be for a terminal disposition on the misdemeanor offense, with three hundred sixty-five (365) days in county jail. The county jail time for the misdemeanor terminal disposition will be deducted from his total jail time, leaving him with one hundred eighty-three actual days of credit for time served for his felony offenses.” When the court’s oral pronouncement is viewed in light of the probation report, it appears reasonable to conclude that the court intended to apply 365 days of his time in custody to satisfy the verdict on count 3.
Misdemeanor escape from custody under section 836.6 is punishable by up to one year in jail. (§ 836.6, subd. (c).)
Defendant points out two flaws in this argument. First, although the court failed to mention any sentence on count 3 at the sentencing hearing, the sentencing minute order states that the sentence imposed on count 3 is 180 days, not 365. Although a conflict between the oral pronouncement of a sentence as reflected in the reporter’s transcript will generally control over a conflicting statement in the clerk’s transcript (In re Merrick V. (2004) 122 Cal.App.4th 235, 249), this rule does not apply when there is no oral pronouncement of any kind as to a sentence. The minute order’s reference to a 180-day sentence cannot be reconciled with the People’s explanation of the court’s action.
Second, when a court is silent as to whether a sentence on one count is to run concurrent or consecutive to a sentence on another count, the sentence shall run concurrent. (§ 669.) Defendant contends that even if we could infer a 365-day sentence (or 180-day sentence) on count 3, the court’s failure to specify that the sentence runs consecutive means that the sentence runs concurrent. As such, the concurrent term on count 3 would have no effect on the custody and conduct credits.
Although the parties disagree as to the nature of the errors in sentencing, both parties request that we correct the sentence and abstract of judgment to reflect their calculation of the custody and conduct credits. We decline to do so. Although we may correct errors that are merely computational (see, e.g., People v. Autry (1995) 37 Cal.App.4th 351, 364), the errors here cannot be resolved by arithmetic. The court appears to have failed to pronounce any sentence as to count 3. It is possible that the court intended to impose a 365-day sentence, as the People assert; but it is also possible that it intended to impose a 180-day sentence as reflected in the minute order. It is also possible that the court simply failed to impose any sentence whatsoever on count 3. Even if we concluded that the court’s calculation of custody credits implies a 365-day sentence, we cannot draw the additional inference that such sentence is to run consecutive to the other terms. (See § 669.) These are matters that must be determined and expressed on the record by the trial court. Accordingly, the court shall resentence defendant following remand.
IV. DISPOSITION
With respect to the conviction, the judgment is affirmed; with respect to the sentence, the judgment is reversed. On remand, the court is directed to hold a new sentencing hearing to address the sentence on count 3 and the determination and application of custody and other presentence credits. Following the hearing, the court shall direct that an amended abstract of judgment be prepared and sent to the Department of Corrections and Rehabilitation.
We concur: Gaut, Acting, P.J., Miller, J.