Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA081357. Jerry E. Johnson and John T. Doyle, Judges.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted Austreberto Daniel Maldonado of attempted murder. Maldonado appeals on several grounds. First, he argues a photographic lineup was unduly suggestive. Second, he argues the trial court improperly prohibited cross-examination of a prosecution witness. Third, he argues there is insufficient evidence to support a jury finding. Maldonado also would recalculate presentence credits.
We reject Maldonado’s principal arguments. First, the photographic lineup was not impermissibly suggestive. Neither the reddish tint of Maldonado’s photograph nor other differences among the pictures caused Maldonado’s photo to stand out. Second, the trial court did not violate Maldonado’s confrontation rights by limiting questioning of the witness. Defense counsel fully impeached the witness’s credibility, and the excluded evidence was collateral. Third, substantial evidence supports the jury’s finding that the attempted murder was willful, deliberate, and premeditated. Maldonado had a gun in his vehicle; he chased the victim some distance and engaged him in a gang-related confrontation before the shooting. We therefore affirm the conviction. However, the abstract of judgment must be amended to reflect the correct presentence custody credit calculation and the statutory DNA testing requirement.
BACKGROUND AND PROCEDURAL HISTORY
Eduardo Flores and three friends were going to a party on the night of August 26, 2005. Flores drove. The group stopped at a liquor store around 11:00 p.m. Flores saw a gray or silver Ford Expedition near the store. Appellant Maldonado was driving the Expedition. When Flores left the liquor store, the Expedition began to follow his car. Flores made a series of three turns; the Expedition continued to follow him. The Expedition then “pulled over, pulled right on the side of [Flores’s car].” The Expedition’s occupants asked Flores where he was from. The driver’s window on the Expedition was down and the rear window on the driver’s side was halfway down. Flores replied that he did not “gang bang.” The people in the Expedition repeatedly screamed “Varrio Ochentas” and “80th Street.” Flores replied angrily that he did not care about their gang affiliation because he was not part of a gang. The rear window closed. Flores saw movement in the driver’s window. A single gunshot came from the driver’s window. The bullet hit Flores. Flores spent about three weeks in the hospital and then about four months in a rehabilitation hospital. Flores now is paralyzed from the chest down.
Police officer Melvin Hernandez heard a crime broadcast about the shooting. Within one minute, he stopped Maldonado’s Expedition. Maldonado was in front of his home, about one to one-and-one-half miles from where the shooting had taken place. Maldonado was driving and his two passengers were members of the Ochentas gang. Officers searched the three men and the Expedition, but did not find a gun. Hernandez did not smell gunpowder in the vehicle.
When shown a photographic lineup about a month after the shooting, Flores identified Maldonado as the Expedition’s driver. Flores said to the detective, “The guy in picture No. 4 is the driver of the Expedition who banged on me when I got shot.” Flores also looked at a photograph of Maldonado’s Expedition, which had chrome wheels; Flores was “100 percent sure” that that was the vehicle that had followed him. At trial, Flores initially indicated that Maldonado was the same person depicted in the photograph he had chosen from the array. Flores then said he was not certain because Maldonado looked different at trial; in the photograph Maldonado had looked heavier, had had a goatee, and had been bald. None of Flores’s passengers identified Maldonado before trial. However, Rosaura Barron -- who was sitting in the front passenger seat -- changed her testimony at trial. Barron testified that she saw Maldonado driving the Expedition and saw him shoot Flores.
A jury convicted Maldonado of attempted murder and found that the crime was willful, deliberate, and premeditated. The jury found allegations that Maldonado had personally fired a gun were not true. The court sentenced Maldonado to life in prison.
The jury found true Penal Code section 12022.53 allegations regarding a principal’s use and firing of a gun. However, the trial court previously had dismissed a gang allegation under Penal Code section 186.22. The prosecution did not allege a “principal armed” allegation under Penal Code section 12022(d). Accordingly, the gun-use findings were moot.
DISCUSSION
1. The photographic lineup that police showed to Flores was not
impermissibly suggestive.
a. Flores’s testimony about the photographic array
At the beginning of the preliminary hearing, Maldonado unsuccessfully moved to suppress evidence that Flores identified him from a photo lineup. Maldonado argued that the array of six pictures was unduly suggestive. He renewed the motion in the trial court. The court reviewed the photographic lineup and the transcript of the preliminary hearing, and concluded that the lineup was not impermissibly suggestive. The court noted that Maldonado’s photograph had a red tint and that there were differences among the photographs as to facial hair, but the array was not “so suggestive” as to require that it be “thrown out.”
Maldonado’s photograph was in position four in the photographic lineup. Flores testified at the preliminary hearing that he had identified the man in photograph four as the driver of the Expedition. Flores also testified he had told police that the driver was bald and light-skinned, with green eyes. Flores had looked at all of the photographs, and it had taken him a minute or two to pick out number four. On cross-examination, Flores added that the driver had a goatee. Flores said that the man in photograph four “was him, because I could tell because he was bald, light-skinned[] and by reflection of the light that passed, I seen [sic] that he had colored eyes.” When asked whether he saw anyone else in the array with green eyes, Flores answered, “No.” Flores said that he had not noticed that photograph four was tinted red. When asked whether he believed his eyes would have been “drawn to number 4 first because of its color,” Flores replied, “Um, yeah.”
Flores testified at the preliminary hearing that the Expedition was alongside the passenger side of his car for about two minutes as they drove along. He was focused on his driving and got only a five- to ten-second look at the driver. Flores estimated that he was about 10 feet away from the Expedition’s driver-side door. However, the greater height of the Expedition partially blocked his view. Also, the passenger in the front seat of his own car sometimes blocked his view.
Flores testified he focused on the driver’s entire face, but the hair, skin color, goatee, and “light from his eyes” led him to select photograph four. He estimated his degree of certainty that the man in photograph four was the driver at 90 to 95 percent. The detective who showed Flores the photographs read him an admonition that the array might not contain a photograph of the person who committed the crime, hair and facial hair might be different, the photographs might not accurately depict the subject’s true complexion, and Flores should ignore markings, numbers, and any differences in the types and styles of the photographs. Flores kept that admonition in mind as he examined the pictures.
Flores was unable to pick anyone out of a live lineup a few weeks before the preliminary hearing. He thought the third person in the lineup was the driver of the Expedition, but could not be certain. The person was thinner, had longer hair, and had no goatee. That third person in fact was Maldonado.
b. Discussion
Maldonado contends the trial court erred by admitting Flores’s testimony about the photographic lineup. He argues the array was unduly suggestive because his photograph had a reddish cast, only three of the six men in the array were bald, only three had goatees, only two were both bald and had goatees, only Maldonado had green eyes, and Maldonado’s name and an identification number were printed under the row containing his photograph.
To determine whether an extrajudicial identification is so unreliable that it violates due process, the court first must decide whether the identification procedure was unduly suggestive and unnecessary. If it was, the court must determine whether the identification was nonetheless reliable under the totality of the circumstances. (People v. Gonzalez (2006) 38 Cal.4th 932, 942 (Gonzalez).) A pretrial identification procedure is impermissibly suggestive if it creates a very substantial likelihood of irreparable misidentification, i.e., it suggests in advance the identity of the person police suspect. (People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Ochoa (1998) 19 Cal.4th 353, 413.) The defendant bears the burden of proving unfairness as a demonstrable reality, not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
The rationale for this rule is that a witness’s recollection of a stranger may be distorted by an initial identification procedure that is unduly suggestive. The witness then misidentifies the person suggested by the procedure, retains in his memory the image of the person he misidentified, and continues to misidentify that person in later proceedings, including trial. (Manson v. Brathwaite (1977) 432 U.S. 98, 112; Simmons v. United States (1968) 390 U.S. 377, 383-384.)
On appeal, we review the trial court’s findings of historical fact deferentially, but “we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.” (Gonzalez, supra, 38 Cal.4th at p. 943.)
We have reviewed the photographic lineup (People’s Exhibit 2 at trial). The photograph of Maldonado does have a prominent red tint. But each of the photos differs in lighting, background color, and overall tone. Photographs three and five stand out as much brighter photographs taken in closer proximity to the subject, so that the facial features are more prominent. Despite the differences in lighting and the red tint on Maldonado’s photograph, the men in photographs one through five all appear to be Latino men with relatively light-colored skin. (The man depicted in photograph six may be African-American or Latino or of mixed race.) All of the men have similarly-shaped ears and extremely short hair. Only the man in photograph five appears to be bald or to have a freshly-shaved head. However, Maldonado and the men in photographs one and three appear to have shaved their heads quite recently, while those in photographs two and six have more hair. All of the men have some facial hair: Maldonado and the men in photographs three, five, and six have moustaches as well as hair under the lower lip. Those in photographs three and five clearly have goatees; shadows in photographs four and six make it hard to tell whether those men (Maldonado and an unidentified man) have goatees, but it appears that they do. The shape of Maldonado’s head is roughly similar to those of the men in photographs one and five; the other three men have more elongated heads and thinner faces. With the exception of the man in photo number one, who appears to be several years younger, all of the men in the photographs appear to be roughly of the same age. None of the men appears to have green or light-colored eyes, though Maldonado’s eyes appear somewhat lighter in color than those of the other men. In short, the photographs in the lineup bear many similarities to one another, and each person in the array possesses at least one attribute described by Flores.
Beneath photograph five is printed “ID: 116920 Name: 187Maldonado.” If this label appeared beneath Maldonado’s photograph, it would create a high degree of impermissible suggestiveness. (People v. Carlos (2006) 138 Cal.App.4th 907, 912.) But the writing does not appear beneath Maldonado’s photograph, nor is it in any other way linked to his photograph. Nothing in the record suggests that Flores knew Maldonado’s name or knew that the person in photograph four was named Maldonado.
We conclude that the array of photographs did not suggest in advance of Flores’s identification the identity of the person police suspected. “Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him.” (People v. Carpenter (1997) 15 Cal.4th 312, 367.) None of the factors Maldonado cites caused his photograph to stand out or suggested that a person viewing the array should select it. The discoloration of Maldonado’s photograph did not suggest it should be selected. As noted, other photographs were brighter with larger facial images. They competed for prominence. The detective advised Flores that the photographs might not accurately reflect the subjects’ complexions and that he should disregard differences in the photographic styles. Flores testified that he had not noticed the reddish tint of Maldonado’s photograph until defense counsel pointed it out. Flores never mentioned the tint as a factor that led him to select Maldonado’s photograph; instead, he cited particular characteristics of the person depicted in photograph four.
Ideally, the police would have included one or more additional photographs of men with eye color similar to Maldonado’s. However, as noted, Maldonado’s eyes do not appear to be green or even light-colored in photograph four. Moreover, the police may not have been able to find any other photographs of light-skinned Latino men of approximately the same age as Maldonado, with goatees, bald or shaved heads, and green eyes. The label under photograph five was not linked to Maldonado’s photograph in any way Flores could discern; thus it did not render the array suggestive. Finally, Flores’s later failure to identify Maldonado in the live lineup or in court shows that his photo identification did not taint his recollection. Exclusion of the photo identification evidence therefore would not serve the rationale for the rule against suggestive identifications. We conclude the trial court properly determined that the photographic array was not impermissibly suggestive. The trial court’s denial of Maldonado’s motion to exclude Flores’s testimony on this point was correct.
2. Exclusion of evidence about Barron’s brother did not violate
the Confrontation Clause.
a. Barron’s testimony
Maldonado contends the trial court violated his constitutional confrontation rights by precluding defense counsel from cross-examining prosecution witness Rosaura Barron about her brother’s gang membership. Maldonado argues that this questioning might have demonstrated that Barron was biased.
Barron -- 16 years old at the time of trial -- was the front-seat passenger in Flores’s car when he was shot. She testified on direct examination that the driver of the Expedition fired the shot at Flores, but she did not see the driver well enough to identify him. She recalled the driver was bald and Latino, and had a moustache and “colored eyes.” She could not identify the driver in a photographic or live lineup.
On cross-examination, Barron testified she did not see the driver at all. Defense counsel questioned her extensively about contradictions and discrepancies between her trial testimony and her prior testimony and statements to the police. Barron admitted that at the preliminary hearing she had testified she did not know whether the driver or a passenger fired the shot. Although Barron previously had testified the driver had “colored eyes” and she had told the police he had green eyes, she actually never saw the driver’s eyes. She based her description of the driver’s eyes on what Estela “Maria” Garcia -- who also was in Flores’s car -- told her. At the preliminary hearing, Barron testified that the Expedition was green-gray or green; at trial she insisted that it was gray. Counsel also asked Barron at trial about her statement to police that the Expedition was white; her conversation with Garcia before police arrived at the scene; and her testimony at the preliminary hearing that she talked to Flores about the crime while he was hospitalized, that the driver “looked like a white boy,” and that the driver never looked at Flores’s car.
Following a recess, the prosecutor asked Barron why she seemed to be uncomfortable. She replied that “other people” -- whom she did not want to name -- were making her uncomfortable, and she was concerned for her safety. The prosecutor then asked Barron if she knew what it meant to be a “rat,” what happened to “snitches” in her neighborhood, and whether something had happened to her family’s home after the shooting. Barron answered that, a couple of months after the crime, someone spray-painted her house with “Eighties,” “Ochentas,” and “rates,” which she testified meant “rats.” Her family reported the graffiti to the police, who took photographs that were introduced at trial.
The prosecutor then asked Barron about her revelation during the recess that she had more information than she previously had shared with him or the police. Barron testified that she had seen Maldonado driving around her neighborhood beginning about three months before the crime. She first saw him driving a small white car. Then, about a month before the shooting, she saw him driving the gray Expedition. Barron testified that she knew Maldonado shot Flores, but she neither told Flores, the police, or the prosecutor nor admitted it in court because she feared what might happen to her. She explained that “they know where I live at,” and “something could have happened to me and my family.” In addition, a group of girls had come to her house and screamed and cursed at her.
The prosecutor also stated he had brought defense counsel into the meeting with Barron after she disclosed the new information.
Defense counsel then asked Barron whether her brother was in a gang. The court sustained the prosecutor’s relevance objection. Counsel asked whether Barron was familiar with the Street Saints gang. The trial court again sustained a relevance objection. At sidebar, defense counsel explained that he believed -- apparently based on Barron’s statements during the recess -- that her brother was a member of the Street Saints gang, a rival of the Ochentas gang. He said Barron told counsel that the occupants of the Expedition shot at Flores’s car because they thought her brother was the driver. Co- counsel added that the brother’s gang affiliation was relevant to “mitigate” the witness intimidation evidence, because the graffiti may have been directed toward Barron’s brother, not her. Counsel further argued that Barron said her brother “was in jail in prison at the time that all this went down and that he’s now been marked as a rat by the Ochentas and the Street Saints. So I think it’s relevant . . . to counter their assertion of intimidation.”
The court stated that neither Barron’s opinion about the reason the culprits shot at Flores’s car nor the purpose of the graffiti was relevant, because “this witness is intimidated by the fact it’s on there[;] why it was placed on there is not relevant, either.” The court also rejected a defense request to introduce the evidence “to prove that her fear might not be based on a reasonable situation because of her connection with her brother.”
b. Discussion
The Confrontation Clause ensures that testimony presented against a criminal defendant is reliable. (Maryland v. Craig (1990) 497 U.S. 836, 845.) The right of confrontation includes the right to cross-examine adverse witnesses on matters bearing on their credibility. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) However, the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense wishes. (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) Judges retain wide latitude to impose reasonable limits on cross-examination. (People v. Frye (1998) 18 Cal.4th 894, 946.) To establish a violation of his confrontation rights, a defendant must show that the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility. (Ibid.)
Evidence that a witness is afraid to testify or fears retaliation is relevant to her credibility and therefore admissible. (Evid. Code, § 780; Gonzalez, supra, 38 Cal.4th at p. 946.) An explanation of the basis of the witness’s fear also is admissible, in the court’s discretion. (Ibid.) It is not necessary to show that the witness’s fear is directly linked to the defendant. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.)
As the trial court noted, Barron’s opinion about the motive for the shooting was irrelevant and inadmissible; Maldonado’s offer of proof did not suggest that Barron’s opinion was anything more than speculation. Moreover, the proposed testimony that the perpetrators mistook Flores for a member of a rival gang would have established a more compelling motive for the crime, thereby strengthening rather than diminishing the prosecution’s case.
Evidence that Barron’s brother was a member of a rival gang had some tendency to prove that the graffiti on her family home may have been unrelated to her status as a witness to the shooting of Flores. However, the graffiti writer’s motive was irrelevant. Maldonado was not charged with witness intimidation. The relevance of the graffiti was to show that Barron was afraid to testify against Maldonado; that fear, in turn, explained her inconsistent statements and testimony. Exploring the gang affiliation of Barron’s brother through cross-examination thus would have led the jury into collateral matters.
The introduction of evidence about the gang affiliation and incarceration of Barron’s brother would not have produced a significantly different impression of Barron’s credibility. Her lengthy cross-examination at trial revealed that she was an inconsistent witness who was alternately uncooperative and overly cooperative. Barron agreed with many of defense counsel’s questions, even though they contradicted her own recent testimony. For example, Barron testified on redirect examination that she did not tell the police she knew the identity of the person who shot Flores because she was frightened. On recross, defense counsel asked if, on the night of the crime, she told the police that she could identify the driver of the SUV. She replied, “Yes.” Barron’s trial testimony was internally inconsistent, and defense counsel skillfully highlighted those numerous inconsistencies, as well as contradictions and discrepancies between her trial testimony and her prior statements and testimony. These contradictions and discrepancies substantially diminished Barron’s credibility. Even her unexpected testimony at trial fingering Maldonado provided impeachment material. Defense counsel took full advantage by contrasting Barron’s admittedly false testimony under penalty of perjury at the preliminary hearing and at the trial with her later story. Under cross-examination, Barron also said her earlier testimony that she had not seen the driver of the Expedition was correct, contrary to what she had just told the prosecutor. In short, Barron’s credibility already was in tatters.
It is unlikely that defense counsel would have diminished Barron’s credibility further or obtained any other marginal benefit had the court permitted inquiry into her brother’s gang affiliation. Even if the defense had been able to create an inference that Barron’s brother was the target of the graffiti, it also would have had to prove that Barron knew the graffiti was not directed at her. The defense offer of proof was that Barron’s brother was in custody. Barron’s prior testimony was that she also was influenced by girls who came to her house to shout curses at her. So the defense would have faced significant difficulty in counteracting the inference that intimidation efforts were directed to Barron or that she believed she was the target of those efforts.
Nor has Maldonado given a plausible rationale for his argument that he could have established bias through evidence of Barron’s brother’s gang affiliation and its relationship to the graffiti. Maldonado suggests that “[i]t is quite possible that cross-examination may have revealed that the graffiti, for reasons not readily apparent involving her brother, actually intimidated or persuaded Ms. Barron to now falsely identify appellant as the shooter.” This argument relies on complete speculation, both as to the content of Barron’s potential testimony and its usefulness. Moreover, although Maldonado argues that this unknown testimony and rationale might account for Barron’s sudden revelations at trial, he fails to explain why her purported bias did not lead her to implicate him earlier in the proceedings. The graffiti incident apparently occurred a few months after the August 2005 crime. That was several months before the March 2006 preliminary hearing and many months before the trial, which began in late July 2006. Barron did not implicate Maldonado until her second day of testimony at trial.
Accordingly, we conclude that the introduction of evidence about Barron’s brother would not have produced a significantly different impression of Barron’s credibility. The jury apparently did not believe Barron in any event, as it found the allegation that Maldonado personally discharged a firearm to be not true. The trial court’s exclusion of the proposed testimony therefore did not violate Maldonado’s confrontation rights.
3. Substantial evidence supports the jury’s finding that the attempted
murder was willful, deliberate, and premeditated.
Maldonado contends the evidence was insufficient to support the jury’s finding that the attempted murder was willful, deliberate, and premeditated. He argues the shooting was a “spur of the moment reaction” to Flores’s angry response to the gang challenge from the occupants of the Expedition.
We review the whole record in the light most favorable to the judgment to determine whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
“Premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) The extent of the reflection -- not the length of time -- is the true test of premeditation. (Ibid.) The processes can occur rapidly, even after an altercation is underway. (Ibid.; People v. Sanchez (1995) 12 Cal.4th 1, 34.) The types of evidence that typically support a finding of premeditation and deliberation are planning activity, a relationship with the victim or conduct from which a motive can be inferred, and a manner of killing or attempted killing from which a preconceived plan can be inferred. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) However, these categories are not prerequisites; they are guidelines to assist reviewing courts in assessing whether the evidence supports an inference that a killing or attempted killing resulted from preexisting reflection and a weighing of considerations rather than an unconsidered or rash impulse. (People v. Sanchez, supra, 12 Cal.4th at pp. 32-33.)
Maldonado’s time frame is too narrow. He fastens on the verbal exchange between Flores and Maldonado. The evidence before the jury was not so limited. There were two proofs that showed planning and deliberation. First there was Maldonado’s choice to have a loaded gun handy. No one can make that decision at the wheel of his car on the spur of the moment. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224; People v. Wells (1988) 199 Cal.App.3d 535, 540-541.) Second was the length of Maldonado’s chase. The evidence showed planning that began when Maldonado first saw Flores’s car. The Expedition began to follow Flores when he left the liquor store. Maldonado pursued Flores as he made at least three turns to travel west, then south, then west again. The Expedition ultimately caught up with Flores’s car, went a little past, then dropped back alongside. The Expedition drove next to Flores’s car for about 30 seconds before the shooting. Maldonado chased Flores for more than a mile or about 12 blocks. A 12-block pursuit is a long pursuit. This confrontation was not on the spur of the moment. It was the culmination of planning and design. In sum, ample evidence supports the jury’s finding that Maldonado’s attempt to murder Flores resulted from preexisting reflection and the weighing of considerations, notwithstanding the chance nature of the original encounter and the passage of relatively little time. Accordingly, we reject Maldonado’s insufficiency of evidence claim.
4. The trial court must issue an amended abstract of judgment.
The trial court awarded Maldonado 349 days of actual custody credit, plus 175 days of conduct credit, for a total of 524 days of presentence credit.
Maldonado contends -- and respondent concedes -- that, although the total credit was correct, Maldonado was entitled to 350 days of actual custody credit and 174 days of conduct credit. The parties agree this court should direct amendment of the abstract of judgment to reflect the correct credit calculation. We do so.
Respondent contends the trial court erred by failing to order Maldonado to submit to DNA testing, as required by Penal Code section 296, subdivision (a)(1). This testing is mandatory, and the requirement is not forfeited by the failure to raise the issue in the trial court. (Pen. Code, § 296, subds. (d) & (e).) Nor is the statutory requirement negated by the trial court’s failure to order testing. (Pen. Code, § 296, subd. (f).) Accordingly, when the trial court amends the abstract of judgment to reflect the correct credits calculation, it also must check the DNA testing order field.
DISPOSITION
The judgment is affirmed. However, the trial court is directed to issue an amended abstract of judgment reflecting the following: (1) appellant should receive 350 days of actual presentence custody credit and 174 days of conduct credit, for a total of 524 days; and (2) appellant is required to submit to DNA testing under Penal Code section 296.
We concur: COOPER, P. J., FLIER, J.