Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06HF2516, Craig E. Robison, Judge.
James R. Bostwick, Jr., 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, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
On the evening of December 27, 2006, defendant David Florentino Montes approached two teenagers, Kathleen B. and Michelle F., as they were walking to a high school basketball game. Wearing a hooded sweatshirt and a bandana which covered part of his face, defendant twice demanded that Kathleen and Michelle give him the purse Kathleen was carrying or he would shoot them. He displayed what appeared to be a gun near his waistline. After Kathleen refused to hand over her purse and defendant began counting, Michelle grabbed the purse from Kathleen and threw it toward defendant; Michelle and Kathleen then ran away from defendant.
Following a bench trial, defendant was convicted of two counts of robbery and one count of making criminal threats. Before trial, defendant had pleaded guilty to receiving stolen property, felony possession of methamphetamine, felony possession of heroin, and misdemeanor possession of controlled substance paraphernalia. On appeal, defendant contends (1) his conviction for robbing Kathleen must be reversed because substantial evidence failed to show that she possessed the purse at the time it was taken or that the purse was taken from her by force or fear; (2) his conviction for making criminal threats must be reversed because there was no substantial evidence showing that he made an unconditional threat or that Kathleen and Michelle reasonably suffered sustained fear as a result of any such threat; (3) his conviction for receiving stolen property (Kathleen’s purse) must be struck under Penal Code section 496 because he was also convicted of robbing Kathleen and Michelle by taking the same purse; and (4) he is entitled to one extra day of presentence custody credit based on the testimony of the arresting officer as to the arrest date. (All statutory references are to the Penal Code unless otherwise specified.)
We affirm defendant’s robbery convictions and conviction for making a criminal threat. However, pursuant to section 496, defendant cannot be convicted of both robbery and receipt of stolen property as to the same property. As no exception to this statute applies in this case, and as conceded by the Attorney General, defendant’s conviction for receipt of stolen property must be struck and the judgment must be reversed as to that offense accordingly. For reasons we explain, and also conceded by the Attorney General, defendant is entitled to an additional day of presentence custody credit. We therefore direct the trial court to correct the judgment accordingly.
FACTS
At 6:30 p.m. on December 27, 2006, 16-year-old Kathleen and 16-year-old Michelle were walking to Costa Mesa High School to attend a basketball game when “out of nowhere,” defendant appeared in front of them; he was wearing a black hooded sweatshirt and a black bandana which covered part of his face. Kathleen was carrying a “red knock[-]off Prada bag” she had been given for Christmas. Kathleen testified she had “a lot of valuable stuff in there” including her Christmas money, iPod, digital camera, house keys, and makeup.
Kathleen testified she was scared when she saw defendant and “had a gut feeling something was going to happen.” She moved her bag to her right shoulder so that it was between her and Michelle. Michelle testified she was scared when she saw defendant come out from behind the bushes; she grabbed Kathleen’s hand.
Defendant asked them “[d]o you guys have a buck or two?” Kathleen and Michelle each said, “no.” Defendant responded, “well, what’s in the bag?” Kathleen testified that after she responded, “let me check,” defendant said, “no, bitch, give me your fucking bag or I’m going to shoot you.” Michelle testified defendant said, “I’m going to need you to give me your friend’s purse before I shoot or I’ll shoot.” Defendant lifted up his sweatshirt, and Kathleen and Michelle saw what each one believed was part of a silver gun.
Michelle told Kathleen to give defendant the purse three times. Michelle testified Kathleen was nervous and scared, and “was just saying no.” Kathleen asked if she could get her cell phone out of the purse, and defendant said, “hurry up, hurry up, just give me your bag.” Kathleen searched through her purse but could not find her phone. Defendant said they were “making a big scene,” stated he was “going to shoot,” and started counting. “[W]hen he got to two,” Michelle grabbed Kathleen’s purse with both hands and threw it at defendant because she was afraid he was going to shoot them. Michelle testified she was scared he was going to shoot her or both of them. Kathleen and Michelle ran away to a parking lot. Michelle saw defendant enter a black car and drive away.
Kathleen estimated the incident lasted five to eight minutes. Kathleen testified she “just didn’t want to give [the purse] to him,” she never told Michelle that she wanted her to give defendant the purse, and Michelle did not have Kathleen’s permission to hand over the purse. Kathleen also testified she did not resist Michelle when she grabbed the purse because she was scared. Kathleen cried hysterically after the incident. She stated she was scared of getting shot the whole time.
BACKGROUND
Defendant was charged in an information with (1) two counts of second degree robbery in violation of sections 211 and 212.5, subdivision (c) (counts 1 and 2); (2) making criminal threats in violation of section 422 (count 3); (3) receipt of stolen property in violation of section 496, subdivision (a) (count 4); (4) felony possession of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a) (count 5); (5) felony possession of a controlled substance (heroin) in violation of Health and Safety Code section 11350, subdivision (a) (count 6); and (6) misdemeanor possession of controlled substance paraphernalia in violation of Health and Safety Code section 11364 (count 7). The information further alleged that in 2004, defendant was convicted of felony possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), for which he served a prison term.
Karl David English was also named as a defendant in the same information as to counts 1, 2, 3, and 4. The issues raised in this appeal do not relate to English so we do not consider him further in this opinion.
Defendant pleaded guilty to counts 4, 5, 6, and 7, and admitted the prior conviction allegation. Defendant waived a jury trial as to counts 1, 2, and 3. Following a bench trial, the court found defendant guilty as to counts 1, 2, and 3. The trial court sentenced defendant to a total prison term of five years eight months by (1) imposing the upper term of five years on count 1; (2) imposing a concurrent low-term, two-year sentence on count 2; (3) staying sentencing pursuant to section 654 as to counts 3 and 4; (4) imposing a consecutive one-third the middle term (eight months) on count 5; (5) imposing the low term of 16 months as to count 6 to be served concurrently to the sentence imposed on count 1; (6) suspending the sentence on count 7; and (7) imposing a one-year term for the admitted prior conviction allegation but striking that punishment. Defendant was awarded a total of 255 days of presentence custody credit under section 2933.1 composed of 222 actual days’ credit plus 33 days of conduct credit.
Defendant appealed.
DISCUSSION
I. Substantial Evidence Supported Defendant’s Convictions of Two Counts of Robbery.
Defendant contends his conviction of two counts of robbery should be reversed because no substantial evidence showed he took the purse from both Michelle’s possession and Kathleen’s possession. Defendant also contends substantial evidence did not show he took the purse from Kathleen by force or fear within the meaning of section 211.
A. Standard of Review
“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal.” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
B. Substantial Evidence Showed Michelle Possessed the Purse Within the Meaning of Section 211.
Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Possession, within the meaning of section 211, may be either actual or constructive. (People v. Gilbeaux (2003) 111 Cal.App.4th 515, 520.)
In People v. Moore (1970) 4 Cal.App.3d 668, 670-671, the appellate court concluded a visitor possessed a business’s money within the meaning of section 211 when she complied with the robbers’ demands and handed the money over to them at gunpoint. In People v. Moore, the defendant and a companion entered a business where two young women were working. (Id. at p. 670.) The defendant brandished a gun and said, “[t]his is a stick-up. Give me the money.” (Ibid.) The women thought it was a joke and did not respond. (Ibid.) The defendant fired a shot into the wall. (Ibid.) The mother of one of the women entered the business, realized “an actual holdup was in progress,” and, “at defendant’s insistence, removed money from the cash register and from a money bag and gave it to defendant.” (Ibid.) The defendant argued the evidence was insufficient to support his conviction for robbery as to the mother because he only took money belonging to the business and the mother was not an employee “but merely a visitor.” (Ibid.) The appellate court rejected the defendant’s argument, stating, “[i]t is no defense to a charge of robbery (or of theft) that the victim was not the true owner of the property taken. Theft can be committed against one who was himself a thief. [Citations.] It follows that, once [the mother] exercised dominion over the money, whatever her motivation in so doing, she became, insofar as defendant was concerned, the person in possession thereof, and she was properly designated in the information as the immediate victim of his robbery.” (Id. at pp. 670-671.)
The California Supreme Court favorably cited People v. Moore, supra, 4 Cal.App.3d 668 in People v. Miller (1977) 18 Cal.3d 873, which involved a robbery of a jewelry store. In People v. Miller, the defendant and an accomplice entered a jewelry store. (People v. Miller, supra, 18 Cal.3d at p. 878.) The defendant approached a security guard and told him, “‘[t]his is a goddam holdup,’ and attempted to draw a gun from a shoulder holster.” (Ibid.) The defendant’s accomplice exhibited a gun and ordered one of the store’s employees to the floor. (Id. at p. 879.) The defendant, who was holding a gun, told another store employee to get under the display case. (Ibid.) Jewelry was taken during the robbery. (Ibid.) The defendant argued the security guard was not a victim of the robbery because there were other employees present at the time of the robbery. (Id. at pp. 880-881.) The California Supreme court disagreed. (Id. at p. 881.)
Citing, inter alia, People v. Moore, supra, 4 Cal.App.3d 668, the California Supreme Court held: “‘Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.’ [Citation.] Robbery convictions have been upheld against contentions that janitors and night watchmen did not have a sufficient possessory interest in their employer’s personal property to qualify as victims. [Citations.] Even a visitor in a store who was forced to remove and surrender money from the store’s cash box was held to be a victim of the robbery.” (People v. Miller, supra, 18 Cal.3d at p. 880.) The court held, “[t]he fact that there were other persons present in the store who also had constructive possession of the personal property is not relevant as more than one person may constructively possess personal property at the same time and be a victim of the same offender. [Citation.] Thus [the security guard] had constructive possession of the property taken and could properly have been alleged to be a victim.” (Id. at p. 881.)
In People v. Mai (1994) 22 Cal.App.4th 117, 129, the appellate court held that property taken during a robbery need not be taken from the actual or constructive possession of the victim. In People v. Nguyen (2000) 24 Cal.4th 756, 761, the California Supreme Court expressly disapproved of People v. Mai on the ground it dispensed with the possession element of robbery, stating: “We consistently have held that, in order to constitute robbery, property must be taken from the possession of the victim by means of force or fear. ‘To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear.’ [Citation.]” The high court cited the constructive possession analysis of People v. Moore, supra, 4 Cal.App.3d 668 as it was discussed in People v. Miller, supra, 18 Cal.3d 873, and, quoting from People v. Miller, stated, “‘[e]ven a visitor in a store who was forced to remove and surrender money from the store’s cash box was held to be a victim of the robbery.’” (People v. Nguyen, supra, 24 Cal.4th at p. 761.)
Here, substantial evidence showed Michelle was in actual possession of the purse at the time it was handed over to defendant. That Michelle first took the purse away from Kathleen without permission before handing it over to defendant does not undermine the possession element as to Michelle. Michelle’s role in the robbery was like that of the mother in People v. Moore, supra, 4 Cal.App.3d 668—she handed over the property of another in response to defendant’s demand at gunpoint. Substantial evidence therefore supported the finding Michelle possessed the purse at the time it was taken by defendant within the meaning of section 211.
C. Substantial Evidence Showed Kathleen Also Possessed the Purse Within the Meaning of Section 211.
“[T]he possession required for robbery is evidence the person charged as the victim owns the property, has actual possession or acts in some representative capacity with respect to the owner of the property.” (People v. Jones (1996) 42 Cal.App.4th 1047, 1054, italics added.) Substantial evidence showed Kathleen owned the purse and was present at the time defendant demanded at gunpoint it be turned over to him and Michelle grabbed the purse and threw it to him. Even though Michelle grabbed the purse away from Kathleen without permission and gave it to defendant, Kathleen remained in possession of the purse until it was taken by defendant for purposes of section 211.
Defendant argues that once Michelle grabbed the purse away from Kathleen, Kathleen was no longer in possession of the purse and defendant cannot be properly convicted of robbing Kathleen even though Michelle turned over the purse at his demand. Defendant’s argument is without any legal support.
In People v. Gilbeaux, supra, 111 Cal.App.4th at page 517, the defendant and an accomplice entered a grocery store, bound two janitors who were regularly assigned to work at the store through their employer cleaning company, confined them in a storage room along with two store employees, and forced the store’s assistant manager to open the safe and put the money into a bag. (A fourth store employee fled to a back office and contacted the police.) (Ibid.) The defendant was convicted of six counts of robbery. (Ibid.) He argued the evidence was insufficient to support his robbery convictions as to the two janitors. (Id. at p. 520.) Even though the janitors were merely present during the robbery (e.g., they did not turn over any store property to the robbers) and were not actual employees of the store, the appellate court upheld those convictions on the ground that the janitors “had sufficient representative capacity with respect to [the grocery store] so as to be in constructive possession of property stolen from [the grocery store].” (Id. at p. 523.)
It logically follows from the reasoning of People v. Gilbeaux, that Kathleen, who actually owned the purse, remained in constructive possession of the purse even after Michelle grabbed the purse in order to turn it over to defendant to comply with his demand at gunpoint. Substantial evidence therefore supported the finding the purse was taken by defendant from Kathleen’s possession.
D. Substantial Evidence Showed Defendant Took the Purse from Kathleen’s Possession Through Force or Fear.
“[T]he fear necessary for robbery is subjective in nature, requiring proof ‘that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Case law also establishes that the force necessary to elevate a theft to a robbery must be something more than that required to seize the property.” (People v. Anderson (2007) 152 Cal.App.4th 919, 946.)
More than substantial evidence showed defendant took Kathleen’s purse by force or fear. The evidence showed (1) defendant came out from behind bushes in front of Michelle and Kathleen; (2) he wore a hooded sweatshirt and a bandana covering part of his face; (3) he twice threatened to shoot if they did not give him the purse; (4) he showed Michelle and Kathleen what appeared to each of them to be part of a gun; (5) he started counting; (6) three times Michelle told Kathleen to give defendant the purse; (7) Kathleen and Michelle testified they were afraid; (8) Michelle grabbed the purse from Kathleen and threw it at defendant because she was afraid he was going to shoot them; and (9) although Kathleen did not want defendant to take her purse, she did not resist when Michelle grabbed the purse from her because she was scared.
Defendant argues substantial evidence did not support the force or fear element of his robbery conviction as to Kathleen because she never complied with defendant’s demand to hand over her purse. But Kathleen testified that she did not resist when Michelle grabbed her purse because she was scared. Kathleen would have known that Michelle intended to turn the purse over to defendant when Michelle grabbed it from her because Michelle had already asked Kathleen three times to turn over the purse to defendant. Thus, substantial evidence supported the finding defendant took the purse away from Kathleen by force or fear.
II. Substantial Evidence Supported Defendant’s Conviction for Making Criminal Threats in Violation of Section 422.
The elements of the crime of making a criminal threat are (1) the defendant willfully threatened to unlawfully kill or cause great bodily injury to the victim; (2) the defendant made the threat orally, in writing, or by means of electronic communication; (3) the defendant intended that his or her statement be understood as a threat; (4) the threat was so clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect it would be carried out; (5) the threat actually caused the victim to be in sustained fear for his or her safety; and (6) the victim’s fear was reasonable under the circumstances. (§ 422; Judicial Council of Cal., Crim. Jury Instns. (2007-2008) CALCRIM No. 1300; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant contends substantial evidence did not show his threats (1) were so clear, immediate, unconditional, and specific that they communicated to Kathleen and Michelle a serious intention and the immediate prospect they would be carried out or (2) caused Kathleen or Michelle to be in sustained fear for their safety. We disagree.
The evidence showed that defendant twice clearly and specifically told Kathleen and Michelle to give him the purse or he would shoot. He showed them something silver in his waistband that looked like part of a gun. When they failed to immediately give him the purse, defendant conveyed the immediacy of his threats to shoot them by beginning to count, at which time Michelle grabbed the purse and threw it at him.
Defendant contends his threats to shoot were not “so unconditional that [they] presented an immediate prospect of execution. [Defendant]’s threat to kill . . . unless the purse was turned over was something with which [Kathleen and Michelle] could and did comply in order to avoid the threatened harm.”
In People v. Brown (1993) 20 Cal.App.4th 1251, 1253, the defendant approached two women, pointed a gun at the head of one of them, and made menacing statements. After the other woman said they should call the police, the defendant said he would kill them if they did. (Ibid.) A jury found the defendant guilty of making a criminal threat in violation of section 422, but the appellate court reversed the judgment on the ground section 422 does not include threats that are conditional in any way: “The plain meaning of an ‘unconditional’ threat is that there be no conditions. ‘If you call the police . . . ’ is a condition. [¶] To—by some linguistic legerdemain—construe ‘unconditional threat’ to include a ‘conditional threat’ would only create ‘serious constitutional problems.’” (People v. Brown, supra, 20 Cal.App.4th at p. 1256.)
In People v. Bolin (1998) 18 Cal.4th 297, 338, the California Supreme Court expressly disapproved of People v. Brown, supra, 20 Cal.App.4th 1251, stating: “Since [People v. ]Brown, several Court of Appeal decisions have expressly disagreed with [People v. Brown’s] strict interpretation of section 422. [Citations.] We find the reasoning of these subsequent cases more persuasive and now hold that prosecution under section 422 does not require an unconditional threat of death or great bodily injury.” The Supreme Court reasoned section 422 did not require an absolutely unconditional threat, but a threat “so” unconditional as to convey gravity of purpose and immediate prospect of execution. (People v. Bolin, supra, 18 Cal.4th at pp. 339-340 [“‘The use of the word “so” indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim’”].)
Here, defendant twice threatened to shoot if Kathleen and Michelle did not give him the purse. To the extent defendant’s threats were conditioned on Kathleen’s and Michelle’s acquiescence with his demand, the threats were not conditional to such an extent as to belie defendant’s “gravity of purpose” and the “immediate prospect” of execution of the threats to take them outside of section 422.
Defendant also contends the evidence did not show Kathleen and Michelle were placed in sustained fear. “Section 422 requires the person threatened ‘reasonably to be in sustained fear for his or her own safety[.]’ . . . [¶] Defining the word ‘sustained’ by its opposites, we find that it means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In People v. Allen, the appellate court concluded, “[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Ibid.)
Here, substantial evidence showed Kathleen and Michelle were reasonably in sustained fear for their safety. As discussed ante, defendant suddenly appeared wearing a hooded sweatshirt and a bandana covering part of his face and twice threatened to shoot them if they did not give him the purse. They both saw what they believed to be a gun near defendant’s waistline. Kathleen and Michelle both testified they were scared they were going to be shot during their five- to eight-minute encounter with defendant; Michelle grabbed Kathleen’s hand because she was scared. When defendant started counting, Michelle grabbed the purse and threw it because she was afraid he was going to shoot them; Kathleen did not resist because she was scared. Michelle and Kathleen thereafter ran away from defendant; Kathleen cried “hysterically.” We find no error.
III. Defendant’s Conviction for Receipt of Stolen Property Must Be Reversed.
Defendant contends his conviction for receiving stolen property must be reversed because his robbery convictions were based on the theft of the same property. We agree.
In the respondent’s brief, the Attorney General concedes defendant’s conviction for receipt of stolen property must be reversed.
Count 4 of the information alleged defendant “did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding PURSE, property which had been stolen and obtained by theft and extortion, knowing that the property had been stolen and obtained by theft and extortion” in violation of section 496, subdivision (a). Defendant pleaded guilty to, inter alia, count 4 before the two counts of robbery and the single count of making criminal threats were tried to the court. The trial court found defendant guilty of both counts of robbery. The evidence at trial showed the robberies for which defendant was convicted solely involved the taking of the same purse referenced in count 4 of the information.
Section 496, subdivision (a) provides: “A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property.” (See People v. Smith (2007) 40 Cal.4th 483, 522 [common law has long established a person may not be convicted of both stealing and receiving the same property, and the Legislature codified this legal principle in § 496, subd. (a)].) “There are two limited exceptions to the common law rule: ‘(1) when the acts of receiving or concealment are completely divorced from the theft, as where the thief disposes of the property and then, in a separate transaction, receives it again, and (2) when the thief is a co-conspirator of the receiver.’” (People v. Smith, supra, 40 Cal.4th at p. 522, fn. 10.) Neither exception applies to this case.
In People v. Recio (2007) 156 Cal.App.4th 719, a panel of this court held that when a defendant is convicted of a theft-related offense and receipt of stolen property involving the same property, the proper remedy is to reverse the receipt of stolen property conviction. The Recio court stated: “People v. Stewart (1986) 185 Cal.App.3d 197, 206-207 . . . (Stewart) . . . [citation] is instructive. In Stewart, a jury convicted the defendant of multiple counts of burglary and receiving stolen property. [Citation.] The appellate court reversed the receiving stolen property convictions. Explaining that ‘section 496 simply does not apply to the thief who stole the property in question’ [citation], the court held ‘in the absence of an instruction on the question, it is the conviction for [the] theft or a theft-related offense which has the preclusive effect and not vice versa.’ [Citation.] [¶] Several other courts have reached the same result under similar circumstances. (See, e.g., People v. Smith (2007) 40 Cal.4th 483, 522 . . . [trial court should have dismissed defendant’s conviction for receiving stolen property where he was convicted of stealing murder victim’s gun and of receiving it as stolen property]; People v. Stephens (1990) 218 Cal.App.3d 575, 586-587 . . . [where defendant is convicted of stealing and receiving the same property, the ‘appropriate remedy’ is to ‘reverse only . . . the conviction for receiving stolen property’].)” (Id. at p. 723.)
Defendant’s conviction for receipt of stolen property must therefore be stricken from the judgment.
IV.
Defendant’s Actual Presentence Custody Credit Should Be Increased by One Day.
“Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and postsentence custody.” (People v. Cooper (2002) 27 Cal.4th 38, 40.) As conceded by the Attorney General, here, defendant’s presentence custody credit (a total of 222 days) was calculated based on a December 28, 2006 arrest date as set forth in the probation report, notwithstanding trial evidence that defendant was taken into custody on December 27, 2006. Even though defendant did not raise this issue in the trial court, he has not waived the right to argue this issue because he has raised other issues in this appeal. (People v. Florez (2005) 132 Cal.App.4th 314, 318, fn. 12 [“A challenge to an award of presentence conduct credit may be raised at any time”]; see People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) We therefore remand to the trial court to correct the record to reflect 223 actual days of presentence custody credit.
DISPOSITION
The judgment is reversed as to defendant’s conviction for count 4. In addition to striking defendant’s conviction for count 4, we direct the trial court on remand to modify the judgment to award defendant 223 actual days of presentence custody credits, prepare an amended abstract of judgment, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.