Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA083735, Gary J. Ferrari, Judge.
Ronald J. Lemieux for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Carlos Osuna, appeals from his conviction of four counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and one count of shooting from a motor vehicle (§ 12034, subd. (c)) arising out of a drive-by shooting. The jury found the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) But the jury found not true the allegation that defendant personally used a firearm. Defendant was sentenced to four consecutive life terms with a minimum parole eligibility of 15 years. The trial court also imposed and stayed a five-year term for shooting from a motor vehicle. (§ 654, subd. (a).)
All further statutory references are to the Penal Code except where otherwise noted.
II. THE EVIDENCE
We view the evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 309; People v. Smith (2005) 37 Cal.4th 733, 738-739; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On July 1, 2008, around 10 p.m., Matthew Leday was standing in front of a friend’s house on 207th Street in Torrance, between Western and Harvard. He lived just a few houses down the street. With Mr. Leday were two friends, Daynisha Craven and Reawna McClain. Also present was Ms. McClain’s brother, Anthony McClain. A champagne-colored Toyota Camry approach traveling at 15 miles per hour with no lights on. There were three people in the vehicle.
Defendant, who was in the rear seat on the passenger side, leaned out the window and “fired a couple rounds out of a gun” from 17 feet away. Mr. Leday was shot in the leg. In a pre-trial photographic line-up and again at trial, Mr. Leday identified defendant as the person who fired the shots. Ms. Craven and Ms. McClain told investigators that their assailant was a male Hispanic. Ms. Craven told Officer Edward Yoon that the gunman was in the rear passenger side seat of a champagne-colored Toyota Camry. At the preliminary hearing, Ms. Craven testified the gunman was on the passenger side of the car. She did not know whether he was sitting in the front or the rear of the vehicle. At trial, however, Ms. Craven and Ms. McClain failed to recall anything about the shooting.
The three occupants of the vehicle—Noe Huero, Jesus Claudio and defendant—were members of a Hispanic gang that had been targeting African-American residents. They did not want African-Americans in their neighborhood. They had taken a stand against the influx of African-American residents at 207th Street; 207th Street became the “battle line.” Detective Matthew Maffei believed the present offenses were committed for the benefit of the gang. All of the victims were African-American.
On July 3, 2008, Officers Yoon and Tayla Higgs interviewed defendant. During the interview, defendant admitted he was a gang member. At first, defendant claimed he was at home with his girlfriend on July 1 when he heard the gunshots. Later, defendant admitted participating in the crime but denied he fired the shots. Defendant said, “I didn’t pull the trigger.” Defendant claimed that Mr. Huero was both the driver and the person who fired the shots. Defendant admitted being on 206th Street with Mr. Claudio when Mr. Huero and a woman defendant did not know drove up in a “tanish” Toyota or Nissan. According to defendant, Mr. Huero said, “Get in the car.” The young woman was in the front passenger seat. Defendant told the officers he got into the car and sat behind the young woman. Mr. Claudio sat behind Mr. Huero. Defendant thought Mr. Huero was drunk or angry. Defendant denied knowing what was happening. Defendant told the officers he assumed they were going to a party or something.
Defendant told the officers that when they reached 207th Street he put his head down. Defendant was hoping Mr. Huero would not do anything stupid. Defendant claimed to the officers he was looking down when he heard the gunshots. Defendant looked up and saw a gun in Mr. Huero’s right hand. Defendant saw “a whole bunch of people” running. Mr. Huero drove to back to 206th Street. Defendant told the officers he was dropped off where he had originally been picked up.
The defense position was defendant was not a gang member, he was not present at the time of the shooting, he was not in the car, and he was not the gunman. Sebestian Claudio testified as an alibi witness. Mr. Claudio had known defendant for more than 10 years. Mr. Claudio knew defendant was a gang member. Mr. Claudio’s two younger brothers were defendant’s fellow gang members. Defendant arrived at Mr. Claudio’s house on 206th Street near Western Avenue at 8 or 9 p.m. on July 1, 2008. Defendant was accompanied by his girlfriend. They stayed through the night. Mr. Claudio heard gunshots at around 10 p.m. Defendant was in Mr. Claudio’s house at the time.
Defendant also presented opinion based evidence he was not a gang member. Dr. Jose Lopez testified for the defense. Dr. Lopez believed defendant was not a gang member. Dr. Lopez based his opinion on cultural and social factors. Also, Dr. Lopez interviewed defendant. Dr. Lopez acknowledged defendant had lived in the gang neighborhood. Dr. Lopez also conceded defendant had friends who were gang members. Nonetheless, defendant was not a gang member in Dr. Lopez’s view.
III. DISCUSSION
A. Evidence Code Section 352 Ruling
Over defense counsel’s Evidence Code section 352 objection, Mr. Leday testified he had been assaulted by a Latino, a 204th Street gang member, just one week prior to trial. The individual approached Mr. Leday late at night and said, “This is 204th Street.” The otherwise unidentified Latino drew a weapon and fired. Mr. Leday was unwounded. Defense counsel argued there was no evidence linking defendant to this second shooting and the evidence was highly prejudicial.
On appeal, defendant argues it was prejudicial error to allow Mr. Leday to testify concerning the pre-trial shooting. Defendant contends the evidence had no relevance to the central issue at trial—whether he fired the shots—and was unduly prejudicial. We find no abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437; People v. Lindberg (2008) 45 Cal.4th 1, 49-50.) The trial court could reasonably conclude the probative value of the evidence was not outweighed by any potential prejudicial effect.
Without abusing its discretion, the trial court could find the challenged evidence was relevant to witness credibility. (Evid. Code, § 780; see People v. Valencia (2008) 43 Cal.4th 268, 302 [“Evidence of fear is relevant to the witness’s credibility”]; People v. Burgener (2003) 29 Cal.4th 833, 869.) Our Supreme Court has held: “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]” (People v. Burgener, supra, 29 Cal.4th at p. 869; accord, People v. Gray (2005) 37 Cal.4th 168, 220.)
Here, two eyewitnesses to the shooting—Ms. Craven and Ms. McClain—were reluctant witnesses at trial. They testified only because they were subpoenaed. Ms. McClain admitted she was concerned for her safety. Both still lived in the 207th Street neighborhood. Both testified at trial that they could not recall anything about the shooting. Ms. McClain professed a failure even to recall that Mr. Leday had ever been shot. Ms. Craven was aware that Mr. Leday had been the victim of a second shooting just prior to trial. Ms. McClain denied any knowledge of the event. The challenged testimony tended to explain Ms. Craven’s and Ms. McClain’s reluctance to testify and their memory failures.
Evidence of the second assault against Mr. Leday was also relevant to the gang enhancement allegations. It tended to support the allegation the crimes were committed to benefit the gang. (See People v. Sisneros (2009) 174 Cal.App.4th 142, 151-152; People v. Martinez (2008) 158 Cal.App.4th 1324, 1333.)
Defendant argues the threat evidence was uncorroborated and witness fear of retaliation was not linked to him. Our Supreme Court has held: “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her [or his] credibility and is well within the discretion of the trial court. [Citations.]... [¶]... There is no requirement... that threats be corroborated before they may be admitted to reflect on the witness’s credibility. Indeed, it is not necessary to show the witness’s fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat—but its existence—that is relevant to the witness’s credibility.” (People v. Burgener, supra, 29 Cal.4th at p. 869; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.)
Even if there was error, it is not reasonably probable the result would have been more favorable to defendant absent the evidence Mr. Leday was threatened. (People v. Doolin, supra, 45 Cal.4th at p. 439; People v. Zapien (1993) 4 Cal.4th 929, 956.) Potential prejudice to defendant was minimal. The central issue at trial was whether defendant was present when the attempted murders occurred. The objected to testimony had no direct bearing on that issue. The prosecutor never mentioned the assault on Mr. Leday in his argument to the jury. Defendant admitted to investigating officers that he was in the car when the crimes were committed. He further admitted he was sitting in the rear passenger-side seat, precisely the location of the shooter according to Mr. Leday. There was no evidence linking defendant personally to the second assault on Mr. Leday.
B. Aiding and Abetting Instruction
Defendant argues it was error to instruct on aiding and abetting principles because there was no substantial evidence he aided and abetted the drive-by shooting; if he did not fire the shots, the evidence was only that he was a passenger in the car. Defendant raised no objection to the prosecutor’s request for an aiding and abetting instruction. However, the purported error is reviewable on appeal to the extent it affected defendant’s substantial rights. (§ 1259; People v. Guerra, supra, 37 Cal.4th at p. 1149; People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10, disapproved on another point in People v. Flood (1998) 18 Cal.4th 470, 490 & fn. 12.)
Our Supreme Court has held: “The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence (People v. Sedeno (1974) 10 Cal.3d 703[, disapproved on another point in People v. Breverman (1998) 19 Cal.4th 142, 149]; People v. Hood (1969) 1 Cal.3d 444; People v. Graham (1969) 71 Cal.2d 303, 318) and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ (People v. Satchell[, supra, ] 6 Cal.3d [at p.] 33, fn. 10.) ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference (People v. Carmen (1951) 36 Cal.2d 768, 773.)’ (People v. Hannon (1977) 19 Cal.3d 588, 597[, disapproved on another point in People v. Martinez (2000) 22 Cal.4th 750, 762].)” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
The jury was instructed: “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime.” “A person aids and abets the commission of a crime when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or instigates the commission of the crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”
We find no error. First, the jury’s not true finding on the personal firearm use allegation does not mean the jury necessarily found defendant did not actually discharge the weapon. (People v. Miranda (2011) 192 Cal.App.4th 398, 405-407; see Yeager v. United States (2009) 557 U.S. __, __ [129 S.Ct. 2360, 2370].) Second, there was substantial evidence defendant was the perpetrator. Mr. Leday was an eyewitness who testified defendant fired the shots. (Evid. Code, § 411; People v. Cooks (1983) 141 Cal.App.3d 224, 278 [testimony of one identification witness sufficient]; see People v. Miranda, supra, 192 Cal.App.4th at p. 407.) And defendant confessed he had been in the car at the time of the shooting, although he denied pulling the trigger. Third, there was substantial evidence defendant aided and abetted the attempted murders. To convict an aider and abettor of attempted murder, a jury must find the aider and abettor shared the perpetrator’s specific intent to kill. (People v. Beeman (1984) 35 Cal.3d 547, 560; People v. Acero (1984) 161 Cal.App.3d 217, 224.) Our Supreme Court has held, “[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime. [Citations.]” (People v. Beeman, supra, 35 Cal.3d at p. 560; accord, People v. McCoy (2001) 25 Cal.4th 1111, 1118; People v. Prettyman (1996) 14 Cal.4th 248, 259.) In other words, “[T]he aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy, supra, 25 Cal.4th at p. 1118.) Prior knowledge that a fellow gang member is armed is not necessary to support a murder conviction on an aiding and abetting theory. (People v. Medina (2009) 46 Cal.4th 913, 921; People v. Ayala (2010) 181 Cal.App.4th 1440, 1451.)
At 10 p.m. defendant and two fellow gang members drove to 207th Street, the gang’s “battle line” in an ongoing vendetta against African-Americans in the neighborhood. Defendant admitted to Officers Yoon and Higgs hoping Mr. Huero would not “do anything stupid.” They drove slowly with the headlights off. Multiple rounds were fired from a distance of 17 feet at a group of African-American individuals, wounding one of them. This was substantial evidence defendant intended to kill in order to benefit the gang. The jury could reasonably reject defendant’s claim in his confession he simply went for a brief ride in the car for no known purpose.
C. Ineffective Assistance of Counsel
1. Standard of review
Defendant asserts his trial counsel, Brenda E. Vargas, was ineffective in several respects. Our Supreme Court has set forth the applicable standard of review: “‘In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)’ (People v. Williams (1997) 16 Cal.4th 153, 215.) [¶]... ‘... “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349.)’ (People v. Williams, supra, 16 Cal.4th at p. 215.)” (People v. Majors (1998) 18 Cal.4th 385, 403.) Our Supreme Court has also held: “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) If the record on appeal sheds no light on a defense attorney’s reasons for a disputed decision, the ineffective assistance issue is more properly resolved in a habeas corpus proceeding. (People v. Vines (2011) 51 Cal.4th 830, 872; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.) The burden is on defendant to show both that counsel’s performance was deficient and that he suffered prejudice as a result. (Strickland v. Washington, supra, 466 U.S. at p. 694; In re Hardy (2007) 41 Cal.4th 977, 1018-1019; People v. Williams (2006) 40 Cal.4th 287, 304.) There is a rebuttable presumption, which it is defendant’s burden to overcome, that Ms. Vargas’s performance fell within the wide range of reasonable professional assistance and the challenged actions were a matter of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Prieto (2003) 30 Cal.4th 226, 261-262; People v. Lewis (1990) 50 Cal.3d 262, 288.)
2. Cross-examination of prosecution witnesses
Defendant contends Ms. Vargas failed to adequately cross-examine prosecution witnesses regarding the identity of the gunman. Mr. Leday was the only witness who identified defendant as the person who fired the shots. Other witnesses described the gunman as a Latino. When directly examined, Mr. Leday admitted only having a limited opportunity to observe the gunman. At trial, Mr. Leday described his identification from the photographic lineup, “The person that did the shooting, I believe.” Mr. Leday was asked about a written statement: “[T]his mentions you thought number 2 was the shooter because you noticed a mole on the left side of his face....[¶] A. Yes, sir.” Later Mr. Leday testified, “I noticed some facial features.” Mr. Leday denied having seen defendant before the shooting in the neighborhood. Mr. Leday had previously told the police otherwise.
When cross-examined by Ms. Vargas, Mr. Leday was unable to recall what he had told the police about the perpetrators’ automobile. Mr. Leday recalled telling Officer Yoon that the gunman was a light skinned male Latino who was wearing a beanie. Mr. Leday did not believe he had previously described the gunman as having a goatee and a slight beard or five-o’clock shadow. Mr. Leday testified, “If I did, I have no recollection of that.” Mr. Leday did not remember telling officers the person who fired the shots was wearing a white T-shirt. Upon questioning by Ms. Vargas, Mr. Leday admitted that at the time of the photographic line-up, he had stated, “I have seen him in the neighborhood before.” When cross-examined by Ms. Vargas, Mr. Leday claimed to have never seen defendant prior to the shooting. Mr. Leday testified to have seen the defendant for only 15 to 20 seconds.
For purposes of direct appeal, defendant has not shown that Ms. Vargas’s performance was constitutionally deficient or there is a reasonable probability of a more favorable result. (Strickland v. Washington, supra, 466 U.S. at p. 697; In re Valdez (2010) 49 Cal.4th 715, 729-730; People v. Benavides (2005) 35 Cal.4th 69, 92-93.) The record sheds no light on Ms. Vargas’s reasons for asking certain questions and not others. Our Supreme Court has held, “Although in extreme circumstances cross-examination may be deemed incompetent [citation], normally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make. [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 746; People v. Williams, supra, 16 Cal.4th at p. 216; People v. Cox (1991) 53 Cal.3d 618, 662, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [cross-examination normally left to counsel’s discretion].) There is no evidence Ms. Vargas’s performance on cross-examination resulted in a loss of material evidence or caused tangible harm to the defense. (See People v. Carter (2005) 36 Cal.4th 1114, 1138 [pretrial commitment proceeding].) The jury was apprised of the weaknesses in Mr. Leday’s identification of defendant. Moreover, defendant confessed that he had been in the car and sitting in the rear passenger-side seat. This is exactly the location in which Mr. Leday placed the gunman.
3. Defendant’s statement to police
Defendant argues Ms. Vargas rendered ineffective assistance in that she failed to challenge the constitutionality of his lengthy tape-recorded statement to the officers or otherwise object to the admission of this evidence. For purposes of direct appeal, defendant has not met his burden to rebut the presumption that the challenged action was a matter of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Prieto, supra, 30 Cal.4th at pp. 261-262; People v. Lewis, supra, 50 Cal.3d at p. 288.) The record is silent as to Ms. Vargas’s reasons to failing to challenge the statement. Even if the statement was arguably suppressible (see People v. Lucas (1995) 12 Cal.4th 415, 441-442; People v. Benson (1990) 52 Cal.3d 754, 778), Ms. Vargas logically may well have determined that defendant’s statement helped him more than it hurt him. (See In re Frank G. (1980) 104 Cal.App.3d 593, 595.) During his interview with the two officers defendant repeatedly expressed concern about his family—his mother and younger siblings. There was no father in his home. Defendant said he wanted to be with his family. He wanted to go home. The only thing he cared about was his mother. Once he realized that he would be locked up for some time, he asked the officers to help his mother to visit him. Additionally, the officers lied to defendant; they promised him that if he told them the truth he would be tried as a juvenile. Officer Yoon said, “I’m guaranteeing you a chance to get out and see your mom and your family again.” Toward the end of the interview defendant said, “I’m going to get to see my mom today, right?” Ms. Vargas might reasonably have concluded defendant’s recorded statement would engender sympathy toward him and enmity toward the officers who lied to him.
4. Other claims
Other ineffective assistance claims have been presented: Ms. Vargas waived the preliminary hearing, thereby losing an opportunity to develop inconsistent victim statements as to identification (Ms. Vargas waived a second preliminary hearing); she failed to call witnesses, including defendant himself (defendant would have corroborated Mr. Claudio’s alibi evidence); Ms. Vargas failed to effectively examine Mr. Claudio to flesh out the details of defendant’s alibi; Ms. Vargas offered the alibi evidence knowing defendant had admitted to police not being present at Mr. Claudio’s house at the time of the shooting; and she offered Dr. Lopez’s “irrelevant and prejudicial” minimally qualified “expert” testimony that defendant was not a gang member when Mr. Claudio testified to the contrary. We presume Ms. Vargas had tactical reasons for making these choices. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1254 [failure to call defendant as a witness]; People v. Earp (1999) 20 Cal.4th 826, 896 [failure to make an argument]; People v. Barnett (1998) 17 Cal.4th 1044, 1140 [eliciting evidence, failing to impeach evidence or have it stricken].) For purposes of direct appeal, defendant has not demonstrated otherwise.
D. Sentencing And Custody Credit
The trial court orally imposed a $10,000 restitution fine. (§ 1202.4, subd. (b)(1).) Although the abstract of judgment reflects a $10,000 parole revocation restitution fine (§ 1202.45), the trial court never orally imposed such a fine. The oral pronouncement of judgment controls over the minutes or the abstract of judgment. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) The oral pronouncement of judgment must be corrected to include a $10,000 parole revocation restitution fine. (§ 1202.45.)
Also, defendant was ordered to pay $100 in court security fees ($20 per count) (§ 1465.8, subd. (a)(1)) and a $30 court facilities assessment. (Gov. Code, § 70373, subd. (a)(1).) The trial court should have imposed a court security fee of $30 per count or $150 (rather than $20 per count) (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866) and a court facilities assessment in the amount of $30 per count or $150 (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3).
Finally, defendant received credit for 652 days in presentence custody plus 98 days of conduct credit for a total presentence custody credit of 750 days. That award was excessive. Defendant was arrested on July 3, 2008, and sentenced on April 6, 2010 Therefore, he was entitled to credit for 642 days in presentence custody and 96 days of conduct credit (§ 2933.1, subd. (b)) for a total of 738 days. (In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Smith (1989) 211 Cal.App.3d 523, 527.)
IV. DISPOSITION
The judgment is modified to reflect the oral imposition of a $10,000 parole revocation restitution fine (Pen. Code, § 1202.45), $150 in court security fees (Pen. Code, § 1465.8, subd. (a)(1)) and $150 in court facilities assessments. (Gov. Code, § 70373, subd. (a)(1).) The judgment is further modified to reflect credit for 642 days in presentence custody and 96 days of conduct credit for a total of 738 days. The judgment is affirmed as modified. Upon remittitur issuance, the superior court clerk shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: MOSK, J., KRIEGLER, J.