Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. SA055258, James R. Brandlin, Judge. Affirmed in part and reversed in part.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, J.
Defendant and appellant Alonzo Taylor appeals from a judgment after a jury trial in which he was convicted of several offenses arising out of two separate robberies of the same victim. On appeal, defendant contends the prosecutor committed misconduct by eliciting testimony previously ruled inadmissible regarding defendant’s prior crimes. While we question the propriety of the prosecutor’s questioning of the witness given the trial court’s ruling excluding the evidence, we conclude any error was harmless in light of the overwhelming evidence against defendant. Defendant next contends the evidence was insufficient to support his conviction of one count of criminal threats. As there is no evidence that defendant’s threat to burn down the victim’s house was a threat to commit a crime resulting in death or great bodily injury, we agree and reverse the judgment of conviction with respect to this count. Additionally, defendant contends the evidence was insufficient to support one of his eight prior prison term enhancements; the prosecution concedes the error. Finally, defendant contends he was awarded insufficient presentence credit. As defendant stipulated to the amount of credit at trial, and has failed to meet his burden of establishing any error, we find no merit to the contention. In sum, we reverse the judgment of conviction with respect to one count of criminal threats and strike one prior prison term enhancement. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was released on parole on October 5, 2004. After his release, he returned immediately to his life of crime, committing at least six burglaries in the next six weeks. The victim of two of defendant’s robberies was 75-year-old Betty Tomeo. Tomeo was not physically strong. She required the use of portable oxygen, as part of her lung had been removed due to lung cancer.
She also used a wheelchair to get around, although she could walk without one and did not have a wheelchair at home.
On the night of October 18, 2004, Tomeo returned to her home in Santa Monica to discover defendant in her house. Defendant was standing in Tomeo’s hallway. He was wearing Tomeo’s UCLA “rooting” hat – a straw hat on which Tomeo had placed numerous UCLA football season ticket pins. Defendant wore gloves and held a syringe in his hand. Tomeo asked, “How did you get in here?” Defendant responded, “That doesn’t make any difference. I want some money.” Defendant told Tomeo that if she did not cooperate, he would prick her with the needle and she would die within 15 seconds.
Tomeo complied, giving defendant $40 from her purse and another $80 from a drawer in her office. Defendant was unsatisfied and demanded more money. After Tomeo insisted she had no more money, defendant told her they were going to go to an ATM where she could withdraw $2000 for him. Defendant said he did not have a car and that they would go in Tomeo’s car.
Tomeo’s car was parked in her garage. It was parked too tightly to enable someone to enter it from the passenger side. Tomeo entered the car from the driver’s side. When she told defendant that she had trouble backing her car out at night, defendant told her to move to the passenger side. Tomeo did so. Defendant then sat in the driver’s seat and asked Tomeo for the key. Defendant started the car, but was apparently unfamiliar with the car’s manual transmission. Tomeo had to show defendant how to put the car in reverse. Defendant then stomped on the accelerator and backed the car out quickly, causing it to crash into a fence. Defendant then stalled the car and could not start it. Tomeo told defendant he had flooded the engine. Defendant told Tomeo they would wait. He exited the car and walked up to the front of Tomeo’s house, near a fence, where he appeared to be fussing with the gate. Tomeo did not escape because, due to her physical condition, she did not think she could outrun defendant.
A few minutes later, defendant returned. He restarted the car and successfully navigated out of the driveway. Tomeo directed him to an ATM machine at a nearby grocery store. They were one mile away from Tomeo’s house. Defendant parked at the store and told Tomeo to go inside and bring back money. He told her that if she did not do so, defendant would have his friends’ burn down her house. Defendant indicated that two of his friends were back at Tomeo’s house and would burn it down. Defendant said, of his friends, “Didn’t you see them?” Tomeo then believed that defendant had spoken with his friends when he had left her car and stood near the gate. Tomeo believed defendant’s threat, and went into the market to withdraw money from the ATM.
Tomeo was unable to get money from the ATM inside the store. She tried twice and even asked a clerk to help her, but she failed. She did not tell the clerk about defendant; she was afraid of what might happen to her home if she did. After her unsuccessful attempts, Tomeo decided that she had to return to defendant and tell him she could not get any money. When she returned to her car, it was empty. Defendant had left and taken Tomeo’s keys with him. Tomeo went back into the store and telephoned 911.
Police arrived on the scene, as did paramedics, who gave Tomeo additional oxygen. After Tomeo was interviewed by police, she was returned home at approximately 3:00 a.m. Police discovered pry marks on a door at the rear of her house. That night, Tomeo had a heart attack, requiring one week of hospitalization. After Tomeo returned home, she subsequently discovered other items, such as some collectible coins, had also been taken by defendant.
On November 4, 2004, at 11:00 p.m., defendant returned to Tomeo’s home. Tomeo was watching television when she heard a noise behind her. Defendant stood behind Tomeo and said, “You tricked me.” Defendant wore dark clothes and a cap. He did not have a syringe with him; this time, defendant held a screwdriver with a sharp point, and moved it towards Tomeo as though he was going to attack her with it. Tomeo went into her office to give defendant the money she kept there. She gave him $102. Tomeo then walked into the living room. When she realized that defendant had not followed her to the living room, she opened the front door and ran as fast as she could, yelling for her neighbors.
Police would later discover the hinge on one of Tomeo’s windows had been forced open and the screen removed.
Tomeo got the attention of her neighbor, Curtis Alexander. Alexander grabbed a handgun and ran out toward Tomeo. Tomeo told him, “It’s the same man.” Alexander chambered a round in his handgun and continued on to Tomeo’s house. Tomeo continued into Alexander’s home, where Alexander’s wife called 911 for her.
Alexander was in his underwear when he ran out of the house.
When Alexander reached Tomeo’s house, he loudly announced that he was armed and coming in. He then entered. He saw a shadow in the kitchen, so followed into that room. In the kitchen, he saw a door to the outside move, so again followed, turning on an exterior light before he did so. Outside, he saw a man facing him. The man was in dark clothes, but wore no cap and had nothing in his hands. Pointing his gun, Alexander ordered the man to the ground. There was a gate at the end of Tomeo’s driveway. Alexander heard the gate rattle, as the man said, “I’m not the guy you want. The guy you want is over there.” Alexander again ordered the man down, and he again refused to comply.
At the same time, police officers on patrol were doing a periodic check of Tomeo’s neighborhood. They spotted someone fitting defendant’s description in a nearby alley. When police made eye contact with the suspect, he turned and ran. Police chased the suspect, and attempted to form a perimeter in order to prevent his escape. During the commotion, Alexander was distracted by a crashing sound, which enabled the man he held at gunpoint to dart away. Ultimately, neither man was caught.
The police perimeter had left open an area at a nearby hotel. A witness at the hotel had seen someone changing clothes outside the hotel, and a black shirt had been discarded there. Additionally, Alexander spotted a black cap which had been discarded in Tomeo’s driveway. Both the shirt and the cap were taken into evidence by police.
Police also found plastic bags full of random belongings some five or six feet away from the shirt.
Police prepared some “scent pads” from the cap and shirt and put a dog on the scent. The dog led them to a residential building. Ultimately, the police arrested a resident at the building, Danny Lee Harris. Police compiled a photographic display with Harris’s picture in it. Tomeo was shown the display. While she thought three of the individuals in the display “could have been possibilities,” she did not make a positive identification of the man who had robbed her. Alexander, however, tentatively identified Harris as the individual he had held at gunpoint.
Police extracted DNA from the cap and shirt. Comparing the DNA to a DNA sample from Harris, it was determined that Harris did not contribute the DNA on either the cap or the shirt. However, a search of a statewide database revealed that the DNA on both items matched that of defendant. There were at least two contributors of DNA on the cap; defendant could not be excluded as a major contributor. A forensic scientist testified that one person in fifty million would match the sample from the cap. Results were even more compelling regarding the shirt. Defendant’s DNA was on the shirt. The forensic scientist testified that the odds of that particular DNA profile occurring in the population are approximately one in one trillion individuals. The current earth population is approximately six billion.
At trial, the prosecutor was careful not to elicit testimony to this effect.
On December 9, 2004, Santa Monica Police Department Detective John Henry interviewed defendant regarding the two robberies of Tomeo. Initially, defendant denied involvement in the incidents, and stated that he had never been in Santa Monica. When Detective Henry presented defendant with the DNA test results regarding the cap and shirt, defendant then said, “If you have DNA to show that I was in Santa Monica, then I must have been there. I do things sometimes and I don’t remember.” Defendant explained that, since his release on parole, he had burglarized at least 5 or 6 homes. He admitted that, sometimes, the resident was in the home when he burglarized it. Defendant specifically admitted burglarizing a house and discovering that the homeowner, a woman, was in the shower. The woman called the police and defendant took her VCR and fled. Defendant admitted that he sometimes used an accomplice in his burglaries. He admitted that, on at least three occasions, he had been chased by police. He admitted that he had returned to several residences he had initially burglarized and burglarized them a second time. He admitted that he took hats in some of the burglaries, and specifically recalled taking a straw hat with something on the side, although he could not recall the details. He admitted that sometimes he likes to enter through open windows, and other times uses pliers or a screwdriver to gain entry. He admitted that he often changes his clothes to alter his appearance after a burglary.
Not all of defendant’s admissions pertained solely to burglaries he had committed in California after his release from prison. Detective Henry asked if defendant had ever used a syringe to threaten or rob people; defendant admitted using a syringe at least 15 to 20 times to commit robberies in Georgia. While defendant admitted a single syringe robbery in Los Angeles, that admission referred to the robbery of a man at a gas station. When defendant admitted to altering his appearance after burglaries, he stated that he had done so 15 times – clearly including some Georgia burglaries in the count.
On January 5, 2005, two live line-ups were held. Defendant was in the first line-up; Harris was in the second. Tomeo recognized defendant immediately in the first line-up and identified him to police. However, she did not use unconditional language in identifying him, as she had wanted to see the second line-up to be certain. On seeing the second line-up, she felt one of the men was “a possibility,” but still felt strongly about her identification of defendant from the first line-up. After Detective Henry drove Tomeo home, she explained her original hesitancy and confirmed that defendant was, in fact, the man who had robbed her. Alexander was unable to identify Harris from the second line-up.
On April 25, 2005, defendant was charged by information with offenses arising from the two Tomeo burglaries. With respect to the first incident, defendant was charged with kidnapping for robbery (Pen. Code, § 209, subd. (b)(1)), burglary (Pen. Code, § 459), robbery (Pen. Code, § 211), and two counts of criminal threats (Pen. Code, § 422). It was subsequently explained that the first count referred to the threat to prick Tomeo with the syringe and the second referred to the threat to burn down her house. As to each count pertaining to the October 18 incident, it was alleged that defendant used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)), specifically, a syringe. With respect to the November 4 incident, defendant was charged with burglary and robbery. As to those counts, it was alleged defendant used a deadly or dangerous weapon, a screwdriver. As to all counts, it was alleged within the meaning of Penal Code section 1203.09 that the victim was over the age of 60. The information was twice amended with respect to allegations of defendant’s criminal history. The operative information is the second amended information, which was filed on November 22, 2005. It further alleged that defendant had suffered six prior serious felony convictions within the meaning of Penal Code section 1170.12; three prior serious felony convictions within the meaning of Penal Code section 667, subdivision (a); and eleven prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
After the first information had been filed, defendant escaped from custody. Defendant burglarized and kidnapped another victim shortly after his escape. (People v. Taylor (Mar. 15, 2007, B191202) [nonpub. opn.].) He was ultimately arrested in Georgia, and returned to custody in California less than one month after his escape.
Defendant made his escape from the Criminal Courts Building.
The case proceeded to trial. Initially, all issues of defendant’s prior convictions and prison terms were bifurcated, with the understanding that the issue would be revisited if defendant elected to testify.
Prior to the prosecutor calling Detective Henry as a witness, defense counsel sought a conference outside the presence of the jury in order to express his concerns that Detective Henry not testify to “the other crimes.” At first, the prosecutor indicated having no intention of obtaining such testimony. The prosecutor then noted, “He does talk about, in his confession, that he burglarizes houses and does it with syringes and has done it before.” Defense counsel responded, “But that was in Georgia.” The court explained, “Doesn’t matter. It’s a rather unique M.O. But rather than just asking him that, just ask him whether or not he admitted using a syringe during the burglary, etcetera. Try and stay away from any [Evidence Code section] 1101(b) evidence.” The prosecutor argued, “I think now we’re going to have to have – there is probably a lot more things in there that he admits, several different things besides the syringes; he talks about other burglaries, he talks about – which I was going to get into because he talks about how he does it, and it’s the same as this incident.” The trial court then ruled as follows, “Here’s the bottom line. For our purposes, under [Evidence Code section] 352, for your case in chief, just go into the admissions relative to this offense. Stay away from any other crime evidence. If the defendant elects to testify, then you can bring him back and call him for impeachment.” The prosecutor then sought a clarification, stating, “The question I have, though, is he says that – first, he denies it. Then he says he doesn’t remember. Then he says, well, I do these crimes. I don’t remember half the crimes I do. So I think that he needs to get into the fact that he admits burglaries and doesn’t remember some of them.” The court agreed, “That’s fair.” Defense counsel raised no further objection. In short, the trial court specifically excluded, under Evidence Code section 352, prior bad act evidence that would otherwise be relevant to provide identity due to defendant’s unique method of committing robberies (Evid. Code, § 1101, subd. (b)). However, the trial court allowed evidence of defendant’s admission of prior crimes, to the extent defendant admitted that he could not remember all of the burglaries that he had committed, but acknowledged committing burglaries under circumstances that may well have included the charged offenses.
Detective Henry then testified, without objection, to: (1) defendant’s admission that he had committed five or six burglaries after October 4, 2004; (2) his statement that he could not recall them all; and (3) the general circumstances of those burglaries which make it likely that the burglaries of Tomeo were included among them. However, the prosecution also elicited, without objection, testimony regarding other elements of defendant’s admissions which were relevant only as prior bad acts. Thus, Detective Henry testified to defendant’s admissions of: (1) 15 to 20 syringe robberies in Georgia; (2) the fact that he changed his clothes to alter his appearance after 15 burglaries; (3) the circumstances of his burglary of the woman who was in her shower when he entered her home; and (4) the circumstances of his robbery, with a syringe, of the man at a gas station.
Subsequently, defendant elected to testify. The court then reversed its order bifurcating the proceedings. When defendant took the stand, he admitted many prior convictions, both in California and Georgia, although he did not testify to convictions for all of the robberies that he had admitted to Detective Henry. As to his statement to Detective Henry, defendant admitted making the statement but testified that the vast bulk of what he had told Detective Henry was untrue. Defendant testified that he had lied to Detective Henry in an attempt to convince Detective Henry that he was a “dope addict” who “hear[d] voices” and committed numerous crimes so that he would “get on a drug program.” Defendant testified that did not commit the charged offenses and, in fact, had never been to Santa Monica. As to the reason a shirt and cap with his DNA on them had been found near Tomeo’s house, defendant explained that someone had stolen his backpack containing his clothes two days before the first Tomeo robbery. However, defendant never told Detective Henry of this purported theft.
The jury convicted defendant as charged, with one exception. As to the second count of criminal threats, the jury found defendant guilty of the crime, but found the deadly weapon allegation and the victim age allegation to be untrue. Defendant was sentenced to 124 years, 4 months to life in prison, calculated as follows: For the October 18 kidnapping for robbery, 25 years to life (under the three strikes law) plus 1 year for the use of the syringe; a consecutive term of 25 years to life for the October 18 burglary; a consecutive term of 25 years to life for the second October 18 threat; a consecutive term of 25 years to life for the November 4 burglary, with a consecutive 4 month term (one-third of the one-year term) for the use of the screwdriver; an additional 15 years for the defendant’s 3 prior serious felony convictions; and an additional 8 years for 8 of defendant’s prior prison terms. The trial court imposed and stayed under Penal Code section 654 sentences on the remaining offenses. Three prior prison term enhancements were stricken in the interests of justice. Defendant filed a timely notice of appeal.
ISSUES ON APPEAL
On appeal, we first consider issues surrounding the admission of evidence of defendant’s prior offenses. We next consider the sufficiency of the evidence of the second count of criminal threats. Finally, we consider sentencing issues.
DISCUSSION
1. Any Error Regarding the Admission of Evidence Relating to Defendant’s Prior Crimes is Harmless
The trial court exercised its discretion under Evidence Code section 352 to exclude evidence of defendant’s admissions of prior offenses. However, the court allowed evidence of defendant’s admissions to the extent the admissions were part of defendant’s somewhat indefinite confession of the charged offenses.
To the extent defendant contends the trial court erred in admitting evidence of prior crimes under Evidence Code section 1101, subdivision (b), we disagree. The trial court simply did not admit evidence of prior crimes under that section. Instead, the evidence was ruled admissible as part of defendant’s confession of the charged offenses. Defendant admitted to Detective Henry that he had gone on a burglary spree, of which he conceded the charged offenses may well have been a part. Defendant’s confession was clearly admissible; that he happened to couch the confession in language that admitted several other offenses did not render it inadmissible.
Evidence Code section 1101 provides that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Evidence Code section 1101, subdivision (b) provides several exceptions under which evidence of prior bad acts may be admitted. In this case, the evidence of defendant’s other California robberies were not introduced as evidence of his character or a character trait with which he purportedly acted in conformity. Instead, that evidence was the framework in which defendant conceded he may well have committed the charged offenses and had simply forgotten them. Evidence Code section 1101 is no bar.
However, the prosecutor went beyond defendant’s admission of prior acts in the context of his confession of the current offense, and introduced into evidence defendant’s admission of several prior acts (including 15 to 20 syringe robberies in Georgia) which were not part of defendant’s confession of the charged offenses. This appears to be beyond the scope of the evidence the trial court ruled admissible. “When a prosecutor intentionally asks questions, the answers of which he knows are inadmissible, the prosecutor is guilty of” prosecutorial misconduct. (People v. Parsons (1984) 156 Cal.App.3d 1165, 1170.) Defendant contends the prosecutor committed misconduct by eliciting this evidence, and his counsel rendered ineffective assistance by failing to timely object.
Whether considered as possible prosecutorial misconduct or ineffective assistance of counsel, the standard of review is the same. Any error is harmless unless it is reasonably probable that a more favorable result to the defendant would have occurred in the absence of the error. (People v. Parsons, supra, 156 Cal.App.3d at pp. 1171, 1172.) In this case, any error was harmless. There was no dispute as to the facts of the offenses; the only dispute at trial was whether defendant was the man who had committed them. It is undisputed that Tomeo identified defendant at a line-up, and failed to identify her attacker from a photographic array in which defendant was not included. It is undisputed that defendant’s DNA was found on a shirt discarded near the crime scene and a cap in Tomeo’s driveway. It is undisputed that defendant admitted to Detective Henry that he had committed many burglaries under similar circumstances and may have committed the Tomeo burglaries and forgotten about them. In contrast, defendant’s view of the facts relies on his shirt and cap having been stolen – a claim which defendant did not assert when police first told him that clothing with his DNA had been found at the scene. Moreover, defendant’s theory assumes that his t-shirt was stolen by a man who was very similar to him in appearance, committed burglaries similar to those he was committing during the very same time period, and was somehow able to wear and discard a shirt without leaving any DNA on it. While, under the trial court’s ruling, evidence of some of defendant’s other burglaries and robberies should not have been placed before the jury, it is not reasonably probable that defendant would have been acquitted in the absence of such evidence. (Cf. People v. Parsons, supra, 156 Cal.App.3d at p. 1171 [wrongful admission of a defendant’s prior conviction is not reversible in the face of convincing evidence of guilt; reversible error occurs only when the evidence was closely balanced].)
2. There is Insufficient Evidence of the Second Count of Criminal Threats
Penal Code section 422 provides as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” The plain language of the statute indicates that it is only violated by threats “to commit a crime which will result in death or great bodily injury to another person.” Threats to cause mere property damage are therefore insufficient.
Defendant contends the evidence was insufficient to support his second conviction for criminal threats, in that this conviction related to his threat to have his friends burn down Tomeo’s house, which was a threat of property damage alone. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The prosecution argues the evidence was sufficient to support the conviction of criminal threats on the theory that the jury could have inferred that defendant’s threat to have his friends burn down Tomeo’s house implied that they would burn down her house at some later time when she was at home. The evidence does not support this interpretation. Tomeo testified that while in the store parking lot one mile away from her home, defendant told her that if she did not return with money, he would have his friends burn down her house. Defendant indicated that his friends were, at that moment, at her house. Indeed, he asked her, “Didn’t you see them?” Tomeo’s testimony indicates that she also understood the threat to be against her home, not herself. During direct examination, the following testimony was elicited:
“Q There inside the market when you said you had a store clerk trying to help you get the money, did you ever say anything to one of the store clerks about what was happening to you?
“A No.
“Q Why is that?
“A Who knows why not? I guess I was so afraid of what might happen.
“Q Were you afraid of what might happen either to you or to your home?
“A To my home, yeah.
“Q Were you also afraid of what might happen to you?
“A Well, I mean, you don’t know what to think, you know. You want to do what he wants so he’ll leave you alone.”
In short, the evidence was that defendant threatened to have his friends, who were purportedly then at Tomeo’s home, burn down her house. Tomeo understood the threat to be an immediate threat against her home, not herself. Any suggestion that defendant’s threat might have been to burn down Tomeo’s house at some unspecified future time when she was home is wholly speculative and unsupported by the record. The conviction of the second count of criminal threats therefore must be reversed.
It is interesting to note that the jury found the weapon allegation to be untrue with respect to this count. In fact, while deliberating, the jury submitted a question inquiring, “Is the wording correct in regards to the weapon – a syringe or screwdriver – in the form on count 5?” The jury’s question, and its “not true” finding on the syringe allegation, suggest that the jury might have convicted defendant of this count for his November 4 act of aggressively pointing the screwdriver at Tomeo as though he was going to attack her with it. (The verdict forms do not indicate the dates of the offenses.) The prosecution does not suggest the conviction could be upheld on this theory.
3. One of the Prior Prison Term Enhancements Must be Stricken
The jury found true all 11 of the prior prison term allegations; the trial court imposed sentence on 8 of them. One such prior prison term allegation was that defendant suffered a January 9, 1986, conviction in Bibb County, Georgia on January 9, 1986, for the crimes of attempted burglary, burglary, and motor vehicle theft, in case number 187788. Defendant contends the record – including both his oral testimony and the documentary evidence of his convictions – contains no evidence to support the jury’s finding of this prior prison term. The prosecution concedes the error and we agree. There is no evidence of this prior prison term, so the sentence enhancement must be stricken.
The remaining 3 were duplicative; that is, arising from multiple convictions resulting in a single prison term.
We note that the information alleges this prior prison term as arising from a conviction in Fulton County, Georgia, not Bibb County. Perhaps this confusion as to the proper county led to the absence of the necessary documentary evidence.
4. Defendant has Failed to Establish Error in the Calculation of his Presentence Custody Credits
At sentencing, defendant was awarded presentence credit in the amount of 432 actual days in custody plus 64 days of conduct credit. The amount of credit was awarded “based upon the stipulation between the parties.”
On appeal, defendant contends his amount of actual days (and therefore, conduct credit) was miscalculated. Defendant notes that he was arrested on November 17, 2004, and sentenced on February 28, 2006. He calculates his actual days in custody to be 469, and therefore argues he should be entitled to 469 days of actual credit, plus applicable conduct credits.
The prosecution responds that defendant is not entitled to 469 days of actual credit, as he was not in continuous custody, having escaped on May 3, 2005. He was arrested in Georgia on May 22, 2005, and was returned to California by June 3, 2005. In reply, defendant argues that he should receive the entire 469 days of actual credit less only the 18 days when he was at large. We disagree. Defendant apparently spent approximately 10 days in custody in Georgia after his arrest; the record is silent as to whether that custody was due to a hold placed on defendant due to this case, additional criminal activity in Georgia, or a hold placed on defendant due to another pending California case.
Defendant states, “May 3 to 22 counting May 3 (day of escape) and May 22 (day of arrest) is 17 days.” If both terminal days around counted, the total is 20. If both terminal days are excluded, the total is 18.
The record indicates defendant had two additional cases pending in California while this case was prosecuted.
In short, defendant has failed to meet his burden of establishing error on appeal. At sentencing, both counsel stipulated to the amount of custody credits to which defendant was entitled. While the record does not reveal the precise factual basis for the stipulation, defendant has failed to establish on appeal any particular number of additional credits to which he might be entitled.
DISPOSITION
Defendant’s conviction of count 5, criminal threats, is reversed. One of the eight sentence enhancements for prior prison terms is stricken. In all other respects, the judgment is affirmed.
We Concur: KLEIN, P. J., KITCHING, J.