Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Madera County No. MCR026997, Edward P. Moffat, Judge.
Harry I. Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Victor Carlos Tovar was convicted after jury trial of possessing methamphetamine for sale. He admitted one prior strike and one prior prison term. (Health & Saf. Code, § 11377, subd. (a); Pen. Code, §§ 667, subds. (b)-(i), 667.5.) He was sentenced to seven years’ imprisonment.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant contends that the court improperly admitted documentary evidence of a prior drug conviction. Also, he argues that his trial counsel was ineffective. Finally, appellant asserts that he is entitled to additional presentence custody credits. We agree that he is entitled to the additional credits. The rest of appellant’s arguments are not convincing. We will modify the judgment and affirm.
FACTUAL OVERVIEW
At approximately 11:00 p.m. on November 19, 2006, Madera City Police Officer Jason Pritchard was patrolling an area known for narcotic sales in a marked patrol vehicle. He saw appellant standing in a dark alleyway. Pritchard radioed that he was making a pedestrian stop and drove his patrol vehicle next to appellant. Madera City Police Officer Angela Paul arrived in another vehicle and parked behind Pritchard.
Appellant turned toward Pritchard and put his hands behind his back. Paul saw appellant’s hands reach back toward his rear pants’ pocket. Pritchard thought that appellant might be armed so he shone his spotlight on appellant and told him to show his hands. Appellant removed his hands from behind his back. Both officers got out of their patrol vehicles. Paul shone her flashlight on the ground near appellant, looking for a weapon or other item; she did not find anything.
Pritchard approached appellant, who identified himself. Pritchard asked appellant why he put his hands behind his back. Appellant said that he was retrieving his identification. Appellant also said that he was on parole. Pritchard pat searched appellant; he did not find any weapons or contraband. Pritchard ran appellant’s name through dispatch and was informed that he did not have any outstanding warrants. Pritchard terminated the encounter and appellant started to walk away.
Both officers shined their flashlights in the area where appellant had been standing. Pritchard discovered a plastic baggie containing a substance that appeared to be crystal methamphetamine. The baggie was found in the immediate area where appellant had been standing. Although the ground was wet from a recent rain, the baggie was completely dry.
Pritchard ordered appellant to stop. Appellant complied. He was arrested and Mirandized. Appellant told Pritchard that he did not wish to make a statement.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Appellant was searched. Pritchard found a small digital scale encrusted with a crystalline substance, numerous pieces of paper with telephone numbers on them and forty dollars in cash.
It was later determined that the plastic bag contained 1.13 grams of methamphetamine. A criminalist opined that .02 grams is a usable amount of methamphetamine. The substance on the scale was not tested.
An abstract of judgment reflecting appellant’s 2005 conviction for possessing methamphetamine (the abstract) was admitted to prove appellant’s knowledge of the nature of methamphetamine as a controlled substance.
Defense counsel did not call any witnesses and rested on the state of the evidence. In closing, defense counsel argued the People failed to prove that appellant had possession of the baggie and they did not establish “knowledge on the part of [appellant] that he knew what those substances were that were found by law enforcement.”
DISCUSSION
I. The abstract was properly admitted.
A. Facts
In 2005, appellant pled guilty to one count of possessing methamphetamine (the prior drug conviction). The prosecutor filed a pretrial motion to admit proof of the prior drug conviction pursuant to Evidence Code section 1101, subdivision (b) to show appellant’s knowledge of the nature of methamphetamine as a controlled substance.
The prosecutor’s motion was considered during the trial confirmation hearing. The prosecutor stated that she was unable to locate the file containing material relevant to appellant’s prior drug conviction. Defense counsel briefly stated that he objected but he did not articulate a specific legal ground. The court stated that the prior drug conviction is relevant to prove knowledge. It reserved ruling on the motion to give the prosecutor an opportunity to locate the applicable file. Shortly thereafter, the prosecutor stated that defense counsel just informed her that he would be willing to stipulate to knowledge. Defense counsel immediately replied, “No, I decided not to.”
At the conclusion of the prosecutor’s case-in-chief, she moved to admit the abstract. The court stated, “Sure. We have Exhibit No. 6 that’s been marked for identification. It’s an abstract of judgment. We’ve dealt with this in other motions and all and I’ll have counsel relate what it is rather than me.” After the prosecutor identified the exhibit, the court said that it would “explain the purpose.” The prosecutor replied, “Okay, that’s what I wasn’t sure.” The court said, “Okay. That exhibit is admitted into evidence subject to the court’s prior ruling on pretrial motions.” Immediately thereafter, the court gave the following limiting instruction:
“The purpose of this is just for a very limited purpose. It’s not to show anything a propensity or anything like that.
“The People have to prove as part of their case in chief on a possession of methamphetamine charge that the defendant had a specific mental state in his mind which means he had to have knowledge of the presence of the object. And knowledge of its character as a controlled substance. And this is admitted just for the sole limited purpose of evidence of knowledge of the -- and for no other -- for no other purpose. You can’t consider it for any other purpose. You get a jury instruction in that regard.”
B. The abstract was relevant on the issue of knowledge and its probative value greatly outweighed any danger of unfair prejudice.
“‘Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]’ [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]” (People v. Harris (2000) 83 Cal.App.4th 371, 374.)
Evidence Code section 452.5 “states a new hearsay exception for certified official records of conviction, which may be offered to prove not only the fact of a conviction, but the commission of the underlying offense.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. omitted; see also People v. Wesson (2006) 138 Cal.App.4th 959, 968.) Thus, the abstract is admissible to prove appellant actually possessed methamphetamine in 2005.
Generally, evidence that the accused has committed crimes other than those for which he is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendant’s conduct on a specified occasion. However, Evidence Code section 1101, subdivision (b) allows proof of prior misconduct to be admitted when it is relevant to prove a material fact at issue, such as knowledge. (People v. Ewoldt (1994) 7 Cal.4th 380, 402, fn. 6 (Ewoldt).) Before admitting this type of evidence, the trial court must consider whether admission of such evidence contravenes other policies limiting its admission, such as those contained in Evidence Code section 352. (People v. Cole (2004) 33 Cal.4th 1158, 1194.) “We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (Id. at p. 1195.)
Appellant argues that the trial court erred by admitting the abstract without conducting the required weighing process pursuant to Evidence Code section 352. As will be explained, although the record does not affirmatively show that the trial court conducted such a weighing process, admission of the abstract was not an abuse of discretion because the abstract’s probative value greatly outweighed the potential for unfair prejudice.
The appellate record does not affirmatively demonstrate that the trial court expressly weighed the probative value of the abstract against the risk of unfair prejudice. The People’s written points and authorities did not reference Penal Code section 352 and defense counsel did not file written opposition. At the trial confirmation hearing, the prosecutor argued that the prior drug conviction was relevant to prove knowledge. Although defense counsel generally objected, he did not state any specific legal ground or argue that evidence of the prior drug conviction would be unfairly prejudicial. The trial court’s ruling was brief and did not include any express indication that it considered whether admission of the abstract contravened any policies that might affect its admissibility. While it appears from the judge’s comments immediately prior to admission of the abstract that he discussed this subject with counsel off the record at some earlier point during the trial, it would be highly speculative to attempt to deduce the contents of this discussion.
Yet, the omission requires reversal only if resulted in a miscarriage of justice. (See, e.g., People v. Green (1980) 27 Cal.3d 1, 26-27.) As we will explain, a miscarriage of justice did not occur in this case because it is not reasonably probable that the abstract would have been excluded if the trial court’s omission had been brought to its attention. Appellant’s prior drug conviction was highly probative on the knowledge element of the charged offense and it was not unfairly prejudicial.
“ In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs.” (People v. Williams (2009) 170 Cal.App.4th 587, 607; see also People v. Pijal (1973) 33 Cal.App.3d 682, 691 & People v. Ellers (1980) 108 Cal.App.3d 943, 953.)
Notwithstanding this general proposition, appellant argues that in this case the abstract lacked probative value because there was no real dispute about the knowledge element. He is wrong. A plea of not guilty places all of the elements of the offense in dispute unless the defendant takes some action to narrow the prosecutor’s burden of proof. (Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4.) “It is not necessary for the defendant to raise an issue as to his knowledge before the People can introduce such evidence.” (People v. Ellers, supra, 108 Cal.App.3d at p. 953.) Moreover, defense counsel actively contested the knowledge element. He refused to stipulate to appellant’s knowledge at the trial confirmation hearing and argued in closing that there was insufficient proof of appellant’s knowledge of the nature of methamphetamine as a controlled substance. Appellant also contends that the People failed to establish a link between appellant and the person named in the document. We are not persuaded. Because appellant did not move to exclude the abstract on the ground of lack of foundation he waived that argument on appeal. (People v. Vega (2005) 130 Cal.App.4th 183, 193.) In any event, appellant did not contend below that he was not the person named in the abstract. He did not request augmentation of the appellate record to include some proof that he is not the person named in the abstract. Thus, the contention lacks evidentiary support.
Finally, appellant argues that admission of the abstract violated his federal constitutional due process and fair trial rights. The contemporaneous objection rule applies to federal constitutional claims such as this one. (People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Crittenden (1994) 9 Cal.4th 83, 135, fn. 10.) Appellant did not object to admission of the abstract based on any federal constitutional provision. Therefore, he forfeited consideration of this point on direct appeal. In any event, the argument lacks merit because admission of the abstract was not an abuse of discretion. Thus, his federal rights were not infringed. (People v. Catlin, supra, 26 Cal.4th at p. 132, fn. 12.)
II. Defense counsel was not ineffective.
Appellant contends that defense counsel was ineffective because he did not file a pretrial suppression motion, refused to stipulate to the knowledge element and did not object to Pritchard’s testimony that after appellant was Mirandized he said that he did not want to make a statement. All of these contentions fail.
To prevail on an ineffective assistance claim, appellant bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsel’s performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604.)
A. A suppression motion would not have been successful.
Appellant argues defense counsel was ineffective because he did not file a pretrial suppression motion based on the premise that appellant’s initial encounter with Pritchard was not consensual and the pat search could not have been justified as a lawful investigative detention. We reject this claim because a pretrial suppression motion would not have been successful. Defense counsel is not obligated to pursue futile lines of defense or advance baseless arguments. (People v. Panah (2005) 35 Cal.4th 395, 432; People v. Welch (1999) 20 Cal.4th 701, 728.) Therefore, appellant did not meet his burden of proving either deficient performance or prejudice.
Police contacts with individuals fall into three broad categories: Consensual encounters that do not result in a restraint of liberty; detentions, which are seizures that are strictly limited in duration, scope and purpose; and formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
“Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.) They do not require an “articulable suspicion that the person has committed or is about to commit a crime.” (Ibid.) Provided “a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.]” (Ibid.) The court is to “‘… consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.]” (Ibid.) This is a test that “assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.]” (Ibid.)
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 821.) That is essentially what occurred in this case. The officers’ contact with appellant was brief. The two officers did not exit their vehicles until appellant put his hands behind his back and reached for his back pocket. At no point was appellant handcuffed. Neither officer displayed his weapon. Appellant was merely asked why he put his hands behind his back and pat searched for officer safety. After ascertaining that appellant did not have any outstanding warrants, the encounter was terminated and appellant began to walk away. Pritchard’s suspicion that appellant was involved in the narcotics trade is irrelevant because he did not communicate this suspicion to appellant. “The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (Manuel G., supra, 16 Cal.4th at p. 821.) The pat search did not convert the encounter into a detention. Pritchard testified that appellant said he was on parole before the pat search occurred. Appellant’s parole status justified a suspicionless search by Pritchard. (Samson v. California (2006) 547 U.S. 843, 857.)
Pritchard testified that appellant told him that he was on parole prior to the pat search. This testimony was stricken as nonresponsive. However, it is relevant information that was given under oath. Had a pretrial suppression motion been brought, it is reasonably certain that this information would have been elicited from Pritchard. Therefore, we find it to be considerable in this context.
Accordingly, we conclude that the encounter was consensual and appellant’s Fourth Amendment rights were not infringed. Therefore, defense counsel’s failure to pursue the issue did not render his representation deficient and appellant was not prejudiced by the omission.
B. It is not reasonably likely that appellant would have been acquitted if defense counsel had objected to Pritchard’s testimony that appellant declined to make a statement after he was Mirandized.
Next, appellant contends that defense counsel was ineffective because he did not object to Pritchard’s testimony that after appellant was Mirandized, he said that he did not wish to make a statement.
Failure to object to evidence generally is a tactical decision and seldom establishes counsel’s incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158.) In this case, we need not expressly determine whether defense counsel’s failure to object was a reasonable tactical decision because appellant has not established prejudice. (In re Jackson, supra, 3 Cal.4th at p. 604.)
The challenged statement was brief; it consisted of a single sentence. The prosecutor immediately moved on to another topic and he did not reference this testimony in his closing argument. The People’s case was strong. It is not reasonably probable that the jury would have acquitted appellant if Pritchard’s statement had been stricken and the jury instructed to disregard it.
C. Refusal to stipulate to the knowledge element was a reasonable tactical choice.
Finally, appellant argues that defense counsel was ineffective because he refused to stipulate to the knowledge element of the drug possession charge. Appellant points out that if defense counsel had stipulated to this element, the abstract would not have been admitted and the jury would not have known about his prior drug conviction.
We reject this claim because it ignores a crucial fact -- at the time defense counsel made this decision, the prosecutor could not locate the file containing documentary proof of the prior drug conviction. Defense counsel could have made a tactical decision not to stipulate because it was possible the prosecutor might not locate the relevant file in time to present proof of his prior drug conviction to the jury. If defense counsel stipulated to the knowledge element, then he gave away this potential windfall. Furthermore, given the strength of the prosecution’s case, defense counsel reasonably could have decided that it was wiser to contest every element of the crime.
Appellant also failed to establish prejudice. Immediately after the abstract was admitted, the court gave a limiting instruction directing the jurors to consider the abstract solely to prove knowledge. It is presumed that jurors follow their instructions (People v. Albarran (2007) 149 Cal.App.4th 214, 241), and there is no evidence in the appellate record indicating that the jury failed to abide by this limiting instruction. There was no testimony concerning the factual circumstances of the prior drug conviction. Accordingly, it is not reasonably probable that the jury would have acquitted appellant if defense counsel had stipulated to the knowledge element.
III. Appellant is entitled to additional presentence credits.
A. Facts
Appellant was on parole when he was arrested. Pritchard determined that appellant did not have any outstanding warrants at that time.
The probation report states that on an unspecified date after appellant’s arrest he was found to have violated the terms of his parole “for the possession of methamphetamine, possession of paraphernalia, and a curfew violation.” Appellant’s parole was revoked and he was returned to custody for seven months; his term was served on April 13, 2007. He remained incarcerated as a result of the current crime. The probation officer concluded that appellant was entitled to presentence credits for the period of April 13, 2007, to April 23, 2007, but was not entitled to custody credits from November 19, 2006, to April 12, 2007, because the parole revocation was not based solely on the methamphetamine possession.
Appellant was sentenced on May 23, 2007. At sentencing, defense counsel did not have any corrections or comments on the probation report. The trial court awarded appellant 61 days of presentence custody credit. At this point, defense counsel stated that appellant had been in custody since his arrest. The trial court replied:
“Did you see what they said there in relationship to that, those time credits. And it says no presentence time credits. He’s in custody on a parole revocation unless the parole revocation was based solely on the new offense and they’re saying it wasn’t.
‘Now if you have some information to the contrary, you can submit that application to me under 2900.5 of the Penal Code and I will recalculate those. And the only basis for his being in there was that, I will give him those time credits but if you can make an application to get that information from his parole officer.”
Defense counsel did not make any further comments concerning custody credits and did not apply for an adjustment of custody credits.
“[F]ailure to object at trial does not waive the issue of custody credits on appeal since the issue does not involve a discretionary sentencing choice but is a purely mathematical calculation.” (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.)
B. The period of custody in question was solely attributable to a single criminal event that is directly related to the current offense.
Appellant argues he is entitled to presentence credits from the date of his arrest until the day he was sentenced because “the record here indicates [his] arrest inspired a parole hold, and no evidence suggests he would have been incarcerated for a curfew violation but for the drug charge.” He asserts “[t]here was no evidence that appellant was in custody for any other reason than his drug possession.” We agree with appellant.
Presentence custody credits are generally authorized by subdivision (a) of section 2900.5. Subdivision (b) of this section is a limiting provision providing that “credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900, subd. (b).)
“Proper construction of the limiting language in section 2900.5, subdivision (b), has engendered considerable difficulty: ‘“Probably the only sure consensus among the appellate court is a recognition that section 2900.5, subdivision (b), is ‘difficult to interpret and apply.’ [Citation.] As we have noted, in what is surely an understatement, ‘[c]redit determination is not a simple matter.’”’ [Citations.]” (People v. Pruitt (2008) 161 Cal.App.4th 637, 641 (Pruitt); see also In re Marquez (2003) 30 Cal.4th 14, 19 (Marquez).)
Yet, the central issue in every custody credit case is whether the relevant period of custody is attributable to conduct that is directly related to the current criminal proceeding or to unrelated conduct. When presentence custody results solely from an unrelated offense, no credits are awarded. (In re Rojas (1979) 23 Cal.3d 152, 156.) Where the probation violations are both related and unrelated to the current criminal proceedings (such as when the accused has one or more administrative violations or independent parole holds), appellant bears the burden of proving that the period of incarceration at issue arose solely from the same conduct or criminal episode involved in the criminal proceedings. (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194 (Bruner); People v. Shabazz (2003) 107 Cal.App.4th 1255, 1259.) “The requirement of ‘strict causation,’ … is applicable in cases involving the possibility of duplicate credit that might create a windfall for the defendant.” (Marquez, supra, 30 Cal.4th at p. 23.)
Bruner explained that published Court of Appeal decisions filed since issuance of In re Joyner (1989) 48 Cal.3d 487, have correctly applied a general rule that “a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. Thus, … his criminal sentence may not be credited with jail or prison time attributable to a parole or probation revocation that was based only in part upon the same criminal episode. [Citations.]” (Bruner, supra, 9 Cal.4th at p. 1191.)
In this case, it is readily apparent that appellant’s three parole violations are all directly related to the same criminal episode that resulted in the current criminal conviction and sentence. Respondent’s claim that the curfew violation might have occurred on a night other the date of his arrest is not convincing. When reasonably read and understood in light of trial testimony, it is apparent that from the record that the curfew violation occurred on November 19, 2006. The probation report only references the events surrounding appellant’s arrest on this date. If the curfew violation occurred on a date prior to November 19, 2006, a reasonable probation officer would have noted this fact somewhere within his factual summary or analysis. The curfew violation could not have occurred after November 19, 2006, because appellant was incarcerated.
Respondent’s contention that appellant is not entitled presentence custody credits because he was not criminally charged with violating his curfew has already been decided adverse to his position. The parole revocation offenses are not required to be identical to the criminal offenses in order for them to be a part of a single criminal episode. (People v. Williams (1992) 10 Cal.App.4th 827, 832-325 (Williams); Bruner, supra, 9 Cal.4th at p. 1193, fn. 10.)
There is no evidence that appellant had any independent administrative violations. He did not have any outstanding warrants or parole holds on the date of his arrest. His conduct on the night of November 19, 2006, resulted in a single criminal case. Thus, there is no risk of duplicative presentence credits for a single period of custody.
Accordingly, we conclude that appellant’s presentence custody is solely attributable to the same criminal episode that resulted in the current sentence and the trial court erred by refusing to award him custody credits from the date of his arrest to the date of sentencing. (People v. Johnson, supra, 150 Cal.App.4th at p. 1485; cf. Williams, supra, 10 Cal.App.4th at pp. 832-835.)
C. The proper remedy is modification of the judgment.
A defendant who is confined in a county jail prior to imposition of a sentence for a felony conviction is entitled to presentence credits under section 4019 unless the current offense is a violent felony enumerated in section 667.5, subdivision (c). Possession of methamphetamine with intent to sell is not an enumerated violent felony. Therefore, appellant is entitled to presentence credits calculated in accordance with section 4019 despite his prior strike. (People v. Philpot (2004) 122 Cal.App.4th 893, 908 (Philpot); People v. Henson (1997) 57 Cal.App.4th 1380, 1389.) “Section 4019 authorizes two days of good time/work time credit for each completed four-day block of actual custody time. [Citations.]” (Pruitt, supra, 161 Cal.App.4th at p. 641, fn. 3.) There is nothing in the record suggesting that appellant is not allowed the full amount of credit pursuant to 4019. Therefore, we must calculate his credit. (Marquez, supra, 30 Cal.4th at p. 918.)
Appellant argues that he is entitled to 278 presentence custody credits. He is correct. He was arrested on November 19, 2006, and sentenced on May 23, 2007. His actual custody time was 43 days in 2006 and 143 days in 2007, totaling 186 days. Presentence custody credit is calculated under section 4019 by dividing the total number of days spent in custody by four and rounding down to the nearest whole number, then multiplying this number by two. The result is added to the total number of days spent in custody. (Marquez, supra, 30 Cal.4th at p. 919 ; Philpot, supra, 122 Cal.App.4th at p. 908.) In this case, application of this formula results in a total of 278 presentence credits (186 days actual custody plus 92 conduct credits).
Appellant requests this court to correct the abstract of judgment to reflect the additional credits. This is not the correct remedy. The proper course is to modify the judgment to award the proper amount of presentence credit, affirm the judgment as modified, and direct the trial court to prepare a corrected abstract of judgment. (See, e.g., People v. Kimball (2008) 168 Cal.App.4th 904, 908; People v. Reyes (2008) 165 Cal.App.4th 426, 429, 438; People v. Hill (2007) 142 Cal.App.4th 770, 772, 775.)
DISPOSITION
The judgment is modified to award appellant 278 presentence credits. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting this modification and to transmit it to the Department of Corrections.
WE CONCUR: Ardaiz, P. J., Gomes, J.