People v. Nelson CA3 ( 2022 )

Filed 8/5/22 P. v. Nelson CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C092697
v. (Super. Ct. No. 19FE017300)
JAMES DENERICK NELSON,
Defendant and Appellant.
Defendant James Denerick Nelson was convicted of indecent exposure and
committing a lewd and lascivious act on a child, the daughter of his girlfriend. The trial
court sentenced him to an aggregate prison term of eight years eight months.
Defendant now contends (1) the trial court abused its discretion in admitting
uncharged sexual offense evidence, testimony by the victim’s sister under the fresh
complaint doctrine, and a detective’s testimony relating victim statements under the prior
consistent statement exception to the hearsay rule, and if defendant forfeited the latter
contention, his counsel was ineffective in failing to object; (2) the abuse of discretion was
1
cumulatively prejudicial; and (3) the matter should be remanded so the trial court can
recalculate presentence credit.1
We conclude (1) the trial court did not abuse its discretion in admitting the
uncharged sexual offense evidence or the fresh-complaint evidence, defendant’s
challenge to the prior consistent statement evidence was forfeited, and defendant has not
established ineffective assistance; (2) the claim of cumulative prejudice lacks merit; and
(3) we will remand the matter so the trial court can recalculate presentence credit.
BACKGROUND
Defendant dated K.D.’s mother and lived with the mother, K.D., and K.D.’s older
sister. One night, defendant entered K.D.’s bedroom with his robe open. The sister was
sleeping at a friend’s house and K.D.’s mother was sleeping in K.D.’s bedroom because
K.D. was sick. Defendant stood over K.D.’s bed with his penis exposed. He put his hand
inside the front of K.D.’s leggings and underwear and stuck his fingers inside K.D.’s
vagina. K.D. turned over and pretended to be asleep. Defendant kept is fingers inside
K.D. for maybe 10 minutes. His fingers went in and out of her vagina. K.D. was too
scared to say anything. Defendant lived with K.D. and her family approximately four or
five months after the incident.
K.D. said the incident affected her behavior. She was getting in trouble at school.
K.D. first told her sister what happened. K.D. denied telling her sister to get out of
trouble at school.
The sister said K.D. started having emotional breakdowns, a change in K.D.’s
behavior. The sister testified that she and K.D. did not feel comfortable living with
defendant. The sister saw defendant touching his penis by the back door.
1 Defendant’s opening brief on appeal also claimed his trial counsel was ineffective in
failing to challenge the denial of defendant’s motion to dismiss on statutory speedy trial
grounds, but he withdrew that claim in his reply brief.
2
The sister told the mother’s new boyfriend David about K.D.’s disclosure and the
boyfriend and mother called the police. Sacramento Police Department Officer Brandon
Calderon interviewed K.D. the next morning, February 12, 2019. K.D. reported that
defendant entered her bedroom in a robe, re-entered her bedroom naked, sat at the side of
her bed and touched her inappropriately. She said he inserted his fingers in her vagina.
K.D. appeared scared during the interview. She had a difficult time giving the officer
details. She said the incident occurred about a year earlier but she did not remember the
exact date. In response to the officer’s question about the timing of her disclosure, K.D.
said she was just ready to tell. K.D. did not tell the officer she was getting in trouble at
school.
K.D. participated in a SAFE interview the following week. Sacramento Police
Department Detective Konrad Von Schoech testified about K.D.’s SAFE interview
statements. He said K.D. related that her mother’s ex-boyfriend entered her bedroom
while she was in bed and his penis was exposed through his bathrobe. He put his hand
inside K.D.’s pants and digitally penetrated her vagina with his fingers.
K.D. did not remember the exact date the incident with defendant occurred . She
told the SAFE interviewer the incident occurred maybe in May 2018, four months after
she turned 11. But defendant was incarcerated at the Sacramento County Jail from
March 8, 2018 to August 28, 2018. At trial, K.D. said her SAFE interview statement
about when the incident occurred was a mistake because the incident happened before
she turned 11. She explained it was not easy for her to remember dates. She testified the
incident occurred before her mother got a restraining order against defendant, something
she had previously told law enforcement officers. K.D.’s mother got the restraining order
on February 20, 2018. Detective Von Schoech testified that based on his training and
experience, it was common for victims to remember what happened but not the exact date
of the incident.
3
K.D. also testified that a couple of weeks after the incident with defendant, she
told her friend Natalia that she did not feel safe and that she was being hurt through her
mother’s relationship with defendant. K.D. testified she did not tell Natalia the details of
the incident. But K.D. told law enforcement officials that she told a friend in December
2018 or January 2019 that something had happened. Natalia testified that in sixth grade,
K.D. told her and another friend that her mother’s boyfriend James had raped her.
Detective Von Schoech testified that in his experience, young people mean different
things by “rape” and rape generally means some violation of their body. Natalia testified
that K.D. was crying a lot and it was unusual behavior. Natalia did not tell a grownup
about K.D.’s disclosure because she did not know if K.D. was telling the truth. Natalia
said K.D. lied about stuff, but based on how K.D. was acting when she made the
disclosure, Natalia thought K.D. was telling the truth about the incident.
The prosecutor also presented evidence of defendant’s uncharged sexual offenses.
C.W. testified that in 2016, she was out in her front yard with her seven-year-old son.
She said defendant stood across the street from her, pulled out his penis and masturbated
to ejaculation while looking at her. Defendant was convicted of indecent exposure for
the C.W. incident. In addition, Jaimee L. testified that one morning in June 2019,
defendant exposed his penis on a Light Rail train and masturbated in front of her. There
were other people sitting around Jaimee L. Defendant was convicted of indecent
exposure in relation to the Jaimee L. incident. Also, Cheryl S. testified that one afternoon
in March 2018, defendant sat across from Cheryl S. in a church lobby open to the public,
looked at her, smiled and touched his penis with his hands in his shorts pockets. No one
else was in the lobby. Defendant then lifted his shorts up and exposed his penis to Cheryl
S. three times, smiling and grinning while looking at Cheryl S. His penis was erect.
Defendant was convicted of indecent exposure in relation to the Cheryl S. incident.
The jury convicted defendant of committing a lewd and lascivious act upon K.D.
(Pen. Code, § 288, subd. (a) -- count one) and indecent exposure (§ 314, subd. (1) --
4
count three).2 The trial court sentenced defendant to an aggregate prison term of eight
years eight months.
DISCUSSION
I
Defendant contends the trial court abused its discretion in admitting the uncharged
sexual offense evidence, the testimony by K.D.’s sister under the fresh complaint
doctrine, and Detective Von Schoech’s testimony relating K.D.’s statements under the
prior consistent statement exception to the hearsay rule. Defendant further argues that if
he forfeited the latter contention, his counsel was ineffective in failing to object. We
address each argument in turn.
A
Defendant claims the trial court abused its discretion in admitting the evidence of
uncharged sexual conduct under Evidence Code sections 1108 and 352 because the
uncharged offenses were substantially different from the charged offenses.
The People moved in limine to admit evidence of defendant’s uncharged sexual
conduct under Evidence Code section 1108. Four incidents involved convictions for
violating section 314, subdivision (1) (indecent exposure) and defendant moved to
exclude that evidence.
The challenged uncharged offenses involved convictions for masturbation and
penis exposure to female victims in a Light Rail train, at a church lobby, during a blood
draw procedure, and on a front porch.3 The prosecutor argued the victims ranged in age
from the early 20’s to 61, other people were around when defendant committed the
2 Undesignated statutory references are to the Penal Code.
3 The prosecutor ultimately did not present evidence relating to the blood draw
procedure incident because the trial court denied the People’s request to allow the witness
to testify remotely.
5
offenses, defendant did not touch or attempt to touch the victims, and defendant had no
restraint in committing sexual offenses, given the range of locations and ages of the
victims.
Defendant countered that although the evidence might be probative on the
indecent exposure charge, it was not relevant to the lewd acts charge because the
uncharged offenses were markedly different. He argued the uncharged offenses were
committed in daylight, in public, against strangers, and did not involve any assaultive
conduct; whereas the charged offenses occurred at home, at night, and against a victim
defendant knew.
As a general rule, evidence of a defendant’s prior conduct is inadmissible when
offered by the prosecution to prove the defendant’s cond uct on a specific occasion, unless
it involves commission of a crime, civil wrong or other act and is relevant to prove some
fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act.
(Evid. Code, § 1101, subd. (b); People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).)
Evidence Code section 1108 is an exception to the general rule. (People v. Erskine
(2019) 7 Cal.5th 279, 295.) Evidence Code section 1108, subdivision (a) provides, “In a
criminal action in which the defendant is accused of a sexual offense, evidence of the
defendant’s commission of another sexual offense or offenses is not made inadmissible
by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to
[Evidence Code] Section 352.”
In enacting Evidence Code section 1108, the Legislature recognized the need
for uncharged sexual offense evidence “ ‘given the serious and secretive nature of sex
crimes and the often resulting credibility contest at trial.’ ” (Falsetta, supra, 21 Cal.4th
at p. 911.) “ ‘[T]he Legislature “declared that the willingness to commit a sexual offense
is not common to most individuals; thus, evidence of any prior sexual offenses is
particularly probative and necessary for determining the credibility of the witness.” ’ ”.
(People v. Story (2009) 45 Cal.4th 1282, 1293 (Story).) Evidence Code section 1108
6
permits the jury in a sex offense case to consider evidence of uncharged sexual offenses
for any relevant purpose subject only to an Evidence Code section 352 weighing of
prejudicial effect and probative value. (People v. Loy (2011) 52 Cal.4th 46, 63 (Loy).)
Evidence of a defendant’s uncharged sexual offenses may be considered in evaluating the
victim’s and the defendant’s credibility, the defendant’s disposition or propensity to
commit sex crimes, and the probability or improbability that the defendant committed the
charged sexual offenses. (Falsetta, at pp. 911-912, 915, 920.)
Under Evidence Code section 1108, a trial court may not deem uncharged sexual
offense evidence unduly prejudicial per se, but must engage in a careful weighing process
under Evidence Code section 352, considering “such factors as its nature, relevance, and
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.) The factors to be
considered depend on the unique facts and issues of each case. (People v. Hernandez
(2011) 200 Cal.App.4th 953, 965 (Hernandez).) The probative value of the uncharged
sexual offense evidence “is increased by the relative similarity between the charged and
uncharged offenses, the close proximity in time of the offenses, and the independent
sources of evidence (the victims) in each offense.” (Falsetta, at p. 917.) “[T]he
prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual
convictions and a prison term, ensuring that the jury would not be tempted to convict the
defendant simply to punish him for the other offenses, and that the jury’s attention would
not be diverted by having to make a separate determination whether defendant committed
the other offenses.” (Ibid., italics omitted.) We review a trial court’s ruling admitting
7
evidence under Evidence Code sections 1108 and 352 for abuse of discretion, looking at
what was before the trial court at the time it made its ruling. (Story, supra, 45 Cal.4th at
p. 1295; People v. Robertson (2012) 208 Cal.App.4th 965, 991 (Robertson).)
The similarity between the uncharged and charged sexual offenses is only one
factor the trial court considers under Evidence Code section 1108. (Falsetta, supra,21 Cal.4th at pp. 916-917; Robertson, supra, 208 Cal.App.4th at p. 991.) Uncharged
sexual offenses that are very similar in nature to the charged crimes logically have more
probative value in proving propensity to commit the charged crimes. (Hernandez, supra,
200 Cal.App.4th at p. 966.) However, “there is no requirement that the charged and
uncharged offenses be so similar that evidence of the prior acts would be admissible
under [Evidence Code] section 1101. If such strict similarities were required, ‘[Evidence
Code ]section 1108 would serve no purpose. [Instead, i]t is enough the charged and
uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.’ ”
(Hernandez, at p. 966; accord People v. Escudero (2010) 183 Cal.App.4th 302, 311; see
also People v. Cordova (2015) 62 Cal.4th 104, 133 [dissimilarity alone does not compel
exclusion of uncharged conduct evidence]; Loy, supra, 52 Cal.4th at p. 63 [fact that prior
crimes bore no similarity to the charged crimes was not dispositive]; Robertson, at p. 991
[similarity analysis under Evidence Code section 1101 does not apply when evidence is
admitted under Evidence Code section 1108].)
Here, the uncharged sexual offenses were similar enough to the charged offenses
to provide further evidence that defendant committed the charged offenses. In the
uncharged offenses, defendant exposed his penis to female victims. In the charged
offense, defendant exposed his penis to K.D. There was no question that defendant acted
for his sexual gratification in the uncharged and charged sexual offenses. Moreover, the
uncharged and charged acts were committed in the 2017 to 2019 time period. As the trial
court found, defendant’s commission of multiple acts of indecent exposure added to the
probative value of the uncharged conduct evidence to show defendant’s disposition to
8
commit sexual offenses. (People v. Yovanov (1999) 69 Cal.App.4th 392, 404 [sheer
frequency of uncharged acts bolstered their relevance because it suggested a pattern of
criminal behavior].) The uncharged sexual offense evidence was probative of K.D.’s
credibility where the charged offenses were committed without third party witnesses and
defendant denied he committed the charged offenses and attacked K.D.’s credibility.
(Falsetta, supra, 21 Cal.4th at pp. 911-912, 915.) The dissimilarities in the uncharged
incidents relate to the weight of the evidence and not its admissibility. (Hernandez,
supra, 200 Cal.App.4th at p. 967.) The uncharged evidence was not more inflammatory
than the charged offenses, which involved the touching of a young girl. And the
uncharged sexual offenses were not remote. Further, there was no indication the
uncharged evidence would require an undue consumption of time at the trial, and the
evidence ultimately occupied only about 16 pages of the reporter’s transcript. Also,
the uncharged offenses resulted in convictions. Thus, the jury was not likely to confuse
the issues or be tempted to punish defendant for the uncharged crimes. (Loy, supra,52 Cal.4th at p. 61.)
The trial court weighed the probative value and prejudicial effect of the uncharged
evidence. It ruled that although the uncharged sexual offenses involved different
circumstances, defendant’s repeated and consistent conduct of approaching females and
exposing his penis was highly probative to whether he did the same thing to K.D. But the
trial court disallowed uncharged evidence unless the prosecutor could present a witness to
testify in person at trial. On this record, defendant fails to demonstrate that the trial court
abused its discretion in admitting the uncharged sexual offense evidence under Evidence
Code sections 1108 and 352.
B
Defendant also argues the trial court abused its discretion in admitting, under the
fresh complaint doctrine, the testimony of the sister that K.D. said defendant had touched
K.D. inappropriately and put his fingers inside K.D. We will refer to the doctrine under
9
which the challenged testimony was admitted as the complaint doctrine, rather than the
fresh complaint doctrine, because the California Supreme Court has held that the
“freshness” of a complaint is not a prerequisite to admissibility of such evidence.
(People v. Brown (1994) 8 Cal.4th 746, 750, 763 (Brown).)
The People moved in limine to admit K.D.’s statement to her sister disclosing
defendant’s misconduct under the complaint doctrine for nonhearsay purposes. Although
defendant countered that the details of K.D.’s complaints were inadmissible, he conceded
that testimony about the timing and circumstances of K.D.’s disclosure was admissible.
The trial court said it would take up the issue when specific objections were made.
During the sister’s testimony, the prosecutor asked what K.D. said about the
touching and defense counsel objected on hearsay grounds. The trial court overruled the
objection under the complaint doctrine. The trial court admonished the jury that the
sister’s testimony was not offered for the truth of the matter but only to give the jury
context as to K.D.’s disclosure. The sister then testified that K.D. said defendant put his
fingers inside K.D.
Outside the presence of the jury, defense counsel explained that his objection was
to the details of the complaint and not to the fact that K.D. made a complaint. Defense
counsel said there was no hearsay exception for K.D.’s statement to the sister. The trial
court responded that the complaint doctrine permitted some of the testimony.
The California Supreme Court acknowledged that the premise underlying the
common law fresh complaint doctrine -- i.e., that it is natural for a victim to promptly
disclose a sexual offense -- has largely been discredited. (Brown, supra, 8 Cal.4th at
pp. 759-760.) However, proof of an extrajudicial complaint made by the victim of a
sexual offense, disclosing the alleged assault, may be admissible for a limited,
nonhearsay purpose -- to establish the fact of, and the circumstances surrounding, the
victim’s disclosure of the assault to others -- so long as its probative value outweighs its
prejudicial effect. (Id. at pp. 749-750, 759-760, 763.) The prosecution may present
10
extrajudicial complaint evidence to corroborate the victim’s testimony, rebut any
inferences that might be drawn from failure to complain, and help the jury determine
whether the charged sexual offenses did or did not occur. (Id. at pp. 750, 759-761, 763-
764; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522 (Ramirez).) The evidence is
not admitted for the truth of the matter stated. (Brown, at pp. 755, 763.)
Testimony about an extrajudicial complaint need not be limited to the bare fact of
the complaint. “[I]t can be shown by the People ‘that the complaint related to the matter
being inquired into, and not a complaint wholly foreign to the subject’ [citation]; that is,
the alleged victim’s statement of the nature of the offense and the identity of the asserted
offender, without details, is proper.” (People v. Burton (1961) 55 Cal.2d 328, 351, italics
omitted (Burton).) We review the trial court’s ruling for abuse of discretion. (People v.
Jimenez (2019) 35 Cal.App.5th 373, 389.)
Defendant contends the sister’s testimony that K.D. said defendant touched her
inappropriately and put his fingers inside her was not admissible under the complaint
doctrine. But defendant was charged with committing a lewd and lascivious act upon
K.D. involving his finger to her genitalia, and the testimony by the sister showed that
K.D.’s disclosure “related to the matter being inquired into” and was not a complaint
“wholly foreign to the subject.” (Burton, supra, 55 Cal.2d at p. 351, italics omitted; see
also People v. Fair (1988) 203 Cal.App.3d 1303, 1306-1308 (Fair) [note written by the
victim stating that the defendant made her touch his dick and he touched her vagina was
admissible as a fresh complaint]; People v. Meacham (1984) 152 Cal.App.3d 142, 157-
158 (Meacham) [victims’ complaints that the defendant touched their bottom or removed
their clothing was admissible as “recent complaints”]; People v. Brown (1973)
35 Cal.App.3d 317, 323-324 [victim’s statement that the defendant committed an act of
sodomy was properly admitted under the complaint doctrine]; People v. Butler (1967)
249 Cal.App.2d 799, 804-806 [victim’s statement that “ ‘the man was sucking his
thing’ ” was admissible under the complaint doctrine]; People v. Cordray (1963)
11
221 Cal.App.2d 589, 594 [victim’s statement that the defendant pulled her pants down
and kissed her between the legs was admissible under Burton, supra, 55 Cal.2d 328].)
There was no abuse of discretion in admitting the extrajudicial complaint evidence.
Even if the challenged testimony exceeded the limits of what is admissible under
the complaint doctrine, any error in admitting the testimony by the sister did not
prejudice defendant because K.D. testified with more specificity. (See Fair, supra,
203 Cal.App.3d at p. 1308.) The jury did not have to rely on the extrajudicial complaint
evidence but was able to hear details from K.D. directly, with defendant having an
opportunity to cross-examine K.D. K.D.’s extrajudicial complaint statements were
consistent with and cumulative of her trial testimony. Defendant fails to show it is
reasonably probable the outcome would have been different had the trial court excluded
the challenged testimony. (Ramirez, supra, 143 Cal.App.4th at p. 1526 [applying People
v. Watson (1956) 46 Cal.2d 818 harmless error test to error in admitting hearsay
evidence]; Meacham, supra, 152 Cal.App.3d at p. 160 [same].)
The trial court said that even if the complaint doctrine did not apply, based on the
totality of the evidence, the testimony by the sister was admissible under the prior
consistent or inconsistent statement exception to the hearsay rule and the trial court
would still have overruled the objection. Although defendant argues the prior consistent
and inconsistent statement exceptions do not apply, we do not consider the argument
because admission of the challenged testimony was consistent with the complaint
doctrine.
C
Defendant further contends the trial court abused its discretion in admitting, under
the prior consistent statement exception to the hearsay rule, Detective Von Schoech’s
testimony relating K.D.’s SAFE interview statements.
The People moved in limine to introduce K.D.’s SAFE interview statements as
prior consistent statements under Evidence Code section 780 in the event defendant
12
attacked K.D.’s credibility. Defense counsel deferred arguing the matter until K.D.
testified. The judge confirmed the deferral and the prosecutor agreed. The trial court
said it need not make a ruling at that time and defense counsel did not object.
Detective Von Schoech described K.D.’s SAFE interview statements after K.D.
and her sister had testified. Among other things, he explained that K.D. said her mother’s
ex-boyfriend walked into her bedroom with his penis exposed, put his hand inside her
pants, and digitally penetrated her vagina with his fingers. Defense counsel did not
object to that portion of Detective Von Schoech’s testimony, but defendant now
challenges the testimony as inadmissible hearsay. The failure to object to admission of
hearsay at trial forfeits an appellate claim that the evidence was improperly admitted.
(Evid. Code, § 353, subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 333.)
Anticipating a claim of forfeiture, defendant argues his trial counsel rendered
ineffective assistance by failing to object.
To establish ineffective assistance of counsel, a defendant must prove that (1) his
trial counsel’s representation was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury);
Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674] (Strickland).) If a
defendant makes an insufficient showing on either of those components, his ineffective
assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, at p. 687.)
We review trial counsel’s performance with deferential scrutiny, indulging a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance and recognizing the many choices that attorneys make in handling
cases and the danger of second-guessing an attorney’s decisions. (Maury, supra,
30 Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 689.) “It is particularly difficult
to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction
will be reversed for ineffective assistance only if (1) the record affirmatively discloses
13
counsel had no rational tactical purpose for the challenged act or omission, (2) counsel
was asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009,
original italics.)
The record is silent about why defendant’s trial counsel did not object to the
challenged testimony. “The decision whether to object to evidence at trial is a matter of
tactics and, because of the deference accorded such decisions on appeal, will seldom
establish that counsel was incompetent.” (People v. Lucas (1995) 12 Cal.4th 415, 444;
accord People v. Perry (1969) 271 Cal.App.2d 84, 114-115.) Defendant’s trial counsel
may have reasonably decided not to object because K.D. had already testified to the
details. We accord “ ‘great deference to [defense trial] counsel’s tactical choices’ ”
(People v. Mickel (2016) 2 Cal.5th 181, 198) and have no basis upon which to determine
that trial counsel’s representation was deficient.
II
Defendant asserts the judgment should be reversed because the abuse of discretion
was cumulatively prejudicial.
“[A] series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.” (People
v. Hill (1998) 17 Cal.4th 800, 844.) Defendant has not demonstrated a series of trial
errors or that he did not receive due process and a fair trial. We reject the claim of
cumulative prejudice.
III
Finally, defendant claims the matter must be remanded so that the trial court can
award the correct number of actual custody and conduct credits.
At the sentencing hearing, the trial court verbally awarded defendant 95 days of
presentence credit (83 actual days and 12 conduct days). But the abstract of judgment
14
indicates defendant was awarded 328 days of presentence credit (285 actual days and
43 conduct days). In addition, the trial court sentenced defendant in two violation of
probation cases and awarded presentence credit in those cases.
The People suggest that the credit awards in this case and the violation of
probation cases may have been inadvertently confused. They agree remand is
appropriate, and we do too.
DISPOSITION
The matter is remanded to the trial court with directions to recalculate and award
the presentence credit to which defendant is entitled, to prepare an amended abstract of
judgment, and to forward a copy of the amended abstract of judgment to the Department
of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
15