People v. Puerto , 203 Cal. Rptr. 3d 518 ( 2016 )

Filed 6/21/16
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B263411
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA429371)
v.
ALFONSO PUERTO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Norm Shapiro, Judge. Affirmed as modified.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for
Plaintiff and Respondent.
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the first
and second full paragraphs on page 2, part II of the Discussion, and the Disposition are
certified for publication.
A jury convicted defendant and appellant Alfonso Puerto of criminal threats (Pen.
Code, § 422, subd. (a)1) and battery (§ 242), and found true a criminal street gang
allegation applied to both offenses (§§ 186.22, subd. (b)(1)(B) & 186.22, subd. (d)). The
trial court found true the allegation that defendant had a prior felony conviction within
the meaning of the “Three Strikes” law (§§ 667, subds. (a)-(d) & 1170.12, subds. (b)-(i))
and four prior felonies within the meaning of section 667.5, subdivision (b). Defendant
was sentenced to state prison for 11 years and awarded 306 days of sentence credit
consisting of 153 days of actual custody and 153 days of conduct credit.
Defendant contends insufficient evidence supports the jury’s criminal street gang
allegation findings, the prosecution did not plead or prove the prior strike conviction, and
the trial court erred in calculating his award of sentence credit. We affirm the criminal
street gang allegation and prior strike conviction findings, and order the minute order for
defendant’s sentencing hearing and the abstract of judgment modified to reflect 416 days
of sentence credit consisting of 208 days of actual custody and 208 days of conduct
credit.
BACKGROUND
I. Prosecution Case
About 9:30 p.m., on September 13, 2014, Brad Varela walked his mother, Fany
Mayorga, home from work. When they were in the area of Sixth and Union Streets, they
encountered defendant and another man. Defendant and his companion spoke to one
another. Defendant said Varela was a “gangster” and identified Varela’s alleged gang.
Varela said he did not “gangbang.” Defendant’s companion asked Varela, “You know
what hood is this?” Varela responded, “Yes.” He asked Varela, “Where are you from?”
Varela understood the inquiry to be gang-related. Varela responded he was from
“nowhere.” Defendant told his companion to hit Varela because Varela was from a gang.
1 All statutory citations are to the Penal Code unless otherwise noted.
2
Defendant’s companion complied, punching Varela in the mouth and causing Varela to
fall to the ground.
Mayorga said, “Leave or we’re going to call the cops.” Defendant’s companion
left. Defendant said, “Go ahead and call the police, they are not going to do anything.”
He also said, “This is my hood.” Varela and Mayorga went to the police station and
reported the incident.
The prosecution based a battery charge on the September 13, 2014, incident. The
jury acquitted defendant of that charge.
The next day, September 14, 2014, defendant approached Varela on the street.
Defendant accused Varela of being a “claimer” and said he was going to stab Varela. He
said if Varela kept “walking around in his ’hood and everything that he was going to
bring his homeboys to come and like, you know, like f [him] up.” Defendant was going
to have someone stab Varela, and have his homeboys “really beat [him] up.” Defendant
said, “This is my ’hood,” and he did not want Varela in his “’hood” any longer.
Defendant said he was from the “Rockwood 13” (Rockwood) gang and punched Varela
in the face. Varela went to his mother’s place of employment, and she accompanied him
to the police station. Defendant was later arrested. Defendant’s threats caused Varela to
be afraid, and he did not leave his home for weeks.
Los Angeles Police Department Officer Brian Hegemier testified as the
prosecution’s expert on the Rockwood gang. He testified the area of Sixth and Union
Streets fell into Rockwood’s territory. Defendant was an admitted Rockwood gang
member.
Hegemier explained that a “claimer” was a “wanna-be”—a person who was not,
but claimed to be, a member of a gang. The consequences of falsely claiming to be a
Rockwood gang member included telling the “claimer” to stop, committing battery on the
claimer, “going after” family members, threats to the “claimer” or his family members,
and the infliction of great bodily injury.
According to Hegemier, to increase the chances a gang could commit crimes
within its territory without getting caught, it was important for the gang to instill fear in,
3
and to intimidate, the community. Thus, it was important for the Rockwood gang to
convey to the community that the members of its gang could hurt them without getting
into trouble. Committing criminal threats and battery against a specific person benefited
the Rockwood gang because it “broadcast[ed] to citizens and victims that these specific
gang members of this gang are relentless in controlling a specific territory, and they—by
committing such bolsterous (sic) acts of violence, it shows to these victims that they are
willing to carry through with these threats.”
Hegemier testified a gang member builds a reputation within his gang by
committing crimes. The more violent the crime, the more clout the gang member earns
within the gang. A gang member’s reputation is also enhanced by making criminal
threats.
The prosecutor stated hypothetical sets of facts for Hegemier based on Varela’s
September 14, 2014, encounter with defendant, and asked if the battery and “the words
uttered” were for the benefit of or in association with the Rockwood criminal street gang.
Hegemier responded, “Yes.” He testified, “I believe it . . . benefits the Rockwood gang,
based on the fact that these individuals are relentless in controlling a specific area through
these various acts of crime. [¶] Criminal threats is a crime that is committed on a more
regular basis within these neighborhoods to show these victims and rival gang members
that they are, you know, willing to commit these specific crimes, to continue to have that
continuous atmosphere of fear and intimidation within the community.” He further
testified that fear and intimidation in the community allowed Rockwood to commit other
crimes.
II. Defense Case
Bill Sanders, Ph.D., a professor of criminal justice at California State University,
Los Angeles, testified as the defense expert on gangs. In preparing for his testimony,
among other things, he reviewed the case file and interviewed defendant. He opined
defendant was not an active member of a criminal street gang because defendant was 44
4
years old, had not lived in the Rockwood gang’s territory for about 20 years, had been in
and out of prison and jail, and was homeless when he was arrested.
Sanders had not done any research about the Rockwood gang and had not
interviewed any Rockwood gang members. He did not know the gang’s territory, how
many members were in the gang, the names of any members, or the names of any of the
gang’s cliques. If defendant said, “This is Rockwood,” “I’m going to stab you,” and
“things of that nature,” “it can be considered” to have been said for the benefit of the
gang.
DISCUSSION
I. The Jury’s Gang Allegation Findings
Defendant argues insufficient evidence supports the jury’s gang allegation
findings.2 He contends the evidence fails to show either that he acted for the benefit of or
in association with a gang, or that he acted with the intent to promote the criminal
activities of a gang. Sufficient evidence supports the findings.
A. Standard of Review
“‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1,
27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
2 Defendant states the gang allegation findings were under section 186.22,
subdivision (b)(1)(B) as to both offenses. Instead, as noted above, the jury found true the
gang allegation as to the criminal threats offense under subdivision (b)(1)(B) of section
186.22, and as to the battery offense under subdivision (d) of section 186.22. The
substantive differences between the subdivisions are not relevant to our evidentiary
aanalysis.
5
have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v.
Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) In so doing, a
reviewing court ‘presumes in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ (People v. Kraft (2000) 23 Cal.4th 978,
1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].)” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We review a
claim of insufficient evidence to support a gang allegation finding under the same
standard of review. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
B. Application of Relevant Principles
Both subdivision (b)(1)(B) and subdivision (d) of section 186.22 apply to criminal
offenses “committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.” “‘Expert opinion that particular criminal conduct benefited a
gang’ is not only permissible but can be sufficient to support the Penal Code section
186.22, subdivision (b)(1), gang enhancement. [Citation.]” (People v. Vang (2011) 52
Cal.4th 1038, 1048; People v. Albillar (2010) 51 Cal.4th 47, 63 [“Expert opinion that
particular criminal conduct benefited a gang by enhancing its reputation for viciousness
can be sufficient to raise the inference that the conduct was ‘committed for the benefit of
. . . a[ ] criminal street gang’ within the meaning of section 186.22(b)(1)”].)
Defendant contends insufficient evidence supports the jury’s finding that he
committed the criminal threats and battery for the benefit of, at the direction of, or in
association with the Rockwood gang. The evidence shows defendant, an admitted
member of the Rockwood gang, approached Varela on September 14, 2014, and accused
him of being a “claimer”—i.e., a person falsely claiming to be a member of a gang.
Defendant threatened to stab Varela or have someone else stab him. He further
threatened to have his “homeboys” beat Varela. Defendant announced he was a member
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of the Rockwood gang, stated that the area was his “’hood,” and indicated he did not
want Varela in his “’hood.” Defendant then punched Varela in the face. Hegemier
explained that to increase the chances, the Rockwood gang could commit crimes within
its territory without getting caught, it was important for the gang to instill fear in, and to
intimidate, members of the community by conveying to them that gang members could
hurt them without getting into trouble. According to Hegemier, defendant’s offenses
benefited the Rockwood gang because such crimes instilled fear in and intimidated the
community thus allowing the gang to control its claimed territory and commit crimes.
This evidence is sufficient to support the jury’s finding defendant committed the offenses
for the benefit of the Rockwood gang. (People v. Vang, supra, 52 Cal.4th at p. 1048;
People v. Albillar, supra, 51 Cal.4th at p. 63; People v. Mendez (2010) 188 Cal.App.4th
47, 56-57 [evidence a defendant announced his gang’s name during the commission of a
crime supports a determination there is sufficient evidence to support a finding the crime
was committed to benefit a gang].)
Defendant argues the events of September 14, 2014, reasonably can be seen as
him chasing a suspected gang member out of his neighborhood and, thus, he committed
the offenses for personal reasons and not to benefit the Rockwood gang. We review the
evidence in the light most favorable to the jury’s gang allegation findings to determine
whether a reasonable juror could have found the gang allegations true, and not to
determine whether a reasonable juror could have found the gang allegations not true.
(See People v. Edwards, supra, 57 Cal.4th at p. 715.) Moreover, if defendant’s motive in
committing the crimes against Varela was for a purely personal reason—i.e., to rid his
neighborhood of a suspected gang member—there would have been no reason to
announce his gang’s name. By announcing he was from the Rockwood gang, defendant
demonstrated he committed the offenses to benefit his gang.3
3 Defendant attempts to minimize the importance of Varela’s testimony that
defendant announced his gang membership during the commission of the offenses. He
suggests the evidence should be disregarded, claiming the “prosecutor led Varela
along . . . ” to give the challenged testimony and inferring Varela learned of defendant’s
7
Defendant contends insufficient evidence supports the jury’s finding he committed
the offenses with the specific intent to promote, further, or assist in criminal conduct by
the Rockwood gang because Hegemier did not offer an opinion on defendant’s intent and
the prosecution’s case was based solely on the fact that defendant previously admitted he
was a Rockwood gang member. But, a gang expert is not permitted to testify that a
specific individual had a specific intent. (People v. Killebrew (2002) 103 Cal.App.4th
644, 657, disapproved on another ground in People v. Vang, supra, 52 Cal.4th at pp.
1047-1049.)
We recognize there was no evidence defendant was acting with another proven
gang member. But, such evidence is not a prerequisite to a legitimate finding that
defendant had the specific intent to promote, further, or assist in criminal conduct by
gang members. (See People v. Rios (2013) 222 Cal.App.4th 542, 572 [a lone actor may
be subject to the gang enhancement].) The particulars of defendant’s actions, especially
in light of the evidence explaining the definition of a “claimer,” were indicative of
defendant’s specific intent to facilitate criminal conduct committed by his gang.
By calling Varela a “claimer,” defendant went so far as to use gang vernacular to
explain to Varela that he was angry with Varela for being present in an area controlled by
defendant’s gang4 and falsely professing to be a Rockwood member. Based on this
evidence, a rational jury could conclude defendant, as a representative of the Rockwood
gang, had the specific intent to assist or promote Rockwood’s criminal conduct by
gang membership not from defendant but from the police or the prosecution. Because
defendant did not object to Varela’s testimony concerning defendant’s claimed gang
membership and does not now argue it was inadmissible, he has forfeited his argument
that the evidence should not be considered. (Evid. Code, § 353.)
Defendant also contends Hegemier’s expert opinion lacked foundation. He made
no such objection in the trial court and thus has forfeited his claim on appeal. (Evid.
Code, § 353; People v. Hinton (2006) 37 Cal.4th 839, 896-897.) Moreover, as set forth
above, Hegemier’s testimony was rooted in the facts of the September 14, 2014, incident.
4 The crimes were committed in the “territory” claimed by the Rockwood gang.
Defendant was a 23-year veteran of the gang.
8
attempting to purge the gang’s territory of a claimer, i.e., a phony Rockwood gang
member who could interfere with the gang’s criminal operation.5
There is yet another basis to conclude defendant acted with the specific intent to
promote or assist Rockwood’s criminal conduct. Much of the same evidence
demonstrating the crimes were committed for the benefit of the Rockwood is, under these
circumstances, indicative of defendant’s intent. As stated, in order for the gang to
commit crimes without detection it is important that the community refrain from
reporting criminal activity. In other words, detection of Rockwood crimes leads to
prosecution which, in turn, blunts Rockwood’s criminal conduct.
In this respect, the threats made against Varela and the battery he suffered sent
precisely the message necessary to assist Rockwood in committing criminal conduct.
Varela was a pedestrian in Rockwood gang territory. Defendant (a veteran member of
the gang) announced his membership in Rockwood, indicated Varela was in his
neighborhood, and threatened/struck Varela. Defendant emphasized he planned to have
Varela stabbed and that he would gather his “homeboys” to seriously harm Varela. Such
conduct is consistent with an intent to facilitate the ability of Rockwood gang members to
commit crimes within the Rockwood territory by instilling fear in the Rockwood
community such that community members like Varela are reluctant to report criminal
activity.
Reversal based on insufficiency of the evidence “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Such a situation
is not present in this case.
5 There is no dispute Rockwood qualified as a criminal street gang. Its vast criminal
operation included the commission of crimes such as murder, battery, assault, robbery,
and extortion.
9
II. The Trial Court’s Prior Strike Conviction Finding
Defendant argues the prosecution did not plead he had a prior strike conviction
under the Three Strikes law, but, if it did, it failed to present sufficient evidence to
support the strike allegation. The prosecution alleged defendant had a prior conviction
for violating section 245, subdivision (a)(1) (section 245(a)(1))6 that qualified as a prior
strike conviction under the “Three Strikes” law. Sufficient evidence supports the trial
court’s finding that the allegation was true.
A. Pleading
In his opening brief, defendant notes the information does not allege a prior strike
conviction and, although the record indicates the prosecution filed an amended
information, the record on appeal does not contain an amended information. We granted
the Attorney General’s request to augment the record to include a copy of the amended
information which includes a prior strike conviction allegation. Accordingly, the
prosecution alleged the prior strike conviction.
B. Proof
“The People must prove each element of an alleged sentence enhancement beyond
reasonable doubt. [Citation.]” (People v. Delgado (2008) 43 Cal.4th 1059, 1065
(Delgado).) “‘[O]fficial government records clearly describing a prior conviction
presumptively establish that the conviction in fact occurred, assuming those records meet
the threshold requirements of admissibility. (See Evid. Code, § 664 [“It is presumed that
official duty has been regularly performed”].) Some evidence must rebut this
presumption before the authenticity, accuracy, or sufficiency of the prior conviction
records can be called into question.’ [Citation.] [¶] Thus, if the prosecutor presents, by
6 Section 245(a)(1) provides: “Any person who commits an assault upon the person
of another with a deadly weapon or instrument other than a firearm shall be punished by
imprisonment in the state prison for two, three, or four years, or in a county jail for not
exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both
the fine and imprisonment.”
10
such records, prima facie evidence of a prior conviction that satisfies the elements of the
recidivist enhancement at issue, and if there is no contrary evidence, the fact finder,
utilizing the official duty presumption, may determine that a qualifying conviction
occurred. [Citations.]” (Id. at p. 1066.)
Defendant argues the assault offense under section 245(a)(1) is not automatically a
serious or violent felony under section 667, subdivision (c) or a serious offense under
section 1192.7, subdivision (c). He contends, relying on Delgado, supra, 43 Cal.4th at
page 1067, such an assault may constitute a violent or serious offense under those
sections only if the defendant personally used a firearm or a dangerous or deadly weapon,
or personally inflicted great bodily injury. The prosecution failed to prove the prior strike
allegation, he argues, because it did not adduce evidence regarding either of those
qualifiers. Defendant’s reliance on Delgado is misplaced because that case concerned a
version of section 245(a)(1) that was not in effect when defendant committed his prior
assault offense.
In Delgado, supra, 43 Cal.4th 1059, the Supreme Court considered the sufficiency
of the abbreviated notation “‘Asslt w DWpn’” on an abstract of judgment from a prior
conviction to permit the inference that the conviction was for a serious felony. (Id. at p.
1065.) Delgado’s alleged prior conviction was for a violation of section 245(a)(1).
(Delgado, supra, 43 Cal.4th at p. 1065.) The version of section 245(a)(1) in effect when
Delgado violated that statute made it a “felony offense to ‘commit[] an assault upon the
person of another with a deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury.’ [Citation.]” (Delgado, supra, 43
Cal.4th at p. 1065.)
The Supreme Court explained, “‘[A]ssault with a deadly weapon’ is a serious
felony. (§ 1192.7, subd. (c)(31).) On the other hand, while serious felonies include all
those ‘in which the defendant personally inflicts great bodily injury on any person’ (id.,
subd. (c)(8), italics added), assault merely by means likely to produce GBI, without the
additional element of personal infliction, is not included in the list of serious felonies.
Hence, as the parties acknowledge, a conviction under the deadly weapon prong of
11
section 245(a)(1) is a serious felony, but a conviction under the GBI prong is not.”
(Delgado, supra, 43 Cal.4th at p. 1065.)
Thus, the court in Delgado held, “[I]f the prior conviction was for an offense that
can be committed in multiple ways, and the record of the conviction does not disclose
how the offense was committed, a court must presume the conviction was for the least
serious form of the offense. [Citations.] In such a case, if the statute under which the
prior conviction occurred could be violated in a way that does not qualify for the alleged
enhancement, the evidence is thus insufficient, and the People have failed in their burden.
[Citation.]” (Delgado, supra, 43 Cal.4th at p. 1066.)
In this case, in support of defendant’s prior strike conviction allegation, the
prosecution relied on court records, admitted by the trial court, that showed defendant
pleaded nolo contendere to assault in violation of section 245(a)(1) on September 30,
2013, in case number BA411761, for an assault that took place in 2013. In the amended
information, the prosecution alleged defendant was convicted on June 18, 2014, in case
number BA4117617 of violating section 245.
In 2011, section 245(a)(1) provided: “Any person who commits an assault upon
the person of another with a deadly weapon or instrument other than a firearm or by any
means of force likely to produce great bodily injury shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail for not exceeding one
year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.” (Italics added.) That year, the Legislature amended section 245,
removing assaults “by any means of force likely to produce great bodily injury” from
subdivision (a)(1), and placing them in newly added subdivision (a)(4) of section 245.8
7 The amended information appears to identify the wrong conviction date.
8 “According to the Report of the Assembly Committee on Public Safety, the
purpose of this change was to permit a more efficient assessment of a defendant’s prior
criminal history since an assault with a deadly weapon qualifies as a ‘serious felony’ (see
Pen. Code, § 1192.7, subd. (c)(1)), while an assault by force likely to produce great
bodily injury does not. (See Assem. Com. on Public Safety, Analysis of Assem. Bill No.
12
(Stats. 2011, ch. 183, § 1; People v. Brown, supra, 210 Cal.App.4th at p. 5, fn. 1.) Thus,
the version of section 245(a)(1) in effect when defendant committed the offense for
which he pleaded nolo contendere in 2013 (and in effect now), made it a crime to
“‘commit[] an assault upon the person of another with a deadly weapon or instrument
other than a firearm.’” That is, unlike the version of section 245(a)(1) at issue in
Delgado, supra, 43 Cal.4th at page 1065, the version at issue in this case concerns only
assaults with a deadly weapon or instrument other than a firearm, and does not concern
assaults by means of force likely to produce great bodily injury—which assaults are now
addressed in subdivision (a)(4) of section 245.
Assault with a deadly weapon is a serious felony. (§ 1192.7, subd. (c)(31);
Delgado, supra, 43 Cal.4th at p. 1065.) Section 1192.7, subdivision (c)(31) does not
require personal use of the deadly weapon. Defendant pleaded nolo contendere to
“commit[ing] an assault upon the person of another with a deadly weapon or instrument
other than a firearm.” The version of section 245(a)(1) in effect when defendant
committed the assault to which he pleaded nolo contendere in 2013 could not be violated
in a way that did not constitute a serious felony under section 1192.7, subdivision (c)(31).
Accordingly, sufficient evidence supports the trial court’s prior strike conviction finding.
III. Defendant Was Entitled to 416 Days of Sentence Credit
The trial court awarded defendant 306 days of sentence credit consisting of 153
days of actual custody and 153 days of conduct credit. Defendant correctly points out he
was entitled to 416 days of sentence credit consisting of 208 days of actual custody and
208 days of conduct credit.
A defendant is entitled to credit against a state prison term for all days actually
spent in custody prior to sentencing. (§ 2900.5, subd. (a).) In addition, a defendant may
be entitled to conduct credit pursuant to section 4019. Under section 4019, a defendant
earns two days of conduct credit for every two days of actual presentence custody. (§
1026 (2011-2012 Reg. Sess.) as introduced Feb. 18, 2011.)” (People v. Brown (2012)
210 Cal.App.4th 1, 5, fn. 1.)
13
4019, subds. (b), (c), & (f)). In calculating actual days in custody, a defendant is entitled
to credit for the day of arrest (People v. Taylor (2004) 119 Cal.App.4th 628, 645), partial
days, and the day of sentencing (People v. Browning (1991) 233 Cal.App.3d 1410, 1412;
People v. Fugate (1990) 219 Cal.App.3d 1408, 1414).
Defendant contends the record reflects he was arrested on September 14, 2014,
and remained in custody until he was sentenced on April 9, 2015, a period of 208 days.
We agree. A competency evaluation report in the record refers to a September 14, 2014,
Los Angeles Police Department arrest report. Defendant’s September 14, 2014, arrest is
confirmed by his rap sheet which the prosecution introduced at defendant’s trial on the
prior conviction allegations. In addition, defendant was in custody for his September 30,
2014, preliminary hearing. A review of the minute orders for the period between from
September 30, 2014, to April 9, 2015, shows defendant was continuously in custody. No
minute order shows defendant was released from custody.
The number of days from and including September 14, 2014, to and including
April 9, 2015, was 208. Accordingly, defendant was entitled to 416 days of sentence
credit. (§ 2900.5, subd. (a); § 4019, subds. (b), (c), & (f); People v. Taylor, supra, 119
Cal.App.4th at p. 645; People v. Browning, supra, 233 Cal.App.3d at p. 1412; People v.
Fugate, supra, 219 Cal.App.3d at p. 1414.) We order the minute order for defendant’s
sentencing hearing and the abstract of judgment modified to reflect 416 days of sentence
credit consisting of 208 days of actual custody credit and 208 days of conduct credit.
14
DISPOSITION
The minute order for defendant’s sentencing hearing and the abstract of judgment
are ordered modified to reflect 416 days of sentence credit consisting of 208 days of
actual custody credit and 208 days of conduct credit. The trial court is to forward a
corrected abstract of judgment to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
KUMAR, J.
We concur:
KRIEGLER, Acting P. J.
BAKER, J.
 Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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