People v. Lopez CA3 ( 2023 )

Filed 5/3/23 P. v. Lopez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C096152
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20200011521)
v.
JOSUE VERDUGO LOPEZ,
Defendant and Appellant.
Defendant Josue Verdugo Lopez stabbed his neighbor to death in the victim’s
apartment. Found guilty of first degree murder with a knife and burglary, defendant
received 25 years to life in state prison for the murder, plus one year for a weapon
enhancement, and a stayed upper term sentence for the burglary.
On appeal, defendant contends the prosecutor engaged in prejudicial misconduct
during closing argument by asserting that there was no evidence defendant had used
drugs the day of the homicide and that the jury could not consider testimony regarding
defendant’s drug usage to infer he had been using drugs when he killed the victim, which
he asserts misstated the evidence and the law regarding circumstantial evidence. To the
extent he forfeited his prosecutorial misconduct claims by not objecting and asking for an
1
admonition below, defendant argues his counsel was ineffective. He also seeks credit for
one additional day of presentence custody.
We agree defendant is entitled to an additional day of credit, but otherwise reject
his claims. By not objecting, defendant forfeited his prosecutorial misconduct challenge,
and he has not shown counsel was ineffective or that he was prejudiced by any alleged
error. We therefore modify the judgment to award defendant one additional day of
custody credit and affirm.
I. BACKGROUND
On the evening of October 20, 2020, D.B. walked outside his garage in his
apartment complex and waved to his neighbor, Dennis Ferguson. Sometime later,
someone told D.B. that Ferguson was arguing with another neighbor. D.B. walked to
Ferguson’s apartment and looked through his window. D.B. saw Ferguson lying on the
ground bleeding; Ferguson’s apartment door was open. D.B. called 911 and started CPR.
Shortly before police responded to the scene, another neighbor, N.C., saw
defendant walking shirtless through the apartment complex while putting on a pair of
pants. N.C. stepped inside her garage where her husband was working, and she shut and
locked the door because she was scared. Defendant stopped at the door and asked for
help, but they did not respond.1 Her husband believed that defendant appeared nervous;
he was shirtless and glanced side to side like he was trying to hide from someone. After
they heard sirens, they saw defendant leave and run across the street. Clothing and
personal items belonging to defendant or his family were found discarded near the
couple’s apartment.
Stockton police officers responded to a reported stabbing at the apartment
complex around 7:00 p.m. They found Ferguson lying unconscious on his apartment
1 N.C.’s husband did not recall telling officers that defendant had asked for help.
2
floor with multiple stab wounds as D.B. performed CPR. Ferguson was transported to a
hospital where he died from his injuries.
Later that night, officers searched a neighboring apartment where defendant and
his partner, Y.C., lived with their children. Inside, officers located a backpack belonging
to defendant’s minor daughter with some of defendant’s clothing in it, including
defendant’s shoes and black sweatpants with red stains on them that appeared to be
blood. The backpack also contained a white shirt and a large kitchen knife, which both
had red substances on them that appeared to be blood. Police found a pair of jeans with a
wet spot and discoloration in the bathroom trash can. An electric blow dryer was on in
the bathroom sink.
On the day Ferguson was killed, Y.C. saw defendant at their apartment before she
left for her 3:00 p.m. shift at a restaurant located a short distance away. Defendant was
wearing a short-sleeved white shirt and black pants, which did not have any red marks or
stains on them when Y.C. left.
Towards the end of Y.C.’s shift that day, Y.C. saw a man attempting to open her
car door outside the restaurant. She could not tell whether it was defendant. The man
was unable to open the car door and ran off towards the street. Y.C. left the restaurant
when her shift ended around 10:00 or 10:30 p.m.
As Y.C. drove home,2 she thought she saw defendant running shirtless across the
street. He appeared to be carrying one of their kitchen knives in his hand.
Y.C. stopped the car to confirm it was defendant, but she was scared because she
thought defendant might be under the influence of drugs. Over the previous month, Y.C.
had often seen defendant when he had used drugs; he would become angry and accuse
her of being unfaithful. Fearful, Y.C. drove off as defendant approached her car.
2 Y.C. had taken two of her children to work with her that day, and they were also in the
car.
3
When she arrived at the apartment complex a short time later, Y.C. found police
investigating the murder scene; her apartment was blocked off. She informed officers
that she had just seen defendant nearby with their kitchen knife.
Around 10:50 p.m., officers located defendant walking towards a nearby business
wearing black pants but no shirt; he was carrying a pair of pliers. Defendant was arrested
after following commands given to him in Spanish.
At the police station, a detective observed defendant rolling around on the ground
in the interview room, moving his body in various directions. During the lengthy police
interview, defendant was sometimes highly active or sleeping on the floor. The detective
could not say, based on his training and experience, whether defendant seemed like he
was high on drugs at the time; his behavior sometimes appeared normal throughout the
long interview process.
Subsequent DNA analysis revealed that the red stains on the shoes, knife, and
white shirt found in defendant’s daughter’s backpack was human blood. Further analysis
indicated that Ferguson was a likely contributor to the blood found on the heel of
defendant’s right shoe, the bloodstain on the side of the knife and the knife handle, and
the bloodstain on the white shirt. There was also a strong likelihood that defendant
contributed to the bloodstain on the knife handle and to the bloodstain on the white shirt.
A jury found defendant guilty of willful, deliberate, premeditated murder (Pen.
Code, §§ 187, subd. (a), 189—count 1)3 while using a knife (§ 12022, subd. (b)(1)), and
first degree burglary (§ 459—count 2). In April 2022, the trial court sentenced defendant
to an indeterminate term of 25 years to life for the murder, plus a consecutive one year
for the weapon enhancement. The court imposed the upper term of six years for the
burglary offense, which it stayed under section 654. In imposing the upper term, the
3 Further undesignated statutory references are to the Penal Code.
4
court cited several factors in aggravation, including that Ferguson was vulnerable in his
home with some health issues when he was killed, that defendant engaged in violent
behavior, that defendant suffered a prior felony sex offense conviction, and that
defendant had expressed no remorse or regret for the crimes. The court awarded
defendant 552 days of presentence custody credits. Defendant timely appealed.
II. DISCUSSION
A. Prosecutorial Misconduct
Defendant contends the prosecutor’s closing argument misrepresented the
evidence concerning the primary defense of intoxication and misstated the law regarding
circumstantial evidence. These alleged prosecutorial errors, he contends, mandate
reversal for a new trial. We disagree.
1. Closing Arguments
Before closing arguments commenced, the trial court cautioned the jury that if
either side objected that the other’s argument somehow misstated the evidence, jurors
could request a readback from the court reporter during deliberation to confirm the
evidence for themselves. The court noted that the attorneys were merely advocates and
reminded the jurors that different people could see or hear things differently.
At the outset of her closing argument, the prosecutor stated that it was the
attorneys’ opportunity to argue to the jury what they believed the evidence showed, and
that it would “never be [her] intent to try to confuse [them] or to mislead [them].” To
that end, the prosecutor encouraged the jurors to consult “the actual evidence” if they
believed that the evidence showed something different than what she argued in closing,
because “[a]t the end of the day, it doesn’t matter what the attorneys say because as you
will read in CALCRIM 200, attorneys are not evidence—what they say is not evidence.”4
4 CALCRIM No. 200 provides in pertinent part: “You must decide what the facts are. It
is up to all of you, and you alone, to decide what happened, based only on the evidence
5
She further noted that the jury instruction packet would be the law that guided the jury,
and she encouraged jurors to look to the law if they had any questions during
deliberations.
The prosecutor acknowledged that this case was a “circumstantial evidence case”
where the jury would use inferences to prove a fact since there was no eyewitness to the
crime, and she referred jurors to the jury instructions concerning circumstantial evidence.
The prosecutor subsequently summarized Y.C.’s testimony as follows:
“[A]lthough she never personally observed [defendant] using drugs, she believed that he
would use drugs at times.” The prosecutor continued, “[Y.C.] also described that she had
found pipes within the house. We know nothing more. And you don’t get to fill it in.
All we know is that her further information was that when he would be coming from a
different point during the course of using drugs, he would become angry, and he would
be accusing her of engaging in infidelity. That’s the evidence you have. You don’t get to
attach something any more than that because there’s absolutely no evidence in this case
that he was using drugs that day; how much drugs he was using that day; if he was, what
that drug [] may have been; how he was affected by it, absolutely nothing. You have to
stay within the confines of what you know. You don’t get to fill it in. [¶] You don’t get
to make an excuse. You don’t get to excuse someone because it’s very convenient to just
adopt something that would help you feel better about why he did this, but that’s not what
you’re here for. So you’re here to evaluate the facts. And at the end of the day what is
reasonable in light of all of the evidence.” Defense counsel did not object to this portion
of the prosecutor’s argument.
Next, the prosecutor noted the jury would have to decide whether the voluntary
intoxication instruction applied based on the evidence presented. While she
that has been presented to you in this trial. [¶] . . . [¶] You must follow the law as I
explain it to you, even if you disagree with it. If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my instructions.”
6
acknowledged that voluntary intoxication could negate the specific intent required for
each count, she argued the jury would have to find that defendant was “under the
influence of some narcotic of some sort to the extent that he could not have decided
before he killed [Ferguson] that that’s what he was going to do.”
In arguing against finding voluntary intoxication, the prosecutor characterized
defendant’s actions before and after the murder as calculated, including using the knife
from his own apartment to kill the victim in the victim’s apartment and then returning to
his own apartment to try to change, wash some of the blood off his clothes, and hide the
bloody knife and bloody shoes in his child’s backpack. The prosecutor argued that
“[p]eople that do not understand the wrongfulness of what they just did, do not need to
hide evidence, and they do not need to go and hide. That’s how you know that he was
not intoxicated to any extent that he did not understand what he was doing.”
In her closing argument, defense counsel emphasized both the circumstantial
evidence instruction and the voluntary intoxication instruction for the jury. She
highlighted evidence showing defendant’s prior drug use and his erratic behavior after
Ferguson was murdered to circumstantially show he was voluntarily intoxicated the night
of the murder thereby negating the required specific intent for the murder and burglary
charges. Defense counsel also argued: “Now, the district attorney told you, well, that
doesn’t mean anything. Well, isn’t that circumstantial evidence that he uses meth, just
the same as she wants you to use circumstantial evidence to convict him of murder?”
In rebuttal, the prosecutor pointed out that there was no evidence that officers had
found drug pipes in defendant’s apartment, which would have seemed likely had
defendant been a significant drug user as defense counsel argued. While she posited that
maybe defendant used drugs, in her view, the relevant question before the jury was
whether there was any evidence to support that defendant used drugs before he
committed the murder and that, as a result, he lacked the capacity to understand that he
was picking up the knife from his own apartment and taking it to Ferguson’s apartment to
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kill him. She further argued that “when you look at all the actions that he took, hiding
evidence, cleaning up evidence, changing his clothes, leaving, finding his way out to
West Lane where [Y.C.] was located, knowing that’s where she would be, if he was so
zonked out of his mind on dope after he did this crime, what would you expect to see,
him just standing there with a knife in his hand? He would still be on scene. He would
not formulate all of this stuff.” In sum, the prosecutor asserted that “the mere fact that
somebody says at some point . . . she doesn’t see he uses drugs and then he acts out is not
sufficient to prove that in this case he used it and he was high to an extent that he did not
know what he was doing.”
2. Analysis
The standards for evaluating prosecutorial misconduct are well-established.
(People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) “A prosecutor’s conduct violates the
Fourteenth Amendment to the federal Constitution when it infects the trial with such
unfairness as to make the conviction a denial of due process. Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25
Cal.4th 34, 44 (Morales).)
Generally, “ ‘a defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion—and on the same ground—the defendant [requested] an
assignment of misconduct and [also] requested that the jury be admonished to disregard
the impropriety.’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) A defendant will be
excused from making a timely objection or requesting an admonishment, however, if
either would be futile. (Hill, supra, 17 Cal.4th at p. 820.)
When a misconduct claim focuses on a prosecutor’s remarks before the jury, “the
defendant must show that, ‘[i]n the context of the whole argument and the instructions’
[citation], there was ‘a reasonable likelihood the jury understood or applied the
8
complained-of comments in an improper or erroneous manner.’ ” (People v. Centeno
(2014) 60 Cal.4th 659, 667 (Centeno); see Morales, supra, 25 Cal.4th at p. 44.) In
reviewing the prosecutor’s remarks, an appellate court does not lightly infer the jury drew
the most damaging rather than the least damaging meaning from them. (Centeno, supra,
at p. 667.)
Prosecutors, moreover, are “ ‘ “given wide latitude” ’ ” during closing arguments
(Hill, supra, 17 Cal.4th at p. 819), and they are entitled to discuss the evidence and to
comment on reasonable inferences that may be drawn therefrom. (Morales, supra,25 Cal.4th at p. 44.) Summations may be vigorous; a prosecutor is “ ‘ “ ‘ “not limited to
‘Chesterfieldian politeness.’ ” ’ ” ’ ” (Hill, supra, at p. 819.) Nevertheless, while a
prosecutor has broad discretion in discussing the legal and factual merits of a case, “ ‘ “it
is improper to misstate the law.” ’ ” (People v. Katzenberger (2009) 178 Cal.App.4th
1260, 1266.)
Defendant concedes he failed to object to any of the prosecutor’s closing
statements he now alleges are improper. The alleged misconduct, we conclude, was not
so egregious that a curative admonition would not have been effective. As the People
note, even if the prosecutor’s comments amounted to error, any prejudicial effect could
have been cured by an instruction from the trial court clarifying how the jury was to
apply the instructions concerning circumstantial evidence and voluntary intoxication.
Accordingly, defendant has not preserved his misconduct claims for review.
Defendant argues that to the extent his counsel failed to object below and preserve
the points for appeal, his counsel provided ineffective assistance. To establish a claim for
ineffective assistance of counsel, defendant must show his counsel’s performance was
deficient and that he suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th
181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate
prejudice, defendant must show a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. (Mickel, supra,
9
at p. 198.) We presume that “counsel’s actions fall within the broad range of
reasonableness, and [we] afford ‘great deference to counsel’s tactical decisions.’ ” (Ibid.)
As our Supreme Court has observed, “certain practical constraints make it more
difficult to address ineffective assistance claims on direct appeal rather than in the
context of a habeas corpus proceeding.” (People v. Mickel, supra, 2 Cal.5th at p. 198.)
This is because “[t]he record on appeal may not explain why counsel chose to act as he or
she did. Under those circumstances, a reviewing court has no basis on which to
determine whether counsel had a legitimate reason for making a particular decision, or
whether counsel’s actions or failure to take certain actions were objectively
unreasonable.” (Ibid.) We will reverse only if there is affirmative evidence that counsel
had no rational tactical purpose for an act or omission. (Ibid.; People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266 [if “ ‘ “the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation,” the claim on appeal must be rejected’ ”].) A defendant thus bears a
difficult burden when asserting an ineffective assistance claim on direct appeal. (Mickel,
supra, at p. 198.)
The record here is silent as to counsel’s reasons, if any, for failing to object to the
prosecutor’s closing remarks defendant now challenges on appeal. Defendant claims
there was no reasonable tactical basis for trial counsel’s failure to object to the alleged
misrepresentations of the testimony concerning defendant’s potential intoxication defense
and the misstatement of the law regarding circumstantial evidence since the intoxication
defense was the most viable defense available at trial. We disagree. Defendant has
shown neither deficient performance nor prejudice.
It is well-settled that “ ‘a mere failure to object to evidence or argument seldom
establishes counsel’s incompetence’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567), as
“ ‘[d]eciding whether to object is inherently tactical.’ ” (People v. Salcido (2008)
10
44 Cal.4th 93, 172; see ibid. [“ ‘the failure to object will rarely establish ineffective
assistance’ ”].) Here, the record establishes that valid tactical reasons existed for not
objecting to, and not asking the trial court to tell the jury to disregard, the prosecutor’s
arguments.
A prosecutor may comment on the state of the evidence (Morales, supra, 25
Cal.4th at p. 44), and may properly urge the jury to discount an accused’s mitigating or
defense evidence. (See e.g., People v. Lucero (2000) 23 Cal.4th 692, 735 [prosecutor’s
argument during penalty phase that the defendant’s difficult childhood or military service
did not give him a blank check to commit murder was proper; prosecutor did no more
than urge the jury to discount the defendant’s mitigating evidence].) “It is permissible to
argue that the jury may reject impossible or unreasonable interpretations of the evidence
and to so characterize a defense theory.” (Centeno, supra, 60 Cal.4th at p. 672.)
In this case, defense counsel reasonably could have determined that the
prosecutor’s initial comments regarding defendant’s alleged drug use based on Y.C.’s
testimony did not misstate the law or the evidence concerning circumstantial evidence,
but merely constituted a comment on the state of the evidence, or lack of evidence,
regarding defendant’s drug use the day of the killing and how that might have impacted
his ability to form the specific intent necessary to support the charges. This is especially
so since the complained-of comment came almost directly after the prosecutor
acknowledged the case was a circumstantial one and referred the jury to the court’s
instructions on the issue. Counsel does not render ineffective assistance by failing to
make objections that counsel reasonably determined are unmeritorious or futile. (People
v. Price (1991) 1 Cal.4th 324, 387.) To the extent defendant faults the prosecutor for not
characterizing evidence that defendant left tools or clothes outside his neighbor’s
apartment when he asked for help or that he left a hair dryer running in his apartment as
circumstantial evidence of defendant’s drug use the day he killed Ferguson, nothing
required the prosecutor to adopt defense counsel’s preferred interpretation of the
11
evidence. (Centeno, supra, 60 Cal.4th at p. 672.) Indeed, as defendant himself concedes,
his intent in leaving items outside another apartment is unclear, and the prosecutor was
free to argue a contrary interpretation to the jury.
Defense counsel also could have determined that tactically it was better to
confront the argument head on during her closing, rather than simply object, which
defendant concedes defense counsel did. As defendant notes, his trial counsel argued in
response: “[T]he district attorney told you, well, that doesn’t mean anything. Well, isn’t
that circumstantial evidence that he uses meth, just the same as she wants you to use
circumstantial evidence to convict him of murder?” Counsel thus alerted the jury to the
fact that circumstantial evidence of defendant’s drug use was important to focus on in
deciding the case. Because “ ‘[t]he decision facing counsel in the midst of trial over
whether to object to comments made by the prosecutor in closing argument is a highly
tactical one[,]’ ” and rarely establishes ineffective assistance, we cannot say defense
counsel’s tactical choice to confront the argument rather than object was unreasonable
under the circumstances. (Centeno, supra, 60 Cal.4th at p. 675; see People v. Wharton,
supra, 53 Cal.3d at p. 567 [failure to object rarely establishes ineffective assistance of
counsel because decision to object is inherently tactical].)
Furthermore, considered in the context of the prosecutor’s entire closing argument,
we do not believe the prosecutor’s challenged remarks that the jury did not get to “fill-in”
missing evidence misstated the law regarding circumstantial evidence or misrepresented
the evidence of defendant’s drug use. Instead, the prosecutor’s remarks are better
understood as emphasizing the court’s instruction that the jury had to decide what the
facts were based only on the evidence presented in the courtroom, which consisted of the
sworn testimony of witnesses, admitted exhibits, and anything else the judge told them to
consider as evidence. “A [criminal] jury may only decide the issue of guilt based on the
evidence presented at trial, with the presumption of innocence as its starting point.”
(Centeno, supra, 60 Cal.4th at p. 669.) While jurors may rely on common knowledge
12
and experience when considering the evidence, “they may not go beyond the record to
supply facts that have not been proved.” (Id. at pp. 669-670.)
The prosecutor’s fleeting comment in an otherwise lengthy closing argument,
moreover, did not, as defendant contends, tell the jury that it could not rely on
circumstantial evidence. Again, the prosecutor expressly acknowledged the
circumstantial nature of the case and directly engaged with the circumstantial evidence of
defendant’s drug use, arguing that the evidence presented was simply insufficient to show
he lacked the requisite specific intent the day of the murder to support a voluntary
intoxication defense, because the totality of his actions showed a degree of cognizance
after the killing that was inconsistent with the level of voluntary intoxication necessary to
negate the required specific intent. (Cf. People v. Peoples (2016) 62 Cal.4th 718, 798
[prosecutor directly addressed the defense expert’s testimony by arguing that defendant’s
alteration of the gun between shootings revealed the defendant’s clarity of thought and
that defense experts did not present more comprehensive testing because it would reveal
that there was nothing wrong with defendant].)
But even if the jury could have misconstrued the prosecutor’s remarks, any
potential error was harmless. The trial court instructed the jury that the attorneys’ closing
statements were not evidence and that if anything the attorney said conflicted with the
court’s instructions, the jury must follow the instructions.
Regarding circumstantial evidence, the court instructed the jury that “[f]acts may
be proved by direct or circumstantial evidence or by a combination of both,” and that
both direct and circumstantial evidence were “acceptable types of evidence to prove or
disprove the elements of a charge, including intent and mental state and acts necessary to
a conviction, and neither is necessarily more reliable than the other.” The court further
instructed that circumstantial evidence, or indirect evidence, does not directly prove a fact
to be decided but is evidence of another fact or group of facts from which the jury could
13
logically and reasonably conclude the truth of the fact in question, including a
defendant’s mental state.
Regarding voluntary intoxication, the court instructed the jury that it could
consider evidence of voluntary intoxication when determining whether defendant acted
with the specific intent to kill and with premeditation and deliberation. For purposes of
an intoxication defense, the jury was instructed that “[a] person is voluntarily intoxicated
if he becomes intoxicated by willingly using any intoxicating drug, drink or other
substance, knowing that it could produce an intoxicating effect, or willingly assuming the
risk of that effect.”
We presume the jurors followed these instructions (People v. Smith (2007)
40 Cal.4th 483, 517), and no evidence suggests otherwise. (People v. Stitely (2005)
35 Cal.4th 514, 559 [reviewing court “assume[d] the jury abided by the court’s
admonitions and instructions, and thereby avoided any prejudice”].) “When argument
runs counter to instructions given a jury, we will ordinarily conclude that the jury
followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the
court’s instructions as a statement of law by a judge, and the prosecutor’s comments as
words spoken by an advocate in an attempt to persuade.’ ” (People v. Osband (1996)
13 Cal.4th 622, 717.) The prosecutor herself encouraged the jury to follow the court’s
instructions during deliberations and expressly noted that nothing she said during closing
was evidence. “Accordingly, it is not ‘reasonably probable that a result more favorable to
[the defendant] would have been reached in the absence of the error.’ ” (People v.
Peoples, supra, 62 Cal.4th at p. 799.) The jury properly considered and rejected
defendant’s voluntary intoxication defense.
B. Custody Credits
The court awarded defendant 552 days of presentence custody credit. The parties
agree, as do we, that defendant is entitled to one additional day of credit for the actual
day of sentencing.
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A defendant convicted of a felony is entitled to credit for all days of presentence
custody up to and including the day of sentencing. (§ 2900.5, subd. (a).) This is because
“[a] defendant who remains in custody between conviction and sentencing will have
spent part of the day of sentencing in custody prior to actual sentencing,” and the
sentencing court is obligated to award presentence credit for this partial day. (People v.
Smith (1989) 211 Cal.App.3d 523, 526.)
In this case, defendant was arrested on October 20, 2020, and was sentenced on
April 25, 2022. Defendant was therefore in actual custody for 553 days, including the
day he was sentenced. Accordingly, we shall modify the judgment to award defendant
553 days of total credit and direct that the abstract of judgment be corrected to reflect that
amount.
III. DISPOSITION
The judgment is modified to award defendant one additional day of custody credit
for a total of 553 days of credit. As so modified, the judgment is affirmed. The clerk of
the trial court is directed to amend the abstract of judgment to reflect 553 days of credit
and to forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MAURO, J.
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