People v. Fadiboard CA2/4

Filed 9/5/14 P. v. Fadiboard CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B252927
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA412041)
v.
MUSLIM FADIBOARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed as modified.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury found defendant Muslim Fadiboard guilty of two counts of first degree
burglary (Pen. Code, § 459; counts 6 & 7),1 three misdemeanor counts of receiving stolen
property (§ 496, subd. (a); counts 2, 3 & 4), and one count of possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 5).2 The trial court
imposed a sentence of four years in state prison, consisting of the low term of two years
for one count of first degree burglary (count 6), a consecutive eight-month term for the
possession charge (count 5), and a consecutive term of one year and four months for the
other burglary charge (count 7). The court also imposed a consecutive term of 180 days
in county jail for one count of receiving stolen property (count 2). The sentences for the
other two counts of receiving stolen property (counts 3 & 4) were stayed pursuant to
section 654.
In this appeal from the judgment, appellant contends that: (1) his multiple
convictions for receiving stolen property should be consolidated into a single conviction,
and (2) although the trial court correctly awarded the total number of presentence custody
credits, it improperly allocated that number between the jail and prison terms. We
disagree with the first contention, agree with the second, and affirm the judgment as
modified.
FACTUAL BACKGROUND
I. 5418 Harold Way: Receiving Stolen Property (Count 2)
Michael Flynn lived in an apartment building located at 5418 Harold Way in
Los Angeles. On June 1, 2013, at around 6:30 a.m., Flynn returned to his apartment after
briefly going out to buy coffee. He closed his front door but did not lock it, and then
1 All further undesignated statutory references are to the Penal Code.
2 Appellant was acquitted of one count of first degree burglary. (§ 459; count 1.)
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went upstairs. About 10 minutes later, he came downstairs and noticed that his laptop
was missing from his kitchen table. He went outside and looked around but did not see
anyone. A few hours later he realized that his wallet, which he had placed near the front
door after returning from buying coffee, also was missing. He immediately called his
credit card companies and canceled the cards. Surveillance video taken at 7:30 a.m. that
day at a Ralphs grocery store near Flynn’s apartment showed appellant making a
purchase at the self check-out register. Flynn’s bank statement confirmed that a
transaction totaling $119.80 was made at that Ralphs using his card.
II. 1730 North Gramercy: Receiving Stolen Property (Count 4) and Residential
Burglary (Count 7)
Giles Spencer, a tenant at an apartment building at 1730 North Gramercy, reported
to the building manager the morning of June 2, 2013, that someone had broken into his
car. The manager, Paul Hughes, viewed surveillance video depicting appellant gaining
access to the building through a staircase window. Appellant proceeded to the mailbox
area and pulled mail from individual boxes. He then walked into the parking garage and
tried to open various car doors. Around 5:46 a.m., he found a Mercedes that was
unlocked and entered it. He stayed in the car, moving around inside with a flashlight,
before finally exiting at 6:03 a.m. Later that morning, the manager discovered some
tenant mail as well as the registration and owner’s manual for the Mercedes discarded
under a stairwell. The Mercedes belonged to Spencer, who later confirmed his wallet, car
manual, and registration were missing from his car. The manager returned the
registration and manual to Spencer. The manager recognized appellant from surveillance
video taken a couple of months earlier, on March 15 and 18, 2013, showing appellant
walking through the garage and trying to open car doors and trunks.
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III. 5555 Harold Way: Receiving Stolen Property (Count 3), Possession of
Methamphetamine (Count 5), and Residential Burglary (Count 6)
Soon after leaving the Gramercy apartment building on June 2, 2013, appellant
gained access to a nearby apartment building at 5555 Harold Way. Surveillance video
taken at 6:21 a.m. showed appellant opening compartments in the bed of a pickup truck
in the parking garage. A few minutes later, a tenant reported to the building manager,
Jose Velasco, that he had seen a suspicious person in the garage. Velasco went to the
garage with his dog. On the subterranean parking level, he saw appellant standing next to
a Mazda Miata convertible, peering into it. Velasco recognized appellant from an
incident two months earlier when Velasco had confronted appellant about his presence in
the apartment building. Velasco had retreated when appellant opened his bag and
revealed a knife. After seeing appellant by the Mazda, Velasco took his dog back to his
apartment and went back to the garage. He watched appellant leave the building, then
followed appellant in his car. Velasco called the police. At about 6:50 a.m., Velasco
flagged down responding officers and directed them to appellant. The police officers
detained appellant. The location where appellant was detained was within a half-square
mile radius of the Gramercy and Harold Way apartment buildings.
When detained, appellant was carrying two bags containing methamphetamine in
a plastic bag, Flynn’s wallet, Spencer’s wallet, and four ibuprofen and prescription
medication bottles. At around 7:00 a.m., Velasco informed the owner of the Mazda,
Peter Cluff, about the suspicious activity he had observed. Officers met with Cluff
shortly thereafter, and Cluff confirmed that a large bag containing ibuprofen and
pharmaceutical bottles was missing from his trunk. The items belonged to Timothy
Carney, who lived with Cluff and also used the car. The prescription bottles recovered
from appellant’s bags had Carney’s name on them. Flynn’s laptop and credit card used
by appellant to make a purchase at Ralphs were not recovered.
Appellant did not present any evidence.
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DISCUSSION
I. Multiple Convictions of Receiving Stolen Property Were Appropriate
Appellant contends that although counts 2, 3, and 4 alleged that he violated section
496 by withholding, concealing, buying, and receiving specific items of stolen property,
the jury did not designate which theory of liability it relied upon in finding him guilty,
and found merely that each count occurred on the same day, as charged in the
information. According to appellant, the jury therefore necessarily found that he
withheld and concealed the property on one occasion, thus constituting a single violation
of section 496. We disagree.
Section 496, subdivision (a) provides in relevant part as follows: “Every person
who buys or receives any property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling, or withholding any
property from the owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment in a county jail.”3
In order to sustain a conviction for receiving stolen property, the prosecution must
prove that (1) the property was stolen; (2) the defendant knew the property was stolen;
and (3) the defendant had possession of the stolen property. (People v. Johnson (1980)
104 Cal. App. 3d 598, 605; People v. Kunkin (1973) 9 Cal. 3d 245, 249; see also People v.
Price (1991) 1 Cal. 4th 324, 464.)
“[T]he theft of several articles at the same time constitutes but one offense
although such articles belong to several different owners.” (People v. Bauer (1969) 1
Cal. 3d 368, 378, citing People v. Smith (1945) 26 Cal. 2d 854, 859.) “‘[I]f the evidence
shows that goods stolen from different sources were received on a single occasion, there
is but one offense of receiving stolen property. However, this rule is inapplicable when
there is evidence from which the jury might infer that the goods were not received at the
3 The jury here was accurately instructed in accordance with section 496,
subdivision (a).
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same time or in the same transaction.’” (People v. Morelos (2008) 168 Cal. App. 4th 758,
763, citing People v. Lyons (1958) 50 Cal. 2d 245, 275.) The Morelos court observed:
“[W]here the receiving counts involve different property stolen from different victims at
different times and where nothing in the record shows [the defendants] received the
property on a single occasion, ‘the record reasonably supports the inference that [the
defendants] received the various stolen goods at different times and in different
transactions.’” (168 Cal.App.4th at p. 763.) The court concluded that nothing in the
record showed that defendants received the various stolen goods on a single occasion.
Thus, the Morelos court found that conviction of and sentencing on all the receiving
counts alleged were proper as to each count. (Ibid.; see also People v. Bullwinkle (1980)
105 Cal. App. 3d 82, 92, disapproved on another ground in People v. Laiwa (1983) 34
Cal. 3d 711, 728.)
Appellant contends that because the various items of stolen property were found
during a single search, he withheld or concealed the items on a single occasion and thus
was guilty of only one count of receiving stolen property. He does not dispute that there
was evidence he received the stolen goods at different times. Instead, he argues that the
prosecution’s theory was that he was guilty of receiving stolen property on counts 2, 3,
and 4 because he was found to have withheld and concealed all of the stolen property on
June 2, 2013, and thus he could only be convicted on one count of withholding and
concealing the various items of property.
In advancing this argument, appellant relies on People v. Mitchell (2008) 164
Cal. App. 4th 442 (Mitchell). He contends that Mitchell is controlling because there, as
here, the theory of liability was unclear, the designated stolen items were discovered in
the defendant’s possession on a single date, and the violations were alleged to have
occurred on that same date. However, Mitchell is distinguishable.
In Mitchell, supra, 164 Cal. App. 4th 442, defendant asserted that three of her four
convictions for receiving stolen property should be reversed because the prosecution
failed to prove the property subject to those counts was received on different occasions.
Defendant was charged with receiving checks belonging to Billy C. on or about
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December 20, 2004, receiving Barbara C.’s Discover credit card on or about the same
date, receiving holiday ornaments belonging to Billy C. between November 28, 2004, and
December 29, 2004, and receiving Barbara C.’s department store credit card on or about
December 9, 2004. (Id. at p. 461.) The People conceded the first two counts were
duplicative because the evidence showed the checks and Discover card were found in
defendant’s car at the same time. There was no evidence in the record as to precisely
when defendant came into possession of any of the stolen property. (Id. at p. 463.)
The date alleged in the first two counts (i.e., the day the property was discovered
by the police) was the day on which defendant withheld or concealed the property from
its owner. As noted by the Mitchell court, the offense of receiving stolen property “may
be committed in a number of ways, to wit, buying, receiving, concealing, selling,
withholding, or aiding in concealing, selling, or withholding stolen property.” (Mitchell,
supra, 164 Cal.App.4th at p. 462.) The count alleging receipt of the department store
credit card alleged the date the card was used by defendant to purchase merchandise. (Id.
at p. 463.) As to the final count alleged, the evidence showed the defendant gave her
sister a key to a storage unit at the end of November 2004 and the holiday ornaments
were found in the unit on December 29, 2004. (Ibid.) Although defendant was charged
in these counts in the alternative with buying, receiving, concealing, selling, withholding,
or aiding in concealing or withholding property, there was no evidence presented as to
defendant’s buying, receiving, or selling any of the property. Defendant’s guilt therefore
turned on when she concealed or withheld the property described in each count. The
prosecutor explained to the jury that “these counts were based on defendant’s possession
of the property, i.e., her concealing or withholding the property, on the indicated days.”
(Ibid.)
Addressing defendant’s challenge to her conviction on three of the four counts of
receiving stolen property, the appellate court held that the People were not required to
prove when defendant received the property, as that was not their theory of liability. The
prosecution merely needed to prove defendant concealed or withheld the property.
Because the evidence showed defendant possessed both the checks and the Discover card
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on the same date, she could not be convicted on both offenses. (Mitchell, supra, 164
Cal.App.4th at p. 463.) The appellate court therefore reversed her conviction on one of
those counts, but left the other three convictions undisturbed, finding the People satisfied
the burden of proving that defendant concealed or withheld the subject property at the
time alleged. (Ibid.)
Here, appellant was charged in counts 2 and 4 with receiving stolen property “[o]n
or about June 2, 2013,” in that he “did unlawfully buy, receive, conceal, sell, withhold,
and aid in concealing, selling, and withholding property, to wit, wallet and contents,”
knowing said property had been stolen and obtained by extortion. (Capitalization
omitted.) In count 3 he was charged with receiving stolen property “[o]n or about June 2,
2013,” in that he “did unlawfully buy, receive, conceal, sell, withhold, and aid in
concealing, selling, and withholding property, to wit, prescription medication,” knowing
said property had been stolen and obtained by extortion. (Capitalization omitted.) Count
2 pertained to Flynn’s wallet; count 3 pertained to the prescription medication from
Cluff’s convertible; and count 4 pertained to Spencer’s wallet.
The ultimate question in our review is whether “‘the record reasonably supports
the inference that appellant[] received the various stolen goods at different times and in
different transactions.’” (Morelos, supra, 168 Cal.App.4th at p. 763, citation omitted.)
The prosecutor argued to the jury that “[t]o find someone guilty of the crime of receiving
stolen property you must find two things beyond a reasonable doubt. First, the defendant
bought, concealed or withheld from its owner or agent . . . property that had been stolen
and when he did so he knew that the property had been stolen.” She explained that
appellant was charged with three counts of receiving stolen property, including items
from Spencer’s car, the medication from the Miata, and Flynn’s wallet. “All of those
items . . . were recovered on the defendant when the police stopped him or recovered in
his bag [sic].” Shortly thereafter, she described the properties involved “in chronological
order.” The prosecutor recalled for the jury Flynn’s going upstairs in his apartment and
returning downstairs 10 minutes later to find his laptop and (later) his wallet missing, and
appellant’s use of Flynn’s credit card about one hour later at a nearby market. The
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prosecutor noted that count 2 for receiving stolen property was “for the wallet and the
wallet’s contents that are found on the defendant the following day. . . . So that’s
June 1st, right?” (Italics added.) She then proceeded to describe the two residential
burglaries on June 2, and the items stolen during each, linking the evidence to two counts
of receiving stolen property, and two counts of residential burglary.
While the prosecutor’s argument as to the elements of receiving stolen property
was not a model of clarity, by describing the events in chronological order and
emphasizing the evidence that appellant received, possessed, and otherwise withheld
Flynn’s property on June 1, it is clear that the prosecution’s theory was not that appellant
withheld and/or concealed all of the stolen property on June 2, when it was recovered
from him. Rather, the prosecutor presented ample evidence that appellant received
property that was stolen or obtained in a manner constituting theft or extortion, knowing
the property to be so stolen or obtained, and concealed and withheld property from the
owners, knowing the property to be stolen. (§ 496.) Indeed, she presented evidence
indicating precisely when, almost to the minute, appellant came into possession of each
item of stolen property.
Appellant contends that the information charged that all three receiving stolen
property counts were alleged to have occurred on June 2, 2013, and by finding him guilty
as charged the jury necessarily found only that he withheld or concealed all of the stolen
property on a single occasion, that is, when it was discovered in his possession. We
disagree. In the first place, the information alleged that counts 2, 3, and 4 occurred “[o]n
or about June 2, 2013.” (Italics added.) That language gave the prosecution the latitude
to rely on the theory that appellant received Flynn’s stolen wallet on June 1, 2013,
received Carney’s prescription medication the following day, and received Spencer’s
wallet at a separate time on June 2, 2013.4
Second, “[t]he precise time at which the offense was committed need not be stated
in the accusatory pleading, but it may be alleged to have been committed at any time
4 The information stated as to count 1, pertaining to the burglary involving Flynn’s
laptop and wallet, that the crime occurred on or about June 1, 2013.
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before the finding or filing thereof, except where the time is a material ingredient in the
offense.” (§ 955.) As such, “‘[t]he burden was on the People to prove that the offenses
occurred within the period of limitation but they [we]re not required to prove the date
with exactness. [Citation.] A variance is immaterial unless time is of the essence of the
offense. [Citation.] “An immaterial variance should be disregarded [citations]. The test
of the materiality of a variance is whether the indictment or information so fully and
correctly informs the defendant of the criminal act with which he is charged that, taking
into consideration the proof which is introduced against him, he is not misled in making
his defense, or placed in danger of being twice put in jeopardy for the same offense.”’”
(People v. Mack (1959) 169 Cal. App. 2d 825, 829, quoting People v. Amy (1950) 100
Cal. App. 2d 126, 127. See also People v. Rice (1887) 73 Cal. 220 [in prosecution for
receiving stolen property, evidence showed offense was committed three months before
the time alleged in the information; court held variance immaterial].)
We conclude that appellant could not have been misled with regard to the criminal
acts with which he was charged, and the jury could not have been misled as to the
prosecution’s theory regarding the receiving stolen property counts. The evidence as
presented, as well as the prosecutor’s manner of arguing that appellant was in receipt of
specific items of stolen property on distinctly separate occasions, support the conclusion
that appellant correctly was convicted of and sentenced on three separate counts of
receiving stolen property.
II. Presentence Custody Credits Were Improperly Allocated
Appellant contends that although the trial court awarded the correct number of
total presentence custody credits (312 days) under section 2900.5, subdivision (a), it
improperly allocated that number between the jail and prison terms. We agree.
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Whether the trial court correctly applied section 2900.5, subdivision (a) to the
undisputed facts of appellant’s presentence custody credits is a question of law that we
review de novo. (People v. Anaya (2007) 158 Cal. App. 4th 608, 611.)5
A. Relevant Factual Background
At sentencing, the trial court calculated that appellant had served 156 days in
actual custody, from his arrest on June 2, 2013, to the day of sentencing on November 5,
2013. As a result, the court awarded appellant 156 days of conduct credits under section
4019, for a total of 312 days of presentence custody credits. The court allocated 180 days
of the credits (90 days of actual custody time plus 90 days of conduct credits) to “offset”
the 180-day consecutive jail term on count 2. The court applied the remaining credits to
the felony counts, which was 66 days of actual custody time plus 66 days of conduct
credits for a total of 132 days of credit.
B. Applicable Law
“A criminal defendant is entitled to accrue both actual presentence custody credits
under section 2900.5 and conduct credits under section 4019 for the period of
incarceration prior to sentencing. Conduct credits may be earned under section 4019 by
performing additional labor (§ 4019, subd. (b)) and by an inmate’s good behavior (id.,
subd. (c)). In both instances, section 4019 credits are collectively referred to as conduct
credits. (People v. Dieck (2009) 46 Cal. 4th 934, 939, fn. 3.) The court is charged with
awarding such credits at sentencing. (§ 2900.5, subd. (a).)” (People v. Ramirez (2014)
224 Cal. App. 4th 1078, 1083 (Ramirez).)
Section 2900.5, subdivision (a) provides in relevant part: “In all felony and
misdemeanor convictions, either by plea or by verdict, when the defendant has been in
5 Defendant was not required to object below to invoke appellate review of an
unauthorized sentence. (People v. Scott (1994) 9 Cal. 4th 331, 354.) “A sentence that
fails to award legally mandated custody credit is unauthorized and may be corrected
whenever discovered.” (People v. Taylor (2004) 119 Cal. App. 4th 628, 647.)
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custody, including . . . any time spent in a jail, . . . all days of custody of the defendant,
including days . . . credited to the period of confinement pursuant to Section 4019 . . . ,
shall be credited upon his or her term of imprisonment, or credited to any fine, including,
but not limited to, base fines, on a proportional basis, that may be imposed, at the rate of
not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing
the sentence. If the total number of days in custody exceeds the number of days of the
term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to
have been served. In any case where the court has imposed both a prison or jail term of
imprisonment and a fine, any days to be credited to the defendant shall first be applied to
the term of imprisonment imposed, and thereafter the remaining days, if any, shall be
applied to the fine, including, but not limited to, base fines, on a proportional basis.”
(Italics added.)
Our role in construing section 2900.5, subdivision (a) “as with any statute, is to
ascertain the Legislature’s intent so as to effectuate the purpose of the law. We
accomplish this task if possible by giving the words of the statute their usual, ordinary
meanings. (People v. Canty (2004) 32 Cal. 4th 1266, 1276.)” (In re Reeves (2005) 35
Cal. 4th 765, 770 (Reeves).) The effort to apply this statute to the case at hand reveals
ambiguities the Legislature apparently did not foresee. (Ibid.)
On its face, section 2900.5, subdivision (a) does not expressly address allocation
of presentence custody credits between consecutive prison and jail terms. It refers
instead to a defendant’s “term of imprisonment” as a whole without defining what a term
of imprisonment entails. The statute does not mention a situation in which a court
imposes both a prison term and a jail term, although in the last sentence it addresses a
situation in which a court has imposed both a term of imprisonment (either in prison or in
jail) and a fine. In doing so, the statute thereby indicates that a single “term of
imprisonment” can encompass both jail and prison terms.
Moreover, in providing that “[i]f the total number of days in custody exceeds the
number of days of the term of imprisonment to be imposed, the entire term of
imprisonment shall be deemed to have been served,” the statute suggests a single award
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of credit is applied against a single term of imprisonment (inclusive of county jail and
prison components), the entirety of which may be deemed to have been served.
(§ 2900.5, subd. (a).) In that context, section 2900.5 would appear to require that the
credit be awarded against that single “term of imprisonment,” meaning a single,
indivisible award of credit.
“When a statute is capable of more than one construction, ‘“[w]e must . . . give the
provision a reasonable and commonsense interpretation consistent with the apparent
purpose and intention of the lawmakers, practical rather than technical in nature, which
upon application will result in wise policy rather than mischief or absurdity.’” (Renee J.
v. Superior Court (2001) 26 Cal. 4th 735, 744, quoting Marshall M. v. Superior Court
(1999) 75 Cal. App. 4th 48, 55.)” (Reeves, supra, 35 Cal.4th at p. 771, fn. 9.) We
therefore must attempt to give the statute a reasonable interpretation. In so doing, we
find instructive case law in analogous situations.
In Reeves, supra, 35 Cal. 4th 765, our Supreme Court was called upon to interpret
section 2933.1, subdivision (a), which limits worktime credit for a person convicted of
violent offenses to no more than 15 percent of the entire term of imprisonment. (Id. at
p. 768.) The Reeves court rejected a defendant’s argument in another case, People v.
Ramos (1996) 50 Cal. App. 4th 810, that he was entitled to different credit rates for his
violent and nonviolent offenses. (Reeves, supra, at p. 775.) In rejecting that argument,
Reeves noted that section 2933.1 did not contain language to support a trial court’s
parsing out “overlapping terms eligible to earn credit at different rates.” (Id. at p. 775.)
After a discussion of the statutory language, Reeves held that section 2933.1, subdivision
(a), limits to 15 percent the worktime credit rate of a prisoner serving time for a violent
offense, “regardless of any other offenses for which such a prisoner is simultaneously
serving a sentence.” (Id. at p. 780.) The Reeves court rejected the notion that
consecutive terms of imprisonment are served one after another in a discernable sequence
such that different percentage rates of prison conduct credit can apply to different spans
of the defendant’s time in prison. “To suggest that a prisoner serving an aggregate term
serves the component terms and enhancements in any particular sequence would be a
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meaningless abstraction.” (Id. at p. 773.) Under Reeves, consecutive terms become one,
single sentence. Similarly, in discussing the calculation of presentence custody credits,
the court stated, “[a] period of presentence confinement is indivisibly attributable to all of
the offenses with which [the defendant] is charged and of which he is eventually
convicted.” (Id. at p. 775.)
In Ramirez, supra, 224 Cal.App.4th at page 1084, defendant appealed from the
trial court’s calculation of his presentence custody credits, arguing that because some of
the offenses to which he pleaded no contest were committed after October 1, 2011, he
was entitled to application of the more generous conduct credits available under the
statute in effect at that time. The Court of Appeal noted that only one rate could be
applied, stating, “as the parties correctly point out, Ramirez’s presentence confinement
cannot be divided among his various offenses, with the court applying one credit rate to
those committed before October 1, 2011, and a different rate to those committed after that
date. His confinement must be ‘indivisibly attributable to all of the offenses with which
[he] is charged and of which he is eventually convicted.’ (In re Reeves[, supra,] 35
Cal. 4th 765, 775.) As a result, Ramirez was either awarded the appropriate number of
conduct credits by the trial court, or he was entitled to an additional 85 days under the
current version of section 4019. There is no middle ground.” (Ramirez, supra, at
p. 1084.)
Respondent argues Ramirez and Reeves are inapplicable to the situation here
because the trial court did not apply different rates of credit for different offenses.
Nonetheless, we conclude that the principles discussed in Reeves and Ramirez provide
important guidance here. The salient point of those decisions is that custody credits
could not be earned at different rates because the confinement period was to be
considered indivisible. Similarly here, we conclude that nothing in section 2900.5
suggests that the trial court has the authority to divide appellant’s single credit award
between the county jail and prison components of the sentence imposed, which joined to
comprise a single term of confinement. We therefore order the abstract of judgment
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modified to reflect that appellant’s 156 actual credits and 156 conduct credits, for a total
of 312 days’ custody credits, apply uniformly to appellant’s entire term of imprisonment.
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect appellant’s
total of 312 days of custody credits apply uniformly to appellant’s entire term of
imprisonment, and the clerk is directed to forward the amended abstract of judgment to
the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, J.*
We concur:
EPSTEIN, P. J.
WILLHITE, J.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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