Filed 7/25/14 P. v. Fox 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NOT TO BE PUBLISHED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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C073649
Plaintiff and Respondent, (Super. Ct. No. 12F07830)
v.
MICHAEL ALLAHRAE FOX,
Defendant and Appellant.
A jury found defendant Michael Allahrae Fox guilty of six offenses committed
against his stepdaughter on a single occasion. (Pen. Code, §§ 243.4, subd. (a)1 [counts 1,
2, & 5, felony sexual battery by restraint], 243.3, subd. (e)(1) [count 3, misdemeanor
sexual battery], 288a, subd. (c)(2)(A) [count 6, felony oral copulation by force or fear],
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1 Undesignated statutory references are to the Penal Code.
1
647.6, subd. (a) [count 4, misdemeanor molestation].) The trial court sentenced him to
14 years in prison, and he timely appealed.
On appeal, defendant contends: (1) the trial court erred in instructing the jury
about a security officer’s presence; (2) the trial court improperly admitted evidence of
uncharged acts; (3) the trial court erred in denying his motion for mistrial after a witness
twice improperly referred to defendant’s prison record; (4) insufficient evidence supports
the oral copulation count; and (5) the trial court miscalculated his custody credits. We
reject these claims, but agree with the People that the sentence must be modified,
including making a conduct credit adjustment adverse to defendant, and imposing and
staying a misdemeanor term on one count. We shall modify the judgment and affirm.
FACTS
The victim’s mother testified she married defendant in 2005, after dating him “off
and on” for a couple of years. She had three children. The victim was her middle child,
having been born in 1996. The mother met defendant while buying marijuana and used
methamphetamine with him. In 2005, the victim was present when her mother and
defendant used drugs. Defendant was sometimes violent with her, and the victim saw
this. The victim saw him threaten her brother with a knife, and he threatened the victim
with a knife twice, once when she was 14 and the once when she was 15. Defendant
threw the victim across the room once, and once tried to hit her in the head with a
baseball bat. When the victim was 14, the mother took the children and hid in the garage
one night because defendant said he was going to kill them all. The victim told her
mother she hated defendant and she could do better, but sometimes seemed to get along
with him. More than once, the mother called the police to have defendant arrested.
At one point in 2010 or 2011, the victim called her mother at work and reported
that defendant had offered to let her home school “if she let him eat her pussy.” The
mother threw defendant out of the house, but eventually let him return when the victim
said it was okay, after seeing her mother was “crying all the time.” After that when the
2
mother argued with the victim, the victim was angry that defendant had been allowed
back into the home. The weekend after Thanksgiving 2012, the victim called her mother
at work, crying, and said defendant had touched her sexually and she was not going back
home. The mother went home, saw defendant acting like nothing had happened, except
he appeared to be high on methamphetamine, and she called the police. About 20
minutes later, she saw the victim, who was very upset. The mother had two felony
convictions for crimes involving moral turpitude, in 1988 and 2005.
The victim testified she was 16 and had known defendant since she was 8. She
had seen him smack her mother in the face many times. Once, before the victim turned
16, defendant pushed her mother, causing her to hit her face and cut her eye. Defendant
would hit the victim in the mouth, and he would hit her with belts, wires, and other
objects if she was being disrespectful or disobedient. He threatened her with a weapon
five or six times, and threatened her brother with a kitchen knife. Twice he threatened
her life, although without a weapon in hand. She had seen him pull knives, a fork, a
screwdriver, and sticks on other people. He was “angry and violent” toward family
members, which was “scary.” Once he told her they could go into the bathroom with
knives and whoever came out alive could have her mother. She often saw him use
methamphetamine, and “his lips get all white and dry and cracked, and he gets all jittery.”
Just before the victim turned 14, defendant came into her room when she was in
her underclothing and asked if she had had sex. When she said she was virgin, defendant
asked if she thought about having sex, and asked if he could put his tongue and mouth on
her vaginal area, and she told him this made her uncomfortable and she wanted to leave.
She told an older friend about this, but was afraid to tell her mother, but after a couple of
weeks did so. Defendant left the house the next day, but this made her mother sad, and
he returned a week later, after the victim told her mother it was okay. A month or two
later, defendant reminded the victim of what he had said and told her “the offer still
stands,” and if she “ever wanted an orgasm, to go to him.” She did not tell her mother,
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because her mother loved defendant. There were other violent instances with defendant
after that, but nothing else sexual until the instant offenses.
On November 24, 2012 defendant referred to her mother’s “jealousy trip,” and
then made reference to the victim’s “skinny jeans” and the sexual comment he had made
to her two years before. He said he had had to leave the house earlier while the victim
was showering because he fantasized about coming into the shower with her, and said
when he was in bed with her mother he sometimes fantasized about the victim, and after
saying how beautiful she was, told the victim, “if it was a life sentence for messing with
me, he would take it.” However, he told her he would only do anything if she allowed it.
He then said “if I caught him looking at my buttocks or my vaginal area, not to think of
him like a pervert.” He said he was not a pedophile, and she was the only girl he felt that
way about, and he had had feelings for her since he met her, which was when she was 8
years old or younger. She planned to tell her mother about what happened but did not
want to tell anybody else because “I felt dirty.”
Later, the victim went home to get a skateboard, after first sending her aunt to get
it, without success. Defendant gave her the skateboard and then put his arms around her,
referred to what they had been discussing and asked her repeatedly if he could touch her
buttocks. His lips were white and cracked and he was jittery, so she thought he was on
methamphetamine. When he is on that drug “[h]e gets more violent and there’s no
stopping him.” Finally she asked him if he would let her leave if she let him touch her,
and “he told me yeah, so I let him” and he began rubbing her buttocks (count 3,
misdemeanor sexual battery). Then he repeatedly said he wanted to touch her breasts.
Again, she asked if he would let her go if she allowed him to touch her, and he said he
would, then he touched one breast, then pulled it out of her bra and mouthed it, then said
he had to do both, so he did the same to her other breast (count 1, felony sexual battery).
She “just wanted to leave. I don’t like violence. I get tired of it.” He then said she had a
“pretty little mouth” and wanted to show her how a grown man kissed, and asked for her
4
tongue so he could show her, then he proceeded to kiss her (count 4, misdemeanor child
molestation).2 He kept asking her if she wanted him as badly as he wanted her, and she
said no, he was a father figure and it “was just gross.” She started to walk to the door,
but he put his arms around her again and said her “pussy” was probably “pretty and little
and fat” and he wanted to touch it, and he reached out and closed the door partly. She did
not scream because “[n]obody was around who was going to hear me.” He then touched
her vagina under her pants (count 5, felony sexual battery), and although the door was
open slightly, she did not call out because she “was stuck, like froze.” He told her she
had to touch him so he would not be the only one getting in trouble. He had pulled his
penis out and she touched it, while he had one arm around her and the other holding his
penis (count 2, felony sexual battery). Then he wanted her to put her mouth on it, and
she said no, but he said “he wanted me to do it” and she did (count 6, oral copulation by
force or fear). Defendant “put . . . my head down there and I just put my mouth on the tip
of it and pulled back.” He held her while he put his penis in his pants and made her
promise not to tell anyone. When her boyfriend called, she was afraid to tell him what
had happened for fear he would attack defendant and be arrested for assault, so she said
she would be over as soon as she could. Defendant then closed the door all the way when
she reached for the doorknob, and “just made me promise that I wouldn’t tell” anybody,
and asked if it bothered her if he went upstairs and “jack[ed] off” thinking about her. He
said he wanted to “spoon” with her the next day her mother was at work.
She left after promising not to tell anybody. She asked a friend if she could stay
with her, but did not tell her boyfriend why, again because she was afraid he would attack
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2 Although the prosecutor initially elected to base count 4 on lewd kissing, later in
argument the prosecutor invited the jury to choose any act motivated by an abnormal
sexual interest in a child, so long as all 12 jurors agreed on a particular act. We discuss
the resulting confusion in Part VI, post.
5
defendant. She called her mother and told her she was sorry because defendant had done
it again. Her boyfriend heard the conversation, and as she had predicted, became angry.
He and some other youths went back and fought with defendant until police arrived.
The victim was five foot two inches tall, and defendant was about six inches taller.
The victim thought he was circumcised, and knew the difference, but “wasn’t paying
much attention to [his penis] but I saw a darker line on the tip of it.”
The defense consisted of two stipulations. First, photographs showed defendant’s
penis. They appear to show he is uncircumcised, but also show a dark circumferential
line, and it does not appear his penis is fully erect. Second, on June 6, 2010, when
officers responded to claims defendant made sexual comments, the victim told them:
“My mom is upstairs with that mother fucker. I hate her, too. There ain’t no way I’m
going back there. [¶] I want him out of here. She kicked him out for like a week and
now he’s back. I hate that mother fucker.”
The People argued the victim was credible, and submitted out of fear based on
defendant’s prior lewd comments and acts of violence. They added her credibility was
enhanced by the fact that she did not make the offenses seem worse, such as by claiming
defendant used a weapon or made an explicit threat, and because of her demeanor
(crying) afterwards. The defense argued the victim hated defendant, and wanted to get
rid of him, and pointed out he was uncircumcised, bolstering the view that she lied.
The jury found defendant guilty as charged.
DISCUSSION
I
Instruction on Custody Status
Defendant contends an instruction to prospective jurors, which referred to his
custody status, undermined the presumption of innocence. We disagree.
The trial court instructed prospective jurors in part as follows:
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“The defendant is in custody in this matter. While court is in session, a
custody officer from the Sacramento Sheriff’s Department will be seated by the
defendant at all times. You must not consider the presence of a custody officer or
the defendant’s custody status for any purpose.”
First, contrary to defendant’s view, the contention of error is forfeited as trial
counsel did not object to the instruction and seek empanelment of new prospective jurors
to cure any possible harm.3 Nor does counsel point to any answers of seated jurors that
indicated they misunderstood this instruction or any indication that the seated jury
misunderstood the post-trial instructions on the People’s high burden of proof and the
presumption that defendant was innocent.
Defendant cites cases involving defendants appearing before a jury in jail clothing
or visibly shackled or gagged. None of those cases are comparable, as here defendant
was not visibly restrained, and the record does not show that he appeared in jail clothing.
Nor is this a case where multiple officers are near or surrounding the defendant,
conveying the impression that the defendant presents a physical danger, nor a case where
an officer stands guard while a defendant testifies. (Cf. People v. Hernandez (2011)
51 Cal.4th 733, 742-744 (Hernandez).) Here, a single officer was seated by defendant,
the trial court explained this was a normal procedure, and trial counsel did not view the
explanation as prejudicial.
Defendant appears to contend it is impermissible for a trial court to adopt a policy
of having a security officer sitting beside a defendant in the courtroom, and must make
special findings justifying such practice in each case. We question this proposition. (See
People v. Stevens (2009) 47 Cal.4th 625, 634 [“we have consistently upheld the
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3 This instruction was not even discussed on the record, much less objected to, and we
do not know whether it was discussed during the unreported discussions to which the trial
court referred. The better practice is for the court to make no reference to a defendant’s
custody status unless defense counsel requests that reference be made, or it is otherwise
necessary. When reference is made by instructing the jury or in any other manner, the
court should place its reasons for doing so on the record.
7
stationing of security or law enforcement officers in the courtroom”]; People v. Duran
(1976) 16 Cal.3d 282, 291, fn. 8 [“Unless they are present in unreasonable numbers, such
presence [of armed guards] need not be justified by the court or the prosecutor”].) But
even if we agreed, it is “well settled . . . ‘that the use of physical restraints in the trial
court cannot be challenged for the first time on appeal.’ ” (People v. Ward (2005)
36 Cal.4th 186, 206.) Had defendant wanted a record of the reasons for the presence of
the security officer, he should have objected, and then those reasons could have been
placed on the record, or a hearing could have been held if defendant contested the reasons
given. Absent a timely objection, we decline to assume the trial court ordered the
officer’s presence arbitrarily, or assume that the officer’s presence caused prejudice,
particularly given the trial court’s clear admonition to the jury to disregard the officer’s
presence.
Further, any error would be harmless, as there is no indication the presence of the
officer affected the jury’s consideration of the evidence and instructions in any way. (See
Hernandez, supra, 51 Cal.4th at pp. 746-748 [requiring that the defendant show actual
prejudice where an officer stood by a testifying defendant, absent a record showing
need].)
II
Admission of Uncharged Evidence
The People moved in limine to admit evidence of the victim’s knowledge of
certain of defendant’s prior arrests and incarcerations for crimes of violence, to bolster
her claim that she was fearful of him. The motion referred in particular to arrests for
battery in 2008 and 2010 and brandishing a weapon in 2012. At the hearing, the
prosecutor clarified that defendant had two battery convictions and one conviction for
brandishing a weapon, not merely arrests. However, she was not sure whether the victim
knew about these convictions. After discussion, the People withdrew the motion until
they had time to interview the victim.
8
After the interview, the People moved to admit evidence of the occasion in 2010
when defendant offered to teach the victim about orgasms, and said he wanted to engage
in cunnilingus with her, and allegedly also said he wanted to have a “threesome” “with
her and one of her cousins.” The People also sought admission of evidence the victim
had witnessed domestic violence, threats, drug use, and property damage by the
defendant. This expanded motion was accompanied by a document listing each specific
incident the People wanted to introduce.
The trial court largely granted the People’s motion, finding some evidence was
relevant to show defendant’s lewd intent toward the victim, and some was relevant to
show the reasonableness of her fear of resisting him, and none of the admitted evidence
was unduly inflammatory under Evidence Code section 352.
The bulk of the mother’s direct testimony pertained to the uncharged acts,
including the drug usage and prior sexual comments defendant does not challenge on
appeal. The uncharged evidence, in all its forms, including the prior sexual comments,
drug use, and use of knives that defendant does not challenge on appeal, occupied about a
third of the victim’s testimony. During trial, the court admonished the jury that evidence
of domestic violence was not to be considered to show defendant’s bad character, but
only to show whether or not the victim may have had a reasonable fear of defendant.
During final instructions, the trial court read to the jury the pattern instruction on
other crimes evidence (CALCRIM No. 375), but enumerated the specific evidence (acts
of violence, use of drugs, and prior sexual comments to the victim), instructed that the
People had to prove these acts by a preponderance of the evidence, and then continued
with the pattern instructional language as follows:
“If you decide that defendant committed the uncharged offenses or acts,
you may, but are not required to, consider that evidence for the limited purpose of
deciding whether or not the victim consented to any sexual touching and/or had a
reasonable fear of the defendant on the day of the alleged offenses charged in
Counts 1 through 6.
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“Do not consider this evidence for any other purpose.
“Do not conclude from this evidence that the defendant has a bad character
or is predisposed to commit crime.
“If you conclude that the defendant committed the uncharged offenses or
acts, that conclusion is only one factor to consider along with all the other
evidence.
“It is not sufficient by itself to prove that the defendant is guilty of the
charged crimes. [The] People must still prove every charge beyond a reasonable
doubt.”
The prosecutor reiterated this point in closing argument.
On appeal, defendant concedes that evidence of prior sexual advances towards the
victim and defendant’s prior drug use was admissible. He also concedes that testimony
by the victim at the preliminary hearing that defendant had pulled knives on her and her
mother before would be admissible at trial. However, he contends evidence of further
violence revealed during the prosecutor’s interview of the victim was “cumulative and
inflammatory.” We do not agree.
We first observe that although defendant argues the more limited testimony at the
preliminary hearing was “ample” to prove the victim’s fear and therefore other evidence
was not necessary, trial counsel did not stipulate the victim’s fear was reasonable, and
defendant’s not guilty plea put all issues in contention. Therefore, the People were free
to seek to admit further evidence at trial. (See People v. Cowan (2010) 50 Cal.4th 401,
476; People v. Steele (2002) 27 Cal.4th 1230, 1243.)
As we have observed before, “[e]vidence is relevant when no matter how weak it
is [if] it tends to prove a disputed issue. [Citation.] Evidence may be relevant even
though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence
Code section 352.” (In re Romeo C. (1995) 33 Cal.App.4th 1838. 1843.) Our Supreme
Court has emphasized that “evidence does not become irrelevant simply because other
10
evidence may establish the same point.” (People v. Smithey (1999) 20 Cal.4th 936, 973-
974.)
More recently, we said “[w]e do not disagree with the basic proposition that
evidence may have a lower probative value if it is merely cumulative of other evidence
[citations] and there is a substantial danger of confusing or misleading the jury or a
substantial danger of necessitating an undue consumption of time. [Citation] To be
cumulative imports that something of like effect is shown. [Citation.] However,
‘ “[e]vidence that is identical in subject matter to other evidence should not be excluded
as ‘cumulative’ when it has greater evidentiary weight or probative value.” ’ ” (People v.
Holford (2012) 203 Cal.App.4th 155, 178, fn. 14 (Holford).) Thus the trial court did not
abuse its discretion unless it violated Evidence Code section 352.4
“The two crucial components of [Evid. Code] section 352 are ‘discretion,’ because
the trial court's resolution of such matters is entitled to deference, and ‘undue prejudice,’
because the ultimate object of the section 352 weighing process is a fair trial.” (People v.
Harris (1998) 60 Cal.App.4th 727, 736 (Harris).) “ ‘The prejudice which exclusion of
evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or
cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.)
As we recently pointed out: “Evidence is not inadmissible under [Evid. Code]
section 352 unless the probative value is ‘substantially’ outweighed by the probability of
a ‘substantial danger’ of undue prejudice or other statutory counterweights.” (Holford,
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4 Evidence Code section 352 provides in full: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
11
supra, 203 Cal.App.4th at p. 167.) Moreover, “[t]rial courts enjoy ‘ “broad discretion” ’
in deciding whether the probability of a substantial danger of prejudice substantially
outweighs probative value.” (Id. at pp. 167-168.)
In determining whether uncharged act evidence will be unfairly prejudicial, we
typically consider: (1) the probative value of the evidence; (2) the comparatively
inflammatory nature of the evidence; (3) the probability of jury confusion about how to
use the evidence; (4) remoteness; and (5) consumption of trial time. (See, e.g., Harris,
supra, 60 Cal.App.4th at pp. 737-741.) We consider each of these points in turn.
1) The evidence was highly probative, because, if believed, it showed that the
victim had good reason to submit to defendant’s sexual advances without protest, for fear
of violence against her, particularly because she thought he was on methamphetamine, a
circumstance that signaled to the victim that he “gets more violent and there’s no
stopping him.”
2) The evidence was not comparatively inflammatory. The victim’s unchallenged
evidence showed defendant had groomed her for sexual predation and that he became
violent when on drugs, as she testified he was on this occasion. The fact multiple
instances were admitted would not unduly prejudice the jury. As we have said, “Painting
a person faithfully is not, of itself, unfair.” (Harris, supra, 60 Cal.App.4th at p. 737.)
3) We see no reason the jury would misunderstand the trial court’s instructions on
the proper use of this evidence.
4) The evidence was not remote, but rather it evinced an ongoing, continuous
pattern of violence.
5) The evidence did not occupy so much of the trial transcript as to dwarf the
evidence of the charged sexual offenses, and thereby confuse or mislead the jury. The
victim discussed uncharged acts, including those not challenged on appeal, in
approximately a third of her testimony. That is not presumptively prejudicial. (See
Harris, supra, 60 Cal.App.4th at p. 739.)
12
In short, we find no abuse of the trial court’s broad discretion to admit this
evidence.
III
Denial of Mistrial Motion
Twice during her testimony, the victim’s mother mentioned defendant had been in
prison. Each time, the defense counsel objected, the objection was sustained, and the trial
court admonished the jury to disregard the answers.
First, when asked if her children knew defendant well before the marriage, the
mother said “Um, not really. Little bit. Some. He was in and out of prison before we got
married.” The defense objected, the mother apologized, the objection was sustained, the
answer was stricken, and the jury was admonished to disregard it.
Later, when asked why she had not called the police every time defendant made
threats of violence, the mother answered it was because “I didn’t want him going back to
prison.” A defense objection was sustained, the answer was stricken, and the jury was
admonished to disregard the statement.
After the prosecutor finished questioning the mother, defense counsel moved for a
mistrial. The trial court denied the motion, because it had promptly stricken the answers
and admonished the jury to disregard them.
During the instructional conference, the trial court proposed modifying the pattern
instruction that directs the jury to disregard stricken testimony. The trial court suggested
a paragraph specifying the mother’s testimony about “defendant’s background,”
characterizing it as a “pinpoint” instruction, and defense counsel stated: “I believe this to
be sufficient and I’m satisfied with what is written here.”
The special instruction, as read to the jury along with the pattern instruction on
disregarding stricken testimony (CALCRIM No. 104), was as follows:
13
“When [the victim’s mother] testified about the defendant’s background,
the Court struck certain testimony from the record and ordered the jury to
disregard that testimony.
“You must not consider that testimony, discuss it or allow it to enter into
your deliberations in any way.”
On appeal, defendant contends the trial court’s admonitions and instruction were
not sufficient to “unring the bell” regarding defendant’s criminal record, despite trial
counsel’s view that the special instruction was satisfactory.
“A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.” (People v. Haskins (1982)
30 Cal.3d. 841, 854; quoted with approval in People v. Jenkins (2000) 22 Cal.4th 900,
985-986.) Given the prompt admonitions and “pinpoint” instruction, and the ample
testimony supporting the charged offenses, we cannot say the trial court abused its
discretion by denying the mistrial motion based on two brief references to the fact that at
some point defendant spent time in prison.
IV
Evidence of Oral Copulation
Defendant next asserts the victim’s testimony describing forced oral copulation
falls within that rare category of evidence that is inherently improbable and therefore
cannot be deemed credible. We disagree.
“We review the whole record in a light most favorable to the judgment to
determine whether it contains substantial evidence, i.e., evidence that is credible and of
solid value, from which a rational trier of fact could find beyond a reasonable doubt that
the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.)
“Evidence is sufficient to support a conviction only if . . . it ‘ “reasonably inspires
14
confidence” ’ . . . and is ‘credible and of solid value.’ ” (People v. Raley (1992) 2 Cal.4th
870, 891.)
Generally, the testimony of a single witness is sufficient to prove even a disputed
fact. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) However, “[t]he trier of
the facts may not believe impossibilities.” (Hicks v. Reis (1943) 21 Cal.2d 654, 660; see
People v. Ozene (1972) 27 Cal.App.3d 905, 910.) “ ‘To warrant the rejection by a
reviewing court of statements given by a witness who has been believed by [the fact-
finder], there must exist either a physical impossibility that they are true, or it must be
such as to shock the moral sense of the court; it must be inherently improbable and such
inherent improbability must plainly appear.’ ” (People v. Jones (1970) 10 Cal.App.3d
237, 247.)
In closing argument, defendant emphasized that the victim claimed defendant was
circumcised, but that the photographs showed otherwise. In rebuttal, the prosecutor
emphasized the victim saw the penis briefly, and argued the depictions of it in the
photographs were not as clear-cut as trial counsel argued.
On this record, the jury could rationally believe the victim. She was a 16-year-old
girl who testified she did not want to look at defendant’s penis, and therefore the fact, if it
be a fact, that she was in error about whether or not defendant was circumcised amounts
to a mere conflict in the evidence, and does not show that she lacked credibility or that
her testimony was impossible or inherently improbable. That the victim may have
misperceived whether defendant’s penis was circumcised or not was a discrepancy well
within the discretion of the jury to resolve, and does not come close to showing that her
testimony was legally insufficient.
Defendant urges it is “highly unlikely” that the victim, who had a boyfriend,
would not be able to correctly describe defendant’s penis. But there was no evidence the
victim ever had sex with her boyfriend--or anybody else--or had ever even seen her
boyfriend’s penis, nor whether her boyfriend was circumcised. The victim testified she
15
knew what circumcision was, but tried not to look at defendant’s penis. That she may
have been mistaken about the whether he was circumcised does not make her testimony
incredible. (See People v. Troutman (1921) 187 Cal. 313, 315.)5
V
Custody Credits
Defendant contends he is entitled to more presentence credits. The People argue
that he is entitled to fewer credits. We agree with the People.
Neither party objected to the probation report’s discussion of defendant’s periods
of custody; therefore, we presume the report is accurate as to those matters. (See
People v. Evans (1983) 141 Cal.App.3d 1019, 1021 (Evans).)
The trial court imposed a one-year misdemeanor term on count 3 (§ 243.4, subd.
(e)(1)), and applied all of defendant’s 104 actual custody days, plus 104 “good-time
work-time” credits towards that sentence. It announced defendant would be left “with no
additional credits, after you finish the misdemeanor, as you go off to prison.”6
Section 2933.1 provides in relevant part as follows:
“(a) Notwithstanding any other law, any person who is convicted of a
felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than
15 percent of worktime credit, as defined in Section 2933.
[¶] . . . [¶]
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5 Defendant also argues the victim’s testimony regarding defendant’s use of force was
inconsistent as to this count. It is well-settled that even dramatic inconsistencies in
testimony do not render that testimony incredible per se. We leave the duty of evaluating
the credibility of witnesses to the jury absent a few exceptional circumstances, none of
which is evident from this record.
6 It is possible that by this comment the trial court meant to suspend execution of the
prison sentence until defendant completed his remaining misdemeanor jail term.
However, because the parties do not brief this point, we do not need to resolve it.
16
“(c) Notwithstanding Section 4019 or any other provision of law, the
maximum credit that may be earned against a period of confinement in, or
commitment to, a county jail, . . . following arrest and prior to placement in the
custody of the Director of Corrections, shall not exceed 15 percent of the actual
period of confinement for any person specified in subdivision (a).”
Defendant does not dispute that he committed a qualifying offense listed in section
667.5, subdivision (c), that is, forcible oral copulation. (See § 667.5, subd. (c)(5).) The
trial court gave defendant 104 days of “good-time work-time” credit because these credits
were allocated to a county jail sentence, and therefore the trial court did not believe the
15 percent limitation of section 2933.1 applied.
But subdivision (c) of section 2933.1 states the maximum credit defendant could
earn against “a period of confinement in, or commitment to, a county jail . . . shall not
exceed 15 percent” as to persons convicted of a qualifying offense. When committed to
jail on count 3, he was limited to earning 15 percent credits “against” that sentence.
(§ 2933.1, subd. (c).) As we have explained in a prior case, “section 2933.1, subdivision
(c) limits presentence conduct credits for nonviolent crimes whenever the defendant has
suffered a current conviction for a violent felony and the sentences for the two offenses
are run consecutively, without regard to the timing of each conviction.” (People v.
Marichalar (2003) 144 Cal.App.4th 1331, 1335.) The trial court imposed a separate
consecutive sentence on the misdemeanor.7 Therefore, defendant was entitled to only 15
days of conduct credit on the sentence for count 3, 15 percent of the 104 actual days he
served.
Defendant claims he should have received credit for the day he was arrested,
before he was actually booked into jail. By statute, defendant was entitled to credit for
time “in custody, including, but not limited to, any time spent in a jail, camp, work
_____________________________________________________________________
7 By stating defendant would have no credits left to apply to his prison term, the trial
court was necessarily imposing the misdemeanor term and the felony term as consecutive
terms.
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furlough facility . . . or similar residential institution.” (§ 2900.5, subd. (a).) The statute
does not grant credit for time when a person is merely under arrest and pending booking.
(See People v. Macklem (2007) 149 Cal.App.4th 674, 702 [“credit for time served
commences on the day a defendant is booked into custody”]; People v. Ravaux (2006)
142 Cal.App.4th 914, 919-921 [same].) The probation report shows he was placed in jail
on November 25, 2012, not November 24, when he was arrested. As there was no
objection, we presume the report is accurate. (See Evans, supra, 141 Cal.App.3d at p.
1021.)
Defendant also contends he should have received credit for periods that, according
to the probation report, he was serving sentences in other cases. As the People argue,
defendant is not entitled to dual credits. (§ 2900.5, subd. (b); People v. Gisbert (2012)
205 Cal.App.4th 277, 281.) From January 5, 2013, to the date of sentencing, April 18,
2013, defendant earned 104 days of actual time on this case. Defendant contends the
matter must be remanded to clarify the various custody periods, but if he wanted to
challenge the probation report, the time to do so was at or before sentencing. (See Evans,
supra, 141 Cal.App.3d at p. 1021.)
The credit award must be modified (§ 1260) to show 104 days of actual credit and
15 days of conduct credit on count 3, for a total of 119 days. An amended abstract must
show defendant earned 119 days towards the misdemeanor term in count 3, and zero days
towards his prison term.
VI
Sentence on Count 4
As the People point out, and defendant does not dispute, the trial court failed to
impose any sentence on count 4, misdemeanor child molestation, suggesting the omission
was due to the application of section 654. However, the trial court must impose sentence
on all counts, and then stay that portion necessary to comply with section 654, otherwise
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the resulting sentence is unauthorized. (People v. Alford (2010) 180 Cal.App.4th 1463,
1469 (Alford), approved by People v. Duff (2010) 50 Cal.4th 787, 795-796.)
As we noted ante, although the People initially elected to base count 4 on lewd
kissing, they later abandoned that election. We shall assume for purposes of expediency
that the trial court found count 4 involved the same conduct as that involved in the other
misdemeanor count (count 3) for which an unstayed jail sentence of one year was
imposed. Accordingly, to avoid the wasteful expense of a remand (see Alford, supra,
180 Cal.App.4th at p. 1473), we shall impose a one-year concurrent term on count 4,
stayed pursuant to section 654.
DISPOSITION
The judgment is modified to reflect the change in credits described in this opinion,
and to impose and stay a one year concurrent sentence on count 4. As modified, the
judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.
DUARTE , J.
We concur:
RAYE , P. J.
MURRAY , J.
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