Filed 8/12/14 P. v. Alaniz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B252549
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054322)
v.
JOSE REFUGIO ALANIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, David
Walgren, Judge. Affirmed and remanded with directions.
Linn Davis, 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
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Refugio Alaniz was convicted, following a jury trial, of nine counts
of committing lewd acts on a child under the age of 14 in violation of Penal Code1
section 288, subdivision (a), and three counts of lewd acts on a child under 14 and more
than 10 years younger than appellant in violation of section 288, subdivision (c)(1). The
jury found true the allegations that the section 288, subdivision (a), offenses were
committed against more than one victim within the meaning of section 667.61,
subdivisions (b) and (e). The victims were Patricia K., Jasmine U. and Milly H. The trial
court sentenced appellant to a total term of 139 years, 4 months to life in state prison.
The court ordered appellant to pay a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b), twelve $40 court operations assessments pursuant to section 1465.8,
subdivision (a)(1), twelve $30 criminal conviction assessments pursuant to Government
Code section 70373 and a $300 sex offender fine pursuant to section 290.3, subdivision
(a). The court also imposed but stayed a $10,000 parole revocation fine pursuant to
section 1202.45. The court awarded appellant a total of 830 days of presentence custody
credit.
Appellant appeals from the judgment of conviction, contending the trial court
erred in excluding evidence of Patricia’s prior complaints of sexual abuse and of a sexual
relationship between Patricia and Milly. Appellant also contends there is insufficient
evidence to support his convictions for lewd acts on Jasmine. Respondent contends there
are several corrections which must be made to the record. We order two corrections to
the record, as set forth in the disposition. We order the section 290.3 fine stricken, and
the matter remanded for a determination of appellant’s ability to pay this fine together
with other omitted penalties and assessments as set forth in section 4 of this opinion. We
affirm the judgment of conviction in all other respects.
1
All further statutory references are to the Penal Code unless otherwise specified.
2
Facts
In October, 2011, fourteen-year-old Patricia lived with her mother Amber P. and
appellant, who was her mother’s boyfriend. Patricia was in therapy. During a therapy
session, she told the therapist that appellant had sexually abused her.2 The abuse was
reported to the Los Angeles County Sheriff’s Department. Patricia told the investigating
officer that appellant had also molested two of her friends, Jasmine and Milly. Neither
had reported the abuse. Patricia was examined by Bridgett Amis, a registered nurse and
sexual assault examiner. She opined that the findings from the examination were
consistent with the history she had received from Patricia.
At trial, Patricia testified that when she was about six years old, Amber and
appellant began dating, then appellant moved into their home in Westchester. This was
sometime around 2003 to 2004, as Patricia turned six in September 2003. The
molestation began shortly after appellant moved in. Appellant came into Patricia’s room
while her mother was in the shower and told Patricia to put her mouth on his penis.
When she refused, he left, but returned with whipped cream, which he put on his penis.
Patricia put her mouth on appellant’s penis. The incident lasted about one minute.
Appellant continued to molest Patricia every day. He told her to put her mouth on
his penis and testicles and to stroke his penis. She complied. Appellant put his fingers
inside her vagina “to stretch her.” He also licked her vagina and her chest and grabbed
her chest and buttocks. He also put his penis in her vagina and anus. It hurt. Her anus
bled.
While living in Westchester, Patricia became friends with Jasmine. Jasmine was
born in March 1995, and was about a year and a half older than Patricia. According to
Jasmine, she and Patricia became friends when Jasmine was in fifth grade.
At some point, appellant, Patricia and Jasmine walked to the liquor store.
Appellant asked Jasmine if she would like to have sex, and if she had ever had a
2
Patricia also told her therapist that she had been abused by a neighbor when she
was about seven years old and by Amber’s former boyfriend Marcos. This evidence was
not admitted at trial.
3
“threesome.” Jasmine said she did not know what a threesome was. She also said she
would not like to have sex. When they got back to the house, they all went in to the
backyard. Appellant forcibly inserted his penis in Patricia’s vagina. Appellant then told
Patricia to leave. He touched Jasmine’s breasts and vagina through her clothes. She told
him to stop, and he did.
According to Patricia, not long after the backyard incident, appellant put his penis
in Jasmine’s vagina while the two girls were in the living room. He grabbed onto
Patricia’s body parts at the same time. According to Jasmine, the next incident occurred
in Patricia’s bedroom. Appellant touched both Patricia and Jasmine, and put his penis in
Jasmine’s vagina.
According to both girls, appellant also had sexual intercourse with the two of them
on several occasions in the bathroom. Appellant would began by washing the family’s
two dogs with Jasmine and Patricia in the bathroom. He would lock the door and touch
the girls on their breasts and vaginas. Sometimes, he had sexual intercourse with only
Jasmine, other times with both girls. Jasmine also testified that appellant had intercourse
with her on other occasions when Patricia’s mom was not home.
According to both girls, appellant also had sexual intercourse with them at
Jasmine’s house on at least one occasion when all three went to Jasmine’s house to pick
up some movies. Appellant told the girls to touch each other. He had sexual intercourse
with both of them.
At some point, most likely in 2009, Patricia, Amber and appellant moved from
Westchester to Palmdale. Appellant continued to molest Patricia.3 On two or three
occasions, appellant inserted a glass object into Patricia’s vagina. At trial, Amber
testified that she recognized the glass object and had seen it in different locations around
the house, including underneath Patricia’s bed. On at least one occasion, appellant put
cherry-flavored gel on his penis and told Patricia to put her mouth on it. Amber testified
3
Appellant also continued to molest Jasmine when she came to visit Patricia in
Palmdale, but these molestations likely occurred after Jasmine’s 14th birthday and did
not form the basis of any of the charges against appellant involving Jasmine.
4
that she and appellant had used a strawberry-flavored gel for sex. At some point, Amber
noticed that there was not much gel left in the container, and was confused by the
decrease because she and appellant had only used the gel a few times.
In Palmdale, Patricia became friends with Milly H. Milly was born in August
1997, and was close to Patricia’s age. (Patricia was born in September 1997.)
In July 2011, when Milly was 13 years old, appellant molested her. The first
incident occurred when appellant took Milly and Patricia to a nearby aqueduct to have a
bonfire and make “s’mores.” According to Patricia, appellant told Milly that he was
going to have sex with her, but Patricia said that she would “take it” for Milly. Patricia
also stated that appellant put Milly’s hand in Patricia’s pants. Both girls said that
appellant took off their clothes and told them to lick each other’s vaginas. Appellant had
sexual intercourse with Patricia. According to Patricia, appellant put his mouth on
Milly’s vagina. Both girls said that appellant rubbed his penis on Milly’s vagina.
On the walk back to the house, appellant threatened to kill Milly’s family if she
told anyone what had just happened. Sometime later that night, appellant went into
Patricia’s room, put his hand in Milly’s pants, rubbed her vagina and walked away.
Patricia and Amber were arguing in another room at the time.
Appellant testified in his own defense at trial, and denied having sex with Patricia
or molesting her. In Westchester, he was not home alone with Patricia often. When
Jasmine came over, appellant was seldom alone in the house with them. He was never
alone with Jasmine or Patricia at Jasmine’s house. He went to the aqueduct with Patricia
and Milly alone three times. Appellant never used the glass object in a sexual manner
with anyone. He had used strawberry-flavored gel with Amber two or three times.
Appellant admitted he had been a gang member, but stated that he left the gang when he
was about 18 years old.
In rebuttal, the People introduced evidence that as recently as 2009, appellant
admitted to a police officer that he was a member of the Highland Drifters gang and had
been one for 12 years.
5
Discussion
1. Exclusion of evidence
Appellant contends the trial court abused its discretion in excluding evidence of
prior complaints of sexual abuse by Patricia involving other men. He further contends
the trial court abused its discretion in excluding evidence of a sexual relationship between
Patricia and Milly. We do not agree.
a. Prior complaints
At about the same time that Patricia told her therapist about appellant’s sexual
abuse, she also stated that an upstairs neighbor, Cesar, had molested her when she was
seven years old. She also told the therapist that Amber’s former boyfriend, Marcos, had
sexually abused her. 4 Appellant characterizes these complaints as false and contends the
trial court abused its discretion in excluding them pursuant to Evidence Code section
782.5 Appellant further contends the court’s ruling unconstitutionally restricted his Sixth
Amendment right to cross-examination and impinged on his right to present a defense.
The trial court stated, “When you try to get into the prior alleged sexual conduct of
the victim, you need to comply with Evidence Code section 782, which we’ve discussed
previously. And if you are not trying to get into the prior sexual conduct of the victim
and you’re offering it for some other purpose, you haven’t given me any reasons. . . .
You previously said there are accusations. They were false and you’ve conceded you
don’t have any information they are false. So it was previously excluded under that
4
Appellant also refers to an incident which occurred when Patricia was about 4
years old and told her babysitter that she was being sexually abused. The abuse claim
was apparently investigated, but there were no records of the investigation and Patricia
had no memory of the reported abuse. His trial counsel did initially seek to introduce
evidence of this incident, but later counsel withdrew his request to present evidence about
the incident. Accordingly, we do not consider this incident.
5
This section provides procedures to be followed if “evidence of sexual conduct of
the complaining witness is offered to attack the credibility of the complaining witness” in
certain specified circumstances. (Evid. Code § 782, subd. (a).)
6
theory. I can see if you have competent evidence she falsely accused someone of that
behavior.” The trial court correctly stated the law.
Evidence Code section 782 does apply to evidence of a witness’s prior sexual
conduct for impeachment purposes under some circumstances. However, evidence of a
victim’s prior false complaint of molestation is not evidence of “sexual conduct” as
defined by section 782. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1454-1455;
People v. Franklin (1994) 25 Cal.App.4th 328, 335.)
Admissibility of false molestation claims, like other evidence, is subject to
exclusion under Evidence Code section 352, which provides: “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.”
A trial court has broad discretion to weigh the probative value of evidence against
its potential prejudicial impact. A court’s decision that the probative value of the
evidence outweighs its prejudicial impact will not be disturbed on appeal unless the court
exercised its discretion in “an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.) To the extent that appellant contends the trial court abused its
discretion in excluding the evidence on relevance grounds, we do not agree.
“Evidence of a prior false report of molestation or rape is relevant to the credibility
of the victim. [Citations.]” (People v. Miranda (2011) 199 Cal.App.4th 1403, 1424;
People v. Franklin, supra, 25 Cal.App.4th at p. 335.) Absent proof that the prior
complaint was false, however, the evidence has marginal impeachment value. (People v.
Bittaker (1989) 48 Cal.3d 1046, 1097, overruled on other grounds by People v. Black
(2014) 58 Cal.4th 912; see People v. Tidwell, supra, 163 Cal.App.4th at p. 1457.)
Where there is no conclusive proof that a prior molestation complaint is false, the
parties may in effect be forced to conduct a trial within a trial on the issue of the
truthfulness of the prior complaint, and such an effort may consume considerable time
7
and divert the attention of the jury from the current case. (People v. Bittaker, supra, 48
Cal.3d at p. 1097; People v. Tidwell, supra, 163 Cal.App.4th at pp. 1457-1458.)
As the trial court pointed out, appellant’s trial counsel acknowledged that he had
no evidence that the complaints were false. Counsel represented that Marcos was
arrested, but apparently never prosecuted. Counsel made no representations at all about
Cesar. Given the lack of evidence of falsity, Patricia’s prior complaints were of marginal
relevance. The trial court did not abuse its discretion in excluding evidence of these two
complaints.
On appeal, appellant argues that “under the current state of the criminal process, it
is virtually impossible to prove a prior complaint is false unless the victim admits he or
she lied to the police” and implies he should be excused from the requirement of proving
falsity. We do not agree.
The difficulty of proving a prior complaint to be false will depend on the
circumstances of the complaint. In some instances, the complaint may have resulted in a
trial in which the accused was found not guilty, which is evidence tending to prove the
charges were false. In other instances, no trial may have occurred, and the defense may
be unable to locate the accused molester, making it very difficult to offer evidence of
falsity. There is nothing in the record on appeal to show what, if any, efforts appellant’s
trial counsel or investigator made to find and speak with Marcos and Cesar, or any other
third party witnesses such as the peace officer who investigated Marcos.
Appellant also contends that the mere fact that Patricia claimed to have been
molested by four different men on four different occasions while she was between the
ages of four and fourteen “raise[s] doubt in that it highly unlikely that a child would be
molested four times in ten years and wait 10 years to say something about the
molestations to anyone until she saw a therapist.” To the extent that appellant is claiming
that the complaints were so inherently incredible that they should have been considered
false on their face and so admitted to impeach Patricia, we do not agree. There is nothing
in the record to support appellant’s theory that such a delay would be unusual behavior
by victims of molestation. We do not find these circumstances to be inherently
8
incredible. Accordingly, the complaints should not have been admitted on the basis that
they were false on their face.
Since the trial court acted within its discretion in excluding cross-examination on
this subject, no violation of appellant’s right to confrontation occurred. (See People v.
Miranda, supra, 199 Cal.App.4th at p. 1426.) Further, since the evidence was of little, if
any, probative value, there was no violation of appellant’s due process right to present a
defense. (See People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015.)
b. Prior sexual conduct
During appellant’s trial counsel’s cross-examination of Milly, he asked her if she
had had “any kind of physical relations with Patricia during” the two years they were
friends. Milly replied, “We’ve kissed.” The prosecutor objected on relevance grounds,
and the court sustained the objections and struck the testimony. The court stated, “I don’t
find it in any way relevant. It is excluded under Evidence Code section 782 and 350 and
352. I don’t think it has any relevance as to whether or not she was a victim of these
crimes or to the case that we are dealing with.”
Appellant contends the trial court erred in so ruling because compliance with
Evidence Code section 782 was not required and the evidence was relevant to show
Milly’s bias and her familiarity with sexual acts. Appellant further contends the court’s
ruling violated his rights under the confrontation clause of the Sixth Amendment to the
United States Constitution.
Appellant did not raise the confrontation clause claim in the trial court and so has
forfeited it. (People v. Thornton (2007) 41 Cal.4th 391, 427.) Appellant did not contend
in the trial court that the relationship was offered to show potential bias on Milly’s part.
He contended only that such a relationship would show Milly’s familiarity with sexual
acts, and would impeach her claims that she was “clear and innocent” up until appellant
made her have sexual relations with Patricia. Accordingly, appellant has forfeited any
claim that the evidence should have been admitted to show bias.
9
Even if the trial court erred in finding Evidence Code section 782 to be a ground
for exclusion, the error would be harmless under any standard of review. The prosecutor
objected to the evidence on relevance grounds. The court’s ruling shows that its primary
ground for exclusion was the lack of relevance. There is no reasonable probability or
possibility that the trial court would have admitted the evidence if the court had believed
the procedural requirements of Evidence Code section 782 did not apply.
The trial court acted within its discretion in finding the evidence to be irrelevant
and excluding it on that ground. Appellant contended that the relationship would show
Milly’s familiarity with sexual acts, and would impeach her claims that she was “clear
and innocent” up until appellant made her have sexual relations with Patricia. However,
Milly did not testify that she was innocent up until her encounter with appellant at the
aqueduct. Thus, any evidence that she was experienced would not have impeached her
testimony. Appellant also contended that “a lot depends on her knowledge of what was
going on during the relationship. She’s talking about touching vaginas and penises and I
think that may come about as to her touching Patricia’s vagina when the defendant wasn’t
present and having some kind of relationship with Patricia.” It is not clear what appellant
meant by a lot depending on her knowledge of what was going on during the relationship.
Patricia was female, and so any sexual encounter Milly might have had with Patricia
could not have enlightened Milly about male body parts or the details of sexual
intercourse with a man. Milly did not need a sexual encounter with Patricia to learn
about female body parts, as Milly herself is a female, and of about the same age as
Patricia. Thus, evidence of a sexual encounter with Patricia would not have cast doubt on
Milly’s description of appellant’s molestation.
Even if the trial court had abused its discretion in excluding evidence of a possible
sexual relationship between Patricia and Milly, the error would be harmless under any
standard of review. Appellant contends that it would have shown bias, but the jury was
aware that Patricia and Milly were best friends. Adolescent sexual experimentation
would have added little to the bias inherent in being best friends.
10
Since the trial court acted within its discretion in excluding cross-examination on this
subject, no violation of appellant’s constitutional rights occurred. (See People v.
Miranda, supra, 199 Cal.App.4th at p. 1426 [no violation of confrontation clause when
trial court acted within its discretion in excluding evidence]; People v. Jenkins, supra, 22
Cal.4th at pp. 1014-1015 [no violation of right to present defense when excluded
evidence was of marginal probative value].)
2. Sufficiency of the evidence
Appellant contends there is insufficient evidence to show that Jasmine was under
the age of 14 when he molested her, and so insufficient evidence to support his counts 9
through 12 convictions for committing lewd acts on a child under the age of 14 years. He
further contends such a conviction violates his constitutional rights to due process and
trial by jury.
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citations.]’” (People v. Nelson (2011) 51 Cal.4th
198, 210.)
The prosecutor relied in part on Patricia’s move from Westchester to Palmdale to
show Jasmine’s age. Almost all the evidence showed that Patricia and her family moved
in 2009 or earlier. Jasmine turned 14 in March 2009. The prosecutor’s theory, in part,
11
was that the move to Palmdale occurred in early 2009, before Jasmine turned 14, and so
all the molestations in Westchester occurred before Jasmine turned 14.
There is substantial evidence to support the prosecutor’s theory, and so the
convictions. Amber testified that they moved in the middle of sixth grade, maybe after
Christmas vacation. This creates an inference that the family moved during January or
February (the fifth and sixth months of a ten month school year) and thus before March,
2009. Appellant testified that the family moved to Palmdale when Patricia was around 9
or 10, which indicates that the move occurred before September, 2008, when Patricia
turned 11. Amber’s and appellant’s testimony is substantial evidence that the family
moved before Jasmine’s 14th birthday in March 2009.
Jasmine’s statement to Detective Brunner is also substantial evidence that the
molestations occurred before her 14th birthday. Jasmine testified that she told Detective
Brunner a year or more before trial that the molestations occurred when she was in fifth
grade, and that her memory was better when she spoke with the detective than it was at
trial.6
On appeal, appellant focuses on inconsistencies in the witnesses’ testimony.
Patricia, Amber and appellant all had different memories of when the move occurred.
Patricia’s testimony as a whole showed that they moved in the last four months of sixth
grade, which would encompass February through June 2009, and so could have been
either before or after Jasmine’s 14th birthday. Appellant testified that the move occurred
when Patricia was around 9 or 10, but he also testified that the move occurred when she
was 11 or 12. These latter ages could place the move after Jasmine’s 14th birthday, since
Patricia turned 12 in September 2009. Jasmine herself initially testified that she was
“[l]ike 14” when the molestations occurred.
“Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury
6
Detective Brunner confirmed that Jasmine stated the molestations occurred when
she was in fifth grade.
12
to determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
The jury was clearly instructed that an element of the charges was that the victim
was under the age of 14 when the lewd acts occurred. A rational jury could have found
that the prosecution proved this element of the crime beyond a reasonable doubt. Thus,
“the due process clause of the United States Constitution is satisfied [citation] as is the
due process clause of article I, section 15 of the California Constitution.” (People v.
Osband (1996) 13 Cal.4th 622, 690.)
3. Record corrections
Respondent contends that appellant was entitled to 724 days of actual custody
credit, and the trial court miscalculated in awarding appellant only 722 days. Appellant
does not dispute this contention. We agree with respondent.
Appellant was arrested on October 11, 2011 and was in custody until he was
sentenced on October 3, 2013. This totals 724 days. This change in actual custody does
not affect appellant’s conduct credits, which were limited to 15 percent by Penal Code
section 2933.1. Fifteen percent of 724 is 108.6, which must be rounded down to 108
days. (See People v. Ramos (1996) 50 Cal.App.4th 810, 815-816 [section 2933.1
provides that conduct credit “shall not exceed 15 percent”].) That is the same amount
appellant previously received. The additional two days of actual custody credit increases
appellant’s total presentence custody to 832 days. The abstract of judgment must be
corrected to show the correct amount of credits and also to show that appellant’s
presentence custody credits were calculated pursuant to Penal Code section 2933.1.
Respondent also points out that the abstract of judgment does not show that
appellant was sentenced pursuant to Penal Code section 667.61. We agree with
respondent that the abstract should be corrected to show this fact.
13
4. Restitution fine
The trial court imposed a fine of $300 on appellant pursuant to section 290.3,
subdivision (a). Respondent contends the trial court erred in failing to impose $900 in
mandatory penalties and surcharges on that fine. We agree.
The trial court was required to impose a $300 state penalty pursuant to section
1464, subdivision (a)(1); a $210 county penalty pursuant to Government Code section
7600, subdivision (a)(1); a $60 emergency medical services penalty pursuant to
Government Code section 7600.5, subdivision (a)(1); a $60 state surcharge pursuant to
section 1465.7, subdivision (a); a $150 state court construction penalty pursuant to
Government Code section 70372, subdivision (a)(1); a $30 DNA penalty pursuant to
Government Code section 76104.6, subdivision (a); and a $90 state-only DNA penalty
pursuant to Government Code section 76104.7, subdivision (a).7 (People v. Castellanos
(2009) 175 Cal.App.4th 1524, 1528-1529; People v. McCoy (2007) 156 Cal.App.4th
1246, 1254.)
As respondent recognizes, this court has held that when a fine has an “ability to
pay” provision, and a correction on appeal would result in an increased fine, the matter
must be remanded to the trial court for a determination of the defendant’s ability to pay.
(See People v. Castellanos, supra, 175 Cal.App.4th at pp. 1531-1532; see also People v.
Valenzuela (2009) 172 Cal.App.4th 1246, 1249, 1250.) Section 290.3, subdivision (a),
has an “ability to pay” provision. With the addition of the mandatory penalties and
surcharges, appellant’s fine would be $1,200. Accordingly, the matter must be remanded
to the trial court for a determination of appellant’s ability to pay the increased fine.
7
Several of the penalties are subject to ex post facto principals. (People v. Voit
(2011) 200 Cal.App.4th 1353, 1374 [penalties pursuant to section 1465.7 and
Government Code sections 70372, 76000.5, 76104.6 and 76104.7].) Appellant was
convicted on crimes that occurred between May 26, 2003 and October 11, 2011. All of
the penalties were enacted prior to October 11, 2011 and apply to appellant.
14
Disposition
The abstract of judgment is ordered corrected to show that (1) appellant has 724
days of actual custody plus 108 days of custody credit for a total of 832 days of
presentence custody credit; (2) appellant’s custody credits were calculated pursuant to
section 2933.1 and (3) appellant was sentenced pursuant to section 667.71. The $300
section 290.3 fine is reversed. The matter is remanded for a hearing to determine if
appellant has the ability to pay the total fine detailed in this opinion, a lesser amount or
nothing at all. The judgment of conviction is affirmed in all other respects. The clerk of
the superior court is directed to prepare an amended abstract of judgment reflecting the
three corrections set forth in this disposition, plus the fines determined by the court after
the ability to pay hearing, and to deliver a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MINK, J.
We concur:
MOSK, ACTING P.J.
KRIEGLER, J.
Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
15