Opinion
E068461
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR ALBERT HURTADO, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR-042141) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed as modified. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
After becoming angry at his neighbor's dogs, defendant and appellant Salvador Albert Hurtado grabbed a rifle from his closet and fired shots toward his neighbor's property. Following a jury trial, defendant was convicted of gross negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a); count 2). Thereafter, defendant was placed on formal probation for a period of three years on various terms and conditions of probation, including serving 275 days in county jail with 275 days of credit for time served.
The jury was unable to reach a verdict on count 1, assault with a firearm (§ 245, subd. (a)(2)), and that count was later dismissed.
On appeal, defendant contends (1) the trial court committed prejudicial error when it failed to instruct the jury with a unanimity instruction (CALCRIM 3500), and (2) he is entitled to additional conduct credits pursuant to section 4019. We agree with the parties that defendant is entitled to additional conduct credits, but reject defendant's remaining contention. Accordingly, we affirm the judgment as modified.
II
FACTUAL BACKGROUND
Defendant and Joseph Leviton owned property in Newberry Springs in San Bernardino County. There were two residences on Leviton's property: a main house, which Leviton rented to Billy Ng, and a remodeled garage where Leviton lived. Leviton also owned two dogs. Defendant owned the property next door. There were no other neighbors within a half mile. Prior to the incident, Leviton and defendant had minor disputes over trash and the dogs barking. They also quarreled over a water well in August 2015. After that incident, defendant told Leviton that he had gotten rid of Leviton's previous tenants by firing five shots over the fence and, one day, Leviton could expect the same.
On August 18, 2016, around 6:00 p.m., Leviton, Ng, and two women were in the backyard on the side of Leviton's main house when Leviton heard two loud gunshots within seconds of each other. Ng believed the sound was caused by firecrackers. Leviton thought someone was shooting snakes, which was not unusual for that time of year. Leviton and Ng went to investigate. Leviton did not see defendant, but Ng saw defendant in his yard pointing a rifle in the direction of where Ng and Leviton had been. Defendant put down the rifle when he saw Ng. Ng found Leviton and told him, "I think Sal [defendant] is trying to kill us."
Afterwards, Leviton put the dogs inside the garage. Leviton and Ng then walked to the end of the walkway and peeked toward defendant's property. Leviton saw defendant about 25 or 30 feet away, standing in his own yard, holding a rifle, and pointing it in Leviton's direction. Ng, who was behind Leviton, thought the gun was pointed in their general direction. Leviton ducked behind the corner for cover and immediately heard a third gunshot "whizzing through the air." Leviton called 911.
While on the phone with the 911 operator, Leviton peeked around the corner again, flipped off defendant, and yelled, "f--- you." Defendant again pointed the gun at Leviton, causing Leviton to crouch behind the house. Leviton then heard a fourth gunshot. The fourth shot was fired within about a minute after the third shot was fired. By this time, defendant had moved closer to the fence line. Leviton stayed crouched down behind the corner, talking to the 911 operator. When he peeked out, he saw defendant reload his rifle. Defendant then fired a fifth shot. About 30 to 45 seconds later, defendant fired a sixth shot. Minutes later, Leviton saw defendant place the rifle down and walk towards his porch. Leviton estimated that he had heard six shots within approximately five minutes. Ng estimated that he had heard four shots within five to 10 minutes.
When San Bernardino County Sheriff's Department deputies arrived on the scene, it was dark outside. Deputy Curtis Bennington interviewed defendant, Leviton and Ng, and searched the property with other deputies. After speaking with defendant, deputies recovered a .30-caliber rifle from defendant's house and detained defendant. Deputies found four spent rifle casings in defendant's backyard about 10 to 20 feet from the fence in between his and Leviton's properties. Deputy Bennington noted in his police report that Ng stated that he had heard four shots but did not see the weapon aimed at Leviton. Deputy Bennington inspected defendant's rifle and noted that it did not break into an "L" position to load from the top as Leviton had described at trial. Deputy Bennington did not find any bullet strikes during his cursory analysis of Leviton's house. The following morning, Leviton found what appeared to be a bullet hole in the eaves of the roof of Leviton's house near the area where Leviton had been crouched down.
In a tape-recorded interview after his arrest, defendant told Deputy Bennington that he became agitated when his neighbor's dogs would not stop barking at him as he brought his groceries into his house. Defendant explained that as he was unloading his groceries, one of Leviton's dogs that had bitten him in the past was barking at him. He then got his gun, a .30-caliber carbine, from his bedroom closet, and fired four shots in the direction of his neighbor's property, above the house. He did not see Leviton when he fired the first round. At the time, defendant was on his own property, about 10 feet from the fence in between his and Leviton's properties. Defendant thought Leviton came out around the time he fired the third round. Defendant had pointed his rifle at Leviton, but moved it to the side before firing. Leviton then gave defendant the "bird." In response, defendant pointed the rifle up and fired a round eight feet above Leviton. Defendant could have hit Leviton anytime he wanted to but he did not do so. Defendant had been a machine gunner in the military and got shot at many times so he knew how to hit somebody. He fired the fourth round up in the air and then went inside his home.
Defendant's taped interview was introduced at trial.
Defendant believed he only fired four shots from the same spot, within about a minute of each other. He fired the shots because he was angry about the dog barking. Defendant also complained about his neighbors not picking up their trash. He did not feel remorse for his actions. He also did not think that he suffered from Alzheimer's and noted that his Veteran's Administration doctor told him that for an 88-year-old he was doing well.
III
DISCUSSION
A. Unanimity Instruction
Defendant contends that the trial court committed prejudicial error by failing to sua sponte instruct the jury with a unanimity instruction (CALCRIM No. 3500), arguing the jurors could have based their verdict on any of the six fired shots. He also asserts that the trial court's failure to give the unanimity instruction unconstitutionally reduced the prosecution's burden of proof in violation of his constitutional due process rights.
CALCRIM No. 3500 provides: "The defendant is charged with ___<insert description of alleged offense> [in Count ___] [sometime during the period of ___ to ___]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
The People respond defendant is estopped from raising this issue on appeal because defense counsel invited the error by informing the trial court he did not want the unanimity instruction given. In the alternative, the People argue that the trial court was not required to give the unanimity instruction as the prosecutor elected to rely on the first four shots fired and those shots were fired during a continuous course of conduct. The People further note that defendant's defense to each was the same, namely, that although he had fired the four shots, he had not fired them near enough to anyone for there to be a high risk of great bodily injury or death. For the same reason, the People also argue that any error was harmless.
Defendant was convicted of discharging a firearm in a grossly negligent manner. (§ 246.3, subd. (a).) Section 246.3, subdivision (a), generally makes it a crime to "willfully discharge[ ] a firearm in a grossly negligent manner which could result in injury or death to a person." "[T]he elements of section 246.3[, subdivision ](a) are: '(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.' [Citations.]" (People v. Ramirez (2009) 45 Cal.4th 980, 986.) "The risk element requires the likely presence of people in the area, not the actual presence of a specific person." (Id. at p. 987.)
1. Standard of Review
" '[A]ssertions of instructional error are reviewed de novo.' [Citation.] Whether or not the trial court should have given a 'particular instruction in any particular case entails the resolution of a mixed question of law and fact,' which is 'predominantly legal.' [Citation.] As such, it should be examined without deference." (People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).)
2. Legal Principles
"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings); accord, People v. Maury (2003) 30 Cal.4th 342, 422-423.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citation.]" (Maury, at p. 423.) " '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' [Citations.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Russo, at p. 1132.)
"There . . . is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (Jennings, supra, 50 Cal.4th at p. 679.) There is also no need for a unanimity instruction if the case falls within the so called "continuous-course-of-conduct exception." (Ibid.; People v. Williams (2013) 56 Cal.4th 630, 682.) This exception arises " ' "when the acts alleged are so closely connected as to form part of one transaction" ' " (Williams, at p. 682) or when there is " 'a continuous course of conduct of a series of acts over a period of time.' " (Jennings, at p. 679.) In Williams, our Supreme Court explained that more specifically, the course of conduct exception requires that " 'the defendant offer[ ] essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' " (Williams, at p. 682; see People v. Lueth (2012) 206 Cal.App.4th 189, 196 [exception is " ' " 'meant to apply not to all crimes occurring during a single transaction but only to those "where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim's testimony in toto" ' " ' "].)
"In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. [Citation.] In the first situation, but not the second, it should give the unanimity instruction." (Hernandez, supra, 217 Cal.App.4th at p. 570, italics omitted.) A unanimity instruction must be given sua sponte, even in the absence of a defense request for the instruction. (Id. at p. 569; People v. Leonard (2014) 228 Cal.App.4th 465, 491 (Leonard).)
3. Analysis
Here, assuming, without deciding, that defendant did not invite the error by stating he was not asking for the instruction, we reject defendant's contention that the trial court erred in failing to instruct the jury with CALCRIM No. 3500. The trial court was not required to instruct on unanimity because the prosecutor made an election, choosing to rely on the first four shots, which were part of a continuous course of conduct, rather than five or six shots. On Leviton's direct examination, the prosecutor had only questioned him about hearing four shots. But during cross-examination, as impeachment, defense counsel questioned Leviton about his previous testimony that defendant had fired two more shots, minutes after he fired the first four. During closing argument, the prosecutor relied only on the first four shots.
During a conference with the parties regarding a question from the jury on the assault with a firearm charge, the trial court stated that it occurred to the court that maybe it should have given the unanimity instruction under CALCRIM No. 3500. Although defense counsel initially thought the instruction should be given, he asked for time to consider the issue. After a recess, defense counsel confirmed that, on further consideration, he was not asking for the instruction, stating: "Based on the argument, I don't think we can give it." During closing arguments, the prosecutor relied on the first four shots, and defense counsel asserted the same defense as to all four, namely, that the shots were never fired near enough to anyone to place them at risk of death or great bodily injury. The trial court then stated it would not give the instruction.
We conclude on this record that the trial court did not err by failing to give a unanimity instruction. First, the prosecutor in closing arguments plainly elected the first four shots, which were fired within minutes of each other, and there was no possibility for jurors to disagree about the factual basis for prosecution. Second, defendant's conduct was so closely related in time and place as to constitute a continuous course of conduct, and one single transaction, countered by the same defense: that the shots were never fired near enough to anyone to place them at risk of death or harm. Thus, defendant simply denied shooting in a grossly negligent manner or intending to cause death or great bodily harm. " ' "Neither instruction nor election are required . . . if the case falls within the continuous course of conduct exception." ' " (Leonard, supra, 228 Cal.App.4th at p. 491.)
Defendant admitted to Deputy Bennington that he fired four shots, from the same spot, within about a minute of each other. Defendant knew that Leviton and Ng lived on the property next door, and he fired the shots in their direction because he was angry about Leviton's barking dog and other issues. Leviton similarly testified that he heard all of the shots (including the fifth and sixth shots allegedly fired two to three minutes after the fourth shot) within a five-minute period, while Ng estimated the time period was five to 10 minutes. The fact that some of defendant's conduct underlying the offense occurred after Leviton gave defendant the finger and while Leviton was crouching does not change this conclusion. The events occurred within a span of minutes on the same night and were directed against the same neighbors. Moreover, defendant's actions were successive, interrelated, and aimed at the single objective of scaring his neighbors.
The circumstances here are akin to People v. Flores (2007) 157 Cal.App.4th 216. In Flores, the court determined that a unanimity instruction was not required in a prosecution for assault with a semiautomatic firearm. There, the defendant fired multiple rounds using the same firearm while standing in the same location. (Id. at p. 223.) The court reasoned that, because the shots were fired repeatedly, within moments of one another, there was no reasonable basis for the jury to distinguish between each gunshot. The rapid succession of the shots, fired while the defendant stood in the same location, formed one continuous transaction. (Ibid.) Therefore, the gunshots collectively could be used to prove the assault charge, and a unanimity instruction was not required. (Ibid.)
People v. Jefferson (1954) 123 Cal.App.2d 219 is also instructive. In Jefferson, the Court of Appeal held that the continuous conduct exception applied and an election by the prosecutor was not required in the case of a defendant who, using two different knives and in two different locations, slashed at police officers with one knife and then slashed at them with the other knife. The acts occurred within a period of 10 to 15 minutes and each was in response to the officers' attempts to disarm the defendant. The court described the assaults as "part of the same incident" and as a single "attack." (Id. at p. 221.) In part, the court reasoned: "Both of the matters relied on as being separate and distinct offenses, occurred in the course of a continuous effort on the part of the officers to disarm the [defendant]. They were a part of the same incident, and they could not reasonably be held to constitute two separate offenses, each complete in itself, and each of which would require a separate charge and a separate trial." (Ibid.; compare People v. Moreno (1973) 32 Cal.App.3d Supp. 1 [election or unanimity instruction required where two acts of resisting officers were temporally and spatially separate, as one occurred near a residence, after which the defendant calmed down and ceased his criminal activity, and the second incident occurred a half hour later and miles away at a jail in the presence of a different set of witnesses (booking desk personnel)].)
Here, there was one continuous course of conduct involving defendant and his neighbors and there were no distinguishing differences in time or location. The fact the prosecution posited various acts upon which the jury could base its verdict does not obviate the fact that defendant's actions were all part of a continuing effort to scare his neighbors by discharging his firearm in a grossly negligent manner. Under these circumstances, the lack of a unanimity instruction was not error.
Defendant maintains that the continuous course of conduct exception is inapplicable in this case because (1) the gunshots were separated in time and place and (2) the crime at issue, discharge of a firearm with gross negligence, " 'contemplates a continuous course of conduct or a series of acts over a period of time' " and it is not the type of offense that under its statutory definition involves a continuous course of conduct. (Cf. People v. Zavala (2005) 130 Cal.App.4th 758, 769 [stalking].)
We do not agree that there was a rational basis for the jury to distinguish between the first four gunshots and the additional two gunshots. Defendant was found in possession of a gun, and he admitted to firing the gun in the direction of Leviton's property four times. There was no evidence of another shooter. Defendant's defense was the same as to all of the gunshots, namely that he did not fire any of the shots near enough to anyone for there to be a high risk of great bodily injury or death. Under the circumstances of this case, the jurors could not disagree about which gunshots defendant fired and yet convict him of the crime charged. They either accepted or rejected that he did not fire any of the shots near enough to anyone for there to be a high risk of great bodily injury or death. A unanimity instruction was therefore not required.
Even if the trial court erred in failing to give a unanimity instruction, any error was harmless. There continues to be a split of authority in the appellate courts concerning whether the erroneous failure to give a unanimity instruction must be harmless under the Chapman standard or the Watson standard. (Hernandez, supra, 217 Cal.App.4th at pp. 576-578 [discussing split of authority and applying Chapman standard requiring error to be harmless beyond a reasonable doubt]; People v. Vargas (2001) 91 Cal.App.4th 506, 561-562 [applying Watson standard of whether " 'it is reasonably probable that a result more favorable to the appealing party would have been reached' " absent the error].) This court has applied the Chapman standard. (Hernandez, at pp. 576-577; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188 (Wolfe).)
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Under the Chapman standard, any error in failing to give the unanimity instruction could not have affected the verdict on the gross negligent discharge of a firearm count, and was therefore harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) As noted, defendant admitted that he fired four shots in the direction of Leviton or his house. He presented a unitary defense, namely, that he did not fire any of the shots near enough to anyone for there to be a high risk of great bodily injury or death. The jury necessarily rejected this defense in finding defendant guilty of gross discharge of a firearm. None of the jurors could have found the first two shots, which defendant stated he fired above the house, posed a high risk of death or great bodily injury to persons in the area, without also finding the third and fourth shots fired in the direction of Leviton did the same. Defendant admitted he pointed his rifle at Leviton and then fired the third shot toward Leviton's house. He also stated that he fired the fourth shot about eight feet above Leviton's head. Leviton testified that the third shot was so close that he heard the bullet "whizzing" through the air by him. Therefore, based on the evidence and defendant's unitary defense, any error was harmless beyond a reasonable doubt. (See Hernandez, supra, 217 Cal.App.4th at p. 577 [this court noted that "where the defendant offered the same defense to all criminal acts and 'the jury's verdict implies that it did not believe the only defense offered,' failure to give a unanimity instruction is harmless error"]; Wolfe, supra, 114 Cal.App.4th at p. 188 [same].)
Wolfe is instructive. There, the defendant presented a unitary defense to a single unlawful gun possession charge, namely, that all of the guns he allegedly possessed belonged to his mother and he had no dominion or control over any of them. (Wolfe, supra, 114 Cal.App.4th at pp. 180-181, 188.) This court concluded that the error in failing to give a unanimity instruction on the single gun possession charge was harmless beyond a reasonable doubt because, in finding the defendant guilty of the gun possession charge, the jury necessarily rejected defendant's unitary defense, supported by his mother's testimony, that the guns belonged to her. (Id. at p. 188.) As this court later observed in Hernandez, the guilty verdict in Wolfe showed that the jury in that case "rejected the defendant's defense in toto, resolving the credibility dispute in the prosecution's favor." (Hernandez, supra, 217 Cal.App.4th at p. 577.) The same is true here. In finding defendant guilty of gross discharge of a firearm, the jury must have rejected defendant's argument that he did not grossly discharge his firearm.
Based on the foregoing, we reject defendant's claim that the trial court prejudicially erred in failing to give a unanimity instruction.
B. Conduct Credits
The trial court awarded defendant 275 days for the time he spent in county jail but did not award him any conduct credits pursuant to section 4019. Defendant asserts that the trial court erred by failing to award him conduct credits under section 4019 from the time he was booked into jail until the date of his sentencing, with the exception of those days when he was being treated to restore his competency. He therefore argues that he was entitled to 169 days of conduct credit, for a total of 444 days of presentence custody credits. The People concede that defendant was entitled to conduct credits from the date of his arrest until the date the trial court committed him to the Department of State Hospitals, and from the date the hospital declared him competent through the date of his sentencing hearing. We agree with the parties.
The statutory scheme for custody credits is as follows. Pursuant to section 2900.5, a defendant convicted of a felony or misdemeanor is entitled to credit for all days of custody up to sentencing. (§ 2900.5, subd. (a).) This includes any time spent in a state hospital while declared mentally incompetent to stand trial. (People v. Mendez (2007) 151 Cal.App.4th 861, 864 (Mendez).) Partial days are counted as full days. (In re Jackson (1986) 182 Cal.App.3d 439, 442-443.)
Section 4019 governs the rate at which prisoners confined in or committed to a county jail earn credit against their sentences for work performance and good behavior. As relevant here, subdivision (f) of section 4019 provides: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody." (Italics added.) "Typically, an accused awaiting trial is not statutorily entitled to conduct credits for time spent in a state hospital while subject to a finding of incompetency." (People v. Bryant (2009) 174 Cal.App.4th 175, 182.) However, "equal protection requires application of section 4019 credits to presentence confinement in a state facility if the circumstances of the confinement are essentially penal." (People v. Buckhalter (2001) 26 Cal.4th 20, 30, fn. 6; see Bryant, at pp. 182-183.) Accordingly, "when the uncontradicted evidence demonstrates the accused's competency was unquestionably regained as of a date certain . . . , the defendant is entitled to section 4019 conduct credits . . . ." (Bryant, at p. 184.) Thus, in Bryant, the court granted conduct credits for the time after defendant was declared competent but before he was transferred from the state hospital to the county jail. (Bryant, at p. 184; see People v. Guzman (1995) 40 Cal.App.4th 691, 693- 695 [defendant entitled to section 4019 credits for time confined at treatment facility but excluded from treatment as unsuitable].)
Section 4019 was amended effective January 1, 2015 (Stats. 2014, ch. 612, § 6) and January 1, 2017 (Stats. 2016, ch. 706, § 3); the amendments have no bearing on this analysis. --------
Similarly, here, if defendant spent time at the state hospital after he was declared competent, he would be entitled to conduct credits for those days. Defendant was arrested on August 18, 2016. On November 18, 2016, the trial court found defendant incompetent to stand trial and referred him to the County Mental Health Director for placement. On December 9, 2016, the trial court ordered defendant committed to the Department of State Hospital's Liberty Healthcare Restoration of Competency Program, until his mental competency could be restored. Defendant was committed that same day. On February 28, 2017, the program's director certified that defendant was mentally competent. On March 3, 2017, the trial court found defendant mentally competent to stand trial. At that time, defendant was in custody in county jail. Defendant was sentenced on May 19, 2017. The period from August 18, 2016, through May 19, 2017, is 275 days.
The trial court properly awarded appellant actual custody credits for the time he was confined to the state hospital (Mendez, supra, 151 Cal.App.4th at p. 864), but erred when it failed to award him any conduct credits under section 4019. As previously noted, defendant was committed to the state hospital on December 9, 2016, and his treating doctor certified him as mentally competent on February 28, 2017, and filed the certificate with the court on the same day. Hence, defendant was committed to the state hospital due to incompetency for a period of 82 days, rather than 106 days as defendant contends.
As noted in People v. Whitaker (2015) 238 Cal.App.4th 1354, the two days of presentence conduct credit authorized by subdivision (f) of section 4019 are the "sum" of the one day of credits set forth in subdivisions (b) and (c) of section 4019. (Whitaker, at p. 1358, fn. 3.) Section 4019 "thus requires that a defendant actually serve two days in custody before he or she will be entitled to two additional days of conduct credit. A defendant who serves an odd number of days is not entitled to an additional single day of conduct credit for his or her final day of actual custody." (Whitaker, at p. 1358, italics omitted; accord, People v. Arevalo (2018) 20 Cal.App.5th 821, 827, fn. 3.) Therefore, defendant's 193 days of actual jail custody results in 192 days of conduct credits. Accordingly, he is entitled to 192 days of conduct credits, for a total of 467 days of presentence custody credits (275 actual days plus 192 conduct credits).
IV
DISPOSITION
The judgment is modified to award defendant 192 days of conduct credits pursuant to section 4019, for a total of 467 days of presentence custody credits. The clerk of the superior court is directed to prepare an amended minute order of the May 19, 2017 sentencing hearing, and forward copies to the appropriate agencies. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.