Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. SWF008623 Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed with directions.
Patricia Ihara, under the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Stephanie H. Chow, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant and appellant Lorenzo L. Hutchins (Hutchins) of seven child sex crimes, and one related count of burglary, plus enhancements, against two of his stepdaughters. The trial court sentenced Hutchins to a ten-year determinate prison term, to be followed by 375-years-to-life. During jury deliberations, one juror was questioned and dismissed for misconduct. In this appeal, Hutchins contends the trial court committed reversible error when it: 1) improperly dismissed a known holdout juror; 2) failed to conduct a sufficient inquiry to determine the facts before dismissing the juror; 3) breached the secrecy of jury deliberations; 4) failed to correctly instruct the jury with the unanimity instruction; and 5) erroneously instructed the jury with Judicial Council of California Criminal Jury Instruction, CALCRIM No. 207. Hutchins also argues: 6) the cumulative effect of these errors requires reversal under state and federal law; 7) the trial court imposed consecutive sentences using a fact not found by the jury; and 8) the trial court miscalculated his custody credits. As discussed below, we reject the substantive claims, affirm the judgment, and order minor changes to the abstract of judgment.
Statement of Facts and Procedure
Hutchins married Janna Hutchins in 1997. At the time, Janna had eight children between the ages of 6 and 19. Hutchins and Janna had a daughter together in 1998. The family lived in a home in Paradise Hills in San Diego County.
In 1998, Janna awoke in the middle of the night and found Hutchins sleeping unclothed in the bed of her 12-year-old daughter, T. T. was sitting unclothed on the edge of the bed, covered with a blanket. Janna woke up Hutchins, chased him out of the house, and called police. Janna later found out that Hutchins had also been molesting T.’s twin sister, S.
Hutchins pled guilty to two counts of lewd and lascivious behavior (Pen. Code, § 288) and was placed on probation. The terms of his probation prohibited him from contacting any minor without pre-approved supervision, prohibited him from leaving San Diego County without permission, and required him to attend sexual offender treatment classes. The terms were later modified to allow him to visit his daughter, with Janna supervising the visits.
All further statutory references are to the Penal Code unless otherwise indicated.
Over the ensuing years, Janna and her children moved from the house to a hotel for about two years, to El Cajon for about two years, and then to a house in La Mesa for three and one-half years. In 2003, they moved to a home in Murrieta in Riverside County.
Hutchins and Janna kept in contact and attended the sexual offender treatment classes together. Hutchins gave Janna money and would come to the home in Murrieta to fix things at Janna’s request, although this violated a term of his probation. Hutchins also visited both Janna and their daughter in Murrieta.
In April 2004, Janna’s 15-year-old daughter, K., told Janna that she was having stomach pains. Janna took K. to a doctor, who told Janna that K. was pregnant. K. also told the doctor that Hutchins had been molesting her, but that she did not want her mother to know. Janna reported this to the police. K. underwent an ultrasound to determine the age of the fetus, which was six weeks. The ultrasound showed that the fetus was not viable. A dilation and curettage (“D&C”) procedure was performed to remove the fetus. Hutchins initially refused to submit a DNA sample for comparison with the fetus, but one was later taken without his permission, incident to his arrest. The parties stipulated that the results of the DNA testing were inconclusive.
Further investigation revealed that Hutchins had also been molesting K.’s 12-year-old sister, F.
At trial, evidence was presented as to each of the following eight counts.
Counts 1- 5 as to K.
Count 1 – rape with force (§ 261, subd. (a)(2)) from May to September 2003 in San Diego County.
Count 2 – lewd and lascivious act (§ 288, subd. (a)) from September 2003 to March 2004 in San Diego County.
Count 3 – rape with force (§ 261, subd. (a)(2) from September 2003 to March 2004 in Riverside County, with a great bodily injury allegation (§§ 1192.7, subd. (c)(8) & 122022.8).
Count 4 – lewd and lascivious act (§ 288, subd. (a)) from September 2003 to March 2004 in Riverside County.
Count 5 – burglary (§ 459) from September 2003 to March 2004 in Riverside County, with a great bodily injury allegation (§§ 1192.7, subd. (c)(8) & 12022.7).
Counts 6 – 8 as to F.
Count 6 – lewd and lascivious act (§ 288, subd. (a)) from September 2003 to September 2004 in Riverside County.
Count 7 – lewd and lascivious act (§ 288, subd. (a)) from September 2003 to September 2004 in Riverside County.
Count 8 – annoying or molesting a child under 18 years old with a prior conviction for a lewd and lascivious act (§ 647.6, subd. (c)(2)).
The 2007 trial testimony of K. and F. differed somewhat from their initial interviews with Sheriff’s personnel and Child Protective Services in 2004. For example, F. told an interviewer in April of 2004 that Hutchins never molested her while they lived in San Diego, but described two incidents as taking place at the house in Murrieta. At trial, F. testified that Hutchins began touching her when she was eight or nine years old and living in San Diego, and often kissed her when they were alone. She remembered one of the incidents previously reported to the interviewer as happening at the house in Murrieta, but not the other.
K. initially told a detective in April of 2004 that Hutchins had raped her once during the summer of 2003 in the garage of their previous home in La Mesa. After the detective told K. that she could not be pregnant by Hutchins if he raped her in 2003, she stated that Hutchins had raped her the day before she went to the doctor. The detective told K. that that incident could not be the cause of her pregnancy. K. then said that “it” happened a lot. Several weeks later, K. told a forensic child abuse interviewer that Hutchins first raped her in the garage of their previous home in La Mesa. K. stated that the second time was at the Murrieta home in March of 2004. At trial, K. testified consistently as to these two incidents, but also testified that the first time Hutchins raped her was when she was eight or nine years old and they were living in the “El Cajon” house, sometime after Hutchins was placed on probation for molesting her sisters.
The prosecution called a clinical and forensic psychologist to testify about Child Sexual Abuse Accommodation Syndrome. The psychologist explained that memories often get blended together and it could be difficult for a child to remember how many times or where they had been molested. The younger the child’s mental age, the less likely he or she would have clear memories. A child who is fearful of disclosing abuse by a stepfather to his or her mother may try to minimize what happened and will say it happened many months before to distance himself or herself from the event. It is not uncommon for a child to disclose part of the abuse to see if it is accepted before he or she will fully disclose.
The doctor who initially examined K. in April of 2004 testified that, at the time of the examination, K. was very small for her age and that her behavior and mental capacity appeared to be that of a small child, rather than a 15-year-old girl.
T. and S. testified at trial about the factual basis for Hutchins’ prior convictions for lewd and lascivious behavior.
On May 22, 2007, the jury convicted Hutchins on all counts and found true enhancements for great bodily injury (§12022.8) and committing offenses against more than one victim (§ 667.61, subd. (e)(5).)
After a bifurcated trial, the trial court found true allegations that Hutchins had two prior strike convictions (§§ 667, subds. (a),(c) & (E)(2)(A), 1170.12, subd. (c)(2)(A)), had a prior serious felony conviction (§ 667, subd. (a)) and was a habitual sexual offender (§ 667.71).
On July 6, 2007, the trial court sentenced Hutchins to 385-years-to-life as follows: 75 consecutive years-to-life on counts 1, 3, 6 and 7; 25 consecutive years-to-life on counts 2, 4 and 8; five consecutive years each for the great bodily injury enhancement and prior serious felony conviction. The other great bodily injury enhancement was stayed.
As discussed below, the correct sentence is 10 years plus 375-years-to-life.
This appeal followed.
Discussion
1. Discharge of Holdout Juror
Hutchins contends the trial court abused its discretion when it discharged and replaced a holdout juror during jury deliberations without good cause and thereby deprived him of his constitutional right to a fair trial by his chosen jury under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, section 16 of the state Constitution.
The People respond that the trial court had good cause to discharge the juror because she committed misconduct by deciding on Hutchins’s guilt or innocence based on personal reasons rather than on the evidence at trial.
Trial courts are entrusted with discretion as to whether to remove a juror for misconduct. However, appellate courts review such decisions by determining whether the grounds for such removal appear in the record as a “demonstrable reality.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “The demonstrable reality test entails a more comprehensive and less deferential review” than substantial evidence. (Id. at p. 1052.) [T]he reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (Id. at p. 1053.) The trial court is in the best position to observe the juror’s demeanor. (People v. Beeler (1995) 9 Cal.4th 953, 989.)
Section 1089 provides, in relevant part: “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty... the court may order the juror to be discharged....” “[A] juror’s serious and willful misconduct is good cause to believe that the juror will not be able to perform his or her duty.” (People v. Daniels (1991) 52 Cal.3d 815, 864.)
As our Supreme Court recently stated, “A jury’s verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters.” (People v. Leonard (2007) 40 Cal.4th 1370, 1414.) A juror commits misconduct if the juror conducts an independent investigation of the facts (Lankster v. Alpha Beta Co. (1993) 15 Cal.App.4th 678 [measuring something at stores similar to the scene of the accident]), brings outside evidence into the jury room (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314 [consulting a dictionary]), injects the juror’s own expertise into the deliberations (In re Stankewitz (1985) 40 Cal.3d 391 [former police officer telling other jurors he knew the law]), or engages in an experiment that produces new evidence (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1746 [conducting an experiment regarding the pouring of concrete]). “‘Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] “The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” [Citation.]’ [Citation.]” (People v. Wilson (2008) 44 Cal.4th 758, 829-830.)
Here, the jurors had been instructed to “decide what happened based only on the evidence that has been presented to you [in/during] this trial,” and to “use only the evidence that is presented in the courtroom.”
After two days of deliberations, the court received a note from the jury foreperson (Juror No. 1) stating, “[W]e have one juror who has brought in personal reasons as a deciding factor.” When questioned, the foreperson explained regarding Juror No. 2, “Something happened in her life that she doesn’t want blamed on the defendant.” The foreperson answered, “Yes” when the trial court judged asked, “Are you indicating to me that [Juror No. 2] is bringing up something during deliberations that happened to her in her lifetime that she is considering as a fact in determining the guilt or innocence of the defendant?” The foreperson also told the trial court that Juror No. 2 had told the other jurors, “‘This happened to me’ And then the story, which was her personal....”
Juror No. 2 interrupted: “I painted scenarios just like everybody else has painted scenarios about things that they have experienced, and, um, to drive their point in. And in this case I used the evidence that wasn’t enough for everybody.” When the trial court asked Juror No. 2 if she had brought up something from her past, she replied, “I used a for-instance, yes. But I was just trying to show something, based off the evidence that’s there.” When asked if she was still trying to base her decision on the evidence, Juror No. 2 stated, “Yes. I was trying to show the reason because there is nothing that says yes, there is nothing that says no. [¶] And because of that, I can’t say yes.” Juror No. 2 then explained, “It is an issue regarding the pregnancy.... The DNA of the pregnancy.” Juror No. 2 inquired of the court as to whether she could say more.
Juror No. 2’s oral statements in court are often difficult to understand.
The trial court and attorneys discussed outside the jurors’ presence whether they should ask Juror No. 2 exactly what she had said to the other jurors. The trial court commented that “Right now there isn’t anything that amounts to inappropriate conduct. There is no juror misconduct at this point in time. Let me have a further discussion with her.” Juror No. 2 and the foreperson were brought back into the courtroom. The trial court asked Juror No. 2 what she said in the jury room regarding DNA.
“JUROR No. 2: I used an instance. Yes, I did. I used... I used the evidence and... to clarify my point on the evidence that was there. [¶] I said, well... you see it all the time. And yesterday, I said that you see it all the time. And today I said... oh, God.
“JUROR No. 1: That something like this happened to a member of her family.”
“JUROR No. 2: No, that didn’t though. [¶] That’s not what I said. Because something like that did not, similar.”
“JUROR No.1: Yeah.
“THE COURT: So something similar happened to someone you know?
“JUROR No. 2: The DNA. [¶]... [¶]
“THE COURT: But you said, but this is exactly what happened?
“JUROR No. 2: I didn’t say exactly. I said something similar happened like this.
“THE COURT: Uh-huh. [¶] And in raising that, what was the point that you were attempting to make with the other jurors?
“JUROR No. 2: Because of this... because of this, it doesn’t necessarily mean this, and it doesn’t necessarily mean that.”
The foreperson told the court that another juror had passed the foreperson a note to the effect that, “Can we please talk to the judge about her throwing her personal things into this[?]” The judge then attempted to clarify or summarize: “You brought up something that happened to somebody that you know and it involved DNA, and you said something that sounded as if whatever this negative experience was for the person you know that you have seen this happen before and you don’t want to see it happen again?” Juror No. 2 replied, “I didn’t say it like that. But I am just saying that because that...” The foreperson interrupted to agree with the trial court, “That’s the inference.” Juror No. 2 continued, “I’m sorry if that is what you inferred. But my... the only point I was saying is because there is a possibility of this happening, this coming out this way, it doesn’t necessarily mean, yes, and it doesn’t necessarily mean no. [¶] You can’t just say because of this, then it is this.”
A short time later, the trial court made its ruling. “There appears to be a lot of hostility between (Juror No. 1) and (Juror No. 2). They are both raising their voices, but I think (Juror No. 2) engaged in misconduct. And I am inclined to remove her and put one of the alternates on. Because she brought up some experience that she has had in her life in which apparently something bad happened to somebody that she knows and she brought that up and said words to the effect, ‘Well, we can’t let that happen here. That happened before. We can’t let that happen here.’ [¶] “And she said, ‘I didn’t say that directly, but in so many words I said something along those lines.’ I think that is misconduct.”
We believe the misconduct of Juror No. 2, though likely not intentional, appears as a demonstrable reality on this record. The juror told the court that “something similar happened like this” to someone she knew having to do with “the DNA of the pregnancy.” In addition, the foreperson told the court that “Something happened in her life that she doesn’t want blamed on the defendant.” “[S]omething like this happened to a member of her family” and that another member of the jury wanted the judge to know about “[Juror No. 2] throwing her personal things into this.” Especially because the trial court was in the best position to judge the demeanor of the two jurors, it appears to us that the trial court did not err when it concluded that Juror No. 2 committed misconduct by basing her decision on Hutchins’ guilt or innocence on a factors other than the evidence in the case. This prohibited factor was that a member of her family found themselves in a situation similar to that of Hutchins, which appears to be being accused of something based on inconclusive DNA testing. Thus, the trial court did not err when it discharged Juror No. 2 for misconduct.
2. Adequacy of Inquiry
Hutchins further argues the trial court abused its discretion by failing to conduct an adequate inquiry to determine the facts before discharging the juror. Specifically, Hutchins argues the trial court could not determine whether Juror No. 2 committed misconduct without having her tell the court exactly what she had said in the jury room.
“‘When a trial court is aware of possible juror misconduct, the court “must make whatever inquiry is reasonably necessary” to resolve the matter.’ [Citation.] Although courts should promptly investigate allegations of juror misconduct ‘to nip the problem in the bud’ [citation], they have considerable discretion in determining how to conduct the investigation. ‘The court’s discretion in deciding whether to discharge a juror encompasses the discretion to decide what specific procedures to employ including whether to conduct a hearing or detailed inquiry.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 274, quoting People v. Hayes (1999) 21 Cal.4th 1211, 1255, People v. Keenan (1988) 46 Cal.3d 478, 532, and People v. Beeler, supra, 9 Cal.4th at p. 989.)
We agree with the People that the trial court determined from Juror No. 2’s statements that she had discussed an incident having to do with the DNA of K.’s fetus that had happened to someone she knew, and that the incident was similar to something related the charges against Hutchins. The trial court further determined that Juror No. 2 had considered this past incident in determining Hutchins’s guilt or innocence in this case. There was no need to delve further into the details of this past incident once the court determined from questioning both Juror No. 2 and the foreperson that Juror No. 2 was considering this past incident in deciding Hutchins’s guilt or innocence.
3. Secrecy of Jury Deliberations Breached?
Conversely, Hutchins also argues that the trial court improperly delved too far into the thought processes of the two jurors. We disagree.
“The need to protect the sanctity of jury deliberations... does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations.” (People v. Cleveland (2001) 25 Cal.4th 466, 476.) “[A] trial court’s inquiry into possible grounds for discharge of a deliberating juror should be as limited in scope as possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of the jurors, rather than upon the content of the deliberations.” (Id. at p. 485.)
Here, the trial court was very careful to conduct a reasonable inquiry that focused on whether Juror No. 2 was considering a factor other than the evidence. In doing so, the trial court avoided as much as possible delving into the details of what that factor was and how it was affecting her deliberations. For example, when the prosecutor asked Juror No. 2 to “[t]ell us what was the for-instance that you brought up from your past,” the trial court cautioned the prosecutor to be careful. When Juror No. 2 volunteered that the past incident concerned the “DNA of the pregnancy,” the trial court called for a discussion with counsel outside the jurors’ presence. When the court re-convened in the presence of the two jurors, the trial court asked Juror No. 2 “just generally speaking” and “without going into your deliberating process in the jury deliberation room” what the context was in which she brought up her previous experience with DNA. The court then rephrased, “Another way to say it is did you bring up something related to DNA that was not part of the evidence in this case?” Again, the trial court was very careful in its questioning to determine whether the juror was improperly using an outside factor in her deliberations, and avoided any focus on what that outside factor was and how it affected the jury deliberations.
Hutchins argues that the court erred in asking Juror No. 2, “And in raising that, what was the point you were trying to make with the other jurors” and “Why did you bring this other situation up then?” The court’s purpose in asking those questions appears to be to determine whether Juror No. 2 was drawing upon her own life’s experience in general, which is permissible, or was using that previous experience in deciding Hutchins’s guilt or innocence. In addition, Juror No. 2’s replies to the trial court’s questions were not the most articulate, and required a number of follow-up questions of this type to extract a usable answer. Thus, we conclude that the trial court did not abuse its discretion or delve too far into the thought processes of the jurors.
4. Unanimity Instruction
Hutchins contends the trial court incorrectly instructed the jury with CALCRIM No. 3500, the unanimity instruction, because it listed multiple offenses but failed to change the single offense language in the last paragraph of the form instruction.
The trial court instructed the jury with CALCRIM No. 3500 as follows:
“The defendant is charged with Rape in Count I sometime during the period of May 1, 2003 to September 2003. [¶] The defendant is charged with Child Molestation in Count II sometime during the period of September 2003 to March 2004. [¶] The defendant is charged with Rape in Count III sometime during the period of September 2003 to March 2004. [¶] The defendant is charged with Child Molestation in Count IV sometime during the period of September 2003 to March 2004. [¶] The defendant is charged with Burglary in Count V sometime during the period of September 2003 to March 2004. [¶] The defendant is charged with Child Molestation in Counts VI and VII sometime during the period of September 2003 to March 2004. [¶] The defendant is charged with Annoying a Child in Count VIII sometime during the period of September 2003 to March 2004. [¶] 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 committed.”
Hutchins’s point is that this failure to pluralize the phrase “this offense” in the last paragraph, or change it to “each offense” left open the possibility that the jury convicted Hutchins on one or more of the counts even though it did not unanimously agree on which act he committed for each of the specific counts.
A criminal defendant has a fundamental constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162, 165-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) Therefore, jurors must unanimously agree that the defendant is criminally responsible for “one discrete criminal event.” (People v. Davis (1992) 8 Cal.App.4th 28, 41, italics omitted.) The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
In this situation, “the question is whether there is a “‘reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (Middleton v. McNeil, 541 U.S. 433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701].); accord, People v. Huggins (2006) 38 Cal.4th 175, 192.)
In order for the jury to misapply the instructions in this case in the manner Hutchins contends, the jurors would have to believe that they were permitted to find Hutchins guilty of each of the offenses without agreeing on which act constitutes each offense. However, despite the failure to pluralize “this offense,” the instruction is clear that the jury cannot convict Hutchins unless they “all agree on which act he committed.” This is clear from a plain reading of the instruction. It is also clear from reading the instruction that the failure to pluralize “this offense” is a simple mistake of grammar. An even more literal interpretation of the instruction as written is that the jury could convict Hutchins of all of the counts if it agrees that he committed even one of the acts. Either of these conclusions would have been patently irrational and unreasonable, and we cannot assume that the jury applied the instructions in either of these ways. Indeed, “‘we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 1028.) Reading the instruction in the context of the overall charges, we conclude that it is unlikely that the jurors applied the instruction in a manner that violates the Constitution.
5. CALCRIM No. 207 (The “On or About” Instruction)
Hutchins contends the trial court erred by instructing the jury with CALCRIM No. 207. This instruction, as given in this case, provides: “It is alleged that the crime occurred in [count #] on or about [dates]. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.” Hutchins argues that the instructions’ nonspecific period of time allows the jury to reach a non-unanimous verdict as to the specific act that constituted each particular count. Hutchins cites to the bench notes on CALCRIM No. 207, which state “This instruction should not be given... when two similar offenses are charged in separate counts.”
Our courts have already decided with regard to CALCRIM No. 207’s counterpart, CALJIC No. 4.71, that this type of instruction, known as an “on or about” instruction, can be given in cases like this as long as it is accompanied by a unanimity instruction, such as CALCRIM No. 3500, discussed above.
CALJIC No. 4.71 provides: “When, as in this case, it is alleged that the crime charged was committed ‘on or about’ a certain date, if you find that the crime was committed, it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date.”
“‘Where a defendant is charged in a single count, and the evidence shows more than one criminal act of the kind alleged, it is error to give [an “on or about” instruction] because it does not require the jury to focus on a specific criminal act and to convict a defendant of that act beyond a reasonable doubt.... ’ [Citation.]” (People v. Gordon (1985) 165 Cal.App.3d 839, 857 (Gordon), disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 and People v. Lopez (1998) 19 Cal.4th 282, 292, quoting People v. Deletto (1983) 147 Cal.App.3d 458, 474-475; accord, People v. McMillan (1941) 45 Cal.App.2d Supp. 821, 830.)
The error, however, is “cured” if, in addition, the trial court gives a unanimity instruction. (Gordon, supra, 165 Cal.App.3d at p. 857.) “[An ‘on or about’ instruction] read in conjunction [with a unanimity instruction],... instruct a jury confronted with an ‘on or about’ allegation that while it need not find that the crime was committed on the precise date alleged... it must nonetheless unanimously agree that defendant committed the same act.... Combined, these two instructions adequately instruct the jury on the point.” (Ibid., fn. omitted.)
Here, the trial court gave both CALCRIM No. 207 and CALCRIM No. 3500. Accordingly, the trial court did not err.
6. Cumulative Error?
Hutchins argues that, even if this court fines the individual errors not sufficiently prejudicial to require reversal, the cumulative effect of the errors increased the level of prejudice so that reversal is required. As the People contend, there was no error, and so no cumulative error.
7. Consecutive Sentences and Blakely/Cunningham Error
Hutchins claims under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) the imposition of consecutive sentences based on facts that were neither found by the jury nor admitted by him violated his Six Amendment right to a jury trial.
As the People point out and defendant acknowledges, on this point we are bound by the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238 (Black), overruled on other grounds in Cunningham, that consecutive sentencing for separate crimes is not a violation of Blakely. (Black, at pp. 1261-1263; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
8. Custody Credits and Abstract of Judgment
Hutchins contends the trial court miscalculated his custody credits, giving him only 1066 days when it should have given him 1068 days. The People counter that the correct number of days that Hutchins actually served in custody was 1067 days. We agree with the People that Hutchins should receive 1067 days of custody credit. Hutchins was arrested on August 4, 2004 and sentenced on July 6, 2007. Counting the day of arrest and the day of sentencing (People v. Bravo (1990) 219 Cal.App.3d 729, 735), Hutchins should have been credited with 1067 actual days, not 1066 days.
Hutchins calculated that he served 1068 actual days based on an erroneous sentencing date of July 7, 2007.
In addition, both Hutchins and the People agree that the abstract of judgment erroneously shows that the convictions were obtained by a court trial. We therefore order the abstract of judgment be amended to reflect that the convictions were obtained by jury verdict.
Finally, as Hutchins points out in his opening brief, the correct sentence here is not 385 years to life, but 10 years plus 375 years to life. “When a defendant is sentenced to both a determinate and indeterminate sentence, the determinate sentence is served first.... They are to be considered and calculated independently of one another.” (People v. Garza (2003) 107 Cal.App.4th 1081, 1094.) We therefore order the abstract of judgment to be amended to reflect a sentence of 10 years plus 375 years to life.
Disposition
The judgment of conviction is affirmed. The abstract of judgment shall be amended to reflect: 1)1067 days of custody credit instead of 1066 days; 2) the convictions were obtained by jury verdict; and 3) the correct sentence is 10 years plus 375 years to life.
We concur: McKINSTER J., RICHLI J.