Opinion
E065189
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. TRAYVON JOHNSON, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1403585) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed as modified. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
While prowling homes, defendant and appellant Trayvon Johnson attempted to burglarize and burglarized several homes. A jury found defendant guilty of one count of first degree residential burglary (Pen. Code, § 459, count 1), one count of attempted first degree residential burglary (§§ 664, 459, count 2), and one count of knowingly receiving stolen property (§ 496, subd. (a), count 3). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior prison term (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), all based on a December 2010 residential burglary conviction. As a result, defendant was sentenced to a total term of 18 years four months in state prison, with 960 days' credit for time served as follows: the upper term of six years on count 1, doubled to 12 years due to the prior strike conviction; a consecutive term of one year four months on count 2; a consecutive term of five years for the prior serious felony conviction; 365 days in county jail with credit for time served on count 3; and a stayed one-year term for the prior prison term allegation.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues that (1) his sentence on count 3 should have been stayed pursuant to section 654, (2) the trial court erred by staying rather than striking his one-year prior prison term enhancement, and (3) he is entitled to an additional six days of presentence custody credits. For the reasons explained below, we will modify defendant's sentence and custody credits. In all other respects, we affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Counts 2 and 3
J.R. and his family lived in a house on Symeron Road in Apple Valley. On September 16, 2014, they left the house at 5:30 p.m. for their son's football practice. As J.R. drove his family home around 8:30 p.m., he noticed a vehicle parked oddly across the street from his house. J.R. also saw a man standing near his mailbox. As J.R. pulled his vehicle into his driveway, his headlights swept the front of his house, and he noticed some window screens were missing. J.R. opened the garage door to go into the house and left his family in the vehicle in case the man in front of the house was acting as a lookout for someone else. J.R. thought his house was being burglarized. As he walked through the garage, he saw the man walking down the street, away from the parked vehicle.
J.R. walked through the house and turned on some lights. No one else was inside. When he returned to the front of the house, he saw the previously parked vehicle being driven away. His wife told him the man had returned to the vehicle and drove away. The vehicle, a Chrysler Sebring with a convertible top, was heading toward Highway 18. J.R. also noticed there were pry marks on the removed window screens and on the vinyl windows. J.R. called the police and reported the incident to law enforcement. J.R. described the man as Black, in his 20s or 30s, 5'10" tall, and wearing a baseball cap, sweatshirt, and khaki pants. J.R. was able to get a good look at the man in his headlights as he drove up to his house because the high beams were on, and J.R. and the man made eye contact with each other when they were about 12 feet apart. J.R. selected defendant's photograph from a six-pack lineup and identified him in court.
According to the probation officer's report, defendant was Black, 5'7" tall, and 23 years old in September 2014.
J.R. also recalled a shipping package on his front porch when he arrived home from work on September 16, 2014, but he did not have time to bring it inside the house before leaving for his son's football practice, as they were in a hurry. When they returned, the package was missing from the front porch. The package was later found in the Sebring. The package bore J.R.'s name and the Symeron Road address in Apple Valley. The package contained some writing tablets J.R. had ordered.
B. Count 1
K.S. and her family lived in a house on Apache Drive in Victorville. At approximately 10:00 p.m., on September 16, 2014, K.S. was at home with her 16-year-old daughter when the doorbell rang. The front porch light was on and K.S. could see a man standing at the door. When K.S. partially opened the front door, she saw that the man, later identified as defendant, was holding a white container. He said he was having car trouble and needed water. Since K.S. did not know the man, she told him no and closed the door. K.S. then looked through a side blind, next to the front door, and saw the man walk to an older, two-tone vehicle, which was parked on the street in front of K.S.'s walkway. K.S. then saw the vehicle drive away slowly down the street, stopping in front of other houses. Thinking this was odd, K.S. called 911.
San Bernardino County Sheriff's Sergeant Shelton was dispatched to Apache Drive and spoke to K.S. K.S. reported that she last saw the suspicious vehicle near the intersection of Apache Drive and Indian Wells. Sergeant Shelton then went to look for the vehicle in that area. Sergeant Shelton located an older Sebring with a convertible top, with its windows down, parked at an odd angle in front of a home belonging to A.A. on Indian Wells Drive. Sergeant Shelton looked inside the Sebring and saw an empty white gallon jug on the floor behind the driver's seat and keys in the ignition. Sergeant Shelton removed the keys.
Sergeant Shelton testified that there were lights on inside A.A.'s house, but no vehicles were in the driveway. No one answered the front door when Sergeant Shelton rang the doorbell. A neighbor across the street reported that 15 minutes earlier, the Sebring was not parked in front of A.A.'s home, the lights inside A.A.'s home were off, and said A.A. was at work. When Sergeant Shelton returned to the front door and knocked, the front door swung open. The sergeant realized the door had been kicked in, and he called for backup. Two faint, waffled shoe impressions were visible on the door, and the doorjamb had been split.
After another deputy sheriff arrived, they entered the house and found it had been ransacked. Drawers were open, jewelry was on a bed, and the sliding glass door to the backyard was wide open.
Sergeant Shelton then searched the Sebring for identification. He found a repair bill and a medical prescription in defendant's name. He returned to K.S.'s house around 11:19 p.m. and showed her a photograph of defendant on a computer screen. K.S. confirmed the man in the photograph was the man who had knocked on her front door. Meanwhile, a helicopter unsuccessfully searched for defendant. No one returned to the Sebring. A records check revealed the registration on the Sebring had expired more than six months earlier, and the vehicle was then towed.
At the time of trial, K.S. was unable to identify defendant as the man who had knocked on her front door.
A.A. was at work at the time his home was burglarized. When he left for work, the home was locked, no drawers were open, and the front door was not damaged. A.A. had previously seen the Sebring driving through the neighborhood, but he did not know who it belonged to. He did not know defendant, and did not give defendant permission to be inside his house.
Defendant was arrested on September 17, 2014. When he was searched incident to his arrest, three diamond earrings were found in his wallet. A gold necklace was also found on the ground just outside the door defendant used to exit his apartment. M.F. lived with A.A. M.F. identified the gold necklace and the three diamond earrings as belonging to her. She testified that one of the earrings had a bent post because she had stepped on it.
III
DISCUSSION
A. Sentence on Count 3
Defendant asserts that his sentence on count 3 for receiving stolen property from J.R.'s residence must be stayed pursuant to section 654 because it was committed at the same time and same place, with a single intent and objective as his offense in count 2 for attempted residential burglary of J.R.'s residence. The People respond this claim is forfeited because defendant never presented this issue to the trial court. In the alternative, the People argue the theft of the package was separate and apart from the crime of attempted burglary.
The jury found defendant guilty of attempting to burglarize J.R.'s residence (count 2). The jury also found defendant guilty of receiving stolen property (count 3). The stolen property was the package containing a box of notepads taken from the front porch of J.R.'s residence.
At the sentencing hearing, the trial court did not address section 654, but did note the crimes were independent of each other and were committed at different times and locations, presumably referring to the two separate burglaries. The trial court sentenced defendant to one year four months on count 2, and 365 days in county jail with credit for time served on count 3.
Initially, we reject the People's assertion that defendant forfeited this issue. Section 654 claims are not waived by failing to object in the lower court. (People v. Hester (2000) 22 Cal.4th 290, 295.) " 'Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' [Citation.]" (Ibid.) Accordingly, we will address defendant's section 654 claim on the merits.
As relevant, section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." " 'Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citations.]' " (People v. Galvez (2011) 195 Cal.App.4th 1253, 1262.) When it applies, "the accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' [Citations.]" (People v. Jones (2012) 54 Cal.4th 350, 353.)
" 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' [Citation.]" (People v. Correa (2012) 54 Cal.4th 331, 336.) However, a defendant may be punished for each offense, "[i]f he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other, . . . even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.) Additionally, punishment for each offense is not barred by section 654, if the facts support a finding of similar, but consecutively held objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Often, divisibility turns on whether "the defendant had an opportunity to reflect" between offenses and whether "each successive offense created a new risk of harm." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1255 [permitting punishment for burglary that was committed with the intent to facilitate subsequent crimes]; see People v. Massie (1967) 66 Cal.2d 899, 908.) Where the defendant's acts are "temporally separated" they "afford the defendant opportunity to reflect and to renew his or her intent before committing the next [offense], thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
A defendant's intent and objective are factual questions for the trial court. (People v. Green (1988) 200 Cal.App.3d 538, 543-544.) "A trial court's [express or] implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Here, the trial court properly sentenced defendant to separate punishments on counts 2 and 3, since the package he stole was the result of conduct separate and apart from the attempted burglary. In addition, the record contains sufficient evidence to support the existence of multiple criminal objectives. Defendant took the package from the front porch of the residence, not from inside the residence during a burglary. (Cf. People v. Allen (1999) 21 Cal.4th 846, 864-865 (Allen).) The taking of the package was not a precursor to the attempted burglary, and there was no evidence the package was anywhere near the windows with the pry marks. The crime of receiving stolen property was complete at the time defendant stole the package. The attempted burglary occurred when defendant attempted to gain entry into the residence through the windows with the pry marks. These facts are sufficient to support separate sentences for receiving stolen property and attempted burglary. The record supports an inference that defendant had an opportunity to reflect between the two offenses and that defendant harbored multiple criminal intents and objectives when he committed the receiving stolen property and attempted burglary.
Defendant's reliance on Allen, supra, 21 Cal.4th 846 is misplaced. In that case, the Supreme Court held that a defendant could be convicted of both a burglary, in which certain property was stolen, and possession of that stolen property. In passing, the court noted with approval that the trial court had not imposed multiple punishments for those two crimes. (Id. at pp. 866-867.) The imposition of multiple penalties was not an issue in Allen, and the case is not properly cited as authority on that issue. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006.)
Further, the facts of Allen are significantly different. In Allen, the property was stolen from inside the residence after defendant entered the home. There, in one instance, a home was burglarized between noon and 1:30 p.m., and the items taken were sold to a secondhand dealer by 1:45 p.m. the same day. In another instance, adjacent homes were burglarized between 11:00 a.m. and 1:00 p.m., and the items taken were sold to a secondhand dealer by 1:20 p.m. the same day. (Allen, at p. 849.) The brief period of time separating the offenses in Allen was indicative of an indivisible course of conduct that supported the trial court's decision to stay the execution of the sentence on the violations for receiving stolen property. (Id. at pp. 866-867.)
In this case, defendant never gained entry into the residence, even though he attempted to do so. Moreover, defendant stole the package from outside the home, a separate criminal intent and objective than the attempted burglary. The facts in the present case are sufficient to support a finding of consecutive and multiple objectives, and further supports the implied inference of the trial court that the two convictions were divisible under section 654. Accordingly, the trial court properly sentenced defendant to separate punishments on counts 2 and 3.
B. Sentence on Prior Prison Term
Relying on People v. Jones (1993) 5 Cal.4th 1142 (Jones), defendant also argues that the trial court erred by staying, rather than striking, the one-year term for the prior prison term enhancement. The People counter that the trial court correctly stayed the one-year term for the prior prison term enhancement. We agree with defendant that the prior prison term enhancement must be stricken.
Pursuant to section 667, subdivision (a)(1), "any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. . . ." Trial courts are without discretion to strike a five-year section 667, subdivision (a)(1) prior conviction enhancement under any provision of law, including section 1385. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) "Only when a greater enhancement is available under another provision of law for the same prior offense, will a section 667[, subdivision] (a)(1) enhancement not be imposed. (See § 667, subd. (a)(2).)" (People v. Johnson (2002) 96 Cal.App.4th 188, 201, disapproved on another point in People v. Acosta (2002) 29 Cal.4th 105, 134, fn. 13.)
Section 667.5, subdivision (b), provides for a one-year enhancement for each prior separate prison term served for any felony. Trial courts have discretion to strike a one-year section 667.5, subdivision (b) prior prison term enhancement in the interests of justice pursuant to section 1385, subdivision (a). (People v. Garcia, supra, 167 Cal.App.4th at p. 1561.)
In Jones, supra, 5 Cal.4th 1142, the defendant was sentenced to five years for a section 667, subdivision (a) enhancement, and to a one-year section 667.5, subdivision (b) enhancement, based on a prior conviction for a single serious felony and the resulting prior prison term for that felony. (Jones, at p. 1145.) Our Supreme Court held that a single prior conviction cannot be the basis of both a prior serious felony enhancement and a prior prison term enhancement. (Id. at p. 1150.) The court concluded that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement—but only that one—will apply. (Jones, at p. 1150.) Because the trial court in Jones used the same offense to impose a five-year term (the underlying offense was a serious felony) and a one-year term (the defendant was imprisoned for the prior serious felony), the Supreme Court held that the one-year term should be stricken and remanded the matter to the trial court with directions to strike the section 667.5, subdivision (b) enhancement. (Jones, at pp. 1150-1153; accord, People v. Jordan (2003) 108 Cal.App.4th 349, 368 ["Prior prison term enhancements may be imposed or stricken but not stayed."].)
Likewise, the trial court here imposed both a serious felony prior enhancement under section 667, subdivision (a)(1), and a prison prior enhancement under section 667.5, subdivision (b), based on the same qualifying conviction, a December 2010 residential burglary. Under Jones, the trial court should have struck the one-year prior prison term enhancement.
Relying on People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez) and People v. Brewer (2014) 225 Cal.App.4th 98 (Brewer), the People nonetheless maintain the trial court properly imposed and stayed the one-year term for the prior prison term enhancement. Gonzalez and Brewer are inapposite here.
Gonzalez addressed the question of whether, after a trial court imposed punishment for a section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be stayed or stricken. (Gonzalez, supra, 43 Cal.4th at pp. 1122-1123.) The Supreme Court in Gonzalez held that "after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed." (Gonzalez, at p. 1123.) Gonzalez did not involve the issue in the present matter, i.e., whether section 667, subdivision (a), and section 667.5, subdivision (b), could both be imposed for the same underlying offense. "[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Moreover, Gonzalez did not mention, discuss, or overrule its decision in Jones. Thus, Gonzalez is inapplicable here.
We also find the People's reliance on Brewer unpersuasive. Brewer relied on this court's decision in People v. Lopez (2004) 119 Cal.App.4th 355, 364-365 (Lopez), to conclude the proper procedure is to stay imposition of the prior prison term enhancement. Unlike in this case, however, the issue in Lopez was what to do with an unused one strike law finding when the defendant is sentenced under the habitual sexual offender law. This court held that the unused finding should be stayed, not stricken, under the circumstances of that case. (Lopez, at pp. 365-366.) We reasoned that Jones was not authority for the proposition that an unused enhancement must always be stricken because the Jones court did not consider California Rules of Court, rule 4.447. (Lopez, at p. 364.) Rule 4.447 reads: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed."
All future rule references are to the California Rules of Court.
In Lopez, we distinguished between a trial court's exercise of discretion not to impose an enhancement and a legal impediment to imposing an enhancement. We reasoned that (1) trial courts are precluded from dual use of the same prior conviction to sentence under both sections 667.61 and 667.71; (2) sentencing pursuant to the one strike law is mandatory unless "another provision of law provides for a greater penalty" (§ 667.61, subd. (f)); (3) the habitual sexual offender law provided for a greater term than the one strike law; (4) trial courts are precluded from striking a one strike law finding (§ 667.61, subd. (g)); and (5) to avoid violating section 667.61, subdivision (g), and the rule against dual use, rule 4.447 authorizes the trial court to impose the one strike sentence but stay execution of that sentence. (Lopez, supra, 119 Cal.App.4th at pp. 365- 366.) We explained that rule 4.447 "is limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement." (Lopez, at p. 365.)
Lopez was published in June 2004. Two months later, in August 2004, our Supreme Court in People v. Langston (2004) 33 Cal.4th 1237 (Langston), considered whether an additional prison term imposed on a conviction of escape from prison is a separate term within the meaning of section 667.5, subdivision (b). (Langston, at p. 1242.) The Langston court stated: "Once the prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (Langston, at p. 1241.)
Addressing the same issue as in this case, the court in Brewer, supra, 225 Cal.App.4th at pages 104-105, held the unused enhancement should be stayed under Lopez and rule 4.447. Seeking to harmonize Langston and Lopez, the Brewer court reasoned that Langston was inapposite because the issue in Langston was not the proper treatment of section 667.5, subdivision (b) and 667, subdivision (a) enhancements; Langston did not discuss rule 4.447. The cases cited by Langston involved discretionary determinations to not impose an enhancement. (Brewer, at p. 106, fn. 9.) Because Brewer relied on Lopez, a case involving a disparate situation than the present context, we find Brewer unpersuasive. Our decision in Lopez did not decide whether punishment for section 667, subdivision (a) and section 667.5, subdivision (b) enhancements could both be imposed for the same underlying offense.
Under the circumstances of this case, striking the prior prison term enhancement was the procedure prescribed by our Supreme Court in Jones, supra, 5 Cal.4th at page 1153 and Langston, supra, 33 Cal.4th at page 1241. (See also People v. Perez (2011) 195 Cal.App.4th 801, 805 [following Jones]; People v. Solis (2001) 90 Cal.App.4th 1002, 1021 [same]; People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610 [same]; People v. Murphy (2001) 25 Cal.4th 136, 156 [voters did not intend that a defendant's sentence would be enhanced for both a prior conviction and the resulting prison term].) We conclude that striking the one-year section 667.5, subdivision (b) enhancement is the appropriate procedure to follow when punishment for section 667, subdivision (a) and section 667.5, subdivision (b) enhancements are imposed for the same underlying felony conviction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Presentence Custody Credits
Lastly, defendant contends, and the People incorrectly concede, he is entitled to an additional six days (three actual days and three conduct credits) of presentence custody credits. For the reasons explained below, defendant is entitled to five additional days of custody credits.
"As a general rule, a defendant is supposed to have the trial court correct a miscalculation of presentence custody credits. [Citation.] However, if—as here—there are other appellate issues to be decided, the appellate court may simply resolve the custody credits issue in the interests of economy. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.)" (People v. Jones (2000) 82 Cal.App.4th 485, 493.)
In the present matter, defendant was arrested on September 17, 2014, and remained in custody through sentencing on January 12, 2016. The time between defendant's arrest on September 17, 2014, and his sentencing on January 12, 2016, is 483 actual days of custody. However, the trial court awarded defendant 480 actual days and 480 conduct credits, for a total of 960 days of presentence custody credits. Accordingly, defendant is entitled to 483 days of actual custody credit and 482 days of conduct credit, for a total of 966 days of presentence credits.
Actual custody credits are calculated as follows: Credit is given for the day of arrest, the day of sentencing, and all days in custody in between. (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124.) 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.)
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.
As noted in People v. Whitaker (2015) 238 Cal.App.4th 1354 (Whitaker), 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.)
Here, defendant is entitled to 483 days of actual custody credits. And, using the method of calculation set out in Whitaker, defendant is entitled to 482 days of conduct credits as a result of his actually serving 483 days in custody. That is, because conduct credits under current section 4019, subdivision (f), are given in two-day increments. Defendant is therefore entitled to five additional days of custody credits.
IV
DISPOSITION
The one-year section 667.5, subdivision (b) prior prison term enhancement imposed but stayed is ordered stricken. Additionally, the judgment is modified to award defendant 483 days of actual custody credit and 482 days of conduct credit, for a total of 965 days of presentence custody credits. The trial court is directed to amend the abstract of judgment and its minute order of the sentencing hearing so as to reflect these modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation, Division of Adult Operations. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.