Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE250742. Allan J. Preckel, Judge.
McDONALD, J.
Sheila Marita Manley appeals a judgment following her jury convictions of assault with a deadly weapon or with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and inflicting corporal injury resulting in traumatic condition on a former cohabitant (§ 273.5, subd. (a)). On appeal, Manley contends: (1) the evidence is insufficient to support her convictions; (2) the trial court erred by not sua sponte instructing on lesser included offenses of simple assault and battery; (3) the prosecutor committed Brady error by not timely producing certain notes of the prosecutor's investigator; and (4) the trial court erred by denying her section 4019 conduct credits for presentencing time she spent in residential treatment programs.
All statutory references are to the Penal Code.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, Luke Kobulnicky, Jr., asked Manley to marry him and considered her his fiancée. They began living together in El Cajon. Apparently after about six months, they became homeless. Kobulnicky occasionally stated Manley was his ex-girlfriend after they had an argument.
At trial, Kobulnicky testified that although he may have called Manley his ex-girlfriend, he never meant it. He stated he loved her "with all [his] heart" and wished to marry her in the future.
On April 3, 2005, Bill Grosventre was driving in El Cajon when he saw Kobulnicky supine on a sidewalk waving his arms. Grosventre stopped to help him. The first thing Kobulnicky said was that he had been stabbed. Grosventre called 911 and then handed Kobulnicky a rag and told him to apply pressure to stop the bleeding from his abdomen. While they waited for assistance, Kobulnicky told Grosventre that his ex-girlfriend had stabbed him after he refused to buy her dinner. Kobulnicky said that after the stabbing she rode off on her bicycle. Grosventre called Kobulnicky's friends at his request and they arrived shortly thereafter. Kobulnicky's friends told Grosventre the name of the woman who stabbed him. Kobulnicky asked Grosventre whether he should press charges against her and Grosventre told him that it was up to him. Kobulnicky never mentioned to Grosventre anything about a piece of wood or sheet metal attached to a piece of wood that caused his injury. When police arrived, Kobulnicky's friends immediately left. Grosventre told a police officer the information he had learned from Kobulnicky and his friends.
Rodney Geilenfeldt, a firefighter paramedic, arrived at the scene and attended to Kobulnicky, who was lying on the sidewalk. Kobulnicky told him that he had been stabbed by his girlfriend, who was upset after they had an argument. Kobulnicky was in pain and had a puncture wound to the stomach, consistent with his statement that he was stabbed. He did not appear to be under the influence of alcohol or controlled substances. Kobulnicky never mentioned to Geilenfeldt anything about a piece of wood, or sheet metal attached to a piece of wood, that caused his injury.
El Cajon Police Officer Don Holmes arrived at the scene after paramedics and another police officer had arrived. Holmes rode in the ambulance with Kobulnicky as he was taken to the hospital. Holmes asked Kobulnicky several times who had stabbed him, but received no response. When Holmes asked why he had been stabbed, Kobulnicky stated that it was because "she" wanted money. He did not identify who the "she" was. Kobulnicky never mentioned anything about tripping or falling on a piece of wood with sheet metal attached to it. After Kobulnicky arrived at the hospital, Holmes spoke with Grosventre back at the scene. Grosventre told Holmes about what he saw and statements made to him. Grosventre stated the name of the person Kobulnicky said had stabbed him was "Sheila."
After unsuccessfully searching for a stabbing weapon at the scene, Holmes returned to the hospital and spoke with Kobulnicky again. Holmes took a photograph of Kobulnicky's three-quarters of an inch injury, which had been closed with two staples. Holmes told Kobulnicky he had spoken with some other witnesses at the scene and wanted to know what happened between "Sheila" (i.e., Manley) and him. Although Kobulnicky was initially hesitant to say what happened, he eventually told Holmes he had been walking on El Cajon Boulevard when he saw Manley, his ex-girlfriend, coming from behind him on a bicycle. She stopped and asked him to buy her some food. He told her he really did not want to have anything to do with her and was not going to buy her food. He turned to continue walking and said he would buy her food, but would leave it on the sidewalk so they would not be together. As he continued walking, Manley followed him. As he turned and faced her, he saw she had a knife in her right hand. The knife had a fixed blade about three inches long and one-half inch wide. From the bicycle, Manley stabbed Kobulnicky one time in his left side. He looked down and saw blood coming from his abdomen. Manley left on the bicycle.
Kobulnicky ran and knocked on the door of a nearby house to get assistance. After no one answered the door, he lay down on a sidewalk. Kobulnicky told Holmes that his relationship with Manley was basically that of boyfriend and girlfriend. He said they had lived together for about a year, but for the two months prior to the incident they had been homeless, causing a strain on their relationship. Kobulnicky did not consider them to be dating at the time of the incident. He gave Holmes Manley's full name, date of birth, and physical description. Kobulnicky never mentioned to Holmes anything about falling down or a piece of wood with sheet metal attached to it. Kobulnicky signed a domestic violence victim information sheet, but told Holmes he was not sure whether he wanted to press charges against Manley.
On June 6 (after Manley had been arraigned), Sheryl Harris, a paralegal with the San Diego County District Attorney's Office, spoke by telephone with Kobulnicky. Kobulnicky described the incident to her, stating that he was walking on the street when his ex-girlfriend came up from behind him and asked for money for food. When he said "no," she stabbed him with a small knife. He told Harris it was really "no big deal" and that Manley was a "good[,] kindhearted person." He said he did not think Manley really meant to hurt him. He did not want Manley to get in trouble. At the end of the conversation, they agreed he would come to Harris's office to complete a nonprosecution request form; however, he never did so. During that telephone conversation, Kobulnicky never told Harris that his injury was caused by falling down.
On June 13, an information was filed charging Manley with assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)) and inflicting corporal injury resulting in traumatic condition on a former cohabitant (§ 273.5, subd. (a)). The information also alleged that in committing both offenses Manley had personally used a deadly weapon (i.e., knife) within the meaning of section 1192.7, subdivision (c)(23), and that in committing the second offense she had personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1). It further alleged she had served two prior prison terms for felony convictions (§§ 667.5, subd. (b), 668).
On June 28, Harris spoke by telephone with Kobulnicky for a second time. He initiated the call, which was transferred to Harris from the alternative public defender's office. He explained he was in jail and had lost his subpoena and was concerned he would not be able to testify at Manley's trial. He stated he had spoken with Manley's defense investigator, who had read him the police report (which was "vague" regarding his statements), and he now wanted to "clarify" matters. Kobulnicky stated that he was going to testify at trial that he was injured when he fell down and that he fell down often.
At trial, the prosecution presented the testimonies of Grosventre, Geilenfeldt, Holmes and Harris, substantially as described above. The prosecution also called Kobulnicky to testify. He testified that Manley was currently his fiancée. On April 3, 2005, he was walking and saw Manley on a bicycle approaching him. Because they had an argument the previous night, Kobulnicky was mad at her and did not want to see her. As he looked toward her, he tripped and fell down hard. His entire body hit the ground horizontally. As he was falling, he saw a three-foot long, "2 x 4" piece of wood that looked like a side post of a flatbed truck. That piece of wood had a piece of sheet metal, which looked like it had been run over, around its bottom six-to-12 inches. When he landed on the ground, he felt a piece of metal go into the skin of his left hip area. It felt like a hard pinch.
Kobulnicky testified that after the incident (but before Manley was charged), he returned to the scene and found the piece of wood. It had a three-inch strip of metal ending in a point that had been peeled back. After Manley was charged, Kobulnicky returned to the scene but could not locate the piece of wood.
Embarrassed because he had fallen, Kobulnicky instantly got back up. He did not realize he had been hurt as seriously as he had been. Several seconds later, Manley approached him on the bicycle, slowed down, and asked to borrow money for food. He told her he did not want to talk to her. She said "all right" and continued on, grazing him with her handlebars (maybe "the hand brake thing," he surmised). He also saw she had an object in her hand that looked like a handle of a knife. A few days later, he first realized that object was a lighter and not something else. He testified: "I didn't know it [was] a lighter at that point . . . because after she started pedaling away, when I looked down, and that's when I . . . saw a lot of blood. And with her handle bars grazing me, I assumed that she had cut me or something." Kobulnicky assumed Manley had cut him and started yelling profanities and accusing her as she rode away. He testified: "The way it looked, like I just assumed it would have been a knife [she cut him with]. But because I felt her handlebars[, ] I know for a fact that her handlebars grazed me [in the same area where he had felt the pinch]." However, as he walked across the street to get assistance, he began to doubt whether Manley had done it. Because he was concerned about the amount of bleeding, he lay down on the sidewalk until a stranger (i.e., Grosventre) arrived and helped him. Kobulnicky testified he first told Grosventre he had fallen down and then "probably told him that I think my girlfriend ha[d] cut me." In speaking with Grosventre, Kobulnicky said he used language like "I think she had done this," or "if she had done this."
Kobulnicky subsequently testified: "I assumed that she had cut me with something."
Kobulnicky testified he could not remember whether he told Grosventre about the piece of wood and the sheet metal, although it was possible he did.
Kobulnicky testified that when paramedics arrived, he told them he had fallen. He denied telling them he was stabbed or giving them any other details (e.g., any reference to the piece of wood with sheet metal attached to it). He could not remember the content of his conversation with the police officer (i.e., Holmes) in the ambulance on the way to the hospital. After Kobulnicky received treatment at the hospital, he spoke with Holmes again. When he told Holmes he had fallen, Holmes replied he had heard differently. However, Kobulnicky never mentioned to Holmes anything about the piece of wood or the sheet metal attached to it. After telling Holmes several times he had fallen, Kobulnicky felt he (Holmes) was not accepting his version. Because Kobulnicky was becoming concerned about possible warrants and being taken to jail, he told Holmes what he thought Holmes wanted to hear so he would leave. He told Holmes that he thought Manley had stabbed him. He also described what he thought was a knife Manley used to cut him (e.g., its three-inch length and its gold-colored handle that, according to Kobulnicky, later turned out to be the lighter). At the time he made those statements to Holmes, Kobulnicky thought it was possible, but unlikely, that Manley had stabbed him with a knife, but he never told Holmes it was unlikely. Although Kobulnicky signed papers Holmes gave him with information for victims of domestic violence, Kobulnicky told him he was not sure whether he wanted to press charges against Manley.
Kobulnicky testified that after he was released from the hospital, he saw Manley within a few days and they resumed their normal relationship. Since the incident, they had spoken only "very vaguely" about the facts of the case and his testimony. He testified he considers Manley to currently be his fiancée and loves her with all his heart. He wishes to marry her in the future.
Kobulnicky also testified he told Jean Dittmyer (an investigator for Manley's defense counsel), defense counsel, the prosecutor, and Harris that Manley was innocent. In particular, he testified initially he was "pretty sure" that during his first telephone conversation with Harris he told her he had fallen, but then he stated he did not "recall that part." He could not "say one way or another if I distinctly remember."
In Manley's defense, Dittmyer testified regarding her June 14, 2005, conversation with Kobulnicky. He told her that he had a prior conversation with Harris in which he stated Manley did not stab him, but he had fallen down. He told Harris he did not want Manley prosecuted. In her (Dittmyer's) conversation with him, Kobulnicky stated he was "coming down off of crystal or drugs" and fell when he was walking. He immediately got back up and then Manley, straddling a bicycle with her feet on the ground, asked him for money for food. When he rejected her request, Manley started to turn the bicycle away and he thought its handlebars grazed him. He told Dittmyer he thought he had fallen on a piece of wood with an attached piece of metal protruding from it.
The jury found Manley guilty of both offenses charged in the information. The jury also found true the information's weapon use allegations. In a bifurcated hearing, Manley admitted the information's prior prison term allegations. The trial court sentenced Manley to a total of four years in prison and granted her 362 days of presentence custody credits. Manley timely filed a notice of appeal.
The court imposed the middle term of three years for count 2 (§ 273.5, subd. (a) offense), plus one year for the related section 12022, subdivision (b)(1) weapon use enhancement. It imposed, but stayed execution of, a three-year middle term for count 1 (§ 245, subd. (a)(1) offense) pursuant to section 654 and struck the prior prison term enhancements pursuant to section 1385.
DISCUSSION
I
Substantial Evidence to Support Convictions
Manley contends the evidence is insufficient to support her convictions of assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)) and inflicting corporal injury resulting in traumatic condition on a former cohabitant (§ 273.5, subd. (a)).
A
When on appeal a defendant challenges his or her conviction for insufficient evidence, we apply the substantial evidence standard of review. "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on the ' "isolated bits of evidence." ' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at p. 314.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 792.) If the circumstances reasonably justify the trier of fact's findings, our opinion that the circumstances might also be reasonably reconciled with a contrary finding does not warrant reversal of the judgment. (Id. at p. 793; People v. Bean (1988) 46 Cal.3d 919, 933; People v. Hillery (1965) 62 Cal.2d 692, 702.)
B
Manley argues the evidence is insufficient to support findings that she intended to stab Kobulnicky and that she used a deadly weapon. Based on our consideration of the whole record, we conclude there is substantial evidence to support a finding that Manley intended to stab (assault) Kobulnicky with a knife. At trial, three witnesses (Grosventre, Geilenfeldt, and Holmes) testified, as described above, Kobulnicky told them shortly after the incident that his girlfriend or ex-girlfriend (Manley) had stabbed him with a knife after they had an argument. That evidence supports a reasonable inference by the jury that Manley intentionally stabbed Kobulnicky with a knife. A defendant's out-of-court statements may constitute substantial evidence to support a conviction even though the defendant later recants those statements. (People v. Cuevas, supra, 12 Cal.4th at pp. 276-277.)
Manley argues the evidence is insufficient to support a finding she intentionally stabbed Kobulnicky because he recanted his prior statements that she had stabbed him and instead stated he had been injured when he tripped and fell on metal protruding from a piece of wood. However, in so doing, she misconstrues and/or misapplies the applicable substantial evidence standard of review. In applying that standard of review, we do not look for substantial evidence that could have supported a contrary finding by the jury, but rather for substantial evidence to support the finding actually made by the jury. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) In the circumstances of this case, the jury could have reasonably concluded Kobulnicky's initial statements were more credible than his subsequent story of falling down because that subsequent story was influenced by and resulted from his love for Manley and his wish to continue his relationship with and marry her. It is not our function as an appellate court to "second-guess" the credibility determinations or reasonable inferences made by the jury from the evidence at trial. Accordingly, we need not disregard, as insubstantial and/or not credible, testimony regarding Kobulnicky's prior extrajudicial statements and instead accept, as true, Kobulnicky's trial testimony that Manley did not stab him, but rather he was injured when he fell. The jury's finding that Manley intentionally stabbed Kobulnicky with a knife was not based on speculation, but rather was reasonably inferred from substantial evidence.
Manley also argues the evidence is insufficient to support a finding she used a deadly weapon in assaulting Kobulnicky. Section 245, subdivision (a)(1) punishes "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." Because a knife is not primarily designed to be used as a weapon in its ordinary use, a knife may nevertheless be found to be a deadly weapon if it is capable of being used in a dangerous or deadly manner and its possessor intended to use it as a weapon under the circumstances. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; People v. Graham (1969) 71 Cal.2d 303, 327-330, overruled on another ground in People v. Ray (1975) 14 Cal.3d 20, 32.) The manner in which an instrument (e.g., a knife) is used may support findings the defendant intended to use it as a weapon and also that it was capable of being used as a deadly weapon. (Aguilar, at p. 1029; Graham, at pp. 327-328; People v. Pruett (1997) 57 Cal.App.4th 77, 85.) The trial court in this case instructed as follows: "A 'deadly weapon' is any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. [¶] 'Great bodily injury' refers to significant or substantial bodily injury or damage; it does not refer to trivial or insignificant injury or moderate harm." (CALJIC No. 9.02.)
Based on our consideration of the whole record in this case, we conclude there is substantial evidence to support the jury's finding that Manley used a deadly weapon in assaulting Kobulnicky. The evidence supports a finding by the jury that Manley used the three-inch fixed-blade knife to stab Kobulnicky in the abdomen after they had an argument. The jury could reasonably infer Manley intended to use the knife as a weapon. Furthermore, Manley's use of the knife in stabbing Kobulnicky in the abdomen also supports a finding she used the knife in such a manner as to be capable of producing, and likely to produce, death or great bodily injury. When Manley stabbed Kobulnicky with the knife, it created a puncture wound about three-fourths of an inch wide in his abdomen, resulting in pain and substantial bleeding and requiring two staples to close it. From the nature of that injury, the jury could reasonably conclude that Kobulnicky suffered great bodily injury and therefore Manley used the knife in a manner capable of producing, and likely to produce, great bodily injury. Kobulnicky's injury was not necessarily trivial, insignificant, or moderate. There is substantial evidence to support Manley's conviction of assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)).
C
Manley also asserts the evidence is insufficient to support her conviction of inflicting corporal injury resulting in traumatic condition on a former cohabitant (§ 273.5, subd. (a)). She argues the evidence is insufficient to support a finding Kobulnicky was her former cohabitant within the meaning of that statute.
Section 273.5, subdivision (a) provides:
"Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, [or] former cohabitant . . . corporal injury resulting in a traumatic condition[] is guilty of a felony . . . ." (Italics added.)
People v. Taylor (2004) 118 Cal.App.4th 11 stated:
"The term 'cohabitant' has been interpreted 'broadly' to refer to those ' "living together in a substantial relationship--one manifested, minimally, by permanence and sexual or amorous intimacy." ' [Citations.] 'The element of "permanence" in the definition refers only to the underlying "substantial relationship," not to the actual living arrangement.' [Citation.] Permanence does not require exclusivity in either the relationship or the living arrangement. [Citation.] '[F]or purposes of criminal liability under section 273.5, a defendant may cohabit simultaneously with two or more people at different locations, during the same time, if he maintains substantial ongoing relationships with each and lives with each for significant periods.' [Citation.]" (Id. at pp. 18-19.)
In this case, the trial court instructed: " 'Cohabiting' means unrelated persons living together in a substantial relationship--one shown at least by permanence and sexual or amorous intimacy. Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not required." (CALJIC No. 9.35.)
Based on our consideration of the whole record, we conclude there is substantial evidence to support the jury's finding that Kobulnicky was Manley's former cohabitant within the meaning of section 273.5, subdivision (a). At trial, Kobulnicky testified he asked Manley to marry him and considered her his fiancée. They met in 2004 and soon began living together in El Cajon. Apparently after about six months, they became homeless. He testified he occasionally said Manley was his ex-girlfriend after they had an argument, but he never meant it. He stated he loved her "with all [his] heart" and wished to marry her in the future. Based on Kobulnicky's trial testimony, the jury could reasonably infer that Kobulnicky and Manley had previously lived together in a substantial relationship manifested by permanence and sexual or amorous intimacy and therefore were former cohabitants within the meaning of section 273.5, subdivision (a). (People v. Taylor, supra, 118 Cal.App.4th at pp. 18-19.)
Manley argues there is insufficient evidence to show she and Kobulnicky had a sexually intimate relationship, noting his testimony did not refer to any sexual intimacy. However, sexual intimacy is not a requirement for cohabitation. Rather, a substantial relationship manifested by permanence and amorous intimacy is sufficient. (CALJIC No. 9.35; People v. Taylor, supra, 118 Cal.App.4th at pp. 18-19.) Based on the record in this case, the jury could reasonably infer from Kobulnicky's testimony that he and Manley had a relationship involving amorous intimacy even though they may not have had a sexually intimate one.
Manley alternatively argues that if section 273.5 is construed to allow a conviction based on any previous live-in relationship of an undefined character, that statute is unconstitutionally vague and overbroad. However, as discussed above, section 273.5, subdivision (a) has not been so interpreted. Furthermore, in this case the jury was correctly instructed on the specific type of relationship required by that statute. (CALJIC No. 9.35.) The court instructed that section 273.5, subdivision (a), required Kobulnicky and Manley to have previously lived together in a substantial relationship--one shown at least by permanence and sexual or amorous intimacy. Neither case law nor the jury instructions given in this case support Manley's theory that section 273.5, subdivision (a), may allow conviction based on an undefined relationship. Manley has not carried her burden on appeal to show that section 273.5 is unconstitutionally vague and overbroad. In any event, courts have held the definition of cohabiting, as given by the trial court in this case, provides a sufficiently definite warning to an offender and guidelines for law enforcement and therefore is not constitutionally invalid. (People v. Holifield (1988) 205 Cal.App.3d 993, 1000; People v. Ballard (1988) 203 Cal.App.3d 311, 318-319.) Manley has not cited, and we are unaware of, any case holding to the contrary. We conclude there is substantial evidence to support Manley's conviction of the section 273.5, subdivision (a) offense.
Manley's speculation regarding other hypothetical relationships does not show either that the definition of a section 273.5, subdivision (a), offense given in this case or the evidence in support thereof was unconstitutionally vague or overbroad.
II
Instructions on Simple Assault and Battery as Lesser Included Offenses
Manley contends the trial court erred by not sua sponte instructing on: (1) simple assault (§ 240) as a lesser included offense of assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)); and (2) battery (§ 242) as a lesser included offense of inflicting corporal injury resulting in traumatic condition on a former cohabitant (§ 273.5, subd. (a)).
A
"In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.]" (People v. Earp (1999) 20 Cal.4th 826, 885.) "That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence the offense was less than that charged. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 154.) Alternatively stated, an instruction on a lesser included offense is not required when the evidence is insufficient to support a conviction of that offense. (People v. Hawkins (1995) 10 Cal.4th 920, 954.) "It is error . . . to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged. [Citation.]" (People v. Stewart (2000) 77 Cal.App.4th 785, 795-796.)
"Any error in instructions on a lesser included offense in a noncapital case is subject to the [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)] standard of review requiring reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of such error. (People v. Breverman, supra, 19 Cal.4th at p. 165.)" (People v. Stewart, supra, 77 Cal.App.4th at p. 796.)
B
Manley argues the evidence was unclear whether the knife she used in stabbing Kobulnicky was a "deadly weapon" within the meaning of section 245, subdivision (a)(1), because he suffered only a "slight" injury and therefore there was substantial evidence to support an instruction on the lesser included offense of simple assault (i.e., assault without a deadly weapon). However, Kobulnicky's injury was not trivial, insignificant, slight, or moderate. Rather, he suffered a puncture wound about three-fourths of an inch wide in his abdomen that caused pain and substantial bleeding and required two staples to close. From the nature of that injury, the jury could reasonably conclude only that Kobulnicky suffered great bodily injury and therefore Manley used the knife in a manner capable of producing, and likely to produce, great bodily injury (i.e., she used a deadly weapon in assaulting Kobulnicky). Based on the evidence in this case, the jury could not reasonably conclude Kobulnicky's injury was trivial, insignificant, slight, or moderate. Accordingly, the nature and extent of his injury does not provide substantial evidence to support an instruction on simple assault as a lesser included offense of assault with a deadly weapon or with force likely to cause great bodily injury.
Manley alternatively argues the trial court erred by not sua sponte instructing on simple assault as a lesser included offense because there was substantial evidence to support a finding Kobulnicky was injured not with a knife, but rather the handlebars of the bicycle when she turned around and grazed his side. However, assuming arguendo there was substantial evidence to support a finding Kobulnicky was injured when the handlebars grazed his side, there is insufficient evidence to support a reasonable inference by the jury that Manley willfully or intentionally, rather than accidentally or recklessly, struck him with the handlebars. Assault requires a willful or intentional act. (People v. Miceli (2002) 104 Cal.App.4th 256, 269 [assault requires a willful act]; In re Smith (1972) 7 Cal.3d 362, 364 [willful is equivalent to intentional].) Recklessness is not sufficient to establish the intent required for an assault. (People v. Smith (1997) 57 Cal.App.4th 1470, 1480.) Based on Kobulnicky's description of how the handlebars of Manley's bicycle "grazed" him, the jury could not reasonably infer Manley willfully or intentionally struck him with the handlebars. Furthermore, the jury could not reasonably infer that Kobulnicky's injury (i.e., puncture wound) was, in fact, caused by the mere "grazing" of his side by the handlebars. We conclude there is insufficient evidence to support a finding that Manley was guilty of simple assault. Therefore, the court did not err by not sua sponte instructing on simple assault (§ 240) as a lesser included offense of assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)(1)). (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Hawkins, supra, 10 Cal.4th at p. 954; People v. Stewart, supra, 77 Cal.App.4th at pp. 795-796.)
In any event, assuming arguendo the trial court erred by not sua sponte instructing on simple assault, we nevertheless conclude it is not reasonably probable Manley would have been convicted of that lesser offense rather than assault with a deadly weapon or with force likely to cause great bodily injury. Without repeating the evidence described above, we conclude the prosecution presented strong evidence showing Manley committed the offense of assault with a deadly weapon or with force likely to cause great bodily injury and, had the trial court instructed on simple assault, it is reasonably probable the jury would nevertheless have convicted her of the greater offense rather than that lesser offense. Furthermore, Manley has made no attempt to show otherwise and instead erroneously cites Chapman v. California (1967) 386 U.S. 18 in her opening brief, presumably assuming it is the People's burden to show the purported instructional error was harmless beyond a reasonable doubt. In so doing, she misconstrues the applicable standard of harmless error and has not carried her burden on appeal to show it is reasonably probable she would have obtained a more favorable result had the court not so erred. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Stewart, supra, 77 Cal.App.4th at p. 796; People v. Watson, supra, 46 Cal.2d at p. 836.)
Although in her reply brief Manley concedes the Chapman standard is inapplicable, she nevertheless does not present any substantive analysis showing why it is reasonably probable she would have obtained a more favorable result had the trial court instructed on simple assault.
C
Manley also argues that because of the "ambiguous description of the relationship" between her and Kobulnicky, there was substantial evidence to support a finding he was not her former cohabitant and therefore she was guilty of only simple battery. Assuming arguendo there may have been substantial evidence to support a finding Kobulnicky was not Manley's former cohabitant, we nevertheless conclude it is not reasonably probable she would have obtained a more favorable result had the trial court instructed on battery as a lesser included offense of inflicting corporal injury resulting in traumatic condition on a former cohabitant. The prosecution presented strong evidence showing Manley committed the offense of inflicting corporal injury resulting in traumatic condition on a former cohabitant and, had the trial court instructed on battery, it is reasonably probable the jury would nevertheless have convicted her of the greater offense rather than that lesser offense. Furthermore, as with her argument regarding an instruction on simple assault, Manley has made no attempt to show otherwise and instead erroneously cites Chapman v. California (1967) 386 U.S. 18 in her opening brief, presumably assuming it is the People's burden to show the purported instructional error was harmless beyond a reasonable doubt. In so doing, she misconstrues the applicable standard of harmless error and has not carried her burden on appeal to show it is reasonably probable she would have obtained a more favorable result had the court not so erred. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Stewart, supra, 77 Cal.App.4th at p. 796; People v. Watson, supra, 46 Cal.2d at p. 836.)
Although in her reply brief Manley concedes the Chapman standard is inapplicable, she nevertheless does not present any substantive analysis showing why it is reasonably probable she would have obtained a more favorable result had the trial court instructed on battery.
III
Brady Contention
Manley contends the prosecutor committed Brady error by not timely producing certain notes of the prosecutor's investigator.
A
"As articulated by the United States Supreme Court in Brady v. Maryland[, supra, ] 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], the prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. (E.g., Kyles v. Whitley (1995) 514 U.S. 419 [115 S.Ct. 1555, 131 L.Ed.2d 490]; In re Ferguson (1971) 5 Cal.3d 525 [96 Cal.Rptr. 594, 487 P.2d 1234.) This constitutional duty is independent of, and to be differentiated from, the statutory duty of the prosecution to disclose information to the defense. (§ 1054; [citation].)" (People v. Bohannon (2000) 82 Cal.App.4th 798, 804, disapproved on another ground in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) The scope of the prosecution's Brady duty to disclose material and exculpatory information to the defense includes information reasonably accessible to the prosecution or, more specifically, "information in the possession of all agencies (to which the prosecution has access) that are part of the criminal justice system, and not solely information 'in the hands of the prosecutor.' [Citation.]" (In re Littlefield (1993) 5 Cal.4th 122, 135.)
"[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87, italics added.) "Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.]" (In re Sassounian (1995) 9 Cal.4th 535, 544.) "Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' [Citations.]" (Strickler v. Greene (1999) 527 U.S. 263, 280, italics added.) "It is a probability assessed by [objectively] considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (Sassounian, at p. 544.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler, at pp. 281-282.) Strickler stated:
"[T]he term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence--that is, to any suppression of so-called 'Brady material'--although, strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Id. at p. 281, italics added.)
Alternatively stated, "[t]he question [of materiality] is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." (Kyles v. Whitley, supra, 514 U.S. at p. 434; Strickler v. Greene, at pp. 289-290.) The defendant must show "that the favorable [undisclosed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles v. Whitley, at p. 435, fn. omitted.)
B
At trial, Harris (the prosecution's paralegal) confirmed she had notes regarding Manley's case, including information regarding her first conversation with Kobulnicky, which she reviewed to refresh her memory. Harris testified Kobulnicky stated during their first conversation that Manley had stabbed him with a small knife after he rejected her request for money for food, but he did not think she really meant to hurt him. Harris testified that during that first conversation Kobulnicky never told her his injury was caused by falling down. Harris then testified regarding their second conversation that occurred a few weeks later after Kobulnicky had spoken with Manley's defense investigator, who had read him the police report regarding the incident. Kobulnicky told Harris the report was "vague" regarding his statements, and he now wanted to "clarify" matters. Kobulnicky stated he was going to testify at trial that he was injured when he fell down and that he fell down often.
On cross-examination, Harris confirmed the notes she brought to court had been prepared after her second conversation with Kobulnicky. She clarified that those notes consisted of an interdepartmental correspondence memorandum she prepared on June 28, 2005, after her second conversation with Kobulnicky. That memorandum discussed both of her conversations with Kobulnicky. She prepared that memorandum because a deputy district attorney told her Manley's counsel wanted a record of her contact with Kobulnicky. Manley's counsel questioned her regarding that memorandum's discussion of the two conversations. When Manley's counsel asked Harris whether she had taken any handwritten notes of her first conversation with Kobulnicky, she stated she had. When asked what happened to those notes, Harris stated they were "[p]robably buried on my desk or in my little case file that I have for my cases."
At about 9:00 a.m. on the following day, outside the jury's presence and before the defense presented its case-in-chief, the prosecutor informed the trial court that Manley's counsel had requested the prosecutor give him the notes Harris testified she had taken regarding her conversations with Kobulnicky. The prosecutor stated that Harris, in response, had spent about one to one-and-a-half hours searching her desk for those notes and found only one piece of paper. Harris realized she had previously shredded three small note pad pieces of paper. The prosecutor further stated: "[W]e took every piece of paper out, and specifically the left-hand side of the file that we don't regularly, but nevertheless pulled out each piece of paper she had written any notes on regarding the case, including progress report notes that are in her handwriting. I provided an entire copy of all those documents we were able to collect. I've given those to [Manley's counsel]." The prosecutor further noted that Manley's counsel might wish to recall Harris to testify (presumably regarding those additional notes), but Harris (at home on telephone standby) would be available only until 10:30 a.m. because she had a flight to Minnesota to visit her ill father.
The trial court inquired whether Manley's counsel had any response to the prosecutor's statements. He replied: "If I can have about 30 seconds to review the packet of Miss Harris'[s] notes. There's just one statement that I'm wondering whether I need to elicit [testimony] or not." After that review, he initially stated he wanted to recall Harris, but then suggested a stipulation regarding information set forth in Harris's notes. However, the court stated: "Well, we're not going to bother Miss Harris this morning. That [information is] cumulative and repetitive of the testimony that she gave yesterday afternoon. There's nothing new there." Manley's counsel replied: "The one new thing is there's stuff [Kobulnicky] wants to be honest about and needs to think about what he wants to say to me. That's different than what [Harris] testified to yesterday." However, the trial court concluded that information was "[n]ot materially different." Manley's counsel replied: "Okay. . . . That would be what I need to call [Harris] for." Manley's counsel then proceeded in presenting the defense case-in-chief.
On September 8, 2005 (after the jury returned its verdict but before sentencing), Manley filed a motion for new trial alleging the prosecution committed Brady error when it did not timely produce all of Harris's notes regarding her conversations with Kobulnicky. She argued:
"M[s]. Harris's notes were clearly material to the trial of this case. They contained her contemporaneous recordation of information being conveyed by Luke Kobulnicky. These notes belie the [p]rosecution's contention at trial that Luke Kobulnicky's recantation of his statement was related in any way to the interview conducted by the defense investigator, since it predated the interview by several days. The notes also contradict Ms. Harris's testimony that Mr. Kobulnicky never told her he fell until June 28, 2005[,] and corroborate Mr. Kobulnicky's testimony on this point. Since the entire case hinged on Mr. Kobulnicky's credibility, any evidence which buttressed that credibility was material. The failure of the government to provide this substantial material evidence which is favorable to the defense violated [Brady] . . . ."
In his declaration in support of the new trial motion, Manley's counsel stated that after the jury retired to deliberate, he "examined [Harris's] notes in greater detail and found more specific notations regarding Mr. Kobulnicky's statements to Ms. Harris. I believe that notations in those notes disclose that Mr. Kobulnicky did tell Ms. Harris that he had fallen in his [first] conversation with her in early June. Had I been provided with these notes prior to my cross-examination of Ms. Harris, I believe I could have impeached her credibility and demonstrated that Mr. Kobulnicky had repeatedly been telling people that [Manley] was innocent of these charges. Inasmuch as [Manley] was convicted solely on the out of court statements of Mr. Kobulnicky, any evidence that would have cast doubt on the prosecution's case would have made a difference at trial."
The prosecution opposed Manley's motion for new trial, arguing it had timely produced Harris's notes (albeit during trial), the substance of those notes was cumulative of and did not conflict with Harris's trial testimony, and Harris's testimony was not the "lynch pin" of the prosecution's case.
At the hearing on Manley's motion for new trial, the prosecutor called Harris to testify. Harris testified regarding her efforts to find additional notes after her trial testimony. She also testified regarding the substance of the additional notes she found. She testified she made handwritten notes on a "DA-12" witness list for the June 13, 2005, preliminary hearing in this case. After the June 13 preliminary hearing, she removed that list from her notebook and placed it on her desk. When she received a telephone call from Kobulnicky on June 28, she began writing notes on that list regarding what he was telling her. Harris testified that those notes showed that on June 28, Kobulnicky told her:
"That the report he had, when he was here in the courthouse for the previous hearing, he had spoken to a defense investigator. And the defense investigator had read him the report and he now wanted to clarify stuff. He agreed with the investigator that he had been vague and he wanted to clarify things with me. And he was going to testify that he fell down and that he had fallen down a lot."
On cross-examination, Harris testified the DA-12 list that included her handwritten notes had been originally printed out on June 2, 2005. That printed list included her handwritten notes from both of her conversations with Kobulnicky (i.e., the June 6 and June 28 conversations). Harris testified regarding those handwritten
"The first one, 'straight into[,] two staples, didn't puncture.' I'm saying that one occurred on the 6th of June. The conversation when he called me from his friend Genna's house, now saying he fell. [¶] If I can point out, there's a yellow sticky that's on the page that begins with [a certain local telephone number]."
Manley's counsel asked: "The other document that you testified to was a result of the conversation of June 28th[?]" Harris replied:
"Right. When Mr. Kobulnick[y] called the second time . . . [a]gain the DA-12s are out on my desk. They['re] readily available. So I grabbed it when he started doing that. I went to, that's when I grabbed it and I started, I needed something else to write on because I knew it was going to be bigger."
Manley's counsel asked:
"So your testimony is that on June 28th, when he called you, you wrote one sentence or one phrase that he said on a document that you had not touched or worked on, written anything on in this case since, at the latest, June 13th. And then you picked up a separate piece of paper and began writing the rest of it; is that right?"
Harris replied: "That's what I'm saying," confirming that the remaining substance of her June 28 conversation with Kobulnicky was reflected in her typewritten progress report (apparently the interdepartmental correspondence memorandum that was produced prior to trial and to which she referred at trial).
Following Harris's testimony at the hearing, Manley's counsel argued that had he received timely production of Harris's additional notes, he could have argued to the jury that those notes showed Kobulnicky told Harris on June 6, 2005, and not June 28, that he was injured when he fell, thereby refuting the prosecution's claim that he changed his story after talking to the defense investigator. Nevertheless, the trial court, without explanation, denied Manley's motion for new trial.
C
Manley argues that because the prosecution did not produce Harris's notes until after her trial testimony, it violated its Brady obligation to timely disclose to the defense information within its custody or control material to, and exculpatory of, the defendant. She argues that had the information been timely disclosed, "Harris'[s] credibility would have been seriously undermined" and "[h]er testimony as to Kobulnicky's failure to assert [Manley's] innocence until after speaking with the defense investigator would have been impeached and--even more importantly--Kobulnicky's testimony concerning his efforts to tell officials of [Manley's] innocence would have been corroborated."
Assuming arguendo the prosecution did not timely disclose Harris's notes as required by Brady, we nevertheless conclude Manley has not carried her appellate burden to show those notes were "material" within the meaning of Brady (i.e., there is a reasonable probability the result of the trial would have been different had those notes been timely disclosed). (Strickler v. Greene, supra, 527 U.S. at pp. 280-281.) Objectively considering the evidence in question under the totality of the relevant circumstances (In re Sassounian, supra, 9 Cal.4th at p. 544), we conclude the impeaching effect of the untimely disclosed notes on Harris's credibility would have been minimal. We presume that had Harris been questioned at trial regarding those notes, she would have testified substantially as she did during the hearing on Manley's posttrial motion for new trial, as described above. Therefore, we presume Harris would have testified at trial that her handwritten note on the June 13, 2005, DA-12 witness list regarding Kobulnicky's statement to her that he was injured when he fell reflected her June 28 (and not her June 6) conversation with him. However, because of the somewhat ambiguous nature of when and how Harris wrote that note on the DA-12 list, we also presume Manley's counsel could have attempted to impeach that testimony by Harris and argued that note was instead written on June 6. In so doing, Manley's counsel could have, as she argues on appeal, provided support for the truth of Kobulnicky's statements (both extrajudicial and at trial) that he was injured when he fell on a piece of wood with attached sheet metal and not by Manley's stabbing him. However, the additional support that would have been provided by that argument was negligible compared with the strong prosecution evidence, including the testimonies of three other prosecution witnesses (Grosventre, Geilenfeldt, and Holmes) who testified Kobulnicky told them he was injured when his girlfriend or ex-girlfriend (Manley) stabbed him with a knife.
To the extent Manley attempts to minimize the persuasive effect of Kobulnicky's statements to those three witnesses as "excited" or "angry" early statements made by him, we conclude that in the circumstances of this case the jury nevertheless likely would have found those early statements made by Kobulnicky were more credible than his later extrajudicial and trial testimony. In particular, the jury would have inferred Kobulnicky was more likely telling the truth in the immediate aftermath of a violent knife attack when he was bleeding and in pain, rather than when he had time to reflect on matters and recant his initial version based, presumably, on his continuing love for Manley and wish that she not be punished. Furthermore, the jury also likely would continue to find "hard to believe" Kobulnicky's "story" about how he was injured by falling on a piece of wood with a piece of sheet metal protruding from it. Manley has not persuaded us there is a reasonable probability the result of the trial would have been different had those notes been timely disclosed. (Strickler v. Greene, supra, 527 U.S. at pp. 280-281.) Alternatively stated, we conclude Manley received a fair trial that resulted in a verdict worthy of confidence. (Kyles v. Whitley, supra, 514 U.S. at p. 434; Strickler, at pp. 289-290.) Manley has not shown "that the favorable [untimely disclosed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles, at p. 435, fn. omitted.) Accordingly, we conclude the prosecution did not commit Brady error when it untimely disclosed Harris's notes.
To the extent Manley argues the Chapman v. California (1967) 386 U.S. 18 standard applies to the materiality element of a Brady violation, she misconstrues applicable case law.
IV
Section 4019 Credits
Manley contends the trial court erred by denying her section 4019 conduct credits for presentencing time she spent in residential treatment programs.
A
Section 2900.5, subdivision (a), provides that defendants shall be entitled to custody credits for time spent in custody prior to being sentenced to prison:
"In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, . . . including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment . . . ." (Italics added.)
Section 4019 provides:
"(b) [F]or each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
"(c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] . . . [¶]
"(f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Italics added.)
"The purpose of . . . section 4019 is to encourage good behavior by incarcerated defendants prior to sentencing. [Citation.]" (People v. Guzman (1995) 40 Cal.App.4th 691, 695.) Section 4019, subdivisions (b) and (c) "make clear that conduct credits are designed to ensure the smooth running of a custodial facility by encouraging prisoners to do required work and to obey the rules and regulations of the facility." (People v. Silva (2003) 114 Cal.App.4th 122, 128.) Some courts have held that defendants who serve time in a residential treatment program prior to sentencing may qualify for work and good conduct credits pursuant to section 4019 or their equivalent under the constitutional right to equal protection. (People v. Downey (2000) 82 Cal.App.4th 899, 920-921 [§ 4019]; People v. Mobley (1983) 139 Cal.App.3d 320, 322-323 [equal protection].)
B
At Manley's sentencing hearing on July 14, 2006, the trial court stated in part:
"[T]his probation hearing and sentencing proceeding has been continued from time to time with the court's indulgence, so to speak, of Miss Manley's circumstances and out of a desire by the court to, in a manner of speaking, try and put the camel through eye of the needle and grant Miss Manley probation, presupposing that the court could, consistent with applicable law and Miss Manley's criminal history and personal circumstances. The court has gone to great lengths and pre-trial services has gone to great lengths, and indeed [Manley's counsel] has invested substantial time and effort as have other individuals and entities on behalf of Miss Manley. And I recognize that when it comes to addiction and substance abuse, it's oftentimes a scenario of two steps forward one step back, another step forward two steps back, three forward and so forward. And I'm understanding of that or at least accepting of that pragmatically as part and parcel of the addiction cycle. But most recently this matter was continued from April 19th to May 19th and then another almost two months to today's date, July 14th. It has been the court's expectation that Miss Manley would involve herself in a long-term residential drug treatment program. And I recognize that her acceptance into Serenity House is subject to certain vagaries, so to speak, beyond the personal control of Miss Manley. But most notably, in the last two months not only has Miss Manley not involved herself in a residential treatment program, she has not met her obligations to the court with respect to abiding by reasonable conditions of her release on her own recognizance in a supervised status. The report of today's date submitted by Mr. Bell is disappointing to the court in terms of Miss Manley's performance over the last couple of months, and moreover as reflected in the attached letter to Mr. Bell on the letterhead of Pegasus East dated July 14th, today's date. And noting from that letter, or excerpting from that letter, since May 16th of this year she has attended treatment groups only 18 times out of a possible 43 or less than half of what was expected and directed. Moreover, since May 16th she's had three drug screenings and has tested positive for morphine, which she attributed that to various pain medications, but notably the tests on May 31st and again on July 10th showed positive for methamphetamine and cannabis. The bottom line, the court has extended itself substantially as noted and arguably has overextended itself, and without any happiness whatever attaching to the court's performance of its obligations consistent with its oath and the law applicable to this case and to Miss Manley, the court now denies probation . . . ." (Italics added.)
After denying probation, the trial court imposed a total term of four years in prison, "with credit for time served of 288 actual plus 74 days of Penal Code section 4019 credits, a total of 362 days custody credit."
The court's calculation of 362 days of presentence custody credits apparently was based on the probation officer's calculation showing Manley had spent 134 days in county jail from May 26, 2005, through October 6, 2005, 124 days in residential treatment programs from October 7, 2005, through February 7, 2006, 13 days in a hospital from February 8, 2006, through February 20, 2006, and 17 days in county jail from February 21, 2006, through March 9, 2006, for a total of 288 actual days in custody. The probation officer's calculation also showed Manley was entitled to 74 days of section 4019 credits, which, when added to her 288 actual days of custody, resulted in total credits of 362 days. Based on those calculations, it is implicit that the probation officer believed Manley should receive section 4019 credits only for the time she spent in county jail (i.e., a total of 151 days).
The record shows that on March 8, 2006, Manley was "released to [an] authorized representative of the Alternate Public Defenders Office[,] . . . to reside with Mr. Smith, and to abide by all house rules. [Manley] to participate in Pegasus East, West, or any in-patient or out-patient program." At a hearing on April 19, the trial court ordered that Manley continue to be released on supervised recognizance and "to be screened for the Pegasus treatment program." She continued to be released on supervised recognizance until the July 14 sentencing hearing.
C
Manley asserts the trial court erred by not awarding her section 4019 credits for presentence time she spent in residential treatment programs and in the hospital. In a somewhat summary and nebulous argument, she apparently argues the court abused its discretion because it did not believe it had the authority to award section 4019 conduct credits to her. She cites the probation officer's comment at the sentencing hearing that Manley "does not get [section] 4019 credits when she's in treatment or in the hospital." The trial court replied: "I understand that . . . ."
Contrary to the People's assertion, because Manley's contention appears to raise a question of law, rather than merely a simple question of mathematical calculations, we conclude she has not waived this contention pursuant to section 1237.1 (or otherwise) by not first raising it in the trial court.
However, we must construe the record favorably to support the judgment and, in so doing, we presume the trial court was aware of and applied relevant law. Accordingly, we presume the trial court was aware of its authority to award section 4019 conduct credits for time spent in residential treatment programs and in hospitals. Nevertheless, the record supports an inference the court was dissatisfied with Manley's performance while in residential treatment programs. Before denying her probation and sentencing her, the court stated that she had failed to enroll in a residential treatment program within the two months prior to her sentencing and had only sporadically attended group treatment sessions. Furthermore, she had tested positive for morphine, methamphetamine, and cannabis. Even Manley's counsel admitted at the hearing that she had "little relapses" and had a "drug problem." The record also supports an inference that Manley's time in residential treatment programs from October 7, 2005, through February 7, 2006, was not satisfactory because she changed from the Crash program to the Bay View program during that period and Mr. Bell presumably reported to the court on Manley's performance while in those programs and the reasons for the change in program. We conclude there is substantial evidence to support the trial court's implicit finding that Manley did not comply with the reasonable rules and regulations of the residential treatment programs and therefore was not entitled to section 4019 conduct credits for the time she spent in those programs. (Cf. People v. Smith (1979) 98 Cal.App.3d 793, 800 [no § 4019 credits because of bad conduct while in jail].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.