Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF159507. Patrick J. O’Hara, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
After Norteños and Sureños exchanged gang taunts at a swap meet in Visalia, witnesses observed brothers Ismael and Sergio Mejia flashing hand signs, yelling “Reyes” (the Spanish name of a subset of the Sureño gang), and firing guns right before one bullet just missed Norteño Isaac Tobias and another bullet struck Tobias’s friend Noel Chavez in the right buttock.
Solely in the interests of brevity and clarity, later references to brothers Ismael and Sergio Mejia will be by first names only. No disrespect is intended.
At a joint trial with Sergio, a jury found Ismael guilty of (1) attempted willful, deliberate, and premeditated murder of Chavez for the benefit of a criminal street gang with personal and intentional discharge of a firearm by a principal causing great bodily injury, (2) assault with a firearm on Chavez for the benefit of a criminal street gang, and (3) possession of a controlled substance (methamphetamine). (Health & Saf. Code, § 11377, subd. (a); Pen. Code, §§ 186.22, subd. (b), 187, subd. (a), 189, 245, subd. (a)(2), 664, subd. (a), 12022.53, subds. (d), (e)(1).)
Later statutory references are to the Penal Code except where otherwise noted.
At Ismael’s probation and sentencing hearing, the trial court imposed (1) a life with possibility of parole term for the attempted willful, deliberate, and premeditated murder of Chavez plus a consecutive 25-to-life term on the firearm enhancement and (2) imposed and stayed an aggregate eight-year term (the three-year midterm plus a consecutive five-year term on the criminal street gang enhancement) for the assault with a firearm on Chavez, and (3) imposed the two-year midterm concurrently for the possession of a controlled substance.
The text merges the correct portions of the sentence with the changes the parties agree, and we concur, require a limited remand for the issuance of an amended abstract of judgment. (Post, parts 5-6.)
On appeal from the original judgment, Ismael argued several issues, one of which was the trial court’s failure to hold a Marsden hearing at the probation and sentencing hearing. On that ground, we reversed the judgment, remanded the matter for a hearing and other proceedings as authorized by law, and in deference to the doctrine of ripeness addressed none of his other issues. (People v. Ismael Mejia (Feb. 5, 2008, F051804) [nonpub. opn.].) We reserved to the parties on appeal from any ensuing judgment the right to incorporate by reference the briefing on file for later adjudication of those issues together with new issues, if any, arising from proceedings after remand. (Ibid.; see Cal. Rules of Court, rule 1.5(a).) After holding a Marsden hearing and denying his Marsden motion on remand, the trial court reaffirmed the original judgment and sentence nunc pro tunc. We now address the issues formerly not ripe together with a single new issue.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
ISSUES
On appeal from the new judgment, Ismael argues six issues from his original briefing and one new issue arising after remand. First, he argues an insufficiency of the element of specific intent of the criminal street gang enhancements is in the record. Second, he argues the admission into evidence of Chavez’s police interview was confrontation clause error that the trial court later exacerbated by instructional error. Third, he argues CALCRIM Nos. 220 and 222 violated due process by limiting jury consideration to the evidence admitted at trial and precluding jury consideration of the absence of evidence the jury might logically have expected in the prosecution’s case. Fourth, he argues CALCRIM No. 370 impermissibly lowered the burden of proof by allowing a guilty verdict solely on the basis of motive and by implying he had a duty to show he was not guilty.
Fifth, Ismael argues the trial court should have imposed an indeterminate term of life with the possibility of parole, rather than an indeterminate term of seven years to life, on the attempted deliberated and premeditated murder of Chavez. Sixth, he argues the trial court should have awarded credits for 230 actual days in custody before the probation and sentencing hearing of September 28, 2006, plus 34 days of 15 percent presentence conduct credits, for a total of 264 days. Seventh, he argues the trial court should have awarded presentence custody credits equal to the number of actual days he was in custody before his probation and sentencing hearing of June 26, 2008.
We will order a limited remand with directions to issue an amended abstract of judgment showing (1) an indeterminate term of life with the possibility of parole, rather than an indeterminate term of seven years to life, on the attempted deliberated and premeditated murder of Chavez and (2) an award of credits for 230 actual days in custody before the probation and sentencing hearing of September 28, 2006, plus 34 days of 15 percent presentence conduct credits, for a total of 264 days. Otherwise we will affirm the judgment.
DISCUSSION
1. Sufficiency of the Evidence
Ismael argues an insufficiency of the element of specific intent of the criminal street gang enhancements is in the record. The Attorney General argues the contrary.
Before analyzing the authorities on which the parties rely, we will summarize relevant portions of the record. Elias Rodriguez went to the swap meet with his friends Noel Chavez, Ascension Rojas, Isaac Tobias, and Xavier Villegas. Rojas and Tobias were Norteños. Chavez and Villegas were not gang members. Rodriguez heard Sergio and Tobias yell “Reyes” (“Like kings in Spanish”), the name of their Sureño gang. Sureños claim the color blue, Norteños claim the color red, and the gangs fight each other.
Walking so close to Ismael and Sergio he could have touched them, Tobias started a confrontation by saying “like what are you telling my friends, like, stuff.” Sergio tried to pull his weapon out of his pocket but pulled the trigger instead. A shot fired. A bullet hit the ground near Tobias and his friends. Chavez, Rodriguez, Rojas, and Villegas took off running. Ismael and Tobias kept arguing. Looking back, Rodriguez saw Ismael and Sergio both pull out black guns, point at them, and fire shots. Both guns looked like automatics, not revolvers. About nine shots were fired in all. Tobias chased Ismael and Sergio as Rodriguez, Rojas, and Villegas went back to help Chavez, who lay bloodied on the ground.
Maria Michels, the operator of a booth at the swap meet, saw four or five “young kids” who were “doing hand signals” and “exchanging guns” chase “some young man” who was running by himself. She heard two shots and saw the young man who was running by himself start “limping, dragging his leg,” after getting shot.
A Norteño since the seventh grade, Tobias had a four-dot gang tattoo on his hand. He characterized the swap meet as “everyone’s” and “not everyone’s,” a place where he and his friends go “to see who actually runs it, basically. More of a voice for one day. Sometimes there’s more of them. Sometimes you get caught in the act.” He saw Ismael wearing blue, the color Sureños back, which automatically made him a target. Norteños wear sunglasses a certain way, and Sureños wear sunglasses another way. Tobias and his friends were all “essentially in red,” which “made it even more obvious that’s who we are.” Red is the color Norteños back.
When Ismael saw Tobias, he “could see Norteño.” Standing eight or nine feet away from each other, Tobias and Ismael made eye contact and exchanged words with each other, knowing they were members of rival gangs. Tobias said, “NSV,” for North Side Visa, identifying his gang and his city. Ismael said “South Side something.”
At that moment, wearing blue and giving off a Sureño vibe, Sergio walked up to Tobias with his hand in his pocket. Tobias asked Sergio if he was “going to pull out something, pull out a knife or gun,” and told Ismael to stand back. A shot rang out from inside Sergio’s pocket. Dust rose from the ground a foot away from Tobias. Tobias and his friends dodged away in different directions. From a distance of 20 or 30 yards, Tobias saw Ismael and Sergio running toward his friends and then saw Ismael open fire. He heard more than three shots.
At trial, Chavez asserted he had no association with any gang but admitted he had problems with members of Norteño and Sureño gangs alike. He denied any memory of the events both at the swap meet and at the hospital afterward. At the hospital after the shooting, however, Chavez had told a detective he and Villegas saw two guys wearing blue who “started looking at us, for no reason, and they go, ‘what’s up’ and there we said ‘nothin’ and then [one of the guys] goes you know ‘so what do you bang?,’ ‘don’t bang nothing,’ ‘loco park or loco parks’ or something like that.” One of the guys “threw up some L, and I guess a P,” which were hand signs. Chavez told him “we don’t bang.” As the guy “reached in his pocket,” Chavez and Villegas “backed up a little bit,” and the guy “just fired a round off in his pocket.” As Chavez “took off running,” the other guy ran after him and shot him. Chavez told the detective at the hospital he did not bang at all.
With no objection, Detective Jon Hamlin qualified as a gang expert. Norteños claim Northern California as their turf, Sureños claim Southern California as their turf, and Tulare County is the dividing line between the two. The initials “NSV” stand for North Side Visa, a clique of the Norteño gang, and the initials “LP” stand for “Local Park,” a clique of the Sureño gang. Both Ismael and Sergio were Local Park members. North Side Visa and Local Park both claim Visalia as their turf.
On March 21, 2001, Sergio admitted to another detective he was a Sureño gang member. In the company of another gang member at the time, he wore a blue belt with a metal buckle bearing the letter “S” and showed four inches of blue underwear. On November 25, 2001, a sheriff’s deputy made contact with Sergio during a traffic stop. In the company of several other gang members at the time, he admitted association with Sureños but denied membership. On another date, Sergio admitted to another detective not only that he was a Sureño gang member but also that he hung out with other Sureños and backed Sureño friends in fights. The detective observed three-dot gang tattoos on both of Sergio’s elbows and on the knuckles and web of both of his hands. Like hand signs with a finger of one hand up and three fingers of the other hand up, those tattoos signify the number 13, which stands for the letter M, which is the 13th letter of the alphabet and the nickname of the Sureños gang in prison.
Through Detective Hamlin, the prosecutor introduced evidence of two predicate crimes. In one, Local Park member Jimmy Lopez was convicted of felony vandalism with a criminal street gang enhancement for writing “LP,” “LP3,” “Local Park,” “Sur,” and “13” in blue and black spray paint and for crossing out the word “Norte” with blue spray paint in a public park on March 15, 2004. In the other, Local Park member Albert Meek was convicted of murder and attempted murder, both with criminal street gang and firearm enhancements, for crimes committed with a hail of bullets immediately after someone yelled “get that Buster” – a derogatory Sureño term for a Norteño – on May 5, 2004.
With reference to the charged crimes of February 12, 2006, Detective Hamlin articulated criteria identifying both Ismael and Sergio as criminal street gang members including gang attire, gang signs, association with another gang member, commission of the crimes with the gang, and admission of gang membership in a custodial facility. The life of a criminal street gang member housed in jail with opposing criminal street gang members is in jeopardy, so gang members have the motivation to be truthful about gang affiliations at the time of booking.
The prosecutor posed to Detective Hamlin as a hypothetical the facts of the swap meet shooting including wearing blue clothing, flashing gang signs, exchanging stares with a Norteño wearing red, possessing a weapon, and firing shots at Chavez and Tobias in the presence of lots of members of the general public. Those facts, the detective opined, showed the “brazenness” of “gang members” “able” and “willing” to commit the crimes “out in the open,” not only “instill[ing] fear in the general public” but also gaining Ismael and Sergio “notoriety within the gang.” In that way, he opined, the facts in the hypothetical would be for the benefit of, at the direction of, or in association with a criminal street gang and would promote, further, and assist Ismael and Sergio specifically or criminal street gang members generally in criminal conduct.
Our duty on a sufficiency of the evidence challenge in a criminal street gang prosecution, as in any other, is not only to “‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt’” but also to “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1329 (Martinez).) Only by a clear showing that “‘“on no hypothesis whatever is there sufficient substantial evidence to support the verdict”’” will a conviction be reversed. (Ibid.) The same showing is necessary even if the conviction is based largely on circumstantial evidence. (Ibid.)
Ismael analogizes his case to People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099 (Garcia). In Albarran, where the “prosecution did not prove that this gang evidence had a bearing on the issues of intent and motive,” there were “‘no permissible inferences’” that the jury could draw, so the evidence was “‘“of such quality as necessarily prevent[ed] a fair trial.”’” (Albarran, at p. 230.) Here, the contrary is true. The prosecution established the relevance of the gang evidence to the issue of specific intent, so there were permissible inferences the jury could (and did) draw. “Evidence of the defendant’s gang affiliation – including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049, italics added.)
In Garcia, the Ninth Circuit granted a petition for writ of habeas corpus on the ground of an insufficiency of the evidence of the defendant’s “specific intent to facilitate other criminal conduct” by a criminal street gang. (Garcia, 395 F.3d at p. 1103, italics added.) The statute, however, plainly requires a showing of specific intent to promote, further, or assist in “any criminal conduct by gang members,” not in any other criminal conduct by gang members. (§ 186.22, subd. (b), italics added.) Intermediate level federal cases are persuasive, but not binding, in a state law matter. (See People v. Burnett (2003) 110 Cal.App.4th 868, 882.) Only if a state supreme court interpretation of state law “is untenable or amounts to a subterfuge to avoid federal review of a constitutional violation” do intermediate level federal cases not defer to the state supreme court. (See Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399.) “‘In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is “‘convincing evidence that the highest court of the state would decide differently.”’” (Owen ex rel. Owen v. United States (9th Cir. 1983) 713 F.2d 1461, 1464; see also In re Watts (9th Cir. 2002) 298 F.3d 1077, 1082-1083.) In light of those authorities, we decline to follow Garcia’s contrary interpretation of section 186.22, subdivision (b). (See People v. Hill (2006) 142 Cal.App.4th 770, 773-774; People v. Romero (2006) 140 Cal.App.4th 15, 18-19.)
Ismael also analogizes his case to In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) and People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez). As we noted in Frank S., a gang expert cannot testify as to a defendant’s specific intent in the commission of a crime. (Frank S., at p. 1197, citing People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley); People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658.) Apart from a gang expert’s improper opinion about specific intent in Frank S., only “weak inferences and hypotheticals show[ed] the minor had a gang-related purpose for the knife,” so we reversed the judgment as to the criminal street gang enhancement. (Frank S., at p. 1199.) Here, on the other hand, abundant evidence identifies Ismael and Sergio as gang members who brazenly committed the crimes out in the open, gaining notoriety within the gang and instilling fear in the general public, and who flashed hand signs and exchanged guns just before Chavez was shot, allowing the jury to properly draw permissible inferences about specific intent.
In Ferraez, the gang expert’s testimony was “circumstantial evidence,” which “alone would not have been sufficient” to withstand appellate review, but which was adequate together with “other evidence from which the jury could reasonably infer the crime was gang related” to defeat the defendant’s sufficiency of the evidence challenge. (Ferraez, supra, 112 Cal.App.4th at pp. 930-931.) Here, Detective Hamlin’s testimony to hypothetical facts that were adequately “rooted in facts shown by the evidence” (Gardeley, supra, 14 Cal.4th at p. 618), together with other gang evidence in the record, defeat Ismael’s sufficiency of the evidence challenge. Our examination of the whole record in the light most favorable to the judgment, together with our presumption in support of the judgment of the existence of every fact the trier could reasonably deduce from the evidence, persuade us Ismael fails to make the requisite clear showing that “‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict.’” (Martinez, supra, 158 Cal.App.4th at p. 1329; People v. Ortiz (1997) 57 Cal.App.4th 480, 484-485; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382-1385.)
2. Admission of Police Interview
Ismael argues the admission into evidence of Chavez’s police interview was confrontation clause error that the trial court later exacerbated by instructional error. The Attorney General argues the contrary.
After Chavez underwent surgery on the day of the shooting, Detective Hamlin interviewed him at the hospital. Asked if he could “remember the whole thing,” Chavez answered in the affirmative. Asked if he could recognize his assailants if he were to see them again, he again replied in the affirmative. At both the preliminary hearing and trial, however, he testified he remembered nothing about being shot or about talking with the police afterward. On the basis of his personal experience with Chavez and his review of Chavez’s medical records, the attending surgeon testified Chavez made no complaints of memory loss.
After an off-the-record discussion in chambers before jury selection, the prosecutor promptly noted for the record she had made defense counsel aware of how Chavez was “still apparently claiming amnesia” and of how she intended “to deal with that.” Days later, at a colloquy out of the presence of the jury, defense counsel stated, “I’ll object to the tape because I believe she’s going to use it for impeachment and all the guy ever said was he doesn’t remember.” Citing United States v. Owens (1988) 484 U.S. 554 (Owens) and People v. Moreno (1973) 32 Cal.App.3d Supp. 1 (Moreno), the prosecutor argued that “when you talk about someone having selective amnesia then [his or her] prior inconsistent statements come in.”
In Owens, the United States Supreme Court held the confrontation clause does not bar the admission of testimony about an out-of-court identification “when the identifying witness is unable, because of memory loss, to explain the basis for the identification.” (Owens, supra, 484 U.S. at pp. 555-556.) The confrontation clause guarantees only an opportunity for effective cross-examination, the high court said, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (Id. at p. 559.) In Moreno, a prosecution for resisting an officer, an eyewitness took the stand “but then was quite evasive and apparently suffered from a selective amnesia,” so the trial court let an officer testify the eyewitness said defendant “‘provoked the incident and the police officer did nothing to provoke it.’” (Moreno, supra, 32 Cal.App.3d Supp. at p. 4.) Characterizing the eyewitness’s “‘I don’t remembers’” as “the typically evasive, equivocal and apparently mendacious declarations of a witness who has changed his mind,” the appellate department held the trial court was “justified in considering them ‘implied denials’” of the officer’s testimony. (Id. at p. 6.)
Here, the trial court allowed the prosecutor to play the recording to the jury but deferred a ruling on whether to admit the recording into evidence until the defense cross-examined Detective Hamlin. Afterward, the prosecutor renewed her request that the recording be admitted into evidence. “Any objection?,” the trial court inquired. Ismael’s and Sergio’s trial attorneys both replied in the negative. The trial court granted the request.
In general, as Ismael acknowledges, a ruling admitting a prior statement under those circumstances is an implied finding the witness’s claimed lack of memory is evasive and untruthful. (See People v. Ervin (2000) 22 Cal.4th 48, 84, quoting People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 [“When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper.”].) Even so, he argues that if “the record proves the court made no such finding, then such an inference cannot be drawn on appeal.”
In the sole authority on which Ismael relies for that argument, People v. Simmons (1981) 123 Cal.App.3d 677 (Simmons), a witness’s statements that he made before he “suffered a serious injury to his head requiring hospitalization” and causing “presumably genuine and completely nonvolitional” amnesia were admitted into evidence. (Id. at pp. 680-681.) On those facts, Simmons held the statements statutorily inadmissible, since there was no inconsistency with his amnesia, and constitutionally offensive, since there was no cross-examination to satisfy the confrontation clause. (Id. at p. 682.) For two reasons, Simmons offers Ismael no refuge from the general rule. First, the express finding of genuine amnesia in Simmons is inapposite to the implicit finding of inconsistency from the evasive and selective amnesia here. Second, “Simmons is not of any precedential value as it predates the controlling case of United States v. Owens.” (People v. Gunder (2007) 151 Cal.App.4th 412, 419, fn. 7.) Since the record shows no confrontation clause error, we do not reach Ismael’s derivative argument that instructional error exacerbated the confrontation clause error.
Finally, we reject out of hand Ismael’s argument that his trial attorney’s failure to object to the admission into evidence of the recording showed ineffective assistance of counsel. The law neither does nor requires idle acts. (Civ. Code, § 3532.) An attorney has no duty to make a futile objection. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
3. CALCRIM No. 220 and 222
Ismael argues CALCRIM Nos. 220 and 222 violated due process by limiting jury consideration to the evidence admitted at trial and precluding jury consideration of the absence of evidence the jury might logically have expected in the prosecution’s case. The Attorney General argues the contrary.
Numerous cases published after the filing of the appellant’s opening brief have rejected Ismael’s argument. (See, e.g., People v. Zavala (2008) 168 Cal.App.4th 772, 780-781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1505-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) He cites to, and we are aware of, no published case agreeing with his argument. We consider the issue settled, incorporate by reference the reasoning of the numerous published cases, and reject his argument. In the appellant’s reply brief, he emphasizes the California Supreme Court and the federal courts have not yet addressed his argument. Duly noted.
4. CALCRIM No. 370
Ismael argues CALCRIM No. 370 impermissibly lowered the burden of proof by allowing a guilty verdict solely on the basis of motive and by implying he had a duty to show he was not guilty. The Attorney General argues the contrary.
After the filing of the appellant’s opening brief, two published cases rejected Ismael’s argument. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1192-1193 (Ibarra); People v. Anderson (2007) 152 Cal.App.4th 919, 942-943 (Anderson).) He cites to, and we are aware of, no published case agreeing with his argument.
With reference to Ismael’s argument that the instruction implied he had a duty to show he was not guilty, he presumably refers to the last two sentences of the instruction, which state, respectively, that having a motive may tend to show the defendant is guilty and not having a motive may tend to show the defendant is not guilty. CALCRIM No. 370 instructs on motive, however, not on burden of proof. Elsewhere the charge to the jury instructed that the defendant is presumed innocent, that the defendant does not have to prove he or she is not guilty, and that the prosecution has the burden of proof beyond a reasonable doubt. (CALCRIM No. 100, 220.) Our duty is to look at the instructions as a whole, not in isolation. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) So read, CALCRIM No. 370 did not erroneously shift the burden of proof. (Ibarra, supra, 156 Cal.App.4th at p. 1193; Anderson, supra, 152 Cal.App.4th at p. 942.)
With reference to Ismael’s argument that the instruction allowed a guilty verdict solely on the basis of motive, the instruction belies his argument by informing the jury that motive “may be a factor tending to show that the defendant is guilty.” (CALCRIM No. 370, italics added.) “‘Saying motive is a factor that may tend to prove guilt is a far cry from saying it is a factor that alone may prove guilt. The fact that evidence tends to prove guilt merely establishes its relevance on the issue.’” (Ibarra, supra, 156 Cal.App.4th at p. 1193, quoting Anderson, supra, 152 Cal.App.4th at p. 943.) Jurors are presumed able to correlate, follow, and understand the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) On the charge to the jury here, there is no reasonable likelihood that the jury misunderstood CALCRIM No. 370. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 Cal.4th 629, 663.)
5. Indeterminate Sentence
Ismael argues, the Attorney General agrees, and we concur the trial court should have imposed an indeterminate term of life with the possibility of parole, rather than an indeterminate term of seven years to life, on the attempted deliberated and premeditated murder of Chavez. (§ 664, subd. (a).) We will order a limited remand for appropriate amendment of the abstract of judgment.
6. Presentence Conduct Credits: Original Sentencing
Ismael acknowledges that on his concurrent determinate two-year term for possession of a controlled substance the trial court awarded credits for 230 actual days in custody before the probation and sentencing hearing of September 28, 2006, plus 114 days of presentence conduct credits, for a total of 344 days. (§ 4019.) He argues that on his indeterminate life term for attempted willful, deliberate, and premeditated murder the trial court should have awarded credits for 230 actual days in custody before the probation and sentencing hearing of September 28, 2006, plus 34 days of presentence conduct credits, for a total of 264 days. (§ 2933.1, subd. (c).) The Attorney General argues the award of 230 actual days in custody is correct but the award of 114 days of presentence conduct credits is incorrect and amendment of the abstract of judgment is necessary to substitute an award of 34 days of presentence conduct credits for a total of 264 days as to all of the offenses in the judgment. We agree with the Attorney General.
“Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” (§ 2933.1, subd. (c).) The designated subdivision specifies “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5.” (§ 2933.1, subd. (a).) The designated statute lists, inter alia, attempted murder. (§ 667.5, subd. (c)(12).)
“‘A period of presentence confinement is indivisibly attributable to all of the offenses with which the prisoner is charged and of which he is eventually convicted.’” (In re Phelon (2005) 132 Cal.App.4th 1214, 1220 (Phelon), quoting In re Reeves (2005) 35 Cal.4th 765, 775 (Reeves).) “‘In other words, [section 2933.1,] subdivision (c) explains that its limitation on presentence credit takes effect only when a person who has served “an actual period of [presentence] confinement” (§ 2933.1[, subd.] (c)) becomes, by subsequent conviction of a violent offense in a proceeding to which the presentence custody is attributable, a “person specified in subdivision (a)” (§ 2933.1[, subd.] (c), italics added), namely, a “person who is convicted of a [violent] felony offense” (§ 2933.1[, subd.] (a)).” (Phelon, supra, at p. 1220, quoting Reeves, supra, at p. 776.)
“It is often said that the 15 percent cap applies to the offender, not the offense; thus, the 15 percent limit applies to each offense of a defendant’s entire prison term if any of the offenses for which he is sent to prison is violent.” (People v. Nunez (2008) 167 Cal.App.4th 761, 765.) The 15 percent limit “applies to the offender, not the offense,” so the rule “applies with equal force to consecutive and concurrent sentences.” (Id. at p. 768.) The distinctions Ismael seeks to draw between presentence custody credits on his concurrent determinate two-year term for possession of a controlled substance and on his indeterminate life term for attempted willful, deliberate, and premeditated murder are spurious. We will order a limited remand for appropriate amendment of the abstract of judgment.
7. Presentence Custody Credits: Sentencing After Remand
Ismael argues the trial court should have awarded presentence custody credits equal to the number of actual days he was in custody before his probation and sentencing hearing of June 26, 2008. The Attorney General argues the contrary.
Ismael relies primarily on Ex Parte James (1952) 38 Cal.2d 302 (James) and section 2900.1. In James, the Supreme Courtgranted a petition for writ of habeas corpus, discharged petitioner from custody in San Quentin, where he was serving a first degree murder sentence after his conviction on a plea of guilty without the assistance of counsel, and committed him to the custody of the Fresno County Sheriff for prosecution on no greater charge than manslaughter. (Id. at pp. 304, 314.) “If petitioner were convicted of manslaughter on a second trial,” the court observed, “his confinement based upon the invalid 1944 judgment, together with any time credits for good conduct earned thereon (Pen. Code, § 2920), would be credited upon the new sentence for the same criminal act. (Pen. Code, § 2900.1.)” (Id. at p. 314.) By the terms of the latter statute, “Where a defendant has served any portion of his sentence under commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.” (Italics added.)
Here, our opinion reversed the judgment and ordered a remand solely for “the trial court to hold a Marsden hearing, hear Ismael’s reasons for his dissatisfaction with his counsel, and on that basis exercise judicial discretion to appoint new counsel to represent him on a motion for new trial, to reinstate the judgment, or to proceed otherwise as authorized by law.” (People v. Ismael Mejia (Feb. 5, 2008, F051804) [nonpub. opn.].) On remand, after holding a Marsden hearing and denying his Marsden motion, the trial court reaffirmed the original judgment and sentence nunc pro tunc. So James and section 2900.1 are inapposite. Ismael has no right to presentence custody credits equal to the number of actual days he was in custody before his probation and sentencing hearing of June 26, 2008. (Cf. People v. Johnson (2004) 32 Cal.4th 260, 263, and authorities cited.)
DISPOSITION
The matter is remanded with directions to issue an amended abstract of judgment showing (1) an indeterminate term of life with the possibility of parole, rather than an indeterminate term of seven years to life, on the attempted deliberated and premeditated murder of Chavez and (2) a single award of credits for 230 actual days in custody before the probation and sentencing hearing of September 28, 2006, plus 34 days of presentence conduct credits, for a total of 264 days as to all of the offenses in the judgment. Otherwise the judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Dawson, J.