Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF113101B Richard J. Oberholzer, Judge.
Cynthia A. Thomas, 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 Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Rowland Pena was convicted of second degree murder for the death of Mario Maya, Jr. On appeal, he contends (1) the trial court improperly discouraged the jurors from exercising their right to have testimony read back; (2) insufficient evidence supported the personal use enhancement; (3) the trial court erred by failing to instruct on unanimity regarding the personal use enhancement; (4) the reasonable doubt instruction violated his due process rights; and (5) he is entitled to additional custody credits. We will affirm the judgment and direct the superior court to modify the abstract of judgment by adding 11 days of custody credit.
PROCEDURAL SUMMARY
On April 3, 2006, the Kern County District Attorney charged defendant (Rowland) and codefendants Daniel Pena (Daniel) and Jessie Meza with murder (Pen. Code, § 187, subd. (a); count 1) and residential burglary (§ 460, subd. (a); count 2). As to Rowland only, both counts alleged he personally used a deadly weapon, to wit, a knife (§ 12022, subd. (b)(1)).
All statutory references are to the Penal Code unless otherwise noted.
Rowland was tried jointly with Daniel. Count 2 was dismissed in the interest of justice, but the jury found Rowland guilty of second degree murder on count 1 and found true the personal use allegation. The court sentenced Rowland to 16 years to life in prison.
Jessie Meza negotiated a plea.
FACTS
On the evening of December 27, 2005, Daniel and his cohort were beat up in a fight. They immediately went to get Daniel’s brother, Rowland, and returned to the neighborhood for retribution. Apparently believing Mario Maya, Jr. had been involved in the earlier fight, they went to his house. Mario’s uncle, Alejandro, and his stepson were in the front yard. Both Daniel and Rowland were carrying stick-and-knife weapons. Daniel waved the weapon, then he and Rowland used the weapons to break Mario’s window and fight Mario and Alejandro through the window. Mario came into the front yard and fought with Daniel. During the struggle, Daniel stabbed Mario repeatedly. As that struggle occurred, Mario’s younger brother, Jesse, approached the scene with a kitchen knife. Rowland stopped him when he came up to Jesse and threatened him with the stick-and-knife weapon. But just as Rowland prepared to swing the weapon, Jesse stabbed him with the kitchen knife. As others approached, Jesse ran away. Mario’s aunt, Elizabeth, was hitting Daniel with a mop and broom, trying to remove him from Mario. Rowland approached her and told her Mario had “jumped” his brother. When she told Rowland that Mario had not jumped anyone, he looked shocked. He pulled Daniel off Mario and they ran to their vehicle and sped away. The entire incident at the Maya residence lasted only a few minutes. Mario died at the hospital that evening from stab wounds. He was 20 years old.
DISCUSSION
I. Instruction Regarding Readback of Testimony
Rowland contends the trial court engaged in improper jury coercion by discouraging the jurors from exercising their right under section 1138 to have testimony read back to them. We reject this contention.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
Prior to opening statements and the presentation of evidence, the court instructed the jury regarding notetaking and readback of testimony, in relevant part, as follows:
“All of you have been given notepads and pencils. I’ll tell you a little bit about the use of those. You may take notes during this trial…. You’ll be able to use notes during your deliberations and take them back to the jury room for use in your deliberations. [¶] A word of caution; you may take notes; however, you should not permit note taking to distract you from the ongoing proceedings. Remember, you are the judges of the believability of the witnesses. Further, notes are only an aid to memory and should not take precedence over independent recollection. And the juror who does not take notes should rely upon his or her independent recollection of the evidence and not be influenced by the fact that other jurors do take notes.
“Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence. That means you put on that pad whatever helps refresh your recollection -- if it’s words, numbers, or pictures -- because you’re the only one that can consult with it at the end of the trial. If you get back in the jury room, you find somebody wasn’t paying attention, you can’t pull out your pad and say, ‘I have it written right here,’ because your pads are not official record. The official record is the reporter’s transcript.
“If somebody wasn’t paying attention during the trial, you have to ask for a readback. It takes us 45 minutes to set up the courtroom for readback. And the reason it takes so long is that while you’re back there deliberating, I will be starting a new trial. After that we’ll have new parties in here and … I will be using the same reporter. And it’s not going to be this reporter because this reporter is about to leave us, and I’m going to [be] getting another reporter Monday. We’ll have a new reporter starting Monday.
“I will be using that reporter then straight through on the next trial also. So if you need readback, we have to stop that proceeding, clear the courtroom of those people, those jurors. We’ve got to bring these parties back, bring you back in the courtroom, and she has to look it up in her notes, find out where it was -- where it was you need the readback, and the reporter will take the witness stand and read it back to you.
“Now, the reason I mention that to you is we don’t like to have to do readback because it’s kind of disruptive. But the only way that we can be assured of not doing that is that you pay very close attention during the trial. I can tell you the trial is going to go one or two or three days, and this one undoubtedly is going to do that.
“There are boring parts to this trial. It’s not like a TV program. They give you only the interesting stuff. So it gets boring, and sometimes you lose a little bit of concentration. I always like to tell jurors when you find yourself drifting off a little bit, start taking notes. It will kind of wake you up, get you back into the thing again. Because sure enough, when we relax a little bit, something will come in that somebody will think important and you’ll get back in the jury room and say, ‘Gee, I don’t remember that.’ So I’ll just give you that to help you out a little bit. It will speed up your deliberations also if you don’t have to ask for readback.”
At the conclusion of the trial, the court instructed the jury with CALCRIM No. 202, as follows:
“You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations but only to remind yourself of what happened during the trial. Remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at the trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations and not your notes.”
The jury did not request any readbacks of testimony during its deliberations.
“Pursuant to section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of section 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial conducted ‘“substantially [in] accord[ance with] law.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1007.)
Here, the court accurately informed the jury that readbacks of testimony involve delay and can disrupt other court proceedings; it never indicated that requests for readbacks would not be honored. (Cf. People v. Hillhouse (2002) 27 Cal.4th 469, 506 [merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion].) A fair reading of the court’s comments is that the court was recommending notetaking as one way to help individual jurors keep their attention engaged during the trial. Although the court suggested that readbacks necessitated solely by juror inattention might be avoided by notetaking, the court still made clear that if the jurors needed a readback, they would be accommodated. Moreover, at the end of trial, the court clearly informed the jurors, this time without mention of delay or disruption, that they should ask for a readback and rely on the testimony rather than their notes in case of a disagreement. Rowland has not shown the court’s comments here amounted to impermissible jury coercion or otherwise violated the jury’s or Rowland’s right to have the jury provided with readbacks of testimony on request.
II. Sufficiency of the Evidence -- Personal Use Enhancement
Rowland argues the evidence is insufficient as a matter of law to prove he personally used a deadly weapon pursuant to section 12022, subdivision (b)(1), because there was evidence establishing that Daniel was the one who actually stabbed Mario. We reject this contention because there was substantial evidence Rowland used a weapon even if he did not stab Mario.
In assessing the sufficiency of the evidence to support the finding on a personal use enhancement “we are guided by the standard rules on sufficiency of the evidence in a criminal case.” (People v. Howard (1995) 33 Cal.App.4th 1407, 1417.) Thus, we review the entire record in the light most favorable to the prosecution, drawing all reasonable inferences in support of the judgment, to determine whether the record contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the elements of the enhancement beyond a reasonable doubt. (People v. Bolden (2002) 29 Cal.4th 515, 553; People v. Alvarez (1996) 14 Cal.4th 155, 225.) “In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]” (People v. Little (2004) 115 Cal.App.4th 766, 771.) Instead, we look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. [Citations.]” (People v. Alvarez, supra, at p. 225.)
Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, “‘“‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bradford, supra, at p. 1329; People v. Panah, supra, at p. 488.)
Section 12022, subdivision (b)(1), states in pertinent part: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony … shall be punished by an additional and consecutive term of imprisonment in the state prison for one year ….” “In order to find ‘true’ a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. [Citations.]” (People v. Wims (1995) 10 Cal.4th 293, 302-303, italics added, overruled on another groundin People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
As noted in Wims, supra, 10 Cal.4th at pages 302 through 303, the jury instruction for section 12022, subdivision (b) was adapted from section 1203.06, subdivision (b)(2), which defines “use” as follows: “‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it ….”
“‘Although the use of a [weapon] connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a [weapon] in aiding the commission of [a crime]. ‘Use’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’ [Citation.]’” (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, 1001.) The legislative intent to deter weapon use in the commission of crimes requires that “use” be broadly construed. (People v. Chambers (1972) 7 Cal.3d 666, 672.)
Thus, weapon use encompasses more than the technical commission of the criminal act against the actual victim of that act -- for example, it includes acts other than firing the fatal shot during a murder or taking the money during a robbery, and it includes victims other than the actual murder victim or robbery victim -- as long as the weapon use occurs in the commission of the crime. (People v. Fierro (1991) 1 Cal.4th 173, 226 [after robbing one victim without using his gun, defendant shot the victim’s companion to facilitate his escape or to prevent his identification; personal use enhancement sustained as to robbery victim].) Accordingly, “a defendant uses a [weapon] ‘in the commission’ of a crime when he or she employs the [weapon] to neutralize the victim’s companions, bystanders, or other persons who might otherwise interfere with the successful completion of the crime.” (People v. Granado (1996) 49 Cal.App.4th 317, 330.)
Furthermore, when there are multiple defendants who are each armed and engaged in the same criminal enterprise, a defendant who personally uses a weapon during one segment of a series of related offenses -- such as by holding one victim at bay while an accomplice perpetrates a crime against another victim -- is properly subjected to weapon use enhancements for those offenses he has merely aided and abetted. (See People v. Berry (1993) 17 Cal.App.4th 332, 335-339 and cases collected therein; People v. Johnson (1974) 38 Cal.App.3d 1, 10-12.) For example, in People v. Johnson, supra, 38 Cal.App.3d 1, both defendants (Johnson and Kelly) personally held a gun, but only Johnson shot the victim. On appeal, Kelly claimed he did not personally use a gun in the victim’s murder. The court stated: “Although Kelly did not personally fire the shot which killed [the victim], he personally used a revolver in the series of joint offenses. Section 12022.5 penalizes those who use firearms in the commission of the listed crimes. A weapon is used within the meaning of section 12022.5 not only when it is fired, but when it is pointed at a victim to enforce a demand. [Citation.] A person commits a crime when he aids and abets it. [Citation.] Johnson and Kelly committed three joint crimes in the liquor store holdup, including the murder of [the victim]. Even though Kelly did not personally shoot [the victim], he used a pistol in his commission of [the victim’s] murder. He is liable to the added penalty with reference to the murder of [the victim], even though he did not do the actual shooting.” (Id. at pp. 12-13.)
Similarly, in People v. Berry, supra, 17 Cal.App.4th 332, the defendant was convicted of murder with a firearm use enhancement, although it was the codefendant who shot the murder victim. The court concluded firearm use includes “a situation where the defendant is armed and uses his firearm in furtherance of a series of related offenses that culminates in a fatal or near fatal shooting even though the defendant does not personally fire the actual shot.” (Id. at p. 335.) The court explained: “[The defendant] went to the [victims’] house for the purpose of committing robbery. He was armed and used his gun in the course of the robbery to shoot at the two victims who survived. His codefendant shot and killed [the murder victim] during the robbery. We conclude that under these facts [the defendant’s] use of a firearm was part of a related series of crimes and therefore use was established for purposes of Penal Code section 12022.5.” (Id. at p. 339.)
And in In re Antonio R. (1990) 226 Cal.App.3d 476, the defendant fired into a crowd, eliciting return gunfire that killed his girlfriend. It was undisputed that the defendant did not fire the fatal shot. He was convicted of murder with a firearm use enhancement. On appeal, he argued the statute did not apply to him because he did not personally shoot the victim. The court stated: “The obvious purpose of section 12022.5 is to discourage the use of firearms in criminal activity. Had the Legislature meant to exclude from its provisions one who is only vicariously liable, it could easily have done so…. As we read the statute, one who commits an act which renders him criminally liable, whether directly or vicariously, is subject to the section 12022.5 enhancement if he personally uses a firearm during that act.” (In re Antonio R., supra, at p. 479.)
In the present case, there was substantial evidence Rowland personally used the weapon in the commission of a related series of crimes for the purpose of facilitating Daniel’s attack on Mario. When Daniel and Rowland arrived at the Maya residence, Rowland got out of the truck and waved his weapon at Alejandro and his stepson, who were still outside. Daniel and Rowland were armed with similar stick-and-knife weapons by the time they reached the window. Daniel and Rowland used the weapons to break Mario’s window and to attack Mario and Alejandro through the window. Mario came outside, most likely through the window, and fought with Daniel. Daniel stabbed Mario repeatedly. At some point, Rowland approached them as they fought. He may or may not have stabbed Mario. When Jesse appeared with a kitchen knife, intending to protect his family from the attackers, Rowland approached Jesse with the stick-and-knife weapon. As Rowland prepared to swing it, Jesse stabbed him with the kitchen knife, then ran away as others approached.
There was testimony that two men were fighting with Mario.
In sum, throughout the incident, Rowland was carrying and had ready access to his weapon to assist Daniel in the commission of Mario’s murder. Rowland first brandished his weapon at Alejandro and his stepson. Then he used the weapon to fight with Mario and Alejandro through the broken window. Finally, he used it to fight off Jesse and prevent him from defending Mario. There is no doubt that Rowland’s use of the weapon -- whether or not he actually stabbed Mario -- aided Daniel in the commission of the crime. Thus, Rowland’s use of the weapon was instrumental in Mario’s murder, a crime for which Rowland was convicted. Substantial evidence supported the weapon use enhancement.
III. Unanimity Instruction on Personal Use Enhancement
Rowland maintains that the trial court was obligated to instruct on unanimity regarding the personal use enhancement because the prosecutor relied on alternative factual theories to support the enhancement and failed to elect one of those theories.
We first reject Rowland’s argument that the jurors might have relied on his mere possession rather than his actual use of the weapon. The instructions informed the jurors they were required to determine whether Rowland used the weapon, not whether he possessed it. Furthermore, the instructions defined “use.” There is no possibility the jurors, despite being so instructed, agreed instead that Rowland was merely armed. To find the personal use allegation true, the jurors had to conclude that during the murder Rowland himself intentionally displayed in a menacing manner or struck someone with the knife. (People v. Wims, supra, 10 Cal.4th at pp. 302-303.)
The issue of unanimity that we believe Rowland intends to raise is this: there were multiple acts of Rowland’s weapon use upon which the jurors might have relied in finding the enhancement true. We agree there was evidence that Rowland used the knife to threaten Alejandro and Alejandro’s stepson, to fight Mario and Alejandro through the window, to stab Mario, and to deter Jesse from coming to Mario’s defense.
A defendant is entitled to a verdict in which all 12 jurors concur beyond a reasonable doubt as to each count charged. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Maury (2003) 30 Cal.4th 342, 423.) A unanimity instruction “‘focuses the jury’s attention on a specific act and requires the jury to determine guilt as to that act beyond a reasonable doubt.’ [Citation.] The rule is limited by its rationale: ‘A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’ [Citation.] The same reasoning should, in general, apply to enhancements as well as the crimes that underlie them.” (People v. Robbins (1989) 209 Cal.App.3d 261, 264-265.)
“‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (People v. Russo, supra, 25 Cal.4th at p. 1132.)
In this case, assuming the trial court should have given a unanimity instruction to inform the jurors they were required to agree on one act of Rowland’s knife use, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Wolfe (2003) 114 Cal.App.4th 177, 188.) Rowland’s argument at trial was that he never had a knife at all. The jury’s true finding on the enhancement demonstrates the jurors rejected that defense and determined Rowland did in fact have a knife that he used in some manner. The evidence that Rowland used the knife to stab Mario was relatively weak, but the evidence that Rowland threatened and diverted Jesse with a knife was essentially undisputed. Therefore, while it is possible, or even likely, that the jurors did not unanimously agree Rowland stabbed Mario, it is simply inconceivable that they did not unanimously agree Rowland intentionally displayed a knife in a menacing manner when he approached Jesse and attempted to divert or dispose of him. On this record, there can be no reasonable doubt that the jury would have reached the same finding on the enhancement had it been given a unanimity instruction. Consequently, any error in failing to give the instruction was harmless beyond a reasonable doubt.
For example, Elizabeth testified that Rowland was the only person fighting with Mario, but that testimony was contradicted repeatedly. On the other hand, Jesse’s testimony that Rowland approached him with the knife was uncontradicted.
IV. CALCRIM No. 220
Rowland argues CALCRIM No. 220, the reasonable doubt instruction, violated his due process rights because it prevented the jurors from considering the lack of evidence, rather than the evidence received at trial, in determining whether reasonable doubt existed as to his guilt.
The jury was instructed with CALCRIM No. 220, as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with the crime, or brought to trial. The defendant in the criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime and special allegation beyond a reasonable doubt. “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s’] guilt beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty.” (Italics added.)
In determining the correctness of jury instructions, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood the jury misconstrued or misapplied its words. (People v. Frye, supra, 18 Cal.4th at p. 957.)
Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. (People v. Simpson (1954) 43 Cal.2d 553, 566.) The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty,” is that a lack of evidence could lead to reasonable doubt. Contrary to Rowland’s claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise from the evidence. The jury was likely “to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt ... must be based on a review of the evidence presented.” (People v. Hawkins (1995) 10 Cal.4th 920, 963, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110; see also People v. Rios (2007) 151 Cal.App.4th 1154, 1157.)
Rowland relies on Simpson and on People v. McCullough (1979) 100 Cal.App.3d 169, which cites Simpson. These cases are inapposite. In Simpson, the defendant argued that the trial court’s instruction on reasonable doubt had shifted the burden to him to prove his innocence. The trial court instructed: “‘The term “reasonable doubt,” as used in these instructions, means a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence.’” (People v. Simpson, supra, 43 Cal.2d at p. 565, fns. omitted.) The court held this language was “not necessary” and “could have been confusing” because “reasonable doubt ... may well grow out of the lack of evidence in the case as well as the evidence adduced.” (Id. at p. 566.) Similarly, in McCullough, the court determined a supplemental instruction stating the doubt must arise from the evidence to be erroneous. (People v. McCullough, supra, at p. 182.)
Here, unlike in Simpson or McCullough, the instruction did not tell the jury the reasonable doubt had to arise out of the evidence in the case. It merely said the jury was to consider all of the evidence presented. We see no error.
V. Custody Credit
Rowland contends he is entitled to receive an additional 11 days of custody credit. It appears Rowland was sentenced on August 17, 2006, and the restitution hearing was held on August 28, 2006. Accordingly, the superior court is ordered to amend the abstract of judgment to reflect 11 additional days of custody credits. (§ 2900.5.)
We take judicial notice of the reporter’s transcript of the restitution hearing, dated August 28, 2006.
DISPOSITION
The judgment is affirmed with directions to the superior court clerk to (1) prepare an amended abstract of judgment reflecting 11 additional days of custody credit, and (2) forward it to the Department of Corrections.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.