Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Dewey Falcone, Judge, Los Angeles County Super. Ct. No. VA088878
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
After the jury deadlocked in appellant Nestor Pozo’s first trial, a second jury convicted him of second degree murder and found true the allegations that he personally used a deadly weapon and the murder was committed for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a); 12022, subd. (b)(1); 186.22, subd. (b)(1)(C).)
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to 15 years to life for the murder and a consecutive year for the weapon-use enhancement. Appellant’s total sentence is 16 years to life.
Appellant appeals on the grounds that: (1) the trial court committed prejudicial error under federal constitutional and state law in failing to instruct sua sponte on imperfect self-defense as an alternative theory for voluntary manslaughter, and (2) the trial court committed jurisdictional sentencing error in failing to award an additional day of actual presentence credit and in adjusting credits when it recalled the sentence.
FACTS
I. Prosecution Evidence
On May 7, 2005, at approximately 11:30 a.m., Sandra Gaspar (Gaspar) and her boyfriend, Filiberto Ramirez (Ramirez), were accompanying Gaspar’s friend Rayna to her apartment. As the three entered Rayna’s apartment complex, Gaspar saw appellant standing against a wall with another man. She knew appellant because he had tried to date her roommate. He and a friend had also tried to jump Ramirez and take his bike three days before the stabbing. Gaspar knew appellant to be a member of the King Kobras gang, and he was known as “Gizmo” and “Sleepy.” Gaspar, who was 27 at the time of trial, said she joined the Playboys gang when she was 14 but was no longer affiliated with the gang. Ramirez “kind of claimed Playboys.” He would do things with the Playboys, but he was not a hard-core member. Rayna’s apartment complex was not claimed by either King Kobras or the Playboys.
Upon seeing Ramirez and his companions, appellant yelled out, “King Kobras, fool” and rushed at Ramirez. Ramirez responded by rushing at appellant. Gaspar tried to pull Ramirez back by his shirt because she saw that appellant had some kind of weapon. The weapon was approximately six and one-half to seven inches long and was a knife or an ice pick -- Gaspar could not see it clearly and was not sure. Appellant and Ramirez began fighting. The other man with appellant joined in the fight by jumping on Ramirez’s back.
Gaspar did not see a weapon on the other man, and she began to hit him on his back. Gaspar saw appellant run away, and she at first ran after him. She stopped and looked back at Ramirez and saw him fall. While appellant was running away, Gaspar did not see his hands. Gaspar did not actually see appellant stab Ramirez. Appellant’s companion left by entering an apartment.
When Gaspar went back to Ramirez, she had a knife in her hand that someone had given her, and she remembered throwing it away. Gaspar did not remember when the knife was given to her, but she did not use it against anyone.
Gaspar tried to revive Ramirez, who woke up, spoke unintelligibly, and threw some punches. Gaspar helped Ramirez go on foot to her apartment. He was bleeding and said he was sleepy. Gaspar called paramedics, who took Ramirez to the hospital. He died three days later, on May 10, 2005. The cause of death was a stab wound to the head that measured three and three-quarter inches in depth and that penetrated the skull and brain. Ramirez suffered two additional stab wounds -- one to the neck and another to the abdomen. All the wounds went from the front to the back of the body and were made by the same weapon.
In the coroner’s opinion, the weapon used on Ramirez was a very sharp single-edged knife measuring between two and five-eighths inches and three and three-quarters inches in length. The knife could have been from 15/16ths of an inch to one inch in width and could have been slightly curved.
Officer Jose Acosta responded to a call about a fight and proceeded to Gaspar’s house. Police found Gaspar very distraught, and Ramirez was bleeding profusely from the chest and neck area. Gaspar told Officer Acosta that Ramirez was stabbed by Gizmo or Sleepy in the King Kobras gang. She told him that three days earlier there had been a fight involving Ramirez, Gizmo, and someone named Looney of the King Kobras gang. She said that Ramirez was stabbed with “a long, dark, approximately ten-inch, sharp object.”
Blanca Serrano (Serrano) knew appellant as a member of King Kobras with the moniker “Sleepy,” and she identified him in court. She knew him only as a friend and had never dated him. On the morning of the stabbing she arrived home at approximately 12:00 or 12:30 and was surprised to find appellant in her room after not having seen him for two years. When she asked him why he was there, he said he was just visiting. Serrano saw that appellant had scratches under his eyelid and on his nose. Appellant told her he was in a fight about his neighborhood. Appellant said he had been losing the fight, but then “he got him clean.” Appellant said he had got rid of something, but Serrano did not remember what it was. Appellant told Serrano that Fernie, or Fernando, was also in the fight. Appellant left at approximately 3:00 p.m. after Serrano told him he had to leave.
Detective Rigo Barrios of the Bell Gardens Police Department was one of the first officers to respond to the fight scene. He saw blood on the ground and a blood trail. He found an embroidered cross on the ground near the blood drops. At approximately 4:00 p.m., after resuming his regular patrol, Detective Barrios encountered appellant walking across the street a block from Serrano’s home on Spect Avenue. Detective Barrios called out to appellant. He knew appellant, and appellant had told him he was from Varrio King Kobras. Appellant was usually accompanied by his homeboys. Appellant stopped and Detective Barrios waited for backup before contacting him. He saw fresh scratches on appellant’s knee and eyes. He searched appellant for weapons and found none.
Officer Efren Aguirre of the Bell Gardens Police Department advised appellant of his Miranda rights and spoke to him in jail that evening. Appellant denied being in a fight that day. He said he had been at his girlfriend Blanca’s house between 10:00 a.m. and 4:00 p.m. Officer Aguirre showed appellant the threaded cross found at the fight scene and asked him if it was his. Appellant said it was and his friend had made it for him. Appellant had admitted his gang membership to Officer Aguirre numerous times. Officer Aguirre knew that appellant had gang tattoos and often was stopped with other King Kobra members. Officer Aguirre tried to find Fernando Olvera (Olvera) but was unsuccessful.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Detective Gary Sica was assigned to investigate Ramirez’s death. He testified at appellant’s trial that the knife found in the area of the crime scene was one and one-half inches in width at a spot three inches down from the tip of the blade.
The testimony of Officer Angel Puente, an unavailable witness, was read to the jury. He booked appellant’s shoes into evidence and the shoes were later analyzed in the police lab. He stated that Olvera was a King Kobras member with the moniker of “Little Grumpy.”
The parties stipulated that police at the crime scene found a kitchen knife, 13 inches in length, near the carports. An examination revealed no fingerprints or blood evidence. The parties also stipulated that the sheriff’s crime lab examined appellant’s shoe and found four blood dots, which were sampled and sent for DNA analysis.
Michelle Madrid, a criminalist with the Los Angeles County Sheriff’s Department, received DNA swabs from blood spots on appellant’s shoes. She also received a reference sample of DNA from Ramirez. The swab from the stain on the right sneaker gave a partial DNA profile consistent with a mixture of at least two individuals. The major contributor was consistent with Ramirez’s DNA profile. Madrid calculated that only one in 84,000 unrelated individuals would have DNA consistent with the blood on the shoe. Appellant was not included as a contributor to any of the samples from the shoe. There was not enough information to include or exclude him.
Officer Rene Ruiz of the Bell Gardens Police Department testified as a gang expert. He explained how one joins a gang and the important concept of respect to an average gang member. He explained that committing crimes enhanced a gang member’s reputation. The gang’s reputation was also enhanced because people fear them. He explained that gangs were extremely territorial and used graffiti to mark their territories. Gangs are willing to kill each other over blocks, alleys, and buildings.
Officer Ruiz was familiar with the King Kobras in Bell Gardens and their graffiti and hand signs. The Playboys and King Kobras border each other and do not get along. They fight over territory. At the time of the stabbing, the apartment complex where it occurred was claimed by the Playboys, but it was claimed by the King Kobras at the time of trial, partly because of the stabbing of Ramirez. King Kobra’s graffiti is inside the complex itself. Officer Ruiz saw appellant often and appellant never denied his gang membership. At the time of the stabbing, Olvera had recently joined King Kobras.
The primary activities of the King Kobra gang include murders, assaults with deadly weapons, carjackings, sales of narcotics, and witness intimidation. Officer Ruiz testified regarding convictions of three other King Kobra members. When given a hypothetical with the facts of the instant case, Officer Ruiz was of the opinion that the crime was committed in furtherance of the King Kobras gang.
II. Defense Evidence
Appellant testified that he was a member of the King Kobras with the moniker of Sleepy. He knew Olvera as a neighbor, and Olvera’s grandmother lived in the apartment complex where the stabbing occurred. On the day of the stabbing, appellant was at the complex waiting for Olvera to come out of his grandmother’s home. They had gone to her apartment to pick up some shoes.
Appellant did not see Ramirez and Gaspar approach because he was attacked from behind. He started fighting the attackers and he stumbled and fell. The fight went on for three or four minutes. He did not stab his attacker or kill him. His attacker finally let him go. Appellant saw him bleeding and stumbling before the man turned and fell. Appellant was shocked. Gaspar ran toward him with something in her hand, and appellant just ran.
Appellant went to Serrano’s house where her brother let him in. He used the restroom to wash up, and he stayed there for three hours. Serrano was mistaken about the things she claimed he told her. He had some drops of blood on him, and his eyebrow piercing was “busted.” He got rid of the basketball shirt he wore during the fight by dumping it in the trash because the blood drops would create attention and that was most likely what “they were going to describe.”
Appellant said he did not want to go home because he knew police were going to come to his house. He was walking home when Detective Barrios stopped him. He did not run because he “had no sign of guilt.” He told police he had been at Serrano’s house all day because they were pressuring him and telling him he was going to do “like six life sentences.”
Appellant acknowledged giving police false names in the past. He did this because he had warrants most of the times he was stopped, “just for violating probation.” He did not know that Ramirez was a member of Playboys. He was not holding any weapon when Ramirez and Gaspar appeared, and he did not yell “King Kobras.” Appellant said it is a sign of disrespect when someone from another gang walks through your neighborhood. He admitted having a fight with Ramirez, but he did not stab or kill him and he did not know who did. He did not see anyone else entering the fight.
Appellant said he was not claiming any type of self-defense because he did not do anything. He defended himself against Ramirez but he did not use a weapon to do so. He acknowledged that he sometimes carried guns or knives when he went into rival gang territory for self-defense. He admitted wearing multiple shirts so that he could strip off the top shirt when running from police. Appellant acknowledged that Gaspar and Serrano were risking their lives by testifying.
III. Rebuttal
Officer Angelo Sinisi, Detective Rigo Barrios, and Officer Christopher Bedok testified to contacts they had with appellant when he had given a false name. Detective Barrios recounted how appellant wore different clothes at the end of a chase because he had shed a shirt and pants. The clothing appellant had taken off were found nearby. Appellant had a folding knife on him that had a blade measuring three and one-half inches long.
DISCUSSION
I. Failure to Instruct on Imperfect Self-Defense/Voluntary Manslaughter
A. Appellant’s Argument
Appellant contends that the trial court was obligated to instruct sua sponte on voluntary manslaughter based on imperfect self-defense. According to appellant, the trial court’s failure to so instruct was error because there was considerable evidence that appellant overreacted to the sight of someone trying to hand a knife to Ramirez or Gaspar during the fist fight, and that appellant killed the victim in the actual but unreasonable belief he would be stabbed himself if he did not take action first. Appellant maintains it is irrelevant that his theory of defense was that Olvera did the stabbing. Appellant contends the error was prejudicial, and it violated his federal constitutional right to due process.
B. Proceedings Below
During the discussion of proposed jury instructions, the prosecutor asked the court whether it wished to instruct on voluntary manslaughter or if the defense wanted a voluntary manslaughter instruction. The court believed it should give voluntary manslaughter but noted that defense counsel did not. Defense counsel stated that in order to give a voluntary manslaughter instruction there had to be testimony from his client that he killed the victim, even accidentally, and his client denied doing that. Defense counsel said he would not object, however, to voluntary manslaughter based on heat of passion. Counsel understood that because, as the court pointed out, there was a group of people fighting, the trial court should give the instruction out of an abundance of caution.
Later in the discussion, the prosecution proposed giving an instruction explaining when an aggressor may use self-defense against a victim. The defense objected because it dealt with facts that “don’t exist in our evidence.” The prosecutor replied that if appellant was the initial aggressor he had the right to exercise self-defense only under the limited circumstances spelled out in the instruction. If the circumstances did not exist, appellant could not claim self-defense. Defense counsel replied, “Except we’re not claiming self-defense; and so it’s irrelevant.” The court asked, “You’re not claiming self-defense? I’ve got an instruction of self-defense, don’t I.” Defense counsel explained that the instruction he requested was about the victim having a right to defend himself. “We’re not claiming that Mr. Pozo stabbed anybody, never mind that he stabbed somebody in self-defense.” The prosecutor argued that the instruction on sudden quarrel/heat of passion should not be given in this case. Defense counsel replied that if the jury accepted the People’s theory that his client stabbed Ramirez, they had a right to accept the theory that he did that in the heat of passion.
C. Relevant Authority
Voluntary manslaughter is a lesser included offense of murder. (People v. Lasko (2000) 23 Cal.4th 101, 106.) A defendant is guilty of voluntary manslaughter when he commits an unlawful killing either with intent to kill or with conscious disregard for life but lacks malice, either because (1) he acts in unreasonable self-defense or (2) the killing results from a sudden quarrel or heat of passion. (Id. at p. 108; People v. Blakely (2000) 23 Cal.4th 82, 87-88.) Regardless of the relative strength of the evidence supporting convictions of lesser included offenses, the trial court is obliged to give sua sponte instruction on all theories of lesser included offenses that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 159-160, 162 (Breverman).) “In a murder case, this means that both heat of passion and unreasonable self-defense, as forms of voluntary manslaughter, must be presented to the jury if both have substantial evidentiary support.” (Id. at p. 160.) The trial court’s sua sponte duty arises even if the defendant objects to the instruction and regardless of the defendant’s theory of defense or trial tactics. (Id. at p. 162; People v. Barton (1995) 12 Cal.4th 186, 200-201 (Barton).)
In determining whether substantial evidence exists to support an instruction on a lesser included offense, trial courts should not usurp the jury’s function of evaluating the credibility of witnesses. (Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence is “‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Ibid.) If the evidence in support of a jury instruction on a lesser included offense is minimal and insubstantial, the trial court need not instruct on its effects. (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.) “Speculation is insufficient to require the giving of an instruction on a lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174; see also People v. Koontz (2002) 27 Cal.4th 1041, 1085.) “On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.” (People v. Cole (2004) 33 Cal.4th 1158, 1215; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017 (Sinclair).)
Voluntary manslaughter premised on unreasonable or imperfect self-defense is found where the defendant “actually but unreasonably believe[s] he was in imminent danger of death or great bodily injury . . . .” (In re Christian S. (1994) 7 Cal.4th 768, 783.) If the belief in the need to defend subjectively exists but is objectively unreasonable, the defendant is deemed to have acted without malice and may be convicted of voluntary manslaughter rather than murder. (Ibid.)
D. Trial Court Did Not Err
Appellant cites various portions of the trial testimony in support of his claim that unreasonable self-defense instructions should have been given. He points out that Gaspar testified that someone handed her a knife, but her testimony was inconsistent as to when she was handed the knife. In the preliminary hearing she first said she was handed the weapon while the fight was going on but later said that appellant was running away when she got the knife. On direct examination at trial, she could not remember when she was handed the knife. She then said she thought she got it after she had stopped punching Olvera.
According to appellant, the jury might not have been able to rule out that Gaspar was handed the knife during the fight, and that appellant might have felt he needed to stab Ramirez before Ramirez himself obtained the knife. Appellant points out that he did not use a knife when the fight began but rather engaged in a fist fight with Ramirez. The jury could have reasonably inferred that appellant grabbed the knife and used it against Ramirez before running off.
Appellant asserts it is easy to see how someone who believed he was involved in a fair fist fight might overreact when seeing a knife in the hands of his opponent or someone on his opponent’s side. In such a scenario, the jury could have found defendant guilty of imperfect self-defense by finding he actually but unreasonably believed in the need to defend himself from imminent death or great bodily injury. Such a verdict, appellant claims, would not be remarkable because juries have often rejected murder in favor of voluntary manslaughter based on imperfect self-defense when the facts show a fight that got out of hand.
We disagree with appellant’s premise. Under the circumstances of this case, there was no substantial evidence to support giving the jury an instruction on unreasonable self-defense. Although Breverman holds that the trial court’s sua sponte duty arises regardless of the defendant’s theory of defense, appellant significantly did not make any attempt to argue that he acted in self-defense, reasonable or otherwise. (Breverman, supra, 19 Cal.4th at p. 154.) Appellant relied entirely on the theory that he was not the stabber. His testimony was a complete denial, as was his statement to police, which the jury heard by means of Officer Aguirre’s testimony. As a result, even though appellant testified, there was no evidence of the required state of mind necessary to support self-defense instructions.
In People v. Viramontes (2001) 93 Cal.App.4th 1256 (Viramontes), cited by appellant, the appellate court found that the trial court erred in refusing to instruct on imperfect self-defense. (Id. at p. 1259.) In that case, however, the trial court instructed the jury on self-defense and refused to give an instruction on unreasonable self-defense merely because it believed that if the defendant shot the victim out of fear, his fear was patently reasonable under the facts of that case. (Id. at p. 1262.) For one thing, there was a hole in the defendant’s jacket showing that he had been the target of a bullet. (Ibid.) The appellate court found that the evidence supported instruction on both self-defense and imperfect self-defense because an analysis of the evidence led to the conclusion that the true circumstances of the shooting were uncertain. (Id. at p. 1263.)
In the instant case, unlike in Viramontes, there was no evidence from any witness, including appellant, of appellant’s actual belief in the need to defend against imminent peril. As stated in Viramontes, “[t]he subjective elements of [perfect] self-defense and imperfect self-defense are identical.” (Viramontes, supra, 93 Cal.App.4th at p. 1262.) “To require instruction on either theory, there must be evidence from which the jury could find that appellant actually had such a belief.” (Ibid.) In other words, if a jury finds a defendant had an actual belief in the need to defend against imminent peril, the jury turns to an assessment of the reasonableness of the belief in order to choose between self-defense and imperfect self-defense. (Ibid.) In this case, there was no evidence appellant had an actual belief in the need to defend himself in order to justify an instruction on imperfect (or perfect) self-defense.
Appellant’s claim of substantial evidence seems to rest on the fact that Gaspar was given a knife at some point and the jury could have believed appellant saw it and feared he would be stabbed. However, appellant denied that he saw any weapons at all in Gaspar’s hand until the fight was over. Appellant claimed he was attacked from behind. He fought the attackers for three or four minutes, did not stab anyone, and his attacker merely let him go. He testified that he was not claiming self-defense because he did not do anything. The prosecution’s evidence showed that appellant charged Ramirez after calling out his gang’s name. Gaspar tried to pull Ramirez back when he also charged because Gaspar saw that appellant had a weapon. As appellant and Ramirez began fighting appellant’s friend jumped on Ramirez’s back. When Gaspar began hitting the other man, appellant ran away. Ramirez had already been stabbed, because when Gaspar turned back to him he was falling. Gaspar said she realized she had a knife in her hands at the moment when she stopped running after appellant and went back to see Ramirez. She could not have had it when she was pummeling appellant’s friend on the back.
In closing argument, defense counsel made every attempt to cast doubt on the accuracy and credibility of Gaspar’s evidence and to disperse the taint of the gang evidence by arguing that it applied equally to the other participants. Defense counsel said explicitly that the stabber was Olvera. With respect to the heat-of-passion voluntary manslaughter instruction, defense counsel said “I have to get up and talk to you about both of those because those are options that you have . . . I have to because of the way it’s charged.” He cautioned the jury, “If you don’t find him not guilty of the murder, you don’t go to the manslaughter.” Counsel stated, “[Appellant] is not arguing he did anything in self-defense. He is saying to you I didn’t stab him. I got in a fight with him. I ran. . . . I know they are going to come looking for me no matter what, but I didn’t stab him. And that’s the only issue here: Who stabbed Mr. Ramirez. Was it Mr. Pozo or was it Fernie?”
As stated in People v. Gutierrez (2003) 112 Cal.App.4th 704, 709, “Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense.” An exemplary case is that of Sinclair, supra, 64 Cal.App.4th 1012, in which the court held that a lesser included offense instruction is not required if the defendant disclaims all responsibility for harming the victim. (Id. at pp. 1015, 1021-1022; see also People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006 [defendant not entitled to voluntary manslaughter instructions based on diminished capacity where defendant testified he was not even present when victim was killed].) The defendant in Sinclair testified before the jury that he did not fire the fatal shot. (Sinclair, supra, 64 Cal.App.4th p. 1015.) He said that a bar patron hit him with a bottle, frightening him and causing him to bleed. Three people stood in front of him and three people behind him. When he went to clean up in the restroom, a man showed him a gun and threatened him. When he was trying to leave, one of the men raised his hand as if to hit him, and the defendant, who was unarmed, heard a shot. He ran for the door. (Id. at p. 1017.)
The Sinclair court relied on People v. Medina, which it characterized as being consistent with other authority circumscribing the trial court’s obligation to instruct on lesser offenses when the defendant completely denies complicity in the charged crime. (See Sinclair, supra, 64 Cal.App.4th at pp. 1019-1020 and cases cited therein.) Sinclair noted that in Barton, supra, 12 Cal.4th 186, which set out the “intellectual and jurisprudential underpinnings” of a trial court’s duty to instruct on inconsistent lesser included offenses, the defendant admitted shooting the victim. (Sinclair, supra, at pp. 1022, 1020, citing Barton, supra, at pp. 192-193.) The defendant in Barton testified that he shot the victim by accident while screaming at the victim to drop his knife. (Barton, supra, at p. 202.) Sinclair stated that Barton was entirely consistent with other Supreme Court decisions allowing voluntary manslaughter instructions to be read on request when the defendant admits shooting the victim but denies any intent to kill. (Sinclair, supra, at p. 1021.) Sinclair noted, however, that “no Supreme Court decision has held that when the defendant completely denies shooting the victim . . . voluntary manslaughter instructions are in order.” (Ibid.)
Like the Sinclair court, which found no error in the trial court’s failure to instruct on imperfect self-defense, we are satisfied that the lack of an instruction of unreasonable self-defense in this case did not transform the trial court into a “‘“gambling hall[].”’” (Sinclair, supra, 64 Cal.App.4th at p. 1022, quoting Barton, supra, 12 Cal.4th at p. 196.) The fact that the trial court instructed on voluntary manslaughter based on heat of passion in this case does not change our opinion. In our view, the heat-of-passion instruction granted appellant an undeserved opportunity to be convicted of a lesser included offense unsupported by the evidence. Both the trial court and defense counsel acknowledged that the instruction was given only in an abundance of caution. In the face of appellant’s repeated denials that he was the one who stabbed Ramirez and the absence of other evidence that would support a finding that appellant actually believed he would suffer death or great bodily injury, we conclude that appellant’s argument is without merit. The evidence was not “‘substantial enough to merit consideration’ by the jury” and to justify the instruction. (Breverman, supra, 19 Cal.4th at p. 162.)
In addition, even if we were to hold that the trial court erred in failing to instruct the jury sua sponte on unreasonable self-defense, any such error was harmless. A trial court’s error in failing to instruct the jury sua sponte on a lesser included offense is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, supra, 19 Cal.4th at pp. 165, 176; People v. Joiner (2000) 84 Cal.App.4th 946, 972.) An examination of the entire record in this case leads to the conclusion that it is not reasonably probable that the jury would have convicted defendant of voluntary manslaughter based on imperfect self-defense if the trial court had given the instruction. (Ibid.) The jury clearly did not believe malice was obviated by the fact that appellant was involved in a fist fight that got out of hand. Moreover, the jury found true the allegation that the murder was committed for the benefit of a criminal street gang with the specific intent to promote, further, or assist in the gang members’ criminal conduct. Such a finding is at odds with any notion that appellant stabbed Ramirez to avoid imminent danger to his life or great bodily injury. For the same reasons, we conclude that appellant’s federal constitutional right to due process was not violated.
The CALJIC instruction on unreasonable self-defense provides that the jury must find the defendant had an actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury. (CALJIC No. 8.50.) The CALCRIM jury instruction requires the jury to find that the defendant actually believed he was in imminent danger of being killed or suffering great bodily injury. (CALCRIM No. 571.)
II. Presentence Credit
A. Argument
Appellant maintains that the trial court erred in awarding 488 days of credit in lieu of 489 days at his initial sentencing. Additionally, when the court recalled the sentence 11 days after it was imposed to correct a sentencing error, it added 11 days to the original erroneous calculation. In fact, the court should not have recalculated the credits, since presentence credits are based on the original sentencing date even if a sentence is corrected on recall.
B. Appellant Entitled to 489 Actual Days
According to the record, appellant was arrested on May 7, 2005, the day of the stabbing. The trial court imposed sentence initially on September 7, 2006. Presentence credits are awarded beginning with the date of arrest (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124) until and through the date of sentencing (People v. Smith (1989) 211 Cal.App.3d 523, 525-526). At his initial sentencing, therefore, appellant was entitled to 489 actual days of presentence credits.
In People v. Johnson (2004) 32 Cal.4th 260(Johnson) the defendant was found guilty of two counts of car theft. The trial court sentenced the defendant to state prison. The trial court subsequently recalled the sentence and commitment under section 1170, subdivision (d). The defendant was later resentenced to state prison. The trial court refused to give defendant conduct credits for the period between the initial sentencing and the resentencing. (Johnson, supra, at p. 264.) On review, the Supreme Court concluded that the recall of defendant’s sentence was similar to the limited remand in People v. Buckhalter (2001) 26 Cal.4th 20, 33-34 (Buckhalter). Buckhalter held that “[w]hen a state prisoner is temporarily away from prison to permit court appearances, he remains in the constructive custody of prison authorities and continues to earn sentence credit[s], if any, in that status. [Citation.]” (Id. at pp. 33-34.) Therefore, the defendant was not entitled to the presentence conduct credits he claimed. (Johnson, supra, at p. 266.)
We agree with appellant and respondent’s calculations and conclude that appellant is entitled only to the 489 credits that should have been awarded at his initial sentencing on September 7, 2006, and the abstract of judgment must be amended to reflect this. Both the minute order of the resentencing hearing and the abstract of judgment state that appellant’s sentence is ordered corrected nunc pro tunc as of September 7, 2006. The abstract of judgment notes that the September 18, 2006 sentence was the result of a “judicial action.” Therefore we disagree with appellant and conclude that no amendment regarding the date of sentencing is required in these two documents.
DISPOSITION
The judgment is modified to reflect presentence credits of 489 days. In all other respects, the judgment is affirmed. The superior court is directed to amend the abstract of judgment to reflect the modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., ASHMANN-GERST, J.