Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ruth A. Kwan, Judge. Los Angeles County Super. Ct. No. BA289084
Dennis L. Cava for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Rodney Patrick Scott (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of attempting by threat of force to dissuade a witness (Pen. Code, § 136.1, subd. (c)(1)) and of attempting by threat of force to influence testimony or information given to a law enforcement official (§ 137, subd. (b)), with findings that the crimes were committed for the benefit of, and in association with, a criminal street gang (§ 186.22, subds. (b)(1), (b)(4)(A) & (b)(4)(C)). Defendant admitted that he had a prior serious felony conviction (§ 667, subd. (a)(1)), and that he had two prior felony convictions that qualified him for sentencing pursuant to the “Three Strikes” law (§§ 667, subds. (b) – (i), 1170.12). At sentencing, the trial court struck one of the prior convictions qualifying him for sentencing pursuant to the three strikes law. It treated defendant as a second-strike offender and sentenced him to an aggregate term of 19 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
He contends that (1) the trial court had a duty to charge the jury with CALJIC No. 17.01, as to unanimity, (2) the evidence of intent is insufficient to support the judgment in count 2, influencing a witness, and (3) he is entitled to further presentence conduct credit.
Only defendant’s contention regarding his entitlement to presentence conduct credit has merit. As we shall explain, ante, we will modify the judgment to award defendant 37 days of presentence conduct credit. In all other respects, we will affirm the judgment.
THE FACTS
I. The People’s Case-in-chief
A. Introduction
On March 23, 2003, a man named Joseph Swift was murdered. Kenneth Ross saw the murder and identified the assailant, James Collier, for the police. Ross was an older member of the criminal street gang, the School Yard Crips, and Collier was a member of the Yank Mob clique of the School Yard Crips. On March 6, 2004, Ross was fatally shot on South Claudina Avenue, which is near Vineyard Avenue and Washington Boulevard in Los Angeles.
B., an eyewitness to the Ross shooting, told the police that she saw Gabriel Griffin, a neighbor, shoot Ross. Griffin was a younger member of the Yank Mob clique of the School Yard Crips. B. later heard that the motive for the murder was that Ross was a “snitch.” After providing this information to the police, B. moved out of the neighborhood in which she had lived in for 12 years.
B. Defendant’s Contacts with Eyewitness B.
Griffin’s preliminary hearing was held on September 12, 2005. His trial took place in December 2005.
Before the preliminary hearing, in August 2005, defendant telephoned B. B. had known defendant, whose nickname was “Diamond,” for about eight years. He lived in her neighborhood, and she knew that he hung out with the members of the School Yard Crips gang. Defendant repeatedly called to ask her to sign an affidavit that he would have notarized that in effect recanted her claim that Griffin was the gunman in the Ross murder. She told him, “Okay,” to put him off, but did not mean it. At the time, she was cooking dinners that she then would sell in the evenings in her old neighborhood to make money, just as she had previously done before she had moved. Defendant told her that she could bring him a number of her dinners, he would pay for them, and she could sign the affidavit. He called her approximately twice a day for at least a week asking her to sign the affidavit and requesting that she come by his residence with her dinners. She did not do what he had requested.
Eventually, on August 11, 2005, defendant approached R., B.’s fiancé, at R.’s place of employment, a church in B.’s old neighborhood. Defendant gave R. the affidavit for B. to sign. R. told defendant that no one was going to sign it. Defendant insisted, and R. took it. Defendant explained to R., “The letter was to be notarized and returned to him or to the attorney, and they would have it notarized and that would -- would get the case dropped.” R. gave the affidavit to B., and she refused to sign it.
The paper defendant gave to R. said the following: “I B. [ ] also know as due here by swear and declare without any prejudice or force against my will that all stated is true and factual. [¶] On or about March 2004, I was questioned by the Los Angeles Police Department regarding my knowledge of Gabreal Griffin. During the time I was under the influence of heavy alcohol, marijuana, and crack cocaine, which made me completely incoherent. I stated that I witnessed Gabreal Griffin committing a shooting in which I did not see. I was pressured by the Police Department to make this statement to admonish myself from arrest for drug use. I am now in recovery and realize that I caused a [sic] innocent man his freedom, and I deeply regret my actions. [¶] To this day I am pressured by the Police Department to confirm my original statement, which was not factual. I send this statement in hope to clear Mr. Griffin from all charges made upon my statement. I have known Gabreal as a neighbor for the past 10 years and I’ve never known him to do anything illegal. My drug addiction had made me unconscious to anyone else’s life or well being. I know he has a family and was a good father to his son. I do solemnly regret what I have done to his life and his family’s.”
On August 13, 2005, defendant approached R. again. R. told defendant that B. had refused to sign the affidavit, just as he had explained to him earlier. Defendant’s reaction to the refusal was to throw up his hands and exclaim, “It’s out of my hands,” and “The little homies will handle it.” Defendant also told R. that, “We can get this dropped if she signs the letter,” and that the other two or three persons present during the murder would not “count” insofar as being effective witnesses as they were drunks or alcoholics.
R. told B. about what defendant said to him. B. regarded defendant’s statement about leaving it “to the homies” as a threat to her and to her daughter, and she was frightened for their safety.
On August 18, 2005, B. telephoned Los Angeles Police Detective Gene Parshall and turned over to the police the unsigned affidavit. Four latent fingerprints belonging to defendant were found on the affidavit.
In November 2005, B. relocated again, this time with the assistance of law enforcement funding.
C. The Gang Expert’s Testimony
At trial, Officer Curtis Morton testified that he works the gang enforcement detail at Wilshire Division of the Los Angeles Police Department. For the last four and a half years, his assignment included developing contacts with the School Yard Crips, a mid-Wilshire criminal street gang, and knowing the identities of the gang’s members. He testified to gang culture and mores in general and set out the history of the School Yard Crips. He indicated that gang members identify themselves through gang signs, graffiti, tattoos, monikers, and attire. These symbols of gang identification are generally associated with professional athletic teams. The School Yard Crips, particularly the clique known as the Yank Mob, wear sports clothing with “NY” on it.
Officer Morton said that he had had multiple contacts with defendant, whose moniker is “Diamond.” In 2001, defendant had admitted original membership in the School Yard Crips. Defendant has a tattoo, “Original SYC,” on his forearm indicating his gang membership in the School Yard Crips. The officer believed that appellant was an “original member,” or “O.G.,” and that he was not an ordinary gang soldier. The officer explained the different levels of participation in the gang. He explained that the gang member soldiers commit the violent crimes for the gang, but they are directed in their criminal activities by the higher and more respected members of the gang, called “shot-callers.” The shot-callers are in turn are supervised by the O.G.’s, who manage and supervise the gang and issue orders.
He explained that the term, “snitching,” refers to cooperating with the police and to providing the police with information. He said that “[s]nitching” is “a cardinal sin in the gang world.” Any gang member or neighborhood resident who snitches will come to harm or be killed. Gang members are particularly vigilant in threatening and in intimidating those who are witnesses to snitch killings. Gang members want to send the message to the community that “if you snitch, this is what [will] happen to you.”
The prosecutor posed a hypothetical question to Officer Morton that paralleled the facts in the case. He asked the officer whether in his opinion the hypothetical attempted witness intimidation was committed for the benefit of, in association with, or at the direction of the School Yard Crips. The officer replied, “Yes.” The officer explained that the defendant was attempting to “back up” or protect one of the loyal soldiers of the gang. The gang member was intimidating the witness and attempting to dissuade her from giving testimony in court. The officer also commented that killings like the one Griffin committed are usually orchestrated from above.
The officer also claimed that there was significance in the means that defendant used in approaching B. Usually, an older gang member will not be directly involved in violence; they let other gang members commit the murders of a witness. Defendant apparently knew the witness in this case and tried to persuade her to cooperate with the gang. When that did not work, he indicated that “the homies would handle it,” indicating that the gang would use more violent measures to deal with her. In his expert opinion, defendant’s statement, “Let the little homies handle it,” is exactly what happens in the gang context when violence is necessary: the foot soldiers in the gang commit the violence.
Officer Morton commented that Ross’s killing was out in the open for a reason. The gang wanted the community intimidated so that members of the neighborhood will not testify against them in court and so gang members will not go to prison. After orchestrating a snitch killing out in the open, it was unlikely that the gang would let another witnesses testify to the killing without repercussions.
The People put into evidence certified court documents evidencing Collier’s 2003 conviction for the murder of Joseph Swift and evidencing the convictions in case No. BA274025 of Joel Robinson, another gang member who had committed several unrelated drive-by shootings.
II. The Defense
B.’s son testified that he was the executor of his grandmother’s estate. On March 7, 2005, after the grandmother’s 2004 death, his mother was living in the grandmother’s residence as a tenant. On one occasion, when he wanted to enter the residence, B. called the police, lied, and falsely told them that he had pointed a gun at her.
Defendant, who was in his late 30’s, testified that in 2000, he had met B. through Ross when his uncle moved into her apartment complex. He was friendly with B.; on two occasions in 2003 they had had sexual relations. R. had come over to visit B. while defendant was also there visiting her. Defendant claimed that when R. arrived, he felt uncomfortable and left, suggesting that R. was jealous of his relationship with B.
In July 2005, B. saw defendant on South Claudine Avenue washing his BMW. She asked him for advice. She said that when she was high, she had told the police that she saw Griffin commit the shooting. Actually, she did not see the shooting, and she was “wrong” to have volunteered to become a witness. His advice to her was to tell the truth. She told him that the police would not let her recant. He told her to appeal to the district attorney, to the judge, and to the police officers handling the case. If that did not work, they could get help from his grandfather, who is a celebrity and has media contacts.
A few days later, R. approached defendant. R. wanted to know whether defendant was “seeing his woman” and asked whether defendant had given B. the affidavit, which R. waved in his face. R. accused defendant of giving B. drugs. Defendant momentarily handled the affidavit and started to read it. R. grabbed it back. R. was mad, and he told defendant, “F--- . . . that little punk in jail, and you going to jail.”
Defendant denied that he had prepared the affidavit. He claimed that he did not know why R. and B. would participate with the police in bringing false charges against him. He admitted that in February 2006, he had telephoned O.P. He denied during that conversation, he had told O.P. to tell B. “to keep doing what she’s doing.”
He claimed that he was a retired gang member and denied that he was a leader or shot-caller in the gang. He was impeached with his admission that he had talked to B. on his uncle’s telephone after the uncle called B. and with his refusal during a postarrest interview to give the officers his uncle’s telephone number and address. He was also impeached with his prior felony convictions for assault with a firearm, grand theft, inflicting corporal injury on a spouse, and being a felon unlawfully in possession of a firearm.
He claimed that he and his brother had just established a foundation for assisting underprivileged children, anti-gang prevention, providing scholarships, and feeding the homeless. He was then impeached with his recent imprisonment, which would have prevented him from playing any true role in setting up that foundation.
In rebuttal, O.P. testified that a year earlier, defendant had telephoned him. During his testimony O.P. was evasive. However, eventually, O.P. agreed that defendant had told him to tell B. something like she should just “keep doing what she’s doing.”
DISCUSSION
I. CALJIC No. 17.01
Defendant contends that the trial court had a sua sponte duty to charge the jury with a unanimity instruction, such as CALJIC No. 17.01. We disagree.
“In a criminal case, the jury must agree unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) ‘This requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.”’ (Ibid.) Thus, when a defendant is charged in a single count with several offenses, and the evidence shows that he committed more than one of the offenses, the trial court must instruct with CALJIC No. 17.01. (People v. Laport [(1987)] 189 Cal.App.3d 281, 283.)” (People v. Frederick (2006) 142 Cal.App.4th 400, 418; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1343.)
The pattern instruction, CALJIC No. 17.01, provides as follows: “The defendant is accused of having committed the crime of [in Count ]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”
The elements of a violation of section 136.1, subdivisions (a)(1) and (c)(1), are that (1) the person threatened is a witness to a crime; (2) the person charged, with the specific intent to do so, attempted to prevent or dissuade the witness from attending or giving testimony at any trial, proceeding, or inquiry authorized by law; (3) the person charged acted knowingly and maliciously; and (4) the act of preventing, dissuading or the attempt thereto, was accompanied by force or by an express or implied threat of force or violence upon the person or property of the witness or any third person. (§ 136.1, subds. (a)(1) & (c)(1).)
Section 136.1 in pertinent part provides as follows: “(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [¶] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [¶] . . . [¶] (c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: [¶] (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. [¶] . . . [¶] (d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section.”
In People v. Salvato (1991) 234 Cal.App.3d 872, 285, the court held that “[n]either an election nor a unanimity instruction is required when the crime falls within the ‘continuous conduct’ exception. [Citation.] ‘This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction . . . . [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]’ [Citation.] We conclude that section 136.1 falls within the latter aspect of the exception . . . .” (Id. at p. 882.) The Salvato court explained its reasoning as follows: “Decisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct. Noting that ‘certain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur either in an instant or over a period of time,’ the court in People v. Gunn (1987) 197 Cal.App.3d 408, 415[], held that the accessory statute, punishing one who ‘“harbors, conceals or aids”’ a known felon, fell within the exception. (Id. at p. 415.) People v. Thompson [(1984)] 160 Cal.App.3d [220,] 225, held that spousal abuse was a continuous conduct crime because the gravamen of the offense lay in the cumulative result of the acts, each of which alone might not be criminal. Conversely, People v. Neder (1971) 16 Cal.App.3d 846, 852-853[], held, in a somewhat different context, that in a forgery prosecution each forged document could constitute a separate offense, even if part of the same transaction, because the essence of forgery, unlike theft, lies in the means used rather than the end obtained. [¶] Subdivision (a)(1) of section 136.1 subjects to misdemeanor liability one who ‘knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.’ Subdivision (a)(2) extends liability to attempts at prevention or dissuasion. Subdivision (c)(1) makes the offense a felony ‘[w]here the act is accompanied by force or by an express or implied threat of force or violence . . . .’ [¶] The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end. ‘Prevent’ and ‘dissuade’ denote conduct which can occur over a period of time as well as instantaneously. The gravamen of the offense is the cumulative outcome of any number of acts, any one of which alone might not be criminal. Thus it falls within the continuous conduct exception, and no election or unanimity instruction was required.” (People v. Salvato, supra, 234 Cal.App.3d at pp. 882-883; see also People v. Gear (1993) 19 Cal.App.4th 86, 91-92.)
We agree with the reviewing court’s conclusion in Salvato. Section 136.1 is a continuous course of conduct crime, and there is no evidence here that defendant committed two separate and discreet violations for which the jury would have required a unanimity instruction in order to properly consider guilt.
As to section 137, it provides in pertinent part: “(b) Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years. [¶] As used in this subdivision, ‘threat of force’ means a credible threat of unlawful injury to any person or damage to the property of another which is communicated to a person for the purpose of inducing him to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official.”
The provisions of section 137, subdivision (b), demonstrates that this offense also defines an offense that constitutes a continuous course of conduct over a period of time. Accordingly, the continuous nature of the crime renders the unanimity instruction unnecessary.
Furthermore, during final argument, the prosecutor argued that each crime involved a continuous series of acts constituting only one criminal offense. She said that B. was a witness to a gang shooting and provided the police with the identity of the gang assailant. In his communications with B., defendant was essentially giving B. two choices. She could lie and deny what she saw, or the “little homies would handle it.” The implicit threat was that if she did not comply, the “little homies in [the] School Yard Crips” would execute her. B.’s “one out” was that the case would be dropped when she signed the affidavit. In other words, she was given the choice to lie and deny, or she would be murdered. The threat to kill was to get B. to withhold true testimony and to come to court and say I did not see it. Or, she could fail to appear in court in order to stay alive. Defendant’s words to B. and to R. implied that if B. continued with her present course of action, she would be signing her own death warrant.
Given the continuous nature of the offense and the prosecutor’s comments indicating that defendant had committed only the two charged offenses, the unanimity instruction was unnecessary.
II. The Sufficiency of the Evidence
Defendant contends that the evidence of intent is insufficient to support the judgment with respect to count 2, influencing a witness. We disagree.
In reviewing a claim of the insufficiency of the evidence, ‘“we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ (People v. Cole (2004) 33 Cal.4th 1158, 1212.) ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ (People v. Kraft (2000) 23 Cal.4th 978, 1053.)” (People v. Ramirez (2006) 39 Cal.4th 398, 463.) The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.)
It is settled that the crime of threatening a witness, as proscribed by section 136.1, subdivision (c)(1), requires proof that the defendant specifically intended to dissuade a witness from testifying. (People v. Young, supra, 34 Cal.4th at p. 1210.)
As is explained by the decisions in People v. Fernandez (2003) 106 Cal.App.4th 943, 949-951, and People v. Womack (1995) 40 Cal.App.4th 926, 930-934, the offenses defined by the legislature concerning witness dissuasion have specific elements. There is no general offense of witness intimidation or persuasion. There is a violation of section 137 where a defendant attempts to influence the nature of the testimony a witness gives. Section 136.1 is confined to those instances where a defendant prevents or dissuades a witness from giving any testimony. (People v. Fernandez, supra, at p. 949; Womack, supra, at p. 932.) “Inasmuch as Penal Code section 137 cannot reasonably be interpreted as encompassing an intent to prevent or dissuade a witness from testifying, an intent to kill the witness is not coextensive with an intent to influence the testimony of that witness by inducing him or her to give false or withhold true testimony. Indeed, the two intents are mutually exclusive. One cannot influence, or shape, the testimony of a witness by preventing that witness from testifying.” (Womack, supra, at pp. 931-932.)
Defendant makes an argument that is a variation on the defendants’ arguments in Fernandez and Womack. He asserts that because the jury convicted defendant in count 1 of dissuading a witness, the jury necessarily found that defendant’s intent was not to influence B.’s testimony, but to prevent her from giving any testimony at all. As the former is what the jury found was defendant’s specific intent, there can be no conviction in count 2 of influencing a witness’s testimony.
The argument fails. In this scenario, nothing prevented the jury from finding that defendant entertained dual intents in interacting with B., a potential witness to a School Yard Crip snitch shooting. And, the trial evidence supports a finding of dual intents. Defendant’s conduct and his implicit threats were calculated to have dual effects upon B., which in either event would prevent Griffin’s conviction. Either B. would be deterred from cooperating with the police by his persistence in obtaining the affidavit from her and by telling her that if she did not sign it, the younger members of the gang would execute her, or, her signed affidavit would bring the prosecution to a halt as it would indicate that she would recant during a trial. His conduct and requests of B. impliedly also required B. to follow up with the recantation in the affidavit and change her testimony if called as a witness during Griffin’s trial. Defendant’s conduct and requests were calculated to dissuade B. from testifying at all, as well as to change the content of her testimony. As such, the trial evidence demonstrates the specific intent necessary to support the convictions of both offenses.
III. Conduct Credit
Defendant contends, and respondent concedes, that defendant is entitled to 376 days of presentence conduct credit.
At sentencing, the trial court awarded defendant actual presentence credits of 251 days. It concluded, however, that defendant was not entitled to conduct credit.
Section 2933.1 provides, in pertinent part: “(a) . . . [A]ny person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit . . . . [¶] . . . [¶] (c) Notwithstanding Section 4019 [which authorizes presentence conduct credit] or any other provision of law, the maximum credit that may be earned against a period of confinement in . . . a county jail, . . . 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).”
The “Director of Corrections” is a reference to the Secretary of the Department of Corrections and Rehabilitation. (§ 5050.)
The defendant committed an offense that is a violent felony within the meaning of section 667.5, subdivision (c). Section 667.5, subdivision (c), provides that a “‘violent felony’ shall mean any of the following: [¶] . . . [¶] (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.” Furthermore, the finding of the gang enhancement requires a life term be imposed for his violation of section 136.1 (§ 186.22, subd. (b)(4)(A) & (b)(4)(C)), thereby transforming that offense into a violent felony as defendant was convicted of a “felony punishable by . . . imprisonment in the state prison for life.” (§ 667.5, subdivision (c)(7)). (See People v. Florez (2005) 132 Cal.App.4th 314, 322 [felony conviction for discharging a firearm at an inhabited dwelling in violation of section 246 committed for the benefit of a criminal street gang pursuant to section 186.22, subd. (b)(4) is a felony offense within the meaning of section 667.5, subd. (c)(7), limiting defendant’s entitlement to conduct credit to 15 percent].) Accordingly, defendant’s conviction of section 136.1 qualified him for conduct credit, albeit at a rate of 15 percent.
As the parties assert, pursuant to section 4019, defendant was entitled to 37 additional days of presentence conduct credit.
DISPOSITION
The judgment is modified to grant defendant 37 days of presentence conduct credit. As modified, the judgment is affirmed.
The superior court shall direct its clerk to amend the abstract of judgment to state the modified judgment, i.e., that defendant is entitled to 37 days of presentence conduct credit. The superior court shall send the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
BOREN, P. J., DOI TODD, J.
B. testified in rebuttal and denied that she had authored the affidavit, that she ever had sexual relations with defendant, and that she had approached defendant for advice or said that she would sign the affidavit. She did indicate that around July 4, 2005, she ran into defendant in her former neighborhood. He asked her what she was cooking for dinner and said to her, “The homie didn’t do it.” What he said frightened her. She did not want anyone to know that she was a witness, and she lied and told him that she had not identified Griffin.
R. also testified and denied defendant’s claim that R. believed that defendant had had sexual relations with B., or that there was any angry confrontation in which he tricked defendant into touching the affidavit.
Detective Teodoro Urena testified that he was one of two detectives who had interviewed defendant on August 25, 2005. Defendant did not reveal some of the details that he testified to during his trial. Detective Parshall testified that on August 18, 2005, B. did not mention seeing defendant on July 4, 2005.