P. v. Anderson

Filed 10/5/06 P. v. Anderson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed as modified.

Randy S. Kravis for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Michael Wayne Anderson appeals from the judgment entered upon his conviction by jury of shooting at an occupied building (Pen. Code, § 246), and his admission of a prior serious felony conviction (Pen. Code, § 667, subd. (a)) and two prior felony convictions within the meaning of the “Three Strikes” law (hereafter three strikes law) (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).[1] He was sentenced to 25 years to life with a five-year prior serious felony conviction enhancement.

Appellant contends that (1) the delivery of CALJIC No. 2.52, the flight instruction, constituted prejudicial error; (2) his three strikes sentence should be vacated; and (3) the trial court erred in limiting his presentence conduct credit to 15 percent. Respondent agrees that the 15 percent limitation on conduct credits is inapplicable, and we modify the judgment accordingly. We otherwise affirm.

FACTS

The evidence established that on the afternoon of March 22, 2005, appellant entered the Rude Dog Bar on Citrus Avenue in Covina. Over the course of two or two and a half hours, Linda Wheeler, the co-owner and bartender, served appellant three glasses of beer. She then refused to serve appellant another drink and asked him to leave, because he seemed “a little different,” was “talking to himself a little bit,” and was “starting to get on some of the [other] customers’ nerves.” Appellant protested, appearing to be a little angry. Although Wheeler repeatedly asked him to leave, he refused to go. He was forcibly escorted out through the rear door of the building by Andy, Wheeler’s husband and co-owner, and Mario Tapia, a customer, with the assistance of another customer. No one struck appellant as he was escorted out, although all four men fell as the three men struggled with appellant. Tapia never saw appellant with a bloody nose.

After being escorted out, appellant walked around to the front of the bar and approached some bar patrons who were standing outside the front door. They did not see any injuries on appellant. Appellant cursed at them, asked why they did not “stick up” for him, and told them that they were “going to pay.” Appellant then walked across the street to his white Ford Mustang, searched through the trunk, and drove off.

A few minutes later, appellant fired a single bullet through the wall above the front door of the bar. Although no one was standing outside, there were 15 to 20 people in the bar at the time. The bullet went across the area where the pool tables were located and through a wall of the stage into the kitchen, then ricocheted into the attic. No one saw the person who fired the gun, but Tapia looked out the back door and saw a white Mustang driving east on College Street, the street on the north side of the bar.[2] The police were summoned.

Appellant drove home and told his son and daughter that he had been beaten up and kicked out of a bar, and that he had fired a shot at the bar from his .44-caliber rifle because he was upset about having been beaten up. His children observed that he appeared to have been drinking, that his face was red and swollen, and that his nose was bleeding. Appellant gave several live rounds to his daughter and told his son he had picked up the expended cartridge and had put it in his pocket.

Police officers arrived at appellant’s residence and arrested him. A search of the Mustang, which was parked in the driveway, disclosed a .44-caliber magnum rifle and several boxes of ammunition. Appellant had three .44-caliber bullets in his shirt pocket. An expended .44-caliber round was recovered from appellant’s son’s bedroom, and appellant’s daughter gave an officer six live .44-caliber bullets. Appellant volunteered that he had not been shooting at anyone but “was just shooting at the brick work above the door of the bar.”

In an interview later that night, appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and told detectives that he had used one of two rifles that were in his Mustang, a .44-caliber magnum, to shoot at the bricks above the door of the bar. He stated that he was angry because he had been thrown out of the bar and had been beaten up, and he “wanted to scare the people that had beat him up.” He told the detectives that he drove his car around the corner, stopped, retrieved one of the rifles and ammunition from the trunk, and loaded the rifle with several bullets, then removed all but one bullet. He drove to the front of the Rude Dog, slowed down to two or three miles per hour, and, ascertaining that no one was standing outside, he fired the shot into the bricks above the door. He then drove straight home. During the interview, he appeared to be remorseful. The interviewing detectives did not see any injuries on appellant.

In defense, a psychiatrist testified that when alcohol was taken with the medications prescribed for appellant, which included acetaminophen with codeine and tranxene, a sedative in the valium family,[3] the combination could double or triple one’s level of intoxication and could cause sleepiness and difficulties in reasoning and judgment. Appellant’s booking photograph showed redness and swelling which could have indicated trauma to the face and a possible head injury. If a person sustained a head injury while on these substances, his ability to interpret a situation and to appreciate the wrongfulness of his conduct could be impaired. However, the psychiatrist, who had never examined appellant and had never reviewed the police reports, acknowledged that he did not have enough information to form an opinion as to appellant’s mental state at the time of the shooting. He testified that it was possible that someone who was “impaired” could load a gun, aim it and shoot.

Appellant’s longtime friend testified that on an earlier occasion, after appellant drank two beers he became disoriented and “freaked out,” stating that he could not see. On another occasion, at a billiard parlor, appellant consumed one beer and took his medications, then left the establishment without remembering that he had ordered food. Appellant’s wife testified that appellant rarely drank alcoholic beverages and that when he returned home from the bar that night he was bleeding and he appeared to be intoxicated, based upon his speech.

In rebuttal, the detective who arrived at the bar shortly after the shooting testified that he saw no blood inside the bar, near appellant’s sunglasses, which were found near the rear entrance to the bar, or in or on appellant’s car.

DISCUSSION

I. The erroneous delivery of CALJIC No. 2.52 does not require reversal

The trial court instructed the jury on flight in accordance with CALJIC No. 2.52 as follows: “The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”

In giving the flight instruction, the trial court overruled appellant’s objection that the instruction was not warranted because he was already in the process of leaving the bar when the shooting occurred and his departure was thus a continuation of the direction in which he was going. The trial court stated, “One of the individuals spotted the white car out of the [back] door, which indicated the car had gone around the block somehow, which may or may not have constituted flight, but the jury could draw that conclusion from the facts. And, thus, I believe, we need to tell them what to do with it. Of course they could draw the contrary conclusion as well. I’m not saying it’s the strongest flight I’ve ever seen . . . . But there is a suggestion that he might have been fleeing, and therefore I think we need to tell them what to do.”

Appellant contends that the giving of this instruction was erroneous because it was not supported by the evidence. This contention is unavailing.

“In general, an instruction advising the jury that evidence of flight alone is insufficient to establish guilt but may be considered with other proven facts in determining guilt ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 517.) “‘”[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

Nothing in the evidence suggests that appellant’s driving east on College Street, the street that intersected Citrus Avenue north of the bar, was anything more than “a mere departure from the scene of the crime.” (People v. Green (1980) 27 Cal.3d 1, 37, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) It did not constitute flight in accordance with the above formulations. Appellant was driving his Mustang down Citrus Avenue in front of the bar when he slowed to fire the shot.[4] Tapia’s observation of the Mustang driving east on College Street after the shooting, without more, does not suggest that appellant’s movement was motivated by a consciousness of guilt or a purpose to avoid being seen. It only suggests that he happened to turn right instead of going straight up Citrus after he fired the shot and left the scene. The giving of CALJIC No. 2.52 under these circumstances was error.

However, the error was utterly harmless. It was undisputed that appellant fired the shot. His defense was that he was mentally impaired or unconscious and did not understand the wrongfulness of his conduct or act maliciously. The jury, which reached its verdict in 45 minutes, heard the evidence that he stopped his car, took the rifle from the trunk and loaded it with several bullets, then removed all but one before returning to fire into the bar. He retrieved the expended casing. Shortly after the shooting, he repeatedly acknowledged his malicious, retaliatory intent in shooting at the bar. In light of this evidence, the instruction that appellant’s flight, if proved, might be considered in deciding the question of his guilt added little to the jury’s determination of whether he had the requisite mental state. On this record, the erroneous instruction on flight was nonprejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Appellant also contends that, to the extent the instruction lessened the burden of the prosecution to establish his guilt beyond a reasonable doubt, it violated his rights to trial by jury and due process. Even were we to assume that appellant’s failure to raise this claim in the trial court did not result in a forfeiture of the issue (see People v. Partida (2005) 37 Cal.4th 428, 434-435), and even were we to find any merit to the claim, we would find no prejudice under Chapman v. California (1967) 386 U.S. 18, 24.

II. The three strikes sentence was properly imposed

The information alleged within the meaning of the three strikes law, and appellant admitted, that he had suffered two 1991 felony convictions for assault. Appellant moved to strike the convictions and requested probation with alcohol treatment. He stated that he had numerous serious medical problems and had been taking many medications, which a physician described as “a cocktail mixed from Hell,” and asserted that he had an alcohol problem which had led to his prior arrests. He argued that the combined effect of his medications and alcohol led to “panic reaction[s]” at the time of both the strike offenses and the instant shooting. He informed the trial court that, since his arrest, doctors had taken him off all of his prescriptions except his heart medication. As to the strike offenses, he argued that the two strikes resulted from “one continuous incident” and that he had acted in perceived self-defense. As to the instant offense, he argued that he had been beaten by other bar patrons, which caused a blow to the head, and that the alcohol intensified the effect of his medications, resulting in his disoriented and irrational conduct.

The prosecutor opposed the dismissal of the prior convictions, attaching several documents from the 1991 assault convictions as exhibits to her written memorandum. One document, a waiver of rights form signed by appellant, indicated that he had entered a no contest plea in a single proceeding to the two assault counts alleged as strikes, as well as to a third count of assault, along with admissions of two firearm use allegations and a great bodily injury allegation. The transcript of the preliminary hearing in that matter indicates that the convictions resulted from an incident in which appellant stabbed Santiago Rios with a knife after arguing with Rios’s sister. Rios walked back up the street, holding a baseball bat, in order to retrieve his bicycle. Appellant, chased him and fired several shots at him, wounding Rios’s father, who had stepped outside his residence. Appellant told police that he was only defending his family because “[t]hey shot at me, so I shot back at them.”

In her memorandum, the prosecutor explained the circumstances of the prior offenses and stated, “In the prior case, the defendant was given leniency due to his medical condition, lack of criminal record, defendant’s assertions that he acted in his own defense, and defendant’s claim that his judgment was clouded due to alcohol. . . . Interestingly enough, these are once again the Defendant’s arguments for leniency and justification for his crimes.” The record reflects that appellant was granted probation in the assault case, which he violated by incurring a conviction of driving under the influence in 1995. He had a prior conviction of driving under the influence in 1990.

The trial court denied the request that it strike the prior convictions, concluding that appellant was not outside the spirit of the three strikes law. The trial court cited appellant’s serious record and the high degree of callousness involved in the current offense, which was “really a drive-by shooting.” It determined that when he drove around the corner and pulled the rifle from the trunk, he had had ample time to reflect before he fired the shot. The trial court rejected appellant’s claim that he had been beaten by the bar patrons as well as his assertion that the prior strikes involved only one incident. The trial court observed that appellant had had a diagnostic study in 1991 in which the same medical problems were discussed as in the current diagnostic study, which recommended a prison term. The trial court also pointed out that when appellant was granted probation in 1991, he was ordered not to have alcohol or to possess guns, but he was arrested for driving under the influence within the probationary period, and that he failed to take any action to change his medication or speak to his doctors after having purportedly suffered the earlier panic attacks after combining his medications with alcohol.

The trial court concluded, “At some point the excuses lose their impact. At some point responsibility must be taken for one’s own life. At some point society has a right to be protected and other possible or potential acts must be deterred.” Based on the two prior qualifying convictions, appellant was sentenced to the third strike term of 25 years to life for the current shooting offense.

Appellant contends that this sentence must be vacated. He presents three separate arguments. We discuss each in turn.

a. The prior plea agreement

First, appellant contends that the use of the two prior convictions to impose a three strikes sentence violates due process. He argues that the 1991 plea agreement by which the convictions were obtained contractually, if impliedly, limited their use to penalties defined by statute at the time of the agreement, which did not include their future use as qualifying priors under the three strikes law. He asserts that “[b]y increasing the penal consequences attendant to a prior serious felony conviction, the People of the State of California, directly and through their elected representatives, unilaterally altered the terms of [his] plea agreement” beyond the bargained for legal consequences of a five-year enhancement for each serious felony as set forth in section 667, subdivision (a) at the time of the plea.

Appellant’s written motion in the trial court sufficed to preserve the issue for appeal. In that motion, he argued that the use of his prior convictions as strikes violated due process because he was not aware of the strike consequences when he entered his 1991 plea agreement. However, this contention is without merit.

As appellant acknowledges, this claim was rejected in People v. Gipson (2004) 117 Cal.App.4th 1065 (Gipson), where the court pointed out that “contracts are ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .’ [Citation.]” (Id. at p. 1070.) The court further observed that the defendant’s plea bargain “‘vest[ed] no rights other than those which relate[d] to the immediate disposition of the case.’ [Citation.]” (Ibid.)

We agree with the analysis in Gipson. Accordingly, the subsequent enactment of the three strikes law by statute and initiative in 1994 and the use of appellant’s 1991 convictions as qualifying priors under the three strikes law in this proceeding did not alter the agreed upon terms of, or the People’s compliance with, appellant’s 1991 plea bargain. Under the terms of that plea agreement, he bargained only for the consequences attendant upon his plea of no contest to the offenses charged in that proceeding, which were a referral for a 90-day diagnostic examination pursuant to section 1203.03 and a maximum prison term of five years. While “the requirements of due process attach . . . to implementation of the [plea] bargain itself” (People v. Walker (1991) 54 Cal.3d 1013, 1024), appellant does not claim that the People failed to abide by the terms of that agreement.

b. Cruel and unusual punishment

Appellant contends that his 25-year-to-life sentence with a five-year serious felony enhancement for an offense that is a wobbler, punishable by imprisonment in county jail or in state prison for a maximum term of seven years, constituted cruel and/or unusual punishment under the federal and state Constitutions. This contention lacks merit.[5]

The Eighth Amendment to the United States Constitution contains a “‘narrow proportionality principle’“ in noncapital cases that “‘prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.’” (Ewing v. California (2003) 538 U.S. 11, 20-21 [25-year-to-life sentence under the three strikes law for grand theft of golf clubs not grossly disproportionate]; see also Lockyer v. Andrade (2003) 538 U.S 63, 72, 77 [while “[a] gross disproportionality principle is applicable to sentences for terms of years,” an appellate court’s affirmance of a 50-year-to-life sentence under the three strikes law for petty theft with a prior is not an unreasonable application of this principle].) In a recent California appellate decision, the court addressed a defendant’s contention that his 30-year-to-life sentence for shooting at an occupied vehicle and causing great bodily injury constituted cruel and unusual punishment. Citing Andrade, the court stated, “If 50 years to life for stealing $153 worth of videotapes is not cruel and unusual punishment, neither is any sentence which could legally be imposed here.” (People v. Riva (2003) 112 Cal.App.4th 981, 1003, fn. omitted.) Whether or not the shot that appellant fired happened to result in injury, the conclusion of the Riva court is equally true with respect to appellant’s sentence. Appellant’s federal constitutional claim must fail.

Under the California Constitution, we examine whether the punishment is so disproportionate “that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The Lynch technique requires the court to examine the nature of the offense and of the offender, “with particular regard to the degree of danger both present to society,” to compare the penalty at issue with those imposed for more serious offenses, and to compare the challenged penalty with those for the same offense in other jurisdictions. (Id. at pp. 425-427.)

To determine whether a sentence is cruel or unusual as applied to a particular defendant, we consider his age, prior criminality, personal characteristics, and state of mind, as well as his motive, the way the crime was committed, the extent of his involvement, and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.) Appellant, who was 55 years of age at the time of the shooting, was not an immature youth, as was the defendant in Dillon. He claims that provocation and intoxication or mental impairment contributed to the current offense, in which he did not intend to hurt anyone, and points to an 11-year period since his last conviction. However, his current offense, in which he fired a shot into an occupied building, was similar to his prior offenses, in which he stood on the street and committed assaults with a firearm and a knife. He failed to be rehabilitated despite a grant of probation in the earlier matter, which was conditioned on his not possessing alcohol or guns. He violated probation by driving under the influence, and he never sought help for the panic attacks that he claimed resulted from his voluntary consumption of alcohol together with his medications. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511; People v. Gray (1998) 66 Cal.App.4th 973, 993.) Appellant is clearly a danger to society.

With respect to the second and third prongs of the Lynch analysis, appellant has not established that his punishment is unconstitutional. “[A] comparison of appellant’s punishment for his current crimes with the punishment for other crimes in California is ‘inapposite since it is his recidivism in combination with his current crimes that places him under the three strikes law.’ [Citation.]” (People v. Gray, supra, 66 Cal.App.4th at p. 993.) In addition, “‘[a] comparison of California’s punishment for recidivists with punishment for recidivists in other states shows that many of the statutory schemes provide for life imprisonment for repeat offenders, and several states provide for life imprisonment without possibility of parole. California’s scheme is part of a nationwide pattern of statutes calling for severe punishments for recidivist offenders. [Citation.]’” (Ibid.)

The cases on which appellant relies are inapposite. In view of the nature of his current offense, this case is in no way analogous to that in People v. Carmony (2005) 127 Cal.App.4th 1066, for example, where the three strikes sentence found to be unconstitutional was for failure to provide duplicate sex offender registration information. (Id. at p. 1073.) Appellant’s sentence is not so disproportionate as to shock the conscience and offend fundamental notions of human dignity.c. Abuse of discretion

Finally, appellant contends that the trial court abused its discretion in refusing to dismiss the prior strike convictions. This contention lacks merit as well.

The standards for evaluating the trial court’s determination of a motion to strike a prior conviction in furtherance of justice under section 1385 are well established. The trial court must take into consideration the defendant’s background, the nature of his current offense, and other “‘individualized considerations.’“ (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531.) “[P]reponderant weight must be accorded to factors intrinsic to the [three strikes] scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.” (People v. Williams (1998) 17 Cal.4th 148, 161.) In deciding whether to strike a prior conviction, and in reviewing a trial court’s ruling, “the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.) The defendant’s criminal history is among the relevant factors to be considered. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979.)

We review the trial court’s refusal to strike prior convictions under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) “‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)

Appellant cannot demonstrate that the trial court’s decision was irrational or arbitrary. The trial court considered appellant’s prior criminal record, which included assaults with a deadly weapon and with a firearm, together with the facts of the instant offense. This crime involved the shooting into a building in which, as appellant was well aware, many people were located. Although appellant argues that the prior offenses were “‘so closely connected’ in time and place” that it was an abuse of discretion to fail to strike one of them, citing People v. Burgos (2004) 117 Cal.App.4th 1209, Burgos lends no support to appellant’s claim. In Burgos, the defendant’s prior convictions of attempted carjacking and attempted robbery arose from the commission of one single act and hence were “so closely connected” that the failure to strike one of the prior convictions necessarily constituted an abuse of discretion. (Id. at pp. 1215-1216.) Here, although appellant’s strike convictions resulted from a single proceeding and arose from a single incident, his two convictions did not arise from a single act, but resulted from two different assaults. The trial court properly so recognized.

The trial court also rejected appellant’s claim that appellant was provoked into committing the crime, and it considered the circumstance that appellant had never sought help or treatment for the claimed panic attacks resulting from the interaction of his medications and his alcohol use. Notwithstanding appellant’s claim that the sentence was unjust because of his age and ill health, he has not established any abuse of discretion in the trial court’s determination that he came within the spirit of the three strikes law.

III. The trial court erroneously applied a 15 percent limitation on appellant’s precommitment conduct credit

At sentencing, the trial court awarded appellant 223 days of actual precommitment custody credit. The court limited his precommitment conduct credit to 15 percent, or 33 days, apparently pursuant to section 2933.1.[6] Appellant contends, and respondent agrees, that the 15 percent limitation of section 2933.1 applies only to offenses enumerated in section 667.5, subdivision (c) that are themselves punishable by life imprisonment. The limitation does not apply to offenses punished by a life term solely by virtue of the three strikes law. (People v. Thomas (1999) 21 Cal.4th 1122, 1130.) Since shooting at an occupied building in violation of section 246 is not itself punishable by a life term, appellant is entitled to 110 days of conduct credit under section 4019. (People v. Bravo (1990) 219 Cal.App.3d 729, 734-735.) Although respondent suggests that we remand the matter for recalculation of conduct credits, remand is not necessary; we will modify the judgment accordingly.

DISPOSITION

The judgment is modified to reflect 110 days of precommitment conduct credit and a total of 333 days of precommitment credit. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________, J.

CHAVEZ

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The Rude Dog was on the east side of Citrus Avenue. College Street is the first cross street to the north of the bar.

[3] Appellant also had prescriptions for coumadin, an anticoagulant; lipitor, a cholesterol lowering agent; diovan and sotolol, which are used to treat high blood pressure; levothyroxine, a synthetic thyroid hormone; and viagra, an erectile dysfunction drug.

[4] Appellant’s teenage son testified that he “suppose[d],” from his recollection of the police report, that appellant told him he fired the shot while he was outside the car. Appellant’s daughter testified that appellant told her he fired from inside the car, which corroborated his own version of events. Even if the jury believed that appellant got out of the car to fire the weapon, his return to the car and the right turn onto College Street did not manifest flight.

[5] Appellant argues that in the event his trial counsel’s failure to raise this issue at trial results in forfeiture of the issue on appeal, he was denied the effective assistance of counsel. Since, as we explain, there is no merit to the contention, he would not be prejudiced by counsel’s omission even were we to hold that the lack of objection resulted in forfeiture, and he therefore cannot establish ineffective assistance of counsel such as would warrant reversal. (People v. Coddington (2000) 23 Cal.4th 529, 577, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

[6] Section 2933.1 provides that, notwithstanding section 4019, precommitment conduct credit is limited to 15 percent of the actual period of presentence confinement for “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5.” Among the enumerated offenses listed in section 667.5 is “[a]ny felony punishable by death or imprisonment in the state prison for life.” (§ 667, subd. (c)(7).)