Filed 2/5/18 P. v. Elliott CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL HARTRELL ELLIOTT,

Defendant and Appellant.
C083582

(Super. Ct. No. 15F02594)




A jury found defendant Michael Hartrell Elliott guilty of inflicting corporal injury on his spouse with the enhancement of personally inflicting great bodily injury (Pen. Code, §§ 273.5, subd. (a); 12022.7, subd. (e)--count one) and battery causing serious bodily injury with the allegation of personally inflicting the same (§§ 243, subd. (d); 1192.7, subd. (c)(8)--count two). The trial court subsequently found true allegations that defendant was previously convicted of a strike offense and served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to an aggregate term of 20 years in state prison, which included two consecutive one-year terms for the two section 667.5, subdivision (b) priors.
On appeal, defendant contends the trial court erred when it apparently misspoke while instructing the jury, and argues the court erred at sentencing by considering convictions previously reduced to misdemeanors under section 667.5, subdivision (b). His third and final claim of error is that the trial court erred in deducting/withholding 40 days of conduct credit from his credit total. The Attorney General concedes error as to the second claim, and we agree with the parties that two prior conviction enhancements (§ 667.5, subd. (b)) were imposed in error. We modify the judgment to strike these two enhancements and affirm the judgment as modified.
BACKGROUND
On Mother’s Day 2015, defendant and his wife argued; his wife was drinking alcohol. The ensuing altercation left defendant’s wife with several fractured ribs, a fractured vertebra, blood around her spleen, and multiple liver contusions.
The People charged defendant as outlined ante; defendant pleaded not guilty to the charges and denied the allegations. The case proceeded to trial in September 2016, where defendant testified and later argued that the victim’s injuries were the result of her getting drunk, attacking him, and falling down. The trial court instructed the jury on the elements of the charged crimes and the lesser included offenses, each of which required the People to prove defendant did not act in self-defense. (CALCRIM Nos. 840, 925, 841, 960.) The court also instructed the jury generally on self-defense. (CALCRIM No. 3470.)
Alleged Instructional Error
While reading CALCRIM No. 3470 to the jury, the trial court was reported to say: “Self-defense is a defense to the crimes charged in the lesser included offense.” (Italics added.) The written instruction on self-defense was slightly different, reading: “Self-defense is a defense to the crimes charged and the lesser included offenses.” (Italics added.) Written copies of the jury instructions were provided to the jury.
It is the italicized word difference, “in” versus “and,” that is now at issue. There was no objection voiced to the instructions as read, although the trial court asked the parties immediately after the jury was instructed and out of its presence whether there was “[a]nything for the record?” to which both lawyers responded in the negative.
When addressing the burden of proof relative to self-defense (also in CALCRIM No. 3470), the court was reported to read the instruction as written: “The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the people have not met the burden of proof, you must find the defendant not guilty of the crimes charged or lesser included offenses.”
Prior Prison Terms
On September 20, 2016, the jury found defendant guilty as charged, including the allegations.
On October 28, the trial court conducted a bench trial on the allegations that defendant was previously convicted of a strike offense and served two prior prison terms. Defense counsel objected to consideration of defendant’s prior convictions, which all parties agreed were originally felonies but had since been reduced to misdemeanors, as prior prison terms under section 667.5, subdivision (b). The court found true all three allegations and sentenced defendant to an aggregate term of 20 years in state prison, increasing his prison term by two years for the two prior prison term allegations.
Custody Credits
At sentencing, held immediately after the bench trial, the trial court indicated its intent to withhold a portion of defendant’s conduct credit as a result of his conduct while in pretrial custody. The probation department reported that, while in jail, defendant received 20 days of “full restriction” and he lost 14 days of “commissary” as a result of conduct violations. Those violations were identified as “insubordination/ disobedience (20), engaging in riot/ disturbance, and cursing.”
Defense counsel admitted the probation report indicated defendant was “administratively sanctioned for those behavior infractions,” but argued the trial court did “not have any information, admissible or inadmissible, about the nature of those infractions, apart from their sort of title.” Counsel further argued that by taking away any of defendant’s custody credits, the court would be punishing defendant twice for the same infractions.
The trial court acknowledged it had read only conclusions about defendant’s conduct, but indicated the nature of its information would be a factor in its determination of the quantity of credit to be deducted. The court nevertheless found there was sufficient information in the probation report to justify withholding of credit and indicated its intent to reduce credit by 60 days. The court, however, also acknowledged that defendant had not been given prior notice of the court’s intent and offered to continue the credit determination for hearing at a later date, to which defendant agreed. The court told defense counsel that counsel would need to “prepare something” and “present information” at the credit hearing, because “if I had no more information than this, I would say that it’s worth 60 days.”
The trial court noted defendant was entitled to “no more than 15 percent conduct credits.” The court then found defendant had “forfeited an amount of [his] conduct credit” and reduced defendant’s credit by 40 days rather than the 60 previously indicated, awarding defendant 574 days of custody credit in total, but set further hearing on the issue of credit reduction for December 2, 2016.
On December 2, defense counsel indicated she was unable to proceed on the credit hearing and the trial court dismissed a trailing misdemeanor case and heard two additional motions that are not at issue here, then remanded defendant for execution of sentence previously imposed.
DISCUSSION
I
Instructional Error
As we have detailed ante, when the trial court orally instructed the jury on self-defense, it apparently misspoke and changed a word (“and” became “in”). There was no objection to the instruction as read, and the written instructions were correct. Further, as we noted earlier, in that same instruction (CALCRIM No. 3470), the court orally (and correctly) instructed the jury that self-defense applied to the charged crimes as well as the lessers as follows: “The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met the burden of proof, you must find the defendant not guilty of the crimes charged or lesser included offenses.”
Defendant contends this error is structural and requires reversal because it “removed [defendant’s] defense from the jury’s consideration.” He adds that no objection was required, because the trial court had a sua sponte duty to properly instruct the jury on his theory of defense. Perhaps sensing that a slight mistake during the reading of an instruction outlining the defense theory does not equate to a failure to instruct, he argues ineffective assistance of counsel for failure to object as an alternative theory. Although the claim is forfeited for failure to object, given this alternative theory we will reach the merits of the misinstruction claim.
“The risk of a discrepancy between the orally delivered and the written instructions exists in every trial, and verdicts are not undermined by the mere fact the trial court misspoke. ‘We of course presume “that jurors understand and follow the court’s instructions.” [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.’ [Citation.].” (People v. Mills (2010) 48 Cal.4th 158, 200-201.)
Here, the jury was given correct written instructions; thus, the written instructions controlled. Further, we find no reasonable likelihood the jury was misled such that it did not realize that self-defense applied to the charged offenses as well as the lesser included offenses. “When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803.)
The instruction on self-defense, as read to the jury, was correct except the one challenged word. The trial court correctly instructed that if the People had not met their burden of proof on self-defense, the jury “must find the defendant not guilty of the crimes charged or lesser included offenses.” (Italics added.) The court also instructed that as an element of each charged offense, the People had to prove beyond a reasonable doubt that defendant “did not act in self defense.” Moreover, the written instructions, which were correct, were sent into the jury room for the jury to consult. There is no reasonable likelihood that the jury was misled by the trial court’s inadvertent substitution of words.
II
Prior Conviction Enhancements
Defendant also contends that because his two felony convictions were redesignated as misdemeanors before they were adjudicated in this case and found to be prior prison term enhancements (§ 667.5, subd. (b)), the trial court should have stricken those enhancements. The Attorney General concedes the error, noting: “Under this Court’s decision in People v. Kindall (2016) 6 Cal.App.5th 1199, the enhancements must be struck because appellant’s prior convictions had been reduced to misdemeanors before the trial court adjudicated the recidivist enhancements.” We agree, and will modify the judgment accordingly to strike these two enhancements.
III
Conduct Credit
Defendant claims he was denied due process because the trial court did not provide sufficient notice of its intent to withhold conduct credit and an opportunity to present mitigating evidence. The record belies defendant’s claim.
As we have described, the trial court first indicated its intent to withhold conduct credit prior to sentencing, then offered to continue this specific issue for additional hearing and to give defense counsel a chance to “prepare something” and “present information.” When the continued hearing date arrived, defense counsel had nothing to present. But she and defendant were clearly given notice and the opportunity to present evidence in mitigation. No due process violation appears.
Defendant further claims the trial court abused its discretion in the withholding itself. “A defendant is entitled to presentence conduct credits under section 4019 ‘unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned’ [citation] or has ‘not satisfactorily complied with the reasonable rules and regulations established by the [local custodial authority]’ [citation] [current and former versions of statute identical in these respects]). The court awards such credits at the time of sentencing [citation], not as an exercise of discretion, but based on the sheriff’s report of ‘the number of days that [the] defendant has been in custody and for which he or she may be entitled to credit,’ and only after hearing any challenges to the report. [Citation.]” (People v. Lara (2012) 54 Cal.4th 896, 903.) We review the trial court’s decision on whether a defendant has forfeited credit through misconduct for an abuse of discretion, “and the court enjoys some discretion in determining the amount of credit to be withheld for a serious act of misconduct. [Citation.]” (Ibid.) The trial court’s discretion is not “so broad as to permit it to withhold conduct credits from a prisoner who has satisfied the statutory prerequisites and is entitled to keep them . . . .” (Ibid.)
Here, the probation department reported that defendant’s misconduct while in jail led to multiple infractions and included engaging in a riot or disturbance in the jail. Defendant offered no evidence to mitigate his role in that disruptive event or the circumstances surrounding it, or to mitigate or explain any of the other events reported. Although the trial court at first indicated its intent to withhold 60 days, it later withheld only 40 to account for the 20 days “full restriction” reported by the jail to the probation officer. On this record, the trial court acted within its discretion withholding 40 days of (good) conduct credit from defendant for his misconduct while in custody.
DISPOSITION
The judgment is modified to strike the two prior prison term enhancements. (§ 667.5, subd. (b).) As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.




/s/
Duarte, J.



We concur:



/s/
Raye, P. J.




/s/
Renner, J.