P. v. Greene
Filed 11/14/13 P. v. Greene CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
THE PEOPLE, Plaintiff and Respondent, v. FLOYD GREY GREENE, Defendant and Appellant. | B244147 (Los Angeles County Super. Ct. No. YA078978) |
APPEAL from
a judgment of the Superior Court
of
County, James R. Brandlin, Judge. Affirmed as modified with directions.
David H.
Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
>
I. INTRODUCTION
At an
initial trial, a jury convicted defendant, Floyd Grey Greene, of: pimping (Pen. Code, § 266h, subd. (a));
a child under 16 for lewd or lascivious acts (§ 266j). At the first trial, the jury was unable to reach
a verdict on a murder charge. Following
retrial, a second jury convicted defendant of first degree murder. Defendant was sentenced to two consecutive
25-year-to-life terms plus a determinate term of 9 years, 4 months. We modify defendant’s presentence credits. We affirm the judgment in all other respects.
II. THE EVIDENCE
A. The Prosecution Case
1. Events Preceding The Murder
Evelyn
Smith met defendant, a 22-year old pimp, in December 2006. When Ms. Smith met defendant, she was employed,
attending college, and owned a car debt free.
She lived in Hawthorne with
a close friend of several years, Kendra Grimes. Their apartment was on Oxford
Avenue near 118th Street.
After meeting defendant, Ms. Smith stopped
going to school, quit her job and became distant from Ms. Grimes. Ms. Smith became inseparable from
defendant. She gave him a key to the
apartment she shared with Ms. Grimes.
She began to aid him financially.
Early in their relationship, after they became sexually intimate, defendant
told Ms. Smith, “[P]ay me, or pay me no attention.†Ms. Smith gave defendant $1,200. At trial, defendant explained: “Well . . . she would
call my phone, asked me why I ain’t called her back, what’s wrong, what’s the
matter. [¶] And I basically let her know pay me, or pay me
no attention. I mean, what is this? Where are we going with this? Was just a sexual encounter.†In addition to giving defendant money, Ms. Smith
purchased a car for him, a midnight blue Chevrolet Monte Carlo. When defendant failed to make the payments on
the Monte Carlo, Ms. Smith
traded in her own car to cover the loan.
As the relationship continued, and Ms. Smith’s financial resources
dwindled, defendant encouraged her to become a prostitute.
In January
2007, Ms. Smith began to work as a prostitute. From January to May 2007, Ms. Smith
entertained four to five customers each night and earned approximately
$100. She gave all the money she earned
to defendant. Defendant paid Ms. Smith’s
rent and provided her with necessities. When
asked why she took up prostitution, Ms. Smith testified: “I just feel like I was just at a low point
in my life, and I feel like [defendant] took advantage of me. And used that to his advantage.â€
In April
2007, Ms. Smith was arrested for prostitution. Defendant woke Ms. Smith’s roommate, Ms. Grimes,
in the middle of the night. Defendant
asked Ms. Grimes to post Ms. Smith’s bail. Defendant provided the bail money. Ms. Grimes executed the necessary
paperwork in her name. This was when Ms. Grimes
first learned that Ms. Smith was engaged in prostitution.
In May
2007, Ms. Smith met Marco Smith at a gym.
They exchanged phone numbers.
Later, they met at a park. On a
second occasion, they went to a restaurant in Ladera
Heights. This was the first time Ms. Smith had
dated anyone since meeting defendant.
She did not want Marco
name="_ftnref2" title="">[2] to know she was a prostitute.
2. The Murder
Ms. Smith
had a third date with Marco on May 5,
2007. Defendant had arrived
at Ms. Smith’s apartment earlier that evening with a friend. Ms. Smith told defendant she had a
date. She did not say it was a
non-prostitution date. Ms. Smith
left the apartment when Marco telephoned and said he was parked outside her
building. Defendant was still in the apartment at that time. Ms. Smith returned to her apartment with
Marco sometime around or after midnight. Not long after arriving home, Ms. Smith asked
Marco to take her to the store. Because
he did not want to go out, Marco gave Ms. Smith the key to his Honda. Ms. Smith stopped first at a
payphone. On May 6, 2007, between 1:07
a.m. and 1:09 a.m., Ms. Smith called defendant’s cellular telephone number
four times. Ms. Smith did so she
said because she was required to check in with defendant nightly. Ms. Smith testified defendant did not
answer; she left him a message saying she was at home. She then drove to a liquor store where, as
shown by surveillance videotape, she purchased a soda at 1:13 a.m.
Ms. Smith
parked Marco’s Honda on 118th Street and walked back to her apartment on Oxford
Avenue. Once inside her apartment, Ms. Smith
discovered she did not have Marco’s car key.
After securing a flashlight, Ms. Smith and Marco returned to the
car. Marco carried the flashlight. They looked into the car on the passenger
side. As they walked to the driver’s
side of the vehicle, defendant stepped forward.
He was wearing a “hoodie†that covered his head. Defendant said something Ms. Smith did
not understand. Then defendant shot
Marco at least twice. Ms. Smith
ran. She used a borrowed cellular telephone
to call an emergency operator. Ms. Smith
made the emergency call at 1:31 a.m. and related her friend had been shot.
Around
midnight that evening, John Garcia was in his Hawthorne apartment on 118th
Street near Oxford Avenue. Ms. Smith’s building was nearby, on
Oxford Avenue north of 118th Street. Mr. Garcia
was on his balcony smoking a cigarette. He
saw a young, slender, well dressed and groomed African-American man standing on
the sidewalk. The man was standing beneath
a light. He was wearing a large, very
shiny wristwatch. The man looked
repeatedly towards the corner of Oxford Avenue.
Ten to fifteen minutes later, the man walked to the corner of Oxford
Avenue and 118th Street. He stood there
no more than five minutes, then returned to his original position. The man continued to look down the street
toward Oxford Avenue. Eventually, the
man walked east on 118th Street toward York Avenue. He crossed the street and got into a vehicle
parked on 118th Street. It was a very
dark blue or black shiny, clean car. It
was parked 150 yards away even though there were no cars parked on 118th Street
in front of Mr. Garcia’s apartment building. The man drove west on 118th Street and turned
right on York Avenue. Five to eight
minutes later, the man returned. He
parked his car in the same spot and returned to stand under the light. The man resumed looking down the street,
primarily toward Oxford Avenue. After Mr. Garcia
reentered his apartment, he heard three bangs.
He ran outside. Mr. Garcia
thought he saw someone lying near a car but he was not sure. The dark blue or black car he had earlier
observed was gone. Mr. Garcia had
seen the African-American man’s face numerous times. Mr. Garcia’s view of the man was
unobstructed. At trial, however, Mr. Garcia
was unsure the man who got into the car and drove away the night Marco was shot
was the man in the courtroom. He
testified: “It’s been a long time. And there was a distance. And my mind is - - not what it used to
be. I’m 74 years old.â€
Sergeant
Stephen Colquette responded to a “shooting victim†radio call around 1:30 a.m. When Sergeant Colquette arrived, Marco was lying
in the street. Marco was lying next to
his car. He was unresponsive. Paramedics declared Marco dead at 2:02
a.m. Marco had suffered two fatal
gunshot wounds.
Sergeant Richard
Biddle arrived on the homicide scene at 4:20 a.m. Sergeant Biddle observed an illuminated
flashlight in the street near Marco’s body.
A Honda key was on the front passenger seat of Marco’s vehicle. The Honda was locked.
Sergeant
Biddle interviewed Ms. Grimes at 5:30 a.m.
Ms. Grimes said that on May 5, 2007, she had returned home from
work around 4:30 p.m. Ms. Smith was
in the apartment at that time. Ms. Grimes
left the apartment sometime later, returning around 9 p.m. Ms. Smith was at home when Ms. Grimes
returned. At some point, Ms. Grimes
saw defendant in the apartment. Defendant
was accompanied by a man Ms. Grimes had not seen before that night. According to Ms. Grimes, defendant and the
unidentified man went into Ms. Smith’s room. Prior to 11 p.m., Ms. Smith, defendant,
and the other man left the apartment. Ms. Grimes
went out again. Ms. Grimes told
Sergeant Biddle she returned home at about 1:15 a.m. and went straight to her
bedroom. She heard the apartment door
open. Ms. Grimes assumed Ms. Smith
had returned for the night. Ms. Grimes
heard the television in Ms. Smith’s bedroom. Sometime later, Ms. Grimes heard Ms. Smith
leave the apartment. The next thing Ms. Grimes’
knew, Sergeant Biddle was knocking on her door.
Sergeant
Biddle interviewed Ms. Smith at 8:05 a.m. Ms. Smith told Sergeant Biddle she did
not see the gunman. At trial, Ms. Smith
explained why she had denied seeing the assailant: “I was afraid, and I didn’t want to be
considered a snitch. [I was afraid]
[t]hat the same thing might happen to me.â€
At first, when interviewed by Sergeant Biddle, Ms. Smith refused to
answer questions about “Aaron,†the name by which Ms. Grimes knew defendant. Ms. Smith subsequently admitted,
however, that “Aaron†was defendant whose true name was Floyd. Ms. Smith admitted to Sergeant Biddle that
defendant was her boyfriend.
With Ms. Smith’s
permission, Sergeant Biddle searched her bedroom. Sergeant Biddle found a bag belonging to
defendant. The bag contained three live
.38-caliber lead wadcutter bullets. As
Sergeant Biddle later learned, the two bullets recovered from Marco’s body were
also .38 caliber wadcutter bullets. All
five bullets were of similar design and construction. Sergeant Biddle also found bank records in Ms. Smith’s
bedroom. Those records led him to
believe Ms. Smith had committed bank fraud. Sergeant Biddle arrested Ms. Smith. A few days later, defendant posted bail for Ms. Smith.
Sergeant
Biddle interviewed defendant on May 14, 2007.
Defendant said that on the night of the murder, he went to Ms. Smith’s
apartment. Defendant was accompanied by
a friend named Eric. Ms. Smith told
defendant she had a date. Defendant told
Sergeant Biddle it was a working date Ms. Smith had arranged. Defendant thought Ms. Smith left the
apartment around 6:30 or 7 p.m. During
the interview with Sergeant Biddle, defendant described what happened after Ms. Smith
left the apartment: “She left. Me and [Eric] chilled for a minute. I was like, what you going to do? He was like maybe take to the house. I dropped him off. . . .†Defendant dropped Eric off at home and went
to Sepulveda Boulevard in Van Nuys. He
stayed in the San Fernando Valley until after 1:30 a.m. Defendant spent the night with his girlfriend,
Tyquana Edwards, at the El Segundo Inn.
They arrived at about 2 a.m. Defendant
admitted ownership of the bullets Sergeant Biddle found in Ms. Smith’s
bedroom. Defendant denied, however, that
he owned a gun. During the May 14, 2007
interview, defendant said he found the .38 caliber wadcutter bullets in a
flower bed.
Mr. Garcia
viewed a photographic lineup on May 22, 2007.
Mr. Garcia told Sergeant Biddle that two people, including
defendant, looked something like the man who drove away the night Marco was
shot. He wrote: “This number 3 looks something like the
person I seen on the night of the shooting.
It looks something like him.†Mr. Garcia
further wrote: “Also number 4 looks like
him.†When shown the photographic lineup
by Sergeant Biddle, Mr. Garcia was asked, “So what I gather when I read
this, you’re relating number 3 looks more like the guy then number 4?†Mr. Garcia responded, “If I have to [choose]
between one and the other, I would probably pick number 3.†When Mr. Garcia testified on July 16,
2012, he had a difficult time recalling the precise identification he made on
May 22, 2007. Sergeant Biddle also
showed Mr. Garcia a watch. The
watch had been found in defendant’s car several days after Marco’s murder. Defendant admitted it was his watch. When Mr. Garcia saw the watch he
said: “Oh my lord, that looks like it,
yeah. That looks like it.†According to Sergeant Biddle, Mr. Garcia
sounded confident.
As noted,
Sergeant Biddle interviewed defendant on May 14, 2007. During that interview, defendant claimed he
was in the San Fernando Valley on May 6, 2007, at 1:30 a.m. This was the time Marco was murdered. However, cellular telephone records showed
defendant’s telephone was in Hawthorne on May 5, 2007, at 9:54 p.m. and 10:24
p.m. At 1:59 a.m. on May 6, 2007,
defendant’s cellular telephone was in Pasadena.
It would have taken defendant approximately 23 minutes to get from the
murder scene to Pasadena. Between 10:24
p.m. on May 5, 2007, and 1:59 a.m. on May 6, 2007, defendant’s cellular
telephone did not make or receive any telephone calls in the San Fernando Valley.
3. Events Following The Murder
Ms. Smith’s
brother, Tiarou Smith, visited her at the sheriff’s station.
speaking with her, he formed the opinion she was lying. He encouraged her to tell the truth. Tiarou spoke with Sergeant Biddle. Tiarou said he doubted his sister’s veracity.
While Ms. Smith
was in jail, defendant drove to Long Beach and picked up a 14-year-old
prostitute, Nadie B. Defendant demanded Nadie tell him her true age because, “I
have a lot of shit over my head.†Nadie
was with defendant when he posted Ms. Smith’s bail. After bail was posted, defendant, Ms. Smith
and Nadie spent the night in the Los Angeles area. The following day, they drove to
Oakland. During the drive north,
defendant asked Ms. Smith what Sergeant Biddle knew about the murder. Ms. Smith told defendant she had not
identified him as the person who shot Marco.
Defendant expressed the view that the police did not have anything on
him.
While in
Oakland, Nadie overheard defendant speaking on the telephone. Defendant said he had shot and killed
someone. But he did not think Ms. Smith
would talk. And he did not think law
enforcement officers had the gun used in the murder. Nadie testified: “He said that he shot and killed
someone. And that—he didn’t know if they
had the gun or not, and as far as the—they didn’t have enough evidence against
him.â€
Tiarou was
unable to locate his sister, Ms. Smith, after she was released from
custody. He did not know who had posted
her bail. On May 11, 2007, with Sergeant
Biddle’s assistance, Tiarou made a missing person report to the police.
Also while
in Oakland, Nadie had an argument with defendant. Because she was angry at him, she decided to
telephone the police. On May 12, 2007, at
approximately 12:41 a.m., Nadie spoke with an Oakland police emergency
operator. In that conversation, Nadie
said her name was Michelle Williams. Nadie
told the operator defendant was wanted for murder. She gave the operator defendant’s first name,
a physical description, his location, a description of his car—a gold Chevrolet
Impala with chrome rims—and a partial license plate number.
After
spending about a week in
defendant, Ms. Smith and Nadie returned to Los Angeles. The date was May 13, 2007. Shortly after they arrived, they were stopped
by police officers. Defendant was
arrested for being a felon in possession of ammunition. Ms. Smith was detained due to her
brother’s missing person report. Nadie
was transferred to the custody of the Department of Children and Family
Services. Following his arrest,
defendant asked Ms. Smith to tell law enforcement officers she found the wadcutter
bullets on the car and planned to get rid of them but had not done so.
Sergeant
Biddle learned defendant, Ms. Smith and Nadie were in custody. Just after midnight on May 14, 2007, Sergeant
Biddle interviewed defendant. Defendant
said he was driving the Impala because his Monte Carlo needed repair. Defendant acknowledged he had been at Ms. Smith’s
apartment the night of the shooting. Defendant
said that after Ms. Smith left on her prostitution date, he went to the San
Fernando Valley until about 1:30 a.m.
Then he drove to Pasadena to pick up his girlfriend, Ms. Edwards. Defendant admitted the wadcutter bullets were
his. He said he found them in a
flowerbed somewhere. Also on May 14,
2007, Sergeant Biddle searched defendant’s Impala. Defendant’s watch, the one identified by Mr. Garcia,
was in the center console. Sergeant
Biddle also found two magazines titled “Combat Arms†and “Guns, Weapons.†A sticker on the Impala’s rear window read,
“All on a bitch.â€
Later that
day, May 14, 2007, Sergeant Biddle interviewed Ms. Smith. He asked if she was afraid and whether she
was being forced to do anything against her will. Ms. Smith denied that anything was amiss. She refused to answer other questions and was
released.
4. Defendant and Ms. Smith Are Charged With
Murder
Three years
later, on August 31, 2010, Deputy District Attorney Cynthia Barnes filed a
felony complaint naming defendant and Ms. Smith. Sergeant Biddle interviewed defendant at 3:10
p.m. on that date. Sergeant Biddle engaged
in a ruse. Sergeant Biddle described the
ruse, “I used a ruse, and told him that we were meeting with [Ms. Smith’s]
attorney the next day, and asked him what he thought [Ms. Smith] was going
to tell us, because the attorney represented to us [Ms. Smith] was finally
going to tell us the truth.â€
On
September 2, 2010, Sergeant Biddle arrested Ms. Smith for Marco’s
murder. At first Ms. Smith insisted
she did not see the killer. Ultimately,
however, she told Detective Biddle it was defendant who shot Marco. Ms. Smith then telephoned her
mother. The conversation included the
following: “[Ms.] Smith: . . . I just told them
what happened. I just never did because I
was afraid, so. [¶] [Mother]:
So you know about it? [¶] . . . [Ms.] Smith: Yeah.
[¶] [Mother]: You did?
[¶] [Ms.] Smith: I - - Yeah.
[¶] [Mother]: So they going to let you go? [¶]
[Ms.] Smith: Well, they said that
they’re going to talk to the DA about it and see if - - [¶]
[Mother]: So why did they let you
talk? [¶] [Ms.] Smith:
Huh? [¶] [Mother]:
So what did they tell you to make you talk? [¶]
[Ms.] Smith: I don’t want to be
involved in - - I don’t want to be no snitch . . . . [¶]
[Mother]: Oh, okay. So we can’t come and get you? [¶]
[Ms.] Smith: I don’t think
so. [¶]
[Mother]: They don’t drop the
charges? [¶] [Ms.] Smith:
Well, they have to talk to the DA and they - - [¶]
[Mother]: And then you’re going
to be a witness? [¶] [Ms.] Smith:
Yeah.†Ms. Smith
subsequently entered into proffer and immunity agreements with the
prosecution. She agreed to enter an open
guilty plea to being an accessory after the fact in violation of section 32. She faced a sentence of up to three years in
state prison. She agreed to tell the
truth at the preliminary hearing and at trial.
5. Defendant’s Subsequent Communications While
In Custody
Jennie
Martin, known as “Gigi,†met defendant in June 2010 while he was in custody. They became boyfriend and girlfriend. On August 31, 2010, at 5:47 p.m., less than
three hours after speaking with Sergeant Biddle, defendant telephoned Ms. Martin. Defendant said he had just come from speaking
to detectives. He said they were trying
to charge him with murder. Defendant
told Ms. Martin, “Call this number and say your nephew Money on the
phone.†Defendant then spoke to someone
he called “Auntie.†Defendant asked
“Auntie†to find out what was happening with a niece. He told “Auntie,†“[L]oose lips sink ships.†He told “Auntie,†“I would greatly appreciate
it if . . . you know what I’m saying, if you would reach
out and connect the dots and see what’s going on.†Defendant then directed Ms. Martin to
telephone an uncle. Defendant told Ms. Martin
to let the uncle know what was going on but not to talk too much.
Two days
later, on September 2, 2010, at 3:23 p.m., defendant told Ms. Martin to
call “Auntie,†“The one you’ve been calling and she been, you know, doing this
and that.†Defendant and Ms. Martin
discussed what Ms. Martin should say:
“[Defendant]: Tell her it’s just
sunny with no clouds just as long as the weather storm doesn’t come to
town. [¶] [Ms.] Martin:
Sunny, okay. [¶] [Defendant]:
Yeah, as long as the storm doesn’t blow in there won’t be no chance of
rain. [¶] [Ms.] Martin:
Okay. [¶] [Defendant]:
Yeah, and as long as there’s no thunder, everything should be okay. [¶]
[Ms.] Martin: Okay. [¶]
[Defendant]: Yeah. And I mean she – she should really understand
what I’m talking about. If not, she
should have a clue. [¶]
. . . [¶]
[Defendant]: [R]ight now in this
situation I wish my uncle was here, man, on everything I love. [¶]
[Ms.] Martin: It’ll happen,
don’t’ worry. [¶] . . .
[¶] . . . [T]hey’re looking for that storm system in the
daylight -- [¶] [Defendant]: . . . [Y]ou
understand what I’m talking about?
[¶] [Ms.] Martin: Uh-huh.
[¶] [Defendant]: Yeah, they looking for that storm system in
the daylight with a flashlight, believe that.
[¶] [Ms.] Martin: Okay.
[¶] [Defendant]: Yeah.
[¶] [Ms.] Martin: What is wrong with her? [¶]
[Defendant]: So as long as the
weather man say clear sky, I’m straight.†At trial, Sergeant Biddle offered an opinion
as to the import of the conversation between defendant and Ms. Martin. Sergeant Biddle believed the foregoing was
defendant’s attempt to verify that Ms. Smith was not in custody. Sergeant Biddle testified, “[M]y impression
[was] that [defendant] was saying as long as [Ms. Smith] was not in court,
everything was good for him.â€
In a
September 10, 2010 conversation at 2:24 p.m.,
defendant told Ms. Martin, “ . . . I got to
tell my cousin though, I’m going to keep it real light, baby, I’d like to look
out for this other person too while I’m in jail just to make sure she – you
know what I’m saying, those streets are ugly.â€
Defendant said: “I got all the
info at least on my cousin . . . [¶] . . .
[¶] . . . Yeah.
It’s like 20 bucks a week or some, nothing too much, so it ain’t too
heavy on them for like $20 a week . . . .†Defendant told Ms. Martin to call his
cousin Monique. When Monique came on the
line, defendant told Monique to visit Ms. Smith in jail and say, “I’m
going to have – I’m going to have Uncle . . . or Demetrius
put some money on her books every week, but she ain’t got to trip, you feel
me?†Defendant told Monique, “[J]ust
talk to her and see what’s going on.â€
After his conversation with Monique, defendant told Ms. Martin to
find out the visiting days and hours at the jail. Defendant instructed Ms. Martin to let
Monique know about the visitation hours and days. He urged Ms. Martin to, “Tell [Monique]
to find out if it’s clear skies, partly cloudy, is it hailing, lightning,
thunderstorms, is there all that type of . . . too.â€
Later that
day, at 9:20 p.m., defendant called Ms. Martin to follow up on his earlier
request. Defendant told Ms. Martin: “When we get off the phone, text [the
visiting information] . . . to my little cousin . . . and
tell her to make sure she gets up here.
And then text my uncle and tell him, . . . if he’s
cool, like put $20 a week on the books over there. [¶] . . . [¶] . . .
I’m trying to make the – make the stay as comfortable as possible so that, . . . it
ain’t easily influenced by the outer source.â€
Defendant urged Ms. Martin to make sure his cousin went to visit Ms. Smith
in jail. He suggested Ms. Martin
accompany the cousin: “That way, because
she knows that person so that way they can talk, . . . and
you can kind of just go with her so she can know what’s up.â€
Two days
later, on September 12, 2010 at 6:48 p.m., defendant had another conversation with
Ms. Martin. Defendant asked Ms. Martin
to find out how much a subscription to Vogue or Glamour would cost. He commented:
“ . . . I’m just thinking of everything so the
motherfuckers can be comfortable. So the
motherfuckers . . . don’t let the pressure . . . crack
like a hardboiled egg.†Defendant also
asked Ms. Martin to e-mail his “boy†and “let him know where I’m at and
shit like that, tell him come holler at me under the ASAP.†Defendant commented, “And shit will run a
little bit more smoother.†Defendant
further instructed Ms. Martin to call an uncle. Defendant said, “I want to check in on my
little cousin just to make sure she ain’t in the streets.†Defendant then conversed with an unidentified
male: “[Defendant]: Did you ever get in contact with my
cousin? [¶] Male:
Hang on. Not with my niece. . . .
[¶] . . . [¶]
[Defendant]: I’m trying to do –
I’m trying to – I’m going to say this kind of quick though, you know what I’m
saying, that way keep your antennas up.
I’m doing what I can as far as on my end, you feel me, to make sure
everything is copasetic over that way because they got the girl’s ass, you know
what I’m saying, booked down over here, brother. [¶]
Male: Right. [¶]
[Defendant]: Yeah. . . . I’m doing what I
can, you know, . . . [¶] . . . [¶]
. . . But you know, if it’s feasible, I’m going to need . . . like
every other week if you could, just like hit her books with like 20 bucks or
something, . . . that way . . . [¶] . . .
[¶] . . . That way everything will be A-One . . . make
the motherfuckers stay comfortable, you feel what I’m talking about? [¶] . . . [¶] . . .
[I]f you could every other week, shoot ___ over that way so that way . . . the
motherfucker will be comfortable . . . and they ain’t
trying to . . . break under this storm right here . . . .â€
Anthony
Cheval met defendant, known as “Dinero,†in jail. On September 28, 2010, Mr. Cheval was
scheduled to appear in court in the Antelope Valley. When in the courthouse, he had access to a
telephone. Defendant asked Mr. Cheval to
telephone Ms. Martin from the courthouse.
Mr. Cheval was to tell Ms. Martin that defendant loved her. Defendant wanted the message conveyed to Ms. Martin
that she should continue to do what he asked of her. Mr. Cheval took notes of his conversation
with defendant. Mr. Cheval wrote
down, “For Dinero, G.G.â€; a telephone number.
Mr. Cheval later wrote: “‘Don’t
stress and continue to do all as I asked.
I love you.’†In the recorded
conversation between Mr. Cheval and Ms. Martin, Mr. Cheval said: “ . . . [Defendant] asked
me to call you and just let you know that he okay, and not to stress out, and
he just said he loves you and continue what he asked you to do . . . . [¶] . . . [¶] . . .
[H]e said to continue to do everything he asked . . . . [¶] . . . [H]e said
don’t stress. Don’t stress out, don’t
trip, it’ll be okay.â€
Ms. Smith
was traveling from court back to the jail one day by bus. A man in the back of the bus began to yell Ms. Smith’s
name. He passed a necklace to the front
of the bus where Ms. Smith was seated.
Ms. Smith did not accept the necklace. The unidentified man in the back of the bus
said, “Floyd said not to listen to the D.A.â€
(This statement was admitted for the effect it had on Ms. Smith’s
state of mind.) Ms. Smith felt
scared.
While in
county jail custody, Ms. Smith received several letters from defendant. Ms. Smith read the letters. Ms. Smith was asked, “[A]fter reading
them, did you give them to your lawyer?â€
Ms. Smith responded, “Yes.†In a later dated September 8, 2010, defendant
wrote: “Dear Evelyn. If you’re reading this, you’re in a fucked up
position, just like I am. First, I want
to say sorry for all of this. I’m sorry
about how things ended between us. Your
car, your job, and your life. [¶] I made a bad decision loving Tyquana and not
listening to you, not putting my heart and trust in your arms.†In another letter, defendant said: “No intentions to change what you say or
feel. I want you to stay—your course. I only tried to make your stay comfortable by
sending people you know to see you and putting money on your books. Also, when you were on the bus, that guy
yelling your name had a handmade chain for you.
It was a heart with both our names on it. You know me just like I know you, and you
allowed them to make you believe something that—you tried to use me as a way
out of jail. You know if I could, I
would—would have bailed you out so you could be at home.†Defendant signed the letter, “Jeremiah’s
Dad.†Ms. Smith explained that
defendant thought—incorrectly—that she had been pregnant by him. Jeremiah was the name defendant chose for the
child. Ms. Smith acknowledged that
in some of his letters, defendant said he loved her. She testified, “For me, it was as though he
was trying to sweet-talk me to kind of do what he wanted me to do.â€
On January
11, 2012, while awaiting trial, Sergeant Biddle went to defendant’s jail cell. Defendant asked Sergeant Biddle how the
weather was in a specific city. Sergeant
Biddle took the question as a threat or intimidation. This was because Sergeant Biddle did in fact
live in the city named by defendant. The
location of Sergeant Biddle’s residence was confidential information. As a result, Sergeant Biddle took additional
steps to ensure his safety and that of his family.
B. The Defense Case
1. Dr. Mitchell Eisen
Dr. Eisen
had a Ph.D. in psychology. Dr. Eisen
testified concerning eyewitness memory.
He discussed limits on attentional capacity. Dr. Eisen described the retrieval
process and memory function. He
observed, among other things, that memory declines when people are in their 70s. Dr. Eisen further discussed eyewitness
memory in the specific context of a photographic lineup.
2. Randy Lee
Mr. Lee was
a Honda salesperson. He explained the
manner in which a Honda Element could be locked without a key. The only way to lock the car when the key was
on the front passenger seat was to: open
the driver’s door; press the locking mechanism on the door; and close the door.
3. Anthony Paul
Mr. Paul
was a firearms examiner. Mr. Paul
had examined the bullets recovered by the coroner as well as those found in Ms. Smith’s
apartment. His findings were consistent
with those of the law enforcement firearms examiner. The bullets recovered by the coroner had been
fired from the same weapon. All of the
bullets examined were very similar in terms of design.
4. Defendant
Defendant
admitted he was known by the names Aaron and Dinero in addition to his true
name. He did not want other women to
know his real name because he was involved in a relationship at home. He lived with his fiancée, later his wife, Ms. Edwards.
In April 2007, defendant had three women
working for him as prostitutes. Ms. Smith
was one of those women. Defendant
described his movements on May 5 to 6, 2007.
He left Ms. Smith’s apartment at about 10:30 p.m. Defendant knew she had a date. He did not know whom the date was with. Defendant had never previously met
Marco. He believed it was a prostitution
date. Defendant did not see Ms. Smith
get into Marco’s car. He drove to the
San Fernando Valley, to an area where prostitutes work. Defendant went there to recruit women. After an hour or two, he left. Defendant drove to Pasadena to pick up Ms. Edwards. He received a message from Ms. Smith the
following day saying she was in jail on a grand theft charge. Defendant denied he had anything to do with
the bank fraud. Defendant posted Ms. Smith’s
bail. Ms. Edwards, who was
employed, signed the bond. Defendant
picked up Ms. Smith around midnight.
They drove to Oakland. Nadie was
with them. He had picked her up in Long
Beach. Nadie wanted him to be her
pimp. During the ride to Oakland, Ms. Smith
told defendant her date had been shot.
She also said the police had been asking about defendant. After several days, they left Oakland and
returned to Los Angeles.
After his
arrest for the May 6, 2007 killing, defendant discovered Ms. Smith had
entered into a plea agreement and was naming him as the murderer. Defendant spoke with friends and family. He needed something to substantiate the fact
that Ms. Smith was lying. On May 6,
2007, between 1:15 and 1:31 a.m., defendant testified he was on Sepulveda
Boulevard in the San Fernando Valley. He
got there around 11:30 p.m. Defendant
admitted writing several letters to Ms. Smith. Defendant was asked why in a September 8, 2010
letter to Ms. Smith, he never accused her of lying about his complicity in
the killing. This was eight days after Ms. Smith
had accused defendant of killing Marco.
At no time in the September 8, 2010 letter did defendant mention anything
about Ms. Smith lying or falsely accusing him of the killing. Defendant did not confront her about it. He admitted he attempted to arrange things so
Ms. Smith would be more comfortable in jail. Defendant admitted lying to Sergeant Biddle about
finding the .38-caliber bullets in a flower pot. In fact, Ms. Smith had found them on the
car she had purchased for him, the Monte Carlo.
The car was parked in front of her apartment at the time. Defendant told her to hold on to them so he
could see them. Defendant lied about
finding the bullets because he was raised to not cooperate with law enforcement
officers. Defendant did, however,
eventually tell Sergeant Biddle the truth. Defendant said he thought the bullets were a
sign of some kind.
Defendant
related a theory about Marco’s murder to Sergeant Biddle. Defendant believed a competing pimp had
killed Marco. The killing occurred in
the mistaken belief Marco was defendant.
While this trial was in progress, defendant intentionally told Sergeant
Biddle a different, untrue version of the events surrounding Marco’s
murder. Defendant explained his
motivation. “ . . . I
needed to . . . prove that this dude [Sergeant Biddle] will
believe anything to convict me of a case.â€
When describing at trial the false story presented to Sergeant Biddle,
defendant was asked, “[D]id you tell [him] that although you did not kill Marco . . . ,
you help set him up to be killed?†Defendant
responded, “Yes, I did.†Defendant told
Sergeant Biddle a friend gave him $20,000 to kill Marco. Defendant said he hired two gang members to
commit the killing and paid them $7,500.
He kept the rest of the money for himself. Defendant further informed the detectives
that Ms. Smith was his accomplice. Defendant
arranged for Ms. Smith to meet Marco.
She then set up the date with Marco and telephoned defendant. Ms. Smith wanted to let defendant know
where they were. She then locked the
keys in Marco’s car in order to lure him out of the apartment. Defendant testified Sergeant Biddle never denied
believing this story.
C. Rebuttal
1. Queenmonique W.
Queenmonique
met defendant when he was visiting her neighbor. During their first conversation, defendant
asked Queenmonique whether she was old enough to vote. She told him she was not. The second time Queenmonique encountered
defendant, he came into her apartment, orally copulated her and had sexual
intercourse with her. Afterward, he told
her there would be trouble if he heard about her being with someone else. He said her “pussy†belonged to him. Defendant admitted the oral copulation
occurred, but denied he had sexual intercourse with Queenmonique. He denied making the statements she
attributed to him.
2. Sergeant Biddle
Sergeant
Biddle testified concerning some of defendant’s statements. On August 10, 1010, defendant told him Ms. Smith
had found the bullets on top of the Monte Carlo when it was parked near her
apartment. Defendant said he told Ms. Smith
to take the bullets into her apartment.
Sergeant Biddle also acknowledged that defendant had offered the
competing pimp murder theory. Sergeant Biddle
investigated but was unable to corroborate defendant’s story. Sergeant Biddle also investigated defendant’s
subsequent murder for hire explanation.
He was unable to corroborate the underlying facts. In their conversations, Sergeant Biddle never
said anything that evinced a belief defendant did not kill Marco.
III. DISCUSSION
A. Ms. Smith’s Testimony
Defendant
asserts a violation of his due process
rights in that the prosecution knowingly introduced Ms. Smith’s perjured
testimony. Defendant argues the error
was compounded by evidence Ms. Smith’s immunity agreement required
truthful testimony. We conclude: defendant forfeited the argument by failing
to raise it in the trial court; defendant has not shown knowing use of perjured
testimony; and any error was harmless.
The
prosecution’s knowing use of perjured testimony violates a defendant’s due
process rights. (Napue v. Illinois (1959) 360 U.S. 264, 269; People v. Vines (2011) 51 Cal.4th 830, 873; People v. Sakarias (2000) 22 Cal.4th 596, 633.) Here, however, defendant forfeited his
perjured testimony contention by failing to raise it in the trial court. (People
v. Letner and Tobin (2010) 50 Cal.4th 99, 167; People v. Wilson (2008) 44 Cal.4th 758, 800.) The issue is not properly before us.
Even if the
issue was properly before us, we would not find reversible error. Our Supreme Court has held, “[A] conviction
will be reversed if it was obtained by evidence that the prosecution knew or
should have known was false (e.g., United
States v. Agurs (1976) 427 U.S. 97, 103) . . . .†(People
v. Mayfield (1997) 14 Cal.4th 668, 735.) “When the prosecution [introduces and then]
fails to correct testimony of a prosecution witness which it knows or should
know is false and misleading, reversal is required if there is
testimony could have affected the judgment of the jury. This standard is functionally equivalent to
the ‘“harmless beyond a reasonable doubtâ€â€™ standard of Chapman v. California (1967) 386 U.S. 18. (In re
Jackson (1992) 3 Cal.4th 578, 597-598[, disapproved on a different point in
In re Sassounian (1995) 9 Cal.4th
535, 545, fn. 6].)†(
909.)
Defendant
has not shown that Ms. Smith’s testimony was false or the prosecution knew
or should have known it was false. (See
pp. 874-875; People v. Morrison (2004)
34 Cal.4th 698, 716-718.) Defendant
rests his knowing falsity contention on Ms. Smith’s testimony that: she did not tell defendant about her
relationship with Marco; she did not tell defendant her May 5, 2007 date with
Marco was a non-prostitution date; defendant did not answer his cellular
telephone when she called him at 1:13 a.m. on May 6, 2007; and she
car. Defendant asserts Ms. Smith’s
testimony on these points contradicted the prosecution’s theory—Ms. Smith
was an accomplice who intentionally set Marco up to be murdered.
We reject
defendant’s argument. First, the
prosecution did not present this case to the jury on a theory Ms. Smith
was an accomplice to the murder. The
theory Deputy District Attorney Teresa Magno presented to the jury was that
defendant committed the killing because of his need to control Ms. Smith. Defendant was threatened by Marco’s
presence. Also, Marco threatened her
economic value to defendant as a prostitute.
Ms. Magno argued: “[T]he
night the shooting happened, [defendant] for the first time saw [Ms. Smith] exerting some
sort of free will[.] [¶] That for the first time since they met
together, the defendant saw [Ms. Smith] going out on a date. [¶] I
submit to you that he saw that as a threat to not just [Ms. Smith], but
his money-making enterprise. That was
the reason why he killed Marco Smith.â€
In her argument, Ms. Magno emphasized all the evidence corroborated
Ms. Smith’s testimony. Ms. Magno
urged the jury to accept Ms. Smith’s version of the events leading up to
Marco’s murder.
Second, the
evidence was consistent with the prosecution’s theory. Defendant exhibited controlling behavior
toward Ms. Smith. After the first
time they were intimate, defendant told Ms. Smith his time was money and
she would have to pay him to see her. Defendant
persuaded her to give him a key to her apartment so that he had access to it at
all times. He had her obtain a tattoo
that read, “V.I.P. Missus.†Defendant
routinely drove her to and from locations where she engaged in acts of
prostitution. He required that she check
in with him nightly. Further, it would
not have been necessary for Ms. Smith to tell defendant about Marco or
about any of their dates. It was
undisputed defendant was at Ms. Smith’s apartment when she left with
Marco. And there was evidence defendant waited
nearby for Ms. Smith to return home.
The jury could reasonably infer defendant kept close track of Ms. Smith’s
activities. Moreover, he saw Ms. Smith
and Marco leave and, later, observed their return. On this record, we cannot conclude Ms. Smith’s
testimony was false or that the prosecution knew or should have known so. Defendant fails to establish the prosecution
knowingly presented false testimony. No
due process violation occurred. (See
pp. 874-875; People v. Morrison, supra,
34 Cal.4th at pp. 716-718.)
Finally, any
error was harmless. Even if the jury
believed Ms. Smith was an accomplice, it is not reasonably probable any
false testimony concealing that fact affected the judgment. Ms. Smith was charged with being an
accessory to the murder after the fact. The
jury was instructed that Ms. Smith was an accomplice to murder whose
testimony must be corroborated by other evidence.
participated in the murder, defendant still lay in wait for and then shot
Marco. Even if her denial she
participated in the murder was false, the jury still had to decide whether
defendant shot Marco. Under these
circumstances, even if the jury believed Ms. Smith aided the murder, it
was not likely the jury would have convicted defendant of anything less than
first degree murder. (See
People v. Bunyard (1988) 45 Cal.3d
1189, 1224-1225.)
It also was
not improper for the prosecution to present evidence and argue to the jury that
Ms. Smith’s proffer and immunity agreements obligated her to tell the
truth. Prior to trial, defendant brought
a motion to redact Ms. Smith’s immunity and leniency agreements insofar as
they discussed her obligation to testify truthfully. The trial court denied that motion. In her closing argument to the jury, the
deputy district attorney, Ms. Magno, argued: “Another factor that you have to consider,
too, is that Evelyn Smith was the recipient of a proffer or leniency
agreement. I’m sure [defense counsel] Mr. Welbourn
will jump up and down and argue that you know what, this pressured her to tell
the truth - - I’m sorry, this pressured her to tell a lie. [¶]
But the opposite is true. The
leniency agreement and the proffer agreement, you’re going to have copies of it
in the jury room. I urge you to read the
details of the contract. [¶] And in these contracts, you will see that she
was not required to identify the defendant as the shooter in all
proceedings. In fact, the language is
very clear that all that was expected of her was to tell the truth. [¶]
And whether or not she’s telling the truth will not be up to Sergeant
Biddle nor the district attorney’s office, but up to the judge. [¶]
This is - - the contract is basically an ironclad, legally binding
contract that protects her if she told the truth, whatever the truth may
be. [¶]
And I submit to you that this leniency agreement actually allowed her to
tell the truth, and not to tell a lie.â€
Ms. Smith
was a key witness against defendant. Her
credibility was, therefore, a highly relevant issue. The terms of her proffer and leniency
agreements were relevant to her credibility.
(People v. Williams (2013) 56
Cal.4th 165, 192; People v. Bonilla (2007)
41 Cal.4th 313, 337.) Moreover, there
was no improper vouching for Ms. Smith’s veracity. As our Supreme Court observed in
place the prestige of the government behind [the witness] through personal
assurances of veracity, or suggest that information not presented to the jury
supported [the witness’s] testimony. (See
People v. Zambrano (2007) 41 Cal.4th 1082,
1167[, overruled on a different point in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22]; People v. Fierro (1991) 1 Cal.4th 173, 211.) It is settled that making a record of the
terms of a plea agreement requiring a witness to tell the truth does not
constitute impermissible vouching. (
971-972[, overruled on a different point in People
v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22]; see [People v.] Bonilla, supra, 41
Cal.4th at pp. 336-337.)†(
p. 193.) The jury was instructed the prosecution
does not “vouch†for any witness; further, that Ms. Smith’s immunity grant
did not make her more or less credible.
instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 73;
436.)
Any error
in admitting evidence Ms. Smith was required by agreement to testify
truthfully was harmless. (
822; People v. Watson (1956) 46
Cal.2d 818, 836.) Substantial evidence
corroborated Ms. Smith’s testimony.
Nothing in the proffer or immunity agreements obligated her to identify
Marco’s killer. Moreover, there was very
substantial evidence of defendant’s
guilt. The verdict would not have been
more favorable to defendant had the jury been uninformed about Ms. Smith’s
contractual obligation to testify truthfully.
B. The Prosecutor’s Argument
Defendant argues Ms. Mango
violated his due process rights in her argument to the jury. Defendant asserts Ms. Mango argued that the
motive for the killing arose from Marco’s developing relationship with Ms. Smith. Ms. Mango argued defendant’s ability
to control Ms. Smith was threatened by the budding relationship with
Marco. The relationship, Ms. Mango reasoned, also affected
defendant’s ability to reap profits from Ms. Smith’s prostitution
activities. Thus, Ms. Mango argued,
these factors collectively served as a motive for Marco’s killing. The asserted due process denial arises, in
defendant’s view, because no evidence supported such an argument to the jurors.
Specifically, defendant argues
there was no evidence: Ms. Smith’s
relationship with Marco was anything other than a casual, platonic friendship;
prior to the night of the murder, he had any reason to believe Ms. Smith,
in his words, “was straying from the ‘stable’â€; he had ever been violent in an
attempt to control his prostitutes; or that he knew who Ms. Smith was
seeing on the night of the killing.
Defendant
concedes he failed to object to Ms. Magno’s argument. He contends, however, that no objection was
required relying on People v. Kirkes (1952)
39 Cal.2d 719, 722-724. We disagree. Our Supreme Court has repeatedly held that
absent an excuse from objecting, the failure to object to prosecutorial
misconduct in closing argument forfeits any issue that could have been raised
on appeal. (E.g., People v. Vines, supra, 51 Cal.4th at p. 872; People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Panah (2005) 35 Cal.4th 395, 462, 463;
p. 432.) A defendant claiming an
exception applies must demonstrate support therefore in the record. (People
v. Gamache, supra, 48 Cal.4th at p. 371; People v. Panah, supra, 35 Cal.4th at p. 462.) Defendant has not demonstrated that any
exception to the objection requirement applies in this case. Even if the issue was properly before us, we
would reject defendant’s contention for the reasons discussed above. The prosecution’s theory was consistent with
the evidence. (People v. Thornton (2007) 41 Cal.4th 391, 454; People v. Willard (1907) 150 Cal. 543, 552.)
C. Queenmonique’s Testimony
Defendant
asserts error in admitting Queenmonique’s testimony about the sex offenses
defendant committed against her and his comments to her at that time. We find no prejudicial error.
Prior to
the retrial of the murder count, the prosecution moved to introduce Queenmonique’s
testimony in its case in chief as evidence of motive and intent under Evidence
Code section 1101, subdivision (b). The
trial court denied the motion. At trial,
Ms. Magno sought to question defendant about his conduct with Queenmonique,
which led to a lewd and lascivious conduct conviction. The fact of the conviction had already been
admitted in evidence, without reference to Queenmonique’s name. In response to a defense objection, Ms. Magno
argued defendant’s statement to Queenmonique—that her “pussy†belonged to
him—was admissible under Evidence Code section 1101, subdivision (b) as
relevant. Ms. Magno argued this
evidence was relevant as to the issue of defendant’s intent. The trial court inquired: “Your theory here is - - you want to confront
him with your theory of the case, which is that he’s a controlling individual,
and that since he was losing control over [Ms. Smith] to a love interest,
that’s the reason he shot the victim?†Ms. Magno
responded: “Yes. Relevant as to intent.†The trial court allowed Ms. Magno to
inquire. The following transpired: “Q [By Ms. Magno]: Do you know Queen W? [¶]
A Yes, I do. . . .
[¶] Q . . . Queen W
is someone you had sex with; correct?
[¶] A Oral copulation, yes. [¶]
Q It was just oral
copulation? You actually . . . had
sexual intercourse with her? [¶] A
Well, that’s what they allege, yes.
[¶] Q You’re saying it did not happen? [¶]
A Yes. [¶] . . . [¶] Q . . . Didn’t you tell
her that her ‘pussy belonged to you?’
[¶] . . . [¶]
A No. . . . [¶] Q
Didn’t you also tell her that if you started hearing about her giving
her pussy to someone else, quote/unquote, ‘We’re going to have problems?’ [¶]
A No. . . .
[¶] Q
So you’re denying this? [¶] A I
never said that.†Ms. Magno
introduced Queenmonique’s testimony in rebuttal as evidence of defendant’s
intent and motive. On appeal, however,
the Attorney General argues the evidence was admissible as relevant to
defendant’s credibility.
We need not
determine whether the trial court erred or abused its discretion. Any error or abuse of discretion was
harmless. The evidence was not
particularly inflammatory in light of other evidence presented in this
case. The jury heard evidence, for
example, that defendant was a pimp whose prostitutes included a 14-year-old
girl. The evidence of his conduct with Queenmonique
was briefly presented. Defendant admitted
he had been convicted of a felony as a result of it. Ms. Magno did not rely on Queenmonique’s
testimony in her closing argument.
Moreover, there was very credible evidence of defendant’s guilt. Ms. Smith was a prostitute who worked
for defendant. Defendant was present
when Ms. Smith left on a non-working date with Marco. Mr. Garcia observed a man matching
defendant’s general description. The man
was driving a car that matched the description of defendant’s car in the
vicinity of Ms. Smith’s apartment just prior to the murder. The man repeatedly looked in the direction of
Ms. Smith’s home. The man was
present around the time Ms. Smith returned home with Marco, when Mr. Garcia
heard shots fired. Ms. Smith, an
eyewitness, identified defendant as the person who shot Marco. Defendant was in possession of bullets of the
same type as those that killed Marco.
Defendant fled to Oakland in the aftermath of the shooting. Further, Nadie heard defendant say that he
had shot someone. And, while in custody,
defendant attempted to find out whether Ms. Smith was talking about the
murder and whether she would turn him in to law enforcement authorities. He wrote love letters to Ms. Smith in an
attempt to manipulate her. He pleaded
with family members to take steps to ensure Ms. Smith’s comfort while in
jail to guarantee her silence. He
repeatedly changed his story about Marco’s murder. Given the evidence in this case, any error in
admitting Queenmonique’s testimony was harmless.
D. Custody and Conduct Credit
The trial
court awarded defendant 976 days of presentence custody credit and 146 days of
conduct credit. However, defendant was
arrested on January 9, 2010, and sentenced on September 11, 2012. As a result, he was entitled to 977 days of
presentence custody credit. (
800, 814; People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48.) In addition,
because he was convicted of a first degree murder committed on May 6, 2007,
defendant was not entitled to any conduct credit. (§ 2933.2, subd. (c), eff. June 3, 1998;
1200, 1226; People v. Wheeler (2003)
105 Cal.App.4th 1423, 1431-1432; see People
v. Cooper (2002) 27 Cal.4th 38, 40, fn. 2.)
The judgment must be modified and the abstract of judgment amended to
award defendant 977 days of presentence custody credit and to delete the
conduct credit award. (See
at pp. 1226-1227; People v. Wheeler,
supra, 105 Cal.App.4th at p. 1433.)
IV. DISPOSITION
The
judgment is modified to award defendant 977 days of presentence custody credit
and zero days of conduct credit. The
judgment is affirmed in all other respects. Upon remittitur issuance, the clerk of the
superior court is to prepare an amended abstract of judgment and deliver a copy
to the Department of Corrections and Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
We concur:
KRIEGLER, J
KUMAR, J.
name="_ftn1" title=""> [1] Further statutory
references are to the Penal Code unless otherwise noted.
because the Smiths have the same surname, we refer to Mr. Smith by his
first name.
