Filed 6/26/17 P. v. McNabb CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAY MCNABB,

Defendant and Appellant.

F070423

(Super. Ct. Nos. CRM018280, CRM019483)


OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 
Michael Jay McNabb appeals from his convictions for grossly negligent discharge of a firearm, assault with a firearm, and possession of a firearm by a felon. He challenges the trial court’s ruling consolidating two separate cases that were pending against him prior to trial. He fails, however, to demonstrate that the ruling was an abuse of discretion. He also challenges, pursuant to Evidence Code section 352, the trial court’s admission of evidence suggesting that he had used drugs and alcohol while engaging in a prior crime or bad act. This contention too fails as any error was harmless. Finally, McNabb and the People both request us to direct the trial court to modify the abstract of judgment, so as to reflect an additional day of actual presentence custody credit for McNabb. We agree that McNabb is entitled to an additional day of actual presentence custody credit and will direct the trial court to modify the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
FACTS AND PROCEDURAL HISTORY
McNabb was charged in an information filed in the Merced County Superior Court with assault with a firearm on John Paul Martini (also known as J.P.) (count 1; Pen. Code, § 245, subd. (a)(2)) and possession of a firearm by a felon (count 2; § 12021, subd. (a)(1)). The information alleged, in connection with the assault charge, that McNabb personally used a firearm and personally inflicted great bodily injury on Martini. (§§ 12022.5, subd. (a), 12022.7, subd. (a).) Finally, as to both counts, the information alleged that McNabb had served two prior prison terms. (§ 667.5, subd. (b).)
Shortly after these charges were filed, the prosecution filed a motion to consolidate the matter with a separate case in which McNabb faced a charge of grossly negligent discharge of a firearm. The latter charge arose from an incident that took place a few days before the assault on Martini. The court consolidated the cases over McNabb’s objection.
The prosecution then filed a three-count consolidated information. McNabb was charged in count 1 with assault with a firearm, in count 2 with possession of a firearm by a felon, and in count 3 with grossly negligent discharge of a firearm. In addition to realleging the enhancements alleged in the original information, the consolidated information further alleged, as to count 3, that McNabb personally used a firearm and had served two prior prison terms. (§§ 969f, subd. (b), 667.5, subd. (b).)
McNabb pled guilty to the grossly negligent discharge of a firearm charge in count 3. He proceeded to trial on counts 1 and 2, i.e., the charges of assault with a firearm and possession of a firearm by a felon, respectively. A jury found McNabb guilty of these charges and found the personal use of a firearm and infliction of great bodily injury enhancement allegations to be true. McNabb admitted the prior prison term allegations in a bifurcated proceeding. He was sentenced to an aggregate term of 19 years eight months in prison.
The charges that McNabb was tried on, i.e., assault with and illegal possession of a firearm, arose from an incident that took place at approximately 1:00 a.m. on June 23, 2011, in which John Paul Martini (J.P.) was shot through the left buttock, with the bullet emerging from his left upper thigh. This incident occurred in front of an apartment complex where Troy Wilson, a friend of both McNabb and Martini, lived. The apartment complex was on Broadway in downtown Atwater.
McNabb and his friend, Michael Pichardo, were driving by the complex in McNabb’s red Jeep. Wilson was standing outside, so McNabb stopped to talk to him. Martini, his wife Melissa Daniel, and his friend Jason Bowden happened to drive by the complex shortly thereafter, in a white Suburban. Martini and Bowden had been involved in a series of disputes with McNabb and Pichardo during the period leading up to June 23, 2011. On this night, however, when Martini and Bowden saw Wilson standing on the side of the road, they pulled over, parked behind McNabb’s red Jeep, and got out to greet Wilson. While Martini and Bowden were greeting Wilson, McNabb shot Martini.
Martini did not testify at trial. However, Martini’s wife, Melissa Daniel, testified that shortly after Martini and Bowden got out of the Suburban to talk to Wilson, she saw McNabb shoot Martini. Daniel was sitting in the front passenger seat of the white Suburban facing Wilson, Bowden, and Martini, who was standing fairly close to her window. Daniel could see everything clearly, because the Suburban’s lights were on. She testified she suddenly saw McNabb, who had been standing by the driver’s side of the red Jeep, walk across the front of the Suburban to where Martini and the others were standing. She saw that McNabb had a gun. McNabb twice called out to Martini, “Hey, J.P.”; at the same time, Daniel shouted to warn Martini and Bowden. Bowden took off running. Martini turned towards McNabb, who shot him “in his butt.” Daniel could see McNabb’s face “very clear[ly]” because “[i]t was right in the light.” After shooting Martini, McNabb “got in his vehicle and he just floored it and he left.” Daniel subsequently gave a description of the shooter to the police that matched McNabb’s appearance (McNabb was White, with a goatee; Pichardo was Black). Daniel also picked McNabb out of three photo lineups shortly after the shooting, indicating each time that the person in the photo resembled the shooter. Furthermore, at trial Daniel pointed to McNabb and testified that he was the shooter.
The police interviewed Bowden on June 30, 2011. Bowden told the police that McNabb shot Martini. Bowden further stated that he saw the gun McNabb used to shoot Martini, describing it as a silver .38 Super firearm. Bowden’s trial testimony, however, diverged from his police statement. At trial, Bowden testified he did not remember whether McNabb was present when Martini was shot and denied having seen the gun used to shoot him. Bowden nonetheless admitted he had told the truth in his previous police interview. A recording of the interview was played for the jury and admitted into evidence.
In early July 2011, the police interviewed Pichardo. Pichardo stated that on the night Martini was shot, Pichardo and McNabb were in a car when McNabb pulled over and got out to talk to Troy Wilson. A white Suburban pulled up behind them and Martini and Bowden got out. Pichardo heard, “Hey, J.P.,” followed by a gun going off. McNabb then jumped into the car, appeared very nervous, placed a gun on the floor of the car, and drove off. McNabb asked Pichardo whether he thought McNabb had hit Martini. Pichardo was upset and said, “You messed up,” and asked to be dropped off in the Silver Ranch area. About three days after the shooting, McNabb asked Pichardo whether the police were looking for McNabb.
Pichardo’s trial testimony diverged from his police statement. At trial, he testified he was not present when the shooting occurred and did not know who the shooter was. While he conceded he had earlier told the police that McNabb was the shooter, he explained he had lied because he was high on drugs and felt pressured to tell the police what they wanted to hear. Later, upon questioning from defense counsel, Pichardo acknowledged that, on March 27, 2012, he told a defense investigator that he shot Martini himself. Pichardo testified that what he told the defense investigator was not true.
On July 4, 2011, McNabb was arrested in Mariposa, for shooting Martini. Officers found a .38 Super semiautomatic magazine and .38 Super semiautomatic shells during a search of his belongings.
DISCUSSION
I. Consolidation of two separately filed cases against McNabb
McNabb challenges the trial court’s consolidation of the charges of assault with a deadly weapon and possession of a firearm by a felon with the separately filed charge of negligent discharge of a firearm. McNabb contends the trial court prejudicially abused its discretion in consolidating the charges, resulting in the deprivation of his right to due process and a fair trial. After consolidation of the charges, McNabb pled guilty to the negligent discharge of a firearm count. McNabb now contends that because the court’s consolidation order was prejudicially erroneous, he should be permitted to withdraw his guilty plea. We reject these contentions.
We will summarize the relevant procedural history. Merced County Superior Court case No. CRM018280 charged McNabb with assault with, and illegal possession of, a firearm, based on the June 23, 2011 incident in which Martini was shot outside Troy Wilson’s apartment complex. The charge of negligent discharge of a firearm—to which McNabb would eventually plead guilty—was filed separately, in case No. CRM019483, based on an unrelated incident that occurred at the Applegate Inn in Atwater on June 18, 2011. After the two cases were consolidated but before trial commenced, McNabb pled guilty to the charge of negligent discharge of a firearm. Once the jury returned guilty verdicts on the other two counts, the trial court sentenced McNabb on all three convictions. McNabb’s aggregate sentence of 19 years eight months included an eight-month term for the conviction for negligent discharge of a firearm.
We note that McNabb’s guilty plea to the charge of negligent discharge of a firearm precludes him from challenging the joinder of that charge with the other counts in the case. (People v. Kaanehe (1977) 19 Cal.3d 1, 9 [“Other than search and seizure issues … all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings resulting in the plea.”]; People v. Haven (1980) 107 Cal.App.3d 983, 986 [“a motion to sever does not go to the legality of the proceedings and is not cognizable on appeal after a plea of [guilty or] nolo contendere”]; accord, People v. Sanchez (1982) 131 Cal.App.3d 323, 335.) Even were McNabb’s challenge to the consolidation order cognizable, it has no merit.
Section 954 governs the joinder of charges: “An accusatory pleading may charge two or more different offenses connected together in their commission … or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.” “The law favors the joinder of counts because such a course of action promotes efficiency.” (People v. Myles (2012) 53 Cal.4th 1181, 1200.) Accordingly, if the charged offenses are of the same class, joinder is proper under section 954. (People v. Kraft (2000) 23 Cal.4th 978.)
Where joinder is proper under section 954, a trial court’s abuse of discretion is established only on a clear showing of prejudice. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) An abuse of discretion can occur “‘“‘where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’”’” (People v. Lucas (2014) 60 Cal.4th 153, 214, disapproved on other grounds by People v. Romero (2015) 62 Cal.4th 1.) In assessing the potential for prejudice flowing from consolidation of charges, we “inquire first whether evidence of the charged offenses would have been cross-admissible in separate trials. If so, ‘any inference of prejudice is dispelled.’” (People v. Mayfield (1997) 14 Cal.4th 668, 721, abrogated on other grounds by People v. Scott (2015) 61 Cal.4th 363; see People v. Hartsch (2010) 49 Cal.4th 472, 493 [complete or “two-way” cross-admissibility is not required].) “Whether the other crimes would have been admissible in separate trials on the others is governed by Evidence Code section 1101, subdivision (b), which permits admission of other uncharged acts when offered as evidence of a defendant’s motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.” (People v. Lucas, supra, at pp. 214-215.) “The burden of demonstrating that consolidation … was a prejudicial abuse of discretion is upon him who asserts it; prejudice must be proved, and ‘[a] bald assertion of prejudice is not enough.’” (People v. Balderas (1985) 41 Cal.3d 144, 171.)
Here the charges in question—negligent discharge of a firearm and assault with a firearm—are both classified as crimes of assault and battery committed against the person and, hence, fall within the same class of offenses. (See §§ 245, subd. (a), 246.3, subd. (a).) Furthermore, within the meaning of section 954, offenses are “of the same class” if they possess “common characteristics or attributes.” (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722.) The offenses at issue here possessed common characteristics or attributes as both involved the discharge of a firearm. (People v. Hartsch, supra, 49 Cal.4th at p. 492 [murder using a firearm and shooting at inhabited dwelling were within same class of crimes for purposes of § 954].) McNabb’s trial counsel conceded as much in McNabb’s opposition to the People’s motion to consolidate. Accordingly, the statutory requirements for joinder are satisfied and McNabb can predicate error in the court’s consolidation ruling only upon a clear showing of prejudice.
In assessing whether McNabb was prejudiced by the joinder, we must first consider whether evidence on each of the joined charges would have been admissible in separate trials on the others. If so, any inference of prejudice is dispelled. (People v. Mayfield, supra, 14 Cal.4th at p. 721.) A lack of cross-admissibility, on the other hand, is not sufficient, by itself, to show prejudice and bar joinder. (See People v. Bradford (1997) 15 Cal.4th 1229, 1315-1316; People v. Stitely (2005) 35 Cal.4th 514, 532; also see § 954.1 [“evidence concerning … offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact”].)
The negligent discharge of a firearm charge arose from an incident that took place at the Applegate Inn in Atwater on June 18, 2011, only a few days before Martini was shot. McNabb and his girlfriend, Sarah Mendiola, had rented two rooms at the Applegate Inn and invited several people, including Sean Hogan, Andrew Breckenridge, and Ervin Segebart, among others, to party and use drugs at the motel. Statements from people present at the party and from others who were at the motel, indicated that during the party, McNabb had forced two men to engage in homosexual acts at gunpoint. Witnesses reported that McNabb had a .38 Super pistol in his possession. Eventually McNabb left the motel with Mendiola in Mendiola’s car; Mendiola was driving and McNabb was in the passenger seat. As they pulled out of the motel parking lot, McNabb fired two shots out of the car window to scare off Sean Hogan’s mother and her friend, who had come to retrieve Hogan from the party. The police were called to the Applegate Inn; they found two .38 Super shell casings in the parking lot.
As a result of the shots fired at the Applegate Motel, McNabb was charged with negligent discharge of a firearm. He was separately charged, on account of shooting Martini, with assault with a firearm and felon in possession of a firearm. The prosecution’s theory in both cases was that McNabb personally used a .38 Super pistol to commit the relevant offense(s). The prosecution had witness statements and .38 Super shell casings showing that McNabb possessed and discharged a .38 Super at the Applegate Motel on June 18, 2011. The prosecution also had evidence showing that McNabb shot Martini with a .38 Super pistol on June 23, 2011; this evidence consisted of Jason Bowden’s statement to the police to the effect that he saw McNabb shoot Martini with a .38 Super pistol. Furthermore, when McNabb was arrested on July 4, 2011, in connection with the Martini shooting, a .38 Super magazine and .38 Super ammunition were found among his belongings.
During the hearing on the People’s motion to consolidate, the prosecutor argued that evidence indicating that McNabb possessed a .38 Super semiautomatic pistol on June 18 and June 23, 2011, was material to both the negligent discharge of a firearm charge and the assault with a firearm charge, and would be cross-admissible in separate trials on these charges. The prosecutor explained that this evidence would be cross-admissible only for a limited purpose, i.e., to show that McNabb possessed a .38 Super pistol on another occasion close in time to when the offense being tried was committed. Defense counsel did not dispute that this evidence would be cross-admissible in separate trials on each charge, prompting the prosecutor to note, “cross admissibility normally dispels any inference of prejudice.” The trial court took the matter under submission and ultimately granted the People’s motion to consolidate the charges.
On appeal, McNabb again acknowledges that evidence showing he used a .38 Super pistol in committing both offenses at issue would be cross-admissible in separate trials. He even concedes, in a different part of his brief, that evidence indicating he fired a .38 Super pistol at the Applegate Inn was, in fact, properly admitted at trial. Specifically, he admits this evidence was properly admitted under Evidence Code section 1101, subdivision (b), to show that on June 18, 2011, McNabb possessed a .38 Super semiautomatic pistol (the same caliber and type of weapon that the prosecution contended was used to shoot Martini on June 23, 2011), and, in turn, to show identity. McNabb nonetheless argues that the trial court abused its discretion in granting consolidation because “[t]he vast majority of the evidence pertaining to each separate incident would not have been cross-admissible in separate trials.”
Since evidence pertaining to McNabb’s possession of a .38 Super semiautomatic pistol on June 18, 2011, and June 23, 2011, would be cross-admissible in separate trials, we are not persuaded that the trial court’s ruling was a prejudicial abuse of discretion that violated McNabb’s right to due process and a fair trial. (U.S. v. Higgs (4th Cir. 2003) 353 F.3d 281, 311–312 [evidence of a nightclub shooting two months prior to a murder was admissible identity evidence where the caliber of the bullets fired at the nightclub was the same as the caliber of the bullets fired in the murder]; People v. Palumbo (1932) 127 Cal.App. 703, 707 [evidence that defendant possessed gun during an uncharged burglary was admissible at his robbery trial where both crimes were committed in short period of time and prosecution contended same gun was used during both crimes]; People v. Bingham (1941) 44 Cal.App.2d 667, 669; see next section of this opinion, post, for fuller discussion of admissibility of this evidence in separate trials.) Regarding the broader context of the Applegate Inn incident, the trial court properly concluded that any potential for prejudice arising from the salacious details surrounding the incident was minimized because extraneous particulars would be subject to exclusion pursuant to Evidence Code section 352. In sum, given that material evidence regarding McNabb’s possession of a .38 Super semiautomatic pistol on both occasions would be cross-admissible in separate trials on the charges, any inference of prejudice on account of the consolidation is dispelled.
Furthermore, even assuming arguendo that evidence related to each charge would not be cross-admissible in separate trials, the potential for prejudice as a result of joinder is limited given that none of the other factors courts examine in assessing prejudice to a defendant support an inference of prejudice here. The relevant factors, in addition to cross-admissibility of evidence, are whether (1) the joined charge was unusually inflammatory; (2) joinder would generate prejudicial spillover effects by attaching a weak case to a strong one (or by joining two weak cases together); and (3) whether joinder would implicate the death penalty. Here, the charge of negligent discharge of a firearm was not itself unusually inflammatory and especially not so in light of the nature of the other counts at issue; as for any extraneous or salacious details surrounding this offense, the trial court properly concluded these would be subject to exclusion under Evidence Code section 352. Regarding the next factor, i.e., the possibility that joinder would generate improper spillover effects, this factor also does not support an inference of prejudice. McNabb concedes that the joined cases appeared, to the extent ascertainable, to be of equal strength; indeed both cases appeared to be relatively strong. Finally, the death penalty was not implicated by any of the charges at issue, thereby precluding any possibility of prejudice on that basis.
In short, while McNabb elected to plead guilty to the charge of negligent discharge of a firearm, he has not shown that consolidation of the charges would have appreciably prejudiced him at trial. We therefore reject his claim that the court’s decision to consolidate the cases constituted a prejudicial abuse of discretion that infringed on his right to due process and a fair trial. In turn, we affirm McNabb’s conviction for negligent discharge of a firearm.
II. Admission at trial of prior-conduct evidence regarding Applegate Inn incident
McNabb next challenges the trial court’s ruling admitting, at trial, evidence regarding the Applegate Inn incident. McNabb concedes that evidence showing that McNabb possessed a .38 Super semiautomatic pistol at the Applegate Inn on June 18, 2011, was admissible pursuant to Evidence Code section 1101, subdivision (b). He contends, however, that the trial court prejudicially erred under Evidence Code section 352 by admitting extraneous details regarding the incident, specifically that a party had occurred at the Applegate Inn on the day in question, McNabb was present at the party, and drugs and alcohol were consumed at the party. We reject this contention because even were we to assume the trial court erred in admitting this evidence, the error was harmless under the applicable Watson standard of prejudice.
A. Relevant factual and legal background
As stated above, after the trial court consolidated the charges pending against McNabb, McNabb pled guilty to the charge of negligent discharge of a firearm at the Applegate Inn. Trial proceeded on the charges of (1) assault with a firearm on Martini, and (2) felon in possession of a firearm. The prosecution’s theory as to both of the latter charges was that the firearm at issue was a .38 Super semiautomatic pistol.
At trial, the prosecution sought to introduce evidence related to McNabb’s prior crime, i.e., the offense of negligent discharge of a firearm committed at the Applegate Inn. Specifically, the prosecution sought to show that McNabb possessed a .38 Super semiautomatic pistol at the Applegate Inn on June 18, 2011, a few days before Martini was shot, on June 23, 2011, with the same caliber and type of weapon. The prosecution also highlighted the fact that when McNabb was arrested 11 days after Martini was shot, he was in possession of a magazine and ammunition for a .38 Super semiautomatic pistol. Defense counsel objected to admission of evidence showing that McNabb possessed a .38 Super semiautomatic pistol at the Applegate Inn, on grounds, inter alia, that McNabb potentially possessed a .38 revolver rather than a .38 Super semiautomatic pistol at the Inn. The prosecutor countered that the fact that .38 Super shell casings were recovered from the Applegate Inn’s parking lot shortly after McNabb fired shots there, strongly indicated that McNabb possessed a .38 Super semiautomatic pistol.
Other crimes or other conduct evidence is admissible under Evidence Code section 1101, subdivision (b) when it is “relevant to prove some fact … other than [the defendant’s] disposition to commit such an act.” Here, evidence of the Applegate Inn incident was admissible to show that McNabb possessed a .38 Super semiautomatic pistol days before Martini was shot with such a weapon. This evidence was offered to prove the elements of the charged offenses, i.e., assault with a firearm and felon in possession, not any criminal propensity. (See CALCRIM Nos. 875 and 2511; People v. Bryant (2014) 60 Cal.4th 335, 406-407 [for purposes of admissibility under Evid. Code § 1101, a defendant’s not guilty plea places at issue all elements of the offense]; People v. Catlin (2001) 26 Cal.4th 81, 146 [evidence of other conduct is admissible when it tends to prove or disprove a material fact]; People v. Montalvo (1971) 4 Cal.3d 328, 331-332 [“Although evidence of prior offenses [or other bad conduct] may not be introduced solely to prove criminal disposition or propensity[,] such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense.”]; People v. Spector (2011) 194 Cal.App.4th 1335, 1374 [same].) The trial court ruled that evidence of McNabb’s possession of a .38 Super semiautomatic pistol at the Applegate Inn was admissible. McNabb does not challenge this part of the court’s ruling.
However, the court further ruled that other details regarding the Applegate Inn incident were also admissible. Specifically, the court ruled:
“This is what’s going to be allowed … that witnesses can testify that there was this party and alcohol and drugs consumed at the Applegate Inn. Mr. McNabb was seen with a .38 super firearm. Mr. McNabb was seen firing that super .38 firearm. Shell casings of a super .38 firearm were recovered from the scene.
“Evidence that Mr. McNabb threatened women or other individuals with the firearm to engage in sex acts at that party is excluded on 352 basis. [¶] Evidence that the discharge of the firearm amounted to a negligent discharge of the firearm, and [McNabb] has pled to it, that is [also] excluded, okay.”
As is clear from the court’s ruling, the court excluded most of the details surrounding the Applegate Inn incident, including the fact that McNabb had pled guilty to a charge of negligent discharge of a firearm based on this incident. Nonetheless, the court inexplicably permitted the People to introduce evidence to the effect that a party had occurred at the Applegate Inn on the day in question and that drugs and alcohol were consumed at the party.
Defense counsel did not specifically object to the court’s ruling that “witnesses can testify that … there was this party and alcohol and drugs [were] consumed at the Applegate Inn.” Furthermore, worried that the prosecution would call multiple witnesses to testify about the Applegate Inn incident, defense counsel agreed to stipulate to the evidence encompassed by the court’s ruling. In reaching this stipulation, defense counsel acted to limit the impact of the evidence at issue; he did not acquiesce to the ruling in its entirety. Ultimately, the parties entered into a stipulation that closely tracked the court’s ruling, which the court then read to the jury:
“[O]n or about June 18th, 2011, there was a party at the Applegate Inn in Atwater. There was alcohol and drugs being consumed by those at the party. Mr. McNabb was present. Mr. McNabb was observed with a .38 super semi-automatic pistol at that party. [¶] Mr. McNabb was observed firing that .38 super semi-automatic pistol two times. Two .38 super semi-automatic shell casings were recovered in the parking lot of the Applegate Inn.”
The court then instructed the jury that it could consider this evidence only for a limited purpose. The court explained: “The evidence is received for the limited purpose of considering it as evidence that Mr. McNabb had access to and/or possessed a .38 Super semiautomatic pistol at a time prior to June 23, 2011. Do not consider it for any other purpose.”
B. Analysis
McNabb concedes that evidence of the fact that he fired a .38 Super pistol at the Applegate Inn only days before Martini was shot with such a weapon, was admissible under Evidence Code section 1101, subdivision (b) to show possession of the weapon and identity. McNabb argues that the court’s admission of evidence to the effect that drugs and alcohol were consumed at the Applegate Inn party was, however, a prejudicial abuse of discretion under Evidence Code section 352. Specifically, McNabb argues that the evidence of drugs and alcohol was prejudicial because it “logically” suggested that he, himself, was “partaking” of drugs and alcohol at the party. Assuming the issue was properly preserved for review, it does not require reversal of the judgment.
Although the court’s admission of evidence regarding the consumption of drugs and alcohol at the Applegate Inn arguably was an abuse of discretion, it was harmless under the applicable Watson standard of prejudice. (See People v. Davis (2009) 46 Cal.4th 539, 602 [a ruling under Evid. Code, § 352 is reviewed for abuse of discretion]; People v. Watson, supra, 46 Cal.2d at p. 836 [erroneous admission of evidence requires reversal only if it is reasonably probable that, absent the error, the result of the proceeding would have been more favorable to the defendant].)
Specifically, after the court announced the parties’ stipulation regarding the Applegate Inn incident, it gave a limiting instruction that minimized any potential for prejudice arising from this evidence. The court instructed the jury that evidence about the Applegate Inn incident could be considered only for purposes of evaluating whether McNabb possessed a .38 Super semiautomatic pistol in the days before Martini was shot, and for no other purpose. Subsequently, the court reminded the jury: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” We presume the jury understood and followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
Furthermore, the case against McNabb was strong in light of the eyewitness testimony of Melissa Daniel, as well as the statements given to the police by Bowden and Pichardo shortly after the shooting, all of which squarely incriminated McNabb. Finally, there was other evidence to the effect that many of the subjects connected to the incident—including Pichardo, who was McNabb’s close associate—heavily and regularly abused drugs during the relevant time period. In light of the record as a whole, evidence that drugs and alcohol were consumed at the Applegate Inn, and the related inference that McNabb had access to these substances there, only had minimal potential for unduly prejudicing the jury against McNabb.
III. Presentence custody credit
McNabb was arrested on July 6, 2011, and sentenced to prison on October 30, 2014. At sentencing, he received 1,393 days of presentence custody credit, consisting of 1,212 days of actual custody credit and 181 days of conduct credit. The parties agree that McNabb is entitled to credit for one additional day of actual custody and request us to order the trial court to correct the abstract of judgment to reflect actual presentence custody credit of 1,213 days and total presentence custody credit of 1,394 days.
A defendant is entitled to credit for presentence custody days including partial days served. The day of sentencing counts as one day of presentence custody. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) In this case, including the day of sentencing, there were 1,213 days between the date of McNabb’s arrest and the date of his sentencing. He is therefore entitled to one more day of credit for actual custody.
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the abstract of judgment to reflect actual presentence custody credit of 1,213 days and total presentence custody credit of 1,394 days.


SMITH, J.
WE CONCUR:



GOMES, Acting P.J.



PEÑA, J.