Filed 6/28/17 P. v. Ferguson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

KATHARINA HERMINE FERGUSON,

Defendant and Appellant.
H043164
(Monterey County
Super. Ct. No. SS142929

Defendant Katharina Hermine Ferguson was convicted after a jury trial of three felonies: attempted theft from an elder (Pen. Code, §§ 368, subd. (d), 664); identity theft (§ 530.5, subd. (a)); and second degree commercial burglary (§ 459). The court suspended imposition of the sentence and granted probation for three years upon the condition that defendant serve 280 days in jail.
Defendant asserts four claims of error on appeal. First, she contends the court erred by admitting collateral and prejudicial evidence concerning prior threats that the alleged victim, defendant’s mother, claimed had been made by defendant. The alleged victim, Hermine Ferguson (Ms. Ferguson), had asserted in an application for a restraining order that defendant had intimidated her in attempt to get money, and defendant had threatened to get a gun and kill everyone and to burn Ms. Ferguson’s house down. Second, defendant argues the identity theft conviction (count 2) must be reversed because it was a lesser-included offense of attempted theft from an elder, the crime of which she was convicted in count 1. Third (and related to the second claim), defendant urges that various fines and assessments imposed as terms of probation must be reduced to reflect convictions of only two (rather than three) offenses. Fourth, defendant contends that the trial court erred in granting 76 days of custody credits, instead of 172 days’ credits.
We find no error with respect to defendant’s first three contentions. We agree that defendant was entitled to 172 days’ custody credits. As modified to reflect the proper custody credits, we will affirm the probation order.
FACTS
I. Prosecution Evidence
A. Courtnie Villalobos
Courtnie Villalobos worked as a “relationship banker” at Chase Bank in Monterey. On August 28, 2014, defendant appeared at the bank and asked Villalobos for assistance regarding her certificate of deposit (CD) account. She told Villalobos that she needed to close out her account and to obtain the funds. Defendant said she needed the money. She handed Villalobos a dated statement that noted the account was due for renewal in May. The vested owner listed on the account was the Hermine Ferguson Trust. The value of the account at its maturity date in May was $36,447.99.
At Villalobos’s request, defendant provided her social security number. The number did not match anything in the bank’s system. Villalobos then accessed information concerning the account and determined that (1) the account holder’s social security number did not match the one provided by defendant, and (2) the date of birth of the account holder was for a person “in [her] eighties,” i.e., a person much older than defendant appeared to be. She asked defendant for (and received) her driver’s license, which showed the name “Katharina Hermine Ferguson” and a birth date that did not match the account holder’s. Defendant said that she went by the name “Hermine” as well as “Katharina” or “Kat.” Because she believed defendant was misrepresenting her identity, Villalobos completed a withdrawal slip in defendant’s presence, and defendant signed the form “Katharina Ferguson.”
Defendant stated that she wanted the money in cash. Villalobos responded that the bank could not give her cash because the large amount involved, among other things, presented security concerns. Villalobos asked defendant to whom the bank should make a cashier’s check available to close the account. Defendant requested that it be made out to “Jeff Mason,” the man who had accompanied her to the bank. Mason then responded that he did not want to have the check made payable to him.
After completing the withdrawal slip, Villalobos took it and defendant’s identification to her supervisor and explained that defendant was seeking the withdrawal even though her name and social security number did not match the account holder’s. Villalobos attempted unsuccessfully to reach Ms. Ferguson by telephone. Villalobos’s superior instructed her to send defendant on her way without concluding the transaction.
Villalobos described defendant’s demeanor as calm and kind during the encounter. But after Mason declined to have a cashier’s check made payable to him, defendant became “a little anxious” and expressed concern about whether she could complete the transaction that day.



B. Hermine H. Ferguson
Ms. Ferguson, who was 81 years old at the time of trial in November 2015, is defendant’s mother. Defendant goes by Kathy or Kitty, although her birth name is Katharina Hermine Ferguson. Defendant has never gone by the name Hermine.
Ms. Ferguson was the holder of the CD account at Chase Bank in question, and she alone was authorized to make withdrawals from the account. On the anniversary (maturity) date for the account each year, she received statements at her home in Marina. She did not receive the May 2014 statement; she later learned that her mail had been diverted for approximately three weeks. Ms. Ferguson did not give defendant permission for her to withdraw money from the CD account on or about August 28. Ms. Ferguson never mentioned the CD account to defendant. And Ms. Ferguson testified there was nothing she ever said to defendant that would have given her reason to believe that she had the right to access the account.
In the fall of 2013, Ms. Ferguson applied for a restraining order against defendant. Ms. Ferguson’s son assisted her in completing the application. She asked her son to help her with it because she “was too nervous, too upset.” She stated in the application that defendant “ ‘constantly intimidated [her] physically, in order to get money. She would call [Ms. Ferguson] names[,] like [“]whore,[”] [“]bitch. [”] She screamed at [Ms. Ferguson] as loud as she could.’ ” Ms. Ferguson testified that prior to seeking the restraining order, she had given defendant some money, but at some point stopped doing so and told her daughter she would give her no more money. As a result of this, defendant became angry at her mother.

II. Defense Evidence
A. Katharina Ferguson
Defendant testified on her own behalf. On August 28, defendant, accompanied by her friend, Jeff Mason, went to a branch of Chase Bank on Alvarado Street in Monterey. She brought a bank statement with her that she had obtained from her son, Cameron, who had redirected mail that was going to Ms. Ferguson’s home to his post office deposit box. When defendant saw the statement, she thought that it related to a trust fund account her mother had been established for defendant in her youth. Her purpose for going to the bank was to ask if the account described in the statement related to her money.
Defendant identified herself as “Kathy Ferguson,” gave her identification and social security number to Villalobos, and asked her if “there was all or a portion of [defendant’s] money in this trust.” After looking into the matter, Villalobos said there would be a ten percent early withdrawal fee and asked defendant how she would like the money. In response to Villalobos asking if defendant wanted to have the funds deposited into her bank account, defendant said she did not have an account and suggested to Mason that he deposit the funds into his bank account. Mason declined. Later, another bank employee told defendant she did not have access to the account, and that defendant would need to call her mother. Defendant then thanked the employee and left.
Defendant denied impersonating her mother. She testified that she never went by the names “Kat” or “Hermine,” and she denied that she told Villalobos that she went by those names. She testified that she did not understand why Villalobos had her fill out a withdrawal slip which contained the customer’s name as “Hermine H. Ferguson.” In any event, she signed the slip with her own name, “Kathy Ferguson,” and omitted her middle name. She signed the withdrawal slip after Villalobos told her she was entitled to withdraw the funds. When Villalobos asked what name she regularly used, defendant responded that it was Kathy Ferguson.
Defendant tried to telephone her mother a day or two later. But she couldn’t reach her. Instead, after her brother answered the phone, a police officer came on the line; he said that she could not talk to her mother because there was a restraining order, and if defendant telephoned again, she would be arrested.
Defendant testified that she had been unaware of the existence of a restraining order. She stated that after hearing testimony about it that she recalled her brother having “shoved” some documents at her that she immediately threw away that, “in hindsight,” must have been the restraining order. When he handed them to her, “[h]e just had a big smile on his face and said nothing.” Her testimony was that she never looked at the documents. And she denied that she was later advised about the existence of the temporary restraining order when she appeared in court at a hearing in June 2014 on an alleged violation of the restraining order. Defendant testified that she had never gotten along with her brother. She also stated, without elaboration, that her relationship with her mother over the past few years had been “difficult.”
PROCEDURAL BACKGROUND
In a January 15, 2015 information filed by the Monterey County District Attorney, defendant was charged with theft from an elder (§§ 368, subd. (d); count 1), identity theft (§ 530.5, subd. (a); count 2), and second degree commercial burglary (§ 459; count 3). On November 13, 2015, defendant was convicted by a jury of the latter two offenses. The jury acquitted defendant of the offense charged in count 1, and found her guilty of the lesser-included offense of attempted theft from an elder (§§ 368, subd. (d), 664). The court suspended imposition of sentence and granted probation of three years with a number of terms and conditions, including the condition that defendant serve 280 days in county jail with a credit of 76 days (38 actual days and 38 conduct/work credits) for time served. Defendant filed a timely appeal from the judgment.
DISCUSSION
I. Admission of Impeachment Evidence Was Not Error
A. Background
1. Pretrial Ruling
At the commencement of trial, defendant filed a motion in limine “to exclude any and all evidence of the hearsay statements that formed the basis for the issuance of the restraining order at issue in this case.” The restraining order was obtained by defendant’s mother, Ms. Ferguson. The People also filed a motion in limine seeking permission, in the event defendant testified, to offer into evidence certain criminal threats made against Ms. Ferguson in the summer of 2013, namely, threats that defendant would “[get] a gun and kill everyone and to bum [Ms. Ferguson’s] house down.” The prosecution stated that Ms. Ferguson had obtained a restraining order shortly after the threats were made. The prosecution argued that the criminal threats constituted crimes of moral turpitude and were therefore admissible to impeach defendant.
After brief reported argument from the prosecutor, the court ruled that it would allow certain portions of the application for restraining order and would redact other portions. The court held that the following statement of Ms. Ferguson would be allowed: “[Defendant] constantly intimidated [Ms. Ferguson] physically, in order to get money. She would call [Ms. Ferguson] names like ‘whore,’ ‘bitch.’ She screamed at [Ms. Ferguson] as loud as she could.” The court further ruled that other matters would be excluded, including the statement: “[Defendant] said she will get a gun and kill everyone and burn [Ms. Ferguson’s] house down.” The court also excluded both the question and response in the application, where the question read: “ ‘Did the person use or threaten to use a gun or other weapon?’ ” Based upon the court’s ruling, a redacted version of the application for restraining order was introduced into evidence by the People as Exhibit 3.
2. Defendant’s Cross-Examination
On recross-examination, the prosecutor asked defendant to explain why she believed in August 2014 that she had access to bank accounts in her mother’s name when in the fall of 2013, Ms. Ferguson had attested in connection with her application for a restraining order that defendant had intimidated her for money and Ms. Ferguson had refused to give defendant money. Defendant responded that “[Ms. Ferguson] didn’t attest to that. It is in my brother’s writing.” The prosecutor then asked if defendant had ever threatened her mother, to which defendant responded: “I don’t think I’ve threatened her. I know we’d argue. We would get into arguments.” Defendant testified that between May and November 2013, she would see her mother occasionally when Ms. Ferguson would visit to see her grandchildren or go grocery shopping with defendant. Defendant testified that she asked her mother one time for money during that period and her mother gave it to her; she testified that her mother had never refused to give her money. Defendant denied ever having made threats or having tried to intimidate her mother by yelling at her to get money. After this testimony—and an unreported sidebar conference requested by the prosecutor—defendant was asked whether she had ever threatened to burn her mother’s house down or threatened her with a gun. Defendant denied ever having made such threats.
3. Reported Proceedings
Later that day, after the prosecution had completed its recross-examination of defendant, there was a reported discussion about proposed jury instructions that included a reference to the admission of evidence regarding defendant’s alleged threats. The court stated that it had previously denied the People’s in limine motion seeking to introduce evidence that Ms. Ferguson had stated in the restraining order application that defendant had threatened to use a gun and burn her mother’s house down. It explained that it had “wanted [the application] limited to that she essentially bullied her mother for money over a period of time. However, when the defendant testified that she denied threatening and/or attempting to gain money, . . . I think she opened the door with that. And we had discussed, if the door would be opened, then it would become admissible. I think it has become admissible.”
The court at that time also entertained the prosecution’s request to present rebuttal evidence from Ms. Ferguson concerning defendant’s prior threats. Defense counsel objected, asserting that the evidence was “too far afield from the issue” and was “very prejudicial.” The court held that it would allow the rebuttal evidence, reasoning: “I think that the position we find ourselves in, now, is very different than the position we found ourselves in at the beginning of trial. Specifically, [defendant] has conveyed a very different relationship with her mother than the People’s position is [with respect] . . . to . . . that relationship. [Defendant] has made i[t] seem like her issue is with her brother and not with her mother, and that she and her mother have . . . a decent relationship, visiting each other, going to the grocery store, . . . visiting grand[]kids together, and that, essentially, [defendant’s] testimony . . . [is that] it’s the brother whom she has an issue with, the brother who really is the force behind the restraining order, and she clearly challenges the veracity of these statements in the restraining order.”
4. Impeachment Evidence
The prosecution called Ms. Ferguson to testify on rebuttal. She testified that shortly before she applied for a restraining order in August 2013, defendant talked to her loudly and threatened to burn her house down. In the first eight months of 2013, Ms. Ferguson had helped her daughter out with money “many times” so that she could pay her bills when she was unemployed. Ms. Ferguson estimated that she had given defendant more than $20,000 during that period. When defendant threatened Ms. Ferguson in August 2013, defendant was angry because she had asked her mother for more money and Ms. Ferguson declined to give it to her. When Ms. Ferguson had her son help her with the application for a restraining order, she specifically told him to write that defendant had threatened to burn her house down.
Following this testimony, the application for temporary restraining order that was submitted as an exhibit was modified at the direction of the court to include the statement: “[Defendant] said she will get a gun and kill everyone, and burn my house down.”
B. Defendant’s Contentions
Defendant challenges the court’s ruling permitting the prosecution to introduce evidence that Ms. Ferguson claimed in her 2013 application for temporary restraining order that defendant had threatened to burn Ms. Ferguson’s house down and to get a gun and kill everyone. Defendant argues that this evidence was inadmissible and prejudicial, and the court erred by concluding that defendant had “opened the door” to its admission after defendant, on cross-examination by the prosecutor, denied that she had ever threatened her mother. She contends that as a result of this erroneous ruling, the prosecution was allowed to submit rebuttal evidence in which Ms. Ferguson testified to defendant’s alleged threats and their inclusion in her application as a basis for seeking a restraining order. Defendant adds that the prosecutor referred to the alleged threat in his closing argument and emphasized that it constituted a crime of moral turpitude that warranted the jury’s finding that defendant’s testimony was untrustworthy.
Defendant contends that the error was of constitutional dimension in that it deprived her of fundamental due process rights. Accordingly, she argues, the error requires reversal unless the People can “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman v. California (1967) 386 U.S. 18, 24.) But, defendant argues, even if the Watson standard for state-law error applies—i.e., that reversal is required when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Watson (1956) 46 Cal.2d 818, 836)—the trial court’s admission of the irrelevant evidence concerning defendant’s prior alleged threat was prejudicial.
C. Standard of Review
Trial court rulings admitting or excluding evidence are reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 654; see also People v. Chism (2014) 58 Cal.4th 1266, 1291.) This standard applies to the review of evidentiary rulings based on the grounds of relevance and Evidence Code section 352. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) Likewise, the trial court is vested with discretion in deciding whether to admit or deny impeachment evidence. (People v. Clark (2011) 52 Cal.4th 856, 932.) And because this discretion to admit or deny impeachment evidence “ ‘is as broad as necessary to deal with the great variety of factual situations in which the issue arises’ [citation], a reviewing court ordinarily will uphold the trial court’s exercise of discretion. [Citations.]” (Ibid.)
“ ‘[T]he term judicial discretion “implies absence of arbitrary determination, capricious disposition or whimsical thinking.” ’ [Citation.] ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (People v. Mullens (2004) 119 Cal.App.4th 648, 658, quoting People v. Giminez (1975) 14 Cal.3d 68, 72, 120.) In addition, “ ‘[i]t is . . . well settled that the erroneous admission or exclusion of evidence does not require a reversal except where the error or errors caused a miscarriage of justice. [Citation.] “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Citations.]’ [Citations.]” (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
D. No Abuse of Discretion in Admission of Threat Evidence
In addressing defendant’s claim of error, it is important to consider the context in which the trial court initially excluded, and later allowed, the introduction of the prosecution’s threat evidence. Prior to hearing any evidence, the court ruled in limine that it would permit the prosecution to introduce evidence—without any apparent objection by the defense—that Ms. Ferguson had applied for and obtained a restraining order to prevent defendant from contacting her, based upon defendant’s having “constantly intimidated [Ms. Ferguson] physically, in order to get money.” The court therefore must have concluded this evidence was relevant and admissible. Given that the threats objected to by defendant related to the statement in the restraining order application that defendant had physically intimidated Ms. Ferguson (and the threat allegations immediately followed in that application), they would also have had some relevance. Thus, although the court, at the time, did not state the specific ground for its exclusion of defendant’s specific threats, we surmise that it determined that the probative value of this evidence was “substantially outweighed by the probability that its admission [would have] . . . create[d] substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) This surmise is also borne out by the court’s later statement near the end of the trial that it had excluded the threat allegations because it “wanted [the application] limited to that [defendant] essentially bullied her mother for money over a period of time.”
At the time of its initial ruling, the court had no information that defendant intended to challenge the basis for the restraining order, including Ms. Ferguson’s statement that defendant had intimidated her in order to try to obtain money. Indeed, at the time, defense counsel had announced that she had no witnesses to be called at the trial. Under these circumstances, it was reasonable for the court to conclude that a “sanitized” version of the restraining order application—that mentioned defendant’s intimidation of Ms. Ferguson but not the threats—would be appropriate for the jury to consider.
But a “trial court’s in limine ruling[s are] necessarily tentative because the court retains discretion to make a different ruling as the evidence unfolds.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1174; see also Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 784 (Scott).) As one authority has explained: “[A] proper evaluation of the probative value of evidence may benefit from a consideration of how other evidence comes in.” (Simons, California Evidence Manual (Thomson Reuters 2017), § 1:21, p. 27.) Here, as the trial proceeded, developments—namely, defendant’s decision to testify on her own behalf—necessitated a reevaluation of the trial court’s in limine ruling. Defendant, through her own testimony, significantly enhanced the probative value of the threat evidence for two primary reasons, both of which related to her testimony that she reasonably believed that she was entitled to access the funds in the CD account when she went to the bank.
First, defendant made the threat evidence more probative by questioning the basis for the prior restraining order. Besides denying any knowledge of the 2014 restraining order at the time she went to Chase Bank in August 2015, defendant challenged the fact that her mother was responsible for having obtained it. Defendant testified on direct examination that her brother “Rick put a restraining order on [defendant] against [her] mother.” She said she “[n]ever] got along” with her brother, and that he was “not out for [defendant’s] best interests.” She also testified on direct examination that her brother had served her with the restraining order (that she immediately threw out, and therefore had no knowledge of) by “shov[ing] the [papers] at [her]” with “a big smile on his face.” On recross-examination, she emphasized that the restraining order application was in her brother’s handwriting. And when asked to confirm that her mother had attested in the application that defendant had intimidated her mother and called her names, defendant responded: “She didn’t attest to that. It is in my brother’s writing.”
Second, defendant—as a means of supporting her claim that she reasonably believed that she had the authority to access the funds in the CD account—downplayed the significance of any problems she had in her relationship with her mother. On direct examination, she testified (without elaboration) that their relationship over the past few years had been “difficult.” She later testified that between May and November 2013, she would see her mother occasionally when she would come over to visit her grandchildren or go grocery shopping with defendant. Defendant also testified that her mother gave her money the one time she asked for it between May and November 2013; she testified she did not repeatedly ask for money and her mother never refused to give her money. Furthermore, she twice denied having ever threatened her mother and denied trying to intimidate her mother by yelling at her to obtain money.
It is with this backdrop that the prosecutor asked—with the court’s permission—his concluding two questions on recross-examination: whether defendant had ever threatened to burn her mother’s house down or threatened her with a gun. Defendant denied that she had made either such threat. Afterwards, the court allowed the prosecution to submit rebuttal evidence, through the testimony of Ms. Ferguson, contradicting defendant’s testimony concerning the nature of their relationship and the allegations in the restraining order application. Specifically, Ms. Ferguson rebutted defendant’s testimony that (1) defendant had asked for money only once in 2013 and that her mother had never refused to give her money; (2) defendant had never threatened Ms. Ferguson and had never threatened to burn her house down; (3) it was defendant’s brother, Rick, who was the motivating force behind the restraining order application and Ms. Ferguson was not the one who attested to the allegations contained in it. The trial court did not err in modifying its in limine ruling to permit the prosecution to cross-examine defendant concerning the threats alleged by her mother and to permit rebuttal evidence. (See Scott, supra, 231 Cal.App.4th at pp. 783-784 [trial court did not abuse its discretion by modifying earlier in limine ruling, based upon developments at trial, to allow introduction of evidence previously ruled inadmissible under Evid. Code, § 352].)
The trial court, in determining whether evidence should be excluded under Evidence Code section 352, “ ‘enjoys broad discretion in deciding whether prejudice substantially outweighs probative value.’ [Citation.]” (People v. Michaels (2002) 28 Cal.4th 486, 532; People v. Holford (2012) 203 Cal.App.4th 155, 167-168 (Holford).) In making this determination, the trial court must exclude evidence under Evidence Code section 352 “only when its probative value is substantially outweighed by its prejudicial effect.” (People v. Tran (2011) 51 Cal.4th 1040, 1047, original italics; see also People v. Geier (2007) 41 Cal.4th 555, 585.) Given defendant’s testimony downplaying the strained nature of her relationship with her mother and challenging the grounds for seeking the restraining order—and indeed, challenging whether her mother was even the party who took the initiative to obtain it—the court did not abuse its discretion by concluding, inferentially, that the probative value of evidence of defendant’s threats was not substantially outweighed by its prejudicial effect.
Nor is the fact that defendant’s alleged threats against her mother were collateral to the issues in this case an impediment to their admission under the circumstances presented here. As our Supreme Court has explained: “A collateral matter has been defined as ‘one that has no relevancy to prove or disprove any issue in the action.’ [Citation.] A matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue; always relevant for impeachment purposes are the witness’s capacity to observe and the existence or nonexistence of any fact testified to by the witness. [Citations.] As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. (Evid. Code, § 352; [citation].)” (People v. Rodriguez (1999) 20 Cal.4th 1, 9 (Rodriguez).) Here, while collateral, the challenged evidence was admissible to prove the existence of facts denied by defendant: (1) that defendant threatened her mother, causing her to seek a restraining order; and (2) the relationship between defendant and her mother was fractured (rather than being merely “difficult”) by the time defendant went to Chase Bank in August 2014, as a result of defendant’s multiple demands for money and her mother’s refusal to give it to her. It was within the court’s discretion to admit this impeachment evidence. (Id. at p. 10; see also People v. Mayfield (1997) 14 Cal.4th 668, 748 [“trial court has discretion to admit or exclude evidence offered for impeachment on a collateral matter”], overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)
Further, the fact that evidence of these threats may have been highly prejudicial—a point emphasized several times by defendant in her appellate briefs—does not suggest the trial court erred. As our high court has explained: “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638; see also Holford, supra, 203 Cal.App.4th at p. 167.) Here, the fact that the evidence of defendant’s threats was damaging to the defense—in the sense that it contradicted defendant’s claim that her relationship with her mother was “difficult” but was not fractured as a result of defendant’s multiple requests for money, her mother’s refusal to give it, and defendant’s anger and intimidating conduct resulting from that refusal—must not be confused with the evidence being unduly prejudicial to require its exclusion under Evidence Code section 352.
Moreover, the cases cited by defendant (People v. Davis (1965) 233 Cal.App.2d 156; Bowman v. Wyatt (2010) 186 Cal.App.4th 286; People v. Lavergne (1971) 4 Cal.3d 735) do not require a different result. Those cases are relied on by defendant for the proposition that a proponent cannot introduce irrelevant, collateral matters by first cross-examining a witness to obtain his or her denial to establish a purported foundation for its introduction. While we do not doubt the soundness of the proposition that a proponent of irrelevant, collateral evidence may not bootstrap its admissibility by obtaining a denial through cross-examination, it has no application here. Here, the evidence introduced by the prosecution was not irrelevant matter. Rather, it was relevant evidence that the court concluded, based upon developments during trial, had probative value that was not substantially outweighed by its potential prejudice.
As our high court has held: “Although a defendant cannot be compelled to be a witness against [her]self, if [she] takes the stand and denies the evidence presented against [her], the permissible scope of cross-examination is ‘ “very wide.” ’ [Citation.] A defendant cannot, by testifying to a state of things inconsistent with the evidence presented by the prosecution, thereby limit cross-examination to the precise facts concerning which [she] testifies. [Citation.] Rather, when a defendant testifies, the prosecutor ‘may fully amplify [her] testimony by inquiring into the facts and circumstances surrounding [her] assertions, or by introducing evidence through cross-examination which explains or refutes [her] statements or the inferences which may necessarily be drawn from them.’ [Citation.]” (People v. Hawthorne (2009) 46 Cal.4th 67, 99-100 (Hawthorne), overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637.)
Defendant here, by testifying concerning the nature of her relationship with her mother and denying the basis for her mother’s application for a restraining order, including denying that she had ever threatened her mother, was subject to cross-examination of a “ ‘ “very wide” ’ ” scope. (Hawthorne, supra, 46 Cal.4th at p. 99.) The trial court’s discretion in admitting evidence through cross-examination and rebuttal was not “exercised . . . in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
II. Conviction of Multiple Counts Was Proper
Defendant contends that his conviction of identity theft (§ 530.5; count 2) must be reversed because it is the lesser included offense of attempted theft from an elder (§§ 368, subd. (d), 664; count 1). Citing People v. Pearson (1986) 42 Cal.3d 351, disapproved on another ground in People v. Vidana (2016) 1 Cal.5th 632, 651, defendant asserts that the count 2 conviction cannot stand because “[m]ultiple convictions may not be based on necessarily included offenses.” She contends that one of the elements of attempted theft from an elder, as provided in subdivision (d) of section 368, is the “violat[ion] of any provision of law proscribing theft, embezzlement, forgery, or fraud, or [a] violat[ion] of Section 530.5 proscribing identity theft.” Therefore, she argues, a violation of “section 530.5 is explicitly a lesser included offense [of attempted theft from an elder] under [the] statutory elements test” used to determine whether multiple convictions for the same conduct is proscribed.
Generally, “[i]n California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.]” (People v. Montoya (2004) 33 Cal.4th 1031, 1034, quoting § 954, original italics.) Multiple convictions for the same act or course of conduct is generally permissible under section 954. Under section 954’s counterpart, section 654, however, multiple punishment for the same act or omission is prohibited. There is “[a] judicially created exception to the general rule permitting multiple conviction [that] ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227 (Reed).)
The Supreme Court has held that the elements test is to be employed in deciding whether a defendant may be convicted of multiple charged offenses arising out of the same act or course of conduct, (Reed, supra, 38 Cal.4th at pp. 1229-1230.) “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.” (Id. at p. 1227.) Or as otherwise stated, “ ‘only a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ [Citation.]” (Id. at p. 1229, quoting People v. Scheidt (1991) 231 Cal.App.3d 162, 165-166.)
Identity theft here was not a necessarily included offense of attempted theft from an elder. Theft from an elder in violation of section 368, subdivision (d), may be accomplished by acts other than identity theft, namely, theft, embezzlement, forgery, or fraud. All five types of conduct were alleged in the information as the basis for the charge of theft from an elder in count 1. And as the court instructed, the jury could conclude that the People satisfied the first element of the offense of theft of property from an elder by finding that the defendant had committed either theft or identity theft. Therefore, because attempted theft from an elder can be based upon conduct other than identity theft, and in this instance the jury was instructed that it could specifically find defendant guilty of count 1 based upon theft (rather than identity theft), identity theft was not necessarily included within the offense of attempted theft from an elder under the statutory elements test. (See, e.g., People v. Whitmer (2014) 230 Cal.App.4th 906, 922 [because “statutory elements of grand theft of property exceeding $400 do not include the statutory elements of making a false financial statement,” defendant could properly be convicted of both grand theft and making a false financial statement]; People v. Mitchell (2008) 164 Cal.App.4th 442, 461 (Mitchell) [defendant properly convicted of forgery and forgery of an access identification card, as latter was not lesser included offense of former].)
In support of her attack on the count 2 conviction, defendant emphasizes the arguments made by the prosecution that the jury should begin its deliberations with count 2 and if it found defendant guilty, it could immediately find defendant also guilty of count 1. But as our high court held in Reed, supra, 38 Cal.4th at page 1229, “we cannot look beyond the statutory elements of the offenses to determine if one is a necessarily included offense of the other.” (Mitchell, supra, 164 Cal.App.4th at p. 461.)
Identity theft was not a necessarily include offense of the crime of attempted theft from an elder. Accordingly, multiple convictions in count 1 and count 2 were appropriate.
III. Fines and Assessments Are Not Subject to Reduction
Defendant challenges the amounts of certain fines and assessments. Specifically, she argues that the $90 assessment imposed under Government Code section 70373, subdivision (a), the $120 assessment imposed under Penal Code section 1465.8, subdivision (a)(1), the $900 restitution fine imposed under section 1202.4, and the $900 probation revocation restitution fine imposed under section 1202.44, must be recalculated to reflect convictions of two, rather than three, felony counts. This argument is entirely dependent upon defendant’s claim that the count 2 conviction must be stricken because identity theft was a necessarily included offense of attempted theft from an elder. Because we have concluded, ante, that this position is without merit, defendant’s challenge to the fines and assessments likewise fails.
IV. Entitlement to Additional Custody Credits
In a supplemental brief, defendant contends that the court erred in its calculation of the appropriate custody credits to which defendant was entitled. She argues that she should have received 172 days, rather than 76 days of custody credits. The Attorney General concedes error.
At the sentencing hearing on January 6, 2016, the court credited defendant with 76 days, calculated as 38 days of actual credit and 38 days of good time/work time credits. This order was apparently based upon the probation report, which noted that defendant was in custody for 38 days—from her initial arrest on December 23, 2014, to January 29, 2015, when she was released after posting bail.
The probation report also reflected that after she was convicted, defendant was remanded to custody and was in county jail from November 20, 2015, until January 6, 2016 (the date of sentencing), i.e., 48 days. It is the credit for this 48 days (and the good time/work time credit associated with it) that defendant contends was erroneously excluded by the court.
There was a second misdemeanor case disposed of at the sentencing hearing that concerned probation revocation proceedings. It was the probation officer’s recommendation that the court revoke and reinstate probation on condition that defendant serve 116 days in jail, with credit for 116 days. The probation officer recommended that defendant serve this sentence consecutively to the sentence imposed in the instant felony case. Based upon this recommendation, the probation officer calculated the custody credits in the felony case as excluding the 48 days served after defendant’s conviction, because that time was already included in calculating credits in the misdemeanor case. But the court did not accept the probation department’s recommendation for consecutive sentencing; instead, it ordered defendant in the misdemeanor case to serve five days, with five days’ credit, and with the sentence running concurrent with the sentence in the felony case.
Because the probation report made it clear that defendant should be denied credit for the time served after conviction to sentencing only if she were “sentenced consecutively as recommended pursuant to Section 2900.5[, subdivision] (b),” and the court did not sentence defendant consecutively, she was entitled to credit for the 48 days served, plus 48 days of good time/work time credit. “Where . . . the defendant’s custody is solely presentence on all charges and he is simultaneously sentenced on all charges to concurrent terms, . . . [p]resentence custody credits must apply to all charges to equalize the total time in custody between those who obtain presentence release and those who do not.” (People v. Kunath (2012) 203 Cal.App.4th 906, 911.)
DISPOSITION
The probation order is hereby modified to reflect that defendant should receive 172 days of custody credits (86 actual, 86 good time/work time). As so modified, the probation order is affirmed.





Rushing, P.J.




WE CONCUR:





Premo, J.






Elia, J.





People v. Ferguson
H043164