1

Filed 5/6/11 P. v. Waters CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH LAVERN WATERS, SR.,

Defendant and Appellant.

A126386

(Lake County Super. Ct. No. CR908623)

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Kenneth Lavern Waters, Sr., appeals his conviction by jury trial of possession of a

billy club (Pen. Code, § 12020, subd. (a)(1))1 (count 2), possession of a nunchaku2

(§ 12020(a)(1)) (count 3) and possession of a shuriken (§ 12020(a)(1)) (count 4).3 He

raises numerous claims of error. We remand the case to the trial court for recalculation

of appellant’s presentence custody credits and otherwise affirm.

BACKGROUND

On February 9, 2006, City of Lakeport Police Sergeant Jason Ferguson conducted

a search of appellant’s Kelseyville residence.4 Inside appellant’s bedroom, Ferguson

recovered a steel bar modified with a weighted end, a lanyard affixed to the top and one

end wrapped with a material that looked like a grip. Ferguson testified that a billy club is

a straight stick with a grip and a lanyard. Based on his training and experience, he opined

that the item recovered was a billy club. On cross-examination, Ferguson said the handle

of the item unscrewed, the tube was hollow and there was a cap at the end that weighted

it.

Inside appellant’s bedroom closet, Ferguson found a three-bladed item. Based on

his training and experience he opined the item was a weapon known as a throwing star or

shuriken. On a shelf inside the living room, Ferguson found an object that had two

handles on each end connected with a chain. He opined the object was a nunchaku, a

weapon used in martial arts.

1 All undesignated section references are to the Penal Code. Hereafter, all references to section 12020, subdivision (a) will be styled as section 12020(a).

2 The record variously refers to this item as a nunchuck.

3 Appellant was found not guilty of possession of marijuana for sale (Health & Saf. Code, § 11359) (count 1), possession of ammunition (§ 12316, subd. (b)(1)) (count 5) and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c)) (count 6). He was sentenced to three years eight months in state prison.

4 The parties stipulated, and the jury was informed, that the search was legally conducted. The probation report indicates the search was a probation search.

3

The Defense

Appellant’s son, Jonathan Waters (Waters), testified that the item identified by the

prosecution as a billy club was given to Waters by an elderly woman who wanted to have

it modified into an elongated cattle prod for long-haired sheep, goats and cattle. The

woman told Waters the item was her husband’s “tire thumper,”5 and that her husband

was a rig driver. Appellant designed an electronic schematic for the device and he and

Waters obtained parts for it. Waters identified defense exhibit F as appellant’s rough

draft of the wiring schematic and plans to modify the tire thumper.6 Waters did not

remember where he put the device, but said its location in appellant’s bedroom made

sense since appellant did a lot of his work there. Waters conceded that after appellant

was charged with possession of a billy club, Waters did not tell police that appellant

possessed the item seized for a legitimate purpose.

Waters testified that appellant had briefly entertained the idea of manufacturing

and selling martial arts instruction tools. He identified the nunchaku in evidence as a

display model, used for advertisement. Waters identified defense exhibit A as a sales

brochure made by appellant for the martial arts tools appellant manufactured for sale. On

cross-examination, Waters admitted a 2006 conviction for felony grand theft.

Appellant testified he had studied various kinds of martial arts and use of martial

arts weapons like nunchaku and triple staffs. He also had manufactured nunchaku using

hardwood and tactical cord, hoping to create something quieter and less expensive. He

was intending to sell the nunchaku to licensed dojos. Appellant also testified he was a

knife collector and had owned more than 10,000 knives during the last 40 years. He

identified the throwing star in evidence as a “cyclone,” which he said was a collectible

knife with no utilitarian value. He explained that its blades were very thin and would not

5 With no objection, defense counsel stated during closing argument that tire thumpers are used to check the air pressure in tires. We decline, as unnecessary, appellant’s April 22, 2010 request that we take judicial notice of this fact based on an out-of-state case, product descriptions, and articles.

6 Exhibit F was not admitted into evidence.

4

withstand any practice throws. Appellant distinguished it from a shuriken by saying a

shuriken is generally a single piece of metal with three or more points.

Appellant testified that when he and Waters held a garage sale, a woman asked if

he could convert her tire thumper into a cattle prod for sheep using less corrosive

batteries and longer prongs. He received the item from the woman but did not give her

an estimate of how much the job would cost. Appellant “believed” the item was made of

hollow aluminum and had a “knurled” handle, but it did not have a weighted end. He

said he had never used it as a billy club. Appellant said that, at the time of the search, his

rough draft of the schematic for the cattle prod was wrapped around the tire thumper with

a rubber band.7

On cross-examination, appellant said he had been in the business of manufacturing

nunchaku for several months. Later, he testified he had been in the business of

manufacturing nunchaku and triple staffs. He did the manufacturing work in his yard and

inside his house. At the time of the search, he had about 30 pairs of nunchaku in boxes

ready to label and ship inside the laundry room in his house. He never obtained a

business license and did not maintain a list of the dojos he sent flyers to. He also did not

maintain any receipts for the nunchaku sold or for his supplies.

Appellant testified he purchased the “cyclone” at a flea market in Clearlake for

$15. He said, “[a]s far as knives go, it’s a piece of junk,” and is merely a collectible. He

also said the yard sale took place a couple of weeks before the police search. He did not

know the name of the woman who asked him to make the cattle prod. He said her name

and phone number were in his computer, which had been stolen.

7 In rebuttal, Ferguson testified he did not see a rough draft of the schematic wrapped around the handle of the billy club and, had it been so wrapped, it would have been photographed.

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DISCUSSION

I. Substantial Evidence Supports Appellant’s Conviction for Possession of a Billy Club

Appellant contends there is insufficient evidence that he possessed a billy club.

“ ‘The proper test for determining a claim of insufficiency of evidence in a criminal case

is whether, on the entire record, a rational trier of fact could find the defendant guilty

beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the

light most favorable to the People and must presume in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’

[Citation.]” (People v. Perez (2010) 50 Cal.4th 222, 229.)

Section 12020(a)(1) prohibits the possession of “any instrument or weapon of the

kind commonly known as a blackjack, slungshot, billy, sandclub, sap or sandbag.” In

enacting that statute, the Legislature “sought to outlaw the classic instruments of violence

and their homemade equivalents; the Legislature sought likewise to outlaw possession of

the sometimes-useful object when the attendant circumstances, including the time, place,

destination of the possessor, the alteration of the object from standard form, and other

relevant facts indicated that the possessor would use the object for a dangerous, not

harmless purpose.” (People v. Grubb (1965) 63 Cal.2d 614, 620-621, fn. omitted

(Grubb).) Section 12020(a)(1) “embraces instruments other than those specially created

or manufactured for criminal purposes; it specifically includes those objects ‘of the kind

commonly known as a billy.’ ” (Grubb, at p. 621.)8

The defendant’s specific intent to use the object as a weapon is not an element of

section 12020. (People v. Rubalcava (2000) 23 Cal.4th 322, 330-331(Rubalcava);

People v. Fannin (2001) 91 Cal.App.4th 1399, 1404.) However, the prosecution must

prove the defendant possessed an object, which could have ordinary innocent uses, as a

weapon, knowing it could be so used and willing to so use it should an occasion arise.

8 In Grubb, the Supreme Court held the defendant’s possession of an altered baseball bat, which was taped at the smaller end and heavier at the unbroken end, was usable as a billy club and violated section 12020. (Grubb, supra, 63 Cal.2d at pp. 619-621.)

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(In re David V. (2010) 48 Cal.4th 23, 25-26.) “The burden . . . is on the defendant to

show that possession of the weapon was for an innocent purpose. [Citation.]” (People v.

King (2006) 38 Cal.4th 617, 624.)

Appellant contends his billy club possession conviction is unsupported by

substantial evidence because a tire thumper has a lawful use, and no evidence was

presented that he contemplated any unlawful use of the tire thumper.

We conclude substantial evidence supports appellant’s conviction for possession

of a billy club. Although appellant and Waters described the item as a tire thumper,

Ferguson opined that the item met the definition of a billy club. It was a question of fact

for the jury whether the object was a tire thumper or an illegal weapon, and the jury’s

decision rested in part on a credibility evaluation of three witnesses. We are entitled to

presume in favor of the judgment that the jury rejected the assertion that the item was a

tire thumper that could have ordinary, innocent uses.

II. CALCRIM No. 2500 Instruction

Appellant contends the court committed two errors in instructing the jury with

CALCRIM No. 2500, and argues defense counsel was ineffective in failing to request the

proper instructions.

Appellant first asserts the trial court erred in failing to give the portion of

CALCRIM No. 2500 regarding objects which are capable of innocent uses. Without

objection, the court instructed the jury:

“The defendant is charged in [c]ount 2 with unlawfully possessing a weapon,

specifically a billy club in violation of . . . section 12020(a)(1).

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant possessed a billy club;

“2. The defendant knew that he possessed a billy club;

“AND

“3. The defendant knew that the object could be used as a weapon[.]

“The People do not have to prove that the defendant intended to use the object as a

weapon.

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“Two or more people may possess something at the same time.

“A person does not have to actually hold or touch something to possess it. It is

enough if the person has the right to control it, either personally or through another

person.”

Appellant contends the court erred in instructing pursuant to CALCRIM No. 2500,

“<Alternative 3B—object designed solely for use as weapon>,” that “[t]he defendant

knew that the object could be used as a weapon.” He argues that because the tire thumper

was capable of innocent uses, the court should have instead instructed the jury in the

language of CALCRIM No. 2500, “<Alternative 3A—object capable of innocent uses>,”

that “[t]he defendant . . . possessed . . . the object as a weapon. When deciding whether

the defendant . . . possessed . . . the object as a weapon, consider all the surrounding

circumstances relating to that question, including when and where the object was . . .

possessed . . . , where the defendant was going, whether the object was changed from its

standard form, and any other evidence that indicates whether the object would be used for

a dangerous, rather than a harmless purpose.” (Judicial Council of Cal., Crim. Jury

Instns. (2011) CALCRIM No. 2500, pp. 369-370, boldface omitted.)

A bench note to CALCRIM No. 2500 provides in part: “Select alternative 3A if

the object is capable of innocent uses. In such cases, the court has a sua sponte duty to

instruct on when an object is possessed ‘as a weapon.’ [Citations.] [¶] Select alternative

3B if the object ‘has no conceivable innocent function’ [citation] . . . .” (Judicial Council

of Cal., Crim. Jury Instns., supra, Bench Notes to CALCRIM No. 2500, p. 372, boldface

omitted.) Similarly, commentary to CALCRIM No. 2500 provides in part: “In element 3

of the instruction, the court should give alternative 3B if the object has no innocent uses,

inserting the appropriate description of the weapon. If the object has innocent uses, the

court should give alternative 3A.” (Judicial Council of Cal., Crim. Jury Instns., supra,

Commentary to CALCRIM No. 2500, p. 375.)

The trial court has a sua sponte duty to instruct on the general principles of law

relevant to the issues raised by the evidence, including the elements of all charged

offenses. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) Instructional error is not

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determined by isolated parts of the instructions or from a particular instruction. (People

v. Smithey (1999) 20 Cal.4th 936, 963-964.) Rather, we read the jury instructions as a

whole to determine whether there is a reasonable likelihood that they confused or misled

the jury. (People v. Hughes (2002) 27 Cal.4th 287, 341.) Failure to properly instruct on

a single element of a crime may not compel reversal where “it appears ‘beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained.’

[Citations.]” (People v. Harris (1994) 9 Cal.4th 407, 424-425.)

Here, appellant and Waters testified that the seized item was a tire thumper, i.e., an

object capable of innocent uses. Thus, we conclude the court erred in failing to instruct

the jury with alternative 3A, regarding an object capable of innocent uses, instead of

alternative 3B.

Appellant also contends the court compounded this error by instructing the jury

that the People did not have to prove he intended to use the object as a weapon.

Appellant is correct. CALCRIM No. 2500 provides that, “<. . . only if alternative 3B is

given>,” the court should instruct the jury “The People do not have to prove that the

defendant intended to use the object as a weapon.” (Judicial Council of Cal., Crim. Jury

Instns., supra, CALCRIM No. 2500, p. 370.) Where the object may have a legitimate

and lawful use the jury must be instructed, pursuant to Grubb, supra, 63 Cal.2d 614, on

the attendant circumstances indicating that the possessor would use the object for a

dangerous purpose. (People v. Deane (1968) 259 Cal.App.2d 82, 89.)

Instead of instructing the jury that the People did not have to prove appellant

intended to use the object as a weapon, the trial court should have instructed, pursuant to

alternative 3A, that the jury was required to determine whether defendant possessed the

object as a weapon.

However, we conclude the instructional errors were harmless beyond a reasonable

doubt because the attendant circumstances provide overwhelming evidence that the item

was not a harmless tire thumper, but a weapon to be used for a dangerous purpose. Not

only did Ferguson’s opinion contradict the testimony of appellant and Waters, but, also,

neither appellant nor Waters provided any identifying information about the woman they

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claimed asked them to modify the so-called tire thumper into a cattle prod. Despite

appellant’s claim that the schematic drawing for the planned cattle prod was wrapped

around the item with a rubber band at the time of the search, Ferguson did not see the

drawing. After appellant was charged with possession of a billy club, Waters did not tell

police that appellant possessed the item for a legitimate purpose. Appellant collected

knives over a 40-year period, studied martial arts, used nunchaku and triple staffs,

manufactured nunchaku and had other dangerous weapons in his home. Based on this

evidence, it appears beyond a reasonable doubt that the instructional error did not

contribute to the jury’s verdict on the possession of a billy club charge.

We also reject appellant’s assertion that defense counsel was ineffective in failing

to request the proper CALCRIM No. 2500 instructions.

A defendant claiming ineffective assistance of counsel has the burden to show:

(1) counsel’s performance was deficient, falling below an objective standard of

reasonableness under prevailing professional norms; and (2) the deficient performance

resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v.

Ledesma (1987) 43 Cal.3d 171, 216-218.) Prejudice is shown when “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.)

Given our determination that the instructional errors were harmless beyond a

reasonable doubt, appellant cannot establish that defense counsel’s failure to request the

proper instruction was prejudicial.

III. The Trial Court’s Denial of Appellant’s Request to Reopen

Next, appellant contends the trial court abused its discretion in denying his request

to reopen his case to admit defense exhibit F9 into evidence. Exhibit F was marked for

identification, but not received in evidence.

9 As noted above, Waters and appellant identified exhibit F as “the rough draft” of the schematic appellant created to modify the “tire thumper” into a cattle prod.

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During deliberations, the jury sent the court a note requesting to see “The

schematic of the club modification to sheep prod.” Outside the presence of the jury, the

court stated that its records and the clerk’s records indicated that exhibit F was apparently

not offered into evidence. The court said it intended to respond to the jury’s note by

stating the requested schematic was not received in evidence. When defense counsel

asked if it was too late to move exhibit F into evidence, the court replied, “At this point

everybody has argued it, they’ve been instructed. If we were at a little earlier stage, I

might consider that. And there again, there might be appropriate objections to it, might

not, but at any rate, at this stage we’re beyond the point [of] presenting further evidence

by either party.” The court then sent the jury a written response stating, “The schematic

you have requested was not received in evidence.”

A trial court has broad discretion to order a case reopened and allow the

introduction of additional evidence. (People v. Rodriguez (1984) 152 Cal.App.3d 289,

294-295.) “[A] trial court does not abuse its discretion unless its decision is so irrational

or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004)

33 Cal.4th 367, 377.)

“In determining whether a trial court has abused its discretion in denying a defense

request to reopen, the reviewing court considers the following factors: ‘(1) the stage the

proceedings had reached when the motion was made; (2) the defendant’s diligence (or

lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord

the new evidence undue emphasis; and (4) the significance of the evidence.’ [Citation.]”

(People v. Jones (2003) 30 Cal.4th 1084, 1110.)

Appellant argues that the court either misunderstood the scope of its discretion or

failed to consider any factors other than timeliness in exercising its discretion. He makes

the following arguments: First, reopening would not have caused any undue

consumption of time since the admissibility of exhibit F could have been addressed

quickly outside the jury’s presence. Second, the failure to have exhibit F received in

evidence was due to defense counsel’s “simple inadvertence,” not his lack of diligence.

Third, reopening would have caused no undue burden on the prosecution because exhibit

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F had already been discussed during trial. Fourth, the jury would not have accorded

exhibit F any undue emphasis since the jury was already interested in it and had

requested it. Conversely, appellant asserts that since the jury was not informed as to why

the exhibit was not in evidence, it may have drawn a negative inference from its absence.

Fifth, exhibit F was significant because it supported appellant’s defense that the tire

thumper was not possessed by him as a weapon.

Appellant argues that since exhibit F was at the heart of his defense as to count 2,

the court’s refusal to let him reopen to introduce it resulted in an unreasonable limitation

on his due process right to present a defense. He also argues that the jury returned its

guilty verdict shortly after being denied the right to see exhibit F, thus establishing the

prejudice resulting from the court’s ruling.

We conclude that even assuming the court abused its discretion in refusing to

reopen the defense case to admit exhibit F into evidence, the error is harmless. (People v.

Watson (1956) 46 Cal.2d 818, 836.) As the People argue, the “pivotal question”

regarding the so-called schematic drawing designated as exhibit F was whether appellant

created it prior to the search in response to the woman from the yard sale or whether he

created it after he was arrested and charged in an effort to support his defense. As we

noted previously, appellant testified that at the time of the search the schematic was

rubber banded around the tire thumper; Ferguson testified he did not see the schematic at

the time of the search. Even if the jury had access to exhibit F and determined that it was

a schematic for modification of the item recovered into a cattle prod, the exhibit alone

would not have answered the question whether the schematic was created before or after

the search. Thus, we conclude it is not reasonably probable that appellant would have

obtained a more favorable result on the possession of a billy club charge had the defense

case been reopened to admit exhibit F in evidence. (People v. Watson, supra, 46 Cal.2d

at p. 836.)10 Although we do not believe that this claim of error rises to the level of a

10 For the same reason, we reject appellant’s claim that defense counsel was ineffective in failing to offer exhibit F into evidence and failing to “zealously argue the grounds for reopening evidence” to secure its admission.

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federal due process claim, even if it did the error would be harmless beyond a reasonable

doubt. (Chapman v. California (1967) 386 U.S. 18.)

IV. Failure to Instruct the Jury on Allocation of the Burden of Proof Is Harmless

Next, appellant contends the court erroneously instructed the jury on the allocation

and weight of the burden of proof as to his defense to possession of a nunchaku. In

particular, he argues that instead of using the pattern instruction contained at the end of

CALCRIM No. 2500, the court gave its own instruction regarding the statutory

exemption for persons who manufacture nunchaku for licensed self-defense schools. He

asserts that the instruction given did not advise the jury regarding the allocation and

burden of proof.

Section 12020(a)(1) prohibits the manufacture and possession of “any nunchaku.”

The only statutory exceptions to this general proscription are found in section 12020,

subdivision (b)(3) and (4). Subdivision (b) allows “[t]he possession of a nunchaku on the

premises of a school which holds a regulatory or business license and teaches the arts of

self-defense.”

Section 12020, subdivision (b)(4), at issue here, provides that subdivision (a) does

not apply to, “The manufacture of a nunchaku for sale to, or the sale of a nunchaku to, a

school which holds a regulatory or business license and teaches the arts of self-defense.”

Defense counsel requested CALCRIM No. 2500. During the conference on jury

instructions, defense counsel noted that the court’s proposed CALCRIM No. 2500

instruction did not include language regarding the defense to possession of a nunchaku.

The court agreed and stated it added the following language to its CALCRIM No. 2500

instruction: “It is a defense to the above charge if a person manufactures a [nunchaku]

for sale to a school which holds a regulatory or business license and teaches the arts of

self-defense.” When the court asked if there were any comments, defense counsel said,

“No.”

Thereafter, the court instructed the jury, in part:

“The defendant is charged in [c]ount 3 with unlawfully possessing a weapon,

specifically, nunchaku, in violation of . . . section 12020(a)(1).

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“To prove the defendant is guilty of this crime, the People must prove that:

“1. The defendant possessed nunchaku;

“2. The defendant knew that he possessed the nunchaku;

“AND

“3. The defendant knew that the object could be used as a weapon.

“The People do not have to prove that the defendant intended to use the object as a

weapon.

“A nunchaku means an instrument consisting of two or more sticks, clubs, bars or

rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a

weapon used in connection with the practice of a system of self-defense such as karate.

“It is a defense to the above charge if a person manufactures a nunchaku for sale to

a school which holds a regulatory or business license and teaches the arts of self-defense.

“The People do not have to prove that the object was concealed, carried or

displayed.”

A bench note to CALCRIM No. 2500 provides: “If there is sufficient evidence to

raise a reasonable doubt about the existence of one of the statutory exemptions, the court

has a sua sponte duty to give the bracketed instruction on that defense.” (Judicial Council

of Cal., Crim. Jury Instns., supra, Bench Notes to CALCRIM No. 2500, p. 373, boldface

omitted.) The CALCRIM No. 2500 bracketed statutory exemptions defense instruction

provides, in part: “[The defendant did not unlawfully (possess/manufacture/cause to be

manufactured/import/keep for sale/offer or expose for sale/give/lend) (a/n) _____ <insert

type of weapon from . . . § 12020(a)> if _____ <insert exception from . . . § 12020(b)>.

The People have the burden of proving beyond a reasonable doubt that the defendant

unlawfully (possessed/maunufactured/caused to be manufactured/imported/kept for

sale/offered or exposed for sale/gave/lent) (a/an) _____ <insert type of weapon from . . .

§ 12020(a)>. If the People have not met this burden, you must find the defendant not

guilty of this crime.]” (Judicial Council of Cal., Crim. Jury Instns., supra, CALCRIM

No. 2500, at p. 371, boldface omitted.)

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This CALCRIM No. 2500 bracketed instruction advises the jury of the statutory

defenses to section 12020(a). It also reflects the fact that “Evidence Code section 501

provides that, when a statute allocates the burden of proof to a defendant on any fact

relating to his or her guilt, the defendant is required merely to raise a reasonable doubt as

to that fact.” (People v. Mower (2002) 28 Cal.4th 457, 479 (Mower).) Mower notes that

examples of such defenses are “the defense of possession of a dangerous or restricted

drug with a physician’s prescription, against a charge of unlawful possession of such a

drug”; “the defense of lawful acquisition of a hypodermic needle or syringe, against a

charge of unlawful possession of such an item”; and “the defense of prescribing narcotics

to an addict under lawful conditions, against a charge of unlawfully prescribing such

substances to such a person.” (Id. at pp. 479-480.) Mower explains that such defenses

relate to the defendant’s guilt or innocence because they relate to an element of the

offense in question.11 (Id. at p. 480.)

Mower also explained, “When a statute allocates the burden of proof to a

defendant as to a fact collateral to his or her guilt, . . . the defendant may be required to

prove that fact by a preponderance of the evidence. [Citations.]” (Mower, supra, 28

Cal.4th at p. 480.) However, only a few defenses, the most prominent of which is

entrapment, require the defendant to prove the underlying facts of the defense by a

preponderance of the evidence. As the Supreme Court explained, these defenses are

collateral to the defendant’s guilt or innocence “because they are collateral to any

element of the crime in question.” (Ibid., italics omitted.)

“A trial court must instruct the jury on the allocation and weight of the burden of

proof (Evid. Code, § 502; [citations]), and, of course, must do so correctly. It must give

such an instruction even in the absence of a request [citation], inasmuch as the allocation

11 In Mower, the Supreme Court concluded that the defense of being a patient or a patient’s qualified caregiver against a charge of unlawful possession or cultivation of marijuana (Health & Saf. Code, § 11362.5, subd. (d)) is one which merely requires the defendant to raise a reasonable doubt as to the facts underlying the defense. (Mower, supra, 28 Cal.4th at p. 481.)

15

and weight of the burden of proof are issues that ‘are closely and openly connected with

the facts before the court, and . . . are necessary for the jury’s understanding of the case’

[citation].” (Mower, supra, 28 Cal.4th at pp. 483-484.)

As recognized by a bench note to CALCRIM No. 2500, a defendant’s defense of

lawful manufacture of a nunchaku relates to the defendant’s guilt or innocence because it

relates to an element of the section 12020(a) offense. (Judicial Council of Cal., Crim.

Jury Instns., supra, Bench Notes to CALCRIM No. 2500, at p. 373.) Thus, here,

appellant was required merely to raise a reasonable doubt as to his lawful manufacture of

a nunchaku.

Appellant testified he was manufacturing nunchaku for sale to licensed dojos, thus

providing sufficient evidence to raise a reasonable doubt about a statutory exemption to

the count 3 section 12020(a)(1) charge.

The thrust of appellant’s argument is “the court should have instructed the jury in

the [statutory exemption] language provided in CALCRIM No. 2500 that: [¶] ‘The

defendant did not unlawfully possess a nunchaku if he manufactured it for sale to a

school which holds a regulatory or business license and teaches the arts of self-

defense.’ ” He argues that the court erred in instead instructing the jury: “It is a defense

to the above charge if a person manufactures a nunchaku for sale to a school which holds

a regulatory or business license and teaches the arts of self-defense.”

The court’s instruction did accurately convey that appellant did not unlawfully

possess a nunchaku if he manufactured it for sale to a licensed self-defense school, and

appellant has failed to establish that its placement in the body of the instruction, rather

than at the end, was confusing. But, the instruction given did not expressly instruct that

the People had the burden of proving beyond a reasonable doubt that appellant

unlawfully manufactured a nunchaku. However, we conclude the totality of the

instructions given adequately instructed the jury on the People’s burden of proof.12 The

12 We assume, arguendo, that appellant’s failure to object below to the instruction given did not constitute a waiver of his claim of instructional error.

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CALCRIM No. 2500 instruction given informed the jury that it is a defense to the

possession of a nunchaku charge if a person manufactures a nunchaku for sale to a school

which holds a regulatory or business license and teaches the arts of self-defense. That

instruction together with CALCRIM Nos. 220 and 225 adequately conveyed to the jury

that the People must prove appellant guilty beyond a reasonable doubt. In addition, the

prosecutor and defense counsel expressly stated during closing argument that it is a

defense to the possession of a nunchaku if a person manufactures it for sale to a school

which holds a regulatory or business license and teaches the arts of self-defense. Defense

counsel further argued, “[S]o long as [appellant] manufactures for the purpose of selling

to a properly licensed martial arts dojo, then he can possess nunch[aku].” Based on the

totality of the instructions given and the arguments of counsel, there is no reasonable

likelihood the court’s instructions caused the jury to misapply the law (Estelle v. McGuire

(1991) 502 U.S. 62, 72), and the instructional error is harmless beyond a reasonable

doubt (Mower, supra, 28 Cal.4th at p. 484).13

V. Substantial Evidence Supports the Possession of a Shuriken Count

Appellant next contends there was insufficient evidence that he possessed a

shuriken. In a related claim, he contends the court erroneously denied his motion for

acquittal of the count 4 possession of a shuriken charge.

Section 12020(a)(1) penalizes the possession of “any shuriken.” Subdivision

(c)(11) of section 12020 defines a shuriken as “any instrument, without handles,

consisting of a metal plate having three or more radiating points with one or more sharp

edges and designed in the shape of a polygon, trefoil, cross, star, diamond, or other

geometric shape for use as a weapon for throwing.”

For the first time on appeal, appellant contends he was erroneously charged and

convicted in count 4 with possession of “an instrument and weapon of the kind

commonly known as a shuriken.” He argues that while section 12020(a)(1) prohibits

13 Given our determination that the instructional errors were harmless beyond a reasonable doubt, appellant cannot establish that defense counsel’s failure to request the proper instruction was prejudicial.

17

“any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy,

sandclub, sap, or sandbag,” the statute prohibits possession of “any shuriken,” not any

instrument commonly known as a shuriken. (Italics added.) He asserts that, by using the

phrase “commonly known as,” the prosecution impermissibly sought to enlarge the

statute to include items not criminalized by the Legislature. The short answer to

appellant’s assertion is that appellant has not shown that this argument was raised in the

trial court; the argument cannot be made for the first time on appeal. (See People v.

Williams (1999) 20 Cal.4th 119, 131.)

Appellant also contends the object recovered in the search did not meet the

statutory definition of a shuriken because it was not made of a single piece of metal with

radiating points.

Ferguson described the object as having three blades. He defined a shuriken as

being a multi-bladed item that can be handheld and thrown. He testified the knife was

not made from a single piece of metal and appeared to be made of several different types

of metal. He said the interior portion of the blades was held on as a single piece. He

described the blades as being curved and did not think curved blades would hinder the

“throwability” of a knife. Based on Ferguson’s training and experience, he opined the

object was a weapon known as a throwing star or shuriken. He demonstrated for the jury

how the blades could be extended and locked in their extended position.

Appellant, who had collected knives for about 40 years and had owned more than

10,000 knives testified he knew about throwing knives. He said the object was a

collectible knife with no utilitarian value. He said that because the blades were very thin

and sharpened only on one side, they would not withstand practice throws. He described

a shuriken as a “piece of metal with three or more points. I’ve seen them with up to six

points, but generally no more because the points would be too shallow to stick then.” He

said generally it would be made of a single piece of metal; he “never saw anything with

multiple pieces.” He also said the object had “holes in the blades between the serrated

parts of the blade that make it very thin. Almost any stress at all would snap the blades.”

18

The jury was instructed in accordance with section 12020, subdivision (c)(11) that

“A shuriken means any instrument, without handles, consisting of a metal plate having

three or more radiating points with one or more sharp edges and designed in the shape of

a polygon, trefoil, cross, star, diamond, or other geometric shape for use as a weapon for

throwing.”

Appellant contends that, under the “rule of lenity” (see People v. Avery (2002) 27

Cal.4th 49, 57), section 12020(a)(1) should be interpreted in his favor. “ ‘[T]he existence

of statutory ambiguity is not enough to warrant application of the general rule [of lenity],

because most statutes are ambiguous to some degree. The rule applies only if the court

can do no more than guess what the legislative body intended; there must be an egregious

ambiguity and uncertainty to justify invoking the rule.’ [Citation.] The rule is

inapplicable ‘ “unless two reasonable interpretations of the same provision stand in

relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner

is impracticable.” ’ [Citation.]” (People v. Bamberg (2009) 175 Cal.App.4th 618, 629.)

Here, the rule of lenity is inapplicable since the definition of a shuriken contained

within section 12020, subdivision (c)(11) is not capable of two reasonable interpretations

that stand in relative equipoise. Contrary to appellant’s claim, the clear meaning of the

statute does not require that a shuriken be made of a single piece of metal that has three

or more radiating points. We conclude the jury could properly conclude that Ferguson’s

testimony was more credible than appellant’s and that the object met the statutory

definition of a shuriken.

Finally, appellant contends the court improperly relied on its perceived intended

use of the object in denying appellant’s motion for acquittal as to count 4.

We review independently a trial court’s ruling on a motion for acquittal under

section 1118.1 that the evidence is sufficient to support a conviction. (People v. Cole

(2004) 33 Cal.4th 1158, 1212.) In ruling on such a motion, “a trial court applies the same

standard an appellate court applies in reviewing the sufficiency of the evidence to support

a conviction, that is, ‘ “whether from the evidence, including all reasonable inferences to

be drawn therefrom, there is any substantial evidence of the existence of each element of

19

the offense charged.” [Citations.]’ [Citation.] ‘Where [as here,] the section 1118.1

motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the

evidence is tested as it stood at that point.’ [Citation].” (Id. at pp. 1212-1213.)

At the close of the prosecution’s case, appellant moved for dismissal of count 4 on

the ground that the object was not made from a single piece of metal plate and therefore

did not meet the statutory description of a shuriken. In denying the motion the court

stated, “[O]bviously the object is made of metal, including the blade. Both the blades and

. . . a central portion of the instrument . . . appears to be triangular in shape. Each of the

points of the triangle contain within them a folding knife, if you will, that can be unfolded

and then exposed, which then gives three what appear to be very sharp radiating points.

And just looking at it with those folded out, it appears that that can be used as an

offensive or defensive weapon, could probably cause some serious injury to another if

used by being thrown. [¶] Now, the [c]ourt’s going to make an analogy. I know for

years there was a lot of argument and discussion about what constituted a dirk or dagger.

Some people argued, well, it had to have two sides that were sharp. Others said, no, it

had to be kind of wavy with two sides. And then there were . . . probably as many

arguments about what constituted a dirk or dagger as there were attorneys to argue it.

[¶] Finally, the case law came down, and I think the Legislature did a little bit to clarify

it, but it’s any concealing stabbing instrument, which covers a variety, to be used for

offensive or defensive purposes. And so now the purpose for which one might carry that

weapon defines whether it’s a dirk or dagger. If it’s a concealed stabbing weapon being

. . . carried for that purpose, then it fits the category. [¶] And I feel and find that this

particular weapon falls in the same category. The average person for normal household

use or outside of the household use does not have a need or purpose for this object . . .

other than for defensive or offensive purposes. . . . [¶] . . . [¶] So the [c]ourt does find

that the object does fit the definition of a shuriken as defined by law. This does not

specifically say that it has to be one solid metal plate, blades and center included. And I

think a logical extension of that and considering the purpose for which [it] is defined—it

says, ‘for use as a weapon for throwing’—it appears that’s one of maybe a couple of uses

20

for fighting for which that object can be used.” At the conclusion of the defense case, the

court denied appellant’s request to reconsider its ruling on the motion for acquittal of

count 4.

Citing Rubalcava, supra, 23 Cal.4th at page 334 [defendant’s intended use of the

instrument is neither an element of the offense nor a defense], appellant argues the

court’s dirk or dagger analogy was erroneous “because in determining whether a weapon

is a dirk or dagger, the possessor’s intended use is irrelevant.” Appellant’s argument

lacks merit. The significance of the court’s analogy regarding a dirk or dagger is not

clear. However, the court offered the analogy solely in response to appellant’s assertion

that the item was not a shuriken because it was not made from a single piece of metal. In

so doing, the court simply rejected appellant’s interpretation of the statutory definition of

a shuriken.

Substantial evidence was presented that the seized item met the statutory

definition of a shuriken.

VI. No Ineffective Assistance of Counsel Is Demonstrated

Next, appellant contends defense counsel was ineffective in failing to prevent

irrelevant and prejudicial information from being read to the jury.

At the outset of trial, the court read the information to the jury. In connection with

the count 5 possession of ammunition charge, the information stated that appellant

possessed ammunition, was prohibited from possessing a firearm because he had

previously been convicted in 1992 of a felony (Health & Saf. Code, § 11378) for which

he served a prison term (§ 667.5), did not remain free of prison custody and did commit a

felony within five years after the conclusion of that prison term.

Thereafter, outside the presence of the jury, defense counsel informed the court

that the prior prison term of which the jury had been informed “was somebody else’s

prior.” The court stated that the defense “had indicated that they were not objecting to or

asking that mention of the prior be bifurcated, so it’s been read to the jury.” The

prosecutor agreed to look into the matter. The court told the prosecutor, “this has the

potential of being very embarrassing to your side of the case . . . .” Defense counsel said

21

he had previously brought this to the prosecutor’s attention, and appellant said that since

a “Michael Toso” had used appellant’s identification in the 1980’s, appellant had

previously encountered this kind of confusion. The court stated it “was at a loss to

explain” why counsel had not worked this out previously.

At the next court session, the court ordered filed an amended information

presented by the prosecutor which removed the language from count 5 regarding

appellant’s prior prison term. The court said it would read the amended information to

the jury and defense counsel asked the court to instruct the jury that appellant was never

convicted of the prior. Thereafter, the court instructed the jury: “Now, we have a

housekeeping matter, and that is the other day the information was read to each of you.

This morning the district attorney has filed a first amended information. Both parties

stipulated to that. And it turns out that, as you may remember, you were read the other

day about a prior prison term, a felony conviction, that it turns out the person involved in

that was not this defendant; it was someone else. And so the entire information has been

amended.”

The amended information was then read, in its entirety, to the jury. The amended

count 5 stated that appellant was prohibited from owning or possessing a firearm, having

been previously convicted in 2005 of violating Health and Safety Code section 11366.

After the amended information was read, the court stated: “Those are the charges

alleged, and disregard what you heard about the charges earlier that are now different

from what you just heard for the reasons I stated earlier.” Subsequently, the jury

acquitted appellant on count 5.

Appellant contends the court’s explanation “could not have removed all of the

prejudice from hearing that appellant had served a prison term and had been convicted of

another felony less than five years after serving the first term.” He asserts that defense

counsel was ineffective in failing to ask for bifurcation of the priors or failing to object to

the court’s reading of the prison prior.

The short answer is that appellant has failed to demonstrate prejudice. In his reply

brief he asserts that the prejudice arising from the “damaging information” necessarily

22

accrued to his case as a whole, not to any particular count. He also states, “While one

could dispute the amount of harm that came from hearing about the prison prior, it must

be conceded that there was certainly no good that could come of it.” The court instructed

the jury not to consider the prior prison term allegation contained in the original

information and in the absence of evidence to the contrary, we presume the jury followed

the court’s instruction. (People v. Waidla (2000) 22 Cal.4th 690, 725.) In addition,

appellant was acquitted on three counts, including count 5, and substantial evidence

amply supported his convictions for possession of a billy club, a nunchaku and a

shuriken. No ineffective assistance of counsel is demonstrated.

VII. There Was No Cumulative Prejudice

Appellant contends the cumulative impact of the trial court’s errors mandates

reversal.

We concluded that, with regard to the count 2 charge of possession of a billy club,

the court erred in failing to give the portion of the CALCRIM No. 2500 instruction

regarding objects which are capable of innocent uses, and in instructing the jury that the

People did not have to prove appellant intended to use the object as a weapon. With

regard to the count 3 charge of possession of a nunchaku, we concluded the court erred in

failing to expressly instruct the jury with the portion of CALCRIM No. 2500 pertaining

to the allocation and weight of the proof.14 However, we concluded that each of these

errors was not prejudicial. Appellant’s assertion of cumulative prejudice is conclusory;

he has failed to demonstrate that the errors are cumulatively prejudicial. In light of our

rejection of most of his contentions, his cumulative error argument unquestionably fails.

VIII. Credits

Appellant contends he is entitled to additional credits as follows: (1) 12 days of

actual credit he was deprived of due to a computational error; (2) 119 days of credit

served on a Mendocino County probation violation because his custody in that case arose

14 We also assumed, arguendo, that the court erred in failing to reopen the defense case to admit exhibit F into evidence.

23

from the same conduct as in this case; (3) 48 days of presentence custody credit based on

the November 3, 2008 Mendocino County abstract of judgment; and (4) day-for-day

presentence work and conduct credits pursuant to section 4019.

A. Background Facts Regarding Credits15

1. The 2005 Mendocino County Case

In November 2005, after pleading no contest in Mendocino County Superior Court

case No. 04-61236 (the Mendocino case) to violating Health and Safety Code section

11366, appellant was placed on three years’ probation.

On February 8, 2006, appellant was found to have violated his probation in the

Mendocino case and probation was ultimately reinstated on the condition that he serve 30

days in jail.

On February 9, 2006, police conducted a probation search of appellant’s

Kelseyville residence; this search forms the basis of the instant case. Thereafter, the

court found appellant violated his probation by possessing the billy club and the

nunchaku. The court reinstated probation and sentenced appellant to 180 days in the

Mendocino County jail with a surrender date of June 16, 2006; appellant completed his

jail sentence on October 13, 2006.16

In April 2008, after appellant again violated probation, probation was permanently

revoked and, on June 2, he was sentenced to two years in state prison. A June 2 abstract

of judgment reflects an award of 228 total days of credit: 183 days of actual local credit

and 45 days of conduct credit pursuant to section 4019.

On November 3, 2008, an amended abstract of judgment was filed that reflects an

award of 276 total days of credit: 184 days of actual local credit and 92 days of conduct

credit pursuant to section 4019.

15 We grant appellant’s April 22, 2010 request that we take judicial notice of the existence of the unpublished appellate opinion in People v. Waters (Dec., 30, 2008, A122097 [nonpub. opn.]) (Waters I). (Evid. Code, §§ 452, 459.)

16 The parties have agreed that we may judicially notice these facts contained in Waters I.

24

2. The 2007 Lake County Case

In 2007, appellant was convicted of misdemeanor food stamp fraud in Lake

County Superior Court case No. 914542. On April 30, 2008, he was placed on three

years’ probation and a 60-day jail term was imposed.

3. Sentencing on the Instant Case

At the July 20, 2009 sentencing hearing, the court granted defense counsel’s

requests to continue the hearing to August 3, and again to August 28.

At the August 28, 2009 hearing, the court and the parties agreed that appellant was

entitled to an additional 39 days of credit for time served. Defense counsel argued that

appellant should also get an additional 60 days of credit because the conduct that gave

rise to the 2005 Mendocino case was the same as the instant case. The court responded

that, as of the date appellant was sentenced to state prison on the Mendocino case, he

became a state prison inmate regardless of whether he was in jail in Mendocino or Lake

County and, at that point, the Department of Corrections and Rehabilitation (CDCR)

would calculate his custody credit. The court stated it could not award appellant local

custody credits for the time he was a CDCR inmate. Defense counsel argued that if the

Mendocino case was designated the subordinate term, the eight-month (one-third the

midterm) sentence on that case would entitle him to credit for time served on that case as

well as on the instant case. The court disagreed, stating that if the Mendocino case was

made the subordinate case, any credit he would be entitled to in that case in excess of

eight months would be lost upon his transfer to Lake County. The court agreed with the

prosecutor’s recommendation to return the matter to the probation department for further

report on the credits issue. It stated that, if appellant was serving a CDCR term, even if

he was in custody in Lake County jail, any credits would go toward his CDCR term. The

court sent the matter back to the probation department for a recalculation of any potential

credits to which appellant was entitled on the instant case.

When the hearing recommenced on October 2, 2009, probation officer Earl

Iddings testified that appellant was not entitled to custody credits for the time spent in

custody on the Mendocino case. The court denied probation and imposed the upper

25

three-year term on count 2 and concurrent terms on counts 3 and 4. It designated the

Mendocino case the subordinate term for which it imposed a consecutive eight-month

term. It awarded appellant 27 days of credit based on 19 days of credit for actual time

served.

Appellant filed his notice of appeal on October 6, 2009.

On February 4, 2010, an amended abstract was filed reflecting the concurrent

three-year sentences imposed on counts 3 and 4.

On April 23, 2010, appellant filed a motion to correct the abstract of judgment

based on evidence that he was paroled from the Mendocino case on February 9, 2009,

prior to sentencing in the instant case, and therefore he should have been sentenced on the

instant case without reference to the Mendocino case.

On May 13, 2010, appellant filed a supplemental motion to correct the abstract of

judgment asserting that the CDCR never received the November 3, 2008 amended

abstract of judgment in the Mendocino case awarding him an additional 48 days of credit

and, therefore, he should have been paroled 48 days earlier than February 9, 2009.

Appellant asserted that therefore the court should award him “an additional 48 days of

actual credit and an additional 48 days pursuant to . . . section 4019 or a release date of

December 24, 2008.”

At the hearing on May 28, 2010, the court acknowledged that at the time appellant

was sentenced he had been paroled on the Mendocino case; therefore he should have

been sentenced solely on the instant case. The court stated that that fact changed the

calculation of appellant’s credits and required resentencing. The court continued the

resentencing hearing to permit appellant to be present.

At the June 25, 2010 resentencing hearing the court ordered another amended

abstract of judgment deleting the Mendocino case and the eight-month sentence imposed

thereon since appellant was on parole in the Mendocino case at the time of sentencing on

the instant case. The court reiterated that in the instant case it was imposing a three-year

term on count 2 and concurrent sentences on counts 3 and 4. The court and counsel

agreed that appellant was entitled to credit from February 9 to October 2, 2009, the date

26

of appellant’s original sentencing. The court refused to award an additional 45 days of

credit17 that defense counsel asserted were based on an earlier amended abstract of

judgment in the Mendocino case. The court agreed with the prosecutor that, if appellant

was already on parole in the Mendocino case at the time he was sentenced in the instant

case, the court had no jurisdiction over the Mendocino case. The court calculated the

time between February 9 and October 2 as 243 days; defense counsel agreed. When the

court then said it would give appellant credit for the 243 days “plus the 19 days originally

given credits,” the prosecutor said, “I think those include those 19 days, Judge.” The

court asked defense counsel if he agreed, and defense counsel answered affirmatively.

The court said, “So a total of 243.” The court then stated, and defense counsel agreed,

that appellant was entitled to 121 days of good time credits and 121 days of work time

credits for a total of 485 days of credit.

On July 1, 2010, appellant filed a motion to correct the abstract of judgment,

alleging that the court’s calculation of 243 actual days of credit was incorrect because it

failed to include one day of “undisputed” credit from February 9, 2006; 18 days of

presentence credit between August 23 and September 9, 2007; and 237 days of credit

between February 9 and October 2, 2009. Thus, he asserted that, based on his use of an

online calculator, he was entitled to 256 days of actual credit. At the July 16, 2010

hearing on the motion, defense counsel asked the court to take judicial notice of the facts

cited in Waters I. The court agreed to mark the Waters I opinion for identification, but

refused to consider the facts stated therein, because it did not have the records of the

proceedings underlying that case. Defense counsel also asked the court to address the

“18 days” of “presentence credits. . . . I guess he was here in Lake County. They were in

the probation report,” and “were just overlooked. Is what we did is we just took the

February 9th to October 2nd days and we overlooked the days before that.” The court

17 As we noted above, appellant’s points and authorities memorandum actually requested an additional 48 days of credit, not 45 days of credit.

27

declined to take any action with regard to credits for the time appellant served on the

Mendocino County case because the appeal of the instant case was pending.

B. Calculation Error

Appellant contends he has a “federal right” to an additional 12 days of credit that

he was deprived of due to a “mathematical error.” He asserts that he received 243 days

of actual credit, but should have received 255 days of credit “based on the 236 days

newly awarded which should have been added to the 19 days in the original abstract filed

October 8, 2009.” He asserts that 255 days is based on 236 actual days he was in custody

between February 9 and October 2, 2009,18 plus the “19 days that were awarded in the

original abstract which were never in dispute.”

The short answer to appellant’s contention is that he has not demonstrated that the

error is merely computational. At the June 25, 2010 hearing, defense counsel asserted

appellant was entitled to 19 days of “originally given credits,” but then agreed that those

19 days were included in the 243 days of actual credit. Then at the July 16 hearing, he

sought 18 days of presentence credits that he claimed “were in the probation report.”

Neither his July 1 motion to correct the abstract of judgment nor his argument at the July

16 hearing, provide specific evidentiary support for his claim for credits. Now, in his

supplemental opening brief, he asserts he is entitled to an additional 12 days of credit

after calculating the amount of time he spent in custody in Lake County between

February 9 and October 2, 2009, plus 19 days of credit “in the original abstract filed

October 8, 2009.” In his reply brief, appellant attempts to provide evidentiary support for

his entitlement to the 19 days of credit, which he asserts was never disputed. However,

he also states, “The only question was whether the 19 days had already been included in

the prosecutor’s (incorrect) calculation. . . . They had not.” The question of whether or

not the 19 days of credit were included in the calculation originally agreed to by defense

counsel is not discernable from the record before us. Consequently, the issue of

18 Appellant mistakenly asserts that the time between February 9 and October 2, 2009 is 236 days; it is 235 days.

28

appellant’s entitlement to 12 additional days of credit is not a mere “mathematical error,”

and we reject his claim of error.

C. Time Served on the Mendocino Case

Appellant contends he is entitled to 119 days of credit for time served on his

Mendocino County probation violation because the custody arose in that case from the

identical conduct which led to his convictions in the instant case. We agree.

Section 2900.5, subdivision (a) provides for an award of credits to a defendant

against his sentence for time spent in presentence custody. (People v. Mendez (2007) 151

Cal.App.4th 861, 864.) However, section 2900.5, subdivision (b) provides that “credit

shall be given only where the custody to be credited is attributable to proceedings related

to the same conduct for which the defendant has been convicted.” Where multiple

proceedings are in play, it is not always a straightforward matter to determine a

defendant’s entitlement to presentence credits under section 2900.5, subdivision (b).

(People v. Bruner (1995) 9 Cal.4th 1178, 1194.) Accordingly, “[W]here a period of

presentence custody stems from multiple, unrelated incidents of misconduct, such

custody may not be credited against a subsequent formal term of incarceration if the

prisoner has not shown that the conduct which underlies the term to be credited was also

a ‘but for’ cause of the earlier restraint.” (Id. at pp. 1193-1194.) “[A]lthough section

2900.5 does not expressly limit credit to situations where the custody is ‘exclusively’

attributable to a charge of which a defendant is later convicted, ‘it is clearly provided that

credit is to be given “only where” custody is related to the “same conduct for which the

defendant has been convicted.” . . . ’ [Citation.]” (In re Marquez (2003) 30 Cal.4th 14,

21.) In a mixed conduct case “ ‘the defendant has the burden . . . to prove entitlement to

presentence custody credits by showing that such custody was “strict[ly] caus[ed]” by the

same conduct for which he is convicted and to be sentenced.’ [Citation.]” (People v.

Purvis (1992) 11 Cal.App.4th 1193, 1196.)

Based on the record before us, appellant was in custody between June 16 and

October 13, 2006, on the probation violation stemming from the same facts as in the

29

instant case. Thus, he is entitled to 119 days of additional presentence credits for that

period.

D. Appellant Failed to Demonstrate His Entitlement to an Additional 48 Days Credit

Next, appellant contends he is entitled to the additional 48 days of presentence

custody credit he was awarded as reflected in the November 3, 2008 amended abstract of

judgment. Appellant argues that although the November 3 amended abstract of judgment

in the Mendocino case was filed awarding him an additional 48 days of credit, there is

nothing in the chronological history to show that the CDCR received that amended

abstract. Thus, he asserts that his February 9, 2009 parole date in the Mendocino case

was improperly calculated based on the June 2, 2008 abstract of judgment, which

awarded him 48 days less credit. He argues he should have been released on parole on

December 24, 2008, and, thus, he was in custody in Lake County solely due to the

charges in the instant case.

To receive the 48 days of credit appellant is claiming, he had the burden to

establish that his actual parole date from prison on the Mendocino case was December

24, 2008, and that his custody thereafter was solely attributable to the instant case. (See

(People v. Purvis, supra, 11 Cal.App.4th at pp. 1197-1198.)

In support of his claim, appellant presented his CDCR prison chronological history

form which shows that as of June 5, 2008, his “EPRD”19 was February 9, 2009.

Appellant argues that the chronological history shows no entries for the amended abstract

of judgment filed on November 3, 2008. He conclusorily asserts that, had the November

3 abstract of judgment been recorded in his CDCR record, his EPRD would necessarily

19 EPRD is an acronym for earliest possible release date, calculated for each inmate by the CDCR. (In re Tate (2006) 135 Cal.App.4th 756, 759.) The maximum release date is first determined by taking the date of sentencing, adding the total prison term, and subtracting any presentence credits awarded. The EPRD is then determined by “subtract[ing] worktime credits the inmate has earned or is expected to earn in his current credit-earning status, add[ing] back any worktime credits that have been denied or lost through disciplinary actions, and subtract[ing] any denied or lost credits that have been restored.” (Ibid.)

30

have been December 24 and he would have been entitled to credit for those 48 days

against his sentence in the instant case.

We reject appellant’s claim because he has failed to establish that his entitlement

to the 48 additional days of credit should have been recorded in his CDCR chronological

history form, and because any such error should have been corrected by the CDCR, rather

than the trial court.

E. Additional Credits Under Section 4019

Effective January 25, 2010, section 4019 (as amended by Stats. 2009, 3d Ex. Sess.

2009-2010, ch. 28, § 50) (hereafter, former section 4019) was amended to increase the

rate at which prisoners earn presentence conduct credits.20 Pursuant to the amendment,

except for crimes not involved here, “a term of four days will be deemed to have been

served for every two days spent in actual custody.” (Former § 4019, subds. (b), (c) &

(f).)

Appellant contends that pursuant to former section 4019, he is entitled to a

recalculation of his presentence work and conduct credits to include day-for-day credits,

if we agree with his claim for additional credits.

As noted by the People, at the May 28 and June 25, 2010 sentencing hearings, the

trial court made it clear that it was applying the new provisions in former section 4019

20 The California Supreme Court has granted review to resolve a split in authority over whether former section 4019 is retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963) [giving retroactive effect to amendments]; accord, People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782); People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354); People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552); People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260); People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808); People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813); contra, People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957); People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724); People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314); People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808).

31

because appellant was being resentenced. In light of our decision that appellant is

entitled to 119 days of additional presentence credits for his time served between June 16

and October 13, 2006, he is entitled to a recalculation of his section 4019 credits.

Appellant asserts that because he has already been released from prison, the

additional credits should be applied to his parole term. We agree. When subdivisions (a)

and (c) of section 2900.5 are read together, days awarded under section 4019 must be

credited to the “term of imprisonment,” which includes both the period of imprisonment

and the parole period. In In re Ballard (1981) 115 Cal.App.3d 647, the petitioner sought

credit against his term of parole for presentence conduct credits earned but not awarded

before his release on parole. The court approved the use of those credits to adjust the

parole term. (Id. at p. 650.) The court stated: “Even if the defendant has already served

some or all of his prison term before the credits have been calculated and applied, a

subsequent determination that those credits equal or exceed the assigned prison term will

operate to release the defendant from any term of parole. [Citation.]” (Id. at p. 649,

fn. *.)

DISPOSITION

The matter is remanded to the trial court with instructions to recalculate

appellant’s presentence conduct credits in a manner consistent with this opinion. The

trial court shall reduce appellant’s parole term by the number of days that his properly

calculated presentence custody and conduct credits exceed the three year eight month

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prison term to which he was sentenced. The trial court is directed to prepare an amended

abstract of judgment in accordance with this disposition and deliver it to the CDCR. In

all other respects, the judgment is affirmed.

SIMONS, J. We concur. JONES, P.J. NEEDHAM, J.