Filed 8/24/16 P. v. Timmons CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B265441

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. MA065322)
         v.

ROGER M. TIMMONS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Andrew
E. Cooper, Judge. Affirmed as modified.
         Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell, Deputy
Attorney General, for Plaintiff and Respondent.
                                      ____________________________
       Roger Timmons was convicted of two counts of unlawful firearm activity. (Pen.
Code, § 29815, subd. (a).) On appeal, he contends the trial court erred in failing to
identify each element of the offense separately when instructing the jury that it must find
the prosecution proved Timmons committed the offense beyond a reasonable doubt,
which effectively permitted the jury to convict him if it found some but not all of the
elements were proven beyond a reasonable doubt. Timmons also contends he is entitled
to three additional days of custody credit. We conclude he is entitled to the three
additional days of credit, but otherwise affirm.
                                     BACKGROUND
       In 2014, a court ordered Timmons not to own, use, or possess a firearm for 10
years. On May 11, 2014, Mary Delong, who shared a duplex with Timmons, heard two
gunshots outside her bedroom door and then heard a third party tell Timmons to give him
the gun. On November 11, 2014, Delong saw Timmons holding a gun.
       Timmons pleaded not guilty to two counts of unlawful firearm activity and was
tried by a jury. (Pen. Code, § 29815, subd. (a).)1 The court instructed the jury that
Timmons was “charged in counts 1 and 3 with unlawfully possessing a firearm. To prove
that the defendant is guilty of this crime, the People must prove that:
       “1:    The defendant possessed the firearm;
       “2:    The defendant knew that he possessed a firearm; and
       “3:    A court had ordered that the defendant not possess a firearm.”
       The trial court also instructed the jury that a “defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove the defendant


       1
         Penal Code section 29815, entitled “Person with probation condition prohibited
from owning, possessing, controlling, receiving or purchasing firearm,” provides, in
pertinent part, that “[a]ny person who, as an express condition of probation, is prohibited
or restricted from owning, possessing, controlling, receiving, or purchasing a firearm and
who owns, purchases, receives, or has in possession or under custody or control, any
firearm . . . is guilty of a public offense, which shall be punishable by imprisonment in a
county jail not exceeding one year or in the state prison, by a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine.”
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guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt.”2
       The jury found Timmons guilty on both counts, and the trial court sentenced him
to three years eight months in prison and gave him 418 days of presentence custody
credit, calculated as 209 days of actual custody and 209 days of good conduct credit.
Timmons filed a timely notice of appeal.
                                      DISCUSSION
I.     Reasonable doubt instruction
       Timmons contends the trial court erred in failing to identify each element of the
charged offense individually as part of its instruction that the offense must be proven
beyond a reasonable doubt. The argument is without merit.
       “A trial court must instruct the jury on the allocation and weight of the burden of
proof” (People v. Mower (2002) 28 Cal.4th 457, 483), but need not use any particular
form of words when doing so (People v. Aranda (2012) 55 Cal.4th 342, 358). “We
determine whether a jury instruction correctly states the law under the independent or de
novo standard of review. [Citation.] Review of the adequacy of instructions is based on
whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In
determining whether error has been committed in giving or not giving jury instructions,
we must consider the instructions as a whole . . . [and] assume that the jurors are

       2
         The trial court read CALCRIM No. 220 as follows: “The fact that a criminal
charge has been filed against the defendant is not evidence that the charge is true. You
must not be biased against the defendant just because he has been arrested, charged with
a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. Whenever I tell you the People must prove something, I mean they
must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof
that leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt, because everything in life is open to some possible or
imaginary doubt. [¶] In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves the defendant guilty
beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not
guilty.”
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intelligent persons and capable of understanding and correlating all jury instructions
which are given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible,
so as to support the judgment rather than defeat it if they are reasonably susceptible to
such interpretation.’” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
       Here, the trial court’s instruction that “[w]henever . . . the People must prove
something, . . . they must prove it beyond a reasonable doubt,” coupled with the
instruction that the People must prove Timmons knowingly possessed the firearm after
having been ordered by a court not to do so, adequately informed the jury that each
element had to be proven beyond a reasonable doubt. (People v. Ramos, supra, 163
Cal.App.4th at p. 1088.)
       Focusing on the word “something,” Timmons argues the instruction was
misleading because “something” could have referred solely to the crime itself, not any
individual element. We disagree. No reasonable juror would apply a different
evidentiary standard to the offense as a whole than to each element of the offense,
especially where the court instructs that the identical burden exists “whenever” a thing
must be proven. A juror is presumed to attend to a court’s elucidation of the elements of
an offense and to follow the court’s instruction that to prove the offense, the prosecution
must prove each element.
II.    Conduct Credits
       Timmons contends he is entitled to three additional days of conduct custody
credit. The Attorney General concedes the point, and we agree.
       Timmons was arrested on November 17, 2014, and sentenced on June 15, 2015.
Including the day of arrest and the day of sentencing (People v. Smith (1989) 211
Cal.App.3d 523, 526), he was entitled to 211 days of custody credit and 210 days of
conduct credit, for a total of 421 days of credit. The trial court awarded Timmons only
418 days of credit. The abstract of the judgment must be amended accordingly.
                                      DISPOSITION
       The judgment is modified to grant Timmons 421 days of custody credit. In all
other respects the judgment is affirmed. The clerk of the superior court is directed to
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prepare an amended abstract of judgment to reflect the judgment as modified and forward
a copy of it to the Department of Corrections and Rehabilitation.
      NOT TO BE PUBLISHED.




                                                       CHANEY, Acting P. J.


WE CONCUR:




             JOHNSON, J.



             LUI, J.




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