Filed 6/24/13 P. v. Dickerson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,
                                                                                           F063809
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF137473B)
                   v.

TYRELL D. DICKERSON,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto and Kenneth C. Twisselman II, Judges.

         Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       On appeal, defendant Tyrell D. Dickerson asks this court to review the material
disclosed at the in camera hearing following his Pitchess1 motion. Next, defendant
contends the evidence is insufficient to support his conviction for burglary. Additionally,
defendant maintains his due process rights were violated when the trial court instructed
the jury with CALJIC No. 2.15. Lastly, defendant asserts that the October 1, 2011,
amendments to Penal Code2 section 4019 must be applied to his case. We disagree with
defendant and affirm the judgment in its entirety.
                                  PROCEDURAL HISTORY
       By amended information, defendant and his codefendant Jovon Jackson were
charged with burglary (§ 460, subd. (a); count 1) and receiving stolen property (§ 496,
subd. (a); count 2). Each count further alleged defendant had a prior strike conviction
within the meaning of section 667, subdivisions (c) through (j), and he had served a prior
prison term within the meaning of section 667.5. The burglary count also alleged
defendant had suffered a prior serious felony conviction within the meaning of section
667, subdivision (a). Defendant subsequently pled not guilty to all counts and denied all
allegations.
       On August 8, 2011, defendant filed a Pitchess motion. The motion was opposed
by the City of Bakersfield and Officer Peter Beagley. On September 2, 2011, the trial
court heard and granted defendant‘s motion. Following proceedings in camera, it ordered
certain information be disclosed to defense counsel.
       Jury trial commenced September 26, 2011. On September 28, 2011, the jury
found defendant guilty of felony burglary and the court dismissed count 2 on its own
motion as a lesser included offense. That same date, following a court trial, the further
allegations were found true.



       1Pitchess   v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
       2All   further statutory references are to the Penal Code unless otherwise indicated.


                                                 2.
       Thereafter, on October 27, 2011, defendant was sentenced to a total of 13 years in
state prison.
                                          FACTS
       On the evening of July 1, 2011, at about 7:15 p.m., Michael George and his
girlfriend Katy Munoz left their residence to have dinner at a local restaurant. When they
left the home, both the front and the sliding glass doors were locked.
       Shortly after returning home between 9:45 and 10:00 p.m., the couple realized
certain belongings were missing and the home had been ransacked. A Samsung 50‖
plasma television, a PlayStation 3 video game console and various video games, two
laptop computers in accessory bags, a red duffel bag, and Munoz‘s costume jewelry and
jewelry box were missing. Although the front door was locked when they returned home,
the couple noticed the sliding glass door was slightly ajar.
       Police officers responded to the couple‘s report of a break-in. They dusted for
fingerprints and noted pry marks on the front door. Officer Juan Orozco testified that
although the scene was processed for fingerprints, no usable prints were obtained. While
on scene, Orozco was contacted by other officers who indicated the property taken from
the George/Munoz residence may have been recovered.
       At about 9:00 p.m. that same evening, Officer Peter Beagley and his partner
conducted a traffic stop at Madison and Watts Avenues in Bakersfield. This location was
approximately eight to ten miles from the victims‘ residence, or 20 to 25 minutes‘ driving
time. When the officers stopped the vehicle in which defendant was a passenger, several
electronic items and accessories could be seen in the vehicle‘s backseat. None of the
items appeared to be brand new. After a vehicle search, the officers located laptop
computers, a PlayStation 3 video game console, a red duffel bag containing a jewelry
box, and DVD‘s and video games strewn about in the backseat. In the vehicle‘s trunk
was a large Samsung flat-screen television. A second search of the trunk revealed a
screwdriver with a bent tip; it also appeared to contain brown paint residue.



                                             3.
       George and Munoz subsequently identified the items found in that vehicle as the
possessions missing from their home. They also testified they did not know defendant
and that he did not have permission to be in their home. All items were returned that
same evening. The television was heavy; two persons were required to lift it.
       For the defense, criminalist Jeanne Spencer testified she examined the screwdriver
for trace evidence or evidence of a paint transfer to compare to samples provided of the
victims‘ front door. None were found on the screwdriver. On cross-examination, she
testified such a result did not mean the screwdriver could not have been used in the
crime. Rather, it meant only that no trace evidence remained on the screwdriver had it
been used in the crime.
                                      DISCUSSION
I.     Review of Materials Following Pitchess Motion
       Defendant asks this court to review the materials disclosed in camera in response
to his Pitchess motion. Defendant contends the trial court‘s September 2, 2011, order is
ambiguous and that it is not clear the ―court itself made the determination of what was
‗discoverable.‘‖
       We begin with the well-settled standards for disclosure of confidential personnel
records pursuant to Pitchess, which established that ―a criminal defendant could ‗compel
discovery‘ of certain relevant information in the personnel files of police officers by
making ‗general allegations which establish some cause for discovery‘ of that
information and by showing how it would support a defense to the charge against him.‖
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018–1019 (Warrick); see §§ 832.7,
832.8; Evid. Code, §§ 1043–1045.)

               ―… To initiate discovery, the defendant must file a motion supported
       by affidavits showing ‗good cause for the discovery,‘ first by demonstrating
       the materiality of the information to the pending litigation, and second by
       ‗stating upon reasonable belief‘ that the police agency has the records or
       information at issue. [Citation.] This two-part showing of good cause is a
       ‗relatively low threshold for discovery.‘ [Citation.]


                                             4.
                ―If the trial court finds good cause for the discovery, it reviews the
         pertinent documents in chambers and discloses only that information falling
         within the statutorily defined standards of relevance. [Citations.] The trial
         court may not disclose complaints more than five years old, the
         ‗conclusions of any officer‘ who investigates a citizen complaint of police
         misconduct, or facts ‗so remote as to make [their] disclosure of little or no
         practical benefit.‘ [Citations.] Typically, the trial court discloses only the
         names, addresses, and telephone numbers of individuals who have
         witnessed, or have previously filed complaints about, similar misconduct
         by the officer. [Citation.] That practice ‗imposes a further safeguard to
         protect officer privacy where the relevance of the information sought is
         minimal and the officer‘s privacy concerns are substantial.‘ [Citation.]‖
         (Warrick, supra, 35 Cal.4th at p. 1019.)
         ―[T]he standard governing discovery of personnel records is not whether the
information discovered is ultimately admissible at trial. ‗[Evidence Code s]ection 1043
has no such precondition. Quite to the contrary, the Legislature has determined that the
moving party must show only that the personnel records are material to the subject matter
in the pending litigation.‘ [Citation.]‖ (Larry E. v. Superior Court (1987) 194
Cal.App.3d 25, 31–32.) When there is ―discoverable information in the officer‘s file,‖
the defendant should be ―given an opportunity to determine if the information would
have led to any relevant, admissible evidence that he could have presented at trial.
[Citation.]‖ (People v. Hustead (1999) 74 Cal.App.4th 410, 419.)
         When the court finds good cause and conducts an in camera review pursuant to
Pitchess, it must make a record that will permit future appellate review. (People v. Mooc
(2001) 26 Cal.4th 1216, 1229-1230; People v. Guevara (2007) 148 Cal.App.4th 62, 69.)
The court may preserve the record either by copying the documents and placing them in a
confidential file, preparing a sealed list of the documents it reviewed, or ―simply state for
the record what documents it examined‖ and seal that transcript. (Mooc, supra, at p.
1229.)
         The trial court has broad discretion in ruling on both the good cause and disclosure
components of a Pitchess motion. Its ruling will not be disturbed absent an abuse of that
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; People v. Hughes


                                               5.
(2002) 27 Cal.4th 287, 330; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079,
1086.)
         On appeal, we are required to review the ―record of the documents examined by
the trial court‖ and to determine whether the trial court abused its discretion in refusing to
disclose the contents of the officer‘s personnel records pursuant to Pitchess. (People v.
Mooc, supra, 26 Cal.4th at p. 1229; see People v. Hughes, supra, 27 Cal.4th at p. 330.) A
defendant is entitled to ―meaningful appellate review‖ of the confidential files that were
before the superior court when it denied the Pitchess motion for disclosure. (Mooc,
supra, at p. 1228.)
         If the appellate court determines that the superior court abused its discretion by
denying disclosure of confidential records it had reviewed, reversal is not required unless
the error was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818,
836. (See People v. Gaines (2009) 46 Cal.4th 172, 182–183; People v. Samuels (2005)
36 Cal.4th 96, 110.) The determination of whether the court‘s error was prejudicial
―involves an assessment or weighing of the persuasive value of the evidence that was
presented and that which should have been presented. [Citations.]‖ (Gaines, supra, at p.
182.) There must be a reasonable probability of a different outcome if the potential
impeachment evidence had been disclosed. (Ibid.)
         Here, defendant filed his motion on August 8, 2011, seeking personnel records
regarding Bakersfield police officer Peter Beagley. More particularly, defendant sought
reports, complaints or investigation documents pertaining to ―[f]alsifying information‖
and ―[d]ishonesty as [to] the reporting of investigations.‖ The City of Bakersfield and
Officer Beagley opposed the motion. On September 2, 2011, the trial court granted the
motion and proceeded to hold an in camera hearing. The minute order reads, in pertinent
part: ―Cause proceeds with in camera hearing. [¶] The court makes the following
findings and/or orders: [¶] Court orders discoverable items, if any, are to be disclosed and
provided to the defense within ten days. Protective order granted.‖ (Some capitalization
omitted.)

                                               6.
       We have examined Officer Beagley‘s personnel records and all materials provided
during the in camera proceedings. The trial court preserved the record in a sealed
transcript by stating for the record the documents it examined. (People v. Mooc, supra,
26 Cal.4th at p. 1229.) Following its review, the trial court ordered the release of certain
relevant information to defense counsel, subject to a protective order. Otherwise, it
determined that the materials reviewed in camera were not discoverable. Following our
review, we conclude that the trial court did not abuse its discretion.
II.    Sufficiency of the Evidence
       Defendant contends the evidence was insufficient to support his conviction for
burglary. More specifically, he contends there was insufficient evidence he had
conscious possession of the stolen property.
       In assessing a claim of insufficiency of the evidence, the reviewing court‘s task is
to review the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—evidence that is reasonable, credible, and of
solid value upon which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence. It is the jury, not the appellate court, which
must be convinced of a defendant‘s guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact‘s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1,
11; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320; People v. Johnson (1980)
26 Cal.3d 557, 578.)
       In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examine the record as a whole in the light most favorable to the
judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in support of the judgment. (People v. Kraft (2000) 23 Cal.4th
978, 1053, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) If

                                               7.
the verdict is supported by substantial evidence, a reviewing court must accord due
deference to the trier of fact and not substitute its evaluation of a witness‘s credibility for
that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Unless the
testimony of a single witness is physically impossible or inherently improbable, it is
sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149,
1181.)
         An appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the
judgment of the trial court can be set aside for insufficiency of the evidence, ―it must
clearly appear that on no hypothesis whatever is there sufficient substantial evidence to
support the verdict of the jury.‖ (People v. Hicks (1982) 128 Cal.App.3d 423, 429; see
People v. Conners (2008) 168 Cal.App.4th 443, 453.)
         Here, defendant argues the evidence in support of his burglary conviction is
insufficient because the People failed to present any evidence that he possessed the items,
either actually or constructively. We disagree.
         Defendant relies upon People v. Zyduck (1969) 270 Cal.App.2d 334 in support of
his argument. Zyduck was the front seat passenger in a vehicle stopped on a highway in
a logging area. The court held that the mere presence of a stolen chainsaw in the
backseat did not support Zyduck‘s conviction of receiving stolen property. That court
held that ―[d]ominion and control are essentials of possession, and they cannot be
inferred from mere presence or access. Something more must be shown to support
inferring of these elements. Of course, the necessary additional circumstances may, in
some fact contexts, be rather slight. [Citations.]‖ (Id. at p. 336.)
         In this case, unlike People v. Zyduck, defendant was not convicted based upon his
mere presence as a passenger in the vehicle, nor on the basis that Jackson‘s vehicle
contained a heavy object. Rather, there exists other evidence to support the inference of
possession.



                                               8.
       The George/Munoz residence was burgled after 7:15 p.m. on July 1, 2011. Less
than two hours later, and about 25 minutes driving time away, defendant was a passenger
in a vehicle with Jackson, the only other occupant. The vehicle had been stopped by
police and found to contain the victims‘ possessions. One of those possessions—a 50-
inch Samsung plasma television—could not be carried by a single individual. The
evidence adduced at trial revealed that due to the bulk and weight of the television, two
persons were needed to lift and carry it. Here, the fact defendant was in the presence of
recently stolen property shortly after the burglary must have occurred, coupled with the
fact one of the stolen items could not be lifted and carried by a single individual and there
were only two occupants in the vehicle, is the ―something more‖ that supports an
inference of possession. The jury logically inferred that defendant was aware the items in
the backseat and trunk of Jackson‘s car were stolen. It is also logical to infer from that
same evidence that defendant burgled the victims‘ home.
       We disagree with defendant that his case is similar to the facts of People v. Smith
(1954) 128 Cal.App.2d 706. In Smith, more than 24 hours following the burglary of a
jewelry store in Oakland, the defendant and two other men were playing pool at a pool
hall in Merced. One of the other men left briefly and returned with a brown paper bag.
The contents of the bag—watches and rings—were emptied onto a pool table and the
other two men asked patrons whether they were interested in purchasing the items. Smith
was nearby, dancing to music from the juke box. (Id. at p. 707.) After the three men left
the pool hall, they were pulled over by law enforcement. Questioned separately, all three
denied ever having seen the jewelry found in the vehicle. (Id. at pp. 707-708.)
       The appellate court reversed Smith‘s conviction for possession of stolen property,
finding the evidence of possession was sufficient as to the other two men, but insufficient
as to Smith. (People v. Smith, supra, 128 Cal.App.2d at pp. 708-709.) Defendant likens
himself to Smith, indicating that he ―was associating with someone who had possibly just
burgled an apartment,‖ and that while that association ―may be a very suspicious
circumstance,‖ it is not evidence he possessed stolen property. As detailed above

                                             9.
however, unlike Smith, here there is evidence to support the jury‘s finding that defendant
possessed stolen property. Unlike Smith, more than 24 hours and 130 miles had not
passed between the time of the burglary and the time in which Smith was found in the
presence of the stolen property. Rather, here, defendant was found in Jackson‘s vehicle
within two hours of the burglary and only eight to ten miles away from the scene of the
burglary. Additionally, there was evidence that one of the items taken during the
burglary could not be handled by a single individual. These facts distinguish this matter
from Smith.
       Moreover, defendant argues, without any citation to legal authority, that because
CALJIC No. 2.15 ―has a temporal component factored into it by virtue of using the
phrase ‗recently stolen,‘‖ the ―prosecutor cannot use that same circumstantial evidence as
corroborating evidence.‖ We have not identified any authority in support of defendant‘s
assertion. We note, however, that ―‗the attributes of the possession—time, place, and
manner—may furnish the additional quantum of evidence‘‖ needed to establish
possession. (People v. Reyes (1997) 52 Cal.App.4th 975, 985.) Here, the attributes of
possession—time (within two hours of the burglary), place (eight to ten miles from
burgled residence), and manner (item taken could not be carried by single individual)—
provided proper corroboration.
       We conclude this record contains additional facts beyond defendant‘s mere
presence as a passenger in a vehicle. Those additional facts gave rise to a logical
inference that defendant had possession of the stolen property and had committed the
crime of burglary.
III.   CALJIC No. 2.15
       Defendant maintains the trial court erred in instructing the jury with CALJIC
No. 2.153 because, as a matter of law, there was no evidence he possessed stolen

       3The jury was   instructed as follows:
         ―If you find that a defendant was in conscious possession of recently stolen property, the
fact of that possession is not, by itself, sufficient to permit an inference that the defendant is

                                                10.
property. As we have already determined there was sufficient evidence to establish that
defendant had possession of stolen property, we find no error.
       The general rule is that the trial court must instruct on the ―principles of law
relevant to the issues raised by the evidence [citations] and has the correlative duty ‗to
refrain from instructing on principles of law which not only are irrelevant to the issues
raised by the evidence but also have the effect of confusing the jury or relieving it from
making findings on relevant issues.‘ [Citation.]‖ (People v. Saddler (1979) 24 Cal.3d
671, 681.) It is well settled that a jury may infer guilt of a theft-related crime from the
fact a defendant is in possession of recently stolen property, when coupled with slight
corroboration by other inculpatory circumstances that tend to show guilt. (People v.
Barker (2001) 91 Cal.App.4th 1166, 1173.)
       The California Supreme Court has concluded CALJIC No. 2.15 may properly be
given regarding charges of robbery, burglary, and other theft-related offenses in cases in
which there is sufficient evidence to support findings the defendants possessed recently
stolen property. (People v. Prieto (2003) 30 Cal.4th 226, 249 [―[w]e have approved the
use of CALJIC No. 2.15 with respect to theft offenses‖]; People v. Smithey (1999) 20
Cal.4th 936, 976–977; People v. Holt (1997) 15 Cal.4th 619, 677.)
       As previously discussed, although defendant asserts he was merely a passenger in
the vehicle and thus could not be found to have possessed stolen property, we have
determined the evidence logically suggests otherwise.
       In this case, the trial court instructed on a principle of law relevant to an issue
raised—possession of recently stolen goods. Here, over and above defendant‘s proximity
to the victims‘ property at the time of the stop, there was evidence in the form of time,

guilty of the crimes charged in counts 1 and 2. Before guilt may be inferred, there must be
corroborating evidence tending to prove defendant‘s guilt. However, this corroborating evidence
need only be slight and need not, by itself, be sufficient to warrant an inference of guilt.
        ―As corroboration, you may consider the attributes of possession, time, place, and manner
that the defendant had an opportunity to commit the crime charged, the defendant‘s conduct, and
any other evidence which tends to connect the defendant with the crime charged.‖


                                              11.
place, and manner that spoke to defendant‘s opportunity to commit burglary and have
knowing possession of recently stolen goods. The instruction was clearly relevant to the
issues raised at trial. (People v. Saddler, supra, 24 Cal.3d at p. 681.)
       Defendant argues the jury may have been confused by the instructions given by
the trial court but fails to cite to the record to support this possibility. He claims ―the jury
might have assumed that [his] mere presence in the vehicle with the stolen items
constituted possession‖ and that such a misconception was not remedied by the
instructions given. We cannot agree with defendant‘s assertion as it is based on rank
speculation. Defendant points to nothing in the record to support such an assumption.
       In sum, the trial court did not err by instructing the jury in the language of
CALJIC No. 2.15. The instruction explained to the jury that it could not find defendant
guilty of burglary unless it first found that defendant ―was in conscious possession of
recently stolen property‖ and then found additional corroborating evidence to infer guilt.
IV.    Section 4019 Credits
       Finally, defendant contends he should be awarded additional presentence credits
based upon the amendments to section 4019 that became operative on October 1, 2011.
He argues failure to award retroactive credit constitutes a violation of equal protection
principles. He further argues he should receive enhanced credits for the actual time spent
in custody after October 1, 2011, claiming the statutory language is ambiguous. This
court has previously addressed, and rejected, the specific arguments raised by defendant
in our decision in People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis). We reject them
again here. (See also People v. Brown (2012) 54 Cal.4th 314; People v. Kennedy (2012)
209 Cal.App.4th 385.)
       Subdivision (h) of section 4019 specifically states the increased conduct credit
amendment applies prospectively only. In Ellis, we concluded the intent of the
Legislature ―was to have the enhanced rate apply only to those defendants who
committed their crimes on or after October 1, 2011. [Citation.]‖ (Ellis, supra, 207



                                              12.
Cal.App.4th at p. 1553.) It is undisputed that defendant committed his crime prior to
October 1, 2011, or, on July 1, 2011.
       ―The concept of equal protection recognizes that persons who are similarly
situated with respect to a law‘s legitimate purposes must be treated equally. [Citation.]‖
(People v. Brown, supra, 54 Cal.4th at p. 328.) Reviewing courts determine whether
groups are ―similarly situated‖ in the specific context of the law being challenged, not
whether the groups are ―similarly situated‖ in all respects. (Ellis, supra, 207 Cal.App.4th
at p. 1551.)
       In People v. Brown, the California Supreme Court noted that the purpose of
section 4019 is to authorize incentives for good behavior.4 This goal is not served ―‗by
rewarding prisoners who served time before the incentives took effect and thus could not
have modified their behavior in response.…‘‖ (Ellis, supra, 207 Cal.App.4th at p. 1551,
quoting People v. Brown, supra, 54 Cal.4th at pp. 328–329.) Therefore, prisoners who
served time before and after amendments to section 4019 are not ―similarly situated‖ for
equal protection purposes. (Ellis, supra, at p. 1551.) Because defendant fails to show
section 4019 treats ―similarly situated‖ groups unequally, he asserts no cognizable equal
protection claim.
       To the degree defendant argues his right to equal protection was violated by the
denial of conduct credits for the presentence time he served between October 1 and
October 27, 2011, the court in People v. Rajanayagam (2012) 211 Cal.App.4th 42
rejected a similar claim. Although the Rajanayagam court found that defendants who
served time in jail on or after October 1, 2011, regardless of the date they committed their
offenses were indeed similarly situated for purposes of equal protection, it nevertheless
concluded there was no equal protection violation as there was a rational basis for the
legislative classification. (Id. at pp. 53-56.) As the court explained, the legislative

       4Although    People v. Brown dealt with a different amendment to section 4019, we have
applied its reasoning to the October 1, 2011, amendments to section 4019 that are at issue here.
(See Ellis, supra, 207 Cal.App.4th at pp. 1551–1552.)


                                               13.
purpose behind the amendment at issue is ―‗to reduce recidivism and improve public
safety, while at the same time reducing corrections and related criminal justice
spending.‘‖ (Id. at p. 55.) The court concluded ―the classification in question does bear a
rational relationship to cost savings.‖ (Ibid.) Therefore, the defendant‘s equal protection
rights were not violated. (Id. at p. 56.) Even assuming we were to find defendant is
similarly situated with persons who do benefit from the legislation, we agree with the
court in Rajanayagam that there is a rational basis for the classification. No equal
protection violation occurred.
       Likewise, we reject defendant‘s argument that he is entitled to enhanced conduct
credits for the period between October 1, 2011, and the date he was subsequently
sentenced on the ground the wording of the statute is ambiguous. As we explained in
Ellis, the statutory language on this point is not ambiguous. (Ellis, supra, 207
Cal.App.4th at pp. 1552-1553.) Thus, for the reasons stated in Ellis, we reject
defendant‘s claim.
       The trial court properly awarded defendant a total of 58 days of custody credit and
119 days of actual custody credit, for a total of 177 days.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
KANE, Acting P.J.


 ________________________________
FRANSON, J.




                                             14.
