Filed 3/14/16 P. v. Rivada CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C079331

                   Plaintiff and Respondent,                                      (Super. Ct. No. 1400421)

         v.

DANIEL WILLIAM RIVADA, JR.,

                   Defendant and Appellant.




         A jury found defendant Daniel William Rivada guilty of two counts of committing
a lewd act upon a child. On appeal, defendant contends the trial court abused its
discretion under Evidence Code section 352 by admitting evidence of defendant’s prior
incarceration for burglary. Defendant also argues that he should have been awarded an
additional day of presentence conduct credit. We disagree on both points and affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         The victim lived with her cousin Felicia R. from the time the victim was 13 until
she was 18. Defendant, Felicia R.’s boyfriend at the time, also lived in the house. The

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victim testified that she initially had a parent-daughter relationship with defendant, but
when the victim was 15 years old, defendant began to molest her. The molestation
escalated in frequency and severity until the victim was nearly 17 years old. The victim
did not tell her cousin Felicia R. about defendant’s conduct because she was afraid of
what defendant might do and she did not want to cause problems in the relationship
between Felicia R. and defendant.
       When the victim was 16, she was relieved to find out that defendant was going to
jail and would no longer be living in the house with her. At that point, the victim figured
she would never tell Felicia R. about the assaults but would mentally bury them and take
them to her grave. Defendant was indeed incarcerated from July 2006 to October 2010
for burglary. After defendant’s release, the victim was shocked to see defendant at a
family gathering. With defendant no longer in jail, the victim became concerned for her
family, especially the children in her family. Shortly thereafter, the victim reported the
assaults. The victim had a hard time remembering the precise dates of all the assaults,
but she did state the assaults eventually stopped just prior to defendant’s incarceration.
       Defendant was charged with two counts of committing a lewd act upon a child.
The prosecution moved in limine to present evidence of defendant’s incarceration,
arguing that it was relevant to the timeline of events and to the victim’s delay in reporting
the crimes. Defense counsel objected, but the trial court overruled the objection. The
court determined the jury was entitled to hear about the incarceration because the
information was relevant and probative in particular regarding the victim’s delay in
reporting the assaults. Further, the court found the probative value of the incarceration
was not substantially outweighed by the danger of undue prejudice under Evidence Code
section 352. During the hearing on the motion, the court worked with defense counsel
and the prosecution on the best way to convey the information to the jury while
mitigating any potential prejudicial effect. The parties entered a stipulation that
defendant was incarcerated from July 2006 to October 2010 for a commercial burglary,

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which the court read to the jury during the trial. The court did not disclose any details of
the burglary.
       The jury found defendant guilty of both counts of committing a lewd act upon a
child and the trial court sentenced him to seven years and four months in prison. The
court awarded defendant 410 days of presentence custody credits, 274 for actual days in
custody, and 136 days for custody conduct credit. Defendant timely appealed.
                                       DISCUSSION
                                              I
                                Evidence Of Incarceration
       Defendant contends the trial court abused its discretion by allowing the evidence
of his incarceration for burglary. Specifically, defendant argues that the evidence of
incarceration had very little probative value regarding when the molestations occurred,
when they stopped, and why the victim delayed in reporting them and that the probative
value was substantially outweighed by the danger of undue prejudice under Evidence
Code section 352. We disagree.
       Evidence Code section 352 provides that “[t]he court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create a substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” Unduly
prejudicial evidence under Evidence Code section 352 is “evidence that uniquely causes
the jury to form an emotion-based bias against a party and that has little bearing on the
issues of the case.” (People v. Thornton (2007) 41 Cal.4th 391, 427.) “ ‘ “In applying
section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citation.] ‘[T]he trial
court enjoys broad discretion in assessing whether the probative value of particular
evidence is outweighed by concerns of undue prejudice, confusion, or consumption of
time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion “must not be disturbed on appeal except on a showing

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that the court exercised its discretion in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Williams (2013) 58
Cal.4th 197, 270-271.)
       Here, the trial court did not exercise its discretion in an arbitrary, capricious, or
patently absurd manner when it determined that the probative value of defendant’s
incarceration was not substantially outweighed by the danger of undue prejudice. First,
the incarceration was relevant to explain when and why the molestations stopped. The
victim had a hard time remembering the precise dates of the numerous assaults but did
remember that the last incident was just prior to defendant’s incarceration. The
incarceration was also relevant to explain why the victim did not report the crimes
sooner. She felt safe while defendant was in prison and upon learning of his release, she
felt obligated to report the crimes because she was concerned for her family.
       Moreover, the trial court could reasonably conclude that the evidence of
defendant’s incarceration was not unduly prejudicial, such that it should have been
excluded. Evidence of a prior incarceration may be damaging to a defendant, but for
purposes of Evidence Code section 352, “ ‘ “ ‘prejudicial’ is not synonymous with
‘damaging.’ ” ’ ” (People v. Williams, supra, 58 Cal.4th at pp. 270-271.) Here, the court,
mindful of Evidence Code section 352, worked with the parties on the stipulation in order
to convey the relevant information to the jury in the least prejudicial way. No details
were given regarding the crime, merely the time frame of defendant’s incarceration.
Further, the prior crime was relatively mild compared to the charged offenses in this case.
All of these factors, taken together with the probative value of the information, could lead
the trial court to reasonably conclude that the evidence would not, as defendant contends,
“inflame the jury’s passions against him.” We conclude that the trial court did not abuse
its discretion in allowing evidence of defendant’s prior incarceration.




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                                            II
                                     Conduct Credits
       Defendant argues that the trial court miscalculated his conduct credits. Defendant
contends he should have received 137 days of credit, not 136. We disagree.
       Penal Code section 4019 allows defendants to earn presentence credits while in
custody, provided certain conditions are met. (See Pen. Code, § 4019, subds. (b) & (c).)
At the time defendant committed the crimes in this case, between 2003 and 2005, Penal
Code section 4019 provided “if all days are earned under this section, a term of six days
will be deemed to have been served for every four days spent in actual custody.”
(Former Pen. Code, § 4019, subd. (f), as amended by Stats 1982, ch. 1234, § 7.) Conduct
credits are calculated by dividing the number of days spent in actual custody by four and
rounding down to the nearest whole number, then multiplying that number by two.
(People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Here, 274 days in custody divided
by 4 is 68.5, which is rounded down to 68 and multiplied by 2, which results in a total of
136. Thus, the trial court correctly awarded defendant 136 days of conduct credit.
                                     DISPOSITION
       The judgment is affirmed.

                                                 /s/
                                                 Robie, J.
We concur:


/s/
Nicholson, Acting P. J.


/s/
Mauro, J.




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