Filed 1/16/15 P. v. Davidson CA3
                                           NOT TO BE PUBLISHED
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)



THE PEOPLE,                                                                                  C074922

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04935)

         v.

CARRINGTON DARNELL DAVIDSON,

                   Defendant and Appellant.




         A jury convicted defendant Carrington Darnell Davidson of the attempted murder
of Shamira Tucker (count 1; Pen. Code, §§ 664, 187, subd. (a)),1 assault with a firearm
on Tucker (count 2; § 245, subd. (a)(2)); first degree burglary of the residence of Darius
Brazell (count 3; § 459); being a felon in possession of a firearm (count 4; § 29800, subd.
(a)(1)); discharging a firearm at an inhabited dwelling house (count 5; § 246); and
discharging a firearm in a grossly negligent manner (count 6; § 246.3).2 As to count 1,


1   Undesignated statutory references are to the Penal Code.
2 Before the case went to the jury, defendant stipulated to the felonies underlying
count 4.

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the jury found the attempted murder was committed willfully, deliberately, and with
premeditation, and defendant personally used a firearm in its commission (§ 12022.53,
subd. (c)). As to count 2, the jury found defendant personally used a firearm (§ 12022.5,
subd. (a)).3
       In a bifurcated proceeding, the trial court found that defendant had a prior strike, a
prior serious felony conviction, and two prior prison terms. (§§ 667, subds. (b)-(i),
1170.12; § 667, subd. (a); § 667.5, subd. (b).) The court denied defendant’s motions for
new trial and to dismiss the strike.
       The trial court sentenced defendant on count 1 to an indeterminate state prison
term of 14 years to life, plus 25 years for the firearm enhancement, all to run consecutive
to the determinate term on the remaining counts. The court imposed an aggregate
determinate term of 27 years 4 months on those counts, consisting of eight years (the
upper term, doubled for the strike) on count 2, plus 10 years for the firearm enhancement;
three years four months (the middle term, doubled) on count 5; five years for the prior
serious felony conviction enhancement; and one year for the prior prison term
enhancement. The court imposed but stayed sentence on counts 3, 4, and 6. (§ 654.)
The court awarded defendant 496 days of presentence custody credit (432 actual days &
64 conduct days).
       Defendant contends the trial court erred prejudicially by excluding Tucker’s prior
felony for purposes of impeachment, and that the court’s ruling violated his federal
constitutional right to confrontation; so far as his trial counsel failed to object effectually,
defendant received ineffective assistance of counsel. We shall reject these contentions.




3  The information also alleged an enhancement for personal use of a firearm as to
count 3. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)(1).) However, that enhancement
did not appear on the verdict form submitted to the jury, and the jury made no finding on
it. The Attorney General’s contrary assertion is mistaken.

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       However, defendant also raises claims of sentencing error which the Attorney
General correctly concedes. In addition, we have found sentencing problems not raised
by the parties.
       We shall remand the matter for resentencing.
                  FACTUAL AND PROCEDURAL BACKGROUND
       The Exclusion of Tucker’s Prior
       The People moved in limine under Evidence Code section 352 to exclude mention
of Tucker’s 2006 juvenile adjudication for assault with a deadly weapon or force likely to
inflict great bodily injury. (§ 245.) Defense counsel sought to use this evidence for
impeachment.
       The trial court ruled as follows:
       “. . . It is true that felony prior convictions that involve moral turpitude can be
relevant and are therefore admissible for impeachment purposes, but in order to finally
find admissibility, the Court must apply the [Evidence Code section] 352 factors. And I
have sort of thought about this over the weekend because I was on the fence about it.
One of the factors I’m to consider with regard to impeachment of felony priors is its
remoteness. And the remoteness, that factor deals with, as the case law says, a pattern of
criminality. What I understand is this is the person’s only criminal history between the
time of the commission of the offense and now.
       “As I said earlier, I think, in one of the other rulings that ten years is about my
usual cutoff, and that is true of adult felony priors. Although I agree this is -- this crime
does involve moral turpitude, it is my feeling that applying [Evidence Code section] 352,
a seven- or eight-year gap between a juvenile prior and a current time frame is a
sufficient time gap in my mind to sort of wash that prior, particularly since the prior was
committed when the person was a juvenile.




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       “I don’t know, did we figure out the age? I guess she was 17 at the time.
[Defense counsel] pointed out she was on the edge as he said. She was 17 at the time.
She has spent the rest of her adult life crime free.
       “So given the nature of that prior, the fact it was committed as a juvenile is not
actually a felony conviction but a sustained petition, applying [Evidence Code section]
352, I’m going to find that the probative value of that prior, which is slight, its
outweighed by the possibility that that impeachment under that circumstance could be
used to inappropriately prejudice that person’s credibility.
       “Doing a crime at age 17 and then staying crime free for seven or eight years after
that, I think the evaluation or the usefulness of that prior to demonstrate credibility is
largely washed away. And therefore under [Evidence Code section] 352, I find there is a
probability that the prior would be used inappropriately. It would be a substantial
possibility for prejudice, and that clearly, in my view, outweighs any probative value that
it would have. So I’m going to exclude the use of that particular prior on that witness for
all those reasons.”
       Trial Evidence
       Prosecution Case
       In July 2012, Tucker and her partner, Monica Carter, lived in an apartment
complex off Mack Road in Sacramento. Tucker’s cousin, Malika, also lived in the
complex, directly above the apartment of Connie Vallejo.4
       Early in July 2012, Tucker and her daughter were at Malika’s apartment for a
birthday party. Tucker’s daughter mistakenly tried to enter Vallejo’s apartment.
Vallejo’s five- or six-year-old granddaughter pushed Tucker’s daughter out. Tucker, who




4 Defendant testified that Vallejo’s daughter, Alisha Hunt, was the mother of defendant’s
children, and that Vallejo had custody of the children.

                                               4
saw the push, told Vallejo’s granddaughter there was no need to do that. Vallejo came to
the door and exchanged words with Tucker.
         Two or three weeks later, Vallejo’s daughter, Alisha Hunt, accused Tucker of
putting her hands on Hunt’s child and challenged Tucker to fight. They fought briefly.
Afterward, Tucker thought the matter was over.
         On July 24, 2012, Tucker, her friend Sparkle Johnson, and others were sitting
outside Johnson’s apartment in the complex. Hunt walked by them and went upstairs.
Five or 10 minutes later, she came back with defendant, who wore a red baseball cap.
         After Hunt said something to defendant, he asked Tucker if she had hit his
daughter. Tucker, who did not know defendant or what he was talking about, said “No.”
They exchanged a few words; then defendant punched her in the face, knocking her into a
wall.5
         Defendant pulled out a gun and started shooting at Tucker. She ran into Johnson’s
apartment, but he followed her there, put his gun hand through the front door, and
continued to shoot as Tucker hid behind a table; Johnson’s boyfriend, her four-year-old
daughter, and another woman were also in the apartment. Hearing gunshots outside,
Tucker realized defendant had left.
         Carter was in the apartment she shared with Tucker when she heard the gunshots.
She headed toward Johnson’s apartment looking for Tucker. A Black man wearing a
white T-shirt and a red cap moved quickly past her. He jumped into a car driven by
Connie Vallejo, which sped away.
         Police came to the complex and interviewed Tucker and Johnson. Based on what
they were told, they then went to Vallejo’s apartment, looking for her or Hunt. Vallejo
was not home. The police found Hunt trying to jump over the back fence.



5 Tucker believed defendant thought she was a boy because of how she was dressed.
She and others there told him she was female.

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       The police found a shell casing inside the front door of Johnson’s apartment and
three others on the walkway leading to it. They also found a bullet hole inside the
apartment.
       Calls made from defendant’s cell phone shortly after the incident showed that the
phone traveled from the Mack Road area toward downtown Sacramento. At 6:06 p.m., a
call was made using a cell tower on J Street.
       An Amtrak surveillance video showed defendant at the downtown train station at
6:11 p.m. A ticket for a 6:15 p.m. train to Richmond was purchased in his name.
       Tucker and Johnson identified defendant in a photo lineup as the shooter.
       Defense Case
       Defendant, the only defense witness, testified that he came from his home in
Oakland to Sacramento by train on July 24, 2012, to visit his daughters and take them to
the state fair. Vallejo’s niece drove them all there. Vallejo picked them up at the fair
between 4:00 and 5:00 p.m. and took them back to her apartment, then drove defendant to
the train station.
       Defendant claimed he did not know Tucker, although he had seen her at the
apartment complex on prior visits. He had never heard that she hit his daughter. He had
heard from Vallejo that Tucker and Hunt had had a fight, but did not learn what it was
about and thought it was settled. He did not see Hunt at any time in 2012; they were not
on speaking terms. No one asked him to come to the complex and resolve anything. He
did not speak to Tucker on July 24, 2012. He did not have a gun. He did not hit or shoot
anyone.
       Defendant initially told the detective who interviewed him that he did not come to
Sacramento in July 2012 because he thought the detective was questioning him about
Vallejo or Hunt getting hurt in a shooting and he feared he might be blamed for it.
Eventually, the detective told defendant that he could be placed in Sacramento on the
date of the crime by evidence from cell towers, GPS, cameras in the apartment complex

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and the Amtrak station, and eyewitnesses; the detective also showed him the photo lineup
and said someone had circled his picture. However, defendant never told the detective
that he committed any crime.
        Defendant admitted two prior convictions for crimes involving moral turpitude.
                                       DISCUSSION
                                              I
        Defendant contends the trial court erred prejudicially and violated his federal
constitutional right to confrontation by preventing him from impeaching Tucker with her
juvenile adjudication for felony assault. He also contends that so far as trial counsel
failed to object to the court’s ruling, counsel rendered ineffective assistance. We
disagree.
        A felony juvenile adjudication is not a conviction within the meaning of Evidence
Code section 788, but the underlying conduct may be used for impeachment if the
offense was a crime of moral turpitude, subject to the constraints of Evidence Code
section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 295; People v. Lee (1994)
28 Cal.App.4th 1724, 1740.)
        We review the trial court’s rulings under Evidence Code section 352 for abuse of
discretion. (People v. Lightsey (2012) 54 Cal.4th 668, 714 (Lightsey).) We see none
here.
        As the trial court found, Tucker’s juvenile adjudication was not recent and was not
followed by any adult offense; thus it had little probative value as to her credibility. (See
Lightsey, supra, 54 Cal.4th at p. 714; People v. Feaster (2002) 102 Cal.App.4th 1084,
1094.) The court could reasonably determine that the small probative value of this
evidence was outweighed by its potential to waste time, create confusion, and prejudice
the jury unfairly against Tucker. This finding was well within the court’s discretion.
        But even if the evidence should have been admitted, its exclusion was harmless.
Tucker’s story was corroborated by other evidence, including Johnson’s eyewitness

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identification of defendant. But the parts of defendant’s story that pointed to his
innocence were uncorroborated. He admitted two convictions for crimes involving moral
turpitude. He also admitted lying to the police about not going to Sacramento in July
2012 until confronted with proof that he had done so. In light of that evidence,
impeachment of Tucker for an eight-year-old juvenile assault would have had no
reasonable likelihood of producing a more favorable outcome for defendant.
       Defendant’s assertion that the trial court’s ruling violated his federal constitutional
right to confrontation is baseless. Application of the ordinary rules of evidence does not
generally infringe impermissibly on a defendant’s constitutional rights. (People v. Cudjo
(1993) 6 Cal.4th 585, 610-611.) In any event, defense counsel’s comprehensive cross-
examination of Tucker on every aspect of the case consumes over 60 pages of reporter’s
transcript. (RT 139-200) Defendant was not deprived of the right to confront Tucker.
Therefore, regarding defendant’s claim of ineffective assistance of counsel, the claim
lacks merit because defendant has not shown that his counsel was deficient.
       Davis v. Alaska (1974) 415 U.S. 308 [39 L.Ed.2d 347], which defendant
improperly cites only in his reply brief, is inapposite. The Supreme Court held there that
the defendant’s right to confrontation was impaired because he was not allowed to show
that a witness’s present vulnerable status as a juvenile probationer might cause bias and
motivate him to identify the defendant falsely. (Id. at pp. 315-320.) Tucker’s long-past
juvenile adjudication did not put her in a vulnerable position or create any grounds for
bias against defendant.
                                              II
       Defendant contends his conviction for negligently discharging a firearm (count 6)
must be reversed because that offense is necessarily included within the offense of
discharging a firearm at an inhabited dwelling (count 5), of which he was also convicted.
(People v. Ramirez (2009) 45 Cal.4th 980, 990.) The Attorney General agrees, as do we.
We reverse defendant’s conviction on count 6.

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                                             III
         Defendant contends his conviction for assault with a firearm (count 2) must be
stayed under section 654 because it was part of an indivisible course of conduct with his
crime of attempted murder (count 1) and had the same intent and objective.
Alternatively, he contends that the sentences on those counts should run concurrent.6
The Attorney General correctly concedes that defendant’s conviction on count 2 must be
stayed under section 654.
         “Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal v. State of
California (1960) 55 Cal.2d 11, 19, disapproved on another point in People v. Correa
(2012) 54 Cal.4d 331, 334.) The trial court’s determination as to whether the defendant
had more than one intent and objective is a question of fact, and we review the court’s
ruling for substantial evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252-
1253.)
         The trial court made no express factual finding to explain why it thought section
654 did not apply to count 2. (Possibly the court omitted such a finding because it
imposed an indeterminate sentence on count 1 and then made count 2 the principal
determinate term.)7 But, assuming the court impliedly found that counts 1 and 2 involved



6  Where section 654 applies to one of two counts, the trial court may not sentence
concurrently on those counts. Imposing sentence on both counts, even if run concurrent,
is an implied finding of multiple intents or objectives. (People v. Alford (2010)
180 Cal.App.4th 1463, 1468; see In re Wright (1967) 65 Cal.2d 650, 654-655.)
7 The trial court found count 2 was properly run consecutive to count 1 because the
crimes were committed at different places and times: “[T]he victim did run from the
scene in an attempt to escape and sought refuge in her [sic; Johnson’s] apartment where

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separate intents and objectives, that finding is not supportable. Assaulting Tucker with a
firearm was the means by which defendant attempted to carry out his intent to murder
her. Therefore, section 654 requires the stay of sentence on count 2.
        This conclusion entails further consequences not mentioned by the parties.
Because sentence on count 2 must be stayed under section 654, the firearm use
enhancement on that count (§ 12022.5, subd. (a)) must also be stayed. (People v.
Bracamonte (2003) 106 Cal.App.4th 704, 710-713, disapproved on another point in
People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.) And because a term which is stayed
under section 654 cannot be the principal determinate term, the trial court will have to
designate count 5, the only remaining unstayed determinate count, as the principal term
and recalculate the determinate sentence accordingly. (See People v. Miller (2006)
145 Cal.App.4th 206, 215-216 [under § 1170.1, subd. (a), principal term must be longest
term actually imposed, not longest term potentially available under applicable sentencing
triads].)
                                             IV
        Defendant contends the sentence for the firearm use enhancement on count 1
(§ 12022.53, subd. (c)) should be 20 years, not 25 years as the trial court imposed. The
Attorney General agrees. So do we.
        Section 12022.53, subdivision (c), provides: “Notwithstanding any other
provision of law, any person who, in the commission of a felony specified in
subdivision (a)[8], . . . shall be punished by an additional and consecutive term of
imprisonment in the state prison for 20 years.”



the defendant followed and continued to shoot at her.” Since we are directing sentence
on count 2 to be stayed under section 654, we need not decide whether the court was
correct on this point.
8   Attempted murder is specified in section 12022.53 subdivision (a)(1) and (a)(18).

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       Because the trial court’s oral sentencing and the abstract of judgment show the
term for this enhancement as 25 years, the judgment must be modified on resentencing to
reduce the term to 20 years.
                                            V
       Lastly, defendant contends he is entitled to three additional days of presentence
custody credit. The Attorney General calculates that defendant is actually entitled to one
additional day. In his reply brief, defendant concedes that the Attorney General is correct
(though, oddly, he repeats his original claim in his argument heading). We agree with the
Attorney General.
       The trial court awarded defendant 496 days of presentence custody credit (432
actual days & 64 conduct days), based on the calculation that the period of time from the
date of defendant’s arrest through the date of sentencing equaled 432 days. However, the
date of his arrest was July 26, 2012, and the date of his sentence was October 1, 2013, a
period of 433 days.
       Because defendant’s presentence conduct credits are calculated under section
2933.1, he is entitled to 15 percent conduct credit, which when multiplied by 433
produces a fractional sum (433 multiplied by 0.15 equals 64.95). Fractions of days are
not recognized in calculating credits. (People v. Ramos (1996) 50 Cal.App.4th 810, 816.)
Thus, the recalculation of defendant’s actual days of presentence custody does not
increase the number of days of conduct credit he is entitled to. Therefore, defendant
should be awarded one additional day of presentence custody credit, or 497 days.
(§§ 2900.1, 2900.5, subds. (a), (d); People v. Buckhalter (2001) 26 Cal.4th 20, 23, 30-
31.)




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                                      DISPOSITION
       Defendant’s convictions are affirmed, except his conviction on count 6, which is
reversed. The matter is remanded to the trial court for resentencing pursuant to parts II
through V of the Discussion.



                                             BLEASE                   , Acting P. J.


We concur:


         BUTZ                      , J.


         MAURO                     , J.




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