Filed 9/12/16 P. v. Ojeda CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B266149

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA096499)
         v.

GABRIEL ANDREW OJEDA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Jack P.
Hunt, Judge. Affirmed.
         John Doyle, under appointment by the Court of Appeal, for Defendant and
Respondent.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
                                       __________________________
         Gabriel Andrew Ojeda appeals the one-year state prison sentence imposed after he
pleaded no contest to assault by means likely to produce great bodily injury. Ojeda
contends the court erred in failing to give him credit for the time he was in custody while
the case was on remand from a prior appeal. We affirm.
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                             PROCEDURAL BACKGROUND
         After he was convicted of aggravated assault and simple assault in October 2012,
Ojeda moved for a new trial based on juror misconduct. The trial court denied the
motion. We vacated the trial court’s order and remanded the matter for a new trial.
(People v. Ojeda (Sept. 16, 2014, B246956) [nonpub. opn.].) Our remittitur issued on
November 17, 2014.
         After the matter was remanded, Ojeda pleaded no contest to assault by means
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likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). On February 10,
2015 the court sentenced Ojeda to state prison for one year (one-third the middle term) to
run consecutive to a four-year sentence imposed in February 2013 in an unrelated
burglary case (KA095637-02). The court did not award Ojeda presentence custody credit
for the time between the reversal of his conviction by this court and his sentencing after
the no contest plea, explaining, “The defendant is a sentenced prisoner.”
                                        DISCUSSION
         Presentence custody credit is generally authorized by section 2900.5,
subdivision (a), which provides, “In all felony and misdemeanor convictions, either by
plea or by verdict, when the defendant has been in custody, including, but not limited to,
any time spent in a jail . . . , all days of custody of the defendant, including days served as
a condition of probation in compliance with a court order, credited to the period of
confinement pursuant to Section 4019, . . . shall be credited upon his or her term of
imprisonment . . . .” Section 2900.5, subdivision (b), however, limits the circumstances


1        We omit a statement of facts because they are not relevant to Ojeda’s sentencing
claim.
2        Statutory references are to this code.

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in which presentence custody credit may be awarded: “For purposes of this section,
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. Credit shall be
given only once for a single period of custody attributable to multiple offenses for which
a consecutive sentence is imposed.”
       In his opening brief Ojeda argued there was nothing in the record demonstrating
he had waived his right to presentence custody credit. Ojeda, however, was not entitled
to presentence custody credit because he was incarcerated for a separate offense while the
case was on remand. (See In re Rojas (1979) 23 Cal.3d 152, 155-156 [“defendant is not
to be given credit for time spent in custody if during the same period he is already serving
a term of incarceration”]; see also People v. Bruner (1995) 9 Cal.4th 1178, 1180
[section 2900.5 was not intended “to allow credit for a period of presentence restraint
unless the conduct leading to the sentence was the true and only unavoidable basis for
the earlier custody”].)
       Ojeda changed tactics in his reply brief. Acknowledging Rojas governs, Ojeda
argued it was clear in that case the defendant was in custody in connection with one
crime when he stood trial for the subsequent crime (see In re Rojas, supra, 23 Cal.3d at
p. 154), while here there was nothing in the record other than the court’s description of
Ojeda as a “sentenced prisoner” to establish he was still in custody for the burglary
conviction after the instant case was returned to the trial court on remand.
       Even if not forfeited because Ojeda raised it for the first time in his reply brief (see
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408), the argument is
without merit. It is axiomatic that an appealed judgment is presumed correct. “‘All
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown . . . .’” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,
1133; People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) To overcome this
presumption, the appellant must provide an adequate appellate record demonstrating
error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) “[I]f the particular form of

                                              3
record appears to show any need for speculation or inference in determining whether
error occurred, the record is inadequate.” (Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2015) ¶ 4:43, p. 4-11.) If the record is inadequate,
we affirm the appealed judgment. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620,
fn. 1 [burden is appellant’s to provide adequate record on appeal to demonstrate error;
failure to do so “precludes an adequate review and results in affirmance of the trial
court’s determination”].) By failing to identify anything in the record demonstrating he
was not still in custody for his conviction on the burglary charge while the matter was on
remand, Ojeda has not demonstrated error.
                                     DISPOSITION
       The judgment is affirmed.




                                                 PERLUSS, P. J.


       We concur:



              SEGAL, J.



              GARNETT, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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