Filed 6/24/15 P. v. Nava CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


THE PEOPLE,                                                               2d Crim. No. B255125
                                                                (Super. Ct. Nos. 2013030467, 2011008085,
     Plaintiff and Respondent.                                                 2010006776)
                                                                             (Ventura County)
v.

JOSEPH RODERICK NAVA,

     Defendant and Appellant.



                   This appeal by Joseph Roderick Nava involves three separate cases and the
apportionment of custody time credits among them.
                   In case No. 2010006776 (2010 case), appellant was convicted of sale of a
controlled substance (Health & Saf. Code, § 11379, subd. (a)). He was ordered to serve
240 days in jail and placed on probation for 36 months.
                   In case No. 2011008085 (2011 case), appellant was convicted of
transporting a controlled substance (Health & Saf. Code, § 11379). He admitted to
having suffered a prior conviction (id. at § 11370.2), and to violating probation in the
2010 case. He was placed on probation in both cases.
                   In case No. 2013030467 (current case), appellant was convicted by jury of
possession of methamphetamine (count 1) and possession of heroin (count 2). (Health &
Saf. Code, §§ 11377, subd. (a), 11350, subd. (a).) The trial court also found that he was
in violation of probation in the 2010 and 2011 cases.
                The trial court sentenced appellant to a total term of seven years eight
months, with four years eight months to be served in county jail, and the remaining three
years to be served on mandatory supervision. The sentence was calculated as follows: a
term of one year (365 days) in the 2010 case, a consecutive term of six years in the 2011
case, and a consecutive term of eight months on count 1 in the current case, to be served
concurrently with a term of eight months on count 2. The court awarded appellant 521
days of presentence credit (261 actual; 260 conduct) in the 2010 case, 147 days (99
actual; 48 conduct) in the 2011 case, and 252 days (126 actual; 126 conduct) in the
current case.
                Appellant contends the evidence is insufficient to support his conviction for
possession of methamphetamine and heroin in the current case. He further asserts that
since he was in custody for both the 2010 and 2011 cases when he earned the 521 days of
presentence credit allocated to the 356-day sentence in the 2010 case, the trial court
should have allocated it to the six-year sentence in the 2011 case. By allotting it to the
case with the shorter sentence, the court allowed 156 days of "'dead time,' that is, time
spent in custody for which [appellant] receive[d] no benefit." (In re Marquez (2003) 30
Cal.4th 14, 20 (Marquez).) We conclude this was error and that those days should be
credited against his sentence in the 2011 case. We shall modify the judgment
accordingly and otherwise affirm.1
                                            FACTS
                Around 1:00 a.m. on October 1, 2013, Ventura Police Officers
Miguel Martinez and Cody Uebelhardt were on foot patrol near a motel when they
noticed a taxi driven by Jose Flores with appellant and two women inside. Martinez
recognized appellant, who was on probation, and performed a records check on him.
Uebelhardt also recognized him and said, "Hey, Nava," as the taxi passed by. The

       1 In his opening brief, appellant argued that the trial court's order imposing a
presentence investigation fee must be stricken because the evidence did not support his
ability to pay that fee. In his reply brief, appellant concedes the argument is foreclosed
under People v. Trujillo (2015) 60 Cal.4th 850, 853, because he neither objected to the
fee in the trial court nor asserted an inability to pay it.

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officers got into their patrol cars and conducted a traffic stop. They instructed the
occupants to put up their hands and they all complied. Appellant, however, reached
down under the front passenger seat and put his hand back up only after being repeatedly
ordered to do so. No one else in the cab moved during this time.
              After the officers removed everyone from the vehicle, they found three
baggies on the floor where appellant's feet had been. The baggies contained
methamphetamine and heroin in quantities suitable for consumption. Officer Brian
Hartson, who had arrived to assist, saw appellant kick his foot at something on the floor
just before he was pulled out of the taxi. Martinez noticed that appellant's fly was
unzipped.
              Flores, an unlicensed taxi driver, testified that he had known appellant for
years and had given him rides in the past. He picked up appellant and the two women
and drove them to the motel. Flores did not observe any sexual conduct between
appellant and the women. He booked a room for appellant in his own name to help
appellant avoid the police. After reserving the room, Flores noticed the police officers in
the parking lot. Flores got in the car and went to a gas station to elude them. A few
minutes later, Flores drove back to the motel, but when he saw the officers were still
there, he started to drive away again. When the officers followed and ordered him to
stop, he complied. Flores testified he did not know about the drugs found in his taxi. He
said that other passengers had left behind drugs in the past, but not in such a large
amount.
              Appellant testified on his own behalf. He acknowledged a 2008 conviction
for making threats, 2010 convictions for selling methamphetamine, theft and giving false
information to police, and a 2012 conviction for receiving stolen property. He admitted
using methamphetamine and heroin in the last year. Appellant stated that Flores was
driving him and the two women to the motel so that appellant could have sex with the
women. When Flores exited the motel lot to avoid encountering the police, he did so at
appellant's direction.


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              Appellant testified that the entire time they were in the car, one of the
women was performing oral sex on appellant, who had lowered his shorts. She stopped
periodically to prevent Flores from noticing. When appellant realized Flores was
complying with the police order, he told the woman to stop and pulled his shorts back up.
Appellant raised his hands as directed by the officers, but then dropped his hand to adjust
his fly. He said he slid his foot forward when being removed from the car, but only to
adjust his balance.
              Appellant denied that the drugs were his or that he had noticed them in the
car. As to how he had overlooked the baggies, he explained, "I would never rummage
through someone else's car out of common decency and common respect." He did not
observe the women or Flores reaching into the area where the drugs were found.
                                        DISCUSSION
                                 Sufficiency of the Evidence
              Appellant contends that there was insufficient evidence that he possessed
the drugs found in the taxi. We disagree.
              In reviewing an insufficient evidence claim, we consider the entire record
in the light most favorable to the judgment to determine whether it discloses substantial
evidence such that a reasonable jury could find the defendant guilty beyond a reasonable
doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every
fact supporting the judgment that the jury reasonably could deduce from the evidence,
and a judgment will be reversed only if there is no substantial evidence to support the
verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v.
Quintero (2006) 135 Cal.App.4th 1152, 1162.) On review, we may not substitute our
judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of
witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "Absent exceptions not
pertinent here, 'the testimony of a single witness is sufficient for the proof of any fact.'"
(People v. Avila (2009) 46 Cal.4th 680, 703.)
              "The essential elements of possession of a controlled substance are
'dominion and control of the substance in a quantity usable for consumption or sale, with

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knowledge of its presence and of its restricted dangerous drug character. Each of these
elements may be established circumstantially.'" (People v. Palaschak (1995) 9 Cal.4th
1236, 1242.) Furtive action or other suspicious conduct on the part of the accused may
be sufficient. (People v. Vasquez (1969) 1 Cal.App.3d 769, 777-778.) Exclusive
possession of the area where the contraband was found need not be proved, and
immediate physical possession is not required. (Ibid.)
              In People v. Hutchinson (1969) 71 Cal.2d 342 (Hutchinson), the mother of
the teenage defendant discovered marijuana in a bedroom shared with his three brothers.
(Id. at p. 344.) Two of the brothers were away from home, but the night before the
discovery, some of their friends changed clothes in the room. (Id. at p. 345.) The court
determined that if the evidence had shown only that the marijuana was hidden in the
shared room, a finding of unlawful possession would not be supported. (Id. at pp. 345-
346.) But the fact that the defendant fled when his mother threatened to call the police
was sufficient additional evidence from which "[t]he jury could reasonably infer that his
flight reflected consciousness of guilt and that he therefore knowingly possessed the
marijuana found in the bedroom and closet." (Id. at p. 346.)
              Thus, in Hutchinson, the evidence was sufficient to establish possession
where (1) the contraband was located in a place to which persons in addition to the
defendant had access, and (2) there was conduct by the defendant indicating
consciousness of guilt. (Hutchinson, supra, 71 Cal.2d at pp. 345-346; see People v.
Robbins (1964) 225 Cal.App.2d 177, 184 ["defendant was observed to have repeatedly
bent over in the immediate vicinity where a satchel containing narcotics was found
secreted, thus supporting the inference of his possession of the narcotics"]; People v.
Taylor (1984) 151 Cal.App.3d 432, 436 [attempt to avoid capture indicated possession].)
              Here, appellant asserts that his mere presence in the car was insufficient to
establish his guilt. But appellant was not merely present when the drugs were found. Of
the four occupants, he was the only one to ignore the officers' orders to keep hands up.
He sat close to where the drugs were found and also moved his hand and foot in a manner
indicating an attempt to hide them. His furtive actions, along with his instructions to

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Flores to twice leave the motel to avoid the police, were sufficient to support the
convictions. (See Hutchinson, supra, 71 Cal.2d at pp. 345-346; People v. Taylor, supra,
151 Cal.App.3d at p. 436.)
               Finally, the jury was entitled to reject as implausible appellant's claim that
he was simply trying to fasten his pants after an extended session of oral sex that went
unobserved by the taxi driver. (See People v. Showers (1968) 68 Cal.2d 639, 643 ["False
statements regarding incriminating circumstances constitute evidence which may support
an inference of consciousness of guilt"].) During sentencing, the trial court described
appellant's testimony as unpersuasive, stating: "I didn't believe anything that [he] said
during the trial really, and it's pretty clear that the jury didn't either."
                               Allocation of Presentence Credits
               Appellant does not challenge the calculation of his presentence credits. He
contests the allocation of the credits among the three cases. He asserts the trial court
erred by allotting 521 days of credit to the 365-day sentence in the 2010 case instead of to
the six-year sentence in the 2011 case. The People do not dispute that between 2011 and
2012 appellant was in custody for 521 days in connection with both cases and that
allocation of those days to the 2010 case leaves an excess of 156 days. Appellant claims
he is entitled to credit for that excess in the 2011 case. We agree.
               Penal Code section 2900.52 governs the award of presentence custody
credit. Subdivision (a) of that section provides that "[i]n all felony and misdemeanor
convictions, either by plea or by verdict, when the defendant has been in custody, . . . all
days of custody of the defendant, including days . . . credited to the period of confinement
pursuant to Section 4019, . . . shall be credited upon his or her term of imprisonment . . . .
If the total number of days in custody exceeds the number of days of the term of
imprisonment to be imposed, the entire term of imprisonment shall be deemed to have
been served." (§ 2900.5, subd. (a).) Subdivision (b) states that "credit shall be given
only where the custody to be credited is attributable to proceedings related to the same

       2 All further statutory references are to the Penal Code.


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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." (Id. at subd. (b).) As our high court has noted, "'. . . subdivision
(b), is "difficult to interpret and apply." . . .'" (Marquez, supra, 30 Cal.4th at p. 19.)
              Appellant's claim to the excess presentence credit is based upon Marquez,
People v. Gonzalez (2006) 138 Cal.App.4th 246 (Gonzalez) and People v. Torres (2012)
212 Cal.App.4th 440 (Torres). In Marquez, the defendant, who was out on bail (first
case), was arrested again (second case) and taken into custody in another county. He was
convicted of both crimes and sentenced. The time he spent in jail from his second arrest
until he was sentenced in the second case was credited to the prison term in the second
case. After the conviction in the second case was reversed, the Supreme Court agreed
that his presentence credit should apply to the first case. (Marquez, supra, 30 Cal.4th at
p. 20.) It concluded that the defendant's custody had been attributable to both charges
until the conviction in the second case was reversed. At that point, the custody was
properly characterized as being attributable to the first case. (Ibid.) "To deny [the
defendant] credit for his time spent in custody . . . would render this period 'dead time,'
that is, time spent in custody for which he receives no benefit." (Ibid.)
              In Gonzalez, the defendant pled guilty to domestic violence and was placed
on probation. He reoffended during the probationary period and was charged with auto
theft and gun possession. (Gonzalez, supra, 138 Cal.App.4th at p. 248.) While in
custody, awaiting trial on the auto theft/gun charges, he was charged with assaulting an
inmate. The defendant was convicted of the auto theft/gun charges, pled no contest in the
assault case and admitted the probation violation. (Id. at pp. 249-250.) The trial court
allocated custody credit for the time served between the defendant's arrest in the auto
theft/gun case and the date of the assault solely to the domestic violence case. As a
result, the total presentence credit allocated to that case exceeded the imposed sentence.
(Id. at pp. 250-251, 254.)
              Gonzalez held that the custody credit could be applied to the auto theft/gun
case even though it was not the sole reason for the presentence confinement. (Gonzalez,

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supra, 138 Cal.App.4th at p. 252.) Noting that the custody could be attributed to
"'multiple, unrelated causes,'" the court reasoned that the prohibition in section 2900.5,
subdivision (b) against duplicate credits would not be violated because the defendant did
not seek duplicate credits for the period of confinement. (Ibid.) It explained: "[T]he
choice in this case is not between awarding credit once or awarding it twice. The credits
for the [relevant] period of incarceration were only awarded against a single case, the
domestic violence case. However, once the few days of custody left to complete the
sentence in the domestic violence action were credited to defendant, the remaining
custodial time should have been characterized as solely attributable to the auto theft and
gun case and allocated accordingly. Otherwise the vast majority of the time served
during the [relevant] period of incarceration would become 'dead time' that was not
attributable to any case . . . ." (Id. at p. 254.)
               In Torres, the defendant pled guilty to new charges while he was serving a
two-year sentence in another case. Pursuant to a plea agreement, the sentence in the
earlier case was reduced to eight months, resulting in completion of that sentence well
before the defendant was sentenced in the second case. (Torres, supra, 212 Cal.App.4th
at p. 445.) Citing Gonzalez, the court held that once the modified earlier sentence was
fulfilled, the remaining custodial time awarded toward that sentence should have been
characterized as solely attributable to the second case. (Id. at p. 447.)
               The People concede that "[i]n the proper case, credits may be allotted in
[the] manner" described in Gonzalez and Torres. They argue that because the trial court
stated in its sentencing minute order in the current case that "excess credits are not to be
applied towards [the 2011 or 2010 case]," the court intended to limit allocation of the 521
days of credit to just the 2010 case. The trial court did not address the issue at
sentencing, and it is not clear what the court meant by "excess credits," particularly since
the minute order references only the 252 days of credit awarded in the current case. In
any event, the People cite no authority suggesting the court may allow "dead time"
where, as here, the presentence credit is attributable to both a case in which the sentence
has been exhausted (2010 case) and a case in which time remains to be served (2011

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case). (See Gonzalez, supra, 138 Cal.App.4th at p. 254; Torres, supra, 212 Cal.App.4th
at p. 447.)
              The People contend that even if the trial court did err in allocating the 521
days to the 2010 case, section 1237.1 requires that the matter be addressed first in the trial
court. Section 1237.1 states that "[n]o appeal shall be taken by the defendant from a
judgment of conviction on the ground of an error in the calculation of presentence
custody credits, unless the defendant first presents the claim in the trial court at the time
of sentencing, or if the error is not discovered until after sentencing, the defendant first
makes a motion for correction of the record in the trial court." Appellant concedes that
he did not raise the issue in the trial court; but where, as in this case, there are other
appellate issues to be decided, we may resolve the presentence credit issue in the interest
of judicial economy. (People v. Acosta (1996) 48 Cal.App.4th 411, 427; accord, People
v. Jones (2000) 82 Cal.App.4th 485, 493.) Moreover, "[a] sentence that fails to award
legally mandated custody credit is unauthorized and may be corrected whenever
discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647; see People v. Chilelli
(2014) 225 Cal.App.4th 581, 591.)
              The record reflects that the 521 days of credit awarded to appellant in the
2010 case exceeded the 365-day jail term in that case by 156 days. As in Gonzalez and
Torres, those excess days of credit should have been "characterized as solely attributable
to the [2011] case and allocated accordingly." (Gonzalez, supra, 138 Cal.App.4th at p.
254; Torres, supra, 212 Cal.App.4th at pp. 446-447.) Appellant therefore is entitled to
156 days of credit against his six-year sentence in that case, in addition to the 147 days
already awarded.
                                        DISPOSITION
              The judgment is modified to award appellant 156 days of additional
presentence credit against his sentence in case No. 2011008085. The trial court shall




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amend the abstract of judgment accordingly and transmit a certified copy to the Ventura
County Jail. As modified, the judgment is affirmed.
             NOT TO BE PUBLISHED.




                                         PERREN, J.
We concur:



             GILBERT, P. J.



             YEGAN, J.




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                                David M. Hirsch, Judge

                            Superior Court County of Ventura

                           ______________________________

             William Paul Melcher, under appointment by the Court of Appeal, for
Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney
General, for Respondent.




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