 


Filed 7/29/14 P. v. Gonzalez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                              B249092

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA092996)
         v.

JONATHAN GONZALEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Gary J. Ferrari, Judge. Affirmed as modified.
         Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Kimberley
J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________




 
 


              Defendant and appellant, Jonathan Gonzalez, appeals his conviction for three
counts of assault with a firearm, with prior prison term and prior serious felony
conviction findings (Pen. Code, §§ 245, 667.5, 667, subds. (b)-(i)).1 He was sentenced to
state prison for a term of 70 years to life.
              The judgment is affirmed as modified.
                                                                           BACKGROUND
              Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
              1. Prosecution evidence.
              About 1:35 a.m. on July 12, 2012, Carrie Adams and her boyfriend Charles
Cummings were in their room at the Right Step Motel. They were watching television
when they heard a knock on the door. Cummings remained sitting on the bed while
Adams answered the knock. When she opened the door, defendant Gonzalez was
standing there. Adams asked him, “Who are you looking for?” Gonzalez pulled back
a blanket he was holding to reveal a shotgun. He “cocked”2 the weapon, making a
“clack-clack” sound, and pointed it at Adams’s chest from two or three feet away.
Adams testified she was familiar with guns and recognized it as a shotgun.
              Cummings testified he recognized the sound of Gonzalez’s weapon as the noise
a shotgun makes when “[y]ou’re ejecting it, getting ready to fire.” He looked over and
saw Gonzalez pointing a shotgun at Adams. Cummings said, “What the hell is going
on?”, and Gonzalez responded by walking down the hall. Adams immediately slammed
the door shut. Shortly thereafter, she and Cummings heard screaming coming from down
the hall. Cummings testified he was familiar with shotguns because “I was raised up in
the country and we went hunting with shotguns.”
                                                                                                                                                                                               
                                                                                                                                                                                               
 
1
              All further references are to the Penal Code unless otherwise specified.
2
       Adams demonstrated this, making an arm motion toward her body: “Let the
record reflect she took her right hand with the palm up and moved it back toward her
body.”

                                                                                             2
 
 


       That same night, Christian Jones and his girlfriend Debra Ooten were also in a
room at the Right Step Motel, where they had been living for a month or two. At about
1:40 a.m., they were in bed; Ooten was sleeping and Jones was just falling asleep. Jones
heard an “odd knock” at the bottom of the door; it sounded as if someone had “knocked
on [the door] with an object.” As Jones opened the door, it was “pushed in on [him]”
and he found himself staring at the barrel of a rifle pointed at his face from just a few
inches away. Jones described the rifle, which was partially covered by a blanket, as an
“M-14-type looking rifle.” Gonzalez waved the barrel of the gun in Jones’s face.
Ooten woke up and began screaming, at which point Gonzalez pointed the rifle at her
from about five feet away. Jones and Gonzalez were yelling at each other. Jones
testified he was “[y]elling in fear of my life. And hers.” Somebody came in, grabbed
Gonzalez and escorted him from the room. Before he left, Gonzalez kicked Jones in the
groin. Jones testified he did not know Gonzalez and had never even seen him before.
Ooten testified she had seen Gonzalez around the motel but never talked to him.
       Videotape from the motel’s surveillance cameras showed Gonzalez entering and
later leaving through the front door of the motel. In still photographs, taken from this
videotape, Detective John Hayes testified he could see Gonzalez walk into the motel
while holding what “[a]ppears to be the butt of a shotgun.” Then, as Gonzalez left the
motel, “he takes his right hand and puts it behind his back . . . to keep the weapon out of
view from the cameras.” Hayes also testified a pump shotgun “can . . . be cycled [even]
if there are no bullets in it.”
       When Gonzalez was subsequently arrested, he had neither a gun nor any
ammunition on him. And when police searched his residence, they did not find a gun or
any ammunition. Gonzalez told Hayes: “I have been known to lose my head and do
some crazy things. I get pumped up and lose my mind. I don’t work for nobody.
Nobody can make me do nothing. I don’t even know how I would get a rifle.”




                                              3
 
 


       Angela Marquez testified that when she saw Gonzalez at the Right Step Motel
about 1:30 a.m. on July 12, 2012, he was a little drunk. She saw him arguing loudly with
Jones, but she did not see him with a gun. Marquez had known Gonzalez for 15 years.
She also knew Jones and she testified Gonzalez and Jones were friends. Marquez
identified herself as the person shown in the surveillance videotape escorting Gonzalez
away from the room occupied by Jones and Ooten. Marquez acknowledged she had
suffered prior convictions for petty theft, corporal injury on a spouse or cohabitant, and
taking a vehicle without the owner’s consent.
       2. Defense case.
       Silhouette Flores testified she had been socializing with friends at the Right Step
Motel on July 12, 2012. Hearing an argument, she peeked her head outside the motel
room and saw Gonzalez, whom she identified as “[m]y friend right there.” Flores saw
Gonzalez leaving and she also saw Marquez. Flores testified she did not see Gonzalez
carrying a gun.
       3. Trial proceedings.
       Gonzalez had been charged with four counts of assault with a firearm, one for
each of the four occupants of the two motel rooms. However, at the close of the
prosecution case, the trial court granted Gonzalez’s motion to dismiss the charge
involving Cummings for insufficient evidence. The jury convicted Gonzalez on each of
the three remaining counts.
                                    CONTENTIONS
       1. There was insufficient evidence to sustain Gonzalez’s convictions for assault
with a firearm.
       2. The trial court misinstructed the jury on the elements of assault with a firearm.
       3. The trial court erred by requiring a defense witness to testify while handcuffed.
       4. The trial court miscalculated Gonzalez’s presentence custody credits.




                                             4
 
 


                                       DISCUSSION
       1. Sufficient evidence of assault with a firearm.
       Gonzalez contends there was insufficient evidence to support his conviction for
three counts of assault with a firearm. This claim is meritless.
              a. Legal principles.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect:
Under principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the 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.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
       “ ‘An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence.’ [Citation.] ‘Before the judgment of the
trial court can be set aside for the insufficiency of the evidence, it must clearly appear
that on no hypothesis whatever is there sufficient substantial evidence to support the
verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th

                                               5
 
 


1567, 1573.) As our Supreme Court said in People v. Rodriguez, supra, 20 Cal.4th 1,
while reversing an insufficient evidence finding because the reviewing court had rejected
contrary, but equally logical, inferences the jury might have drawn: “The [Court of
Appeal] majority’s reasoning . . . amounted to nothing more than a different weighing of
the evidence, one the jury might well have considered and rejected. The Attorney
General’s inferences from the evidence were no more inherently speculative than the
majority’s; consequently, the majority erred in substituting its own assessment of the
evidence for that of the jury.” (Id. at p. 12, italics added.)
       Section 240 provides: “An assault is an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” As our Supreme Court
explained long ago: “Holding up a fist in a menacing manner, drawing a sword or
bayonet, presenting a gun at a person who is within its range, have been held to constitute
an assault. So, any other similar act, accompanied by such circumstances as denote an
intention existing at the time, coupled with a present ability of using actual violence
against the person of another, will be considered an assault.” (People v. McMakin (1857)
8 Cal. 547, 548.)
       “[T]he crime of assault has always focused on the nature of the act and not on the
perpetrator’s specific intent. An assault occurs whenever ‘ “[t]he next movement would,
at least to all appearance, complete the battery.” ’ [Citation.] Thus, assault ‘lies on a
definitional . . . continuum of conduct that describes its essential relation to battery:
An assault is an incipient or inchoate battery; a battery is a consummated assault.’
[Citation.] As a result, a specific intent to injure is not an element of assault because the
assaultive act, by its nature, subsumes such an intent.” (People v. Williams (2001)
26 Cal.4th 779, 786.)
       “To point a loaded gun in a threatening manner at another . . . constitutes an
assault, because one who does so has the present ability to inflict a violent injury on the
other and the act by its nature will probably and directly result in such injury.
[Citations.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) In People v. Hartsch
(2010) 49 Cal.4th 472, the victim “testified that on the night in question she heard

                                               6
 
 


something ram the front door of her apartment. When she opened the door, she saw a
truck not far from the door, and a person seated on the passenger side pointing a gun at
her. She slammed the door and called the police.” (Id. at p. 507.) Hartsch concluded
there had been an assault with a deadly weapon: “[D]efendant argues there was no
showing he knew that his actions . . . would probably and directly result in a battery.
However, he concedes that pointing a gun at someone in a menacing manner is sufficient
to establish the requisite mental state. [Citations.]” (Id. at pp. 507-508, italics added.)3
              On the other hand, “[a] long line of California decisions holds that an assault is not
committed by a person’s merely pointing an (unloaded) gun in a threatening manner at
another person. [Citations.]” (People v. Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3.)
“The threat to shoot with an unloaded gun is not an assault, since the defendant lacks the
present ability to commit violent injury.” (People v. Fain (1983) 34 Cal.3d 350, 357,
fn. 6.) However, “[a] defendant’s own words and conduct in the course of an offense
may support a rational fact finder’s determination that he used a loaded weapon.”
(People v. Rodriguez, supra, at p. 13.) “The drawing of a weapon is generally evidence
of an intention to use it. Though the drawing itself is evidence of the intent, yet that
evidence may be rebutted when the act is accompanied with a declaration, or
circumstances, showing no intention to use it. But when the party draws the weapon,
although he does not directly point it at the other, but holds it in such a position as
enables him to use it before the other party could defend himself, at the same time
declaring his determination to use it against the other, the jury are fully warranted in
finding that such was his intention.” (People v. McMakin, supra, 8 Cal. at p. 549.)




                                                                                                                                                                                               
                                                                                                                                                                                               
 
3
       Hartsch was a death penalty case. The question whether there was sufficient
evidence to sustain a prior conviction for assault with a deadly weapon arose during the
penalty phase when the defendant objected to this offense being used as an aggravating
factor under section 190.3.

                                                                                             7
 
 


              2. Discussion.
              Gonzalez claims his aggravated assault convictions must be overturned because
there was no evidence his shotgun was loaded. We disagree.
              Gonzalez argues he did nothing more than stand in front of two motel rooms and
very briefly point his shotgun at the occupants.4 He acknowledges having “racked” or
cocked the gun while pointing it at Adams, but he notes Officer Hayes testified a shotgun
could be racked without being loaded. He asserts: “Without more, this . . . could have
been enough for the jury to find he had assaulted [the victims]. However, the
circumstances indicate that was not his intention. Immediately after cocking the gun, he
said he was in the wrong room and left. . . , so the natural and probable consequences of
his pointing his gun at the victims would not have been to fire on them. Then, when
appellant pointed the gun at the second pair of victims, he had words with the victim who
answered the door, and then left with his friend, [Marquez]. Consequently, when
appellant pointed the gun at these victims, the evidence indicates that once again, the
natural and probable consequences of his actions would not have been to commit a
battery.”5
              But Gonzalez is ignoring the substantial circumstantial evidence showing his gun
was indeed loaded. He pointed it directly at each of the three victims from extremely
close range. He “racked” the gun in the presence of Adams, further indicating he was
prepared to shoot. The mere fact it is possible to rack an unloaded shotgun does not by
itself demonstrate Gonzalez’s gun was unloaded. Contrary to his argument, nobody

                                                                                                                                                                                               
                                                                                                                                                                                               
 
4
        Gonzalez also argues he had no apparent motive for assaulting the victims.
However, “a prosecutor ordinarily need not prove motive as an element of a crime
[citations], [although] the absence of apparent motive may make proof of the essential
elements less persuasive [citation].” (People v. Phillips (1981) 122 Cal.App.3d 69, 84.)
5
       Gonzalez correctly points out there was no evidence in the record suggesting he
intended to use the shotgun as a club for hitting someone, an alternative way of
committing assault with a firearm.

                                                                                             8
 
 


testified Gonzalez said he was in the wrong room.6 As the Attorney General points out,
the fact Gonzalez was in each motel room only briefly before walking away does not help
him: “[I]n advancing this argument, appellant conveniently ignores the circumstances
under which he walked away from the victims. With regard to . . . Adams, he only left
the room after Cummings yelled, ‘What the hell is going on?’ And the brevity of
appellant’s encounter with Jones and Ooten cannot be attributed to appellant, as he did
not voluntarily leave. He was escorted away by friends, and did not leave before kicking
Jones in the groin.”
              During closing argument, the prosecutor told the jury the very fact Gonzalez had
been knocking on motel doors in the middle of the night and pointing his shotgun at the
occupants tended to demonstrate the gun was loaded: “[T]hink about it, he’s coming in at
night, [1:30] in the morning . . . and he walks in, he’s got [the shotgun], he’s hiding it.”
“[C]an be a squirt gun, you know, can be a toy, ‘Just kidding. You’re a knuckle head.
This is fun.’. . . ‘I’m not a bad guy. I don’t carry loaded guns. I’m just cruising around
hoping somebody shoots me.’ [¶] When you have your residence at night entered and
you open the door and you have someone that points a gun right at your chest . . . . I
mean, it’s preposterous to think it’s not loaded.” “[W]hen someone is in their own home,
there is law that you could kill him, you could defend your own home and . . . blow him
away. It’s your home.” The prosecutor was making a good point: unless Gonzalez had a
death wish, it was fair to infer his gun was loaded in light of the danger to Gonzalez
himself inherent in what he was doing.
              We conclude there was sufficient evidence to prove Gonzalez had the present
ability to commit a battery with the shotgun.




                                                                                                                                                                                               
                                                                                                                                                                                               
 
6
       Nor do we think it would make any difference to the outcome had Gonzalez
actually said this.

                                                                                             9
 
 


       2. Trial court did not misinstruct on the elements of assault with a firearm.
       Gonzalez contends he was not properly convicted of assault with a firearm
because the jury was not instructed to find he had the specific intent to assault the
victims. This claim is meritless. As Gonzalez himself acknowledges, our Supreme Court
has held that assault is a general intent crime. “[A]ssault does not require a specific
intent to cause injury or a subjective awareness of the risk that an injury might occur.
Rather, assault only requires an intentional act and actual knowledge of those facts
sufficient to establish that the act by its nature will probably and directly result in the
application of physical force against another.” (People v. Williams, supra, 26 Cal.4th at
p. 790.)
       3. Restraining defense witness did not constitute prejudicial error.
       Gonzalez contends his convictions must be reversed because the trial court
impermissibly required the sole defense witness to appear before the jury in handcuffs.
Although we agree the trial court erred by not explaining why the handcuffs were
necessary, we conclude the error was harmless.
              a. Background.
       Silhouette Flores, the only defense witness, appeared at a pretrial hearing and was
ordered to return to court on March 20, 2013. She did not appear on that date and the
trial court issued a bench warrant. On April 12, 2013, when Flores again failed to appear,
the court issued a $50,000 body attachment. On May 13, 2013, Flores finally appeared in
court after having been arrested on an unrelated charge.
       Defense counsel asked the trial court to exclude “the fact that [Flores], who has
defaulted, decided not to show up at court and is testifying in custody, as more prejudicial
than . . . probative.” The court, apparently responding to the prosecutor’s earlier
argument that evidence of Flores’s failure to appear went to her credibility, denied
defense counsel’s request: “That motion is denied. [¶] She was told any number of
times to come back and she’s delayed the case as well.”




                                              10
 
 


          During defense counsel’s direct-examination of Flores, the following colloquy
occurred:
          “Q. Now, I’m sure the jurors notice that you came here in handcuffs. Yes?
          “A. Yes.
          “Q. Is that because even though the judge ordered you to come back to court, you
didn’t come back to court?
          “A. Yes.
          “Q. Did the judge tell you you were going to be a witness?
          “A. Ah, yes.
          “Q. Why didn’t you come back to court?
          “A. Because I try to mind my own business and I try not to be in anybody’s
business and I just didn’t want to be a witness for anybody, for anything.”
                 b. Legal principles.
          “[A] defendant cannot be subjected to physical restraints of any kind in the
courtroom while in the jury’s presence, unless there is a showing of a manifest need for
such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted.)
“The imposition of physical restraints in the absence of a record showing of violence or a
threat of violence or other nonconforming conduct will be deemed to constitute an abuse
of discretion.” (Id. at p. 291.) “The rules articulated hereinafter are applicable to the
shackling of defendants and defense witnesses, since the considerations supporting use of
physical restraints are similar in each instance. [Citation.] . . . [H]owever, the prejudicial
effect of shackling defense witnesses is less consequential since ‘the shackled witness . . .
[does] not directly affect the presumption of innocence.’ [Citation.]” (Id. at p. 288,
fn. 4.)
                 c. Discussion.
          Gonzalez contends “the trial court in this case gave no justification that could
conceivably be considered valid for requiring Ms. Flores to appear in handcuffs, in full
unfettered view of the jury, without taking any steps to hide them from the jury’s view.


                                                11
 
 


Apparently, its only reason was to embarrass her because she had failed to obey the
court’s orders and was a defaulting witness.”7
              Initially, the Attorney General asserts the trial record does not contain any factual
basis for this claim because “[t]he clerk’s transcript contains no notation that Flores was
handcuffed, and neither the prosecutor nor defense counsel raised the issue of restraints
with the trial court. Admittedly, Flores responded affirmatively when defense counsel
asked whether she thought that the jurors noticed that she ‘came in here in handcuffs.’
But this single, isolated question that improperly asked Flores to speculate based on facts
that were not in evidence, created an ambiguous record rather than one affirmatively
showing error.” We disagree. Defense counsel’s question implicitly asked Flores if she
had come into the courtroom in handcuffs and she answered yes. Moreover, had Flores
not actually been handcuffed we cannot imagine the prosecutor sitting silent while
defense counsel asked Flores about handcuffs.
              The Attorney General also argues Gonzalez has waived this claim by raising it
here for the first time.8 (See People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [“It is settled
that the use of physical restraints in the trial court cannot be challenged for the first time
on appeal. Defendant’s failure to object and make a record below waives the claim
here.”].) Nevertheless, in the interests of judicial economy and to avert potential
ineffective assistance of counsel claims, we will address the merits of this issue.
(See People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)

                                                                                                                                                                                               
                                                                                                                                                                                               
 
7
        Gonzalez also argues the trial court erred by not, sua sponte, instructing the jury
with CALCRIM No. 337 (Witness in Custody or Physically Restrained), which would
have admonished the jury to disregard a witness’s physical restraints. We need not reach
this argument, however, since we conclude the trial court erred by making Flores testify
while wearing handcuffs without any showing of a manifest necessity to do so.
8
       Gonzalez argues defense counsel’s reference to Flores “testifying in custody”
constituted an objection to the handcuffs. However, we are more inclined to read this
phrase as a reference to a witness taking the stand while wearing jail clothing, rather than
a reference to shackling or other physical restraints.

                                                                                            12
 
 


              The Attorney General does not attempt to defend the trial court’s decision to
handcuff Flores, arguing instead that any error was harmless. We agree. As explained by
People v. Ceniceros (1994) 26 Cal.App.4th 266, 280, the proper standard of review is
Watson’s9 “reasonable probability of a more favorable result in the absence of the error”
test: “[I]mproper restraint of a witness does not affect the defendant’s decision to take
the stand, impede his ability to confer with counsel or otherwise significantly affect trial
strategy. For these reasons, we conclude the erroneous shackling of a defense witness
under the circumstances presented here does not result in the deprivation of a specific
federal constitutional right or so impair the trial process that it resulted in a deprivation of
due process. Therefore, the effect of this error must be evaluated under the Watson
standard.” (People v. Ceniceros, supra, at p. 280.)
              Flores testified she heard the screaming coming from Jones and Ooten’s room,
peeked her head into the hallway, and saw Gonzalez not carrying a gun. However, not
only was Flores’s testimony cumulative of Marquez’s testimony on the same point, but
Flores’s credibility was seriously undermined by various factors. She testified she was
on drugs at the time and that she does not have good eyesight:
              “Q. Okay. What did you see [Gonzalez] carrying when you saw him leaving?
              “A. I didn’t see him carrying anything but I can’t see far, I need glasses.”
(Italics added.) Flores acknowledged she had prior convictions for possession of
burglary tools and taking a vehicle without the owner’s consent. Moreover, as Gonzalez
concedes, both Marquez and Flores were friends of his.
              Gonzalez argues that, given the contrast between his situation (charged with
violent crimes yet unshackled) and Flores’s situation (required to wear handcuffs),
“the jury was very likely to infer that Flores presented an immediate and extraordinary
threat to the safety of everyone in the courtroom. The jury would have reasonably
presumed that for some reason she was an incredibly violent and dangerous person. . . .
[and s]ince she was a good friend of appellant’s the jury would have reasonably
                                                                                                                                                                                               
                                                                                                                                                                                               
 
9
              People v. Watson (1956) 46 Cal.2d 818.
                                                                                            13
 
 


presumed that appellant had very violent tendencies as it is unusual for very violent
people to associate with those who do not seek to harm anyone.” But Gonzalez cites no
authority for this dubious sociological observation and we find his argument
unconvincing.
       The evidence Gonzalez was carrying a shotgun was overwhelming. Hence, we
conclude the trial court’s error in requiring Flores to testify while wearing handcuffs
constituted only harmless error.
       4. Gonzalez’s presentence custody credits must be recalculated.
       Gonzalez contends, and the Attorney General agrees, the trial court miscalculated
his presentence custody credits in two different ways. We agree with one of these claims,
but not the other.
       The trial court concluded Gonzalez was subject to the 15 percent presentence
custody credit limitation for violent felonies contained in section 2933.1, subdivision (a).
However, assault with a firearm is not one of the offenses that triggers this limitation.
(See § 667.5, subd. (c).)
       Gonzalez says defense counsel misinformed the trial court he had spent 296 actual
days in custody because the correct number was 297 days. The Attorney General agrees
with this assertion. Gonzalez suggests that, in calculating the time between his arrest on
August 1, 2012, and his sentencing on May 23, 2013, defense counsel must have failed to
count both the day of arrest and the day of sentencing. (See People v. Morgain (2009)
177 Cal.App.4th 454, 469 [“defendant is entitled to credit for the date of his arrest and
the date of sentencing”]; People v. Browning (1991) 233 Cal.App.3d 1410, 1412 [day of
sentencing counted for presentence custody credits even though it was only partial day].)
Our calculation, however, shows defense counsel was right: the amount of time accrued
between those two dates is indeed 296 days.
       Hence, correcting for the 15 percent limitation error, Gonzalez was entitled to a
total of 592 days of presentence custody credit, rather than the 340 days he was awarded.




                                             14
 
 


                                     DISPOSITION
       The judgment is affirmed as modified. Gonzalez is entitled to an additional 252
days of presentence custody credit, for a total of 592 days of presentence custody credit.
The trial court is directed to prepare and forward an amended abstract of judgment to the
Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.


We concur:



              CROSKEY, J.




              ALDRICH, J.




                                            15
 
