Filed 10/16/13 P. v. Morales CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B243223

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA072151)
         v.

ALFONSO MORALES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lesley C. Green, Judge. Affirmed with directions.
         Christine Dubois, 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, Susan Sullivan Pithey, Mary
Sanchez and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
                                                  ______________
       Alfonso Morales was convicted by a jury of possession of methamphetamine, a
controlled substance. On appeal Morales challenges various aspects of the court’s jury
instructions, including the court’s refusal to give an adverse-inference instruction
concerning law enforcement’s destruction of evidence. He also contends his conviction
is not supported by substantial evidence and remand for recalculation of presentence
credits is necessary to clarify an inconsistency between the court’s oral pronouncements
and its minute order. We remand for the limited purpose of recalculating Morales’s
presentence credits and otherwise affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Information
       In an information filed January 19, 2012 Morales was charged with one count of
possession of a controlled substance, methamphetamine, while incarcerated in the Los
                                            1
Angeles County jail (Pen. Code, § 4573.6). It was specially alleged Morales had served
                                                                     2
a prior prison term for a 2011 felony conviction (§ 667.5, subd. (b)) and suffered a prior
serious or violent felony conviction within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)). Morales pleaded not guilty and denied the special
allegations.
       2. The Trial
       On November 11, 2011 Morales was an inmate at the North County Correctional
Facility, a Los Angeles County detention center in Castaic. While conducting a body
cavity search, Los Angeles County Sheriff’s Deputy Gabriel Moran noticed the tip of a
white latex glove protruding from Morales’s anus. Deputy Moran escorted Morales to
another room of the jail where he asked Morales what the latex packet (referred to as a
“bindle”) contained. Morales told him it contained tobacco for himself and “his homies.”


1      Statutory references are to the Penal Code unless otherwise indicated.
2       The information initially alleged Morales had served two prior prison sentences
for felonies within the meaning of section 667.5, subdivision (b). The information was
later amended to allege only one such prior sentence.

                                                2
At Moran’s request, Morales removed the two-and-one-half inch latex packet from his
anus and gave it to Moran. Moran confiscated the item and threw away the outer latex
wrapping, which was covered in feces. Inside, wrapped in clear cellophane, was a
substance that resembled methamphetamine. Several scientific tests confirmed the
                                   3
substance was methamphetamine.
       Morales did not testify at trial. His defense theory was the evidence had been
manufactured by Deputy Moran; he did not hide any bindle, much less one containing
methamphetamine, in his body. Morales’s counsel emphasized the failure of the Los
Angeles County Sheriff’s Department (LASD) to retain the outer latex wrapping and
argued, had the wrapping been preserved and tested for DNA, it would have shown it did
not belong to Morales.
       3. The Verdict and Sentence
       The jury convicted Morales of possession of a controlled substance. Morales
waived his right to a jury trial on the special allegations and, in a bifurcated proceeding,
admitted the truth of both the prior serious felony conviction and service of a prior prison
term for a felony. The court granted Morales’s motion to dismiss the prior qualifying
strike conviction under section 1385 in furtherance of justice and sentenced Morales to an
aggregate state prison term of five years, the upper term of four years for the possession
offense plus one year for the prior prison term enhancement.
                                       DISCUSSION
       1. The Trial Court Did Not Err in Failing To Give Morales’s Proffered
          Adverse-inference Instruction Based on LASD’s Destruction of Evidence
              a. Relevant proceedings
       Prior to trial Morales moved to dismiss the case against him pursuant to California
v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] (Trombetta) based


3      Deputy Moran testified at trial it had been standard practice to discard for health
reasons the outer wrapping of a bindle when it had fecal matter, but acknowledged the
practice had not been articulated in any policy handbook and had recently been changed
to require preservation of such evidence.

                                              3
on LASD’s failure to preserve the latex wrapping. Following an evidentiary hearing, the
court denied the motion, finding no due process violation because the wrapping, which
had not been tested for DNA, was only potentially exculpatory and had not been
discarded in bad faith.
       At trial Morales highlighted LASD’s failure to preserve the outer wrapping and
argued to the jury, had it been tested, it would have proved the bindle, to the extent one
existed at all, did not belong to Morales. At the close of evidence, Morales proposed the
following jury instruction concerning LASD’s failure to preserve evidence: “While in
the custody of the investigative agency the following item was destroyed: latex outer
wrapping. [¶] You must take the failure to preserve this evidence as indicating that
among the inferences which may reasonably have been drawn from this evidence, those
inferences most favorable to the defendant are the most probable.” The court refused to
give the instruction, explaining its pretrial ruling concerning Deputy Moran’s lack of bad
faith in throwing away the evidence was dispositive and Morales had no right to an
instruction that would mislead the jury into thinking there were inferences “favorable to
the defendant which [it would be] bound to apply in this case.”
              b. Governing law
       Law enforcement agencies have a duty under the due process clause of the
Fourteenth Amendment to preserve evidence “that might be expected to play a significant
role in the suspect’s defense.” (Trombetta, supra, 467, U.S. at p. 488; People v. Catlin
(2001) 26 Cal.4th 81, 159-160.) “‘To fall within the scope of this duty, the evidence
“must both possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.”’” (Catlin, at pp. 159-160.)
When the evidence is only potentially exculpatory, that is, of the type of which “no more
can be said than that it could have been subjected to tests, the results of which might have
exonerated the defendant” (Arizona v. Youngblood (1988) 488 U.S. 51, 57 [109 S.Ct.
333, 102 L.Ed.2d 281]), the destruction or spoliation of such evidence will amount to a
due process violation if the defendant can show bad faith on the part of law enforcement.

                                             4
(Ibid.; Catlin, at p. 160.) The presence or absence of bad faith necessarily turns on law
enforcement’s knowledge of the potentially exculpatory value of the evidence at the time
it was lost or destroyed. (Youngblood, at p. 57; People v. DePriest (2007) 42 Cal.4th 1,
42.)
       Morales does not challenge the trial court’s pretrial ruling that no due process
violation occurred. He also acknowledges the trial court had no sua sponte duty to give
an adverse-inference instruction absent a finding of bad faith destruction of evidence.
(See People v. Medina (1990) 51 Cal.3d 870, 894 [absent a finding of bad faith
destruction of evidence, “the trial court did not err in failing to instruct sua sponte that
any conflicting inferences should be drawn in defendant’s favor, or that the People’s
evidence should be viewed with distrust”]; see also ibid. [“neither Trombetta nor
Youngblood held that instructions such as those proposed by defendant are required sua
sponte, and we are reluctant to impose such an instructional sanction for mere negligence
in failing to preserve evidence whose exculpatory value was unapparent to the officers
when their omission occurred”].) Rather, he contends the absence of a due process
violation is not dispositive on the question whether he was entitled to an adverse-
inference instruction and insists such an instruction is required if specifically requested.
       An adverse-inference instruction may be an appropriate response to a due process
violation based on the bad-faith destruction of potentially exculpatory evidence. (See
People v. Cooper (1991) 53 Cal.3d 771, 811; People v. Zamora (1980) 28 Cal.3d 88, 96.)
However, absent bad faith, a defendant is not entitled to any sanction, including an
adverse-inference jury instruction, even when such an instruction is specifically
requested: “Although an adverse instruction may be a proper response to a due process
violation [citation], there was no such violation in this case. The trial court was not
required to impose any sanction, including jury instructions.” (Cooper, at p. 811.)
Significantly, in reaching this conclusion, the Supreme Court in Cooper observed the trial
court’s refusal to give an adverse inference instruction did not leave the defendant
helpless: The trial court properly permitted the defendant to “take his ‘best shot’ before
the jury, and present evidence regarding deficiencies in the investigation to try to

                                               5
discredit the case against him. ‘This was adequate to insure a fair hearing and was itself a
sufficient sanction.’” (Cooper, at pp. 811-812; accord, People v. Zapien (1993) 4 Cal.4th
929, 965-966 [trial court’s refusal to adopt adverse inference from law enforcement’s
negligent destruction of evidence was well within its discretion; absent bad faith, no
adverse-inference sanction warranted].)
       As in Cooper and Zapien Morales had every opportunity to argue to the jury the
prejudice that resulted from the failure to preserve the outer wrapping. Nothing more in
this case was required to ensure a fair trial. (Cooper, supra, 53 Cal.3d at pp. 811-812;
People v. Zapien, supra, 4 Cal.4th at p. 965.)
       The recent case of United States v. Sivilla (9th Cir. 2013) 714 F.3d 1168 (Sivilla),
                                                              4
on which Morales relies, does not compel a different result. Sivilla was charged with
transporting drugs from Mexico into the United States. Federal law enforcement
authorities had found the drugs hidden in the engine manifold of his Jeep. Sivilla argued
he did not know the drugs had been hidden in the vehicle and wanted to show at trial that
the manifold could have been accessed quickly by someone else while he was in a public
area and away from the car. However, apparently unaware of a court order requiring
preservation of the vehicle, law enforcement officials transferred it to an auction
wholesaler, who sold it. By the time the Jeep was found, it had been stripped of parts.
(Id. at p. 1171.)
       In a pretrial trial evidentiary hearing, the federal district court found the evidence
had not been destroyed in bad faith and denied Sivilla’s motion to dismiss the case and
also denied his alternative motion to instruct the jury that the defense “‘[was] not allowed
or given an opportunity to inspect the vehicle even though the court had ordered that the
government preserve [it].’” (Sivilla, supra, 714 F.3d at p. 1171.) In denying the
requested instruction the district court stated, “The court will not inform the jury that
defense counsel did not have an opportunity to inspect the vehicle because the


4     Because Sivilla was decided after briefing was completed, we granted requests
from Morales and the People to submit supplemental briefs to address the case.

                                              6
government failed to preserve it as ordered. There is no bad faith, and the government
has provided photographs of the vehicle and the drugs for use by the defense. However
defense counsel is free to explore the facts regarding the failure to preserve the vehicle
during trial.” (Id. at p. 1171.)
       The Ninth Circuit Court of Appeals affirmed the lack-of-bad-faith finding, but
reversed the district court’s ruling denying the requested jury instruction: “[W]hile
Supreme Court precedent [in Trombetta and Youngblood] demands that a showing of bad
faith is required for dismissal, it is not required for a remedial jury instruction.” (Sivilla,
supra, 217 F.3d at p. 1170.) The court held, when the issue is whether a remedial
instruction relating to the destroyed evidence is proper, the question is not whether the
evidence was destroyed in bad faith, but whether the requested instruction is necessary to
ensure a fair trial. This inquiry requires the court to balance the “‘quality of the
Government’s conduct’ against ‘the degree of prejudice to the accused,’” considering
such factors as “‘the centrality of the evidence to the case and its importance in
establishing the elements of the crime or the motive or intent of the defendant’” and the
probative value of the substitute evidence. (Sivilla, at p. 1173.) Applying this “balancing
test” to the facts in the record before it, the Sivilla court found the quality of the
photographs of the vehicle so poor that the proffered remedial jury instruction making
clear the defense’s inability to inspect the vehicle was warranted, and the failure to give it
                                           5
prejudiced the defense. (Id. at p. 1174.)
       We are, of course, not bound by the Ninth Circuit’s holding (see People v. Bradley
(1969) 1 Cal.3d 80, 86 [“although we are bound by decisions of the United States
Supreme Court interpreting the federal constitution [citations], we are not bound by the
decisions of the lower federal courts even on federal questions”]; People v. Figueroa
(1992) 2 Cal.App.4th 1584, 1586-1587 [same]), nor are we persuaded it has any
application here. Contrary to Morales’s suggestion, Sivilla does not hold that an adverse-

5      The Ninth Circuit emphasized that at trial the government had based its case on
specific information about the engine manifold and how hard it was to remove the drugs
from the Jeep. (See Sivilla, supra, 714 F.3d at p. 1171.)

                                               7
inference instruction is warranted even in the absence of bad faith. Rather, it simply
recognizes that there may be circumstances where some type of remedial jury instruction
(other than one that sanctions the prosecution) is necessary to protect a defendant’s right
to a fair trial. (Sivilla, at p. 1174; see People v. Sixto (1993) 17 Cal.App.4th 374, 398 [“It
is settled that trial courts ‘enjoy a large measure of discretion in determining the
appropriate sanction that should be imposed’ because of the failure to preserve or
destruction of material evidence. [Citations.] [¶] The same standard should apply
where, as here, there has been no sanctionable failure to preserve, but the defendant
claims particular admonitions or other measures are necessary to assure him a fair trial”].)
Whatever merit there may be to that analysis in other circumstances, here the trial court
gave Morales wide latitude and ample opportunity to apprise the jury of the potentially
exculpatory nature of the discarded outer wrapping, which Morales’s counsel did
repeatedly throughout the trial. As in Cooper, nothing more was necessary to protect
Morales’s right to a fair trial. (People v. Cooper, supra, 53 Cal.3d at pp. 811-812.)
       2. Substantial Evidence Supports the Finding Morales Knew the Nature of the
          Substance He Possessed
       Section 4573.6 provides that any person who knowingly possesses “any controlled
substance[], the possession of which is prohibited by Division 10 (commencing with
Section 11000) of the Health and Safety Code . . .” while in any penal institution “is
guilty of a felony punishable by imprisonment . . . for two, three, or four years.”
Methamphetamine is one of the controlled substances prohibited by Division 10 of the
Health and Safety Code. (Health & Saf. Code, § 11055, subd. (d)(2).)
       “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 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;
accord, People v. Martin (2001) 25 Cal.4th 1180, 1184.) Thus, for example, “knowledge
of a substance’s narcotic nature may be shown by evidence of the defendant’s furtive acts
and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or


                                              8
an attempt to hide or dispose of the contraband [citations], or by evidence showing a
familiarity with the substance, such as needle marks or other physical manifestations of
drug use or instances of prior drug use . . . .” (People v. Tripp (2007) 151 Cal.App.4th
951, 956; accord, People v. Williams (1971) 5 Cal.3d 211, 215-216.)
       Morales contends there was insufficient evidence he knew the substance he
                                   6
possessed was methamphetamine. Although he concedes the fact he hid the drugs in a
body cavity typically would be sufficient evidence of his knowledge of the substance’s
controlled nature (see, e.g., People v. Martin (2008) 169 Cal.App.4th 822, 826 & fn. 3
[substantial evidence of knowing possession existed where controlled substance hidden
between two socks worn by defendant on one foot]; People v. Rushing (1989)
209 Cal.App.3d 618, 622, fn. 2 [jury could reasonably infer defendant knew of the
controlled nature of cocaine in his possession by the fact it was hidden in a WD-40 can
with a false bottom]), he argues no such inference is reasonably made in these
circumstances because in jail even noncontrolled substances such as tobacco are banned.
The hiding of the substance suggests only that he knew it was contraband, not that it was
a controlled substance.



6       In reviewing a challenge to the sufficiency of the evidence, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict—i.e., 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.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

                                              9
       Morales’s “innocent” explanation for secreting the latex packet inside his body—
he thought it was tobacco—was not argued at trial. Instead, his theory was the evidence
was planted and he neither concealed the item nor told the deputy that it contained
tobacco. The jury rejected that defense, finding Morales did conceal the latex package in
his anus. We need not consider, therefore, whether concealment may be sufficient
evidence of knowledge under circumstances where there is evidence a defendant believed
the item he concealed contained contraband other than a controlled substance. Morales’s
active concealment under the circumstances in this case, and his lying about what the
package contained, are substantial evidence he knew the substance was
methamphetamine. (See People v. Martin, supra, 25 Cal.4th at p. 1184 [furtive acts
reflecting consciousness of guilt provide substantial evidence of knowledge of nature of
controlled substance]; People v. Maury (2003) 30 Cal.4th 342, 399 [jury could
reasonably infer defendant’s lies to police reflected a consciousness of guilt].)
       3. The Trial Court Adequately Instructed the Jury on Controlled Substances
       Morales contends the trial court erred in failing to sua sponte define the term
“controlled substance.” He argues that, without a proper definition, the jury could have
reasonably understood the term “controlled substance” to include all contraband in the
jail, including tobacco. Contrary to Morales’s contention, the jury was specifically
instructed with CALCRIM No. 2748, which expressly identified methamphetamine as a
controlled substance and informed the jury it must find the substance he was accused of
                                                                              7
possessing was methamphetamine in order to convict Morales of this crime. His
argument the court had a sua sponte duty to further define the term “controlled
substance” is without merit.



7      The jury was instructed, “The defendant is charged in Count 1 with possessing
methamphetamine, a controlled substance, in a penal institution in violation of Penal
Code section 4573.6. To prove that the defendant is guilty of this crime the People must
prove that . . . the defendant knew of the substance’s nature or character as a controlled
substance. The controlled substance that the defendant possessed was
methamphetamine.”

                                             10
       4. The Trial Court Properly Instructed the Jury on Circumstantial Evidence
       Morales contends the court erred in instructing the jury with the broader
                                                                           8
explanation of circumstantial evidence contained in CALCRIM No. 224 rather than the
more specific language in CALCRIM No. 225, which focuses on the use of
                                                                                            9
circumstantial evidence to establish the intent or mental state required for an offense.
       The trial court is obligated to instruct the jury on the general principles of law
relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th
142, 147-148.) The court has a sua sponte duty to instruct on principles of circumstantial



8      CALCRIM No. 224 provides, “Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
9       CALCRIM No. 225 provides “The People must prove not only that the defendant
did the act[s] charged, but also that (he/she) acted with a particular (intent/ [and/or]
mental state). The instruction for (the/each) crime [and allegation] explains the (intent/
[and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by
circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude
that a fact necessary to find the defendant guilty has been proved, you must be convinced
that the People have proved each fact essential to that conclusion beyond a reasonable
doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the
defendant had the required (intent/ [and/or] mental state), you must be convinced that the
only reasonable conclusion supported by the circumstantial evidence is that the defendant
had the required (intent/ [and/or] mental state). If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those reasonable conclusions
supports a finding that the defendant did have the required (intent/ [and/or] mental state)
and another reasonable conclusion supports a finding that the defendant did not, you must
conclude that the required (intent/ [and/or] mental state) was not proved by the
circumstantial evidence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”

                                             11
evidence whenever the People are relying on such evidence. (People v. Wiley (1976)
18 Cal.3d 162, 174; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.)
       “CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the
defendant’s specific intent or mental state is the only element of the offense that rests
substantially or entirely on circumstantial evidence.’ [Citations.] CALCRIM Nos. 224
and 225 provide essentially the same information on how the jury should consider
circumstantial evidence, but CALCRIM No. 224 is more inclusive.” (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172; see People v. Rodrigues (1994)
8 Cal.4th 1060, 1141-1142 [CALJIC No. 2.01, the predecessor to CALCRIM No. 224, is
“more inclusive” than CALJIC No. 2.02, the predecessor to CALCRIM No. 225].)
       We need not belabor Morales’s contention the trial court had a sua sponte duty to
give CALCRIM No. 225 rather than the “more inclusive” CALCRIM No. 224. As the
Supreme Court observed in addressing a similar argument, because the trial court
“delivered the more inclusive instruction” on circumstantial evidence, its refusal to
additionally instruct with CALJIC No. 2.02 [CALCRIM No. 225] clearly was not
prejudicial error even under the most stringent beyond-a-reasonable-doubt standard.
(People v. Rodrigues, supra, 8 Cal.4th at p. 1142; accord, People v. Samaniego, supra,
172 Cal.App.4th at p. 1172.)
       5. Remand Is Necessary for the Court To Clarify Presentence Custody Credits
       Both Morales and the People identify a discrepancy between the trial court’s oral
pronouncement awarding Morales a total of 444 days of presentence credit (222 actual
custody days and 222 days of conduct credit) and the minute order awarding him
                                                                                             10
544 days of presentence credit (272 actual custody days and 272 days of conduct credit).
Morales urges this court to remand for recalculation of presentence credits because it is


10     The court based its presentence custody credit calculation on defense counsel’s
representation. At sentencing the court inquired, “I am asking for some input. What are
the custody credits?” Defense counsel replied, “222 actual, plus 222 good time/work
time, for a total of 444.” Asked by the court if he agreed, the prosecutor merely replied,
“submit.”

                                             12
                                                                                           11
impossible to tell from this record which calculation of credits, if either, is correct.        We
      12
agree.
         If presentence credits are calculated from the date of his arrest, November 10,
2011, Morales would be entitled to 546 days of presentence credit (273 actual custody
days and 273 days of conduct credit), rather than the 444 days of presentence credit
calculated by defense counsel or the 544 days awarded in the court’s minute order.
Ordinarily, it would be a simple matter for this court to modify the sentence to reflect the
appropriate presentence credits calculated from the time of his arrest to sentencing.
However, at the time of his arrest on the current offense, Morales was serving a sentence
on an unrelated offense and is not entitled to presentence custody credits for the time
served on that offense. (See In re Rojas (1979) 23 Cal.3d 152, 154, 156-157 [criminal
defendant not entitled to presentence custody credit when during same period defendant
was simultaneously serving a prison term for a prior unrelated offense].) Because we
cannot determine from the record when Morales completed his sentence on the prior
           13
offense, remand is necessary for the limited purpose of determining the presentence
custody credits to which Morales is entitled.



11     Because Morales committed the current offense after October 1, 2011, his
presentence custody credits are calculated in accordance with the two-for-two calculation
authorized in the current version of section 4019. (See § 4019, subd. (h) [for offenses
committed prior to Oct. 1, 2011, presentence credit shall be calculated “at the rate
required by the prior law”]; People v. Brown (2012) 54 Cal.4th 314, 322.)
12      The People urge us to modify the minute order and abstract of judgment, citing the
general rule that, in the event of an inconsistency, the court’s oral pronouncement
prevails over the clerk’s minute order. (See People v. Farell (2002) 28 Cal.4th 381, 384,
fn. 2 [court’s oral pronouncements are best indicator of intent and prevail over clerk’s
minute order].) The amount of presentence credits, however, is mandated by statute. The
question is not what the trial court intended, but whether the sentence is authorized.
13     It may be that Morales completed his sentence on the prior offense on
December 31, 2011. If so, the court’s oral pronouncement of 444 days of presentence
custody credit, calculated from January 1, 2012 to the date of sentencing, would be
correct.

                                              13
                                     DISPOSITION
       The matter is remanded for the limited purpose of determining and awarding
presentence credits pursuant to section 4019, excluding from that calculation the time
Morales was confined on a separate, unrelated offense. In all other respects, the
judgment is affirmed.


                                                 PERLUSS, P. J.


       We concur:



              WOODS, J.



              ZELON, J.




                                            14
