Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR530516.
Sepulveda, J.
Defendant was convicted of forcible sodomy (former Pen. Code, § 286, subd. (c)(2)) and other crimes in connection with the sexual assault of a teenaged relative. On appeal, he argues that there was insufficient evidence supporting (1) his conviction for dissuading a witness (§ 136.1, subd. (c)), (2) his conviction for making a criminal threat (§ 422), and (3) the true findings as to two strike allegations. He also argues that the trial court erred by declining to award him presentence conduct credits. We remand to the trial court to determine whether defendant is eligible for presentence conduct credit and to correct a clerical error in the abstract of judgment. We otherwise affirm.
All statutory references are to the Penal Code.
I.
Factual and Procedural Background
In October 2007, defendant began to live in Windsor with family members, including his 16-year-old grandnephew (referred to at trial as John Doe, hereinafter sometimes referred to as the victim). The victim did not have a good relationship with defendant, who called him “bitch, ” “little sissy, ” a “mama’s boy, ” “faggot, ” “punk, ” and “fucking asshole.” After defendant moved in with the victim and his family, defendant would bully the victim and pretend that he was about to hit him.
On a night in late November 2007 (at some point after Thanksgiving), the victim went to his room, closed the door, and fell asleep. Having entered the victim’s room once and then leaving, defendant returned after the victim had fallen asleep. Defendant got on top of the victim and told him to pull his shorts down. He put a black and silver knife to the victim’s neck, which hurt the victim, and told the victim to do what he told him to do or he would kill him. The victim pulled his shorts down, and defendant told him to turn around so that he was on his stomach, which the victim did. Defendant took his sweatpants off, then sodomized the victim for what “felt like a long time” to the victim. While the victim was on his stomach, defendant’s knife dropped to the floor.
After defendant was done, he threatened the victim, who later testified: “I don’t remember exactly the words he used, but he told me that if I tell anybody that he’ll kill me or he has other people that could do it for him.” The victim was afraid that defendant would kill him, because he knew “his prison background and he killed somebody before.” Defendant then left the room. The victim was in pain and scared, and he was crying.
The victim did not at first tell anyone about the attack, because he was afraid that defendant would do it again. A little over two months after the incident, the victim told a friend from church about what defendant had done, and defendant was arrested in February 2008. Defendant testified on his own behalf at trial and denied sexually assaulting the victim.
Defendant was charged by information with forcible sodomy (former § 286, subd. (c)(2), now § 286, subd. (c)(2)(A)—count 1), with an allegation pursuant to the one strike law that defendant used a deadly or dangerous weapon in the commission of the offense, in violation of section 12022.3 (former § 667.61, subd. (e)(4), now § 667.61, subd. (e)(3)); assault with a deadly weapon (a knife) (§ 245, subd. (a)(1)—count 2); making a criminal threat (§ 422—count 3); and dissuading a witness by force or threat of force (§ 136.1, subd. (c)(1)—count 4). The information further alleged three prior strikes (§ 1170.12) and one prior prison term (§ 667.5, subd. (b)). A jury convicted defendant as charged. The jury also found true an allegation that defendant personally used a deadly or dangerous weapon when making a criminal threat (§ 422—count 3), in violation of section 12022.3. The trial court found the prior strikes and the prison prior to be true following a court trial.
It is unclear when the People added the weapon enhancement as to count 3. It was not specifically alleged in the information. The trial court instructed the jury on the weapon enhancement in connection with both counts 1 (as charged in the information) and 3, and the verdict forms likewise included the enhancement as to both counts. Defendant did not object at trial to either the instructions or the verdict forms. He likewise does not argue on appeal that the enhancement as to count 3 was improper. Defendant has therefore waived any objection that he did not receive sufficient notice of the weapon enhancement as to this count. (People v. Ramirez (2003) 109 Cal.App.4th 992, 997 [failure to object to pleading irregularity or lack of notice of allegation serves as waiver of issue].)
The trial court sentenced defendant to 45 years to life on count 1 (15 years to life under the one strike law, tripled under the three strikes law), plus a consecutive 25 years to life under the three strikes law on count 4, plus one consecutive year for the prison prior. The court stayed sentences on counts 2 and 3 pursuant to section 654. Defendant timely appealed.
In the section of the abstract of judgment where enhancements are to be listed, the abstract states that defendant received enhancements pursuant to “654 PC” for both counts 2 and 3. Section 654 is of course not an enhancement, but instead governs staying a sentence where defendant suffers multiple convictions in connection with a single act or omission. The abstract elsewhere indicates that defendant’s sentence was stayed on counts 2 and 3 pursuant to section 654. However, the abstract does not list the enhancements found true in connection with counts 1 and 3. Respondent requests that we order correction of the abstract of judgment, and defendant does not object. We hereby order the abstract of judgment corrected to reflect the true findings on the enhancements as to counts 1 and 3. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors to accurately reflect judgment]; Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 62-63 [correcting undisputed clerical error].)
II. Discussion
A. Dissuading Victim from Reporting Crime.
Defendant first challenges the sufficiency of the evidence supporting his conviction for dissuading a witness by force or threat of force (§ 136.1, subd. (c)(1)—count 4). We review defendant’s claim for substantial evidence. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1338, 1345 [upholding § 136.1 conviction].) That is, we review the record to determine whether a rational trier of fact could find defendant guilty beyond a reasonable doubt, viewing the record in the light most favorable to respondent, and drawing all reasonable inferences to support the judgment. (Id. at pp. 1342-1345.) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. [Citation.]” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
Section 136.1 prohibits four forms of witness intimidation, including dissuading another person who has been the victim of a crime from “[m]aking any report” of the victimization to law enforcement (§ 136.1, subd. (b)(1)), the form of intimidation at issue here. (People v. Hallock (1989) 208 Cal.App.3d 595, 606 (Hallock).) “In the context of reporting a crime, [a ‘report’] generally means notifying the authorities that the crime has occurred and providing information about the offense.” (People v. Fernandez (2003) 106 Cal.App.4th 943, 948.) The crime is a felony where, as alleged here, the act is accompanied by force or an express or implied threat of violence upon a victim. (§ 136.1, subd. (c)(1); Hallock at p. 606.) The crime requires proof that the defendant specifically intended to dissuade a witness from reporting a crime to law enforcement. (CALCRIM No. 2622; People v. Young (2005) 34 Cal.4th 1149, 1210; Hallock at p. 606.) There is “ ‘no talismanic requirement that a defendant must say’ ” any specific words in order to be convicted of a violation of section 136.1 (People v. Mendoza, supra, 59 Cal.App.4th at p. 1344), so long as defendant’s words or actions support the inference that he attempted by force or threat of force to discourage a victim from reporting a crime. (Hallock at p. 607.)
The victim testified that after defendant sodomized him, defendant “threatened me after to not tell anyone or he was going to do something to me.” The victim further testified that “I don’t remember exactly the words he used, but he told me that if I tell anybody that he’ll kill me or he has other people that could do it for him.” He also testified that defendant “just threatened me about not discussing—or telling anyone.” Defendant argues that this testimony does not support an inference that he discouraged the victim from reporting his crime to a law enforcement officer (§ 136.1, subd. (b)(1)), because “[t]he most reasonable inference from all the evidence is that appellant wished to dissuade Doe from talking to his mother or another relative, friend, or advisor” (as opposed to law enforcement), which is not prohibited by section 136.1.
Drawing all reasonable inferences in favor of the judgment, we conclude that substantial evidence supports defendant’s conviction for dissuading a witness. This case is similar to Hallock, supra, 208 Cal.App.3d 595, where defendant pursued his victim after trying to rape her and threatened, “ ‘if you tell anybody anything that happened tonight here... I’ll blow your house up.’ ” (Id. at p. 598.) The court concluded that this was sufficient evidence to convict defendant of dissuading a crime victim from reporting the crime to authorities (§ 136.1, subd. (b)). (Hallock at p. 607.) Here, defendant’s threat that if the victim told “anybody” about his attack, he would kill the victim or have other people do it for him, likewise was sufficient evidence to convict defendant of dissuading the victim from reporting the crime to authorities, as it suggested that if the victim did anything “that might lead to defendant’s arrest” (ibid.), defendant would have the victim killed. There was “ ‘no talismanic requirement’ ” that defendant specifically mention police when he threatened the victim in order to violate section 136.1 (People v. Mendoza, supra, 59 Cal.App.4th at p. 1344), and a reasonable inference was that defendant was trying to prevent the victim from contacting authorities.
The Hallock court reversed defendant’s conviction, because although there was sufficient evidence to support a violation of section 136.1, subdivision (b), the jury had been instructed on a violation of subdivision (a), an uncharged crime that was unsupported by the evidence. (Hallock, supra, 208 Cal.App.3d at pp. 607, 610.) No such instructional error occurred here.
B. Criminal Threat.
1. Background
In addition to threatening the victim after the attack not to tell anyone about the crime (ante, § II.A.), defendant also separately threatened the victim before sexually assaulting him. The victim testified that defendant entered his bedroom with a knife, got on top of him and told him to pull his shorts down, held a knife to his throat, and told the victim to do what he told him or he would kill him. The victim pulled his shorts down, then turned around so that he was on his stomach as defendant told him to do. Defendant still held a knife to the victim’s neck when he told the victim to turn around. Defendant sodomized the victim for what “felt like a long time” to the victim, and the victim testified that he was “scared the whole time.”
During her closing argument to the jury, the prosecutor made clear that the criminal threat charge against defendant (§ 422—count 3) was based on defendant’s threat to the victim before the sexual assault, because she repeatedly referred to the fact that defendant was armed with a knife when he made the threat. The prosecutor argued that a criminal threat is “a threat to kill or cause great bodily injury. ‘I will kill you. I will cut you. I will have people come cut you.’ [¶] If you believe any of those statements, that’s your [Penal Code section] 422 [count].” The prosecutor’s reference to having other people hurt the victim is somewhat ambiguous, because defendant referred to other people hurting the victim during the second, as opposed to the first, threat. However, the prosecutor thereafter focused again on defendant’s use of a knife, which occurred only during the first threat: “Did he [defendant] have the knife to John Doe’s throat when he said it, or was he holding the knife when he said it? John Doe testified he was.”
The victim testified that defendant’s knife dropped to the ground during the sexual assault, so presumably defendant was not armed when he threatened the victim after the attack by telling him that he would kill the victim if he told anyone about the assault. Consistent with this theory, jurors were not asked whether defendant was armed when he violated section 136.1 by dissuading a witness, whereas the jury verdict forms asked whether defendant was armed with a knife when he uttered a criminal threat in violation of section 422.
The prosecutor also argued that defendant’s threat before defendant sodomized the victim was “clear, immediate, unconditional, and specific. ‘I will kill you if you don’t do what I say. I will cut you if you do not do what I say.’ [¶] There is nothing conditional; right? Because he can’t not comply.” As the jury was instructed, conviction for making a criminal threat requires proof that the threat was “unequivocal, unconditional, immediate, and specific.” (§ 422; CALCRIM No. 1300.)
2. Substantial evidence supports conviction
Defendant argues that there was insufficient evidence to support his conviction for making a criminal threat. “In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228; § 422; CALCRIM No. 1300.) Defendant challenges only the fourth element, arguing that his threat before he assaulted the victim (that he would kill the victim if he did not comply) “did not cause Doe to suffer sustained fear.”
As used in section 422, “ ‘sustained’ has been defined to mean ‘a period of time that extends beyond what is momentary, fleeting, or transitory.... The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]’ [Citation.]” (People v. Wilson (2010) 186 Cal.App.4th 789, 808; accord People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes of fear after armed defendant threatened to kill victim and her daughter and before defendant arrested “more than sufficient” to constitute sustained fear].) “ ‘Sustained fear’ refers to a state of mind, ” and it may amount to less than one minute, depending on the circumstances, such as when a defendant brandishes a weapon and threatens to kill someone. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) “When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’ ” (Id. at p. 1349.)
Defendant argues that section 422 “was not intended to apply to cases where the only threat is that a crime victim immediately comply with the criminal’s demands or face death or great bodily injury.” He claims that “[t]he threat was to kill Doe if he did not submit to being sodomized; once he did submit, it was no longer the threat, but the crime itself, that caused any further fear.” He concludes that “because it took but an instant for Doe to begin to comply with appellant’s demand, ... once [the victim] started to submit he had no reason to fear his great-uncle would kill him.” In other words, defendant contends that any fear that the victim experienced when defendant threatened him ended as soon as defendant began sodomizing him, which happened so quickly that the victim’s fear was not sufficiently sustained. “This argument ignores human nature.” (People v. Fierro, supra, 180 Cal.App.4th at p. 1349.) The victim knew that defendant had a “prison background” and that defendant had previously killed someone. At the time defendant threatened to kill the victim if he did not cooperate, defendant was on top of the victim, straddling him with his knees on either side of him. Defendant’s forearm was holding the victim’s chin up, and defendant was holding a knife to the victim’s neck, which hurt the victim. When defendant began to sodomize the victim, the victim was in pain, and the assault lasted for what “felt like a long time.” The victim specifically testified that he was “scared the whole time, ” and he continued to be scared after the attack ended and defendant left the room. Examining the record as a whole, there was overwhelming evidence that the victim experienced sustained fear from defendant’s threat throughout his ordeal. The jury reasonably could have found that the victim’s fear from defendant’s threat did not end when defendant began sodomizing him, but that the victim in fact was more frightened after the attack began that defendant would carry out his threat, based on the victim’s knowledge of defendant’s criminal history and on the fact that defendant had held a knife to the victim’s neck and was causing him pain during the sexual assault.
But even if we accept defendant’s implausible argument that any fear from defendant’s threat ended once defendant began sodomizing his grandnephew, defendant did not “almost instantly” sodomize the victim after he threatened him, as defendant claims. After defendant told the victim that he would kill him if he did not comply, he told the victim to turn around, which the victim did while defendant continued to hold a knife to his throat, suggesting that the victim could not move quickly because he risked being cut. The victim could then feel defendant “slowly take his sweatpants off, ” before defendant sodomized the victim. (Italics added.) Considering all the facts and circumstances, “the jury reasonably could have found that [defendant’s] actions created a sustained fear, a state of mind that was certainly more than momentary, fleeting, or transitory, ” because it took more than a fleeting moment for the victim to comply with defendant’s demands so that defendant could begin sodomizing the victim. (People v. Fierro, supra, 180 Cal.App.4th at p. 1349.) Because defendant had a knife to the victim’s neck immediately after the threat, the victim could reasonably have believed that he was going to die, which means that even a minute of fear under the circumstances was more than “momentary, fleeting, or transitory.” (Ibid.) Substantial evidence supports defendant’s conviction for making a criminal threat.
3. No unanimity instruction required
Defendant argues in the alternative that if the prosecutor did not sufficiently elect between defendant’s two threats (one before the sodomy and the one after the sodomy was completed) as the basis of the criminal threat charge, defendant’s conviction must be reversed. When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes, or the court must instruct the jury sua sponte that it must agree on the same criminal act. (People v. Davis (2005) 36 Cal.4th 510, 561; People v. Russo (2001) 25 Cal.4th 1124, 1132.) “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (People v. Maury, supra, 30 Cal.4th at p. 422.) “By giving the unanimity instruction the trial court can ensure that a defendant will not be convicted when there is no agreement among the jurors as to which single offense was committed.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) “If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instructions. The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (Id. at p. 1539.)
Here, defendant threatened the victim twice: once before he sexually assaulted him (ante, § II.B.1.), and again after the assault (ante, § II.A.). Defendant acknowledges that the most reasonable interpretation of the record is that the prosecutor elected the first threat against the victim as the basis for the criminal threat count, based on the prosecutor’s closing argument and the verdict forms, and we agree. The prosecutor emphasized defendant’s use of a knife, a weapon he used during the first threat but not the second, and the jury verdict forms reflected this difference. The prosecutor also emphasized that the first threat was unconditional, an element of making a criminal threat (§ 422). Although she briefly conflated the two threats, the prosecutor’s argument as a whole communicated with sufficient clarity and directness the jury’s duty to render a unanimous decision as to whether defendant’s first threat violated section 422. (People v. Melhado, supra, 60 Cal.App.4th at p. 1539.)
Defendant takes inconsistent positions on this issue, which makes his argument somewhat confusing. He first states that “the most reasonable interpretation of the evidence” is that the prosecutor elected between the two threats as a basis for the criminal threats charge, and proceeds to give all the reasons supporting that conclusion. Defendant also states, “We think the jury probably based its conviction on Count 3 on only the first threat. The entire tenor of the case was that Count 3 referred to the threat made for the purpose of forcing Doe to submit to sodomy, while Count 4 referred to the threat made to prevent appellant from telling anyone about the crime. The jury would easily understand that there were two threats, each of which had a different purpose, and each of which was the subject of a separate count.” (Italics added.) Defendant nonetheless argues that “if the prosecution did not sufficiently elect between the two threats, ” his conviction on count 3 should be reversed. (Italics added.) He also “submit[s]” that it was “likely” that some jurors would convict based on the first threat, and others on the second threat, because the prosecutor at one point briefly conflated the two threats during her closing argument. In his reply brief, defendant at first appears to drop this latter argument when he states, “At trial, the prosecutor apparently relied only on the first threat as the basis for convicting appellant of criminal threats under Penal Code 422, ” and that “the jury must have relied on” the first threat. Later, however, he again argues that it is “likely that the jury... conflated the two threats, but was not given the necessary unanimity instruction.”
C. Proof of Prior Strikes.
1. Background and legal principles
The information alleged that defendant had suffered three previous strikes: (1) a 1994 conviction for voluntary manslaughter (§ 192, subd. (a)), (2) a 1981 conviction for assault by a state prisoner (§ 4501), with a great bodily injury enhancement (§ 12022.7), and (3) a 1982 conviction for “assault by state prisoner with explosive device” (§§ 4501, 12022, subd. (b)). (Capitalization removed.) The trial court found true all three strike allegations following a court trial.
A prior serious or violent felony conviction counts as a strike, subjecting a defendant to a harsher sentence for subsequent convictions. (§§ 667, subd. (d), 1170.12, subd. (b); People v. Delgado (2008) 43 Cal.4th 1059, 1065.) “The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1082 (Miles).) In determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction, but no further; the prosecution may not relitigate the circumstances of a crime. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) Where the mere fact of a conviction under a particular statute does not prove that the offense was a serious felony, “otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.” (Miles at p. 1082.) “However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.” (Id. at p. 1083.) “On the other hand, the trier of fact may draw reasonable inferences from the record presented. Absent rebuttal evidence, the trier of fact may presume that an official government document, prepared contemporaneously as part of the judgment record and describing the prior conviction, is truthful and accurate. Unless rebutted, such a document, standing alone, is sufficient evidence of the facts it recites about the nature and circumstances of the prior conviction.” (Ibid., original italics.)
Defendant challenges the sufficiency of the evidence supporting two of his three prior strikes. “On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.” (Miles, supra, 43 Cal.4th at p. 1083.)
2. 1981 conviction
Defendant first challenges the sufficiency of the evidence supporting the true finding as to his 1981 conviction for assault by a state prisoner (§ 4501), with a great bodily injury enhancement (§ 12022.7). At the court trial on the priors, the court received into evidence as to this strike a certified abstract of judgment dated June 2, 1988, that listed three crimes committed while defendant was in prison: (1) a 1981 conviction for assault with a deadly weapon by a state prisoner (§ 4501), the conviction at issue here; (2) a 1982 conviction for the same crime; and (3) a 1988 conviction for possession of a deadly weapon by a prisoner (§ 4502). The abstract listed the case numbers for all three convictions. As for the 1981 conviction, the abstract stated that defendant had been convicted by jury of section 4501 (described as “ADW by Inmate of S/P”), that the crime had been committed in 1980, that defendant had been convicted on August 20, 1981, and that defendant was sentenced to four years as the “principal” term. The abstract also indicated that defendant received three years for a great bodily injury enhancement pursuant to section 12022.7 (in connection with an unspecified conviction), and that his total sentence for all three convictions and the enhancement was 14 years. A certified fingerprint card dated May 18, 1992 that also was entered into evidence states that defendant was convicted of “PC 4501 w/ 12022.7 // ASSAULT BY PRISONER, ” for which defendant received a seven-year sentence.
a. Sufficient evidence of fact of conviction
Defendant first contends that there was insufficient evidence of the 1981 conviction, because the prosecution did not submit into evidence “an Abstract of Judgment or any other paper from the 1981 case showing that appellant was in fact convicted of an offense involving great bodily injury.” Respondent contends that the 1988 abstract of judgment reflected the resentencing of defendant, and that it incorporated the prior convictions for which defendant was still serving a sentence. We agree that this is a reasonable inference. The 1988 abstract reveals that each of the three crimes listed was committed while defendant was in prison, and that defendant had not completed his sentence for his convictions when each subsequent crime was committed. Although the 1988 abstract was not prepared contemporaneously with defendant’s 1981 conviction, it was made as part of the judgment record and described the conviction, which was listed as the basis for the “principal” sentence defendant received. (Miles, supra, 43 Cal.4th at p. 1083.) We conclude that the abstract was a valid court document that sufficiently established the 1981 conviction.
b. Conviction was for serious felony
Defendant also contends that his conviction for violating section 4501 does not necessarily count as a strike, because the record does not establish that the conviction was for a violent or serious felony. (§§ 667, subd. (d), 1170.12, subd. (b).) A defendant may violate section 4501 in one of two ways: by committing assault on the person of another with a deadly weapon, or by any means of force likely to produce great bodily injury. Assault with a deadly weapon by an inmate is a serious felony. (§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(13).) Assault by means of force likely to produce great bodily injury by an inmate apparently is not. (People v. Delgado, supra, 43 Cal.4th at p. 1065 [assault by means likely to produce great bodily injury under § 245, subd. (a)(1), not a serious felony].)
Here, the prosecutor provided substantial evidence that defendant committed assault with a deadly weapon by a state prisoner (§ 4501), qualifying his conviction as a strike (§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(13)). The 1988 abstract of judgment described defendant’s 1981 conviction for a violation of section 4501 as “ADW by Inmate of S/P.” The notation “ADW by Inmate of S/P” was prima facie evidence that the conviction was for assault with a deadly weapon (“ADW”) by a state prisoner (“S/P”), as opposed to assault by means of force likely to produce great bodily injury, which was not described in the abstract. (People v. Delgado, supra, 43 Cal.4th at pp. 1069-1070 [“ ‘Asslt w DWpn’ ” notation stands for “ ‘assault with a deadly weapon’ ”].) We reject defendant’s argument that the notation was a reference to section 4501 as a whole, or that a reference to assault with a deadly weapon would have appeared whether or not the offense actually involved a weapon, as defendant claims.
Moreover, the prosecutor provided additional evidence that defendant’s 1981 conviction qualified as a strike. A violent felony includes any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, as provided in section 12022.7. (§§ 667, subd. (d)(1); 667.5, subd. (c)(8).) Here, the 1988 abstract of judgment indicates that defendant was sentenced to four years for his 1981 conviction for violation of section 4501, and that defendant also was sentenced to three years for a section 12022.7 enhancement. Although the abstract does not reveal to which conviction the enhancement was connected, a certified fingerprint card states that defendant was convicted for “PC 4501 w/ 12022.7 ASSAULT BY PRISONER W/ GBI, ” and that his term for this conviction was seven years (presumably, four years under section 4501 plus three years for the section 12022.7 enhancement), with a total term of 14 years (seven years for the 1981 conviction, plus six years for the 1982 conviction, plus one year for the 1988 conviction), consistent with the 1988 abstract. When the fingerprint card and the 1988 abstract are read together, they are prima facie evidence that defendant was convicted in 1981 of section 4501 with a section 12022.7 enhancement, with a total sentence of seven years on that count. (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1091 [fingerprint card admissible to prove defendant convicted of particular offense where it raises reasonable inference when read in connection with partially illegible abstract of judgment]; cf. People v. Williams (1996) 50 Cal.App.4th 1405, 1412-1413 [fingerprint card notation insufficient, standing alone, to prove nature of underlying offense, because card is not record of court where conviction occurred].) “The trial court could reasonably infer that the prison employee who created the fingerprint card correctly transcribed the offense and enhancement allegation from the court records.” (Ruiz at p. 1091.) Substantial evidence supports the finding that defendant’s 1981 conviction qualified as a strike.
3. 1982 conviction
Defendant also challenges the sufficiency of the evidence supporting the true finding as to his 1982 conviction for assault by a state prisoner with an explosive device. (§ 4501.) At the court trial on the priors, the court received into evidence as to this strike a certified abstract of judgment showing that defendant was convicted on December 27, 1982, for a violation section 4501, described as “Assault w/deadly weapon, to wit; an explosive item.” Again, because assault with a deadly weapon by an inmate is a serious felony and thus qualifies as a strike (§§ 1170.12, subd. (b)(1), 1192.7, subd. (c)(13)), and the abstract specifically identified a deadly weapon, the prosecutor presented sufficient evidence to support the true finding as to the 1982 strike. It was not necessary, as defendant claims, to show whether anyone was injured or whether the “explosive item” defendant used actually exploded. Because nothing was submitted to rebut the prima facie evidence of a prior strike, there was sufficient evidence of the nature and circumstances of the prior conviction. (Miles, supra, 43 Cal.4th at p. 1083.)
Defendant argues that if his trial attorney offered ineffective assistance of counsel because he failed to object to the sufficiency of the evidence supporting the strike allegations, the true findings should be reversed. First, a defendant need not object in the trial court that a judgment is not supported by the evidence in order to preserve the issue for appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1126.) Second, even if defendant was required to object below in order to preserve the issue for appeal, such an objection would have been futile in light of the fact that substantial evidence supported the true findings as to the strikes. Defendant therefore could not demonstrate that he was prejudiced by his counsel’s allegedly deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [to demonstrate ineffective assistance of counsel, defendant must show both that counsel’s performance was deficient and that performance prejudiced him].)
D. Presentence Conduct Credits.
The probation department’s presentence report stated that defendant was entitled to “no conduct credit by operation of law (667.61 PC), post 09/20/06, and per 2933.5 PC.” At defendant’s sentencing hearing, the probation officer stated that defendant was “not entitled to conduct credits by operation of law.” The trial court impliedly agreed, and defendant’s abstract of judgment states, “defendant not entitled to conduct credits.” (Capitalization removed.) Defendant argues that the trial court lacked jurisdiction to deny presentence conduct credits. (People v. Taylor (2004) 119 Cal.App.4th 628, 647 [sentence that fails to award legally mandated custody credit unauthorized and may be corrected whenever discovered].) To evaluate his claim, we look at the interplay of the applicable statutes.
The trial court awarded defendant 764 days of actual custody credit.
“Section 4019 is the general statute governing credit for presentence custody. Absent contrary authority, ‘a defendant receives what are commonly known as conduct credits toward his term of imprisonment for good behavior and willingness to work during time served prior to commencement of sentence. [Citations.]’ [Citation.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) Absent contrary authority, presentence conduct credits are available to a defendant (such as defendant here) who is sentenced to an indeterminate life term. (Id. at p. 908; People v. Brewer (2011) 192 Cal.App.4th 457, 462, petn. rev. filed Mar. 4, 2011, S190495.)
Section 2933.1, subdivision (c), serves as an exception to section 4019. (People v. Brewer, supra, 192 Cal.App.4th at p. 462.) It provides, in relevant part, that “[n]otwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail... following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” Persons specified in subdivision (a) include “any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5, ” which in turn lists forcible sodomy, a crime for which defendant was convicted. (§ 667.5, subd. (c)(4).) Defendant acknowledges that if he is entitled to presentence conduct credit, it is limited to 15 percent of his actual days in custody pursuant to section 2933.1.
Section 2933.5, cited by the probation department, is yet another statute affecting a defendant’s eligibility to earn credit against his or her term of imprisonment. It provides that “[n]otwithstanding any other law, every person who is convicted of any felony offense listed in paragraph (2), and who previously has been convicted two or more times, on charges separately brought and tried, and who previously has served two or more separate prior prison terms, as defined in subdivision (g) of Section 667.5, of any offense or offenses listed in paragraph (2), shall be ineligible to earn credit on his or her term of imprisonment pursuant to this article.” (§ 2933.5, subd. (a)(1).) Again, defendant acknowledges that, assuming sufficient evidence supports his prior strikes, he is a person described by section 2933.5, and that the statute governs any presentence credits to which he was otherwise entitled pursuant to section 2933.1. (§ 2933.5, subds. (a)(2)(B) [voluntary manslaughter], (a)(2)(H) [forcible sodomy], (a)(2)(O) [any felony in which defendant personally inflicted great bodily injury, § 12022.7]; People v. Goodloe (1995) 37 Cal.App.4th 485, 495.) However, it is the Department of Corrections (the Department), not the trial court, that determines a defendant’s ineligibility for credits under section 2933.5. (Goodloe at pp. 494-496.) Defendant argues, and respondent concedes, that the trial court was to determine the total number of presentence conduct credits earned by defendant, and indicate that defendant was entitled to those credits unless statutorily ineligible pursuant to section 2933.5, as later determined by the Department. (Goodloe at pp. 495-496.) To the extent that the trial court relied on section 2933.5 in denying presentence conduct credits, it erred.
In advising the trial court that defendant was ineligible for custody credit, the probation department also relied on “(667.61 PC), post 09/20/06, ” a reference to the one strike law (§ 667.61) after it was amended effective September 20, 2006 (the version that was in effect when defendant committed his crime and was sentenced). Before September 20, 2006, subdivision (j) of former section 667.61 provided that “[a]rticle 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of... 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum of... 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of... 15 years in the state prison.” The amendment that took effect September 20, 2006 eliminated this provision. (Stats. 2006, ch. 337, § 33.) A report by the Senate Committee on Public Safety on Senate Bill No. 1128 (2005-2006 Reg. Sess.) made clear that the amendment was meant to “eliminate[] conduct/work credits for inmates sentenced under the one-strike law, ” and the probation department and trial court apparently interpreted the statute consistent with that legislative history in denying presentence conduct credits. However, the current version of the one strike law does not contain any express provision making defendant ineligible for presentence conduct credit (§ 667.61), and the trial court thus erred to the extent that it relied on the one strike law to deny defendant presentence conduct credit. (People v. Brewer, supra, 192 Cal.App.4th at p. 462.)
Defendant and respondent state that the remedy is to modify defendant’s abstract of judgment to award conduct credit of 114 days (15 percent of defendant’s 764 days of actual custody credits), subject to a determination of eligibility by the Department. However, the record suggests another reason that defendant was not entitled to presentence conduct credits: he did not deserve such credits based on his behavior while in jail. The probation department reported that “defendant has received a number of behavioral write-ups during his two years in custody in this matter, ” including ones for being uncooperative, throwing juice at a prison worker, and coughing up a plastic-wrapped pill during a pat search. Defendant received three days of disciplinary isolation for one incident and seven days of disciplinary isolation for another incident, and he lost commissary and visitation privileges because of yet another incident. There is nothing in the record to suggest that the trial court made any factual findings on this issue. We therefore do not find it appropriate to order that defendant is necessarily entitled to 114 days of presentence conduct credit. We instead find it appropriate to direct the trial court to make a determination whether defendant was entitled to presentence conduct credits and, if so, to calculate the appropriate credits.
III.
Disposition
The trial court is directed to make a determination of whether defendant is entitled to any presentence conduct credits and, if so, to calculate those credits in a manner consistent with this opinion. If the trial court determines that defendant is entitled to presentence conduct credits, the court shall amend the abstract of judgment to state that defendant is entitled to those credits unless he is determined by the Department of Corrections to be statutorily ineligible to earn credit pursuant to Penal Code section 2933.5. The abstract of judgment also shall be modified to list the enhancements found true as to counts 1 and 3, consistent with the jury’s verdict. (Ante, fn. 3.) The trial court is directed to prepare an amended abstract of judgment, and a certified copy of the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.