California Court of Appeal Sep 24, 2020 No. E071303Unpublished
Filed 9/24/20 P. v. Reyes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071303
v. (Super.Ct.No. INF1702123)
CHRISTOPHER ANDREW REYES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. W. Charles Morgan* and
Chad W. Firetag, Judges. Affirmed in part, reversed in part with directions.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* Retired Judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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I.
INTRODUCTION
Defendant and appellant, Christopher Reyes, appeals from the judgment entered
convictions on the grounds that what began with larceny ripened into robbery due to the
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defendant’s use of force or fear to maintain possession of the property.” (People v.
Hodges (2013) 213 Cal.App.4th 531, 540.)
First, substantial evidence supported the inference that a taking occurred.
Defendant does not contest his conviction for first degree burglary, from which it can be
inferred there was sufficient evidence to support the jury’s finding defendant entered
A.C.’s home with his cohorts with intent to steal property from A.C.’s home. A.C. and
E.C. testified that, when they entered their home after the shooting incident, their house
appeared to have been ransacked and several items were missing, including an iPhone,
jewelry, backpack, and $8,000 in cash. A reasonable inference could be made that either
defendant or his cohorts took the items when they fled after the shooting. Before the
shooting, A.C. saw two flashlights in the craft room, from which it could be reasonably
inferred that defendant and his companions were searching for items to steal.
Second, substantial evidence supports the inference that defendant, along with his
cohorts, formed the intent to steal from A.C. before, rather than after, they used force
against A.C. (People v. Clark, supra, 52 Cal.4th at p. 945; People v. Marshall (1997)
15 Cal.4th 1, 34 [requisite intent to steal must arise before or during the act of force].)
Evidence of this element was established by evidence that, when A.C. knocked on the
craft room window, A.C. alerted the burglars that he had seen them in his house.
Defendant and or his cohorts immediately turned off their flashlights, demonstrating they
were aware they had been spotted inside. Rather than, at that point, fleeing with their
loot from A.C.’s house, without using force, they elected to wait for A.C. to enter his
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home, lying in wait with intent to shoot A.C. and then flee with the stolen property.
Defendant waited with his cohorts, demonstrating his own intent to participate in, and
support his cohorts in shooting A.C. and then fleeing with the stolen property.
The evidence shows that as defendant’s cohorts ambushed A.C., defendant stood
nearby, aiding and abetting his cohorts, while they used deadly force against A.C.,
forcing him to leave his home, in fear for his life. The evidence further shows that, after
A.C. and his cohorts forced A.C. to retreat, they fled with the stolen property. Although
there is no direct evidence defendant took any of the stolen property, there was ample
evidence that he knowingly and willingly participated in the robbery, as well as the
attempted murder, as an aider and abettor.
III.
INSTRUCTIONAL ERROR
Defendant contends the trial court abused its discretion by refusing defendant’s
request to instruct on self-defense (CALCRIM 505) and defense of habitation
(CALCRIM 506). Defendant argues instructions on self-defense and defense of
habitation were necessary for the jury to evaluate whether A.C. lawfully entered his home
with his gun drawn. Defendant argues there was substantial evidence A.C. acted
unlawfully when he entered his home with his gun drawn and, therefore, the burglars
were entitled to exercise self-defense and shoot at A.C.
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A trial court must instruct on all defenses which are supported by the evidence and
are not inconsistent with the defendant’s theory of the case. (People v. Baker (1999) 74
Cal.App.4th 243, 252; People v. Brooks (2017) 3 Cal.5th 1, 73.) “‘“It is settled that in
criminal cases, even in the absence of a request, a trial court must instruct on general
principles of law relevant to the issues raised by the evidence”’ and ‘“necessary for the
jury’s understanding of the case.”’ [Citations.] It is also well settled that this duty to
instruct extends to defenses ‘if it appears . . . the defendant is relying on such a defense,
or if there is substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’ [Citations.]” (People v. Brooks,
supra, at p. 73.) “When assessing the sufficiency of evidence to warrant an instruction,
we do not evaluate the credibility of witnesses, a task for the jury.” (People v. Baker,
supra, at p. 252.)
Before jury deliberations, defendant requested the trial court to give CALCRIM
505 on self-defense and CALCRIM 506, as modified, on defense of habitation. Defense
counsel argued that modified CALCRIM 506 was necessary to explain to the jury the law
applicable when a homeowner uses deadly force against a home intruder. The proposed
modified CALCRIM 506 instruction is based on CALCRIM 506, with the word,
“homeowner” substituted in place of the word, “defendant.” Defense counsel also added
the last paragraph of the instruction to state that a defendant has a right to self-defense 3 when a homeowner’s attempt to kill an intruder is unjustified.
3 Defendant’s proposed modified CALCRIM 506 instruction states: [footnote continued on next page]
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Defense counsel argued CALCRIM 506 was necessary because of the rebuttable
presumption that a resident fears imminent death or great bodily injury during a home
invasion. This presumption is stated in CALCRIM 3477. The prosecutor argued the
defendant’s proposed instructions were unnecessary and would confuse the jury. The
trial court rejected CALCRIM 506 and 3477 on the grounds the burglary and robbery
were continuing crimes and the facts did not support the instructions. The trial court
added that it would not give the presumption instruction, CALCRIM 3477, because it did
“A homeowner may kill or attempt to kill to defend himself or any other person in the homeowner’s home. Such a killing is justified, and therefore not unlawful, if: 1. The homeowner reasonably believed that he was defending a home against an intruder who violently, [or] riotously, [or] tumultuously tried to enter that home intending to commit an act of violence against someone inside; 2. The homeowner reasonably believed that the danger was imminent; 3. The homeowner reasonably believed that the use of deadly force was necessary to defend against the danger; AND 4. The homeowner used no more force than was reasonably necessary to defend against the danger. “Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The homeowner must have believed there was imminent danger of violence to himself [or] someone else. [The] homeowner’s belief must have been reasonable and he must have acted only because of that belief. The homeowner is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the homeowner used more force than was reasonable, then the killing or attempted killing was not justified. “When deciding whether the homeowner’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the homeowner and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the homeowner’s beliefs were reasonable, the danger does not need to have actually existed. “A homeowner is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of death or bodily injury has passed. This is so even if safety could have been achieved by retreating. “The People have the burden of proving beyond a reasonable doubt that the attempted killing was not justified. If the People have not met this burden, you must find the Defendant acted in self-defense you must find the defendant not guilty of attempted murder [or] manslaughter.” (Italics added.)
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not fit the circumstances of the instant case, and it did not matter whether A.C. or
defendant and his cohorts fired first because the evidence showed that there was a barrage
of gunfire against A.C.
1. Self-Defense
“Traditional self-defense applies where the defendant believes he or she is facing
an imminent and unlawful threat of death or great bodily injury, and believes the acts
which cause [or attempt to cause] the victim’s death are necessary to avert the threat, and
these beliefs are objectively reasonable.” (People v. Curtis (1994) 30 Cal.App.4th 1337,
1357.)
Defendant contends that the trial court should have given CALCRIM 505 (self-
defense) and modified CALCRIM 506 (defense of habitation), because A.C. entered his
own home with his gun drawn. Defendant argues that A.C. stormed into his house,
playing “the role of vigilante,” with “weapons trained on the intruders.” While this is a
colorful and dramatic version of the incident, there is very little, if any, evidence to
support such facts. There was little, if any, evidence that A.C. unlawfully entered his
own home, using excessive, unjustified force. Defendant argues A.C. did not have the
right to enter his home with a loaded gun and fire it at defendant and his cohorts. But the
unrefuted evidence shows A.C. lawfully entered his home with his gun drawn for self-
protection, with the knowledge the burglars might still be in his home. While it might
have been more prudent to call the police, A.C. had the right to enter his own home, and
it was not unreasonable or unlawful for him to retrieve his gun for protection, since he
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had just observed burglars in his home and was a security guard with extensive training
in using a gun.
Furthermore, there is no evidence that defendant reasonably acted in self-defense
when A.C. entered his home. Rather, substantial evidence showed that defendant and his
cohorts were lying in wait for A.C. to enter his home, and when A.C. entered, they fired a
barrage of bullets toward him, causing A.C. to quickly retreat from his home. While
there was evidence A.C. may have fired a single round during the ambush, there was
little, if any, evidence A.C. was unjustified in doing so, or that A.C. unlawfully initiated
the exchange of gunfire, or that defendant and his cohorts were justified in firing 23
rounds at A.C., from four guns. Regardless of whether A.C. fired first, fired a return
gunshot, or fired at all, there is little, if any, evidence that defendant and his cohorts acted
in reasonable self-defense, out of fear of imminent bodily injury, when they sprayed A.C.
with bullets.
In addition, defendant and his cohorts set in motion the events leading to the
shooting. Because they were responsible for creating the dangerous circumstances
leading to the shooting incident, they cannot rely on self-defense. (People v. Randle
(2005) 35 Cal.4th 987, 1001 (Randle).) Defendant and his cohorts unlawfully entered
and burglarized A.C.’s home, and when A.C. alerted them to having been seen in his
home, defendant and his cohorts remained in A.C.’s home, and ambushed him when he
entered his home. (People v. Curtis, supra, 30 Cal.App.4th at p. 1357.)
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“It is well established that the ordinary self-defense doctrine—applicable when a
defendant reasonably believes that his safety is endangered—may not be invoked by a
defendant who, through his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created circumstances under which his
adversary’s attack or pursuit is legally justified. [Citations.]” (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1.) A.C.’s entry into his home, with his gun drawn, not knowing if
the burglars were still in his home, was legally justified. It was undisputed defendant and
his cohorts set in motion these circumstances leading to the shooting incident. Therefore,
the trial court did not abuse its discretion in rejecting defendant’s self-defense instruction.
Defendant responds that, regardless, when there is no legal justification for the
victim’s attack, a defendant is entitled to defend himself and others. (Randle, supra, 35
Cal.4th at p. 1002.) But there was no evidence that A.C. was unjustified in lawfully
entering his home with his gun draw for protection. There was also little, if any,
evidence that A.C. was the aggressor who initiated the shooting incident. It is unlikely he
would have initiated a gun battle since he was alone and he would have reasonably
believed there might have been at least two burglars inside. Furthermore, the evidence
shows that defendant’s cohorts immediately fired at A.C. when he entered. It can be
reasonably inferred they were lying in wait for A.C. to enter, and had prepared to ambush
him. Under these circumstances, in which there was little, if any, evidence of justified
self-defense and overwhelming evidence demonstrating that defendant and his cohorts
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ambushed A.C., there was no abuse of discretion in the trial court not giving a self-
defense instruction.
2. Defense of Habitation
We conclude the trial court did not abuse its discretion by rejecting defendant’s
modified version of CALCRIM 506. As discussed above, there is no evidence A.C.
unlawfully entered his house with his gun drawn, after observing burglars inside his
home. There also was little, if any, evidence A.C. was the aggressor when he entered his
home and was immediately sprayed with bullets from four guns and at least 23 rounds.
The defense of habitation instruction, CALCRIM 506, is intended to be used by a
defendant claiming the right of protection of his own home and those in his home, not by
a home intruder, such as defendant. CALCRIM 506 and the self-defense instruction,
CALCRIM 505, are founded on subdivision (2) of section 197, which provides that
homicide is justifiable when committed by someone “in defense of habitation, property,
or person, against one who manifestly intends or endeavors, by violence or surprise, to
commit a felony, or against one who manifestly intends and endeavors, in a violent,
riotous, or tumultuous manner, to enter the habitation of another for the purpose of
offering violence to any person therein.” (§ 197, subd. (2).) Subdivision (2) of section
197, clarifies that defense of one’s home is not, alone, sufficient to justify intentional use
of deadly force. (People v. Curtis, supra, 30 Cal.App.4th at p. 1360.) There must also be
a showing that the homeowner acted in self-defense or in defense of another, with a
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reasonable belief the intruder intended to kill or inflict serious injury on someone in the
home. (Ibid.)
Section 198.5, known as the “Home Protection Bill of Rights, . . . provides in
pertinent part: ‘Any person using force intended or likely to cause death or great bodily
injury within his or her residence shall be presumed to have held a reasonable fear of
imminent peril of death or great bodily injury to self, family, or a member of the
household when that force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the
residence and the person using the force knew or had reason to believe that an unlawful
and forcible entry occurred.’” (See People v. Hardin (2000) 85 Cal.App.4th 625, 633.)
Section 198.5 creates a rebuttable presumption that a homeowner inside his home
has a reasonable fear of death or great bodily injury when the homeowner uses deadly
force against an unlawful and forcible home intruder. (People v. Brown (1992) 6
Cal.App.4th 1489, 1494; People v. Hardin, supra, 85 Cal.App.4th at p. 633.) Section
198.5 “was enacted ‘to permit residential occupants to defend themselves from intruders
without fear of legal repercussions, to give “the benefit of the doubt in such cases to the
resident, establishing a presumption that the very act of forcible entry entails a threat to
the life and limb of the homeowner.” [Citation.]’” (People v. Hardin, supra, at p. 633,
quoting People v. Owen (1991) 226 Cal.App.3d 996, 1005.)
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“For section 198.5 to apply, four elements must be met. There must be [1] an
unlawful and forcible entry into a residence; [2] the entry must be by someone who is not
a member of the family or the household; [3] the residential occupant must have used
‘deadly’ force (as defined in § 198.5) against the victim within the residence; and [4]
finally, the residential occupant must have had knowledge of the unlawful and forcible
entry.” (People v. Brown, supra, 6 Cal.App.4th at pp. 1494-1495; see CALCRIM 3477.)
Neither the proposed defense of habitation instruction, modified CALCRIM 506,
nor CALCRIM 3477, which describes the rebuttable presumption of a homeowner
fearing harm by a home intruder, is relevant because defendant and his cohorts were
home intruders, not homeowners. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1327.)
Defense counsel proposed changing the wording of the instructions to apply to A.C. as
the homeowner, but there was insufficient evidence to support the instructions, even as
modified. Furthermore, CALCRIM 506 would have likely confused the jury, because
defendant was not defending his own residence and A.C.’s entrance into his own home
with his gun drawn was not unlawful.
Defendant argues there was evidence supporting his proposed modified defense of
habitation instruction. Such evidence, he argues, included evidence A.C. could not have
possibly believed the burglars intended to kill or inflict serious injury on anyone in his
home, because no one was home during the burglary. Also, A.C. could not have
reasonably believed he was in imminent danger, because initially A.C. was outside and
not in danger when he discovered the burglary in progress. Therefore A.C.’s use of force
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against defendant and his cohorts was unnecessary and unjustified. A.C. could have
called the police and avoided using force. However, substantial evidence shows that
A.C. had the lawful right to enter his home, carrying a gun for protection, and once
inside, he reasonably believed he was in imminent danger. He had seen intruders in his
home and then, upon lawfully entering his home, he saw defendant in his home and was
immediately ambushed with a barrage of bullets. We thus conclude the defense of
habitation instruction, CALCRIM 506, even as modified, was unsupported by substantial
evidence. Therefore the trial court did not abuse its discretion by rejecting it.
Defendant’s reliance on People v. Watie (2002) 100 Cal.App.4th 866, 878 (Watie),
in support of the defense of habitation instruction, is misplaced. In Watie, the defendant
shot his stepfather, James Lee, through a locked front porch screen security door,
believing Lee was about to shoot him. (Id. at p. 874.) During the trial, the court
instructed the jury on the defense of habitation and self-defense. On appeal, the
defendant objected to the instructions on the ground they allowed the jurors to presume
Lee was acting in lawful defense of his property, thereby eliminating defendant’s theory
of self-defense. (Id. at p. 876.) The Watie court disagreed, holding that “the right of a
victim to defend himself and his property is a relevant consideration in determining
whether a defendant may prevail when he seeks to negate malice aforethought by
asserting the affirmative defense of imperfect self-defense.” (Id. at p. 878.)
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The Watie court explained that “Here, the jury was confronted with the question of
whether defendant’s use of deadly force was justified as he confronted Lee on the front
porch of Lee’s home and whether defendant’s unlawful conduct created the
circumstances that legally justified Lee’s use of force. If Lee had a right to use force to
defend himself in his home, then defendant had no right of self-defense, imperfect, or
otherwise. The court’s instructions on Lee’s rights and defendant’s right to turn to deadly
force correctly stated the law.” (Watie, supra, 100 Cal.App.4th at p. 878.)
Unlike in Watie, in the instant case, defendant objects to the trial court not giving
the defense of habitation and self-defense instructions. The court in Watie, concluded the
instructions were proper based on factual circumstances quite different from those in the
instant case. In Watie, there was evidence that the victim had told the defendant to leave,
threatened to “‘whip his ass,’” appeared to grab a rifle, and pointed the rifle at the
defendant, at which point the defendant grabbed a gun from his back pocket and fired at
the victim. Also, the defendant testified he believed Lee was going to kill him. (Watie,
supra, 100 Cal.App.4th at p. 873.)
In addition, unlike in the instant case, the defendant was outside the victim’s
home, on the other side of a locked screen security door and had been arguing with the
victim. The defendant was not unlawfully inside the victim’s home, was not threatening
to enter through the locked security door, and was not committing a burglary or felony
with other cohorts inside the victim’s home. Nor was there any evidence the defendant
ambushed the homeowner victim. Although the court in Watie held there was sufficient
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evidence to support defendant’s proposed defense of habitation instruction, in the instant
case the trial court reasonably rejected the instruction as unsupported by the evidence. In
turn, there was insufficient evidence defendant had a right to self-defense.
Randle, supra, 35 Cal.4th 987, cited by defendant, is also not on point. In Randle,
the defendant and an accomplice burglarized a car. A relative of the car owner caught the
thieves in the act. The relative and the car owner chased them down and seriously beat
the accomplice. The defendant shot the relative and was convicted of second degree
murder. (Id. at pp. 991-992.) The Randle court held that, although the defendant set in
motion a series of events leading to the defendant shooting the relative, the defendant’s
retreat and the relative’s recovery of the stolen equipment from the defendant’s
accomplice “extinguished the legal justification” for the relative attacking the
accomplice. (Id. at p. 1002.) The court in Randle, concluded the relative took the law
into his own hands by beating the accomplice and used more force than was justified.
Therefore the defendant was entitled to argue imperfect defense of others. (Id. at pp.
1002-1003.)
The instant case is distinguishable in that there was no evidence defendant and his
cohorts retreated or that A.C.’s act of entering his home with his gun drawn was
unjustified. On the other hand, there is overwhelming evidence that, after A.C. alerted
them that he saw them inside, defendant and his cohorts elected to remain inside A.C.’s
home, instead of leaving, and waited for A.C. to enter his home, whereupon they
ambushed him with a barrage of bullets, forcing A.C. to retreat from his home.
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Therefore, unlike in Randle, defendant set in motion the circumstance leading to the
shooting, and there was insufficient evidence to support instructions on the theories of
self-defense and defense of habitation.
IV.
IMPOSITION OF FINES AND FEES
During sentencing in September 2018, the trial court imposed a $300 restitution
fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation fine (§ 1202.45), a $120 court
operations assessment fee ($40 per count conviction; § 1465.8, subd. (a)), and a $90
criminal conviction assessment fee ($30 per count conviction; Gov. Code, § 70373). The
court reserved jurisdiction over victim restitution. After discussing defendant’s credits,
the court told defendant: “I don’t think I stated this yet, but I’m going to also order that
you pay a restitution fine in the amount of $5,000 pursuant to 1202.4 and an additional
parole revocation restitution fine in the amount of $5,000. That fine is suspended unless
parole is revoked.” There was no mention of defendant’s ability to pay the court-ordered
fines and fees, and defendant did not object to them.
Defendant contends, and the People agree, the trial court’s order imposing a
restitution fine under section 1202.4 is ambiguous because the court initially ordered a
$300 restitution fine and stayed $300 parole revocation restitution fine (§ 1202.45).
Then, a few minutes later, the court ordered defendant to pay a $5,000 restitution fine and
a stayed, $5,000 parole revocation restitution fine, apparently not realizing it had already
ordered a $300 restitution fine and $300 parole revocation restitution fine. Defendant
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also contends the trial court order imposing fines and fees, without determining his ability
to pay them, violated his constitutional right to due process under Dueñas, supra, 30
Cal.App.5th 1157. Defendant asserts that this court should remand this matter to the trial
court for an ability-to-pay hearing to determine whether defendant has the ability to pay
the court-ordered fines and fees.
As to defendant’s contention the trial court’s orders imposing restitution fines are
ambiguous and contradictory, we agree. The trial court inadvertently ordered these fines
twice, without realizing when making the second order that the court had already ordered
the fines in a different amount. Even though the minute order and abstract of judgment
state the fines were $5,000, it is unclear from the reporter’s transcript of the sentencing
hearing and the trial court’s contradictory oral orders, as to whether the trial court
intended to order $300 or $5,000 restitution and parole revocation restitution fines.
(People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy
between the oral pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls.”].) Because of the inconsistency and
ambiguity in the oral pronouncement of the restitution and parole revocation restitution
fines, the fines and fees order is reversed to allow the trial court to reconsider and clarify
its contradictory oral pronouncement of the court-ordered fines.
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We need not address defendant’s Dueñas challenge, because this case is being
remanded for reconsideration of the court-ordered fines. During the resentencing hearing
on the fines and fees, the trial court will have the opportunity to address defendant’s
Dueñas challenge.
V.
PRESENTENCE CREDITS
Defendant requests this court to correct the trial court’s award of presentence
credits. The People agree this should be done. Defendant was in custody from
November 30, 2017, until sentencing on September 7, 2018, for a total of 282 days.
However, the trial court erroneously awarded defendant only 281 actual days of credit.
(§ 2900.5, subd. (a); In re Watson (1977) 19 Cal.3d 646, 653-653.) Defendant therefore
should be awarded one additional day of presentence credit, for a total of actual credits of
282 days. Defendant was awarded 42 days of section 2933.1 worktime credits. His total
credits should therefore be 324 days, instead 323 days ordered by the trial court.
VI.
DISPOSITION
We reverse the trial court’s orders imposing fines and fees, and remand the case to
the trial court with directions to reconsider the court’s inconsistent orally imposed
restitution and stayed parole revocation restitution fines. We urge the trial court, when
reconsidering the restitution fines, to consider Dueñas, supra, 30 Cal.App.5th 1157, as
applied to defendant’s fines and fees.
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We also order the trial court to modify its presentence credits order to add one
additional day of presentence credit, for a total of 282 days of actual credits and 324 days